BV_MiApp312

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

August 20, 2015, through October 20, 2015

CORBIN R. DAVIS

REPORTER OF DECISIONS

VOLUME 312

FIRST EDITION

2016

The paper used in this publication meets the minimum

requirements of American National Standard for Information

Sciences—Permanence of Paper for Printed Library Materi-

als, ANSI Z39.48-1984.

COURT OF APPEALS

ERM

XPIRES

ANUARY

HIEF

UDGE

MICHAEL J. TALBOT................................................................. 2021

HIEF

UDGE

CHRISTOPHER M. MURRAY .................................................... 2021

UDGES

DAVID SAWYER .......................................................................... 2017

WILLIAM B. MURPHY............................................................... 2019

MARK J. CAVANAGH ................................................................. 2021

KATHLEEN JANSEN ................................................................. 2019

HENRY WILLIAM SAAD............................................................ 2021

JOEL P. HOEKSTRA ................................................................... 2017

JANE E. MARKEY ...................................................................... 2021

PETER D. O’CONNELL .............................................................. 2019

KURTIS T. WILDER.................................................................... 2017

PATRICK M. METER .................................................................. 2021

DONALD S. OWENS................................................................... 2017

KIRSTEN FRANK KELLY.......................................................... 2019

PAT M. DONOFRIO..................................................................... 2017

KAREN FORT HOOD.................................................................. 2021

STEPHEN L. BORRELLO .......................................................... 2019

DEBORAH A. SERVITTO ........................................................... 2019

JANE M. BECKERING ............................................................... 2019

ELIZABETH L. GLEICHER ....................................................... 2019

CYNTHIA DIANE STEPHENS................................................... 2017

MICHAEL J. KELLY ................................................................... 2021

DOUGLAS B. SHAPIRO ............................................................. 2019

AMY RONAYNE KRAUSE.......................................................... 2021

MARK T. BOONSTRA ................................................................. 2021

MICHAEL J. RIORDAN.............................................................. 2019

MICHAEL F. GADOLA................................................................ 2017

HIEF

LERK

: JEROME W. ZIMMER, J

ESEARCH

IRECTOR

: JULIE ISOLA RUECKE

To October 1, 2015.

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

ROBERT P. YOUNG, J

. ............................................................ 2019

USTICES

STEPHEN J. MARKMAN .......................................................... 2021

MARY BETH KELLY.................................................................. 2019

BRIAN K. ZAHRA....................................................................... 2023

BRIDGET M. M

CORMACK ..................................................... 2021

DAVID F. VIVIANO .................................................................... 2017

RICHARD H. BERNSTEIN........................................................ 2023

JOAN L. LARSEN....................................................................... 2019

OMMISSIONERS

DANIEL C. BRUBAKER, C

HIEF

OMMISSIONER

SHARI M. OBERG, D

EPUTY

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER MICHAEL S. WELLMAN

LYNN K. RICHARDSON GARY L. ROGERS

NELSON S. LEAVITT RICHARD B. LESLIE

DEBRA A. GUTIERREZ-M

GUIRE KATHLEEM. DAWSON

ANNE-MARIE HYNOUS VOICE SAMUEL R. SMITH

DON W. ATKINS ANNE E. ALBERS

JÜRGEN O. SKOPPEK AMY L. V

DYKE

TATE

OURT

DMINISTRATOR

MILTON J. MACK

LERK:

LARRY S. ROYSTER

EPORTER OF

ECISIONS:

CORBIN R. DAVIS

RIER:

DAVID G. PALAZZOLO

To October 1, 2015.

From October 5, 2015.

TABLE OF CASES REPORTED

AGE

American Country Ins Co, Titan Ins Co v ....... 291

Bergman, People v ............................................. 471

Bill & Dena Brown Trust v Garcia ................... 684

Boyle, Doe v ........................................................ 333

Bronson Methodist Hospital v Titan Ins Co .... 291

Brown Estate, In re ............................................ 684

Castro v Goulet .................................................. 1

Christ Lutheran Church of Birch Run,

Hillenbrand v .................................................. 273

Citizens Ins Co of America, Dell v .................... 734

City of Harper Woods, Harper Woods Retirees

Ass’n v ............................................................. 500

Comer, People v .................................................. 538

Conservatorship of Bittner, In re ...................... 227

Corbin, People v ................................................. 352

Corrections (Dep’t of), Doe v .............................. 97

Dell v Citizens Ins Co of America ..................... 734

Dep’t of Corrections, Doe v ................................ 97

AGE

Dep’t of Treasury, Gillette Commercial

Operations North America &

Subsidiaries v .................................................... 394

Doe v Boyle ......................................................... 333

Doe v Dep’t of Corrections ................................. 97

Duke Estate, In re .............................................. 574

Feeley, People v .................................................. 320

Fox Chase Condo Ass’n, Francescutti v ............ 640

Francescutti v Fox Chase Condo Ass’n ............. 640

Garcia, Bill & Dena Brown Trust v .................. 684

Gillette Commercial Operations North America

& Subsidiaries v Dep’t of Treasury ................. 394

Goulet, Castro v ................................................. 1

Granneman, Varran v ........................................ 591

Harper Woods (City of), Harper Woods

Retirees Ass’n v .............................................. 500

Harper Woods Retirees Ass’n v City of Harper

Woods .............................................................. 500

Hayes v Parole Bd .............................................. 774

Highland Park Election Comm, White v .......... 571

Hillenbrand v Christ Lutheran Church of

Birch Run ........................................................ 273

Humphrey, People v ........................................... 309

In re Brown Estate ............................................. 684

In re Conservatorship of Bittner ....................... 227

In re Duke Estate ............................................... 574

ii 312 M

ICH

AGE

In re Jajuga Estate ............................................. 706

In re Mardigian Estate ...................................... 553

Jajuga Estate, In re ............................................ 706

MIC General Ins Co, Nickola v ......................... 374

Mardigian Estate, In re ..................................... 553

Nickola v MIC General Ins Co .......................... 374

Parole Bd, Hayes v ............................................. 774

People v Bergman .............................................. 471

People v Comer ................................................... 538

People v Corbin .................................................. 352

People v Feeley ................................................... 320

People v Humphrey ............................................ 309

People v Raisbeck ............................................... 759

People v Skinner ................................................ 15

People v Sledge ................................................... 516

People v Stokes ................................................... 181

People v Terrell ................................................... 450

People v Tucker .................................................. 645

Perkovic v Zurich American Ins Co .................. 244

Raisbeck, People v .............................................. 759

Rogers v Wcisel .................................................. 79

Salem Springs, LLC v Salem Twp .................... 210

ABLE OF

ASES

EPORTED

iii

AGE

Salem Twp, Salem Springs, LLC v ................... 210

Skinner, People v ................................................ 15

Sledge, People v .................................................. 516

Stokes, People v .................................................. 181

Terrell, People v .................................................. 450

Titan Ins Co v American Country Ins Co ......... 291

Titan Ins Co, Bronson Methodist Hospital v ... 291

Treasury (Dep’t of), Gillette Commercial

Operations North America &

Subsidiaries v .................................................... 394

Tucker, People v ................................................. 645

Varran v Granneman ......................................... 591

Walega v Walega ................................................ 259

Wcisel, Rogers v ................................................. 79

White v Highland Park Election Comm ........... 571

Zurich American Ins Co, Perkovic v ................. 244

iv 312 M

ICH

OURT OF

PPEALS

ASES

CASTRO v GOULET

Docket No. 316639. Submitted July 16, 2014, at Lansing. Decided

August 20, 2015, at 9:00 a.m. Leave to appeal sought.

Ruben and Christy Castro ﬁled a medical malpractice action in the

Washtenaw Circuit Court against defendants for complications

Ruben Castro suffered after defendants performed arthroscopic

surgery on him. Plaintiffs failed to ﬁle an afﬁdavit of merit with

their complaint; instead, plaintiffs ﬁled a motion under MCL

600.2912d(2) to extend the time for ﬁling the afﬁdavit of merit.

Although the motion to extend time was ﬁled before the statutory

period of limitations expired, the trial court, David Scott Swartz,

J., did not grant the motion until after the period of limitations

would have expired without the beneﬁt of the 28-day extension.

The trial court granted defendants’ motion for summary disposi-

tion under MCR 2.116(C)(7), ruling that simply ﬁling the motion

for an extension of time did not toll the period of limitations.

Because plaintiffs did not ﬁle an afﬁdavit of merit before expira-

tion of the period of limitations, plaintiffs did not successfully

commence the action within the period prescribed by the appli-

cable statute of limitations. Plaintiffs appealed.

The Court of Appeals held:

The trial court erred by granting defendants’ motion for

summary disposition because plaintiffs’ motion to extend time

for ﬁling an afﬁdavit of merit was ﬁled before expiration of the

limitations period, the motion was eventually granted, and

plaintiffs ﬁled the afﬁdavit of merit within 28 days of their

timely ﬁled complaint. Because the trial court ultimately

granted plaintiffs’ motion to extend time and because plaintiffs

ﬁled the motion to extend time before the period of limitations

expired, the period of limitations was effectively tolled on the

date plaintiffs ﬁled their motion to extend time. The fact that

the motion to extend time for ﬁling an afﬁdavit of merit was not

granted until after the period of limitations would have expired

in the absence of an extension was of no consequence to

plaintiffs’ action. The fact that the motion was granted was the

dispositive event in this case. A party must proceed as if its

ASTRO V

OULET

motion to extend time will be granted, and it must ﬁle the

afﬁdavit of merit within the 28-day extension permitted by MCL

600.2912d(2). Plaintiffs’ action was timely commenced because

(1) plaintiffs ﬁled the motion to extend time before the period of

limitations had expired, (2) the motion was ultimately granted,

and (3) plaintiffs ﬁled the required afﬁdavit within 28 days of

ﬁling their complaint. The trial court should not have granted

defendants’ motion for summary disposition under these circum-

stances.

Reversed and remanded.

ILDER

, J., dissenting, concluded that the trial court properly

granted defendants’ motion for summary disposition because

plaintiffs did not timely commence the medical malpractice

action against defendants. Plaintiffs failed to ﬁle the required

afﬁdavit of merit before expiration of the statutory limitations

period, and therefore, their claim was barred. The majority’s

ruling means that a motion to extend time, regardless of the

date on which it is granted, operates to retroactively toll the

period of limitations from the date on which the motion was

ﬁled. There is no support for the majority’s holding. In this case,

the trial court did not grant plaintiffs’ motion to extend time

until after the period of limitations expired, and therefore,

plaintiffs did not have the beneﬁt of an additional 28 days in

which to ﬁle the afﬁdavit of merit. Because the afﬁdavit of merit

was not ﬁled within the statutory limitations period, plaintiffs’

cause of action should have been barred for failure to comply

with the applicable statute of limitations.

EDICAL

ALPRACTICE —

TATUTE OF

IMITATIONS —

FFIDAVIT OF

ERIT —

OTION TO

XTEND

IME

A motion to extend time for ﬁling an afﬁdavit of merit effectively

tolls the statutory period of limitations if the motion is ﬁled

before the period of limitations has expired; an afﬁdavit of merit

is considered timely ﬁled if it is ﬁled pursuant to a timely ﬁled

motion to extend time for ﬁling the afﬁdavit within 28 days of a

timely ﬁled complaint, regardless whether the motion for an

extension of time was granted before the period of limitations

would have expired absent any extension (MCL 600.2912d(2)).

James D. Wines for

plaintiffs.

Kerr, Russell and Weber, PLC (by Patrick McLain

and Joanne Geha Swanson), for defendants.

2 312 M

ICH

1 [Aug

Before: R

ONAYNE

RAUSE

, P.J., and W

ILDER

and

TEPHENS

, JJ.

ONAYNE

RAUSE

, P.J. Plaintiffs appeal as of right an

order granting defendants’ motion for summary dispo-

sition of their medical malpractice claim under MCR

2.116(C)(7) for the failure to ﬁle an afﬁdavit of merit

(AOM) with their complaint within the two-year period

of limitations. Instead of an AOM, plaintiffs ﬁled with

their complaint a motion to extend the time for ﬁling

an AOM as provided for by MCL 600.2912d(2). The

trial court granted that motion; however, the court

subsequently granted summary disposition on the

grounds that the action itself was untimely. We reverse

and remand.

This Court reviews de novo matters of statutory

interpretation, as well as the trial court’s decision to

grant or deny a motion for summary disposition. See

Titan Ins Co v Hyten, 491 Mich 547, 553; 817 NW2d

562 (2012). Summary disposition pursuant to MCR

2.116(C)(7) is appropriate if a “claim is barred by an

applicable statute of limitations.” Nuculovic v Hill, 287

Mich App 58, 61; 783 NW2d 124 (2010). “In reviewing

a motion under subrule (C)(7), a court accepts as true

the plaintiff’s well-pleaded allegations of fact, constru-

ing them in the plaintiff’s favor.” Id. We otherwise

review de novo the trial court’s determinations of law;

however, any factual ﬁndings made by the trial court in

support of its decision are reviewed for clear error, and

ultimate discretionary decisions are reviewed for an

abuse of that discretion. Herald Co, Inc v Eastern Mich

Univ Bd of Regents, 475 Mich 463, 470-472; 719 NW2d

19 (2006). Under the clear error standard, this Court

defers to the trial court unless deﬁnitely and ﬁrmly

convinced that the trial court made a mistake, and

under the abuse of discretion standard, this Court

2015] C

ASTRO V

OULET

PINION OF THE

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“cannot disturb the trial court’s decision unless it falls

outside the principled range of outcomes.” Id. at 472.

An AOM generally must be ﬁled with a medical

malpractice complaint. MCL 600.2912d(1). Ordinarily,

a complaint ﬁled without an AOM is “insufﬁcient to

commence the lawsuit” and does not toll the statute of

limitations. Scarsella v Pollak, 461 Mich 547, 549; 607

NW2d 711 (2000) (quotation marks and citation omit-

ted). However, the Legislature has provided for certain

narrow exceptions to that general requirement; in

relevant part, MCL 600.2912d(2) provides: “Upon mo-

tion of a party for good cause shown, the court in which

the complaint is ﬁled may grant the plaintiff or, if the

plaintiff is represented by an attorney, the plaintiff’s

attorney an additional 28 days in which to ﬁle the

afﬁdavit required under subsection (1).”

Consequently, a medical malpractice plaintiff may,

under appropriate circumstances, be permitted to ﬁle

their AOM up to 28 days after ﬁling the complaint.

Our Supreme Court has expressly recognized that

plaintiff may be unable to obtain an AOM within

the requisite time period, in which case “the plain-

tiff’s attorney should seek the relief available in

Other exceptions may apply under circumstances not relevant to the

instant matter. We do not discuss any such additional exceptions here.

We also note that we are aware that our Supreme Court has recently

reiterated that “a medical malpractice action can only be commenced by

ﬁling a timely NOI [notice of intent] and then ﬁling a complaint and an

afﬁdavit of merit after the applicable notice period has expired, but

before the period of limitations has expired.” Tyra v Organ Procurement

Agency of Mich, 498 Mich 68, 94; 869 NW2d 213 (2015). This general

rule governing the commencement of medical malpractice actions is

inapplicable here. The exception at issue here was neither before the

Court in Tyra nor even mentioned by the Court, and the Court

emphasized in no uncertain terms that matters not directed to its

attention by counsel would not be considered. Id. at 88-89. Tyra adds

nothing to the question at issue in the case at bar.

4 312

ICH

1 [Aug

PINION OF THE

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MCL 600.2912d(2) . . . .” Solowy v Oakwood Hosp

Corp, 454 Mich 214, 228-229; 561 NW2d 843 (1997)

(emphasis added). If the trial court ﬁnds “a showing of

good cause, an additional twenty-eight days [are

permitted] to obtain the required afﬁdavit of merit.”

Id. at 229. “During this period, the statute will be

tolled and summary disposition motions on the

ground of failure to state a claim should not be

granted.” Id.

This Court has clariﬁed that it is ultimately the

granting of the motion that effectuates the 28-day

tolling, not merely ﬁling the motion. Barlett v North

Ottawa Community Hosp, 244 Mich App 685, 692; 625

NW2d 470 (2001). Furthermore, the tolling period only

runs from the date the complaint is ﬁled; it cannot

resurrect a claim where the complaint itself was un-

timely. Ligons v Crittenton Hosp, 490 Mich 61, 74-75,

84-85; 803 NW2d 271 (2011). However, in this case

plaintiffs ﬁled their complaint within the two-year limi-

tations period, their motion for additional time was

granted,

and they ﬁled their AOM fewer than 28 days

after

the date on which they ﬁled their complaint.

Consequently, plaintiffs acted properly pursuant to

Defendants raise an alternative argument that no “good cause” was

shown. As we will discuss later in this opinion, we disagree.

The alleged malpractice occurred on February 9, 2011, so the

limitations period was set to expire on February 9, 2013. See MCL

600.5805(6). Plaintiffs ﬁled their complaint and their motion to extend

the time for ﬁling an AOM on February 4, 2013, and their AOM on

February 26, 2013. The dissent relies on our Supreme Court’s analysis

in Gladych v New Family Homes, Inc, 468 Mich 594, 603-604; 664

NW2d 705 (2003), for the proposition that the limitations period was

not tolled because the order granting plaintiff’s request for a 28-day

extension was not entered until March 8, 2013. This ignores the fact

that by statute, MCL 600.2912d(2) provides for an extension of the

period within which to ﬁle and for what is effectively the “perfection”

of a complaint initially ﬁled without an AOM with a later ﬁling of the

AOM. Furthermore, the continuing vitality of Gladych is highly

2015] C

ASTRO V

OULET

PINION OF THE

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both statute and caselaw.

Defendants and the dissent believe it is relevant

that the trial court granted plaintiffs’ motion on March

8, 2013, which is of course well after the expiration of

the 28-day period. The only relevance is the fact that,

as noted, the trial court actually granted the motion.

MCL 600.2912d(2) explicitly affords “an additional 28

days in which to ﬁle the afﬁdavit required under

subsection (1),” which in turn speciﬁes that the afﬁda-

vit should be ﬁled with the complaint. Our Supreme

Court’s discussion of the statute likewise articulates

the need for an AOM at the commencement of an

action, unless an additional 28 days are provided by

the granting of a motion under MCL 600.2912d(2).

Ligons, 490 Mich at 84; Solowy, 454 Mich at 229. That

period is “an extension.” Scarsella, 461 Mich at 552. By

statute and by precedent, the 28-day period must run

from the date the complaint is ﬁled, irrespective of

when the motion is granted. Not only would a contrary

holding violate the plain reading of the statute, it

would also make a plaintiff’s rights turn not on the

plaintiff’s compliance with the procedures established

by the Legislature, but rather purely on the vagaries of

doubtful, given that the Legislature amended MCL 600.5856 after that

case was decided to clarify that the statute of limitations is tolled “[a]t

the time the complaint is ﬁled, if a copy of the summons and complaint

are served on the defendant within the time set forth in the supreme

court rules.” The tolling criteria were satisﬁed here.

We are puzzled by the dissent’s citation to Holmes v Mich Capital

Med Ctr, 242 Mich App 703; 620 NW2d 319 (2000). In that case, this

Court explicitly stated that the limitations period at issue was not tolled

and thus the claim was not timely brought “[b]ecause plaintiffs failed to

comply with MCL 600.2912d; MSA 27A.2912(4) by ﬁling an afﬁdavit of

merit with their complaint or by requesting an extension of time in which

to ﬁle their afﬁdavit . . . .” Id. at 709 (emphasis added). Holmes supports

rather than refutes our position. Moreover, Holmes does not address the

impact of a trial court’s delayed grant of a requested extension. We fail

to perceive the relevance of Holmes.

6 312

ICH

1 [Aug

PINION OF THE

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when the trial court, or more likely not even the court

but rather a docketing clerk, chooses to hear or docket

the motion. In effect, the dissent and defendants would

render MCL 600.2912d(2) nugatory.

The obvious signiﬁcance of the timing requirements

MCL 600.2912d(2) is that a plaintiff who makes a

motion to extend time must proceed on the assumption

that the motion will be granted. Conversely, the trial

court need not go to particular lengths to rush the

matter, which could risk a less-than-optimal decision

for either party. Because plaintiffs complied with the

requirements of the statute, and they ﬁled their com-

plaint and motion within the two-year limitations

period and their AOM within 28 days thereafter, the

only remaining issue is defendant’s alternate argu-

ment that plaintiffs failed to show good cause.

“Good cause” is not deﬁned in the statute. The term

has, in such undeﬁned circumstances, been found “so

general and elastic in its import that we cannot pre-

sume any legislative intent beyond opening the door

for the court to exercise its best judgment and discre-

tion in determining if conditions exist which excuse the

delay when special circumstances are proven to that

end.” Lapham v Oakland Circuit Judge, 170 Mich 564,

570; 136 NW 594 (1912). The trial court’s ﬁnding of

good cause, or for that matter of a lack of good cause, is

consequently a highly discretionary one. Id. at 570-

571. As discussed, we will disturb a trial court’s exer-

cise of discretion only if the result falls outside the

range of principled outcomes. Herald Co, Inc, 475 Mich

at 472.

The dissent inexplicably concludes that plaintiffs are not at the

mercy of the potentially capricious or arbitrary whims of a docketing

clerk or a potentially full docket, because plaintiffs can—and plaintiffs

here did not—express a plea for expeditiousness. We are unable to locate

any court rule or statute requiring such a plea.

2015] C

ASTRO V

OULET

PINION OF THE

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According to the complaint, defendant doctors per-

formed a left hip arthroscopic surgical procedure on

plaintiff Ruben Castro. Before the surgery, he did not

have erectile dysfunction, but afterward, he suffered

from decreased sensation in his penis, pain when

urinating, and erectile dysfunction causing the inabil-

ity to procreate. Plaintiffs alleged that Ruben’s injuries

were caused by defendants’ negligent “use of the

perineal traction post using excessive pressure, and

employing the same for a period in excessive [sic] of

two [2] hours both being contrary to the standard of

practice.” Plaintiffs also alleged that defendants failed

to inform Ruben that erectile dysfunction was a pos-

sible consequence of the procedure. Plaintiffs contend

that he would not have undergone surgery if he had

known of that possible side effect. In addition to

negligence, plaintiffs alleged a loss of consortium.

Of signiﬁcance to the issue on appeal, defendants

contended that plaintiffs had unreasonably procrasti-

nated in bringing the instant action. Plaintiffs argued

that the reason for the delay was that doctors had told

Ruben “that erectile dysfunction which may occur from

surgery in which a perineal traction post is utilized

goes away, after weeks or months” but that no such

promised recovery occurred for Ruben. Plaintiffs

stated they would have ﬁled the lawsuit earlier if

medical professionals had not advised Ruben that

erectile dysfunction would subside and then com-

pletely phase out weeks or months after surgery. In

other words, plaintiffs delayed because of defendants’

assurances that the complications Ruben suffered

would end on their own. The purpose of the AOM

requirement in MCL 600.2912d is to deter the ﬁling of

frivolous medical malpractice claims. VandenBerg v

VandenBerg, 231 Mich App 497, 502; 586 NW2d 570

(1998). Plaintiffs attempted, on the basis of defen-

8 312 M

ICH

1 [Aug

PINION OF THE

OURT

dants’ assurances, to achieve precisely the same effect

and avoid ﬁling a needless suit. Under the circum-

stances, we simply cannot ﬁnd that the trial court’s

decision to allow plaintiffs the 28-day extension was

outside the range of principled outcomes. The trial

court had ample grounds to ﬁnd good cause and we ﬁnd

there was no abuse of discretion in granting the

allowed statutory extension.

The trial court properly granted plaintiffs’ motion

to extend the time in which to ﬁle their AOM, and

plaintiffs properly complied with all of the timing

requirements set forth in MCL 600.2912d. Conse-

quently, plaintiffs’ action was timely commenced, and

the trial court should not have granted summary

disposition pursuant to MCR 2.116(C)(7) on the basis

of it being untimely. We therefore reverse and remand

for further proceedings. We do not retain jurisdiction.

TEPHENS

, J., concurred with R

ONAYNE

RAUSE

, P.J.

ILDER

, J. (dissenting). I respectfully dissent.

In Tyra v Organ Procurement Agency of Mich, 498

Mich 68, 94; 869 NW2d 213 (2015), our Supreme Court

reiterated that

[a]lthough a civil action is generally commenced by ﬁling

complaint, a medical malpractice action can only be

commenced by ﬁling a timely NOI [notice of intent] and

then ﬁling a complaint and an afﬁdavit of merit after the

applicable notice period has expired, but before the period

of limitations has expired. [Emphasis added.]

This holding by the Supreme Court reﬂects the rule of

aw established in Scarsella v Pollak, 461 Mich 547,

549; 607 NW2d 711 (2000), that “for statute of limi-

tations purposes in a medical malpractice case, the

mere tendering of a complaint without the required

2015] C

ASTRO V

OULET

ISSENTING

PINION BY

ILDER

, J.

afﬁdavit of merit [AOM] is insufﬁcient to commence

the lawsuit.” (Quotation marks and citation omitted.)

In the instant case, when plaintiffs ﬁled their

complaint on February 4, 2013, they did not ﬁle an

AOM. Thus, the action against defendants did not

commence on February 4, 2013. However, plaintiffs

ﬁled a motion under MCL 600.2912d(2) to extend the

time for ﬁling the requisite AOM. The trial court

granted that motion on March 8, 2013, and the

majority concludes that the granting of plaintiffs’

motion operated retroactively to toll the running of

the period of limitations, such that “plaintiffs acted

properly pursuant to both statute and caselaw,” and

plaintiffs’ complaint and AOM should be deemed

timely ﬁled. I respectfully disagree.

The period of limitations for an action charging

malpractice is two years. MCL 600.5805(6). According

to plaintiffs, defendants’ malpractice occurred on Feb-

ruary 9, 2011. Thus, the period of limitations for

defendants’ alleged malpractice, absent tolling, was

scheduled to expire on February 9, 2013. This means

that plaintiffs were required to commence their action

against defendants by February 9, 2013, unless plain-

tiffs took some action to toll the running of the limita-

tions period. There is no dispute that plaintiffs’ action

was not commenced by February 9, 2013. There is also

no dispute that as of February 9, 2013, the period of

limitations had not been tolled. Thus, as in Holmes v

Mich Capital Med Ctr, 242 Mich App 703, 709; 620

NW2d 319 (2000), plaintiffs’ efforts to remedy their

failure to ﬁle an AOM with their complaint—in this

case, plaintiffs ﬁled a motion under MCL 600.2912d(2)

to extend the time for ﬁling an AOM—were, unfortu-

nately, insufﬁcient because their efforts culminated

beyond the limitations period.

10 312 M

ICH

1 [Aug

ISSENTING

PINION BY

ILDER

, J.

The majority concludes that this application of

Scarsella and its progeny renders MCL 600.2912d(2)

nugatory. I disagree. As statutes sharing a common

purpose, MCL 600.2912d(2) and MCL 600.5805(6)

must be read together as one and construed in a way

that produces a harmonious whole. Mich Basic Prop

Ins Ass’n v OFIR, 288 Mich App 552, 559-560; 808

NW2d 456 (2010) (“When construing statutes, the

terms of statutory provisions with a common purpose

should be read in pari materia. . . . Conﬂicting provi-

sions of a statute must be read together to produce an

[sic] harmonious whole and to reconcile any inconsis-

tencies wherever possible.”) (quotation marks and

citations omitted); Ross v Modern Mirror & Glass Co,

268 Mich App 558, 563; 710 NW2d 59 (2005) (“Stat-

utes that relate to the same subject must be read

together as one, even if they contain no reference to

one another.”). In my judgment, construing MCL

600.2912d(2) in a manner that requires a plaintiff to

obtain, before the statutory period of limitations ex-

pires, a court order granting an extension to ﬁle the

AOM so that the cause of action against a defendant

can be commenced before the period of limitations

expires, gives meaning to both statutes.

The deﬁning principle of law is that an action must

be commenced before the period of limitations for that

cause of action expires. See MCL 600.5805(1) (“A

person shall not bring or maintain an action to recover

damages for injuries to persons or property unless,

after the claim ﬁrst accrued to the plaintiff or to

someone through whom the plaintiff claims, the action

is commenced within the periods of time prescribed by

this section.”) (emphasis added); Ostroth v Warren

Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589

(2006); Gladych v New Family Homes, Inc, 468 Mich

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594, 598; 664 NW2d 705 (2003).

Operating together, it

is clear that the statutes underlying medical malprac-

tice claims respect that deﬁning principle of law. Under

MCL 600.5856(c), ﬁling a notice of intent to ﬁle suit

tolls the running of the period of limitations. Tyra, 498

Mich at 79. Upon expiration of the notice period, the

period of limitations resumes running. Cf. Gladych,

468 Mich at 603-604.

Filing a complaint and an

afﬁdavit

of merit, MCL 600.2912d(1), or the granting of

a motion for an extension of time to ﬁle the AOM, MCL

600.2912d(2), again operates to toll the running of the

statutory period of limitations. See Tyra, 498 Mich at

79 n 8; Solowy v Oakwood Hosp Corp, 454 Mich 214,

229; 561 NW2d 843 (1997). However, each effort to toll

the running of the period of limitations, as well as the

actual commencement of plaintiffs’ cause of action,

must occur before the period of limitations expires.

The majority holds that construing MCL

600.2912d(2)

to mean something other than that “the

28-day period must run from the date the complaint is

The Legislature amended MCL 600.5856 after the Gladych opinion

issued. The amended statute speciﬁes that a statutory period of limita-

tions is tolled when a complaint is ﬁled before the period of limitations

expires “if a copy of the summons and complaint are served on the

defendant within the time set forth in the supreme court rules.” MCL

600.5856(a).

Rather than as binding precedent in the instant case, I cite to

Gladych merely to illustrate, by analogy, that the period of limitations

resumes running after previously being properly tolled for some period

of time.

Moreover, although in Pryber v Marriott Corp, 98 Mich App 50, 56;

296 NW2d 597 (1980), this Court concluded that the Legislature,

through the enactment of a retroactive law, may revive a cause of action

which has already been barred by the application of a previously

existing statute of limitations, I am unable to ﬁnd any caselaw, and the

majority cites to none, which supports the proposition that an untimely

cause of action barred by application of an expired period of limitations

may be subsequently revived by the decision of a court of law.

12 312

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ﬁled, irrespective of when the motion is granted,”

would “make a plaintiff’s rights turn not on the plain-

tiff’s compliance with the procedures established by

the Legislature, but rather purely on the vagaries of

when the trial court, or more likely not even the court

but rather a docketing clerk, chooses to hear or docket

the motion.” Again, I respectfully disagree. It is appar-

ent from this record that plaintiffs did not use the

means they had available to them, which if used, could

have prevented the expiration of the period of limita-

tions before their motion to extend was granted. Under

MCR 2.119(C), a trial court may adjust the time for the

service and ﬁling of motions and responses “for good

cause.” Notably, plaintiffs did not request an expedited

hearing of their motion to extend the time for ﬁling the

AOM, and they failed to emphasize on the cover page of

their motion that there was an urgency in hearing the

pending motion because the period of limitations

would expire on February 9, 2013.

To avoid creating a

vagarious

situation, it is not an onerous expectation

that a plaintiff in these circumstances would make

more than a modicum of effort to seek an expedited

Not only did the cover page of plaintiffs’ motion not contain any

information that would have alerted the trial court or the docketing

clerk to the fact that the motion required urgent attention, the contents

of the motion stated only the following with regard to the urgency

attendant to ﬁling the motion. On page three of the motion, plaintiffs

stated that “it appears that the [AOM] shall not be prepared until after

February 8, 2013,” due to the expert’s busy schedule. Also on page three,

plaintiffs explained that, “[a]lthough it may appear [that] the ﬁling of

this medical malpractice action was held to the last possible time,” they

waited to ﬁle their claim because plaintiff Ruben Castro had been

informed that his symptoms would cease some number of weeks or

months after the surgery, and he still suffered from the condition “just

short of two [2] years from the date of surgery on February 9, 2011.”

While plaintiffs hint at a statutory period of limitations problem,

plaintiffs’ motion did not expressly identify this impending problem for

the trial court.

2015] C

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hearing date from a trial court or a docketing clerk,

neither of whom can be reasonably expected, without

prompting by the moving party, to read through every

motion ﬁled in the trial court in order to identify those

particular matters that require urgent attention.

Thus, contrary to the majority, I would ﬁnd that

plaintiffs failed to make reasonable efforts to request

that the trial court suspend the normal time limits

imposed under MCR 2.119(C) due to the impending

expiration of the period of limitations, and that the

facts of this case do not warrant holding either the trial

court or the docketing clerk responsible for plaintiffs’

failure to commence their cause of action against

defendants in a timely manner.

Contrary to the majority’s ﬁndings, I would ﬁnd that

(1) because plaintiffs did not include an AOM with the

complaint ﬁled on February 4, 2013, the lawsuit was

not commenced under Scarsella, (2) under Ligons

and

Barlett,

the motion plaintiffs ﬁled to extend time for

ﬁling

the AOM had no tolling effect, and (3) because

the period of limitations expired on February 9, 2013,

before the trial court granted the motion to extend, the

trial court properly found that its March 8, 2013 order

had no tolling effect.

I would afﬁrm.

Ligons v Crittenton Hosp, 490 Mich 61; 803 NW2d 271 (2011).

Barlett v North Ottawa Comm Hosp, 244 Mich App 685; 625 NW2d

470 (2001).

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PEOPLE v SKINNER

Docket No. 317892. Submitted May 8, 2015, at Detroit. Decided August

20, 2015, at 9:05 a.m. Leave to appeal sought.

Tia Marie-Mitchell Skinner was charged in the St. Clair Circuit

Court and convicted of ﬁrst-degree premeditated murder, MCL

750.316(1)(a), attempted murder, MCL 750.91, and conspiracy to

commit murder, MCL 750.157a, following a jury trial. The

charges stemmed from defendant’s arrangement to have her

parents murdered when she was 17 years old. The court, Daniel

J. Kelly, J., sentenced defendant to mandatory life without parole

for the ﬁrst-degree-murder conviction and life sentences for the

attempted murder and conspiracy convictions. Defendant ap-

pealed. While her appeal was pending, the United States Su-

preme Court decided Miller v Alabama, 567 US ___; 132 S Ct

2455 (2012), holding that a mandatory sentence of life without

parole for a juvenile offender violates the Eighth Amendment.

Subsequently, the Court of Appeals, S

HAPIRO

, P.J., and S

ERVITTO

and R

ONAYNE

RAUSE

, JJ., afﬁrmed defendant’s convictions and

the life sentences for attempted murder and conspiracy in an

unpublished opinion per curiam, issued February 21, 2013

(Docket No. 306903), but remanded for resentencing on defen-

dant’s ﬁrst-degree-murder conviction to consider the factors set

forth in Miller. The trial court held a resentencing hearing and

again sentenced defendant to life without parole for the ﬁrst-

degree-murder conviction, and defendant appealed that sentence.

While that appeal was pending, the Legislature enacted MCL

769.25 in response to Miller, establishing a framework for impos-

ing a sentence of life without parole on a juvenile. After the

Michigan Supreme Court decided People v Carp, 496 Mich 440

(2014), which concerned the retroactivity of Miller, the Court of

Appeals remanded this case for a resentencing hearing in accor-

dance with MCL 769.25. On remand, defendant moved to em-

panel a jury, arguing that a jury should make the factual ﬁndings

mandated by MCL 769.25(6). The trial court denied defendant’s

motion and after hearing evidence from both defendant and the

prosecution, again sentenced defendant to life without parole for

the ﬁrst-degree-murder conviction. Defendant appealed, arguing

that MCL 769.25 violated her Sixth Amendment right to a jury

2015] P

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KINNER

because it exposed her through judicial fact-ﬁnding to a harsher

penalty than was otherwise authorized by the jury’s verdict.

The Court of Appeals held:

1. Miller categorically barred mandatory sentences of life with-

out parole for juveniles. Miller allowed the imposition of an

individualized life-without-parole sentence in homicide cases, how-

ever, in the rare situation of a juvenile whose crime reﬂected

irreparable corruption and discussed a range of factors relevant to

a court’s determination of whether a particular juvenile was such

an offender. Those factors are the juvenile’s chronological age and

its hallmark features (such as immaturity, impetuosity, and the

failure to appreciate risks and consequences), the juvenile’s family

and home environment (including whether that environment was

brutal or dysfunctional and whether the juvenile could have

extricated himself or herself from it), the circumstances of the

homicide (including the extent of the juvenile’s participation and

the way familial and peer pressures might have affected him or

her), whether the juvenile might have been charged with and

convicted of a lesser offense if not for the incompetence associated

with youth (such as an inability to deal with police ofﬁcers or

prosecutors, including on a plea agreement, and the juvenile’s

incapacity to assist his or her own attorneys), and whether the

juvenile exhibited the potential for rehabilitation.

2. As a response to Miller, MCL 769.25(2) allows the prosecut-

ing attorney to ﬁle a motion to sentence the juvenile to life

without parole if a defendant was less than 18 years of age when

he or she committed any of certain offenses, including ﬁrst-degree

murder. If the prosecuting attorney does not ﬁle the motion, MCL

769.25(4) and (9) require the court to sentence the juvenile to a

term of years, with a maximum term of not less than 60 years and

a minimum term of not less than 25 years or more than 40 years.

This constitutes a default sentencing range for individuals who

commit ﬁrst-degree murder before turning 18 years of age. If the

prosecuting attorney does ﬁle a motion for a life-without-parole

sentence, however, MCL 769.25(6) requires the court to conduct a

hearing on the motion as part of the sentencing process. At the

hearing, the trial court must consider the factors listed in Miller

and may consider any other criteria relevant to its decision,

including the juvenile’s record while incarcerated. Under MCL

769.25(7), the court must specify on the record the aggravating

and mitigating circumstances it considered and the reasons

supporting the sentence imposed. The court may consider evi-

dence presented at trial together with any evidence presented at

the sentencing hearing.

16 312

ICH

15 [Aug

3. In a line of cases that began with Apprendi v New Jersey,

530 US 466 (2000), and culminated with Alleyne v United States,

570 US ___; 133 S Ct 2151 (2013), the United States Supreme

Court held that other than a prior conviction, any fact that

increases either the ﬂoor or the ceiling of a criminal defendant’s

sentence beyond that which a court may impose solely on the

basis of facts reﬂected in the jury’s verdict or admitted by the

defendant must be submitted to a jury and proved beyond a

reasonable doubt. The touchstone for determining whether a jury

must ﬁnd the fact is whether the fact constitutes an “element” or

an “ingredient” of the charged offense. A fact is by deﬁnition an

element of the offense and must be submitted to the jury if it

increases the punishment above what is otherwise legally pre-

scribed. When a ﬁnding of fact alters the legally prescribed

punishment so as to aggravate it, that fact necessarily forms a

constituent part of a new offense and must be submitted to the

jury. In this case, following the jury’s verdict and absent a

prosecution motion seeking a sentence of life without parole, the

legally prescribed maximum punishment that defendant faced for

her ﬁrst-degree-murder conviction was imprisonment for a term

of years. Because MCL 769.25 authorizes a trial court to enhance

that sentence to life without parole on the basis of factual ﬁndings

on the Miller factors that were not made by a jury beyond a

reasonable doubt but were found by the court, the statute offends

the Sixth Amendment and defendant was entitled to resentencing

on that offense.

4. Although portions of MCL 769.25 are unconstitutional, the

statute was not void in its entirety. MCL 769.25 remains operable

if the ﬁndings on the Miller factors are made by a jury beyond a

reasonable doubt. That is, following a conviction of ﬁrst-degree

murder and a motion by the prosecuting attorney for a sentence

of life without parole, absent the defendant’s waiver the trial

court should empanel a jury and hold a sentencing hearing at

which the prosecution must prove that the Miller factors support

a conclusion that the offense reﬂects irreparable corruption

beyond a reasonable doubt. During this hearing, both sides must

be afforded the opportunity to present relevant evidence, and

each victim must have the opportunity to offer testimony in

accordance with MCL 769.25(8). Following the close of proofs, the

trial court should instruct the jury that it must consider whether

in light of the Miller factors and any other relevant evidence, the

defendant’s offense reﬂects irreparable corruption beyond a rea-

sonable doubt sufﬁcient to impose a sentence of life without

parole. Alternatively, if the jury decides this question in the

2015] P

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KINNER

negative, then the court should use its discretion to sentence the

juvenile to a term of years in accordance with MCL 769.25(9).

Sentence vacated and case remanded for resentencing.

AWYER

, J., dissenting, concluded that Apprendi and its progeny

established only that the Sixth Amendment right to a jury trial

requires the jury to ﬁnd those facts necessary to impose a sentence

greater than that authorized in the statute itself on the basis of the

conviction itself. The question is not whether the court engages in

judicial fact-ﬁnding, but whether the defendant is entitled to a

lesser sentence without those facts being found. Nothing in MCL

769.25 established a legal entitlement for a juvenile defendant to

be sentenced to a term of years rather than life. A juvenile offender

who committed ﬁrst-degree murder knows that he or she is risking

being sentenced to life in prison without parole simply upon the

jury’s conviction for ﬁrst-degree murder without the necessity of

the jury’s ﬁnding any additional facts regarding the crime. MCL

769.25(6) requires the trial court to conduct a hearing before it may

impose a sentence of life without parole on a juvenile offender and

requires that the trial court consider the factors listed in Miller, as

well as any other criteria the trial court deems relevant to its

decision. MCL 769.25(7) then requires the court to specify on the

record the aggravating and mitigating circumstances it considered

and the court’s reasons supporting the sentence imposed. MCL

769.25(7) does not require the trial court to ﬁnd any particular

facts before it is authorized to impose a sentence of life without

parole. Rather, after conducting the hearing and considering the

evidence presented at the hearing as well as the evidence pre-

sented at trial, the trial court makes its decision and must state on

the record the reasons for that decision. Both Miller and the

statute merely require the sentencing court to take into account

the individual circumstances of the juvenile offender before deter-

mining whether a sentence of life without parole is appropriate in

each particular case. Under MCL 769.25, the only factual ﬁnding

necessary to authorize the trial court to impose a sentence of life

without parole was that defendant’s involvement in the killing of

her father constituted ﬁrst-degree murder. The jury concluded that

it did. Therefore, Apprendi and the Sixth Amendment were satis-

ﬁed, and the trial court had the statutory authority to impose the

sentence of life without parole. Judge S

AWYER

would have afﬁrmed.

1. C

ONSTITUTIONAL

AW —

UVENILES —

OMICIDE —

ENTENCES —

IFE

ITH-

OUT

AROLE —

SE OF

UDICIALLY

OUND

ACTS TO

MPOSE

Under MCL 769.25(4) and (9), the default sentencing range for

individuals who committed ﬁrst-degree murder before turning 18

18 312 M

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years of age is a term of years, with a maximum term of not less

than 60 years and a minimum term of not less than 25 years or

more than 40 years; MCL 769.25 violates the Sixth Amendment

to the extent that it authorizes a trial court to enhance that

default sentence to life without parole on the basis of factual

ﬁndings that were not made by a jury but were found by the court,

and a defendant sentenced in that manner is entitled to resen-

tencing on the offense.

2. C

ONSTITUTIONAL

AW —

UVENILES —

OMICIDE —

ENTENCES —

IFE

ITH-

OUT

AROLE —

ACTORS

LLOWING

The Eighth Amendment allows the imposition of an individualized

life-without-parole sentence in homicide cases in the rare situa-

tion of a juvenile whose crime reﬂected irreparable corruption;

factors relevant to a court’s determination of whether a particular

juvenile is such an offender are the juvenile’s chronological age

and its hallmark features (such as immaturity, impetuosity, and

the failure to appreciate risks and consequences), the juvenile’s

family and home environment (including whether that environ-

ment was brutal or dysfunctional and whether the juvenile could

have extricated himself or herself from it), the circumstances of

the homicide (including the extent of the juvenile’s participation

and the way familial and peer pressures might have affected the

juvenile), whether the juvenile might have been charged with and

convicted of a lesser offense if not for the incompetence associated

with youth (such as an inability to deal with police ofﬁcers or

prosecutors, including on a plea agreement, and the juvenile’s

incapacity to assist his or her own attorneys), and whether the

juvenile exhibits the potential for rehabilitation.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Michael D. Wendling, Pros-

ecuting Attorney, and Hilary B. Georgia, Senior Assis-

tant Prosecuting Attorney, for the people.

University of Michigan Juvenile Justice Clinic (by

Kimberly Thomas and Frank E. Vandervort) for defen-

dant.

Amicus Curiae:

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, and Linus Banghart-Linn, Assistant

Attorney General, for the Attorney General.

2015] P

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KINNER

Before: H

OEKSTRA

, P.J., and S

AWYER

and B

ORRELLO

JJ.

ORRELLO

, J. This case presents a constitutional

issue of ﬁrst impression concerning whether the Sixth

Amendment mandates that a jury make ﬁndings on

the factors set forth in Miller v Alabama, 567 US ___;

132 S Ct 2455; 183 L Ed 2d 407 (2012), as codiﬁed in

MCL 769.25(6), before sentencing a juvenile homicide

offender to life imprisonment without the possibility of

parole. We hold that the Sixth Amendment mandates

that juveniles convicted of homicide who face the

possibility of a sentence of life without the possibility of

parole have a right to have their sentences determined

by a jury. In so holding, we expressly reserve the issue

of whether this defendant should receive the penalty of

life in prison without the possibility of parole for a jury.

In this case, defendant requested and was denied her

right to have a jury decide any facts mandated by MCL

769.25(6) with respect to her sentence. Accordingly, we

vacate her sentence for ﬁrst-degree murder and re-

mand for resentencing on that offense consistent with

this opinion.

I. BACKGROUND

In November 2010, at the age of 17, defendant

arranged

to have her parents, Paul and Mara Skinner,

murdered. Speciﬁcally,

[t]he victims, defendant’s parents, were viciously attacked

their bed in November 2010. Defendant’s father was

killed in the attack and defendant’s mother suffered

roughly 25 stab wounds. An investigation led to Jonathan

Kurtz, defendant’s boyfriend, and James Preston. The

investigation also led to the discovery of a map of the

neighborhood and a note containing tips on how to break

into defendant’s house and commit the murders. Cell

20 312

ICH

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phone records revealed text messages between defendant,

Kurtz, and Preston that indicated that the crime had been

planned by all three. During an interview with police,

defendant implicated Preston, then implicated Kurtz and

Preston, and then admitted that she had talked to Kurtz

about killing her parents. Defendant said that Kurtz was

going to seek Preston’s help.

[1]

Defendant was charged in connection with the at-

tacks and, following a trial, a jury convicted her of

ﬁrst-degree premeditated murder, MCL 750.316(1)(a),

attempted murder, MCL 750.91, and conspiracy to

commit murder, MCL 750.157a. On September 16,

2011, the trial court sentenced defendant to mandatory

life without parole for the ﬁrst-degree-murder convic-

tion and life sentences each for the attempted-murder

and conspiracy-to-commit-murder convictions. Defen-

dant appealed her convictions and sentences.

While defendant’s appeal was pending, on June 25,

2012, the United States Supreme Court decided Miller,

567 US at ___; 132 S Ct at 2460, wherein the Court

held that mandatory sentences of life without parole

for juvenile offenders violated the Eighth Amendment.

Subsequently, this Court afﬁrmed defendant’s convic-

tions and life sentences for attempted murder and

conspiracy, but remanded for resentencing on defen-

dant’s ﬁrst-degree-murder conviction to consider the

factors set forth in Miller.

On July 11, 2013, the trial court held a resentencing

hearing

and again sentenced defendant to life without

parole for the ﬁrst-degree-murder conviction. Defen-

dant again appealed her sentence. On March 4, 2014,

while defendant’s appeal was pending, MCL 769.25

People v Skinner, unpublished opinion per curiam of the Court of

Appeals, issued February 21, 2013 (Docket No. 306903), p 1.

Id.

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took effect, which had been enacted in response to

Miller and established a framework for imposing a

sentence of life without parole on a juvenile convicted

of, inter alia, ﬁrst-degree murder. Meanwhile, this

Court ordered defendant’s appeal held in abeyance

pending our Supreme Court’s decision in People v

Carp, 496 Mich 440; 852 NW2d 801 (2014), which

concerned the retroactivity of Miller. Following the

decision in Carp, this Court remanded defendant’s case

to the trial court for a second resentencing—third

sentencing—hearing to be conducted in accordance

with MCL 769.25; this Court retained jurisdiction.

On second remand, defendant moved to empanel a

jury

, arguing at the resentencing hearing that a jury

should make the factual ﬁndings mandated by MCL

769.25(6). The trial court denied defendant’s motion,

and this Court denied defendant’s emergency applica-

tion for leave to appeal that order.

Thereafter, the trial

court

held the second resentencing hearing on Septem-

ber 18, 19, and 24, 2014, and, after hearing evidence

from both defendant and the prosecution, the court

again sentenced defendant to life without parole for

the ﬁrst-degree-murder conviction. Defendant now ap-

peals that sentence as of right, arguing, inter alia, that

MCL 769.25 violates her Sixth Amendment right to a

jury because it exposes her to a harsher penalty than

was otherwise authorized by the jury verdict.

II. STANDARD OF REVIEW

We review constitutional issues de novo. People

Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). Issues of

People v Skinner, unpublished order of the Court of Appeals, entered

July 30, 2014 (Docket No. 317892).

People v Skinner, unpublished order of the Court of Appeals, entered

September 17, 2014 (Docket No. 323509).

22 312 M

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statutory construction are also reviewed de novo.

People v Williams, 483 Mich 226, 231; 769 NW2d 605

(2009).

III. GOVERNING LAW

This case brings us to the intersection of the Sixth

and Eighth Amendments of the United States Consti-

tution. Speciﬁcally, the issue before us illustrates,

following Miller, the interplay between the Eighth

Amendment’s limitations with respect to sentencing a

juvenile to life imprisonment without the possibility of

parole and a juvenile’s right to a jury trial under the

Sixth Amendment. We proceed with a review of the

seminal case of Miller before discussing Miller’s impact

on Michigan’s sentencing scheme; we then review

relevant United States Supreme Court Sixth Amend-

ment jurisprudence before applying that precedent to

Michigan’s post-Miller juvenile-sentencing scheme.

A. MILLER

v ALABAMA

Miller is part of a line of growth in the Supreme

Court’s Eighth Amendment jurisprudence relative to

juvenile offenders. This precedent can in part be traced

back to Thompson v Oklahoma, 487 US 815; 108 S Ct

2687; 101 L Ed 2d 702 (1988), wherein a plurality of

the Court held that the Eighth Amendment categori-

cally barred “the execution of any offender under the

age of 16 at the time of the crime.” Roper v Simmons,

543 US 551, 561; 125 S Ct 1183; 161 L Ed 2d 1 (2005),

citing Thompson, 487 US at 818-838 (opinion by Ste-

vens, J.). Subsequently, in Roper, 543 US at 568-579,

the Court expanded on the rationale in the Thompson

plurality and held that the Eighth Amendment cat-

egorically barred imposition of the death penalty on all

juveniles under the age of 18 when their crimes were

2015] P

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PINION OF THE

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committed, irrespective of the offense. The Court rea-

soned that “[c]apital punishment must be limited to

those offenders who commit a narrow category of the

most serious crimes and whose extreme culpability

makes them the most deserving of execution.” Id. at

568 (quotation marks and citation omitted). The Court

reasoned that because of the unique differences be-

tween juveniles and adults, “juvenile offenders cannot

with reliability be classiﬁed among the worst offend-

ers.” Id. at 569. In particular, the Court noted, juve-

niles exhibit “ ‘[a] lack of maturity and underdeveloped

sense of responsibility’ ” that “ ‘often result in impetu-

ous and ill-considered actions and decisions.’ ” Id.

(citation omitted) (alteration in original). Additionally,

“juveniles are more vulnerable or susceptible to nega-

tive inﬂuences and outside pressures, including peer

pressure,” and “the character of a juvenile is not as

well formed as that of an adult.” Id. at 569-570. Thus,

“neither retribution nor deterrence provides adequate

justiﬁcation for imposing the death penalty on juvenile

offenders . . . .” Id. at 572.

Following Roper, under the Eighth Amendment the

maximum penalty that could be imposed on a juvenile

offender was life imprisonment without the possibility

of parole. The Court further limited that form of

punishment in Graham v Florida, 560 US 48; 130 S Ct

2011; 176 L Ed 2d 825 (2010), and Miller. Speciﬁcally,

in Graham, the Court held that the Eighth Amend-

ment categorically barred a sentence of life without

parole for juvenile “nonhomicide offenders.” Graham,

560 US at 74. The Graham Court reasoned that

juveniles “who do not kill, intend to kill, or foresee that

life will be taken are categorically less deserving of the

most serious forms of punishment . . . .” Id. at 69. The

Court explained that, unlike “nonhomicide” offenses,

homicide is unique with respect to its “moral deprav-

24 312 M

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ity” and the injury it inﬂicts on its victim and the

public and concluded: “It follows that, when compared

to an adult murderer, a juvenile offender who did not

kill or intend to kill has a twice diminished moral

culpability. The age of the offender and the nature of

the crime each bear on the analysis.” Id. (quotation

marks and citations omitted). The Court proceeded to

establish a bright-line categorical bar on sentences of

life without parole for juvenile nonhomicide offenders.

Id. at 74. Although a state was not “required to

guarantee eventual freedom,” juveniles convicted of

nonhomicide offenses were to be afforded “some mean-

ingful opportunity to obtain release based on demon-

strated maturity and rehabilitation.” Id. at 75.

Building on Roper and Graham, the Supreme Court

held in Miller that, irrespective of the offense, man-

datory life sentences without the possibility of parole

for juvenile offenders violated the Eighth Amend-

ment. Miller, 567 US at ___; 132 S Ct at 2460. Given

the unique characteristics of juveniles, the Court

reasoned, the Eighth Amendment required consider-

ation of an offender’s youthfulness during sentencing,

something that mandatory sentencing schemes failed

to do. Id. at ___; 132 S Ct at 2464-2466. The Court

explained:

Most fundamentally, Graham insists

that youth mat-

ters in determining the appropriateness of a lifetime of

incarceration without the possibility of parole. In the

circumstances there, juvenile status precluded a life-

without-parole sentence, even though an adult could re-

ceive it for a similar crime. And in other contexts as well,

the characteristics of youth, and the way they weaken

rationales for punishment, can render a life-without-

parole sentence disproportionate. “An offender’s age,” we

made clear in Graham, “is relevant to the Eighth Amend-

ment,” and so “criminal procedure laws that fail to take

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defendants’ youthfulness into account at all would be

ﬂawed.” [Id. at ___; 132 S Ct at 2465-2466 (citation

omitted).]

Drawing from capital punishment cases, the Su-

preme Court reasoned that life-without-parole sen-

tences were analogous to capital punishment for

juveniles and, therefore, the Eighth Amendment

mandated individualized sentencing for this particu-

larly harsh form of punishment. Id. at ___; 132 S Ct at

2466-2467. The Miller Court referred to Woodson v

North Carolina, 428 US 280, 304; 96 S Ct 2978; 49 L

Ed 2d 944 (1976), wherein the Supreme Court struck

down a mandatory death-penalty sentencing scheme

because the scheme “gave no signiﬁcance to ‘the

character and record of the individual offender or the

circumstances’ of the offense, and ‘exclude[ed] from

consideration . . . the possibility of compassionate or

mitigating factors.’ ” Miller, 567 US at ___; 132 S Ct at

2467 (alteration in original). Additionally, the Su-

preme Court noted that

[s]ubsequent decisions have elaborated on the require-

ment

that capital defendants have an opportunity to

advance, and the judge or jury a chance to assess, any

mitigating factors, so that the death penalty is reserved

only for the most culpable defendants committing the

most serious offenses. [Id. at ___; 132 S Ct at 2467

(citations omitted).]

In the context of juveniles, the Supreme Court’s indi-

vidualized

sentencing jurisprudence illustrated the

importance that “a sentencer have the ability to con-

sider the mitigating qualities of youth” in assessing

culpability including, among other things, age, back-

ground, and mental and emotional development. Id. at

___; 132 S Ct at 2467 (quotation marks and citation

omitted).

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The Supreme Court concluded that “the Eighth

Amendment forbids a sentencing scheme that man-

dates life in prison without possibility of parole for

juvenile offenders.” Id. at ___; 132 S Ct at 2469.

However, the Supreme Court did not categorically bar

life-without-parole sentences for juveniles convicted of

a homicide offense provided that the sentencer “take[s]

into account how children are different, and how those

differences counsel against irrevocably sentencing

them to a lifetime in prison.” Id. at ___; 132 S Ct at

2469. The Supreme Court cautioned that

appropriate occasions for sentencing juveniles to this

harshest

possible penalty will be uncommon. That is

especially so because of the great difﬁculty we noted in

Roper and Graham of distinguishing at this early age

between “the juvenile offender whose crime reﬂects unfor-

tunate yet transient immaturity, and the rare juvenile

offender whose crime reﬂects irreparable corruption.” [Id.

at ___; 132 S Ct at 2469, quoting Roper, 543 US at 573

(emphasis added).]

Thus, after Miller,

mandatory life-without-parole

sentences for juvenile offenders are unconstitutional in

all cases; however, in homicide cases, an individualized

life-without-parole sentence may be imposed when the

crime reﬂects “irreparable corruption.” The Miller

Court did not establish a bright-line test to determine

whether a juvenile’s crime reﬂects irreparable corrup-

tion; instead, “Miller discussed a range of factors

relevant to a sentencer’s determination of whether a

particular defendant is a ‘ “rare juvenile offender

whose crime reﬂects irreparable corruption.” ’ ” People

v Gutierrez, 58 Cal 4th 1354, 1388; 171 Cal Rptr 3d

421; 324 P3d 245 (2014), quoting Miller, 567 US at ___;

132 S Ct at 2469. Those factors were set forth as

follows:

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. . . Mandatory life without parole for a juvenile precludes

consideration of his chronological age and its hallmark

features—among them, immaturity, impetuosity, and fail-

ure to appreciate risks and consequences. It prevents

taking into account the family and home environment that

surrounds him—and from which he cannot usually extri-

cate himself—no matter how brutal or dysfunctional. It

neglects the circumstances of the homicide offense, includ-

ing the extent of his participation in the conduct and the

way familial and peer pressures may have affected him.

Indeed, it ignores that he might have been charged and

convicted of a lesser offense if not for incompetencies

associated with youth—for example, his inability to deal

with police ofﬁcers or prosecutors (including on a plea

agreement) or his incapacity to assist his own attor-

neys . . . . And ﬁnally, this mandatory punishment disre-

gards the possibility of rehabilitation even when the cir-

cumstances most suggest it. [Miller, 567 US at ___; 132 S Ct

at 2468.]

Miller,

therefore, categorically barred mandatory

life-without-parole sentences for juveniles, but in doing

so, the Supreme Court also set forth a framework for

imposing that sentence when a juvenile’s homicide

offense reﬂects irreparable corruption. That is, the

Supreme Court provided factors to be used during

sentencing that serve as a guidepost for determining

whether a juvenile’s homicide offense reﬂects irrepa-

rable corruption.

B. MICHIGAN’S SENTENCING SCHEME POST-MILLER

Miller had

a wide-ranging effect nationwide in that,

with respect to juvenile offenders, it invalidated state

statutes that imposed mandatory life-without-parole-

sentences.

In Michigan, the Legislature enacted 2014

See, e.g., Russell, Jury Sentencing and Juveniles: Eighth Amend-

ment Limits and Sixth Amendment Rights, 56 BC L Rev 553, 583 (2015)

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PA 22, codiﬁed at MCL 769.25 and MCL 769.25a,

response to Miller. Relevant to this case, MCL 769.25

provides in pertinent part:

(1) This section applies to a criminal defendant who

was less than 18 years of age at the time he or she

committed an offense described in subsection (2) if either

of the following circumstances exists:

(a) The defendant is convicted of the offense on or after

[March 4, 2014].

(b) The defendant was convicted of the offense before

[March 4, 2014] and either of the following applies:

(i) The case is still pending in the trial court or the

applicable time periods for direct appellate review by state

or federal courts have not expired.

(ii) On June 25, 2012 the case was pending in the trial

court or the applicable time periods for direct appellate

review by state or federal courts had not expired.

(2) The prosecuting attorney may ﬁle a motion under

this section to sentence a defendant described in subsec-

tion (1) to imprisonment for life without the possibility of

parole if the individual is or was convicted of any of the

following violations:

* * *

(b) A violation of . . . [MCL 750.316] . . . .

[

]

* * *

(noting that “in the mere two years since Miller was decided, the

decision has been cited in more than 1000 cases nationwide” and that

“sixteen state legislatures have enacted statutes in response to Graham

and Miller, and many others are considering bills”).

MCL 769.25a concerns the retroactivity of MCL 769.25, and it is not

at issue in this case.

In addition to ﬁrst-degree murder, MCL 769.25(2)(a) through (d)

provide that a prosecuting attorney may move for imposition of a

life-without-parole sentence for juveniles convicted of several other of-

fenses. Subdivision (a) includes MCL 333.17764(7) (mislabeling drugs

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(3) . . . If the prosecuting attorney intends to seek a

sentence of imprisonment for life without the possibility of

parole for a case described under subsection (1)(b), the

prosecuting attorney shall ﬁle the motion within 90 days

after [March 4, 2014]. The motion shall specify the

grounds on which the prosecuting attorney is requesting

the court to impose a sentence of imprisonment for life

without the possibility of parole.

(4) If the prosecuting attorney does not ﬁle a motion

under subsection (3) within the time periods provided for

in that subsection, the court shall sentence the defendant to

a term of years as provided in subsection (9).

* * *

(6) If the prosecuting attorney ﬁles a motion under

subsection (2), the court shall conduct a hearing on the

motion as part of the sentencing process. At the hearing,

with intent to kill). Besides ﬁrst-degree murder, Subdivision (b) includes

MCL 750.16(5) (adulteration of drugs with intent to kill); MCL 750.18(7)

(mixing drugs improperly with intent to kill); MCL 750.436(2)(e) (poison-

ing); and MCL 750.543f (terrorism). Subdivision (c) includes Chapter

XXIII of the Michigan Penal Code, MCL 750.200 to MCL 750.212a,

concerning explosives. And ﬁnally, Subdivision (d) includes any other

violation involving the death of another for which parole eligibility is

expressly denied by law. The issue of whether these offenses constitute

“homicide offenses” under Graham and Miller for purposes of sentencing

juvenile offenders to life without parole is not before this Court. See, e.g.,

Graham, 560 US at 68-69 (noting in categorically barring life-without-

parole sentences for juveniles convicted of nonhomicide offenses that

“because juveniles have lessened culpability they are less deserving of the

most severe punishments” and that “defendants who do not kill, intend to

kill, or foresee that life will be taken are categorically less deserving of the

most serious forms of punishment than are murderers”) (emphasis

added). See also Miller, 567 US at ___; 132 S Ct at 2475-2476 (Breyer, J.,

concurring) (stating that “[g]iven Graham’s reasoning, the kinds of

homicide that can subject a juvenile offender to life without parole must

exclude instances where the juvenile himself neither kills nor intends to

kill the victim”) (emphasis added). For purposes of this case, there is no

dispute that premeditated ﬁrst-degree murder constitutes a homicide

offense under Graham and Miller for which defendant is eligible to

receive life without parole.

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the trial court shall consider the factors listed in Miller v

Alabama, 576 [sic] US _____; 183 L Ed 2d 407; 132 S Ct

2455 (2012), and may consider any other criteria relevant

to its decision, including the individual’s record while

incarcerated.

(7) At the hearing under subsection (6), the court shall

specify on the record the aggravating and mitigating

circumstances considered by the court and the court’s

reasons supporting the sentence imposed. The court may

consider evidence presented at trial together with any

evidence presented at the sentencing hearing.

* * *

(9) If the court decides not to sentence the individual to

imprisonment for life without parole eligibility, the court

shall sentence the individual to a term of imprisonment

for which the maximum term shall be not less than 60

years and the minimum term shall be not less than 25

years or more than 40 years. [Emphasis added.]

This legislation “signiﬁcantly altered Michigan’s

sentencing

scheme for juvenile offenders convicted of

crimes that had previously carried a sentence of life

without parole.” Carp, 496 Mich at 456. Speciﬁcally,

under this new scheme,

[r]ather than imposing ﬁxed sentences of life without

parole

on all defendants convicted of violating MCL

750.316, MCL 769.25 now establishes a default sentencing

range for individuals who commit ﬁrst-degree murder

before turning 18 years of age. Pursuant to the new law,

absent a motion by the prosecutor seeking a sentence of

life without parole,

the court shall sentence the individual to a term of

imprisonment for which the maximum term shall be

not less than 60 years and the minimum term shall

be not less than 25 years or more than 40 years.

[MCL 769.25(4) and (9).]

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When, however, the prosecutor does ﬁle a motion seeking

a life-without-parole sentence, the trial court “shall con-

duct a hearing on the motion as part of the sentencing

process” and “shall consider the factors listed in Miller v

Alabama . . . .” MCL 769.25(6). Accordingly, the sentenc-

ing of juvenile ﬁrst-degree-murder offenders now provides

for the so-called “individualized sentencing” procedures of

Miller. [Id. at 458-459 (emphasis added) (bracketed cita-

tion in original).]

Thus, in response to Miller, and as explained in

Carp, the Michigan Legislature created a default sen-

tence for juvenile defendants convicted of ﬁrst-degree

murder. The default sentence is a term of years. See

MCL 769.25(4) (providing that absent the prosecu-

tion’s motion for a life-without-parole sentence, “the

court shall sentence the defendant to a term of years as

provided in subsection (9)”) (emphasis added). Alterna-

tively, a life-without-parole sentence may be imposed if

the following framework is adhered to: (1) the prosecu-

tion timely ﬁles a motion seeking a life-without-parole

sentence, (2) the trial court holds a sentencing hearing,

(3) at the hearing, the trial court considers the factors

listed in Miller (and “may consider any other criteria

relevant to its decision”), and (4) the trial court speci-

ﬁes “the aggravating and mitigating circumstances

considered by the court and the court’s reasons sup-

porting the sentence imposed” (and “may consider

evidence presented at trial together with any evidence

presented at the sentencing hearing”). MCL 769.25(3),

(6), and (7) (emphasis added).

Defendant contends that this sentencing scheme

violates her Sixth Amendment right to a jury because

it exposes her to a potential life-without-parole sen-

tence, which is greater than the sentence otherwise

authorized by the jury verdict standing alone.

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The Miller Court did not address the issue of who

should decide whether a juvenile offender receives a

life-without-parole sentence, and we are unaware of

any court that has addressed the issue. In the ﬁnal

paragraph of its opinion, the Court stated: “Graham,

Roper, and our individualized sentencing decisions

make clear that a judge or jury must have the oppor-

tunity to consider mitigating circumstances before

imposing the harshest possible penalty for juveniles.”

Miller, 567 US at ___; 132 S Ct at 2475 (emphasis

added). This passing reference to “a judge or jury” is

not dispositive of the issue. “The Court’s decision in

Miller does not discuss who is empowered to make the

sentencing decision that the case involves a ‘rare’

instance where the juvenile is ‘irreparably corrupt’ and

may be sentenced to life without parole.” Russell, Jury

Sentencing and Juveniles: Eighth Amendment Limits

and Sixth Amendment Rights, 56 BC L Rev 553, 569

(2015). Instead, “Miller generally avoids the issue by

referencing the ‘sentencer’ throughout the opinion,

rather than specifying a judge or a jury.” Id. Moreover,

“[b]ecause Sixth Amendment jury rights can be

waived, Miller’s reference to the judge as a possible

sentencer is hardly dispositive.” Id. (citation omitted).

Indeed, in declining to address this issue,

our Su-

preme

Court noted in Carp that, given recent Sixth

Amendment jurisprudence, “Miller’s reference to indi-

In Carp, our Supreme Court noted:

As none of the defendants before this Court asserts that his

sentence is deﬁcient because it was not the product of a jury

determination, we ﬁnd it unnecessary to further opine on this

issue and leave it to another day to determine whether the

individualized sentencing procedures required by Miller must be

performed by a jury in light of Alleyne [v United States, 570 US

___; 133 S Ct 2151; 186 L Ed 2d 314 (2013)]. [Carp, 496 Mich at

491 n 20.]

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vidualized sentencing being performed by a ‘judge or

jury’ might merely be instructive on the issue but not

dispositive.” Carp, 496 Mich at 491 n 20.

Because Miller did not directly address the issue of

who decides a life sentence without the possibility of

parole, and because there is no caselaw on point, we

turn to the United States Supreme Court’s relevant

Sixth Amendment jurisprudence for guidance.

C. SIXTH AMENDMENT RIGHT TO A JURY

In relevant part, the Sixth Amendment of the

United States Constitution provides: “In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed . . . .” US Const, Am VI. The rights afforded

under the Sixth Amendment are incorporated to the

states by the Due Process Clause of the Fourteenth

Amendment. Presley v Georgia, 558 US 209, 211-212;

130 S Ct 721; 175 L Ed 2d 675 (2010). “Taken together,

these rights indisputably entitle a criminal defendant

to ‘a jury determination that [he] is guilty of every

element of the crime with which he is charged, beyond

a reasonable doubt’ ” and are deeply rooted in our

nation’s jurisprudence:

[T]he historical foundation for our recognition of these

principles

extends down centuries into the common law.

“[T]o guard against a spirit of oppression and tyranny on

the part of rulers,” and “as the great bulwark of [our] civil

and political liberties,” 2 J. Story, Commentaries on the

Constitution of the United States 540-541 (4th ed. 1873),

trial by jury has been understood to require that “the truth

of every accusation, whether preferred in the shape of

indictment, information, or appeal, should afterwards be

conﬁrmed by the unanimous suffrage of twelve of [the

defendant’s] equals and neighbours . . . .” 4 W. Blackstone,

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Commentaries on the Laws of England 343 (1769) . . . .

[Apprendi v New Jersey, 530 US 466, 477; 120 S Ct 2348;

147 L Ed 2d 435 (2000) (citation omitted) (all alterations

but ﬁrst in original).]

Cognizant of this historical backdrop, the United

States Supreme Court has recently expanded the scope

of a criminal defendant’s Sixth Amendment right to a

jury in several cases commencing with Apprendi. In

that case, the defendant pleaded guilty of, inter alia, a

second-degree weapons offense, which carried a maxi-

mum penalty of between 5 and 10 years’ imprisonment

under New Jersey law. Id. at 469-470. Thereafter, the

prosecutor ﬁled a motion to enhance the defendant’s

sentence under a New Jersey hate-crime statute that

permitted a sentencing judge to impose an enhanced

sentence of up to 20 years upon a ﬁnding that the

offender acted “with a purpose to intimidate an indi-

vidual or group” because of membership in a protected

class. Id. Following a hearing, the sentencing judge

found by a preponderance of the evidence that the

defendant had been motivated by racial animus and

sentenced him to 12 years’ imprisonment, 2 more than

the maximum authorized under the law without the

enhancement. Id. at 471.

On appeal, the defendant argued, in part, that racial

animus had to be proved to a jury beyond a reasonable

doubt. Id. The Supreme Court agreed, holding that the

sentence violated the defendant’s right to “ ‘a jury

determination that [he] is guilty of every element of

the crime with which he is charged, beyond a reason-

able doubt.’ ” Id. at 477 (citation omitted) (alteration in

original). The Court reasoned that the defendant’s

Sixth Amendment jury right attached to both the

weapon offense and the hate-crime enhancement be-

cause “New Jersey threatened [the defendant] with

certain pains if he unlawfully possessed a weapon and

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with additional pains if he selected his victims with a

purpose to intimidate them because of their race.” Id.

at 476. “Merely using the label ‘sentence enhancement’

to describe the latter surely does not provide a prin-

cipled basis for treating them differently.” Id. Rather,

“the relevant inquiry is one not of form, but of effect—

does the required ﬁnding expose the defendant to a

greater punishment than that authorized by the jury’s

guilty verdict?” Id. at 494. This is because “[o]ther than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury and proved

beyond a reasonable doubt.” Id. at 490 (emphasis

added).

Two years later, in Ring v Arizona, 536 US 584, 588;

122 S Ct 2428; 153 L Ed 2d 556 (2002), the Supreme

Court applied Apprendi to Arizona’s death-penalty

sentencing scheme, which authorized a trial judge to

increase a capital defendant’s maximum sentence from

life imprisonment to death on the basis of judicially

found aggravating factors. The Supreme Court con-

cluded that, “ ‘[i]n effect, the required ﬁnding . . . ex-

pose[d] [the defendant] to a greater punishment than

that authorized by the jury’s guilty verdict.’ ” Id. at 604

(citation omitted) (second alteration in original). Thus,

the aggravating factors acted as the “functional

equivalent” of elements of a greater offense and were

required to be proved to a jury beyond a reasonable

doubt. Id. at 609. The Court explained that when “ ‘the

term “sentence enhancement” is used to describe an

increase beyond the maximum authorized statutory

sentence, it is the functional equivalent of an element

of a greater offense than the one covered by the jury’s

guilty verdict.’ ” Id. at 605, quoting Apprendi, 530 US

at 494 n 19. The relevant inquiry, the Supreme Court

noted, was “one not of form but of effect,” and “[i]f a

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State makes an increase in a defendant’s authorized

punishment contingent on the ﬁnding of a fact, that

fact—no matter how the State labels it—must be found

by a jury beyond a reasonable doubt.” Id. at 602

(quotation marks and citation omitted) (emphasis

added).

Taken together, Apprendi established

and Ring re-

afﬁrmed that other than a prior conviction, any ﬁnding

of fact that increases a criminal defendant’s maximum

sentence must be proved to a jury beyond a reasonable

doubt. “In each case, we concluded that the defendant’s

constitutional rights had been violated because the

judge had imposed a sentence greater than the maxi-

mum he could have imposed under state law without

the challenged factual ﬁnding.” Blakely v Washington,

542 US 296, 303; 124 S Ct 2531; 159 L Ed 2d 403

(2004). In the years following, the Supreme Court

applied Apprendi to invalidate two state sentencing

schemes in Washington and California, both of which

share similarities with the sentencing scheme at issue

in this case.

In Blakely, the Supreme Court held that Washing-

ton’s determinate sentencing scheme ran afoul of Ap-

prendi. In that case, the defendant pleaded guilty of,

inter alia, second-degree kidnapping with a ﬁrearm, a

Class B felony. Id. at 299. State law provided that

Class B felonies in general carried a statutory maxi-

mum of 10 years’ imprisonment; however, under the

In arriving at its holding, the Ring Court overruled, in part, Walton

v Arizona, 497 US 639; 110 S Ct 3047; 111 L Ed 2d 511 (1990), which had

rejected a Sixth Amendment challenge to the same sentencing scheme

approximately 12 years earlier. The Court reasoned that Walton and

Apprendi were “irreconcilable,” explaining that “[c]apital defendants, no

less than noncapital defendants, . . . are entitled to a jury determination

of any fact on which the legislature conditions an increase in their

maximum punishment.” Ring, 536 US at 589.

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state’s sentencing reform act, the standard sentence

range for the second-degree kidnapping offense was

49 to 53 months. Id. The reform act authorized, but

did not require, the sentencing judge to make an

upward departure from the standard range upon a

ﬁnding of “ ‘substantial and compelling reasons justi-

fying an exceptional sentence.’ ” Id., quoting Wash

Rev Code 9.94A.120(2). The act listed nonexhaustive

aggravating factors justifying such a departure.

Blakely, 542 US at 299.

Relying on the reform act, the sentencing judge

departed from the recommended standard sentence

range and sentenced the defendant to 90 months’

imprisonment—37 months more than the upper limit

of the standard range—after ﬁnding that the defen-

dant had acted with “deliberate cruelty,” one of the

statutory grounds for departure. Id. at 300. The state

argued, in part, that there was no Apprendi violation

because the statutory maximum authorized by law

was the general 10-year maximum for Class B felonies

as opposed to the 49 to 53 month standard range for

second-degree kidnapping. Id. at 303. The Supreme

Court rejected this argument, explaining that for pur-

poses of Apprendi, the “statutory maximum” is the

“maximum sentence a judge may impose solely on the

basis of the facts reﬂected in the jury verdict or admit-

ted by the defendant.” Id. The Supreme Court stated:

In other words, the relevant “statutory maximum” is

not

the maximum sentence a judge may impose after

ﬁnding additional facts, but the maximum he may impose

without any additional ﬁndings. When a judge inﬂicts

punishment that the jury’s verdict alone does not allow,

the jury has not found all the facts “which the law makes

essential to the punishment” and the judge exceeds his

proper authority. [Id. at 303-304 (citation omitted).]

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The Court also rejected the state’s argument that

the reform act did not violate Apprendi because the

sentencing judge retained discretion regarding

whether to impose an enhanced sentence, as explained

in more detail in a subsequent case:

The State in Blakely had

endeavored to distinguish Ap-

prendi on the ground that “[u]nder the Washington guide-

lines, an exceptional sentence is within the court’s discre-

tion as a result of a guilty verdict.” We rejected that

argument. The judge could not have sentenced Blakely

above the standard range without ﬁnding the additional

fact of deliberate cruelty. Consequently, that fact was

subject to the Sixth Amendment’s jury-trial guarantee.

[Cunningham v California, 549 US 270, 283; 127 S Ct 856;

166 L Ed 2d 856 (2007), citing Blakely, 542 US at 304-314

(citation omitted).]

The Blakely Court

concluded that because “[t]he judge

in this case could not have imposed the exceptional

90-month sentence solely on the basis of the facts

admitted in the guilty plea,” the sentence ran afoul of

the Sixth Amendment. Blakely, 542 US at 304-305.

After deciding Blakely, the Supreme Court held in

Cunningham that California’s determinate sentencing

law (DSL) violated the Sixth Amendment.

In Cun-

ningham,

the defendant had been convicted of a sex

offense. Cunningham, 549 US at 275. Under the DSL,

the offense was punishable by a lower (6-year), middle

(12-year), and upper (16-year) sentence. Id. The DSL

provided that “ ‘the court shall order imposition of the

In another case following Blakely, the Supreme Court struck down

certain provisions of the Federal Sentencing Guidelines on grounds that

they violated the Sixth Amendment to the extent that they mandated

enhanced sentences based on judicially found facts. United States v

Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). Given that

this case does not involve sentencing guidelines, Booker is not highly

instructive for purposes of our analysis.

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middle term, unless there are circumstances in aggra-

vation or mitigation of the crime.’ ” Id. at 277 (citation

omitted). At a posttrial sentencing hearing, the sen-

tencing judge departed from the 12-year middle term

and imposed the 16-year upper term after ﬁnding by a

preponderance of the evidence that there were six

aggravating circumstances. Id. at 275-276.

On appeal, the Supreme Court held that the DSL

violated the Sixth Amendment, explaining, “This

Court has repeatedly held that, under the Sixth

Amendment, any fact that exposes a defendant to a

greater potential sentence must be found by a jury, not

a judge, and established beyond a reasonable doubt,

not merely by a preponderance of the evidence.” Id. at

281 (emphasis added). The Court concluded that “[b]e-

cause the DSL allocates to judges sole authority to ﬁnd

facts permitting the imposition of an upper term sen-

tence, the system violates the Sixth Amendment.” Id.

at 293.

In arriving at its holding, the Cunningham Court

rejected the California Supreme Court’s view that the

DSL resembled a permissible “advisory system,” ex-

plaining:

Under California’s system, judges are not free to exercise

heir discretion to select a speciﬁc sentence within a

deﬁned range. California’s Legislature has adopted sen-

tencing triads, three ﬁxed sentences with no ranges

between them. Cunningham’s sentencing judge had no

discretion to select a sentence within a range of 6 to 16

years. Her instruction was to select 12 years, nothing

less and nothing more, unless she found facts allowing

the imposition of a sentence of 6 or 16 years. Factﬁnding

to elevate a sentence from 12 to 16 years, our decisions

make plain, falls within the province of the jury employ-

ing a beyond-a-reasonable-doubt standard, not the baili-

wick of a judge determining where the preponderance of

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the evidence lies. [Id. at 292 (quotation marks and

citation omitted).]

The Cunningham Court concluded, “Because the DSL

authorizes the judge, not the jury, to ﬁnd the facts

permitting an upper term sentence, the system cannot

withstand measurement against our Sixth Amend-

ment precedent.” Id. at 293.

Apprendi and its progeny concerned judicial fact-

ﬁnding in the context of a criminal defendant’s maxi-

mum sentence. In Alleyne v United States, 570 US ___;

133 S Ct 2151; 186 L Ed 2d 314 (2013), the Supreme

Court applied Apprendi in the context of mandatory

minimum sentences. In Alleyne, a jury convicted the

defendant of a federal robbery offense. The sentencing

court increased the defendant’s mandatory minimum

sentence from ﬁve to seven years after ﬁnding that the

defendant had brandished a weapon during the com-

mission of the robbery. The defendant argued that the

jury had not determined that he brandished a weapon

and therefore he was not subject to the higher sen-

tence. Id. at ___; 133 S Ct at 2155-2156. The Supreme

Court agreed, rejecting the previous distinction it had

drawn in Harris v United States, 536 US 545; 122 S Ct

2406; 153 L Ed 2d 524 (2002)—one that distinguished

“between facts that increase the statutory maximum

and facts that increase only the mandatory minimum.”

Alleyne, 570 US at ___; 133 S Ct at 2155. Instead, the

Alleyne Court explained that “[t]he touchstone for

determining whether a fact must be found by a jury

beyond a reasonable doubt is whether the fact consti-

tutes an ‘element’ or ‘ingredient’ of the charged of-

fense.” Id. at ___; 133 S Ct at 2158. And “a fact is by

deﬁnition an element of the offense and must be

submitted to the jury if it increases the punishment

above what is otherwise legally prescribed.” Id. at ___;

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133 S Ct at 2158 (emphasis added). This “deﬁnition of

‘elements’ necessarily includes not only facts that in-

crease the ceiling, but also those that increase the

ﬂoor.” Id. at ___; 133 S Ct at 2158. The Supreme Court

concluded:

[T]he essential Sixth Amendment inquiry is whether a

fact is an element of the crime. When a ﬁnding of fact

alters the legally prescribed punishment so as to aggra-

vate it, the fact necessarily forms a constituent part of a

new offense and must be submitted to the jury. It is no

answer to say that the defendant could have received the

same sentence with or without that fact. [Id. at ___; 133 S

Ct at 2162.]

Apprendi through Alleyne represents

a line of

growth in the Supreme Court’s Sixth Amendment

jurisprudence concerning the scope of a criminal defen-

dant’s right to a jury. This jurisprudence can be sum-

marized as follows: Other than a prior conviction, any

fact that increases either the ﬂoor or the ceiling of a

criminal defendant’s sentence beyond that which a

court may impose solely on the basis of facts reﬂected

in the jury verdict or admitted by the defendant must

be submitted to a jury and proved beyond a reasonable

doubt. See Blakely, 542 US 296; Apprendi, 530 US 466;

Ring, 536 US 584; Cunningham, 549 US 270; Alleyne,

570 US ___; 133 S Ct 2151. We proceed by applying this

jurisprudence to the sentencing scheme at issue in this

case.

IV. APPLICATION

MCL 769.25 VIOLATES THE SIXTH AMENDMENT

Our application of the Supreme Court’s Sixth

Amendment jurisprudence begins with a determina-

tion of whether the ﬁndings mandated by MCL 769.25

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constitute elements of the offense. Alleyne, 570 US at

___; 133 S Ct at 2162. To answer that question, we

must determine whether the ﬁndings “alter[] the le-

gally prescribed punishment so as to aggravate it” and,

if so, whether the ﬁndings “necessarily form[] a con-

stituent part of a new offense and must be submitted to

the jury” and proved beyond a reasonable doubt. Id. at

___; 133 S Ct at 2162.

In this case, following the jury’s verdict and absent a

prosecution motion seeking a life-without-parole sen-

tence followed by additional ﬁndings by the trial court,

the legally prescribed maximum punishment that de-

fendant faced for her ﬁrst-degree-murder conviction

was imprisonment for a term of years. Speciﬁcally,

MCL 750.316 provides in relevant part as follows:

(1) Except

as provided in . . . MCL 769.25 and 769.25a,

a person who commits any of the following is guilty of ﬁrst

degree murder and shall be punished by imprisonment for

life without eligibility for parole:

(a) Murder perpetrated by means of poison, lying in

wait, or any other willful, deliberate, and premeditated

killing. [Emphasis added.]

The phrase “[e]xcept as provided in” means that

punishment

for ﬁrst-degree murder is contingent on

the provisions of MCL 769.25. As noted, MCL 769.25

contains provisions that establish a default term-of-

years prison sentence for a juvenile convicted of ﬁrst-

degree murder. Speciﬁcally, the statute provides in

pertinent part that “[t]he prosecuting attorney may ﬁle

a motion under this section to sentence a [juvenile

defendant] to imprisonment for life without the possi-

bility of parole if the individual is or was convicted of”

ﬁrst-degree murder. MCL 769.25(2)(b). Absent this

motion, “the court shall sentence the defendant to a

term of years. . . .” MCL 769.25(4) (emphasis added).

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The effect of this sentencing scheme clearly establishes

a default term-of-years sentence for juvenile defen-

dants convicted of ﬁrst-degree murder. See Carp, 496

Mich at 458 (explaining that “MCL 769.25 now estab-

lishes a default sentencing range for individuals who

commit ﬁrst-degree murder before turning 18 years of

age”) (emphasis added);

MCL 769.25(4) (providing

that,

absent the prosecution’s motion to impose a

sentence of life without parole, “the court shall sentence

the defendant to a term of years as provided in subsec-

tion (9)”) (emphasis added).

Stated differently, at the point of conviction, absent

a motion by the prosecution and without additional

ﬁndings on the Miller factors, the maximum punish-

ment that a trial court may impose on a juvenile

convicted of ﬁrst-degree murder is a term-of-years

prison sentence. See Blakely, 542 US at 303-304 (hold-

ing that for purposes of Apprendi, the “ ‘statutory

maximum’ is not the maximum sentence a judge may

impose after ﬁnding additional facts, but the maxi-

mum he may impose without any additional ﬁndings”).

Thus, following her jury conviction, defendant was

subject to a term-of-years prison sentence. Once the

Our dissenting colleague erroneously contends that we “conﬂate”

the language in Carp. Post at 77. To the contrary, Justice M

ARKMAN

writing for the majority in Carp, described MCL 769.25 as follows:

“Rather than imposing ﬁxed sentences of life without parole on all

defendants convicted of violating MCL 750.316, MCL 769.25 now

establishes a default sentencing range for individuals who commit

ﬁrst-degree murder before turning 18 years of age.” Carp, 496 Mich at

458 (emphasis added). The dissent fails to articulate what part of this

language we “conﬂate.”

MCL 769.25(9) governs a term-of-years sentence for a juvenile

defendant, and it requires a sentencing court to impose “a term of

imprisonment for which the maximum term shall be not less than 60

years and the minimum term shall be not less than 25 years or more

than 40 years.”

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prosecuting attorney ﬁled a motion to impose a life-

without-parole sentence, defendant was exposed to a

potentially harsher penalty contingent on ﬁndings

made by the trial court. This violated defendant’s right

to “ ‘a jury determination that [she] is guilty of every

element of the crime with which [she] is charged,

beyond a reasonable doubt,’ ” because “[o]ther than the

fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi, 530 US at 477,

490 (citation omitted).

The Legislature conditioned defendant’s life-

without-parole sentence on two things: (1) the prosecu-

tion’s ﬁling of a motion to impose the sentence and (2)

the trial court’s ﬁndings with respect to the Miller

factors and “any other criteria relevant to its deci-

sion . . . .” MCL 769.25(6). This scheme authorized the

trial court to enhance defendant’s sentence from a

term of years to life without parole on the basis of

ﬁndings made by the court, not a jury. Therefore, the

sentencing scheme is akin to the schemes at issue in

Apprendi, Ring, Blakely, and Cunningham. Each of

those cases involved a sentencing scheme that autho-

rized a court to enhance a defendant’s maximum

sentence solely on the basis of judicial fact-ﬁnding. The

United States Supreme Court found these schemes

unconstitutional, explaining, “This Court has repeat-

edly held that, under the Sixth Amendment, any fact

that exposes a defendant to a greater potential sentence

must be found by a jury, not a judge . . . .” Cunning-

ham, 549 US at 281 (emphasis added). Similarly, the

sentencing scheme in this case cannot stand when

examined under the lens of the Supreme Court’s Sixth

Amendment jurisprudence.

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Clearly, the ﬁndings mandated by MCL 769.25(6)

“expose the defendant to a greater punishment than

that authorized by the jury’s guilty verdict,” Apprendi,

530 US at 494, and therefore act as the “functional

equivalent” of elements of a greater offense that must

be proved to a jury beyond a reasonable doubt, Ring,

536 US at 609. An enhanced punishment under MCL

769.25 is not based merely on defendant’s prior convic-

tions, on facts admitted by defendant, or on facts that

are part and parcel of the elements that were submit-

ted to the jury during the guilt phase of the proceeding.

Rather, like in Apprendi, 530 US at 476, in this case

the state threatened defendant with certain pains—

i.e., a term-of-years sentence—following her jury con-

viction of ﬁrst-degree murder and with additional

pains—i.e., life without parole—following additional

ﬁndings by the trial court. “Merely using the label

‘sentence enhancement’ to describe the latter surely

does not provide a principled basis for treating them

differently.” Id. The effect of MCL 769.25 plainly sub-

jects defendant to harsher punishment on the basis of

judicially found facts in contravention of the Sixth

Amendment.

We note that MCL 769.25 is unique to Michigan’s

sentencing scheme, so our Supreme Court’s recent

decision in People v Lockridge, 498 Mich 358; 870

NW2d 502 (2015), while not directly on point, lends

support to our conclusion that a defendant’s maximum

sentence cannot be increased on the basis of judicial

fact-ﬁnding. In Lockridge, our Supreme Court was

tasked in relevant part with addressing whether, for

purposes of Alleyne, “a judge’s determination of the

appropriate sentencing guidelines range . . . estab-

lishes a ‘mandatory minimum sentence,’ such that the

facts used to score the offense variables must be

admitted by the defendant or established beyond a

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reasonable doubt to the trier of fact . . . .” People v

Lockridge, 496 Mich 852 (2014). The Lockridge Court

answered this question in the afﬁrmative, holding that

Michigan’s sentencing guidelines were constitutionally

deﬁcient under Apprendi as extended by Alleyne. Lock-

ridge, 498 Mich at 364. The deﬁciency was “the extent

to which the guidelines require judicial fact-ﬁnding

beyond facts admitted by the defendant or found by the

jury to score offense variables (OVs) that mandatorily

increase the ﬂoor of the guidelines minimum sentence

range, i.e., the ‘mandatory minimum’ sentence under

Alleyne.” Id.

As a remedy, the Lockridge Court severed MCL

769.34(2) “to the extent that it makes the sentencing

guidelines range as scored on the basis of facts beyond

those admitted by the defendant or found by the jury

beyond a reasonable doubt mandatory” and struck

down the requirement in MCL 769.34(3) “that a sen-

tencing court that departs from the applicable guide-

lines range must articulate a substantial and compel-

ling reason for that departure.” Id. at 364-365. Going

forward, “a sentencing court must determine the ap-

plicable guidelines range and take it into account when

imposing a sentence,” but “a guidelines minimum

sentence range calculated in violation of Apprendi and

Alleyne is advisory only and . . . sentences that depart

from that threshold are to be reviewed by appellate

courts for reasonableness.” Id. at 365.

Lockridge concerned the constitutionality of Michi-

gan’s sentencing guidelines—guidelines that govern a

defendant’s mandatory minimum sentence. Impor-

tantly, however, the Lockridge Court addressed the

constitutionality of the guidelines with the under-

standing that a defendant’s maximum sentence is ﬁxed

by law and not affected by the guidelines. See id. at

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377-378 (noting that “scoring the sentencing guide-

lines and establishing the guidelines minimum sen-

tence range does not alter the maximum sentence”). In

contrast, this case concerns the enhancement of a

juvenile defendant’s maximum sentence for ﬁrst-

degree murder under MCL 750.316 and MCL 769.25.

An enhanced maximum sentence imposed under this

statute is not governed by the sentencing guidelines,

but rather is part of a legislative response to the

United States Supreme Court’s holding in Miller. In-

deed, this case is unlike any other sentencing case

decided in Michigan in that MCL 769.25 is a sui

generis exception to the rule in Michigan that apart

from the habitual-offender statutes, maximum sen-

tences are ﬁxed by law and cannot be increased on the

basis of judicially found facts. See, e.g., People v Mc-

Culler, 479 Mich 672, 694; 739 NW2d 563 (2007)

(noting that apart from the habitual-offender statutes,

a criminal defendant’s maximum sentence in Michigan

is “prescribed by MCL 769.8, which requires a sentenc-

ing judge to impose no less than the prescribed statu-

tory maximum sentence as the maximum sentence for

every felony conviction”) (quotation marks and citation

omitted).

That this case does not involve the scoring of sen-

tencing guidelines to ﬁx a mandatory minimum sen-

tence, but rather involves the constitutionality of in-

creasing a maximum sentence, places it squarely

within the familiar purview of Apprendi, Ring,

Blakely, and Cunningham. The analysis, therefore, is

simple: Apart from a prior conviction or a fact admitted

by the defendant, any fact that exposes a defendant to

an increased maximum sentence beyond that which is

authorized by the jury’s verdict standing alone must be

submitted to a jury and proved beyond a reasonable

doubt. Moreover, in the context of increasing a maxi-

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mum sentence using judicially found facts, judicial

discretion cannot substitute for a defendant’s constitu-

tional right to a jury. See, e.g., Alleyne, 570 US at ___;

133 S Ct at 2162 (observing that “if a judge were to ﬁnd

a fact that increased the statutory maximum sentence,

such a ﬁnding would violate the Sixth Amendment,

even if the defendant ultimately received a sentence

falling within the original sentencing range (i.e., the

range applicable without that aggravating fact)”);

Blakely, 542 US at 305, 305 n 8 (noting that when a

court acquires the authority to impose an enhanced

sentence “only upon ﬁnding some additional fact,”

“[w]hether the judicially determined facts require a

sentence enhancement or merely allow it, the verdict

alone does not authorize the sentence” and it is there-

fore constitutionally deﬁcient).

The prosecution argues that MCL 769.25 does not

expose defendant to an increased penalty because “[a]t

the time of conviction, [defendant] faced the potential

penalty of life without possibility of parole” and the

“maximum allowable punishment is—at both the point

of conviction and at sentencing—life without the pos-

sibility of parole.” Similarly, the Attorney General, as

amicus curiae, argues: “The statutory maximum pen-

alty for ﬁrst-degree murder—even for minors—is life

without parole. . . . No facts are needed to authorize

the sentence, beyond those contained in the jury’s

verdict.” However, if, as the prosecution and the Attor-

ney General contend, the “maximum allowable punish-

ment” at the point of defendant’s conviction is life

without parole, then that sentence would offend the

Constitution. Under Miller, a mandatory default sen-

tence for juveniles cannot be life imprisonment without

the possibility of parole. Such a sentence would not be

an individualized sentence taking into account the

factors enumerated in Miller. See, e.g., Russell, 56 BC

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L Rev at 582 (explaining that under Miller, “[t]he

default is not life without parole” and that “[i]t is only

in the rare or unusual case—where a factual ﬁnding of

irreparable corruption is made—that a juvenile may be

exposed to life without parole”). This is why MCL

769.25 creates a default term-of-years sentence for

juveniles convicted under MCL 750.316. That is, at the

point of conviction the maximum sentence that defen-

dant faced, absent additional ﬁndings by the trial

court, was a term-of-years sentence. Like in Apprendi,

Ring, Blakely, and Cunningham, defendant’s maxi-

mum sentence here could only be enhanced following

ﬁndings made by the court.

Furthermore, the United States Supreme Court

rejected a similar argument in Ring. In that case,

Arizona argued in part that its capital punishment

was constitutional because Arizona’s ﬁrst-degree-

murder statute speciﬁed that “death or life imprison-

ment” were the only sentencing options. Ring, 536 US

at 603-604. Therefore, according to Arizona, when the

sentencing judge sentenced the defendant to death,

he was “sentenced within the range of punishment

authorized by the jury verdict.” Id. at 604. The

Supreme Court rejected this argument, explaining

that “[t]he Arizona ﬁrst-degree murder statute autho-

rizes a maximum penalty of death only in a formal

sense . . . .” Id. (quotation marks and citation omit-

ted). Instead, the Supreme Court examined the effect

of the statute over its form, noting that, “[i]n effect,

‘the required ﬁnding [of an aggravated circumstance]

expose[d] [Ring] to a greater punishment than that

authorized by the jury’s guilty verdict.’ ” Id., quoting

Apprendi, 530 US at 494 (second, third, and fourth

alterations in original). Similarly, in this case, MCL

750.316 authorizes a life-without-parole sentence for

juveniles “only in a formal sense,” and, in effect, the

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ﬁndings mandated by MCL 769.25(6) subjected defen-

dant to greater punishment than that authorized by

the jury’s guilty verdict.

The prosecution and the Attorney General attempt

to distinguish Ring from the present case by arguing

that, unlike in Ring, which required the sentencing

judge to ﬁnd one of several speciﬁed aggravating

factors, MCL 769.25 does not mandate the presence of

any factor before authorizing a life-without-parole sen-

tence. This is a distinction without any real meaning

that was rejected in Blakely, wherein the Court ex-

plained:

Whether the judge’s authority to impose an enhanced

sentence

depends on ﬁnding a speciﬁed fact (as in Ap-

prendi), one of several speciﬁed facts (as in Ring), or any

aggravating fact (as here), it remains the case that the

jury’s verdict alone does not authorize the sentence. The

judge acquires that authority only upon ﬁnding some

additional fact. [Blakely, 542 US at 305.]

As in Blakely,

what is critical is that the trial court in

this case acquired authority to enhance defendant’s

sentence from a term of years to life without parole

“only upon ﬁnding some additional fact.” Id. In that

respect, this case is not distinguishable from Ring,

Blakely, or any of the other United States Supreme

Court decisions relative to defendant’s Sixth Amend-

ment rights discussed earlier.

The Attorney General also argues that Ring is

distinguishable because, unlike in Ring, in this case

the factors in MCL 769.25(6) do not enhance the

sentence, but instead act as mitigating factors that can

bring the sentence down to a term of years. The

Attorney General reads the statute backwards. The

term-of-years sentence is the default that can be en-

hanced on the basis of judicial ﬁndings. Thus, under

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the statutory conﬁguration, the Miller factors are used

to seek enhancement of defendant’s punishment.

Similarly, the Attorney General argues that neither

MCL 769.25 nor Miller “requires any fact to be found

before a trial court imposes a sentence of life without

parole” and, therefore, the life-without-parole sentence

was available at the time of conviction. This argument

ignores the plain language of the statute and miscon-

strues Miller. Speciﬁcally, MCL 769.25(6) provides

that upon the prosecution’s motion, “the court shall

conduct a hearing . . . as part of the sentencing pro-

cess” and “shall consider the factors listed in [Miller].”

(Emphasis added.) By their very nature, the factors

enumerated in Miller necessitate factual ﬁndings. See,

e.g., Gutierrez, 58 Cal 4th at 1388 (explaining that

“Miller discussed a range of factors relevant to a

sentencer’s determination of whether a particular de-

fendant is a rare juvenile offender whose crime reﬂects

irreparable corruption”) (emphasis added) (quotation

marks and citation omitted); Russell, 56 BC L Rev at

581 (“[T]he consideration of mitigation and aggrava-

tion under Miller is part of making a particular factual

determination: is the juvenile irreparably corrupt and

incapable of rehabilitation?”). Moreover, “Miller con-

cludes that life without parole is an inappropriate

sentence for most juveniles, and may be given only in

rare circumstances where certain facts are established.

Thus, the factual ﬁnding of ‘irreparable corruption’

aggravates—not mitigates—the penalty.” Russell, 56

BC L Rev at 582.

Our dissenting colleague erroneously posits that we “latch[] onto a

statement in a law review article” to support the proposition that

“irreparable corruption” is an “aggravating factor.” Post at 76. To the

contrary, we do not hold that “irreparable corruption” is an “aggravat-

ing factor.” Rather, the Miller Court held that life imprisonment

without parole for juvenile homicide offenders is constitutionally

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In addition, as noted, MCL 769.25(7) provides that

in imposing the sentence, “the court shall specify on

the record the aggravating and mitigating circum-

stances considered by the court and the court’s reasons

supporting the sentence imposed.” (Emphasis added.)

Thus, the language of the statute necessarily requires

the trial court to make ﬁndings of fact before imposing

a sentence of life without parole.

permissible only in those rare cases in which a juvenile’s crime reﬂects

irreparable corruption. Miller, 567 US at ___; 132 S Ct at 2469. The

factors provided by the Miller Court serve as a guidepost during the

sentencing phase to determine if the juvenile’s offense reﬂects irrepa-

rable corruption. Absent this determination, life imprisonment with-

out parole violates the Eighth Amendment. Moreover, this is not a

maxim derived from a law review article. See, e.g., Gutierrez, 58

Cal 4th at 1388 (explaining that “Miller discussed a range of factors

relevant to a sentencer’s determination of whether a particular defen-

dant is a ‘ “ rare juvenile offender whose crime reﬂects irreparable

corruption” ’ ”), quoting Miller, 567 US at ___; 132 S Ct at 2469.

The dissent acknowledges that MCL 769.25(7) requires the sen-

tencing court to “specify on the record the aggravating and mitigating

circumstances considered by the court and the court’s reasons support-

ing the sentence imposed.” However, the dissent states, “But nowhere

does the statute require the trial court to make any particular ﬁnding

of fact before it is authorized to impose a sentence of life without

parole.” Post at 73. The fallacy in this statement, of course, is that

it fails to recognize that, in order to consider and specify an aggravat-

ing circumstance on the record, a trial court necessarily must ﬁrst

make ﬁndings as to the presence and relevance of the aggravating

circumstance. Moreover, if the dissent were correct in its contention

that MCL 769.25(7) did not require the sentencing court to make

any ﬁndings of fact, then the statute would offend the Eighth Amend-

ment because, as discussed in detail above, Miller requires an indi-

vidualized factual inquiry before a juvenile may be sentenced to life

without parole. Furthermore, the dissent’s argument “overlooks

Apprendi’s instruction that the relevant inquiry is one not of form, but

of effect.” Ring, 536 US at 604 (quotation marks and citation omitted).

In effect, by directing the sentencing court to “consider” the Miller

factors and specify the aggravating and mitigating circumstances

on the record, the statute requires the sentencing court to make

ﬁndings of fact before imposing the harsher sentence of life without

parole.

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In a similar argument, the dissent posits that

Miller “hardly establishes a list of factors that must

be met before a sentence of life without parole may be

imposed” and states that Miller does not “set[] forth

any particular facts that must be found before a

sentence of life without parole may be imposed.” Post

at 73-74. Instead, according to the dissent, Miller

“merely require[s] the sentencing court to take into

account the individual circumstances of the juvenile

offender before determining whether a sentence of life

without parole is appropriate in each particular case.”

Post at 74. The dissent concludes that because a

sentencing court need only “consider” the Miller fac-

tors as opposed to make ﬁndings on the factors, MCL

769.25 does not violate Apprendi and its progeny.

Conveniently, the dissent fails to articulate how the

court should take into account, without making any

ﬁndings of fact, a juvenile’s immaturity, impetuosity,

his or her failure to appreciate risks and conse-

quences, his or her family and home environment,

whether the home environment is brutal or dysfunc-

tional, whether the juvenile could extricate herself

from the home environment, the circumstances of the

offense, the extent of the juvenile’s participation in

the offense conduct, whether familial and peer pres-

sures may have affected the juvenile, whether the

juvenile might have been charged with and convicted

of a lesser offense if not for youthful incompetence,

whether the juvenile was able to deal with police

ofﬁcers or prosecutors, whether the juvenile was able

to assist trial counsel, and, importantly, whether the

juvenile exhibits potential for rehabilitation. See

Miller, 567 US at ___; 132 S Ct at 2468. The dissent’s

contention that there exists a means by which all

these factors must be “considered” without leading to

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a single ﬁnding of fact deﬁes logic.

In an attempt to bolster its ﬂawed analysis, the

dissent focuses on the word “consider” in MCL

769.25(6). Speciﬁcally, the statute provides that “[a]t

the hearing, the trial court shall consider the factors

listed in [Miller] . . . .” (Emphasis added.) The dissent

contends that because the statute directs a court to

“consider” the factors as opposed to make ﬁndings on

the factors, the statute therefore does not require

judicial fact-ﬁnding to increase a juvenile homicide

offender’s maximum sentence to life without parole.

However, consideration of factors necessarily requires

fact-ﬁnding, and the terms are often used interchange-

ably in the law. For example, in the context of child

custody proceedings, MCL 722.23 sets forth best-

interest factors “to be considered, evaluated, and de-

termined” by the trial court, and it is certainly well-

settled law that this legislative mandate requires a

trial court to make factual ﬁndings on these factors.

(Emphasis added.) See, e.g., Bowers v Bowers, 198

Mich App 320, 328; 497 NW2d 602 (1993) (noting that

in a child custody case, “[t]he trial court must consider

each of these [best-interest] factors and explicitly state

its ﬁndings and conclusions regarding each”) (empha-

sis added). Similarly, in deciding whether to award

alimony, “trial courts should consider” several spousal

support factors, Berger v Berger, 277 Mich App 700,

726-727; 747 NW2d 336 (2008) (emphasis added), and

In addition, the basic assertion of the dissent is that we reach our

conclusions based on what the dissent labels “a false premise.” Post at

61. Speciﬁcally, the dissent contends that our opinion states that

“Apprendi and its progeny require that all facts relating to a sentence

must be found by a jury.” Post at 61-62. However, the dissent fails to cite

where that statement is made, we presume because our opinion does not

so state, leading, of course, to the inescapable conclusion that it is the

dissent whose argument is based entirely on a false premise.

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in considering those factors, trial courts should “ ‘make

speciﬁc factual ﬁndings regarding the factors that are

relevant to the particular case,’ ” Myland v Myland,

290 Mich App 691, 695; 804 NW2d 124 (2010) (empha-

sis added) (citation omitted). Moreover, in the criminal

context, “consideration” of factors implies fact-ﬁnding.

See, e.g., People v Cipriano, 431 Mich 315, 334; 429

NW2d 781 (1988) (setting forth factors that a trial

court “should consider” in determining whether a

statement was voluntary) (emphasis added); People v

Gipson, 287 Mich App 261, 264; 787 NW2d 126 (2010)

(noting that a trial court’s factual ﬁndings during a

voluntariness inquiry are reviewed for clear error).

In short, the dissent’s contention that consideration

of factors is distinct from making ﬁndings about those

factors is a difference without any real meaning, illus-

trates the tenuous nature of the dissent’s ﬂawed analy-

sis, and “ignore[s] reality and the actual text of the

statute.” Potter v McLeary, 484 Mich 397, 438; 774

NW2d 1 (2009) (Y

OUNG

, J., concurring in part and

dissenting in part).

The prosecution also argues that, unlike in Cun-

ningham, 549 US 270, in which ﬁndings of certain

aggravating factors required the sentencing court to

impose an increased sentence, in this case the sentenc-

ing court has discretion under MCL 769.25 to impose

the harsher sentence. However, merely because the

sentencing court has discretion to impose a harsher

penalty does not save MCL 769.25 from being uncon-

stitutional because “[w]hether the judicially deter-

mined facts require a sentence enhancement or merely

allow it, the verdict alone does not authorize the

sentence.” Blakely, 542 US at 305 n 8. Indeed, in

Blakely the Court rejected the state of Washington’s

attempt to distinguish Apprendi from that state’s sen-

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tencing scheme on the grounds that sentencing courts

had discretion to impose an exceptional sentence. See

Cunningham, 549 US at 283, citing Blakely, 542 US at

305. The Blakely Court explained that judicial discre-

tion cannot serve as a substitute for the Sixth Amend-

ment, explaining:

USTICE

O’C

ONNOR

argues that, because determinate

sentencing schemes involving judicial factﬁnding entail

less judicial discretion than indeterminate schemes, the

constitutionality of the latter implies the constitutionality

of the former. This argument is ﬂawed on a number of

levels. First, the Sixth Amendment by its terms is not a

limitation on judicial power, but a reservation of jury

power. It limits judicial power only to the extent that the

claimed judicial power infringes on the province of the

jury. Indeterminate sentencing does not do so. It increases

judicial discretion, to be sure, but not at the expense of the

jury’s traditional function of ﬁnding the facts essential to

lawful imposition of the penalty. Of course indeterminate

schemes involve judicial factﬁnding, in that a judge (like a

parole board) may implicitly rule on those facts he deems

important to the exercise of his sentencing discretion. But

the facts do not pertain to whether the defendant has a

legal right to a lesser sentence—and that makes all the

difference insofar as judicial impingement upon the tradi-

tional role of the jury is concerned. [Blakely, 542 US at

308-309 (citation omitted) (emphasis added).]

In this case, based solely on the facts that were

ecided by the jury, defendant was entitled to a term-

of-years sentence. Therefore, because the factual ﬁnd-

ings required by Miller and MCL 769.25(6) were not

part and parcel of the elements submitted to the jury,

these facts “pertain to whether the defendant has a

legal right to a lesser sentence,” and merely because the

sentencing court has discretion to impose the harsher

sentence cannot serve as a substitute for defendant’s

Sixth Amendment right to a jury. Id. at 309.

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Finally, in an argument that can best be described as

a Herculean attempt at linguistic gymnastics, the

Attorney General argues that the default term-of-

years sentence mandated by MCL 769.25(9) is not

actually the default sentence because “[i]f . . . the pros-

ecutor moves for a life sentence, then the term of years

is not the default.” This argument misconstrues the

meaning of the word “default.” “Default” is deﬁned in

relevant part as “a selection made [usually] automati-

cally or without active consideration due to lack of a

viable alternative[.]” Merriam Webster’s Collegiate Dic-

tionary (11th ed). Under MCL 769.25, a term-of-years

sentence is automatic, and there is no alternative

absent the prosecution’s motion for a life-without-

parole sentence and additional ﬁndings by the court.

Accordingly and as speciﬁcally stated in Carp, 496

Mich at 458, a term of years is the default sentence.

To summarize, the default sentence for a juvenile

convicted of ﬁrst-degree murder under MCL 750.316 is

a term-of-years prison sentence. MCL 769.25 autho-

rizes a trial court to enhance that sentence to life

without parole on the basis of factual ﬁndings that

were not made by a jury but rather were found by the

court. In this respect, the statute offends the Sixth

Amendment as articulated in Apprendi and its prog-

eny. In order to enhance a juvenile’s default sentence to

life without parole, absent a waiver,

a jury must make

ﬁndings

on the Miller factors as codiﬁed at MCL

769.25(6) to determine beyond a reasonable doubt

Moreover, as already explained, life without parole can never be the

default sentence for juveniles under Graham and Miller.

See Blakely, 542 US at 310 (noting that “nothing prevents a

defendant from waiving his Apprendi rights” and that “[w]hen a

defendant pleads guilty, the State is free to seek judicial sentence

enhancements so long as the defendant either stipulates to the relevant

facts or consents to judicial factﬁnding”).

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whether the juvenile’s crime reﬂects irreparable cor-

ruption. Accordingly, because defendant’s sentence for

ﬁrst-degree murder was imposed in a manner that

violated the Sixth Amendment, she is entitled to resen-

tencing on that offense.

SEVERABILITY AND SENTENCING OF JUVENILES

GOING FORWARD

Although portions of MCL 769.25 are unconstitu-

tional,

this does not necessarily render the statute void

in its entirety. Rather, MCL 8.5 provides:

If any portion of an act or the application thereof to any

person or circumstances shall be found to be invalid by a

court, such invalidity shall not affect the remaining por-

tions or applications of the act which can be given effect

without the invalid portion or application, provided such

remaining portions are not determined by the court to be

inoperable, and to this end acts are declared to be sever-

able.

Indeed, “[i]t is the law of this State that if invalid or

unconstitutional

language can be deleted from an

ordinance and still leave it complete and operative

then such remainder of the ordinance be permitted to

stand.” Eastwood Park Amusement Co v East Detroit

Mayor, 325 Mich 60, 72; 38 NW2d 77 (1949).

In this case, apart from the provision in Subsection

(6) directing the trial court to consider the Miller

Given our resolution of this issue, we need not address the other

issues defendant raises on appeal. We note that we reject defendant’s

argument that she should be resentenced in front of a different judge on

remand. Although resentencing before a different judge may be “war-

ranted by the circumstances” on some occasions, defendant here has not

articulated any circumstances that warrant resentencing before a

different judge. People v Coles, 417 Mich 523, 536; 339 NW2d 440 (1983),

overruled in part on other grounds by People v Milbourn, 435 Mich 630;

461 NW2d 1 (1990).

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factors and the provision in Subsection (7) directing

the court to articulate aggravating and mitigating

circumstances on the record, MCL 769.25 remains

operable in the event that the ﬁndings on the Miller

factors are made by a jury beyond a reasonable doubt.

That is, following a conviction of ﬁrst-degree murder

and

a motion by the prosecuting attorney for a sen-

tence of life without parole, absent defendant’s waiver,

the court should empanel a jury

and hold a sentenc-

ing

hearing at which the prosecution is tasked with

proving that the factors in Miller support that the

juvenile’s offense reﬂects irreparable corruption be-

yond a reasonable doubt. During this hearing, both

sides must be afforded the opportunity to present

relevant evidence, and each victim must be afforded

the opportunity to offer testimony in accordance with

MCL 769.25(8). Following the close of proofs, the trial

court should instruct the jury that it must consider

whether, in light of the factors set forth in Miller and

any other relevant evidence, the defendant’s offense

reﬂects irreparable corruption beyond a reasonable

doubt sufﬁcient to impose a sentence of life without

parole. Alternatively, if the jury decides this question

in the negative, then the court should use its discretion

The Sixth Amendment does not require the jury to articulate

mitigating and aggravating circumstances, so Subsection (7) is inoper-

able.

We note that this hearing may be conducted before the jury that

determined the defendant’s guilt in the event that the prosecution

moves to impose a life-without-parole sentence after the jury verdict but

before the jury is dismissed. See, e.g., 18 USC 3593(b) (providing that

the sentencing hearing in a federal death-penalty case may be con-

ducted before the jury that determined the defendant’s guilt or, in

certain circumstances, before a jury empaneled “for the purpose of” the

sentencing hearing). Alternatively, the court may empanel a new jury

for the purpose of the sentencing hearing in accordance with the court

rules governing empaneling a jury for the guilt phase of the proceeding.

See MCR 6.410; MCR 6.412.

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to sentence the juvenile to a term of years in accor-

dance with MCL 769.25(9).

V. CONCLUSIONS

The Sixth Amendment requires that other than a

prior conviction, any fact that increases either the ﬂoor

or the ceiling of a criminal defendant’s sentence beyond

that which a court may impose solely on the basis of

facts reﬂected in the jury verdict or admitted by the

defendant must be submitted to a jury and proved

beyond a reasonable doubt. See Apprendi, 530 US 466;

Ring, 536 US 584; Blakely, 542 US 296; Cunningham,

549 US 270; Alleyne, 570 US ___; 133 S Ct 2151. The

default sentence for juveniles convicted of ﬁrst-degree

murder—i.e. the sentence authorized by the jury

verdict—is a term of years. MCL 769.25 authorizes a

trial court to increase that sentence to life without the

possibility of parole contingent on the trial court’s

ﬁndings with respect to the Miller factors and any

other relevant criteria. Because MCL 769.25 makes an

increase in a juvenile defendant’s sentence contingent

on factual ﬁndings, those ﬁndings must be made by a

jury beyond a reasonable doubt. Accordingly, in this

case, because defendant was denied her right to have a

jury make the requisite ﬁndings under MCL 769.25,

she is entitled to resentencing on her ﬁrst-degree-

murder conviction.

Vacated and remanded for resentencing consistent

with this opinion. Jurisdiction is not retained.

OEKSTRA

, P.J., concurred with B

ORRELLO

, J.

AWYER

, J. (dissenting). I respectfully dissent.

While the majority sets forth a strong argument, it

ultimately fails because it is based on a false premise:

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that Apprendi

and its progeny require that all facts

relating to a sentence must be found by a jury. Rather,

the principle set forth in those cases establishes only

that the Sixth Amendment right to a jury trial requires

the jury to ﬁnd those facts necessary to impose a

sentence greater than that authorized by the legisla-

ture in the statute itself on the basis of the conviction

itself. And the statute adopted by the Michigan Legis-

lature with respect to juvenile lifers does not ﬁt within

that category.

Looking ﬁrst to Apprendi itself, the defendant was

convicted under a New Jersey statute of possession of

a ﬁrearm for an unlawful purpose and that statute

authorized a sentence of between 5 and 10 years in

prison.

A separate statute, described as a “hate crime”

statute, authorized an extended term of imprisonment

of between 10 and 20 years if the defendant committed

the crime with a purpose to intimidate a person or

group because of their membership in a speciﬁed

protected class.

The statute directed that the ﬁnding

had

to be made by the trial judge and the burden of

proof was by a preponderance of the evidence.

The Apprendi Court

found this statutory scheme

invalid, concluding as follows: “Other than the fact of a

prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a

reasonable doubt.”

The majority in the case before us

ignores

this ultimate conclusion in Apprendi, that the

Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435

(2000).

Id. at 468.

Id. at 468-469.

Id. at 468.

Id. at 490.

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facts that must be submitted to the jury are those that

increase the prescribed maximum sentence.

But facts that the trial court considers in ﬁxing a

sentence that is within the maximum authorized by

the statute (without additional facts found by the jury)

need not be determined by the jury. The Apprendi

majority distinguished between fact-ﬁnding that au-

thorizes a court to impose a greater sentence than the

prescribed statutory maximum and a “sentencing fac-

tor.” It did so in the context of distinguishing Apprendi

from the earlier decision in McMillan v Pennsylvania.

Apprendi

explained the distinction as follows:

It was in McMillan v

. Pennsylvania, 477 U. S. 79

(1986), that this Court, for the ﬁrst time, coined the term

“sentencing factor” to refer to a fact that was not found by

a jury but that could affect the sentence imposed by the

judge. That case involved a challenge to the State’s Man-

datory Minimum Sentencing Act, 42 Pa. Cons. Stat. §9712

(1982). According to its provisions, anyone convicted of

certain felonies would be subject to a mandatory minimum

penalty of ﬁve years’ imprisonment if the judge found, by

a preponderance of the evidence, that the person “visibly

possessed a ﬁrearm” in the course of committing one of the

speciﬁed felonies. 477 U. S., at 81-82. Articulating for the

ﬁrst time, and then applying, a multifactor set of criteria

for determining whether the Winship

[

]

protections ap-

plied to bar such a system, we concluded that the Penn-

sylvania statute did not run afoul of our previous admo-

nitions against relieving the State of its burden of proving

guilt, or tailoring the mere form of a criminal statute

solely to avoid Winship’s strictures. 477 U. S., at 86-88.

We did not, however, there budge from the position that

(1) constitutional limits exist to States’ authority to deﬁne

away facts necessary to constitute a criminal offense, id.,

477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986).

530 US at 485-487.

In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970).

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at 85-88, and (2) that a state scheme that keeps from the

jury facts that “expos[e] [defendants] to greater or addi-

tional punishment,” id., at 88, may raise serious constitu-

tional concern. As we explained:

Section 9712 neither alters the maximum penalty

for the crime committed nor creates a separate

offense calling for a separate penalty; it operates

solely to limit the sentencing court’s discretion in

selecting a penalty within the range already avail-

able to it without the special ﬁnding of visible

possession of a ﬁrearm. . . . The statute gives no

impression of having been tailored to permit the

visible possession ﬁnding to be a tail which wags the

dog of the substantive offense. Petitioners’ claim

that visible possession under the Pennsylvania stat-

ute is “really” an element of the offenses for which

they are being punished—that Pennsylvania has in

effect deﬁned a new set of upgraded felonies—would

have at least more superﬁcial appeal if a ﬁnding of

visible possession exposed them to greater or addi-

tional punishment, cf. 18 U.S.C. §2113(d) (providing

separate and greater punishment for bank robberies

accomplished through “use of a dangerous weapon

or device”), but it does not. Id., at 87-88.

As I will discuss later, the statutory scheme created by

our

Legislature creates these McMillan-like sentenc-

ing factors rather than requiring particular facts to be

found in order for the trial court to have the authority

to impose the greater sentence of life without parole.

The Supreme Court has consistently followed this

distinction thereafter. In Ring v Arizona,

it rejected

Arizona’s

death-penalty statute because it placed on

the sentencing judge the responsibility of determining

the existence of an aggravating factor necessary to

impose the death penalty. Without such a judicial

determination, the jury’s verdict alone only authorized

536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002).

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the imposition of life imprisonment.

After analyzing

the effect of Apprendi, the Ring Court summarized the

law as follows: “If a State makes an increase in a

defendant’s authorized punishment contingent on the

ﬁnding of a fact, that fact—no matter how the State

labels it—must be found by a jury beyond a reasonable

doubt.”

Turning to Blakely

v Washington,

the Court con-

sidered a sentencing scheme that authorized the trial

court to depart upward from a standard sentence set

by statute. The defendant was convicted of kidnapping.

Although the Washington statute authorized a maxi-

mum sentence of up to 10 years, it further provided

that the “standard range” for the defendant’s offense

was 49 to 53 months.

But the statute further autho-

rized

a judge to impose a sentence above the standard

range if he found “substantial and compelling reasons

justifying an exceptional sentence.”

The sentencing

judge

had to make ﬁndings of fact and conclusions of

law that justiﬁed the exceptional sentence and those

ﬁndings were reviewable under a clearly erroneous

standard.

In rejecting the Washington sentencing

scheme,

the Court noted “that the ‘statutory maxi-

mum’ for Apprendi purposes is the maximum sentence

a judge may impose solely on the basis of the facts

reﬂected in the jury verdict or admitted by the defen-

dant.”

Thus, a judge’s sentencing authority is limited

“the maximum he may impose without any addi-

Id. at 597.

Id. at 602.

542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).

Id. at 299.

Id., quoting Wash Rev Code 9.94A.120(2).

Id. at 299-300.

Id. at 303.

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tional ﬁndings.”

The majority attempts to argue that

Blakely controls this case because “the trial court in

this case acquired authority to enhance defendant’s

sentence from a term of years to life without parole

‘only upon ﬁnding some additional fact.’ ”

But this

attempt

fails because MCL 769.25 does not, in fact,

require the ﬁnding of an additional fact before it

authorizes the imposition of a life-without-parole sen-

tence. Indeed, as Blakely points out,

the question is

not

whether the sentencing court engages in judicial

fact-ﬁnding, but on whether the defendant is entitled

to a lesser sentence without those facts being found:

Of course indeterminate schemes involve judicial fact-

ﬁnding,

in that a judge (like a parole board) may implicitly

rule on those facts he deems important to the exercise of

his sentencing discretion. But the facts do not pertain to

whether the defendant has a legal right to a lesser

sentence—and that makes all the difference insofar as

judicial impingement upon the traditional role of the jury

is concerned. In a system that says the judge may punish

burglary with 10 to 40 years, every burglar knows he is

risking 40 years in jail. In a system that punishes bur-

glary with a 10-year sentence, with another 30 added for

use of a gun, the burglar who enters a home unarmed is

entitled to no more than a 10-year sentence—and by

reason of the Sixth Amendment the facts bearing upon

that entitlement must be found by a jury.

Nothing in MCL 769.25 established a legal entitlement

defendant to be sentenced to a term of years rather

than life in prison. That is, juvenile offenders who

commit ﬁrst-degree murder, even after the adoption of

MCL 769.25, know that they are risking being sen-

tenced to life in prison without the possibility of parole

Id. at 304.

Ante at 51, quoting Blakely, 542 US at 305.

542 US at 309.

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simply upon the jury’s conviction for ﬁrst-degree mur-

der without the necessity of the jury ﬁnding any

additional facts regarding the crime.

This then leads to the Court’s decision in Cunning-

ham v California.

In Cunningham, the defendant

was convicted of sexual abuse of a child under the age

of 14. Under California’s determinate sentencing law,

the crime was punishable by a lower term of 6 years in

prison, a middle term of 12 years in prison, or an upper

term of 16 years in prison.

But the statute required

the

imposition of the middle term unless the judge

found, by a preponderance of the evidence, the exis-

tence of one or more aggravating factors. The judge so

found and sentenced Cunningham to the upper term.

After a review of Apprendi and

its progeny, the Cun-

ningham Court again summarized the basic principle

that comes out of those cases: “If the jury’s verdict

alone does not authorize the sentence, if, instead, the

judge must ﬁnd an additional fact to impose the longer

term, the Sixth Amendment requirement is not satis-

ﬁed.”

This ﬁnally leads to the Supreme Court’s decision in

Alleyne

v United States,

wherein the Court took up

the Apprendi principle in the context of increases in a

mandatory minimum sentence. Allen Alleyne was con-

victed under a federal robbery statute and a related

statute that required minimum sentences for the pos-

session or use of a ﬁrearm in certain crimes. That

statute required a minimum sentence of 5 years unless

a ﬁrearm was brandished, in which case the manda-

549 US 270; 127 S Ct 856; 166 L Ed 2d 856 (2007).

Id. at 275.

Id. at 275-276.

Id. at 290.

570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).

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tory minimum was 7 years, and was further raised to

10 years if the ﬁrearm was discharged.

The verdict

form indicated that Alleyne had used or carried a

ﬁrearm, which would authorize the mandatory 5-year

minimum sentence, but did not indicate whether the

ﬁrearm was brandished, which would authorize the

7-year mandatory minimum.

The trial court found

that

a preponderance of the evidence supported the

ﬁnding that Alleyne had brandished the weapon and

sentenced him to the mandatory minimum of 7 years

in prison.

While the Alleyne Court

concluded that the

fact of whether the defendant brandished a ﬁrearm

must be found by the jury in order to increase the

mandatory minimum sentence that he faced,

the

Court

also took pains to note that facts that merely

inﬂuence judicial discretion in sentencing do not have

to be found by a jury, stating as follows:

holding that facts that increase mandatory mini-

mum sentences must be submitted to the jury, we take

care to note what our holding does not entail. Our ruling

today does not mean that any fact that inﬂuences judicial

discretion must be found by a jury. We have long recog-

nized that broad sentencing discretion, informed by judi-

cial factﬁnding, does not violate the Sixth Amendment.

See, e.g., Dillon v. United States, 560 U. S. [817, 828-829;

130 S Ct 2683; 177 L Ed 2d 271] (2010) (“[W]ithin

established limits[,] . . . the exercise of [sentencing] discre-

Id. at ___; 133 S Ct at 2155-2156; see 18 USC 924(c)(1)(A).

Id. at ___; 133 S Ct at 2156.

In doing so, the Court explicitly found that its earlier decision in

Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524

(2002), could not be reconciled with Apprendi and also questioned the

continued validity of McMillan as it applied to mandatory minimum

sentences. Id. at ___; 133 S Ct at 2157-2158.

Id. at ___; 133 S Ct at 2163 (alterations other than those related to

citations in original).

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tion does not contravene the Sixth Amendment even if it is

informed by judge-found facts” (emphasis deleted and

internal quotation marks omitted)); Apprendi, 530 U. S.,

at 481 (“[N]othing in this history suggests that it is

impermissible for judges to exercise discretion—taking

into consideration various factors relating both to offense

and offender—in imposing a judgment within the range

prescribed by statute”). This position has ﬁrm historical

roots as well. As Bishop explained:

[W]ithin the limits of any discretion as to the pun-

ishment which the law may have allowed, the judge,

when he pronounces sentence, may suffer his discre-

tion to be inﬂuenced by matter shown in aggravation

or mitigation, not covered by the allegations of the

indictment. [1] Bishop [Criminal Procedure (2d ed,

1872)] §85, at 54.

“[E]stablishing what punishment is available by law and

setting a speciﬁc punishment within the bounds that the

law has prescribed are two different things.” Apprendi,

[530 US] at 519, 120 S. Ct. 2348, 147 L. Ed. 2d 435

HOMAS

, J., concurring). Our decision today is wholly

consistent with the broad discretion of judges to select a

sentence within the range authorized by law.

The Michigan Supreme Court recently considered

the application of Alleyne to the Michigan sentencing

guidelines in People v Lockridge.

While not directly

applicable

to this case, I do ﬁnd its analysis relevant.

Particularly, the Court makes the following observa-

tion in ﬁnding the legislative sentencing guidelines to

be constitutionally deﬁcient in light of Alleyne: “That

deﬁciency is the extent to which the guidelines require

judicial fact-ﬁnding beyond facts admitted by the de-

fendant or found by the jury to score offense variables

(OVs) that mandatorily increase the ﬂoor of the guide-

lines minimum sentence range, i.e., the ‘mandatory

498 Mich 358; 870 NW2d 502 (2015).

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minimum’ sentence under Alleyne.”

Applying this

same principle to the statute before us, the juvenile

lifer law does not require any particular judicial fact-

ﬁnding to increase the potential sentence from a term

of years to life without parole. Indeed, as the Court

observed, the “inquiry is whether the pertinent facts

that must be found are an element of the offense or a

mere sentencing factor.”

I would submit that, regardless of whether we look

to Apprendi or Alleyne,

or any of the other decisions of

the United States Supreme Court, the principle to be

applied is simple: Does the statutory scheme enacted

by the Legislature authorize the sentencing court to

impose a particular sentence without any additional

fact-ﬁnding or, to impose the particular sentence, must

an additional fact beyond that which supports the

conviction itself be found? If it is the former, the

sentencing court is free to impose the sentence that his

or her discretion concludes is appropriate. If the latter,

then the defendant has the right to have that addi-

tional fact found by a jury beyond a reasonable doubt.

Turning to the statute at issue in this case, I believe

that it ﬁts within the former category—i.e., that no

additional fact-ﬁnding is necessary to justify a sen-

tence of life without parole. MCL 769.25 deals with the

sentencing of defendants who were under the age of 18

at the time that they committed a crime punishable by

a sentence of life without parole and provides in

pertinent part as follows:

(3) If the prosecuting attorney intends to seek a sen-

tence

of imprisonment for life without the possibility of

parole for a case described in subsection (1)(a), the pros-

ecuting attorney shall ﬁle the motion within 21 days after

Id. at 364.

Id. at 368-369.

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the defendant is convicted of that violation. If the pros-

ecuting attorney intends to seek a sentence of imprison-

ment for life without the possibility of parole for a case

described under subsection (1)(b), the prosecuting attor-

ney shall ﬁle the motion within 90 days after the effective

date of the amendatory act that added this section. The

motion shall specify the grounds on which the prosecuting

attorney is requesting the court to impose a sentence of

imprisonment for life without the possibility of parole.

(4) If the prosecuting attorney does not ﬁle a motion

under subsection (3) within the time periods provided for

in that subsection, the court shall sentence the defendant

to a term of years as provided in subsection (9).

(5) If the prosecuting attorney ﬁles a motion under

subsection (2) requesting that the individual be sentenced

to imprisonment for life without parole eligibility, the

individual shall ﬁle a response to the prosecution’s motion

within 14 days after receiving notice of the motion.

(6) If the prosecuting attorney ﬁles a motion under

subsection (2), the court shall conduct a hearing on the

motion as part of the sentencing process. At the hearing,

the trial court shall consider the factors listed in Miller v

Alabama, 576 [sic] US_____; 183 L Ed 2d 407; 132 S Ct

2455 (2012), and may consider any other criteria relevant

to its decision, including the individual’s record while

incarcerated.

(7) At the hearing under subsection (6), the court shall

specify on the record the aggravating and mitigating

circumstances considered by the court and the court’s

reasons supporting the sentence imposed. The court may

consider evidence presented at trial together with any

evidence presented at the sentencing hearing.

* * *

(9) If the court decides not to sentence the individual to

imprisonment for life without parole eligibility, the court

shall sentence the individual to a term of imprisonment

for which the maximum term shall be not less than 60

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years and the minimum term shall be not less than 25

years or more than 40 years.

The majority fundamentally misreads this statute.

First, the majority looks to People v Carp

and its

reference to MCL 769.25 establishing a “default sen-

tencing range” for defendants convicted of ﬁrst-degree

murder committed while a juvenile. But the majority

downplays the fact that this statement is made in the

context of the fact that this “default sentencing range”

is only applicable “absent a motion by the prosecutor

seeking a sentence of life without parole” and that the

trial court may impose a sentence of life without parole

after such a motion is ﬁled and conducting a hearing.

The majority then performs an act of legalistic leger-

demain and reinterprets Carp as follows: “Stated dif-

ferently, at the point of conviction, absent a motion by

the prosecution and without additional ﬁndings on the

Miller

[35]

factors, the maximum punishment that a trial

court

may impose on a juvenile convicted of ﬁrst-

degree murder is a term-of-years prison sentence.”

this

statement were true, then I would agree with the

majority that the question of life without parole must

be submitted to the jury. But the statement is simply

untrue. There are no additional ﬁndings that must be

made in order for a defendant to be subjected to a

sentence of life without parole.

496 Mich 440, 458; 852 NW2d 801 (2014).

Id.

Miller v Alabama, 567 US ___; 132 S Ct 2455; 183 L Ed 2d 407

(2012).

Ante at 44 (emphasis added).

Arguably, the trial court must “ﬁnd” that the prosecutor ﬁled a

motion within 21 days after conviction, as required by MCL 769.25(3).

But I doubt that this is the type of “fact” that the Supreme Court had in

mind in determining a defendant’s Sixth Amendment rights in Apprendi

and its progeny.

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MCL 769.25(6) does require the trial court to con-

duct a hearing before it may impose a sentence of life

without parole on a juvenile offender. And it further

requires that the trial court “consider” the factors

listed in Miller, as well as any other criteria the trial

court deems relevant to its decision. MCL 769.25(7)

then requires that “the court shall specify on the record

the aggravating and mitigating circumstances consid-

ered by the court and the court’s reasons supporting

the sentence imposed.” But nowhere does the statute

require the trial court to make any particular ﬁnding of

fact before it is authorized to impose a sentence of life

without parole. Rather, after conducting the hearing

and considering the evidence presented at the hearing

as well as the evidence presented at trial, the trial

court makes its decision and must state on the record

the reasons for that decision. As our Supreme Court

noted in Carp, this process allows for the “individual-

ized sentencing” procedures established by Miller.

This procedure also presumably allows for more mean-

ingful

appellate review of the sentence.

As for Miller itself, while MCL 769.25(6) directs the

trial court to “consider the factors listed in Miller v

Alabama,” the opinion itself hardly establishes a list of

factors that must be met before a sentence of life

without parole may be imposed. Rather, the opinion

speaks in general terms about why mandatory life

without parole for a juvenile offender violates the

Eighth Amendment and what must be considered

before imposing a sentence of life without parole. For

example, with respect to the former point, the Court

states that a mandatory life-without-parole sentence

for a juvenile

Carp, 496 Mich at 458-459.

Miller, 567 US at ___; 132 S Ct at 2468.

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precludes consideration of his chronological age and its

hallmark features—among them, immaturity, impetuos-

ity, and failure to appreciate risks and consequences. It

prevents taking into account the family and home envi-

ronment that surrounds him—and from which he cannot

usually extricate himself—no matter how brutal or dys-

functional. It neglects the circumstances of the homicide

offense, including the extent of his participation in the

conduct and the way familial and peer pressures may have

affected him.

As for the latter point, the Court directs the sentencing

court

to “take into account how children are different,

and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.”

But neither

Miller nor the statute sets forth any particular facts

that must be found before a sentence of life without

parole may be imposed. Rather, both merely require

the sentencing court to take into account the individual

circumstances of the juvenile offender before determin-

ing whether a sentence of life without parole is appro-

priate in each particular case. But this hardly estab-

lishes an “element of the crime” that must be

determined by a jury beyond a reasonable doubt.

Moreover, I note that an underlying issue in this

case—the

trial court’s failure to adopt any particular

burden of proof because none is set forth in the

statute—further supports the conclusion that the stat-

ute does not require any particular ﬁnding of fact.

Rather, I would suggest that the Legislature did not

include a burden of proof out of oversight or a desire to

leave it to the courts to fashion one, but because it was

unnecessary because the statute does not require any-

thing to be proved. Rather, it only requires consider-

ation of the relevant criteria to guide the trial court in

Id. at ___; 132 S Ct at 2469.

Apprendi, 530 US at 477.

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determining the appropriate individualized sentence

for the defendant before it.

The majority perpetuates its mistaken reading of

the statute when it states that the “Legislature condi-

tioned defendant’s life-without-parole sentence on two

things: (1) the prosecution’s ﬁling of a motion to impose

the sentence and (2) the trial court’s ﬁndings with

respect to the Miller factors and ‘any other criteria

relevant to its decision . . . .’ ”

While the ﬁrst point is

correct—the

prosecution must ﬁle a motion—the sec-

ond point, of course, is erroneous. The statute does not

require ﬁndings, but only that the trial court “consider”

the Miller “factors” and other relevant criteria. And

“consider” does not mean to make ﬁndings, but, rather,

“to think about carefully” and “to think about in order

to arrive at a judgment or decision” and “may suggest

giving thought to in order to reach a suitable conclu-

sion, opinion, or decision[.]” Merriam-Webster’s Colle-

giate Dictionary (11th ed), pp 265-266.

The majority rejects the argument in the Attorney

General’s amicus curiae brief that no additional facts

are needed to authorize a life-without-parole sentence

as follows:

However

, if, as the prosecution and the Attorney General

contend, the “maximum allowable punishment” at the

point of defendant’s conviction is life without parole, then

that sentence would offend the Constitution. Under

Miller, a mandatory default sentence for juveniles cannot

be life imprisonment without the possibility of parole.

Such a sentence would not be an individualized sentence

taking into account the factors enumerated in Miller.

But, of course, the statute does not provide for a

mandatory default

sentence of life without parole. And

Ante at 45, quoting MCL 769.25(6).

Ante at 49.

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it is the mandatory nature of the life-without-parole

statutes that offended the Court in Miller, resulting in

a holding that “the Eighth Amendment forbids a sen-

tencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.”

And MCL

769.25

commits no such offense. The majority also

latches onto a statement in a law review article by

Professor Sarah Russell that “Miller concludes that life

without parole is an inappropriate sentence for most

juveniles, and may be given only in rare circumstances

where certain facts are established. Thus, the factual

ﬁnding of ‘irreparable corruption’ aggravates—not

mitigates—the penalty.”

But, with all due respect to

Professor

Russell and the majority, Miller hardly es-

tablishes “irreparable corruption” as an aggravating

factor. Rather, Miller uses that term in a quotation

from Roper v Simmons, 543 US 551, 573; 125 S Ct

1183; 161 L Ed 2d 1 (2005), which noted the difﬁculty

in distinguishing between “transient immaturity” and

“irreparable corruption.”

It uses that point to support

its

statement that “[a]lthough we do not foreclose a

sentencer’s ability to make that judgment in homicide

cases, we require it to take into account how children

are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in

prison.”

This hardly establishes “irreparable corrup-

tion”

as an aggravating factor that must be found in

order for the Eighth Amendment to allow the imposi-

tion of a life-without-parole sentence on a juvenile

offender.

Miller, 567 US at ___; 132 S Ct at 2469.

Russell, Jury Sentencing and Juveniles: Eighth Amendment Limits

and Sixth Amendment Rights, 56 BC L Rev 553, 582 (2015).

See Miller, 567 US at ___; 132 S Ct at 2469.

Id. at ___; 132 S Ct at 2469.

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Finally, the majority conﬂates the observation made

in Carp

that MCL 769.25 creates a “default sentence”

of a term of years if the prosecutor fails to move for a

sentence of life without parole with a requirement that

there be additional ﬁndings in order to impose a

life-without-parole sentence. Indeed, the majority de-

scribes the Attorney General’s argument that a term-

of-years sentence is not the “default sentence” as a

“Herculean attempt at linguistic gymnastics.”

But

the

only linguistic gymnastics here, Herculean or oth-

erwise, are those of the majority. It attempts to create

a “default sentence” under the statute when none

exists once the prosecutor has moved for a life sen-

tence. And the majority repeatedly states that the

statute requires “additional ﬁndings” in order to au-

thorize a sentence of life without parole when no such

requirement is established under the statute.

In conclusion, there is no need to empanel a jury to

make any additional factual ﬁndings to authorize the

trial court to impose a sentence of life without parole.

Under MCL 769.25, the only factual ﬁnding necessary

to authorize the trial court to impose a sentence of life

without parole was that defendant’s involvement in

the killing of her father constituted ﬁrst-degree mur-

der. The jury concluded that it did. Thus, Apprendi and

the Sixth Amendment are satisﬁed and the trial court

possessed the statutory authority to impose a sentence

of life without parole, which it did. In fact, the trial

court has done so three times: ﬁrst, when it was

mandatory, then a second time on remand after the

decision in Miller, and then a third time on remand

after the decision in Carp and the passage of MCL

769.25. Perhaps the Lockridge majority says it best in

Carp, 496 Mich at 458.

Ante at 58.

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observing that “unrestrained judicial discretion within

a broad range is in; legislative constraints on that

discretion that increase a sentence (whether minimum

or maximum) beyond that authorized by the jury’s

verdict are out.”

The majority attempts to ﬁnd a

legislative

restraint on the trial court’s sentencing

discretion where none exists.

For these reasons, I would afﬁrm.

Lockridge, 498 Mich at 375.

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ROGERS v WCISEL

Docket No. 318395. Submitted March 11, 2015, at Lansing. Decided

August 25, 2015, at 9:00 a.m.

Shana Rogers brought an action in the Family Division of the Otsego

Circuit Court seeking child support from David A. Wcisel, who had

signed an acknowledgment of parentage when the child was born.

Several years later, when a DNA test determined that defendant

was not the child’s biological father, defendant moved the court to

revoke the acknowledgment of parentage under the Revocation of

Paternity Act (RPA), MCL 722.1431 et seq., relieve him of his

child-support obligations, and reimburse him for the child support

he had already paid, arguing that the acknowledgment of parent-

age had been based on a mistake of fact under what was then MCL

722.1437(2)(a), a provision that has since been recodiﬁed as MCL

722.1437(4)(a).After a bench trial, the court, Michael K. Cooper, J.,

denied defendant’s motion, ruling that defendant had not estab-

lished a mistake of fact because there was evidence to indicate that

he knew he might not have been the child’s father when he signed

the acknowledgment of parentage. The court denied defendant’s

motion for reconsideration or a new trial, his motion to disqualify

the trial judge, and his motion to stay the order pending appeal.

Defendant appealed.

The Court of Appeals held:

1. Unchallenged DNA test results alone were not sufﬁcient to

establish a mistake of fact under MCL 722.1437(4). The deﬁnition

of an “acknowledged father” in MCL 722.1433(1) does not include

any reference to a man’s being the biological father of a child; and

under MCL 722.1003, a man is considered to be the natural father

of a child born out of wedlock merely by joining the mother in

completing and signing an acknowledgement of parentage before

a notary. Biological evidence was a second and separate factor to

be considered in the revocation of an acknowledgment of parent-

age after the trial court ﬁnds the moving party’s afﬁdavit sufﬁ-

cient under MCL 722.1437(4).

2. The trial court clearly erred by not ﬁnding that defendant

had established a mistake of fact under MCL 722.1437(4). A

mistake of fact for purposes of the RPA is a misunderstanding,

2015] R

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misapprehension, error, fault, or ignorance of a material fact, or a

belief that a certain fact existed when in truth and in fact it did

not exist. The RPAdid not require that a party have no knowledge

that a fact might be untrue to create a mistake of fact; instead, it

was necessary to show only that the party had acted in part upon

an erroneous belief.

Reversed and remanded.

1. P

ARENT AND

HILD —

CKNOWLEDGMENTS OF

ARENTAGE —

EVOCATION OF

ATERNITY

CT —

ISTAKES OF

ACT —

DNA T

EST

ESULTS

Unchallenged DNA test results alone are not sufﬁcient to establish

a mistake of fact that would allow a party to bring an action to

revoke an acknowledgment of parentage under MCL

722.1437(4)(a); biological evidence is a second and separate factor

to be considered in the revocation of an acknowledgment of

parentage after the trial court ﬁnds the afﬁdavit required under

MCL 722.1437(4) to be sufﬁcient.

2. P

ARENT AND

HILD —

CKNOWLEDGMENTS OF

ARENTAGE —

EVOCATION OF

ATERNITY

CT —

ISTAKES OF

ACT

A mistake of fact for purposes of the Revocation of Paternity Act is

a misunderstanding, misapprehension, error, fault, or ignorance

of a material fact, or a belief that a certain fact existed when in

truth and in fact it did not exist; the Revocation of Paternity Act

does not require that a party have no knowledge that a fact might

be untrue to create a mistake of fact but requires only that the

party acted in part upon an erroneous belief (MCL

722.1437(4)(a)).

Michael T. Edwards for

defendant.

Before: W

ILDER

, P.J., and S

ERVITTO

and S

TEPHENS

, JJ.

TEPHENS

, J. Defendant appeals by delayed leave

granted the circuit court order denying his motion to

revoke his acknowledgment of parentage. We reverse

and remand.

I. BACKGROUND

Plaintiff, Shana J. Rogers, and defendant, David A.

Wcisel,

began an “off and on” dating relationship in

80 312 M

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2006. On March 12, 2007, plaintiff gave birth to MW.

Defendant was present for the delivery of MW and

signed an acknowledgment of parentage at the hospi-

tal.

Plaintiff and defendant continued to reside to-

gether

for approximately one year after MW’s birth

before they separated and defendant left the residence.

On July 3, 2008, plaintiff, through the Otsego County

Prosecutor’s Ofﬁce, ﬁled a complaint for child support

against defendant. Defendant ﬁled an answer that

admitted to allegations that he was the father of MW,

that he was not living with the child, that the child was

receiving public assistance, and that he was “of sufﬁ-

cient ability to provide support for the child[] and [had]

failed to provide support.” As a result, the parties

signed a consent order on August 19, 2008, granting

plaintiff sole legal and physical custody of MW, requir-

ing defendant to pay $2,670 toward plaintiff’s reason-

able and necessary conﬁnement expenses, and requir-

ing defendant to pay $442 a month in child support.

Sometime later defendant began to notice that MW

had “physical attributions” that were not his and asked

plaintiff for a DNA test. The DNA test results showed

that there was a zero percent chance that defendant

was MW’s biological father. Thereafter, on July 15,

2012, defendant ﬁled a motion requesting that the trial

court revoke the parties’ acknowledgment of parent-

age, relieve him of any child support obligations, and

reimburse him for the child support expenses he had

previously paid. Along with his motion, defendant

attached the DNA test and an afﬁdavit in which he

This Court was not provided with a copy of the acknowledgment of

parentage and the document is not a part of the trial court record. For

purposes of this opinion, the Court has assumed that the document was

duly signed and notarized and was properly executed and ﬁled in

keeping with the requirements of §§ 3 and 5 of the Acknowledgment of

Parentage Act, MCL 722.1001 et seq.

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averred that he signed the acknowledgment of parent-

age because plaintiff represented that he was the only

possible father and because he believed that to be true.

Plaintiff ﬁled an answer and brief in opposition to

defendant’s motion. Plaintiff asserted that she in-

formed defendant that there was a possibility that

another man was the father, and that defendant

merely “changed his mind” about being MW’s legal

father. Plaintiff requested that the trial court require

defendant to post $2,000 in bond to be paid to plaintiff

if his motion was denied and hold him in contempt for

committing perjury in his afﬁdavit. On August 20,

2012, the trial court ordered “[t]hat the Friend of the

Court shall hold all child support received on behalf of

Defendant until further order of the Court.”

On October 5, 2012, at the hearing on defendant’s

motion, defendant argued that his afﬁdavit and the

DNA test results were sufﬁcient to set aside the ac-

knowledgment of parentage. Plaintiff countered that

the trial court could apply the equitable parent doctrine

and require defendant to continue supporting the child.

The trial court accepted that the acknowledgment of

parentage was not correct, and plaintiff agreed that the

DNA test proved defendant was not MW’s biological

father. The court, however, would not revoke the ac-

knowledgment of parentage, ruling that defendant had

not stated facts that constituted a mistake of fact, newly

discovered evidence, fraud, misrepresentation, or du-

ress under MCL 722.1437(2).

The court explained that

after

complying with this provision, defendant needed

to show that revoking the acknowledgment would not

be against MW’s best interests. To address these con-

tested issues, a bench trial was held on November 29,

2012.

This provision has since been recodiﬁed as MCL 722.1437(4). See

2014 PA 368.

82 312 M

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At trial defendant testiﬁed that after he and plain-

tiff broke up, she informed him that she was pregnant.

Defendant believed he was the child’s biological father.

He stated that he was not aware that plaintiff had

sexual relations with another man, and that plaintiff

never indicated that he might not be the child’s father.

Defendant testiﬁed that he would not have signed an

acknowledgment of parentage if he knew that he was

not the child’s father. For comparison, defendant tes-

tiﬁed about a prior child born to plaintiff in 2006 who

plaintiff “swore 100 percent” was his. Defendant was

present for that child’s delivery and was asked to sign

the acknowledgment of parentage for that child, but

refused because he knew that child could not have been

his. Defendant explained that when he asked plaintiff

for a DNA test for MW, plaintiff took the position that

he was the father. Defendant testiﬁed that when he

texted plaintiff the results, which indicated that he

was not MW’s biological father, plaintiff responded

that she was “in shock,” “sorry,” and “always thought

that [MW] was [his].” Defendant read texts from plain-

tiff into the record in which plaintiff agreed that

defendant should be removed from MW’s birth certiﬁ-

cate and stop paying child support. He testiﬁed that

plaintiff sent him a text message that said, “ ‘You said

she was yours no matter what. That’s what hurts the

most.’ ”

Plaintiff testiﬁed that she became pregnant at the

“end of June, beginning of July” of 2006, and that

around that time she had sexual relations with defen-

dant and Justin Beacroft. She testiﬁed that she called

defendant to “let him know [she] was pregnant [and]

that there could be a 50/50 chance” that he was not the

child’s biological father. She testiﬁed that defendant

and Beacroft even joked about not knowing which one

of them was the father while they were drinking at a

2015] R

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golf course before the child was born. Defendant denied

both allegations. Plaintiff testiﬁed that the child’s due

date was changed during her pregnancy and that when

she told defendant about this “he looked at me with a

dumb look on his face like knowing that it probably

wasn’t his . . . .” However, plaintiff testiﬁed that she

thought the child would be defendant’s based on the

new due date. Plaintiff testiﬁed that after MW was

born, she and defendant only talked about the possi-

bility of her not being his when defendant heard

rumors from others in town. When asked what she

meant when she texted defendant, “I’m so sorry for

everything. I truly did believe she was yours,” plaintiff

answered, “Truly hoped that it was his. I probably

worded it wrong in how I spelt it and worded it. Like I

truly did believe it was his and truly hoped that it was

his when the DNA test came back.” She admitted

during cross-examination that she was surprised by

the DNA test results.

Beacroft testiﬁed that he lived with defendant and

plaintiff in 2006, and that he and plaintiff had sexual

relations during that time. He testiﬁed that in October

or November 2006, he told defendant “that things had

been going on between” him and plaintiff. Defendant

testiﬁed that it was in the summer of “2009, 2008” that

Beacroft told him that he had sexual relations with

plaintiff but that Beacroft did not specify when this

occurred. Beacroft testiﬁed that plaintiff called him

when she found out that she was pregnant and ex-

plained that she was not sure if it was defendant’s or

his. Beacroft testiﬁed that it was his understanding

that defendant was MW’s biological father.

Jami Rogers, plaintiff’s mother, testiﬁed that plain-

tiff told her “a month-and-a-half before [the child] was

born that defendant might not be the father.” Rogers

84 312 M

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testiﬁed that while plaintiff was in labor, she and

defendant talked and defendant stated “that he didn’t

think that he was going to be able to go through with

this” and that “he didn’t know if he could handle the

situation.” Defendant explained that his statements

were in reference to the delivery because he was afraid

that he would pass out. Defendant denied ever indicat-

ing to plaintiff’s mother that he thought the child

might not be his.

The court denied defendant’s motion on the record

at the end of the trial. The trial court believed that

defendant’s lack of contact with MW after defendant

and plaintiff separated “indicat[ed] that [defendant]

had some knowledge that perhaps he wasn’t the

father.” The court found the testimony of plaintiff,

Beacroft, and plaintiff’s mother to be more credible

and indicated that defendant had doubts as to

whether he was MW’s father. The trial court found

“most persuasive” plaintiff’s testimony that defen-

dant said “no matter what, she’s mine” which indi-

cated to the court that “there was a question out there

as to paternity.” Accordingly, the trial court concluded

that plaintiff’s “version of events [was] more believ-

able” and found that defendant had not met his

burden in proving a mistake of fact.

On January 25, 2013, defendant ﬁled a motion for a

new trial or reconsideration under MCR 2.611(A)(1)(a),

(e), and (g) and MCR 2.612(C)(1)(f); a motion to dis-

qualify the trial judge under MCR 2.003(C)(1)(a) and

(b); and a motion to stay the order pending appeal under

MCR 2.614. After hearing oral argument and allowing

the parties to submit briefs regarding the application

of the holding in Bay Co Prosecutor v Nugent, 276 Mich

App 183; 740 NW2d 678 (2007), that the presenta-

tion of unchallenged DNA evidence is sufﬁcient to

2015] R

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establish a mistake of fact, the trial court denied

defendant’s motion for a new trial and for disqualiﬁca-

tion.

II. REVOCATION OF ACKNOWLEDGMENT OF PARENTAGE

Defendant argues that the trial court erred by

denying his motion to revoke his acknowledgment of

parentage when he set forth sufﬁcient facts to demon-

strate a mistake of fact. We agree.

This case arises under the Revocation of Paternity

Act (RPA), MCL 722.1431 et seq.

“When reviewing a

decision

related to the Revocation of Paternity Act, this

Court reviews the trial court’s factual ﬁndings, if any,

for clear error.” Glaubius v Glaubius, 306 Mich App

157, 164; 855 NW2d 221 (2014). “ ‘The trial court has

committed clear error when this Court is deﬁnitely and

ﬁrmly convinced that it made a mistake.’ ” Parks v

Parks, 304 Mich App 232, 237; 850 NW2d 595 (2014)

(citation omitted). The proper interpretation and ap-

plication of a statute is a question of law, which this

Court reviews de novo. Coblentz v Novi, 475 Mich 558,

567; 719 NW2d 73 (2006).

The principles of statutory interpretation are well

established. Prins v Mich State Police, 291 Mich App

586, 589; 805 NW2d 619 (2011). The goal of statutory

interpretation is to give effect to the Legislature’s

intent. Bay Co Prosecutor, 276 Mich App at 187. If a

statute’s language is clear, this Court assumes that the

Legislature intended its plain meaning and enforces it

accordingly. Id. In doing so, “every word should be

given meaning, and we should avoid a construction

The version in effect at the time of the deciding of this case was 2012

PA 159. All references to the statute in this case are to the applicable

2012 version. The statute has since been amended by 2014 PA 368.

86 312 M

ICH

79 [Aug

that would render any part of the statute surplusage or

nugatory.” Id. (citations and quotation marks omitted).

“While generally words and phrases used in a statute

should be assigned their primary and generally under-

stood meaning, words and phrases which have a tech-

nical or special meaning in the law should be construed

according to that technical or special meaning[.]” Mich

Mut Ins Co v Farm Bureau Ins Group, 183 Mich App

626, 631; 455 NW2d 352 (1990) (citation and quotation

marks omitted). Statutory language should be con-

strued reasonably, keeping in mind the purpose of the

act, and to avoid absurd results. Draprop Corp v City of

Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787

(2001); People v Tennyson, 487 Mich 730, 741; 790

NW2d 354 (2010).

“[I]n order to revoke an acknowledgment of parent-

age, an individual must ﬁle a claim as provided under

the [RPA].” MCL 722.1007(h). MCL 722.1437 governs

an action for the revocation of an acknowledgment of

parentage. MCL 722.1437(1) of the RPA provides that

“[t]he mother, the acknowledged father, an alleged fa-

ther, or a prosecuting attorney” may ﬁle an action for

the revocation of an acknowledgment of parentage

within three years after the child’s birth or within one

year after the acknowledgment of parentage is signed,

whichever is later. These timing requirements, however,

do not apply to actions “ﬁled on or before 1 year after the

effective date of this act,” which was June 12, 2012.

MCL 722.1437(1).

Defendant ﬁled his motion to revoke

he acknowledgment of parentage on July 15, 2012.

MCL 722.1437(2)

provides:

This provision has since been amended. 2014 PA 368.

As of March 17, 2015, this section will be at MCL 722.1437(4). 2014

PA 368.

2015] R

OGERS V

CISEL

An action for revocation under this section shall be

supported by an afﬁdavit signed by the person ﬁling the

action that states facts that constitute 1 of the following:

(a) Mistake of fact.

(b) Newly discovered evidence that by due diligence

could not have been found before the acknowledgment was

signed.

(d) Misrepresentation or misconduct.

(e) Duress in signing the acknowledgment.

Once a court determines that the afﬁdavit is sufﬁcient,

the

court is then required to “order blood or tissue

typing or DNA identiﬁcation” under MCL 722.1443.

MCL 722.1437(3). “The person ﬁling the action has the

burden of proving, by clear and convincing evidence,

that the acknowledged father is not the father of the

child.” MCL 722.1437(3). An “acknowledged father” is

“a man who has afﬁrmatively held himself out to be the

child’s father by executing an acknowledgment of par-

entage under the acknowledgment of parentage act[.]”

MCL 722.1433(a). In order to have prevailed in having

the acknowledgment of parentage revoked the defen-

dant must have submitted (1) a signed afﬁdavit con-

taining facts sufﬁcient, in this case, to make up a claim

of mistake of fact; and (2) the results from blood, tissue,

or DNA testing. MCL 722.1437(3). This evidence,

taken together, must have clearly and convincingly

proved that defendant was not the father of the child.

MCL 722.1437(3).

In this case, the court received the DNA test results

at the same time it received defendant’s afﬁdavit.

Neither plaintiff nor the trial court refuted the validity

of the DNA results. The bench trial was held to test the

sufﬁciency of the afﬁdavit. Both the trial court’s oral

opinion after trial and its written opinion on reconsid-

88 312 M

ICH

79 [Aug

eration denied defendant relief for failure to establish

a mistake of fact.

In its oral opinion, the trial court

stated that the testimonial evidence presented at trial

established that defendant “had some knowledge that

perhaps he wasn’t the father.” The court relied on

several items of proof in reaching its conclusion. The

court ﬁrst highlighted the fact that defendant was not

involved in MW’s life after his relationship with plain-

tiff ended. The court also credited the statements

attributed to defendant by his mother and plaintiff.

Defendant’s mother testiﬁed that defendant said, “I

can’t go through with this.” Plaintiff testiﬁed that

defendant said, “no matter what, she’s mine,” and that

defendant did not seek a DNA test earlier because he

said he “didn’t want to know then.” In its opinion on

defendant’s motion for reconsideration, the court ruled

that “DNA test results could not create a mistake of

fact where Defendant was already doubtful of his

biological fatherhood status.”

Our Supreme Court has held “that the parties’ knowl-

edge of the possibility that respondent was not the

biological father of the child” is insufﬁcient to demon-

strate fraud or misrepresentation.

However, we do not

have

the same clarity for the instance of mistake of

fact.

In the case of Bay Co Prosecutor, 276 Mich App at

189, a panel of this Court concluded that the trial court

erred by holding that the plaintiff had failed to

establish a mistake of fact. Bay Co Prosecutor was

decided under MCL 722.1011, which governed revoca-

The trial court explained that because it did not ﬁnd a mistake of

fact, there was no need to consider the equities of the case that would

include how the child’s best interests would be affected by revocation of

the acknowledgment.

In re Moiles, 495 Mich 944, 945 (2014).

2015] R

OGERS V

CISEL

tions of paternity until it was repealed and replaced by

MCL 722.1437. Id.; 2012 PA 159; 2012 PA 161. In that

case, the defendant, despite having had a vasectomy

years earlier, believed that he had fathered a woman’s

child.

Id.

at 185. Based on that belief, the defendant

signed an acknowledgment of parentage. Months later

it was learned that defendant’s fourteen-year-old son,

not defendant, impregnated the woman. Id. The Bay

County prosecutor ﬁled a complaint to revoke the

defendant’s acknowledgment of parentage. Id. at 185-

186. The trial court held that “[b]ecause defendant

intended to be the child’s father when he signed the

afﬁdavit of parentage, and because he intended to

remain as the father after he learned that he was not

the biological father, there was no mistake of fact that

would justify revocation of defendant’s acknowledg-

ment of parentage.” Id. at 186-187. A panel of this

Court reversed, reasoning:

Plaintiff established that when defendant signed the afﬁ-

avit of parentage, defendant believed that he was the

biological father of the child. Plaintiff also established that

a DNA test later determined that defendant’s son, and not

defendant, was the biological father. Presentation of the

unchallenged DNA evidence was sufﬁcient to establish a

mistake of fact. See Sinicropi [v Mazurek, 273 Mich App

149, 176 n 14; 729 NW2d 256 (2006)]. Regardless of

whether defendant intended to be the father when he

signed the afﬁdavit of parentage, and whether he intended

to remain the legal father after he learned that he was not

the child’s biological father, the evidence established that

defendant’s decision to acknowledge paternity in this case

was based, at least in part, on a mistaken belief that he

The defendant’s belief that he could have fathered a child after a

vasectomy was based on defendant’s prior girlfriend also having

claimed that he impregnated her after his vasectomy before she

miscarried.

90 312 M

ICH

79 [Aug

was, in fact, the biological father. [Bay Co Prosecutor, 276

Mich App at 190.]

In Bay Co Prosecutor, the Court found the defendant’s

belief that he was the biological father at the time of

signing the acknowledgment of parentage as well as

the unchallenged DNA evidence to be sufﬁcient to

establish a mistake of fact, and that defendant’s inten-

tion to be and remain the child’s father regardless of

biology irrelevant.

In Sinicropi, 273 Mich App at 176 n 14, a panel of

this Court afﬁrmed the trial court’s ﬁnding of a mis-

take of fact. Sinicropi was also decided under MCL

722.1011, the predecessor statute to MCL 722.1437. Id.

at 176. In Sinicropi, Holly Mazurek had dated Martin

Powers, then brieﬂy dated Gregory Sinicropi, and then

resumed her relationship with Powers. Id. at 153.

During Mazurek’s brief relationship with Sinicropi, a

child was conceived. Powers believed that he fathered

the child and signed the acknowledgment of parentage.

Powers and Mazurek again separated and in 2004

were involved in a custody dispute over the child. It

was during that time that DNA testing revealed that

Sinicropi was the child’s biological father. Id. at

153-154. The trial court denied Mazurek’s request to

revoke Powers’s acknowledgment of parentage,

granted Powers physical custody, determined that

granting custody to Sinicropi would not be in the

child’s best interests, and ordered Mazurek and Sini-

cropi to pay child support to Powers. Id. at 153-155.

On appeal, a panel of this Court remanded the case

to the trial court for a consideration of the equities of

the case. Id. at 175-176. The Court did note, however,

that on remand “[t]here [was] no need to review

whether there was a mistake of fact regarding pater-

nity or whether there [was] clear and convincing evi-

2015] R

OGERS V

CISEL

dence that Powers [was] not the biological father given

the unchallenged DNA evidence and the parties’ agree-

ment that Sinicropi fathered the child.” Id. at 176 n 14.

In Sinicropi, the Court found the unchallenged DNA

evidence and the fact that no one disputed Sinicropi

was the child’s biological father to be sufﬁcient evi-

dence to establish a mistake of fact.

In the case of Helton v Beaman, 304 Mich App 97,

105; 850 NW2d 515 (2014), afﬁrmed in result 497 Mich

1001 (2015), a panel of this Court, under the same

version of the RPA at issue here, concluded that a

mistake of fact existed as required to proceed with

revocation of an acknowledgment of parentage. Id. at

105 (opinion by O’C

ONNELL

, J.), 119 (opinion by K. F.

ELLY

, J.), and 136 (opinion by S

AWYER

, J.). In Helton,

the defendants, Lisa and Douglas Beaman, were in a

relationship for several years. Id. at 100. During a brief

separation in the fall of 2002, Lisa had sexual relations

with the plaintiff, Matthew Helton. Lisa gave birth to

a child in June 2003, before she and Douglas were

married. They both signed an acknowledgment of

parentage at the hospital naming Douglas as the

child’s father. Id. Although the Beamans raised the

child as part of their family, they allowed Helton to

interact with the child “periodically.” Id. at 101. When

the child was two months of age, Helton requested a

DNA test and the Beamans agreed. Because Helton

initially failed to pay for the DNA test, the test results,

which conﬁrmed that Helton was the child’s biological

father, were not obtained until 2006. Four years later,

Helton ﬁled a complaint seeking an order of ﬁliation

and parenting time, but it was dismissed by stipula-

tion. Approximately two years after that, Helton

brought suit under the RPA and requested summary

disposition in his favor based solely on the DNA test

results. Id. The trial court denied Helton’s motion for

92 312 M

ICH

79 [Aug

summary disposition because “the DNA results stand-

ing alone were insufﬁcient to establish by clear and

convincing evidence that defendants’ acknowledgment

of parentage should be set aside.” Id. at 102. The trial

court then held a bench trial and, after ﬁnding Lisa’s

testimony more credible than Helton’s, concluded that

it was in the child’s best interests to deny Helton’s

request to revoke the Beamans’ acknowledgment of

parentage. Id. The trial court speciﬁcally acknowl-

edged the fact that Helton had no parental relationship

with the child. Id.

On appeal, this Court concluded that

Helton’s assertion of mistake of fact is a sufﬁcient basis to

proceed

with the revocation action. The DNA evidence

supports Helton’s attestation that he is the child’s biologi-

cal father, and the trial testimony indicates that defen-

dants mistakenly believed that Douglas was the child’s

biological father. When a defendant’s decision to sign an

afﬁdavit of parentage was based in part on a mistaken

belief that he is the child’s biological father, that mistaken

belief constitutes a mistake of fact sufﬁcient to proceed

with a revocation action. [Id. at 105 (opinion by O’C

ONNELL

J.); see also id. at 119 (opinion by K. F. K

ELLY

, J.) and 136

(opinion by S

AWYER

, J.).]

In Helton, the Court found the DNA evidence and

Douglas’ mistaken belief that he was the father at the

time of signing the acknowledgment to be sufﬁcient

evidence to establish a mistake of fact.

Defendant heavily relies on Bay Co Prosecutor and

Sinicropi to contend that his unchallenged DNA test

results alone are sufﬁcient to establish a mistake

The Supreme Court granted leave to appeal and afﬁrmed the result

and portions of the reasoning with respect to whether the trial court was

required to determine the best interest of the child. The discussions

regarding mistakes of fact were not addressed. Helton, 497 Mich at

1001.

2015] R

OGERS V

CISEL

of fact. We decline to adopt defendant’s position that

unchallenged DNA evidence alone is sufﬁcient to es-

tablish a mistake of fact under the RPA. The holdings

in Bay Co Prosecutor and Sinicropi each required

something in addition to DNA evidence to ﬁnd a

mistake of fact. In Bay Co Prosecutor, the Court found

that the additional fact that defendant had some belief

that he was the biological father at the time of signing

the acknowledgment of parentage created the mistake

of fact. It is noteworthy that the defendant in Bay Co

Prosecutor had a scientiﬁc reason to doubt his biologi-

cal connection but still had some thought or, perhaps,

hope that he was the biological parent. See Bay Co

Prosecutor, 276 Mich App at 190. In Sinicropi, the

Court relied on the parties’ agreement after the fact

that plaintiff fathered the child to support the mistake

of fact. Sinicropi, 273 Mich App at 176 n 14. In Helton,

Douglas, like the defendant in Bay Co Prosecutor, held

the mistaken belief that he was the biological father at

the time he signed the acknowledgment. Helton, 304

Mich App at 105.

Simply put, biology does not control either an ac-

knowledgment of parentage or its revocation. Our

Supreme Court has held that “an acknowledging fa-

ther is not required to attest that he is the biological

father.”

The deﬁnition of an “acknowledged father”

does

not include any reference to a man being the

biological father of a child. MCL 722.1433(1). A man is

considered to be the natural father of a child born out

of wedlock merely by joining the mother in completing

and signing an acknowledgment of parentage before a

notary. MCL 722.1003(1), (2). The undisputed fact that

a man is not a child’s biological father, as proven by

clear and convincing evidence through blood, tissue, or

In re Moiles, 495 Mich at 945.

94 312 M

ICH

79 [Aug

DNA, does not establish a mistake of fact. Biological

evidence is rather a second and separate factor to be

considered in the revocation of an acknowledgment of

parentage after the trial court ﬁnds the moving party’s

afﬁdavit sufﬁcient under MCL 722.1437(2).

There is no deﬁnition of “mistake of fact” in the RPA

the Acknowledgment of Parentage Act, MCL

722.1001 et seq. However, the Legislature is presumed

to be aware of existing law when drafting new laws.

AFSCME v Detroit, 267 Mich App 255, 269; 704 NW2d

712 (2005). Because there is no indication in the

language of the RPA that the Legislature intended to

alter the meaning of the term “mistake of fact” as

understood in our law, it is appropriate to look to the

deﬁnition used in other cases. In Montgomery Ward

& Co v Williams, 330 Mich 275, 279; 47 NW2d 607

(1951), a mistake of fact was deﬁned as “a misunder-

standing, misapprehension, error, fault, or ignorance

of a material fact, a belief that a certain fact exists

when in truth and in fact it does not exist.” Since

Montgomery Ward was decided in 1951, this Court has

consistently cited the same deﬁnition. See Sentry Ins v

ClaimsCo Int’l, Inc, 239 Mich App 443, 447; 608 NW2d

519 (2000); Bay Co Prosecutor, 276 Mich App at 189-

190; In re Luin Gyle Atterberry Revocable Trust, un-

published opinion per curiam of the Court of Appeals,

issued October 11, 2012 (Docket No. 307850); and

Zigmond Chiropractic, PC v AAA Mich, unpublished

opinion per curiam of the Court of Appeals, issued July

25, 2013 (Docket Nos. 300643, 304756, 305662,

305741, 306048, 306455, and 306790).

See Helton, 304 Mich App at 103 n 4 (opinion by O’C

ONNELL

, J.) (“We

address the afﬁdavit because a determination of the sufﬁciency of the

afﬁdavit is a requisite step in the analysis prescribed by MCL

722.1437.”).

2015] R

OGERS V

CISEL

Applying the deﬁnition from Montgomery Ward, we

conclude that the trial court committed clear error by

not ﬁnding that defendant had established a mistake

of fact. A mistake of fact is “a belief that a certain fact

exists when in truth and in fact it does not exist.”

Montgomery Ward, 330 Mich at 279. The trial court

found that defendant had doubt about whether he was

the biological father when he signed the acknowledg-

ment of parentage and that, therefore, proofs on mis-

take of fact failed. The law, however, does not require

that a party have no knowledge that a fact might be

untrue to create a mistake of fact. Instead, the party

must act in part upon an erroneous belief. The trial

court speciﬁcally rejected the idea that a mistake of

fact could be found when a belief was only partial or

when doubt about that belief was suspect. However,

Helton and Bay Co Prosecutor are inapposite.

We conclude that evidence that a party acted in part

on an erroneous belief is sufﬁcient under MCL

722.1437(2) to establish a mistake of fact. Accordingly,

we reverse the trial court’s order denying defendant’s

motion to revoke his acknowledgment of parentage and

remand this matter to the trial court for proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

ILDER

, P.J., and S

ERVITTO

, J., concurred with

TEPHENS

, J.

96 312 M

ICH

79 [Aug

DOE v DEPARTMENT OF CORRECTIONS

Docket Nos. 321013 and 321756. Submitted June 3, 2015, at Lansing.

Decided August 25, 2015, at 9:05 a.m. Leave to appeal sought.

Seven men who had been incarcerated in adult prisons as juveniles,

each identiﬁed as John Doe, brought an action in the Washtenaw

Circuit Court against the Department of Corrections, the Gover-

nor, and others, claiming that they had been subjected to sexual

violence and harassment by adult male prisoners and female

prison guards in violation of the Elliott-Larsen Civil Rights Act

(ELCRA), MCL 37.2101 et seq., which prohibits discrimination in

public services. Defendants moved for summary disposition,

arguing that plaintiffs had failed to comply with MCL

600.5307(2), a provision of the prison litigation reform act

(PLRA), MCL 600.5501 et seq., which requires a prisoner bringing

a civil action concerning prison conditions to disclose the number

of civil actions and appeals that the prisoner previously initiated.

Defendants also argued that plaintiffs had failed to state a claim

on which relief could be granted under MCR 2.116(C)(8) because

the ELCRA had been amended in 1999 to exclude prisons from

the deﬁnition of “public service” for purposes of the act. The court,

Carol Kuhnke, J., denied defendants’ motion, ruling that the

disclosure requirements in MCL 600.5507 applied only to indi-

gent prisoners and, in a separate order, that the statutory

provision excluding prisons as a public service under ELCRA,

MCL 37.2301(b), was an unconstitutional violation of prisoners’

right to equal protection of the law. Defendants sought leave to

appeal the PLRA order in Docket No. 321013 and the ELCRA

order in Docket No. 321756. The Court of Appeals denied the

applications, and the Supreme Court, in lieu of granting leave to

appeal, remanded to the Court of Appeals for consideration as on

leave granted. 497 Mich 881 (2014).

The Court of Appeals held:

1. In Docket No. 321013, the trial court erred by denying

defendants’ motion for summary disposition because plaintiffs

failed to comply with the requirement in MCL 600.5507(2) that a

prisoner who brings a civil action concerning prison conditions

must disclose the number of civil actions and appeals that the

2015] D

OE V

’

T OF

ORRECTIONS

prisoner has previously initiated. MCL 600.5507(3) provides that

the court must dismiss the action if it ﬁnds that the prisoner

failed to comply with the disclosure requirements of subsection

(2). Although the complaint indicated that two other civil actions

between these parties arising out of the events alleged in the

complaint had been ﬁled, this disclosure was ambiguous regard-

ing the identities of the parties and did not indicate whether

those were the only civil actions that plaintiffs had initiated.

Further, although MCL 600.5507(1) pertains to the limitation for

when a prisoner may claim indigency in a civil action, there is no

language in MCL 600.5507(2) or MCL 600.5507(3) limiting their

requirements to prisoners who are indigent. Under MCL 8.4b, the

fact that the provision’s catch line makes reference to indigency

cannot be used to construe the section more broadly or narrowly

than the text would indicate. Contrary to plaintiffs’ argument,

MCL 600.5507(2) is not the mechanism for determining whether

a prisoner has brought three or more civil actions that have been

dismissed as frivolous, thereby preventing them from claiming

indigency under MCL 600.5507(1), because that determination is

made according to the procedure set forth in MCL 600.5529.

Neither the statute’s legislative history nor the absurd-results

rule compels a different conclusion. Because MCL 600.5507(3)

states that a court shall dismiss a civil action if a prisoner failed

to comply with MCL 600.5507(2), plaintiffs were not entitled to

amend their complaint.

2. In Docket No. 321756, the trial court erred by denying

defendants’ motion for summary disposition regarding plaintiffs’

claims under the ELCRA. MCL 37.2302(a) provides that except

where permitted by law, a person shall not deny an individual the

full and equal enjoyment of the goods, services, facilities, privi-

leges, advantages, or accommodations of a place of public accom-

modation or public service because of religion, race, color, national

origin, age, sex, or marital status. However, 1999 PA 202 amended

the deﬁnition of “public service” to indicate that it does not include

a state or county correctional facility with respect to actions and

decisions regarding an individual serving a sentence of imprison-

ment. This provision bars plaintiffs’ claim. Although a federal

district court opinion ruled that this exclusion was an unconstitu-

tional violation of equal protection under the law, that opinion was

not binding, did not render the provision void ab initio, and did not

preclude defendants by collateral estoppel from arguing that 1999

PA 202 was constitutional. The amendment was not facially

unconstitutional as violative of equal protection because prisoners

are not a suspect class, the amendment does not infringe a

protected fundamental right, prisoners and nonprisoners are not

98 312

ICH

97 [Aug

similarly situated, and the amendment was rationally related to

the legitimate governmental interest of deterring meritless law-

suits and preserving scarce public resources.

Reversed and remanded for further proceedings.

Judge B

ECKERING

, concurring in part and dissenting in part,

concurred with regard to the issue of whether dismissal was

required under MCL 600.5507(3) because of binding existing

precedent interpreting the PLRA, but respectfully dissented in all

other respects. She would have allowed plaintiffs to ﬁle an

amended complaint in compliance with MCL 600.5507(2) had she

not been bound by precedent. She would have afﬁrmed the trial

court’s declaration that the 1999 amendment of the ELCRA was

unconstitutional on the alternative ground that the statutory

amendment contravened the clear and express directive given to

the Legislature in Const 1963, art 1, § 2 to protect the civil rights

of all persons. She would also have held that the amendment was

unconstitutional because it failed the rational-basis test. Finally,

she would have held that plaintiffs pleaded sufﬁcient claims to

survive a motion for summary disposition under MCR 2.116(C)(8).

1. P

RISONS AND

RISONERS —

IVIL

CTIONS —

ISCLOSURE OF

RIOR

IVIL

CTIONS AND

PPEALS —

NDIGENCY

The requirement in MCL 600.5507(2) that a prisoner who brings a

civil action concerning prison conditions must disclose the num-

ber of civil actions and appeals that the prisoner has previously

initiated is not limited to prisoners who are indigent.

2. P

RISONS AND

RISONERS —

IVIL

CTIONS —

ISCLOSURE OF

RIOR

IVIL

CTIONS AND

PPEALS —

ISMISSALS —

EMEDIES

MCL 600.5507(3) requires a court to dismiss a civil action brought

by a prisoner concerning prison conditions if the prisoner failed to

disclose under MCL 600.5507(2) the number of civil actions and

appeals that the prisoner has previously initiated; a prisoner who

fails to do so is not entitled to amend his or her complaint to

comply with MCL 600.5507(2).

3. C

ONSTITUTIONAL

AW —

QUAL

ROTECTION —

RISONS AND

RISONERS —

IVIL

IGHTS

CT —

EFINITIONS —

UBLIC

ERVICE

The amendment of the deﬁnition of “public service” in Michigan’s

Civil Rights Act, MCL 37.2101 et seq., to exclude a state or county

correctional facility with respect to actions and decisions regard-

ing an individual serving a sentence of imprisonment was not

facially unconstitutional as violative of the right to equal protec-

tion (US Const, Am XIV; Const 1963, art 1, § 2; 1999 PA 202).

2015] D

OE V

’

T OF

ORRECTIONS

Deborah LaBelle, Anlyn Addis, Richard A. Soble,

Jennifer B. Salvatore, Nakisha Chaney, Edward

Macey, Michael L. Pitt, Peggy Goldberg Pitt, and Cary

S. McGehee for plaintiffs in Docket No. 321013.

Pitt McGehee Palmer & Rivers, PC (by Michael L.

Pitt, Beth M. Rivers, Peggy Goldberg Pitt, and Cary S.

McGehee), Deborah LaBelle and Anlyn Addis, and

Jennifer B. Salvatore, Nakisha Chaney, and Edward

Macey for plaintiffs in Docket No. 321756.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, Ann Sherman, Assistant Solicitor Gen-

eral, and Mark E. Donnelly, Michael F. Murphy, Chris-

tina M. Grossi, and Heather S. Meingast, Assistant

Attorneys General, for defendants in Docket No.

321013.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, B. Eric Restuccia, Deputy Solicitor

General, and Mark E. Donnelly and Heather S. Mein-

gast, Assistant Attorneys General, for defendants in

Docket No. 321756.

Before: R

IORDAN

, P.J., and D

ONOFRIO

and B

ECKERING

JJ.

IORDAN

, P.J. Defendants, various governmental en-

tities and individuals including the Department of

Corrections and the Governor, originally sought leave

to appeal the trial court orders denying their motions

for summary disposition in this action initiated by

plaintiffs, who are male prisoners.

In Docket No. 321013, defendants sought to appeal

the trial court order denying their motion for summary

100 312 M

ICH

97 [Aug

PINION OF THE

OURT

disposition based on plaintiffs’ failure to comply with

the prison litigation reform act (PLRA), MCL 600.5501

et seq. In Docket No. 321756, defendants sought to

appeal the trial court order denying their motion for

summary disposition based on the prisoners’ substan-

tive discrimination claims.

This Court initially denied defendants’ applications

for leave to appeal. The Supreme Court, in lieu of

granting leave to appeal, remanded the case to this

Court for consideration as on leave granted. Doe v

Dep’t of Corrections, 497 Mich 881 (2014). Having

reviewed the issues raised on appeal, we reverse and

remand for proceedings consistent with this opinion.

I. BACKGROUND

Plaintiffs are seven unidentiﬁed males who became

imprisoned

while under the age of 18 in Department of

Corrections (DOC) facilities. Plaintiffs sued under the

Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101

et seq., claiming that they had been subjected to sexual

violence and harassment by adult male prisoners and

female prison guards.

Defendants eventually moved for summary disposi-

tion on several grounds. First, they contended that

plaintiffs failed to comply with MCL 600.5507(2), a

provision of the PLRA requiring that a prisoner ﬁling a

lawsuit concerning prison conditions disclose the num-

ber of civil actions and appeals the prisoner previously

initiated. Defendants alleged that plaintiffs’ disclosure

was insufﬁcient. Defendants further argued that, be-

cause MCL 600.5507(3) provides that a court “shall”

dismiss any action if the prisoner fails to comply with

Subsection (2), plaintiffs’ complaint had to be dismissed

without prejudice. MCR 2.116(C)(4). Plaintiffs coun-

tered that MCL 600.5507 only applied to complaints

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ﬁled on behalf of indigent prisoners, which did not

include the prisoners in this case. The trial court

ultimately denied defendants’ motion for summary

disposition.

Defendants also moved for summary disposition

under MCR 2.116(C)(8), contending that plaintiffs

failed to state a claim on which relief could be granted

because the plain language of the ELCRA, as

amended, provides that a “public service” does not

include a state or county correctional facility with

respect to prisoners. Defendants further argued that

the amendment did not violate equal-protection prin-

ciples. Plaintiffs vigorously disputed this point, argu-

ing that the amendment was unconstitutional be-

cause it violated plaintiffs’ rights to equal protection

of the law, with no legitimate justiﬁcation. They also

highlighted that a federal district court case had

found the amendment to be unconstitutional, and

that decision was binding on the court.

The crux of plaintiffs’ equal-protection argument at

this juncture is not based on the allegation that their

fundamental right to be free from sexual assault is

being violated. Rather, plaintiffs’ contention is that the

ELCRA violates their right to equal protection because

it prohibits them from ﬁling a lawsuit based on their

status as prisoners, regardless of the type of claim they

seek to assert.

The trial court ultimately denied defendants’ motion

for summary disposition. It ruled that MCL 37.2301(b),

which excluded prisons as places of public services

under the ELCRA, was unconstitutional because it

violated the Equal Protection Clauses of the Michigan

and United States Constitutions. Defendants now ap-

peal.

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II. STANDARDS OF REVIEW

“The interpretation and application of statutes is a

question of law that we review de novo.” Ewin v

Burnham, 272 Mich App 253, 255; 728 NW2d 463

(2006).

We also review constitutional issues de novo.

Mahaffey v Attorney General, 222 Mich App 325, 334;

564 NW2d 104 (1997). “Statutes are presumed to be

constitutional, and we have a duty to construe a

statute as constitutional unless its unconstitutionality

is clearly apparent.” Cadillac Mayor v Blackburn, 306

Mich App 512, 516; 857 NW2d 529 (2014) (quotation

marks and citation omitted). Additionally, we review

issues concerning the application of collateral estoppel

de novo. Barrow v Pritchard, 235 Mich App 478, 480;

597 NW2d 853 (1999).

III. PRISON LITIGATION REFORM ACT

DISCLOSURE

The PLRA “sets forth certain requirements that

apply

when a prisoner brings a civil action concerning

prison conditions.” Anderson v Myers, 268 Mich App

713, 715; 709 NW2d 171 (2005) (quotation marks

omitted). A “prisoner” is deﬁned as “a person subject to

incarceration, detention, or admission to a prison who

is accused of, convicted of, sentenced for, or adjudicated

delinquent for violations of state or local law . . . .”

MCL 600.5531(e). A “civil action concerning prison

To the extent that the parties did not raise the issue of plaintiffs’

actual compliance with MCL 600.5507(2), we nevertheless address this

issue because all the facts necessary for a decision regarding this section

are before us and resolving the issue primarily is a question of law.

Nuculovic v Hill, 287 Mich App 58, 63; 783 NW2d 124 (2010). The same

is true of the trial court’s failure to fully articulate its ﬁnding regarding

whether it was bound by a federal district court opinion.

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conditions” is deﬁned as “any civil proceeding seeking

damages or equitable relief arising with respect to any

conditions of conﬁnement or the effects of an act or

omission of government ofﬁcials, employees, or agents

in the performance of their duties . . . .” MCL

600.5531(a). Plaintiffs do not dispute that each one of

them is a “prisoner” and that the present case is a “civil

action concerning prison conditions.” Nor do the par-

ties dispute that plaintiffs are not indigent.

MCL 600.5507, the provision in dispute, provides:

(1) A prisoner shall not claim indigency under [MCL

600.2963]

[2]

a civil action concerning prison conditions

or an appeal of a judgment in a civil action concerning

prison conditions or be allowed legal representation by an

attorney who is directly or indirectly compensated for his

or her services in whole or in part by state funds if the

prisoner has, on 3 or more prior occasions, while incarcer-

ated or detained in any prison, brought an action or appeal

in a court of this state that was dismissed on the grounds

that it was frivolous, unless the prisoner has suffered

serious physical injury or is under imminent danger of

suffering serious physical injury or has suffered or is

under imminent danger of suffering conduct prohibited

under . . . MCL 750.520b, 750.520c, 750.520d, 750.520e,

and 750.520g.

(2) A prisoner who brings a civil action or appeals a

judgment concerning prison conditions shall, upon com-

mencement of the action or initiation of the appeal,

disclose the number of civil actions and appeals that the

prisoner has previously initiated.

(3) The court shall dismiss a civil action or appeal at

any time, regardless of any ﬁling fee that may have been

paid, if the court ﬁnds any of the following:

(a) The prisoner’s claim of injury or of imminent danger

under subsection (1) is false.

MCL 600.2963 deals more speciﬁcally with prisoners initiating civil

suits.

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(b) The prisoner fails to comply with the disclosure

requirements of subsection (2).

The primary goal of statutory interpretation is to

ascertain and give effect to the intent of the Legisla-

ture. Mich Ed Ass’n v Secretary of State (On Rehear-

ing), 489 Mich 194, 217; 801 NW2d 35 (2011). “The ﬁrst

criterion in determining intent is the language of the

statute. If the statutory language is clear and unam-

biguous, judicial construction is neither required nor

permitted, and courts must apply the statute as writ-

ten.” Tevis v Amex Assurance Co, 283 Mich App 76, 81;

770 NW2d 16 (2009). “Courts may not speculate re-

garding legislative intent beyond the words expressed

in a statute. . . . Unless deﬁned in the statute, every

word or phrase should be accorded its plain and

ordinary meaning, taking into account the context in

which the words are used.” Chico-Polo v Dep’t of

Corrections, 299 Mich App 193, 198; 829 NW2d 314

(2013) (quotation marks and citations omitted). We

also presume every word in a statute has meaning, and

avoid construing the statute in a way that would

render any part surplusage or nugatory. Griswold

Props, LLC v Lexington Ins Co, 276 Mich App 551, 565;

741 NW2d 549 (2007). Furthermore, “[a] provision in a

statute is ambiguous only if it irreconcilably conﬂicts

with another provision, or when it is equally suscep-

tible to more than a single meaning.” Alvan Motor

Freight, Inc v Dep’t of Treasury, 281 Mich App 35,

39-40; 761 NW2d 269 (2008) (quotation marks and

citation omitted).

When ﬁling this action, plaintiffs disclosed the fol-

lowing in their complaint:

A civil action between these parties or other parties

arising

out of the transaction or occurrence alleged in the

complaint has been previously ﬁled in this court, where it

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was given docket number 13-1049-CZ and was assigned to

Judge Kuhnke. The action is no longer pending.

In addition, a civil action between these parties or other

parties arising out of the transaction or occurrence alleged

in the complaint has been previously ﬁled in the Eastern

District of Michigan and was assigned to Judge Cleland.

The action remains pending.

There are several deﬁciencies in plaintiffs’ disclo-

sures. First, Subsection (2) requires a prisoner to

“disclose the number of civil actions and appeals that

the prisoner has previously initiated.” (Emphasis

added). The language in plaintiffs’ complaint is that

there were civil actions “between these parties or other

parties arising out of the transaction or occurrence

alleged in the complaint.”

This disclosure is ambigu-

ous

regarding the identities of the parties in the

previous litigation, and leaves to speculation whether

it was “the prisoner[s]” from this case as a full group,

partial group, or individually.

Second, Subsection (2) requires disclosure of “the

number of civil actions and appeals that the prisoner

has previously initiated.” MCL 600.5507(2) (emphasis

added). Even assuming that plaintiffs initiated the two

previously ﬁled civil actions, their disclosure did not

indicate whether those were the only civil actions and

appeals they previously initiated as a group or indi-

vidually. Instead, they disclosed only two previously

ﬁled actions “arising out of the transaction or occur-

rence alleged in the complaint.” Yet the plain language

of Subsection (2) requires that a prisoner “shall . . .

disclose the number of civil actions and appeals that

the prisoner has previously initiated.” MCL

600.5507(2). There is no limiting language that pris-

oners only should disclose civil actions arising out of

Ostensibly, this was an attempt to comply with MCR 2.113(C)(2).

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the transaction at issue in the present complaint.

Here, plaintiffs’ disclosure left open the possibility that

any of the plaintiffs initiated civil actions or appeals

concerning prison conditions that did not arise out of

the transaction or occurrence alleged in the complaint.

Further, “[t]he statute does not predicate the disclo-

sure requirement upon the prisoner having, in fact,

previously ﬁled civil actions or appeals.” Tomzek v

Dep’t of Corrections, 258 Mich App 222, 224; 672 NW2d

511 (2003). So, even if plaintiffs had not initiated any

other civil suits, the deﬁciency in their disclosure

statement would not have been cured.

Accordingly, we reject any contention that plaintiffs’

complaint complied with Subsection (2) of MCL

600.5507.

B. INDIGENCY

We now turn to plaintiffs’ argument under the

PLRA,

namely, that Subsection (2) does not apply to

nonindigent prisoners. We conclude that it does.

Subsection (2) provides, “A prisoner who brings a

civil action . . . concerning prison conditions shall . . .

disclose the number of civil actions . . . that the pris-

oner has previously initiated.” MCL 600.5507(2) (em-

phasis added). The words “the” and “a” have different

meanings. Massey v Mandell, 462 Mich 375, 382 n 5;

614 NW2d 70 (2000). “ ‘The’ is deﬁned as ‘deﬁnite

article. 1. (used, [especially] before a noun, with a

specifying or particularizing effect, as opposed to the

indeﬁnite or generalizing force of the indeﬁnite article

a or an).’ ” Robinson v Lansing, 486 Mich 1, 14; 782

NW2d 171 (2010) (citations omitted).

Subsection (2) employs the word “a” to describe the

class of prisoners who must disclose the number of civil

actions previously ﬁled. As deﬁned earlier, “a” has no

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specifying or particularizing effect. Thus, the plain

language of Subsection (2) indicates that it applies to

prisoners, without limitation to indigent prisoners.

Indeed, plaintiffs acknowledge that Subsection (2) does

not expressly limit the requirement to indigent prison-

ers. Because the statute is unambiguous, we are mind-

ful that nothing may be read into it. Tevis, 283 Mich

App at 81.

Nevertheless, as plaintiffs point out, it is true that a

statutory provision cannot be read in isolation. Robin-

son, 486 Mich at 15. See Hines v Volkswagen of

America, Inc, 265 Mich App 432, 438; 695 NW2d 84

(2005) (“Although a phrase or a statement may mean

one thing when read in isolation, it may mean some-

thing substantially different when read in context.”)

(quotation marks and citation omitted). However, the

remaining language of MCL 600.5507 does not indicate

that Subsection (2) applies only to indigent prisoners.

Subsection (1) pertains to the limitation on when a

prisoner

may claim indigency in a civil action under

MCL 600.2963.

However, the Legislature employed no

language in Subsections (2) or (3) limiting their re-

quirements to prisoners who are indigent, or to those

listed in Subsection (1). Plaintiffs urge this Court to

look at legislative history and the editorially supplied

catchline of MCLA 600.5507, which states, “Claim of

indigency in civil actions concerning prison conditions,

prohibitions.” See also MCLS 600.5507 (“Claim of

indigency; limitations; exceptions . . . .”) and Public

Although plaintiffs attempt to draw an inference from federal law,

namely 28 USC 1915, regarding proceedings in forma pauperis, nothing

in that statute is similar to MCL 600.5507(2) and the language regard-

ing disclosure.

MCL 600.2963 deals more speciﬁcally with prisoners ﬁling civil

actions.

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and Local Acts of 1999, p 978 (“Claim of indigency;

limitations . . . .”). “However, the catch line of a statute

is not part of the statute itself, and should not be used

to construe the section more broadly or narrowly than

the text of the section would indicate.” People v Mitch-

ell, 301 Mich App 282, 292; 835 NW2d 615 (2013). MCL

8.4b provides:

The catch line heading of any section of the statutes

that

follows the act section number shall in no way be

deemed to be a part of the section or the statute, or be used

to construe the section more broadly or narrowly than the

text of the section would indicate, but shall be deemed to

be inserted for purposes of convenience to persons using

publications of the statutes.

We also decline to rely upon legislative history.

Legislative

intent is discerned from the words of the

statute itself as that is what was enacted into law.

Chico-Polo, 299 Mich App at 198. Furthermore, our

interpretation of the statute “ensures that it works in

harmony with the entire statutory scheme.” Potter v

McLeary, 484 Mich 397, 411; 774 NW2d 1 (2009), and

Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272

(2009); see also Slater v Ann Arbor Pub Sch Bd of Ed,

250 Mich App 419, 429; 648 NW2d 205 (2002). Our

interpretation is consistent with the underlying pur-

pose of the PLRA, which is to manage the overall

number of suits prisoners initiate. See, e.g., MCL

600.5503(1) (prohibiting a prisoner from ﬁling an ac-

tion concerning prison conditions unless the prisoner

has exhausted all available administrative remedies);

MCL 600.5503(3) (prohibiting courts from appointing

counsel paid for in whole or in part at taxpayer expense

to a prisoner for the purpose of ﬁling an action con-

cerning prison conditions); MCL 600.5505(1) and (2)

(stating that MCL 600.2963 applies to civil actions

concerning prison conditions and requiring courts to

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dismiss a case at any time for several reasons); MCL

600.5509 (stating that a court shall review as soon as

practicable a civil complaint in which a prisoner seeks

redress from a governmental entity and requiring the

court to dismiss the action if the complaint is frivolous

or seeks monetary relief from a defendant who is

immune from the requested relief).

Plaintiffs, however, advance an alternative interpre-

tation of the statute. As discussed, Subsection (1)

generally prohibits a prisoner from claiming indigency

under MCL 600.2963 if the prisoner has, on three or

more occasions, while incarcerated or detained in any

prison, brought an action that was dismissed because

it was frivolous. Plaintiffs contend that Subsection (2)

is the mechanism for determining whether a prisoner

has brought three or more civil actions that have been

dismissed as frivolous, thereby preventing them from

claiming indigency under Subsection (1).

Yet plaintiffs fail to address MCL 600.5529, which

provides:

(1) The state court administrative ofﬁce shall compile

and

maintain a list of the civil actions concerning prison

conditions brought by a prisoner that are dismissed as

frivolous. The list shall include an account of the amount

of unpaid fees and costs associated with each dismissed

case. The list shall be made available to the courts of this

state for the purpose of ascertaining the existence and

number of civil actions concerning prison conditions ﬁled

by each prisoner, and any associated unpaid fees and

costs, for the purposes described in this chapter.

(2) A court in which a civil action concerning prison

conditions is brought shall refer to the list described in

subsection (1) to determine the number and existence of

civil actions concerning prison conditions previously ﬁled

by a prisoner and any associated unpaid fees and costs.

[Emphasis added.]

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Thus, pursuant to MCL 600.5529, a court deter-

mines whether claims have been dismissed because of

frivolity by consulting the list that the State Court

Administrative Ofﬁce compiles and maintains. The

court does not perform this function on the basis of a

prisoner’s disclosures under Subsection (2). In fact,

Subsection (2) does not require a prisoner to disclose

how many of the civil actions and appeals were dis-

missed because they were frivolous. Rather, it only

requires a prisoner to “disclose the number of civil

actions and appeals that the prisoner has previously

initiated.” Because the disclosure required by Subsec-

tion (2) is not limited to previous civil actions and

appeals that were dismissed as frivolous, plaintiffs’

argument fails.

Plaintiffs also rely on the rule of statutory construc-

tion known as the “absurd-results rule.” See Detroit

Int’l Bridge Co v Commodities Export Co, 279 Mich App

662, 674; 760 NW2d 565 (2008). Under this rule, “a

statute should be construed to avoid absurd results

that are manifestly inconsistent with legislative in-

tent[.]” Id. (quotation marks and citation omitted). In

other words, “a statute need not be applied literally if

no reasonable lawmaker could have conceived of the

ensuing result.” Id. at 675. Plaintiffs assert that absent

a relationship between Subsections (1) and (2), the

disclosure required by Subsection (2) serves no pur-

pose. However, the premise of plaintiffs’ argument is

that the disclosure requirement in Subsection (2)

serves the purpose of determining whether a prisoner

may claim indigency. Yet, as explained earlier, plain-

tiffs are not required to disclose how many of the

previous cases were dismissed based on frivolity.

Therefore, we reject plaintiffs’ argument based on the

absurd-results rule.

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Furthermore, “[t]he wisdom of a statute is for the

determination of the Legislature and the law must be

enforced as written.” Gilliam v Hi-Temp Prod Inc, 260

Mich App 98, 109; 677 NW2d 856 (2003). “The fact that

a statute appears to be impolitic, unwise, or unfair is

not sufﬁcient to permit judicial construction.” Id.

Thus, we conclude that the disclosure requirement

in MCL 600.5507(2) unambiguously applies to all pris-

oners, not only those claiming indigency.

C. REMEDY

Alternatively, plaintiffs contend that the proper

remedy

for noncompliance with the disclosure require-

ments is a remand to permit them to amend the

complaint, rather than dismissal. We disagree.

Pursuant to MCL 600.5507(3)(b), “[t]he court shall

dismiss a civil action or appeal at any time, regardless

of any ﬁling fee that may have been paid, if the court

ﬁnds” that the “prisoner fails to comply with the

disclosure requirements of subsection (2).” Despite this

clear directive, plaintiffs contend that they should

have been permitted to amend their complaint. See

MCR 2.118(A)(2) (“Except as provided in subrule

(A)(1), a party may amend a pleading only by leave of

the court or by written consent of the adverse party.

Leave shall be freely given when justice so requires.”).

Defendants, however, posit that Subsection (3) pre-

cludes amendment of the complaint because that pro-

vision states that the court shall dismiss a civil action

if the prisoner fails to comply with Subsection (2) of the

statute.

The word “shall” is unambiguous and denotes “a

mandatory, rather than discretionary action.” Roberts

v Mecosta Co Gen Hosp, 466 Mich 57, 65; 642 NW2d

663 (2002). Consistently with the plain language of the

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statute, in Tomzek, 258 Mich App at 223, we held “that

the statutory language mandates dismissal of the

appeal, without regard to how or when the issue was

raised.” We also recognized that the failure to disclose

the number of previous civil actions or appeals was

fatal, even if that number was zero. Id. at 224-225.

Likewise, in Komejan v Dep’t of Corrections, 270 Mich

App 398, 399-400; 715 NW2d 375 (2006), we held as

follows:

If a prisoner fails to disclose the number of previous

suits,

the statute explicitly instructs the court to dismiss

the action. MCL 600.5507(3)(b). Plaintiff did not disclose

the number of civil actions relating to prison conditions

that he had previously pursued, so the trial court should

have dismissed this suit. The fact that plaintiff had never

pursued a civil action before does not excuse his lack of

disclosure because a prisoner is obligated to disclose the

number of civil actions and appeals he had previously

initiated, even when that number is zero. Plaintiff’s fail-

ure to disclose the number of previous civil actions he

commenced mandates the dismissal of this case. [Quota-

tion marks, ellipsis, and citation omitted.]

Relying on federal caselaw, plaintiffs claim they

should

be given the opportunity to amend the com-

plaint. However, the federal decisions it cites are not

binding on this Court. State Treasurer v Sprague, 284

Mich App 235, 241; 772 NW2d 452 (2009). Plaintiffs

also cite MCL 600.2301, which provides:

The court in which any action or proceeding is pending,

has

power to amend any process, pleading or proceeding in

such action or proceeding, either in form or substance, for

the furtherance of justice, on such terms as are just, at any

time before judgment rendered therein. The court at every

stage of the action or proceeding shall disregard any error

or defect in the proceedings which do not affect the

substantial rights of the parties.

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The applicability of MCL 600.2301 rests on a two-

pronged test: (1) whether a substantial right of a party

is implicated, and (2) whether a cure is in furtherance of

justice. Bush, 484 Mich at 177. Plaintiffs make no

argument regarding either prong of this test. Ypsilanti

Charter Twp v Kircher, 281 Mich App 251, 287; 761

NW2d 761 (2008) (stating that a party’s failure to

properly address the merits of an assertion of error

constitutes an abandonment of the issue on appeal).

Furthermore, plaintiffs’ contention is contrary to a

cardinal rule of statutory interpretation: “If the lan-

guage employed by the Legislature is unambiguous, the

Legislature is presumed to have intended the meaning

clearly expressed, and this Court must enforce the

statute as written.” Ameritech Pub, Inc v Dep’t of Trea-

sury, 281 Mich App 132, 136; 761 NW2d 470 (2008). The

language of MCL 600.5507(3) is unambiguous. Consis-

tent with our prior, published caselaw, we apply the

statute as written and hold that dismissal is mandated.

Because a plaintiff would be precluded by statute

from going forward with this lawsuit, ordinarily we

would need not address plaintiffs’ additional claims.

But, because it is not clear whether any of the John

Doe plaintiffs would be free, individually, in the future

to bring the claims they now allege under the ELCRA

and Equal Protection Clauses, we will consider them

here. Further, the Michigan Supreme Court speciﬁ-

cally remanded this case for consideration of the issues

raised on leave granted. Doe, 497 Mich at 881.

IV. ELLIOTT-LARSEN CIVIL RIGHTS ACT

BACKGROUND LAW

Defendants contend that the trial court erred by

denying their second motion for summary disposition

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regarding plaintiffs’ substantive claims based on the

ELCRA. Primarily, defendants argue that the amend-

ment to the ELCRA, which excluded prisoner lawsuits,

is not a violation of equal protections.

The ELCRA provides:

The opportunity to obtain employment, housing and

other

real estate, and the full and equal utilization of

public accommodations, public service, and educational

facilities without discrimination because of religion, race,

color, national origin, age, sex, height, weight, familial

status, or marital status as prohibited by this act, is

recognized and declared to be a civil right. [MCL

37.2102(1).]

The statute further provides that “[e]xcept where per-

mitted

by law, a person shall not . . . [d]eny an indi-

vidual the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommo-

dations of a place of public accommodation or public

service because of religion, race, color, national origin,

age, sex, or marital status.” MCL 37.2302(a).

In Neal v Dep’t of Corrections (On Rehearing), 232

Mich App 730, 735-737; 592 NW2d 370 (1998), we

held that prisons are places of “public service” under

the ELCRA, so that discrimination against inmates is

prohibited. However, the Legislature then passed

1999 PA 202,

which amended the deﬁnition of “public

service”

in the ELCRA. “Public service” now is deﬁned

a public facility, department, agency, board, or commis-

sion,

owned, operated, or managed by or on behalf of the

state, a political subdivision, or an agency thereof or a tax

exempt private agency established to provide service to

the public, except that public service does not include a

Although not effective until 2000, this will be referred to as the 1999

amendment.

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state or county correctional facility with respect to actions

and decisions regarding an individual serving a sentence

of imprisonment. [MCL 37.2301(b) (emphasis added).]

The amendment was

curative and intended to correct any misinterpretation of

legislative intent in the court of appeals decision Neal v

Department of Corrections, 232 Mich App 730 (1998). This

legislation further expresses the original intent of the

legislature that an individual serving a sentence of im-

prisonment in a state or county correctional facility is not

within the purview of this act. [1999 PA 202, enacting § 1.]

On appeal, the parties do not dispute that the 1999

amendment’s

deﬁnition of “public service” bars the

prisoners’ lawsuit under the ELCRA. Instead, plain-

tiffs attack the amendment directly, arguing that it

violates their equal protection rights.

Plaintiffs also contend that a federal district court

case, Mason v Granholm, unpublished opinion of the

United States District Court for the Eastern District of

Michigan, issued January 23, 2007 (Docket No. 05-

73943), precludes defendants from arguing otherwise.

In Mason, virtually no factual background regarding

the plaintiffs or the case was provided in the court’s

opinion. The court brieﬂy summarized Romer v Evans,

517 US 620, 633; 116 S Ct 1620; 134 L Ed 2d 855

(1996), ﬁnding it to be an example of when the “Su-

preme Court struck down an amendment to the Colo-

rado Constitution that prohibited legislative, execu-

tive, or judicial action at any level of state or local

government designed to protect gays and lesbians.”

The Mason court

then opined:

Unlike Amendment 2 to the Colorado Constitution in Romer, which

prohibited any governmental action designed to protect homosexuals,

here the 1999 Amendment does not make it more difﬁcult for prisoners

to seek aid from the government. More importantly, the 1999 Amend-

ment does not preclude prisoners from asking the government for

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The MDOC does not argue that the ELCRA amend-

ment advances legitimate penological interests, such as

maintaining prison order. Rather, the MDOC contends

that the ELCRA amendment does advance legitimate

interests such as protecting the public ﬁsc, preventing

windfall awards, reducing judicial intervention in the

management of prisons, deterring frivolous lawsuits by

prisoners and reducing trivial or inconsequential suits. In

support of its argument that the ELCRA amendment is

constitutional, MDOC cites to several Sixth Circuit cases

upholding challenges to the federal Prison Litigation

Reform Act [PLRA], which placed some restrictions on

prisoners’ ability to ﬁle civil rights claims.

* * *

In contrast to the PLRA provisions upheld in . . . other

cases, the ELCRA amendment paints with a much broader

brush. Rather than placing some limits on prisoner litiga-

tion and deterring frivolous suits, the ELCRA amendment

completely precludes prisoners from challenging the con-

ditions of their conﬁnement or the discriminatory prac-

tices of the MDOC under the ELCRA, while they are

incarcerated or after their release, and whether their

claims are meritorious or not. The amendment does not,

like the PLRA amendments, essentially place prisoners in

the same position with respect to ﬁling suit as other

citizens. Rather, the amendment forecloses the vindica-

tion of prisoners’ equal protection rights under Michigan

law.

Viewing the statute in the context of this case, the

ELCRA amendment essentially permits the state to dis-

criminate against female prisoners without fear of ac-

countability under Michigan’s civil rights law. Given the

state’s abhorrent and well-documented history of sexual

and other abuse of female prisoners, the court ﬁnds this

amendment particularly troubling. It appears that the

protection from discrimination. It only prohibits prisoners from ﬁling a

lawsuit under the ELCRA and seeking damages.

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state legislature has not attempted to deter frivolous

lawsuits, but rather preclude meritorious ones.

Moreover, while deterring frivolous suits and protect-

ing the public treasury are legitimate government inter-

ests, the ELCRA amendment is too broad to be rationally

related to these interests. The ELCRA amendment de-

nies prisoners the basic protections against discrimina-

tion that all others are afforded under Michigan law, as

required by Article I, Section Two of the Michigan Con-

stitution, which provides that “The legislature shall

implement this section by appropriate legislation.” There

is no rational basis for denying all prisoners (including

those who have been released) — and no one else — the

ability to seek redress for illegal discrimination that

occurred in prison. As the Romer court explained, “[a]

law declaring that in general it shall be more difﬁcult for

one group of citizens than for all others to seek aid from

the government is itself a denial of equal protection of the

laws in the most literal sense.”

Accordingly, the court concludes that the ELCRA

amendment violates prisoners’ equal protection rights and

is unconstitutional. [Mason, unpub op at 5-8 (citations and

quotation marks omitted).]

On appeal, both parties contest the effect Mason

should

have on this case and this Court. For the

following reasons, we conclude that Mason is not

binding.

B. FEDERAL COURT DECISIONS

“Although state courts are bound by the decisions

f the United States Supreme Court construing fed-

eral law, there is no similar obligation with respect to

decisions of the lower federal courts.” Abela v Gen

Motors Corp, 469 Mich 603, 606; 677 NW2d 325

(2004) (citation omitted). In other words, while “lower

federal court decisions may be persuasive, they are

not binding on state courts.” Id. at 607. Thus, we

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reject any argument that we are required to ﬁnd that

the 1999 amendment to the ELCRA violates equal

protection simply because a federal district judge in a

limited, unpublished opinion came to that conclusion.

Plaintiffs nevertheless argue that a statute de-

clared unconstitutional is void ab initio. Stranton v

Lloyd Hammond Produce Farms, 400 Mich 135, 144;

253 NW2d 114 (1977). See also Norton v Shelby Co,

118 US 425, 442; 6 S Ct 1121; 30 L Ed 178 (1886) (“An

unconstitutional act is not a law; it confers no rights;

it imposes no duties; it affords no protection; it creates

no ofﬁce; it is, in legal contemplation, as inoperative

as though it had never been passed.”). Relying on this

rule, plaintiffs contend that because the 1999 amend-

ment was declared unconstitutional in Mason, it

cannot be enforced against them. However, plaintiffs

fail to recognize that the courts of this state have

equal responsibility to protect litigants’ constitutional

rights, Steffel v Thompson, 415 US 452, 460-461; 94 S

Ct 1209; 39 L Ed 2d 505 (1974), and that state courts

are not bound by decisions of lower federal courts,

Johnson v Williams, 568 US ___; 133 S Ct 1088, 1098;

185 L Ed 2d 105 (2013); Abela, 469 Mich at 606.

PRECLUSION

1. BACKGROUND LAW

Plaintiffs next contend that even if the federal

district

court opinion in Mason was not itself binding,

the court’s determination nevertheless has preclusive

Although plaintiffs rely on Dascola v Ann Arbor, 22 F Supp 3d 736

(ED Mich, 2014), that case is inapposite. In Dascola, the issue was not

whether the previous federal ruling prevented the defendants from

arguing, in state court, that the statute was constitutional.

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effect on defendants because of collateral estoppel.

“The preclusive effect of a federal-court judgment is

determined by federal common law.” Taylor v Sturgell,

553 US 880, 891; 128 S Ct 2161; 171 L Ed 2d 155

(2008). See also Pierson Sand & Gravel, Inc v Keeler

Brass Co, 460 Mich 372, 381; 596 NW2d 153 (1999)

(“The state courts must apply federal claim-preclusion

law in determining the preclusive effect of a prior

federal judgment.”) (quotation marks and citation

omitted). “Under collateral estoppel, once a court has

decided an issue of fact or law necessary to its judg-

ment, that decision may preclude relitigation of the

issue in a suit on a different cause of action involving a

party to the ﬁrst case.” Allen v McCurry, 449 US 90, 94;

101 S Ct 411; 66 L Ed 2d 308 (1980).

The application of collateral estoppel is conditioned

on the fulﬁllment of four requirements:

(1) the precise issue raised in the present case must

have

been raised and actually litigated in the prior pro-

ceeding; (2) determination of the issue must have been

necessary to the outcome of the prior proceeding; (3) the

prior proceeding must have resulted in a ﬁnal judgment

on the merits; and (4) the party against whom estoppel is

sought must have had a full and fair opportunity to

litigate the issue in the prior proceeding. [Hamilton’s

Bogarts, Inc v Michigan, 501 F3d 644, 650 (CA 6, 2007)

(quotation marks and citation omitted).]

We ﬁnd no merit to defendants’ initial argument that the United

States Court of Appeals for the Sixth Circuit in Mason held that the

federal district court’s decision had no preclusive effect in subsequent

lawsuits. The issue before the Sixth Circuit in that matter was whether

the defendants were entitled, at that point in time, to appeal the federal

district court’s decision. As stated in the Sixth Circuit’s order, it

considered and rejected the defendants’ argument that the Mason

decision “permanently enjoins the State Defendants from raising a valid

defense to this lawsuit and in subsequent lawsuits” in light of the

standards for granting an interlocutory appeal.

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Although mutuality originally was a requirement,

federal courts have

allowed a litigant who was not a party to a federal case to

use collateral estoppel “offensively” in a new federal suit

against the party who lost on the decided issue in the ﬁrst

case[.] But one general limitation the Court has repeat-

edly recognized is that the concept of collateral estoppel

cannot apply when the party against whom the earlier

decision is asserted did not have a “full and fair opportu-

nity” to litigate that issue in the earlier case. [Allen, 449

US at 94-95.]

See also Neal

II, 232 Mich

App at 736-737. Nothing about the nature of their

conﬁnement suggests that prisoners should be treated

any differently than nonprisoners with regard to civil

rights protections. It has never been argued in this

case that there are any safety justiﬁcations for treating

prisoners and nonprisoners differently in regard to

their ability to claim protections to civil rights. Nor do

any such safety concerns seem apparent in this case. In

short, prisoners and nonprisoners are similar with

respect to their entitlement to civil rights protections

in their interactions with the government. Therefore, I

would ﬁnd that, for purposes of claiming redress for

violation of their civil rights, prisoners are similarly

situated to nonprisoners in regard to receiving certain

beneﬁts and services from the state.

In fact, one could argue that the average prisoner has far more

encounters with government actors on a daily basis than does the

average citizen. Prisoners’ entire existence in prison is dependent upon

and supported by government actors. Thus, in comparison to nonpris-

oners, prisoners have far more potential encounters during which they

need the protections of the ELCRA.

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Defendants argue, and the majority agrees, that

because prisoners receive services and beneﬁts from

the government involuntarily, by virtue of the fact that

their incarceration is not voluntary, they are not simi-

larly situated to nonprisoners. While it is true that, but

for involuntary conﬁnement mandated by the state,

prisoners would not be inclined to take residence inside

prison walls, I do not believe that the involuntary

receipt of services changes the equation. That is, I do

not agree that those who involuntarily interact with

the government are any less deserving of the right to

protection of their civil rights and a remedy for viola-

tions upon those rights than those who voluntarily do

so. To this end, I would note that nearly all citizens are

compelled, at times, to receive public services in a

manner that is somewhat less than voluntary. For

instance, children under a certain age are compelled to

attend school,

to some degree, yet no one would

dispute

that children receive public services while they

attend public school. Likewise, litigants may be re-

quired, subject to the court’s contempt powers, to

appear at certain court proceedings, but no one would

contend that they do not receive public services simply

by virtue of the fact that their presence in court was

not entirely voluntary. And, for that matter, most trips

to the Secretary of State ofﬁces are not entirely volun-

tary. For example, if left to their own accord, most

citizens would likely not ﬁnd it convenient or necessary

to register and pay taxes on a newly purchased motor

vehicle or boat; rather, they do so because the state

requires them to do so. Along a similar vein, prisoners

reside in prison and receive certain services therein

because the state mandates that they do so. Further-

See MCL 380.1561, outlining compulsory school attendance as well

as certain exceptions.

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more, even assuming that prisoners were the only ones

who received public services in a manner that was less

than voluntary, I fail to see any reason why this

prevents prisoners from being similarly situated to

nonprisoners in regard to their entitlement to civil

rights. Regardless of whether the receipt of services is

voluntary or involuntary, the fact remains that all

citizens are in a position where they expect, rightfully,

to have certain civil rights honored in their respective

dealings with the government.

Thus, in my view,

prisoners

and nonprisoners are similarly situated with

regard to their entitlement to civil rights in dealings

with the government because, regardless of a person’s

abode—either behind bars and concrete blocks or in a

two-story colonial—he or she is still entitled to basic

civil rights that are otherwise guaranteed to all.

B. RATIONAL BASIS REVIEW

Because I would ﬁnd that plaintiffs, as prisoners,

are

similarly situated to nonprisoners for purposes of

the challenged legislation, the salient inquiry becomes

whether the classiﬁcation drawn in this case can

withstand rational-basis review. “Under the rational

basis test, the challenged legislation ‘is presumed

constitutional, and the party challenging it bears a

heavy burden of rebutting that presumption.’ ” Parole

I acknowledge that prisoners do not enjoy all the rights of nonpris-

oners. For example, prisoners are subject to having all telephone calls

and other communications monitored, are subject to searches and

seizures without a warrant, and have various other freedoms curtailed

for purposes of safety and other legitimate reasons. Nevertheless, I do

not believe that this changes the equation. The pertinent analysis

concerns not whether prisoners and nonprisoners are similarly situated

with regard to those freedoms; instead, the analysis concerns whether

the two groups are similarly situated for purposes of seeking redress for

civil rights violations. I see no meaningful reason to treat the groups

differently for that purpose.

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of Hill, 298 Mich App at 421, quoting People v Idziak,

484 Mich 549, 570; 773 NW2d 616 (2009). “Speciﬁcally,

‘[t]o prevail under this highly deferential standard of

review, a challenger must show that the legislation is

arbitrary and wholly unrelated in a rational way to the

objective of the statute.’ ” Parole of Hill, 298 Mich App

at 422, quoting Idziak, 484 Mich at 570-571. Rational-

basis review “is a paradigm of judicial restraint” and

“is not a license for courts to judge the wisdom,

fairness, or logic of legislative choices.” Fed Communi-

cations Comm v Beach Communications, Inc, 508 US

307, 313; 113 S Ct 2096; 124 L Ed 2d 211 (1993).

Indeed, rational-basis review acknowledges that

[m]ost laws classify, and many affect certain groups un-

evenly

, even though the law itself treats them no differ-

ently from all other members of the class described by the

law. When the basic classiﬁcation is rationally based,

uneven effects upon particular groups within a class are

ordinarily of no constitutional concern. [Personnel Admin

of Massachusetts v Feeney, 442 US 256, 271-272; 99 S Ct

2282; 60 L Ed 2d 870 (1979).]

Nevertheless, the United States Supreme Court has

cautioned,

“even the standard of rationality as we so

often have deﬁned it must ﬁnd some footing in the

realities of the subject addressed by the legislation.”

Heller v Doe, 509 US 312, 321; 113 S Ct 2637; 125 L Ed

2d 257 (1993). “The State may not rely on a classiﬁca-

tion whose relationship to an asserted goal is so

attenuated as to render the distinction arbitrary or

irrational.” City of Cleburne, Texas v Cleburne Living

Ctr, 473 US 432, 446; 105 S Ct 3249; 87 L Ed 2d 313

(1985). When a right is afforded, “it cannot be granted

to some litigants and capriciously or arbitrarily denied

to others without violating the Equal Protection

Clause.” Lindsey v Normet, 405 US 56, 77; 92 S Ct 862;

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31 L Ed 2d 36 (1972). “Furthermore, some objectives—

such as a bare desire to harm a politically unpopular

group—are not legitimate state interests.” City of Cle-

burne, 473 US at 446-447 (citation, quotation marks,

and ellipsis omitted). See also United States v Windsor,

570 US ___; 133 S Ct 2675, 2693; 186 L Ed 2d 808

(2013); US Dep’t of Agriculture v Moreno, 413 US 528,

534; 93 S Ct 2821; 37 L Ed 2d 782 (1973).

C. THE CHALLENGED LEGISLATION LACKS A RATIONAL BASIS

Even under the deferential rational-basis standard,

would hold that the classiﬁcation drawn in this case,

which prevents prisoners, but no one else, from seeking

relief under the ELCRA, violates equal protection.

Like the court in Mason v Granholm, unpublished

opinion of the United States District Court for the

Eastern District of Michigan, issued January 23, 2007

(Docket No. 05-73943),

my reasoning on this issue is

guided

by the Supreme Court’s decision in Romer v

Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855

(1996). At issue in Romer was an amendment to the

Colorado Constitution, “Amendment 2,” which prohib-

ited all legislative, executive, or judicial action at any

level of state or local government designed to protect

homosexual individuals. Id., 517 US at 623-624. The

Court held that Amendment 2 failed rational-basis

review for two reasons. First, “the amendment has the

peculiar property of imposing a broad and undifferen-

tiated disability on a single named group, an excep-

tional and, as we shall explain, invalid form of legisla-

Plaintiffs argue that this Court is bound by the decision in Mason.

I believe the majority accurately concludes that we are not bound by an

unpublished federal district court decision. The majority also correctly

concludes that the application of offensive nonmutual collateral estoppel

is not appropriate in this case.

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tion.” Id. at 632. The amendment was “at once too

narrow and too broad. It identiﬁes persons by a single

trait and then denies them protection across the

board.” Id. at 633. The Court explained that “[e]qual

protection of the laws is not achieved through indis-

criminate imposition of inequalities.” Id. (citations and

quotation marks omitted).

Respect for this principle explains why laws singling out a

certain

class of citizens for disfavored legal status or

general hardships are rare. A law declaring that in general

it shall be more difﬁcult for one group of citizens than for

all others to seek aid from the government is itself a denial

of equal protection of the laws in the most literal sense.

[Id.]

As for the second reason identiﬁed by the Romer

Court

for concluding that Amendment 2 failed

rational-basis review, the Court found that the “sheer

breadth” of the amendment was “so discontinuous with

the reasons offered for it that the amendment seems

inexplicable by anything but animus toward the class

it affects . . . .” Id. at 632. If the concept of equal

protection was to mean anything, reasoned the Court,

“ ‘it must at the very least mean that a bare . . . desire

to harm a politically unpopular group cannot consti-

tute a legitimate governmental interest.’ ” Id. at 634,

quoting Moreno, 413 US at 534. The classiﬁcation in

that case could not be explained by any of the proffered

rationales; thus, Amendment 2 did not bear a rational

relationship to a legitimate governmental purpose.

Romer, 517 US at 635.

Similarly, where the 1999 amendment falls short is

that it paints with far too broad a brush. It targets a

speciﬁc group—prisoners—and prevents that group,

and only that group, from ﬁling claims under the

ELCRA. As recognized in Romer, 517 US at 633,

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“[c]entral both to the idea of the rule of law and to our

own Constitution’s guarantee of equal protection is the

principle that government and each of its parts remain

open on impartial terms to all who seek its assistance.”

It is for that reason that a law singling out a particular

class and imposing hardships on that class “is itself a

denial of equal protection of the laws in the most literal

sense.” Id. Here, the law imposes a hardship—no

statutory relief for civil rights violations—on only one

group. The decision to single out this particular group

and categorically deny prisoners, and only prisoners,

the ability to seek relief renders the constitutionality of

the 1999 amendment doubtful from the onset. See id.

Further, just as in Romer, this targeted classiﬁca-

tion bears no rational relationship to a legitimate

governmental interest. Two primary rationales have

been advanced for justifying the classiﬁcation at issue:

(1) maintaining prison order and (2) preventing frivo-

lous actions and preserving the public ﬁsc. As to the

ﬁrst proffered rationale, I agree with the majority’s

conclusion that there is no merit to defendants’ asser-

tion that the challenged statute is rationally related to

the legitimate governmental interest of prison order

and management. There does not appear to be any

connection between limiting a prisoner’s ability to seek

relief under the ELCRA and maintaining prison order.

Where I diverge from the majority opinion is in the

conclusion that the second offered purpose—

deterrence of frivolous and meritless lawsuits and

maintaining the public ﬁsc—does not sufﬁce as a

rational basis in this case. There is no doubt that

deterring frivolous lawsuits is designed to and does

protect the public ﬁsc, and that doing so is a legitimate

government purpose. See Barlett v North Ottawa

Comm Hosp, 244 Mich App 685, 695; 625 NW2d 470

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(2001) (“Deterring the ﬁling of frivolous lawsuits

against any party or group is a legitimate governmen-

tal interest.”). Also, it is well established that prison-

ers, as a group, tend to ﬁle more litigation than

nonprisoners. See, e.g., Johnson v Daley, 339 F3d 582,

592 (CA 7, 2003). The proper inquiry is whether the

ends in this case legally justify the means. In other

words, is the connection between preventing frivolous

lawsuits by prisoners and maintaining the public ﬁsc

and the decision to deny an identiﬁable class of indi-

viduals protections under the ELCRA—an act de-

signed to protect the civil rights of all persons—so

attenuated that the classiﬁcation is arbitrary? Given

the sweeping prohibitions drawn by the classiﬁcation

at issue and that it completely severs the rights of

inmates to seek redress for violations of civil rights—

rights which are regarded as those that should be

given the “highest priority,” in terms of protection, see

Barczak v Rockwell Int’l Corp, 68 Mich App 759, 763;

244 NW2d 24 (1976)—I ﬁnd the restriction arbitrary

and contrary, if not repugnant, to the ideals of equal

protection. The only discernible purpose of the 1999

amendment is to snuff out all lawsuits ﬁled by prison-

ers.

Indeed, rather than targeting frivolous claims, the

only purpose of the 1999 amendment is the elimination

of prisoners’ ability to bring claims of any kind under

the ELCRA and to limit the state’s liability in civil

rights claims by prisoners. This cannot serve as a

legitimate government purpose. See Johnson, 339 F3d

at 612 (Rovner, J., dissenting) (addressing the federal

PLRA) (“The government . . . does not and cannot

argue that Congress has a legitimate interest in dis-

couraging meritorious litigation by inmates.”). See also

Rodriguez v Brand West Dairy, 2015 NM App 097; 356

P3d 546 (2015) (holding that a New Mexico statute

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that excluded farm and ranch laborers from the scope of

workers’ compensation coverage violated equal protec-

tion because the classiﬁcation drawn was arbitrary and

not rationally related to the goal of preserving re-

sources); Willoughby v Washington Dep’t of Labor

& Indus, 147 Wash 2d 725, 737; 57 P3d 611 (2002)

(invalidating, on equal protection grounds, a statute

that barred the distribution of industrial insurance

permanent partial disability beneﬁts to prisoners be-

cause the statute was unrelated to a legitimate govern-

mental purpose and “saving money is not a sufﬁcient

ground for upholding an otherwise unconstitutional

statute in any event”). There is simply no effort in the

1999 amendment to target frivolous claims; rather, the

amendment is a blunt and obtuse prohibition on all

claims, regardless of merit, under the ELCRA.Although

“equal protection analysis does not require that every

classiﬁcation be drawn with precise ‘mathematical

nicety,’ ” the classiﬁcation drawn in this case is more

than merely imprecise, “it is wholly without any ratio-

nal basis.” Moreno, 413 US at 538. See also Mason,

unpub op at 7 (concluding that the 1999 ELCRAamend-

ment was “too broad to be rationally related to” the

asserted governmental interests of “deterring frivolous

suits and protecting the public treasury”). In my view,

the 1999 amendment’s “sheer breadth is so discontinu-

ous with the reasons offered for it that the amendment

seems inexplicable by anything but animus toward the

class it affects; it lacks a rational relationship to legiti-

mate state interests.” Romer, 517 US at 632.

The majority cites cases such as Morales, 260 Mich App at 52

(holding that legislation precluding prisoners from appealing the deci-

sion of the parole board was rationally related to the legitimate

governmental interest in saving funds in response to frivolous requests

by prisoners), and Proctor, 248 Mich App at 469 (no equal protection

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In addition, I ﬁnd it signiﬁcant that, independent of

the 1999 amendment, the Legislature had already

enacted several, more targeted statutes designed to

ferret out frivolous prison litigation. These more tar-

geted statutes are found in the PLRA, and include,

among others, the pleading requirements discussed in

Part I of this opinion, MCL 600.5507; the exhaustion of

violation in the Legislature’s decision to single out incarcerated prison-

ers with regard to FOIA exclusions, based on the conclusion that

prisoners often ﬁle frivolous requests). I ﬁnd these cases to be unavail-

ing. Initially, the rational-basis analysis in both cases was rather

cursory, as Proctor, 248 Mich App at 469, summarily concluded “that the

Legislature’s FOIA exclusions singling out incarcerated prisoners ratio-

nally relate to the Legislature’s legitimate interest in conserving the

scarce governmental resources squandered responding to frivolous

FOIA requests by incarcerated prisoners.” The pertinent analysis in

Morales was similarly short, as the opinion cited Proctor and concluded

that “the exclusion of prisoners’ ability under MCL 791.234 to appeal

parole denials is rationally related to the Legislature’s legitimate

interest in saving public funds in response to innumerable frivolous

requests by incarcerated prisoners for the review of the Parole Board’s

denials of parole.” Morales, 260 Mich App at 52. Moreover, the statutes

at issue in both cases were signiﬁcantly different from the 1999

amendment to the ELCRA. Notably, the ELCRA places an outright ban

on all prisoner actions under the ELCRA, a ban that is contrary to the

constitutional directive contained in Const 1963, art 1, § 2. By contrast,

Morales dealt with parole, which is not a right to which prisoners are

entitled. And the prisoners in Morales were afforded at least some

review of their parole eligibility, as the parole board had to ﬁrst make a

determination as to eligibility; here, by comparison, the 1999 amend-

ment cuts off all review from the outset. As to Proctor, I would not

consider the denial of a FOIA request to be of the same importance as

the denial of an individual’s ability to seek redress for a violation of

constitutionally guaranteed civil rights. Moreover, I would note that the

existence of the PLRA makes the instant case different from both

Morales and Proctor. That is, the PLRA is already a targeted attempt at

curtailing frivolous prisoner litigation with regard to prison conditions.

The statutes at issue in Morales and Proctor lacked this type of

aggressive safeguard against frivolous actions. Thus, unlike the stat-

utes at issue in Morales and Proctor, the likelihood that the 1999

amendment was rationally related to the asserted interest of curtailing

frivolous actions is signiﬁcantly lessened.

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administrative remedies, MCL 600.5503(1); and vari-

ous screening provisions that call for dismissal set

forth in the PLRA, including those that impose a duty

on courts to review complaints and dismiss frivolous

claims, such as MCL 600.5503(2), MCL 600.5505(2),

and MCL 600.5509(1) and (2), as well as the list

maintained by the state court administrator’s ofﬁce of

the frivolous civil actions brought by prisoners con-

cerning prison conditions, MCL 600.5529. “The exis-

tence of these provisions necessarily casts considerable

doubt upon the proposition” that the 1999 amendment

“could rationally have been intended to prevent those

very same” concerns. See Moreno, 413 US at 536-537

(explaining that where other safeguards in the Food

Stamp Act already existed, the challenged provision,

which excluded from eligibility for food stamps those

individuals who resided with nonrelatives, was not

rationally related to a legitimate governmental pur-

pose and instead was arbitrary). Given the existence of

the much more targeted safeguards in the PLRA, it is

dubious whether the 1999 amendment was intended to

target frivolous claims.

Defendants attempt to rationalize the prohibition

placed on prisoners’ abilities to bring claims under the

ELCRA by arguing that prisoners can still seek injunc-

tive and declaratory relief under the Constitution for

civil rights violations; therefore, according to defen-

dants, the classiﬁcation is permissible. At ﬁrst glance,

this argument has some appeal, but upon further

inquiry, it is found to be wanting.

The argument

removes

the focus from the proper inquiry in this case.

I also note that from a practical standpoint, prisoners who cannot

afford to fund their own lawsuit seeking declaratory or injunctive relief

would be hard-pressed to ﬁnd anyone but a pro bono or nonproﬁt

attorney willing to take their case; other than pursuing a case in propria

persona, the lack of ﬁnancial redress effectively limits a prisoner’s

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The pertinent inquiry is not concerned with what other

avenues of relief are available to prisoners. Rather, the

salient concern focuses on the classiﬁcation drawn in

the statute at issue and whether that classiﬁcation is

wholly arbitrary or whether it is rationally related to a

legitimate governmental interest. See Baxstrom v Her-

old, 383 US 107; 86 S Ct 760; 15 L Ed 2d 620 (1966)

(focusing on the classiﬁcation drawn, not external

concerns).

And, as noted earlier, I would conclude

that

the classiﬁcation is not rationally related to a

legitimate governmental interest.

I ﬁnd the classiﬁcation drawn in this case particu-

larly troubling in light of the constitutional mandate

established in Const 1963, art 1, § 2, which is empha-

sized and discussed in detail in Part II of this opinion.

The Constitution prohibits discrimination against “any

person,” and requires the Legislature to implement

that directive. In enacting the 1999 amendment at

issue, the Legislature, rather than honoring that man-

access to the courthouse in seeking to enforce his or her constitutional

rights. And again, it is only prisoners who are carved out from relief

under the ELCRA.

I ﬁnd it particularly troubling that the Legislature would choose to

preclude monetary relief for something as signiﬁcant as civil rights

violations. Civil rights actions have long been recognized as signiﬁcant,

not only for the litigants but for the public at large. See, e.g., Rivera, 477

US at 574. Not only that, but a damages remedy has been recognized as

an integral component of remedying civil rights violations. See Owen v

City of Independence, Mo, 445 US 622, 651; 100 S Ct 1398; 63 L Ed 2d

673 (1980) (“A damages remedy against the offending party is a vital

component of any scheme for vindicating cherished constitutional guar-

antees, and the importance of assuring its efﬁcacy is only accentuated

when the wrongdoer is the institution that has been established to

protect the very rights it has transgressed.”); Davis v Passman, 442 US

228, 245; 99 S Ct 2264; 60 L Ed 2d 846 (1979). Further, damages have

been recognized as “particularly beneﬁcial” in cases such as this one

that allege “those ‘systemic’ injuries that result not so much from the

conduct of any single individual, but from the interactive behavior of

several government ofﬁcials . . . .” Owen, 445 US at 652.

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date as to “any person,” has spurned an identiﬁable

group of individuals. The mandate did not say “all to

whom you feel like giving the privilege”; it said “all”

without limitation. In this respect, the legislation is

nothing but a targeted curtailment of the rights of

prisoners to seek the very same relief that all others

enjoy. This targeted curtailment of the right of pris-

oners to seek the very same relief that is available to

all others appears, in my mind, so incongruous with

the purpose of legislation that was designed to protect

civil rights that it is capricious and unrelated to any

legitimate governmental purpose. See Windsor, 570

US at ___; 133 S Ct at 2693, quoting Moreno, 413 US

at 534 (“The Constitution’s guarantee of equality ‘must

at the very least mean that a bare congressional desire

to harm a politically unpopular group cannot’ justify

disparate treatment of that group.”); Moreno, 413 US at

534 (“For if the constitutional conception of ‘equal pro-

tection of the laws’ means anything, it must at the very

least mean that a bare congressional desire to harm a

politically unpopular group cannot constitute a legiti-

mate governmental interest.”). See also Mason, unpub

op at 7-8 (noting that “[t]he ELCRA amendment denies

prisoners the basic protections against discrimination

that all others are afforded under Michigan law, as

required by” Const 1963, art 1, § 2, and concluding that

“[t]here is no rational basis for denying all prisoners . . .

— and no one else — the ability to seek redress for

illegal discrimination that occurred in prison”). Thus, in

addition to demonstrating that the 1999 amendment is

unconstitutional because it contravenes the Legisla-

tive mandate, the betrayal of the mandate also illus-

trates the capriciousness of the amendment, thereby

eroding the asserted rational basis for the legislation.

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I am also troubled by the implications of the major-

ity’s decision. The 1999 amendment provides no av-

enue for monetary relief, and, potentially, no redress

whatsoever under state law for any type of discrimina-

tion not articulated in Const 1963, art 1, § 2, e.g.,

discrimination based on age, sexual orientation, mari-

tal status, or gender. With no threat of a monetary

judgment, or, perhaps in some cases, any judgment at

all, no state law would stand in the way of prisons and

prison ofﬁcials intentionally discriminating against

prisoners in ways that would be prohibited in all other

walks of life. For instance, the majority’s decision

would provide no remedy under state law if prison

ofﬁcials, with no consideration of security concerns or

other penological interests, simply denied certain ser-

vices or beneﬁts, such as educational classes, exercise

time, or countless others, to certain classiﬁcations of

prisoners. And, for that matter, there would be no

damages available under the ELCRA if prison ofﬁcials

drew those classiﬁcations based on prisoners’ race. And

the majority’s decision would provide no remedy under

state law against sexual harassment—a type of sexual

discrimination, per MCL 37.2103(i), under the ELCRA.

In other words, prison guards and other ofﬁcials could

perpetuate sexual harassment that would, in all other

walks of life, be unquestionably banned by the ELCRA,

and, by some twisted sense of irony, be insulated from

liability under state law by the very same act. As

pointed out by plaintiffs, the 1999 amendment only

applies to those serving a sentence of imprisonment.

Thus, guards and prison ofﬁcials could sexually harass

inmates and face no liability under state law, but face

liability under the ELCRA for the very same conduct if

it were committed against a visitor to the prison,

rather than an inmate. The simple, arbitrary fact that

one victim in this scenario wore an orange jumpsuit

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and the other wore street clothes would insulate the

guards and prison ofﬁcials under the ELCRA. This, in

my mind, highlights the capricious nature of the 1999

amendment and why it cannot withstand even the

most deferential rational-basis review. See City of

Cleburne, 473 US at 446 (“The State may not rely on a

classiﬁcation whose relationship to an asserted goal is

so attenuated as to render the distinction arbitrary or

irrational.”). See also Baxstrom, 383 US at 115 (“The

capriciousness of the classiﬁcation employed by the

State is thrown sharply into focus by the fact that the”

beneﬁt at issue was withheld only in regard to certain

incarcerated individuals). The ELCRA, an act designed

to protect civil rights, should not be used as a safe

harbor against claims of sex discrimination—or any

type of discrimination for that matter.

The implications of the majority’s decision are even

more troubling in light of the fact that it would

completely bar, regardless of the merits of the case, any

liability on the part of the state for the conduct alleged

in this case, which was an ongoing and well-

documented problem.

The conduct alleged in this

case,

sexual assaults committed against young in-

mates, is not a new or unheard-of problem. The federal

Prison Rape Elimination Act (PREA), 42 USC

15601(4), enacted in 2003, expressly recognized this

very issue, stating that “[y]oung ﬁrst-time offenders

are at increased risk of sexual victimization. Juveniles

are 5 times more likely to be sexually assaulted in

adult rather than juvenile facilities—often within the

ﬁrst 48 hours of incarceration.” While, for the past 12

years, the federal government has been aware of and

attempting to eradicate the very problem alleged to

This should not be viewed as a substantive evaluation of the merits

of plaintiffs’ claims in the instant case.

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have occurred in this case—the sexual assault of

juvenile prisoners—Michigan has been trying to elimi-

nate the rights of juveniles—and other prisoners—to

seek monetary relief for this and other civil rights

violations. I cannot, in good conscience, countenance

this attempt at shirking liability and responsibility.

In sum, although I ﬁnd that the issue need not be

reached because the unconstitutionality of the 1999

amendment is apparent for the reasons discussed in

Part II of this opinion, I would conclude that the

amendment violates equal protection because it draws

a classiﬁcation between similarly situated individuals

and that classiﬁcation is not rationally related to a

legitimate governmental interest.

IV. REMAINING ARGUMENTS

Lastly, defendants argue that the trial court should

have

granted their motion for summary disposition

under MCR 2.116(C)(8), claiming that plaintiffs failed

to adequately allege that they had notice of the conduct

at issue.

This Court reviews de novo motions for

summary

disposition. Citimortgage, Inc v Mtg Elec-

tronic Registration Sys, Inc, 295 Mich App 72, 75; 813

NW2d 332 (2011). Summary disposition is proper un-

der MCR 2.116(C)(8) if “[t]he opposing party has failed

to state a claim on which relief can be granted.” A

motion under MCR 2.116(C)(8) “tests the legal sufﬁ-

ciency of the complaint on the allegations of the plead-

ings alone.” Feyz v Mercy Mem Hosp, 475 Mich 663,

Defendants raised this argument before the trial court, but the

court did not rule on the matter. Because the issue was preserved by

virtue of defendants having raised it before the trial court, see Klooster

v Charlevoix, 488 Mich 289, 310; 795 NW2d 578 (2011), and because I

would remand for dismissal without prejudice, see Part I of this opinion,

I ﬁnd it necessary to weigh in on defendants’ argument.

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672; 719 NW2d 1 (2006). A reviewing court on a (C)(8)

motion “must accept as true all factual allegations

supporting the claim, and any reasonable inferences or

conclusions that might be drawn from those facts.”

Gorman v American Honda Motor Co, Inc, 302 Mich

App 113, 131; 839 NW2d 223 (2013). In addition, a

court must construe all well-pleaded allegations in a

light most favorable to the nonmoving party. Johnson v

Pastoriza, 491 Mich 417, 435; 818 NW2d 279 (2012). “A

motion under MCR 2.116(C)(8) may be granted only

when the claims alleged are so clearly unenforceable as

a matter of law that no factual development could

possibly justify recovery.” Id. (citation and quotation

marks omitted).

Plaintiffs brought claims under the ELCRA against

defendant for sex discrimination (hostile environment)

and age discrimination. Defendants do not address

plaintiffs’ claims individually; instead, they argue that

plaintiffs’ claims must fail because they lacked notice

of the alleged harassment. In addition, defendants’

arguments only appear to pertain to plaintiffs’ claims

about sex discrimination. Accordingly, I only evaluate

defendants’ arguments as to the claims of sex discrimi-

nation.

Under the ELCRA, discrimination on the basis of

sex, which includes, by deﬁnition, sexual harassment,

is prohibited. MCL 37.2103(i). The act deﬁnes sexual

harassment to include

unwelcome sexual advances, requests for sexual favors,

and

other verbal or physical conduct or communication of

a sexual nature under the following conditions:

(i) Submission to the conduct or communication is

made a term or condition either explicitly or implicitly to

obtain employment, public accommodations or public ser-

vices, education, or housing.

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(ii) Submission to or rejection of the conduct or commu-

nication by an individual is used as a factor in decisions

affecting the individual’s employment, public accommoda-

tions or public services, education, or housing.

(iii) The conduct or communication has the purpose or

effect of substantially interfering with an individual’s

employment, public accommodations or public services,

education, or housing, or creating an intimidating, hostile,

or offensive employment, public accommodations, public

services, educational, or housing environment. [MCL

37.2103(i).]

The last category is at issue in this case; this type of

harassment

“is commonly labeled hostile environment

harassment.” Chambers v Trettco, Inc, 463 Mich 297,

310; 614 NW2d 910 (2000).

To establish hostile environment harassment, a

plaintiff in a case such as this one must prove:

(1) the [plaintiff] belonged to a protected group;

(2)

the [plaintiff] was subjected to communication or

conduct on the basis of sex;

(3) the [plaintiff] was subjected to unwelcome sexual

conduct or communication;

(4) the unwelcome sexual conduct or communication

was intended to or in fact did substantially interfere with

the [plaintiff’s public services or created a hostile environ-

ment with regard to those public services]; and

(5) respondeat superior. [Radtke v Everett, 442 Mich

368, 382-383; 501 NW2d 155 (1993).]

At issue in this case is the ﬁfth element, respondeat

superior

. Plaintiffs seek to hold defendants vicariously

liable for acts committed by their respective agents. In

a hostile environment claim, an employer may avoid

liability for hostile environment harassment if, upon

notice of the alleged harassment, it adequately inves-

tigated and took prompt and appropriate remedial

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action. Id. at 396. Thus, a defendant must have actual

or constructive notice of the alleged harassment before

liability will attach. Sheridan v Forest Hills Pub Schs,

247 Mich App 611, 621; 637 NW2d 536 (2001). A

plaintiff can demonstrate notice if he or she com-

plained to “higher management” about the harass-

ment, or “by showing the pervasiveness of the harass-

ment, which gives rise to the inference of knowledge or

constructive knowledge.” Id. (citation and quotation

marks omitted). “[N]otice of sexual harassment is

adequate if, by an objective standard, the totality of the

circumstances were such that a reasonable employer

would have been aware of a substantial probability

that sexual harassment was occurring.” Chambers,

463 Mich at 319.

Taking the allegations raised in plaintiffs’ complaint

as true and construing them in a light most favorable

to plaintiffs, as is required under MCR 2.116(C)(8)

review, see Johnson, 491 Mich at 435; Gorman, 302

Mich App at 131, I would ﬁnd that defendants were not

entitled to summary disposition because factual devel-

opment could possibly justify recovery on plaintiffs’

sexual harassment claims. Most notably, I ﬁnd that

because of the pervasiveness of the harassment and

sexual violence alleged, plaintiffs sufﬁciently pleaded

knowledge on the part of defendants that a hostile

environment existed at each of the facilities. Plaintiffs

raised numerous allegations of abuse at all of the

correctional facilities. These allegations included

claims that some of the plaintiffs were repeatedly and

continuously harassed and sexually assaulted by adult

male prisoners. Some plaintiffs were harassed and

assaulted at multiple Michigan Department of Correc-

tions (MDOC) facilities following transfers. According

to plaintiffs’ complaint, some of the assaults and ha-

rassment occurred in front of MDOC staff members

178 312 M

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and were even facilitated at times by MDOC staff

opening cell doors to allow prisoners to commit the

assaults. The complaint alleged that the assaults were

committed in an open and obvious manner, and that

there was medical evidence documenting some of the

sexual assaults. All of this is in addition to the fact that

the complaint alleged that some of the complained-of

sexual assaults were perpetrated by MDOC staff mem-

bers or that MDOC staff members threatened to help

facilitate sexual assault against plaintiffs as punish-

ment. These facts, taken in a light most favorable to

plaintiffs, show widespread, pervasive sexual assaults

at several MDOC facilities.

Furthermore, regarding the harassment perpe-

trated by adult male prisoners, all of which was alleged

to have occurred between the fall of 2010 and Decem-

ber 2013, plaintiffs alleged that the MDOC placed

prisoners between the ages of 14 and 17 in adult

prisons and that it maintained a policy of placing

17-year-old prisoners in cells with adult prisoners.

Plaintiffs also alleged that the MDOC failed to sepa-

rate juvenile prisoners from adult prisoners in various

situations and places, including showers, yards, and

eating areas. All of this, despite the fact that the

PREA, which was enacted in 2003, was expressly

designed to prevent youthful inmates from being

“placed in a housing unit in which the youthful inmate

will have sight, sound, or physical contact with any

adult inmate through use of a shared dayroom or other

common space, shower area, or sleeping quarters.” 28

CFR 115.14(a). Given the directives of the PREA and

the allegations that defendants took actions that were

contrary to those directives, combined with the perva-

siveness of the alleged harassment, I ﬁnd that plain-

tiffs sufﬁciently pleaded facts to establish that defen-

dants had knowledge or should have had knowledge of

2015] D

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a hostile environment in all 10 facilities at issue. See

Chambers, 463 Mich at 319; Sheridan, 247 Mich App at

621. Plaintiffs are not, as defendants contend, trying to

hold defendants “strictly liable” for the alleged sexual

assaults. Rather, they are, as is demonstrated by their

numerous allegations, attempting to hold defendants

liable for failing to remedy a hostile environment—an

environment that defendants either knew about or

should have known about—based on the facts alleged.

Defendants were not entitled to summary disposition

under MCR 2.116(C)(8). See Johnson, 491 Mich at 435.

V. CONCLUSION

Because I am bound by existing precedent interpret-

ing

the PLRA, I concur with the majority in regard to

the issue of whether dismissal was required under

MCL 600.5507(3), although dismissal would be with-

out prejudice. In all other respects, I respectfully

dissent from the majority decision. I would afﬁrm the

trial court’s declaration that the 1999 amendment to

the ELCRA is unconstitutional; however, I would do so

on the alternative ground that the statutory amend-

ment contravenes the clear and express directive given

to the Legislature in Const 1963, art 1, § 2 to protect

the civil rights of all persons. I would also hold that the

amendment is unconstitutional because it fails the

rational-basis test. Finally, I would ﬁnd that plaintiffs

pleaded sufﬁcient claims to survive a motion for sum-

mary disposition under MCR 2.116(C)(8).

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PEOPLE v STOKES

Docket No. 321303. Submitted September 1, 2015, at Detroit. Decided

September 8, 2015, at 9:00 a.m. Leave to appeal sought.

Christopher Wayne Stokes was convicted by jury in the Wayne

Circuit Court of carjacking and armed robbery. He was acquitted

of the ﬁrearms charges against him. The court, Ulysses W.

Boykin, J., denied defendant’s motion for a new trial and sen-

tenced defendant as a second-offense habitual offender to concur-

rent terms of 18 to 30 years of imprisonment for each conviction.

Defendant appealed.

The Court of Appeals held:

1. The trial court did not abuse its discretion by denying

defendant’s motion for a new trial because defendant failed to

show that the jury was exposed to an extraneous inﬂuence. After

trial, a juror acknowledged that he had conducted an experiment

at his home in an attempt to recreate the crime scene, but the

juror did not share the results of his experiment with the other

jurors. Therefore, the juror who conducted the experiment did not

bring into the jury room any evidence not presented in open court,

and no extraneous inﬂuence was introduced into the jury’s

deliberations.

2. The prosecution did not violate Brady v Maryland, 373 US

83 (1963), because it did not fail to disclose material evidence that

would have been favorable to defendant. Defendant claimed that

the prosecution failed to provide him with access to his own cell

phone from which he could have obtained contact information for

the individual who prepared the ﬂyer for the party at which

defendant claims he was present at the time of the crimes.

Defendant failed to establish that the cell phone was never

provided to him or that it was lost, and defense counsel acknowl-

edged that she obtained from another source the information

allegedly contained on the cell phone. Defendant further failed to

show that the information contained on the phone could have

affected the outcome of the trial. Defendant also claimed that the

cell phone contained tracking information on his whereabouts at

the time of the crime, but he provided no further explanation of

the information or why the cell phone was necessary to obtain it.

EOPLE V

TOKES

181

3. The Michigan Supreme Court, in People v Lockridge, 498

Mich 358 (2015), ruled that Michigan’s legislative sentencing

guidelines scheme was unconstitutional. Although Lockridge con-

tinued the mandate that trial courts were to use the legislative

sentencing guidelines, the Lockridge Court ruled that the mini-

mum sentences recommended by the guidelines were to be

advisory only. In this case, defendant was acquitted of the

ﬁrearms charges against him, but the trial court scored OV 1

(aggravated use of a weapon) and OV 2 (lethal potential of

weapon possessed or used) as if defendant possessed a gun and

pointed it at the victim. Because the scores for OVs 1 and 2 placed

defendant at a higher OV level than he would have been placed

without the OV 1 and OV 2 scores, defendant’s sentence was

constrained by the unconstitutional application of the legislative

sentencing guidelines as they existed at the time of defendant’s

sentencing. Remands after Lockridge take place according to the

procedure outlined in United States v Crosby, 397 F3d 103 (CA 2,

2005). A defendant whose sentence violates the rule of Lockridge

must timely notify the trial court if he or she does not wish to be

resentenced. A defendant whose sentence was imposed in viola-

tion of Lockridge may opt not to be resentenced in light of the fact

that the trial court, now unconstrained by the minimum sen-

tences prescribed by the formerly mandatory legislative sentenc-

ing scheme, could impose a more severe sentence on a defendant

than the sentence originally imposed. If a defendant fails to give

timely notice that he or she chooses not to be resentenced, (1) the

trial court and counsel must communicate in some form about the

defendant’s sentence, (2) the court may hold a hearing on the

matter, (3) the trial court’s decision whether to resentence the

defendant must be based only on the circumstances existing at

the time the defendant was originally sentenced, (4) the defen-

dant need not be present when the trial court decides whether to

resentence the defendant, and (5) the defendant must be present

if the trial court decides to resentence him or her.

4. The remand procedure for determining whether to resen-

tence a defendant when the trial court’s original sentence may

have resulted from the unconstitutional constraint imposed by

mandatory adherence to the legislative sentencing guidelines

applies to both preserved and unpreserved errors.

5. Defendant’s trial counsel was not ineffective for failing to

request access to defendant’s cell phone until the day of trial

because defendant failed to show the materiality of his cell phone

and so could not establish any prejudice as a result of his

counsel’s failure to earlier request access to the cell phone.

182 312

ICH

181 [Sept

Defendant’s trial counsel was also not ineffective for failing to

request two speciﬁc jury instructions. Defense counsel did not

request the instruction having to do with evidence of a defen-

dant’s ﬂight, and she did not request the alibi instruction.

Defendant failed to overcome the presumption that his counsel’s

decision to not request the ﬂight instruction was sound trial

strategy. The prosecution did not place much emphasis on defen-

dant’s ﬂight, and giving the instruction would have drawn further

attention to evidence that was not favorable to defendant. As for

the alibi instruction, defendant relied on an alibi defense, and it

is unclear why defense counsel did not request the instruction.

However, even if defense counsel’s decision was objectively un-

reasonable, defendant cannot demonstrate a reasonable probabil-

ity of a different result had the instruction been given to the jury.

The absence of an alibi instruction is not error requiring reversal

when the trial court, as it did in this case, properly instructs the

jury on the elements of the crime charged and the prosecutor’s

burden of proof. Finally, defense counsel was not ineffective for

failing to contest the trial court’s jurisdiction over defendant. At

no time did the prosecution establish that the crimes occurred in

Wayne County, only that the crimes occurred in Detroit. However,

a court, at any time in the proceedings, may take judicial notice of

a fact generally known in the jurisdiction or that is capable of

accurate and ready determination through a reliable source.

6. The trial court abused its discretion by refusing to allow

defense counsel, during closing arguments, to identify and impli-

cate another individual in the crimes of which defendant was

convicted. Although closing arguments are not the time to argue

new evidence, attorneys are permitted to argue all reasonable

inferences arising from the evidence admitted at trial. Defense

counsel should have been permitted to expressly argue that

another named individual committed the crimes. However, the

trial court’s error did not deprive defendant of his constitutional

right to present a complete defense. The evidence defense counsel

wished to argue was presented to the jury. Defense counsel

argued extensively that defendant was not the individual who

committed the crimes and called into question the police’s failure

to investigate “another male” living with defendant from whom

defendant’s brother claimed he purchased the victim’s cell phone.

Although defense counsel was not permitted to mention the other

individual’s name, her references to “another male” clearly im-

plied the possibility that the other individual committed the

crimes.

2015] P

EOPLE V

TOKES

183

7. Defendant was not deprived of his right to a fair trial by all

the errors he claimed occurred during his trial. Reversal may be

required when the cumulative effect of several errors creates

sufﬁcient prejudice even when a single error does not. In this

case, with the exception of the sentencing error, defendant has

shown no prejudice as a result of the other claimed errors.

Convictions afﬁrmed and case remanded for further proceed-

ings regarding defendant’s sentences.

1. S

ENTENCING —

EGISLATIVE

ENTENCING

UIDELINES —

NCONSTITUTIONAL

MPOSITION OF

ANDATORY

INIMUM

ENTENCE —

EMAND

ROCEDURE

A defendant is entitled to the remand procedure outlined in

Lockridge if the trial court relied on judicially found facts not

found beyond a reasonable doubt by a jury and not admitted by

the defendant to score the defendant’s offense variables, and the

trial court imposed a sentence within the legislative sentencing

guidelines range calculated using those offense variable scores.

2. S

ENTENCING —

EGISLATIVE

ENTENCING

UIDELINES —

NCONSTITUTIONAL

MPOSITION OF

ANDATORY

INIMUM

ENTENCE —

EMEDY

If a trial court’s discretion when sentencing a defendant was

unconstitutionally constrained by the minimum sentence man-

dated by the legislative sentencing guidelines, the defendant is

entitled the following procedure: (1) the defendant may elect not

to be resentenced by timely notifying the court of that election, (2)

if not timely notiﬁed, the court must communicate with counsel

about the defendant’s sentence, (3) the court may hold a hearing

on the matter, (4) in deciding whether to resentence the defen-

dant, the court may only consider circumstances existing at the

time of the defendant’s original sentencing, (5) the defendant

need not be present at the time the court makes its decision

regarding whether to resentence, and (6) the defendant must be

present during resentencing.

3. S

ENTENCING —

EGISLATIVE

ENTENCING

UIDELINES —

NCONSTITUTIONAL

MPOSITION OF

ANDATORY

INIMUM

ENTENCE —

EMEDY —

RESERVA-

TION OF

RROR

The remand procedure for determining whether to resentence a

defendant after a trial court imposed on a defendant a minimum

sentence within the minimum sentence range mandated by the

legislative sentencing guidelines, when the minimum sentence

range was determined based on offense variable scores calculated

using judicially found facts not decided beyond a reasonable

doubt by a jury or admitted by the defendant, applies to both

preserved and unpreserved errors.

184 312

ICH

181 [Sept

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Kym Worthy, Prosecuting

Attorney, Jason W. Williams, Chief of Research, Train-

ing, and Appeals, and Amy M. Somers, Assistant Pros-

ecuting Attorney, for the people.

Lee A. Somerville for defendant.

Christopher Wayne Stokes, in propria persona.

Before: T

ALBOT

, C.J., and W

ILDER

and F

ORT

OOD

, JJ.

ALBOT

, C.J. Christopher Wayne Stokes appeals as of

right his convictions by jury of carjacking

and armed

robbery.

The trial court sentenced Stokes as a second-

offense habitual offender

to concurrent terms of 18 to

30 years’ imprisonment for each conviction. We afﬁrm

Stokes’s convictions, but remand for further proceed-

ings consistent with this opinion.

I. FACTS

Stokes’s convictions arise out of a carjacking that

occurred

near midnight on July 10, 2013. That night,

Charles Jones drove into his driveway in Detroit.

Stokes appeared and ordered Jones to hand over his

car keys and cell phone. According to Jones, Stokes did

so while pointing a pistol at Jones’s head. Jones

complied, and Stokes ﬂed in Jones’s vehicle. Stokes

was charged with carjacking, armed robbery, and ﬁre-

arms offenses. At trial, Stokes presented several alibi

witnesses. These witnesses generally testiﬁed that on

the night of the carjacking, Stokes was at a “tattoo

MCL 750.529a(1).

MCL 750.529.

MCL 769.10.

2015] P

EOPLE V

TOKES

185

party” at a hair salon in Oak Park.

The jury found

Stokes guilty of carjacking and armed robbery, but

acquitted Stokes of the ﬁrearms offenses. Stokes now

appeals as of right.

II. DISCUSSION

JURY DELIBERATIONS

Stokes argues that he is entitled to a new trial

because a juror engaged in misconduct that denied him

his right to a fair and impartial trial. We disagree.

Stokes raised this issue in a motion for a new trial,

which the trial court denied. “A trial court’s decision to

deny a motion for a new trial is reviewed for an abuse

of discretion. An abuse of discretion occurs only when

the trial court chooses an outcome falling outside the

principled range of outcomes.”

We review de novo a

defendant’s

claim that he or she was denied the Sixth

Amendment right to an impartial jury.

After the trial was complete, the attorneys and the

judge

interviewed the jurors. During this interview,

one juror disclosed that he had conducted an experi-

ment in his own home before deliberations were com-

plete. This juror attempted to recreate the crime scene

by pointing his own gun at a mirror. Although this

juror did not share the results of the experiment with

any other juror, Stokes argues that the experiment

deprived him of a fair and impartial jury because the

experiment inﬂuenced this single juror, who contrib-

uted to the verdict.

The witnesses testiﬁed that the salon hosted the party from 9:00

p.m. to midnight, and that Stokes was the tattoo artist providing tattoos

at the salon.

People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008) (quotation

marks and citations omitted; alteration omitted).

People v Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012).

186 312 M

ICH

181 [Sept

Consistent with a defendant’s right to a fair and

impartial jury, “jurors may only consider the evidence

that is presented to them in open court.”

“Where the

jury considers extraneous facts not introduced in evi-

dence, this deprives a defendant of his rights of con-

frontation, cross-examination, and assistance of coun-

sel embodied in the Sixth Amendment.”

To establish

that

the jury was inﬂuenced in a manner requiring

reversal, a defendant must prove (1) that the jury was

exposed to an extraneous inﬂuence and (2) that this

extraneous inﬂuence “created a real and substantial

possibility that [it] could have affected the jury’s ver-

dict.”

In People

v Fletcher, this Court explained:

Traditionally, the near-universal and ﬁrmly estab-

lished common-law rule in the United States ﬂatly pro-

hibited the admission of juror testimony to impeach a jury

verdict. The only recognized exception to this common-law

rule related to situations in which the jury verdict was

affected by extraneous inﬂuences. Stated differently,

where there is evidence to suggest the verdict was affected

by inﬂuences external to the trial proceedings, courts may

consider juror testimony to impeach a verdict. However,

where the alleged misconduct relates to inﬂuences inter-

nal to the trial proceedings, courts may not invade the

sanctity of the deliberative process.

* * *

[T]he distinction between an external inﬂuence and

inherent misconduct is not based on the location of the

wrong, e.g., distinguished on the basis whether the “ir-

regularity” occurred inside or outside the jury room.

Rather, the nature of the allegation determines whether

People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997).

Id.

Id. at 88-89.

2015] P

EOPLE V

TOKES

187

the allegation is intrinsic to the jury’s deliberative process

or whether it is an outside or extraneous inﬂuence.

[

]

In Fletcher, the jurors collectively reenacted the

crime scene in the jury room using the gun that the

defendant had used to commit the crime.

This Court

found that the reenactment was not an extraneous

inﬂuence because it “was closely intertwined with the

deliberative process and was not premised on anything

other than the jurors’ collective account of the evidence

presented in open court.”

Similarly, in this case, the

juror’s

experiment was closely intertwined with his

deliberative process. The juror’s experiment was an

attempt to recreate the crime scene, apparently aimed

at discovering how the crime was committed. Nothing

indicates that the experiment was premised on any-

thing beyond this juror’s memory of the testimony.

Accordingly, the experiment was not an extraneous

inﬂuence and cannot be a basis for attacking the jury’s

verdict.

Stokes relies on Doan v Brigano

for support. In

Doan,

a juror conducted an experiment in her home to

determine if the defendant’s testimony was truthful.

The juror then shared the results of her experiment

with the rest of the jury.

The Sixth Circuit concluded

that this experiment was an improper extraneous

inﬂuence on the jury because by sharing the results of

People v Fletcher, 260 Mich App 531, 539, 541; 679 NW2d 127 (2004)

(quotation marks and citations omitted; alteration in original).

Id. at 537.

Id. at 542.

Doan v Brigano, 237 F3d 722 (CA 6, 2001), abrogated on other

grounds by Wiggins v Smith, 539 US 510; 123 S Ct 2527; 156 L Ed 2d

471 (2003).

Doan, 237 F3d at 726-727.

Id. at 727.

188 312 M

ICH

181 [Sept

her experiment, the juror brought extraneous facts

before the jury.

The present case is distinguishable.

The juror in the instant matter did not share the

results of his experiment with any other jurors, and

thus, no extraneous facts were brought into the jury

room. Because the juror that conducted the experiment

did not “testify” as an expert witness to the other

jurors, the experiment did not amount to an extrane-

ous inﬂuence.

Accordingly, Stokes is not entitled to

relief.

B. BRADY VIOLA

TION

Stokes next argues that the prosecution violated the

rule of Brady v Maryland

by failing to disclose

various pieces of evidence. Stokes also argues that trial

counsel was ineffective for failing to request access to

Stokes’s cell phone until the ﬁrst day of trial. We

disagree.

This Court reviews due process claims, such as

allegations of a Brady violation, de novo.

“Whether a

person

has been denied effective assistance of counsel

is a mixed question of fact and constitutional law.”

trial

court’s factual ﬁndings, if any, are reviewed for

clear error.

The ultimate question whether counsel

was

ineffective is a constitutional issue reviewed de

novo.

Id. at 734-736. Ultimately, the Doan court denied relief, concluding

that the error was harmless. Id. at 736-739.

Fletcher, 260 Mich App at 543.

Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534

(2007).

People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

Id.

2015] P

EOPLE V

TOKES

189

“A defendant has a due process right of access to

certain information possessed by the prosecution.”

Brady violation occurs if: “(1) the prosecution has

suppressed evidence; (2) that is favorable to the ac-

cused; and (3) that is material.”

“The government is

held responsible for evidence within its control, even

evidence unknown to the prosecution, without regard

to the prosecution’s good or bad faith . . . . Evidence is

favorable to the defense when it is either exculpatory

or impeaching.”

“To establish materiality, a defendant

must

show that there is a reasonable probability that,

had the evidence been disclosed to the defense, the

result of the proceeding would have been different.”

Stokes argues that the prosecutor committed a

Brady violation

by failing to provide Stokes with access

to his own cell phone. On the ﬁrst day of trial, Stokes’s

counsel requested access to the cell phone in order to

ﬁnd contact information for the individual who pre-

pared a ﬂyer advertising the tattoo party. The prosecu-

tor agreed to allow defense counsel to view the cell

phone for this purpose. The following day, defense

counsel acknowledged that she had obtained the con-

tact information from another source and that the

witness was being interviewed. The same witness

testiﬁed at trial.

Stokes’s Brady claim fails for a variety of reasons.

First, the record does not support Stokes’s assertion

that the cell phone was not provided to him. When

Stokes requested access to the cell phone, the prosecu-

tor offered to make it available. The record does not

People v Fox (After Remand), 232 Mich App 541, 549; 591 NW2d 384

(1998), citing Brady, 373 US 83.

People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014).

Id. (citations omitted).

Id. (quotation marks and citation omitted).

190 312 M

ICH

181 [Sept

establish whether the cell phone was ever provided to

Stokes. Stokes now asserts that the cell phone was lost

by the police or the prosecutor and never provided to

him. The only mention of the cell phone having been

lost appears in a statement by defendant’s appellate

counsel during a hearing held in the trial court regard-

ing Stokes’s motion for a new trial. It appears that

counsel, after reviewing the transcripts, simply as-

sumed that the cell phone was lost when no mention of

it was made after the ﬁrst day of trial. We refuse to

adopt this assumption, which has no apparent basis in

the record. Stokes has not established that the pros-

ecutor actually suppressed evidence.

Nor has Stokes satisﬁed the third prong by demon-

strating that the cell phone contained material infor-

mation that could have altered the outcome of the trial.

To succeed on his claim, Stokes must demonstrate that

the cell phone contained evidence that, had it been

disclosed, would have been reasonably likely to lead to

a different result.

Stokes ﬁrst argues that the cell

phone

contained contact information for the individual

who prepared the ﬂyer. However, Stokes obtained this

information from another source, and the witness

testiﬁed at trial. Stokes also argues that the cell phone

contained a tracking program that could have shown

his location on the night of the carjacking. However,

Stokes provides no evidence of what information this

tracking program would have provided, nor does he

explain why the cell phone was necessary to obtain the

information. Stokes also asserts that the cell phone

contained “additional alibi information,” but fails to

explain what alibi information would be found on the

cell phone. We simply have no basis to conclude that

Id.

2015] P

EOPLE V

TOKES

191

the cell phone contained any information that was

reasonably likely to lead to a different result in this

case.

Stokes also argues that trial counsel was ineffective

for failing to seek access to the cell phone until the day

of trial, at which point Stokes assumes the cell phone

had been lost. “Effective assistance of counsel is pre-

sumed, and a defendant bears a heavy burden to prove

otherwise.”

“To prove a claim of ineffective assistance

counsel, a defendant must establish that counsel’s

performance fell below objective standards of reason-

ableness and that, but for counsel’s error, there is a

reasonable probability that the result of the proceed-

ings would have been different.”

As our Supreme

Court

has recognized, the materiality prong of the

Brady test requires the same showing of prejudice

required to establish ineffective assistance of counsel.

Because Stokes cannot demonstrate that any material

evidence

was withheld, he cannot demonstrate that

any failure by his attorney to seek this evidence earlier

warrants relief.

C. SENTENCING ERROR

Next, Stokes argues that, under Alleyne

v United

States,

his Sixth Amendment right to a jury trial was

violated when the trial court made factual ﬁndings to

determine Stokes’s minimum sentence. We agree. “A

Sixth Amendment challenge presents a question of

constitutional law that this Court reviews de novo.”

People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010).

Id.

Chenault, 495 Mich at 159.

Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314

(2013).

People v Lockridge, 498 Mich 358, 373; 870 NW2d 502 (2015).

192 312 M

ICH

181 [Sept

Michigan’s legislatively enacted sentencing scheme

requires a trial court to score a number of variables

that take into account a defendant’s past criminal

history and the circumstances of the crime.

Using the

resulting

scores, trial courts must then determine the

appropriate range for a defendant’s minimum sentence

using the appropriate sentencing grid.

Crucially,

when scoring the variables, trial courts are permitted

to make factual ﬁndings which need only be supported

by a preponderance of the evidence.

Until recently,

under

the guidelines as enacted by our Legislature,

trial courts were required to impose a minimum sen-

tence falling within the calculated range, unless the

trial court was able to articulate a substantial and

compelling reason warranting a departure from that

range.

In People

v Lockridge, our Supreme Court held that

Michigan’s sentencing scheme violated the Sixth

Amendment right to a jury trial because it required

“judicial fact-ﬁnding beyond facts admitted by the

defendant or found by the jury to score offense vari-

ables (OVs) that mandatorily increase[d] the ﬂoor of

See People v Smith, 482 Mich 292, 305; 754 NW2d 284 (2008). As

the Court explained, “the very purpose of the sentencing guidelines is to

facilitate proportionate sentences.” Id.

See MCL 777.61 to MCL 777.69; Lockridge, 498 Mich at 365 (“[A]

sentencing court must determine the applicable guidelines range and

take it into account when imposing a sentence.”).

People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

MCL 769.34(2) (“[T]he minimum sentence imposed by a court . . .

shall be within the appropriate sentence range . . . .”); MCL 769.34(3)

(“A court may depart from the appropriate sentence range established

under the sentencing guidelines . . . if the court has a substantial and

compelling reason for that departure . . . .”). See also Lockridge, 498

Mich at 387 (“The guidelines minimum sentence range is binding on

trial courts, absent their articulating substantial and compelling rea-

sons for a departure.”).

2015] P

EOPLE V

TOKES

193

the guidelines minimum sentence range, i.e., the ‘man-

datory minimum’ sentence under Alleyne.”

Precisely

such a violation occurred in this case. Although the

jury acquitted Stokes of both ﬁrearms charges brought

against him, the trial court scored OVs 1 and 2 as if

Stokes possessed a pistol and pointed it at Jones.

If no

points

are assigned to these variables, Stokes’s OV

level drops from Level III to Level II, and his minimum

sentence range under the guidelines as a second-

offense habitual offender would be reduced from a

range of 126 to 262 months to a range of 108 to 225

months.

Thus, it cannot be disputed that the trial

court

relied on facts not admitted by Stokes or found by

the jury in order to calculate his sentencing guidelines

range, and that these judicially found facts resulted in

an increased minimum sentencing range. As such,

under Lockridge, Stokes’s Sixth Amendment rights

were violated at sentencing.

In Lockridge, our Supreme Court contemplated sev-

eral possible methods to remedy this constitutional

defect. One potential remedy considered by the Court

was “to require juries to ﬁnd the facts used to score all

the OVs that are not admitted or stipulated by the

defendant or necessarily found by the jury’s verdict.”

Stokes requests such a remedy here: he asks this Court

remand for resentencing, but with no points as-

Lockridge, 498 Mich at 364. See also id. at 399 (“Because Michigan’s

sentencing guidelines scheme allows judges to ﬁnd by a preponderance

of the evidence facts that are then used to compel an increase in the

mandatory minimum punishment a defendant receives, it violates the

Sixth Amendment to the United States Constitution under Alleyne.”).

Speciﬁcally, the trial court assigned 15 points to OV 1 for pointing

a ﬁrearm at Jones, MCL 777.31(1)(c), and 5 points to OV 2 for possessing

a pistol, MCL 777.32(1)(d), for a total of 20 points.

See MCL 777.62; MCL 777.21(3)(a).

Lockridge, 498 Mich at 389.

194 312 M

ICH

181 [Sept

signed to OVs 1 and 2, such that his minimum sen-

tence would fall between 108 and 225 months. He asks

that the trial court be required to sentence him within

this reduced range, absent a substantial and compel-

ling reason warranting a departure. However, our

Supreme Court “reject[ed] this option” because requir-

ing all facts utilized in the sentencing guidelines to

either be found by a jury or admitted by the defendant

“could essentially turn sentencing proceedings into

mini-trials,” and “[t]he constitutional violation c[ould]

be effectively remedied without burdening our judicial

system in this manner . . . .”

Thus, we cannot grant

Stokes

the remedy he seeks.

Rather, because the rule of Alleyne only applies to

judicial fact-ﬁnding that mandatorily increases a mini-

mum sentence,

our Supreme Court concluded that

the appropriate remedy was to render Michigan’s sen-

tencing guidelines merely advisory.

The Court did so

through

a “judicial rewriting of the statute, . . . substi-

tut[ing] the word ‘may’ for ‘shall’ in MCL 769.34(2) and

remov[ing] the requirement in MCL 769.34(3) that a

trial court that departs from the applicable guidelines

range must articulate a substantial and compelling

reason for that departure.”

Thus, in effect, MCL

769.34(2)

now reads:

Except as otherwise provided in this subsection or for a

departure from the appropriate minimum sentence range

provided for under subsection (3), the minimum

Id.

See id. at 364; Alleyne, 133 S Ct at 2155.

Lockridge, 498 Mich at 399 (“To remedy the constitutional ﬂaw in

the guidelines, we hold that they are advisory only.”). Our Supreme

Court adopted this remedy from United States v Booker, 543 US 220;

125 S Ct 738; 160 L Ed 2d 621 (2005). Lockridge, 498 Mich at 391.

Lockridge, 498 Mich at 391.

2015] P

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TOKES

195

sentence imposed by a court of this state for a felony

enumerated in part 2 of chapter XVII committed on or

after January 1, 1999 [may] be within the appropriate

sentence range under the version of those sentencing

guidelines in effect on the date the crime was commit-

ted.

[45]

In effect, MCL 769.34(3) now reads, “A court may

depart from the appropriate sentence range estab-

lished under the sentencing guidelines set forth in

chapter XVII . . . .”

Our Supreme Court was careful to state that the

sentencing

guidelines must still be scored, and that

trial courts must assess the “highest number of points

possible” to each variable, “whether using judge-found

facts or not.”

Trial courts must “continue to consult

the applicable guidelines range and take it into ac-

count when imposing a sentence.”

Thus, under Lock-

ridge, while the sentencing guidelines must still be

scored by the trial court, the resulting range is merely

an advisory range that must be taken into account by

the trial court when imposing a sentence.

“When a

defendant’s

sentence is calculated using a guidelines

minimum sentence range in which OVs have been

scored on the basis of facts not admitted by the

defendant or found beyond a reasonable doubt by the

jury, the sentencing court may exercise its discretion to

depart from that guidelines range without articulating

substantial and compelling reasons for doing so.”

explained

by our Supreme Court, “[b]ecause sentenc-

MCL 769.34(2); Lockridge, 498 Mich at 391.

MCL 769.34(3); Lockridge, 498 Mich at 391.

Lockridge, 498 Mich at 392, 392 n 8.

Id. at 392.

Id. at 391-392.

Id. at 392.

196 312 M

ICH

181 [Sept

ing courts will hereafter not be bound by the applicable

sentencing guidelines range, this remedy cures the

Sixth Amendment ﬂaw in our guidelines scheme by

removing the unconstitutional constraint on the

court’s discretion.”

In Lockridge,

our Supreme Court instructed courts

regarding how to proceed “in the many cases that have

been held in abeyance for this one.”

Noting that

“virtually

all” of these cases involve unpreserved chal-

lenges, our Supreme Court described a procedure, the

goal of which is to determine whether a Lockridge error

resulted in prejudice to any given defendant.

Such an

inquiry

is necessary because unpreserved constitu-

tional errors are subject to plain-error review, which

requires a defendant to demonstrate not only that an

error occurred, but “that the error affected the outcome

of the lower court proceedings.”

Our Supreme Court

held

that if a defendant is able to “establish a threshold

showing of the potential for plain error,” the case must

“be remanded to the trial court to determine whether

that court would have imposed a materially different

sentence but for the constitutional error. If the trial

court determines that the answer to that question is

yes, the court shall order resentencing.”

The precise

Id.

Id. at 394.

Id. at 394-399.

Id. at 393.

Id. at 395, 397. The Court determined that a “threshold showing of

the potential for plain error” is made in “cases in which facts admitted by

a defendant or found by the jury verdict were insufﬁcient to assess the

minimum number of OV points necessary for the defendant’s score to fall

in the cell of the sentencing grid under which he or she was sentenced,”

and in which the trial court did not impose a sentence that was an upward

departure from the guidelines range. Id. at 395. That is the precise

scenario now before us. Thus, had Stokes failed to preserve his claim of

error, the remand procedure described in Lockridge would clearly be

required.

2015] P

EOPLE V

TOKES

197

procedure to be followed, modeled on that adopted in

United States v Crosby,

is as follows:

[O]n a Crosby remand, a trial court should ﬁrst allow a

defendant an opportunity to inform the court that he or

she will not seek resentencing. If notiﬁcation is not re-

ceived in a timely manner, the court (1) should obtain the

views of counsel in some form, (2) may but is not required

to hold a hearing on the matter, and (3) need not have the

defendant present when it decides whether to resentence

the defendant, but (4) must have the defendant present, as

required by [MCR 6.425], if it decides to resentence the

defendant. Further, in determining whether the court

would have imposed a materially different sentence but

for the unconstitutional constraint, the court should con-

sider only the circumstances existing at the time of the

original sentence.

[

]

However, in this case, Stokes preserved his claim of

error by raising the issue in the trial court.

“[C]onsti-

tutional error such as occurred here must be classiﬁed

as either structural or nonstructural. If the error is

structural, reversal is automatic. If the constitutional

error is not structural, it is subject to the harmless

beyond a reasonable doubt test.”

A L

ockridge error is

not structural,

and thus, must be reviewed for harm-

less error.

We conclude that in order to determine whether the

error in this case was harmless, the Crosby remand

United States v Crosby, 397 F3d 103 (CA 2, 2005).

Lockridge, 498 Mich at 398 (quotation marks and citation omitted).

See People v Loper, 299 Mich App 451, 456; 830 NW2d 836 (2013).

In the instant case, the trial court denied relief, relying on this Court’s

opinion in People v Herron, 303 Mich App 392; 845 NW2d 533 (2013),

overruled by Lockridge, 498 Mich at 399.

People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000) (citation

omitted).

See Lockridge, 498 Mich at 392 n 29.

198 312 M

ICH

181 [Sept

procedure must be followed. First and foremost, the

Court’s opinion in Lockridge supports this conclusion.

In Lockridge, our Supreme Court cited with approval

the following language from Crosby:

A remand for determination of whether to

resentence is

appropriate in order to undertake a proper application of

the plain error and harmless error doctrines. Without

knowing whether a sentencing judge would have imposed

a materially different sentence, . . . an appellate court will

normally be unable to assess the signiﬁcance of any error

that might have been made. . . .

Obviously, any of the errors in the procedure for select-

ing the original sentence discussed in this opinion would be

harmless, and not prejudicial under plain error analysis, if

the judge decides on remand, in full compliance with now

applicable requirements, that . . . the sentence would have

been essentially the same as originally imposed. Con-

versely, a district judge’s decision that the original sentence

would have differed in a nontrivial manner from that

imposed will demonstrate that the error in imposing the

original sentence was harmful and satisﬁes plain error

analysis.

[

]

Unfortunately, our analysis is not as simple as

applying this language as it reads. In the same year

that the Second Circuit decided Crosby, it also

decided United States v Lake.

In Lake, the court held

that with respect to preserved sentencing errors of

the type now at issue, the Crosby procedure does not

apply.

The Second Circuit described its own refer-

ences

to harmless error in Crosby as merely dicta,

and held that an intervening case, United States

Id. at 396, quoting Crosby, 397 F3d at 117-118 (ﬁrst emphasis in

original; ﬁrst and second omissions in original).

United States v Lake, 419 F3d 111 (CA 2, 2005).

Id. at 113 n 2.

2015] P

EOPLE V

TOKES

199

v Fagans,

“abrogated the dictum in Crosby that had

indicated that a Crosby remand would be appropriate

for application of the harmless error doctrine as well as

the plain error doctrine.”

The court stated that “the

issue

upon review of the preserved error is whether we

should afﬁrm, if the Government has shown the error

to be harmless, or remand for resentencing, if such a

showing has not been made.”

That the Second Circuit

has

repudiated Crosby to the extent it held that its

remand procedure applied to preserved claims raises

the question whether this Court should do the same.

But given that our Supreme Court speciﬁcally ex-

pressed its “agreement with” the quoted analysis

stated in Crosby,

we believe our Supreme Court

intended

the Crosby procedure to apply to both pre-

served and unpreserved errors. Notably, our Supreme

Court did not acknowledge or address Lake or any

other cases discussing how to proceed with preserved

errors of the nature at issue here. And although

Lockridge concerned an unpreserved claim of error, the

portion of the Court’s opinion in which the quoted

Crosby analysis appears is a section explicitly devoted

to describing the appropriate procedure to be followed

in cases, such as this one, involving pre-Lockridge

sentencing errors. Thus, we cannot say that our Su-

preme Court’s reference to this language was merely

dictum.

As a practical matter, we see no reason why if the

Crosby procedure is necessary to resolve unpreserved

claims, it would not likewise be necessary to resolve

preserved claims. Ultimately, the purpose of a Crosby

United States v Fagans, 406 F3d 138 (CA 2, 2005).

Lake, 419 F3d at 113 n 2.

Id.

Lockridge, 498 Mich at 395.

200 312 M

ICH

181 [Sept

remand is to determine what effect Lockridge would

have on the defendant’s sentence so that it may be

determined whether any prejudice resulted from the

error.

Similarly, we cannot say with certainty that the

error

was or was not harmless without knowing what

sentence would result had the trial court “been aware

that the guidelines were merely advisory.”

Perhaps

the largest difference between establishing prejudice

under the plain error test and the harmless error test

is on which party the burden lies. Under the plain

error test, the burden lies with the defendant to

demonstrate “that the error affected the outcome of the

lower court proceedings.”

But when a constitutional

error

is preserved, the burden falls on “the beneﬁciary

of the error,” in this case, the prosecution, to “estab-

lish[] that it is harmless beyond a reasonable doubt.”

Yet whether this Court’s review is for plain error or for

harmless

error, the overriding question is the same:

what effect, if any, did the error have on the lower court

proceedings? On whom the burden falls does not

change the nature of the inquiry. We see no logical

reason why the Crosby remand procedure should apply

to unpreserved errors, but not to preserved errors.

Further, the Crosby procedure offers a measure of

protection to a defendant. As the ﬁrst step of this

procedure, a defendant is provided with an opportunity

“to avoid resentencing by promptly notifying the trial

judge that resentencing will not be sought.”

See id. at 394-397.

Id. at 395 n 31.

Id. at 393.

People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).

Lockridge, 498 Mich at 398 (quotation marks, citation, and altera-

tion omitted). Our Supreme Court did not deﬁne what constitutes

“prompt notiﬁcation” by a defendant in the context of a Crosby remand.

2015] P

EOPLE V

TOKES

201

believe this step is particularly important because,

given the sentencing discretion now afforded to trial

courts, Stokes faces the possibility of receiving a more

severe sentence if he is resentenced.

Although Stokes

raised

his challenge in the trial court and has pursued

the issue on appeal, his desired remedy was resentenc-

ing with a lower, but still mandatory, guidelines range.

While Stokes has ultimately prevailed on his claim of

constitutional error, we do not assume that he is

satisﬁed with the remedy available to him. If we were

to simply remand for resentencing, we would deprive

Stokes of the opportunity to avoid resentencing if that

is his desire. In that sense, we would be punishing

Stokes for preserving his claim of error.

Id. Certainly, the question of what constitutes timely notice may arise in

a future case, particularly if a trial court were to deem a notice untimely

and then proceed to resentence a defendant to a more severe sentence.

However, that issue is not presently before the Court. Thus, we decline

to address the question at this juncture.

See Crosby, 397 F3d at 117 (“[A] change in cases of sentences below

a statutory maximum might yield a higher sentence . . . .”); United

States v Regalado, 518 F3d 143, 149 (CA 2, 2008) (“Crosby recognized

that a resentencing might yield a higher sentence.”). See also Alabama

v Smith, 490 US 794, 798; 109 S Ct 2201; 104 L Ed 2d 865 (1989)

(holding that a higher sentence on resentencing is permissible so long as

the trial court is not motivated by vindictiveness against a defendant for

having succeeded on appeal). We note that the trial court must make its

initial determination whether to resentence a defendant based on the

“ ‘circumstances existing at the time of the original sentence.’ ” Lock-

ridge, 498 Mich at 398, quoting Crosby, 397 F3d at 117. However, if

resentencing occurs, the trial court may rely on new information to

justify a more severe sentence. People v Mazzie, 429 Mich 29, 36-37; 413

NW2d 1 (1987). See also People v Colon, 250 Mich App 59, 66; 644 NW2d

790 (2002) (“When a defendant is resentenced by the same judge and the

second sentence is longer than the ﬁrst, there is a presumption of

vindictiveness. That presumption may be overcome if the trial court

enunciates reasons for doing so at resentencing.”) (quotation marks and

citation omitted).

We reiterate that if Stokes had not preserved his claim, the Crosby

procedure would clearly be applicable here. See note 55 of this opinion.

202 312

ICH

181 [Sept

Thus, in this case, we remand the matter to the trial

court to follow the Crosby procedure in the same

manner as outlined in Lockridge for unpreserved er-

rors. Stokes may elect to forgo resentencing by provid-

ing the trial court with prompt notice of his intention to

do so.

If “notiﬁcation is not received in a timely

manner,” the trial court shall continue with the Crosby

remand procedure as explained in Lockridge.

D. FAILURE TO REQUEST JURY INSTRUCTIONS

Stokes argues that he was denied the effective

assistance of counsel because his trial counsel failed to

request two jury instructions. We disagree.

Stokes ﬁrst argues that his trial counsel was inef-

fective for failing to request that the jury be provided

with M Crim JI 4.4. In relevant part, this instruction

states that evidence of ﬂight “does not prove guilt. A

person may run or hide for innocent reasons, such as

panic, mistake, or fear. However, a person may also run

or hide because of a consciousness of guilt.”

The jury

then instructed that it “must decide whether the

evidence is true, and, if true, whether it shows that the

defendant had a guilty state of mind.”

Ofﬁcer Theodore Jackson arrested Stokes after a

trafﬁc stop and testiﬁed that Stokes stated he was

moving to Flint. Jackson also testiﬁed that he found

“[s]everal bags of clothes and shoes; socks and tooth-

brush; everything,” in the car. However, Jackson did

Lockridge, 498 Mich at 398.

Id.

This issue and the remaining issues were raised by Stokes in his

Standard 4 Brief on Appeal.

M Crim JI 4.4(2).

M Crim JI 4.4(3).

2015] P

EOPLE V

TOKES

203

not put this information in his written report. At trial,

defense counsel attempted to establish that perhaps

Jackson was mistaken that Stokes had planned to

move to Flint, pointing out that Jackson had made

several other arrests since he arrested Stokes.

To establish that counsel was ineffective, Stokes

must overcome the “strong presumption that counsel’s

assistance constituted sound trial strategy.”

Stokes

cannot

overcome this presumption. The prosecutor did

not place much emphasis on Stokes’s attempted ﬂight,

and defense counsel’s strategy was to imply that Jack-

son had confused Stokes’s arrest with that of another

individual. Instructing the jury regarding evidence of

ﬂight would have drawn further attention to evidence

that was not favorable to Stokes. Under the circum-

stances, Stokes cannot overcome the presumption that

counsel’s decision not to request the instruction was

sound trial strategy.

Stokes also argues that counsel was ineffective for

failing to request an alibi instruction. Given that

Stokes largely relied on an alibi defense, it is unclear

why counsel failed to request an alibi instruction. But

even assuming the failure to request the instruction

was objectively unreasonable, Stokes cannot demon-

strate a reasonable probability of a different result had

the instruction been provided. The trial court appro-

priately instructed the jury regarding the prosecutor’s

burden of proof and the elements of the crime. The trial

court also thoroughly instructed the jury that the

prosecutor had the burden of proving that Stokes was

the individual who committed the crime. The trial

court further instructed the jury on how to consider

identiﬁcation evidence. Under similar circumstances,

this Court has explained:

People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011).

204 312 M

ICH

181 [Sept

The failure to give an alibi instruction is not error requiring

reversal where the court properly instructs on the elements

of the charged offense and the prosecutor’s burden of proof.

Consistent with this principle, where, as here, these in-

structions were given, the absence of an alibi instruction

would not have a reasonable probability of affecting the

outcome of the trial. Therefore, we conclude defendant was

not denied the effective assistance of counsel.

[

]

For the same reasons, Stokes was not denied the

effective assistance of counsel as a result of his coun-

sel’s failure to request an alibi instruction.

E. FAILURE TO INVESTIGATE

Stokes next argues that counsel was ineffective for

failing

to interview any of the prosecutor’s witnesses

and for failing to investigate the possible involvement

of another man named Andre.

We disagree. A defen-

dant

raising a claim of ineffective assistance of counsel

bears the burden of proving the factual predicate of his

or her claim.

To support his assertions, Stokes relies

only

on afﬁdavits attached to his pro se appellate brief.

But because Stokes did not preserve this claim in the

trial court, “our review is limited to errors apparent on

the record.”

As there is no available record to estab-

lish

that trial counsel failed to interview or investigate

these witnesses, Stokes’s claim necessarily fails.

F. RIGHT TO PRESENT A DEFENSE

Stokes next argues that his constitutional right to

present

a defense was violated when the trial court

People v Sabin (On Second Remand), 242 Mich App 656, 660; 620

NW2d 19 (2000) (citation omitted).

Andre’s last name is not disclosed in the record.

People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Matuszak, 263 Mich App at 48.

2015] P

EOPLE V

TOKES

205

ruled that his trial counsel could not, in closing argu-

ment, speciﬁcally implicate another individual, Andre,

as the man who committed the carjacking. We dis-

agree. This Court reviews “de novo the question

whether a defendant was denied the constitutional

right to present a defense.”

“This Court reviews the

trial

court’s ruling with regard to closing arguments

for an abuse of discretion.”

Antawon Wright is Stokes’s younger brother and

lives with Stokes. The two share a bedroom. During a

search of Stokes’s home, the police recovered Jones’s

stolen cell phone from this bedroom. Wright testiﬁed

that he bought the cell phone from Andre, who also

lived in the home. Based on this evidence, Stokes’s

attorney sought to argue that it was Andre, not Stokes,

who committed the carjacking and robbery. The trial

court denied the request because it “did not feel that

the evidence adduced during the trial would support

such an inference.”

“The purpose of closing argument is to allow attor-

neys to comment on the evidence and to argue their

theories of the law to the jury.”

Thus, “[c]losing

argument

is not the time to introduce new evidence.”

However, an attorney may argue the facts and all

reasonable inferences arising from the evidence admit-

ted at trial.

Under the circumstances, the trial court

abused

its discretion when it refused to allow defense

counsel to speciﬁcally argue that Andre was the indi-

vidual who committed the crimes. Because Jones’s cell

phone was taken from Jones during the carjacking,

People v Unger, 278 Mich App 210, 247; 749 NW2d 272 (2008).

People v Lacalamita, 286 Mich App 467, 472; 780 NW2d 311 (2009).

People v Finley, 161 Mich App 1, 9; 410 NW2d 282 (1987).

Id.

See People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).

206 312

ICH

181 [Sept

and Wright had testiﬁed that Andre sold the same cell

phone to him, a rational inference could be drawn that

Andre was the individual who committed the carjack-

ing. This was not an attempt to add new evidence to

the trial; it was a permissible attempt to argue a

reasonable inference from the evidence adduced at

trial.

However, this error did not deprive Stokes of his

right to present a defense. “ ‘Whether rooted directly in

the Due Process Clause of the Fourteenth Amendment

or in the Compulsory Process or Confrontation clauses

of the Sixth Amendment, the Constitution guarantees

criminal defendants a meaningful opportunity to pres-

ent a complete defense.’ ”

Stokes received a meaning-

ul opportunity to present a complete defense. The

relevant evidence was presented to the jury. Stokes’s

trial counsel, while not allowed to speciﬁcally refer to

Andre, was permitted to extensively argue that

Stokes was not the individual who committed the

crimes. Counsel argued that Jones had incorrectly

identiﬁed Stokes, pointing to various discrepancies in

Jones’s testimony and facts that might have affected

Jones’s ability to see his assailant. Counsel also

discussed the cell phone recovered from Stokes’s

bedroom. Counsel pointed out that Wright had testi-

ﬁed to purchasing the cell phone from Andre and then

asked the jury to consider why the police had not

investigated “another male” who lived in the home.

The only men who lived in the home were Stokes,

Wright, and Andre. Thus, given the preceding argu-

ments made by counsel, counsel’s reference to “an-

other male” living in the home clearly implied the

Unger, 278 Mich App at 249, quoting Holmes v South Carolina, 547

US 319, 324; 126 S Ct 1727; 164 L Ed 2d 503 (2006) (quotation marks

and citations omitted).

2015] P

EOPLE V

TOKES

207

possibility that Andre committed the crimes. Stokes

was not deprived of a meaningful opportunity to pres-

ent a complete defense.

G. PRELIMINARY EXAMINATION

Stokes next argues that counsel was ineffective for

failing to contest the circuit court’s jurisdiction over

Stokes. We disagree.

“Due process requires that the trial of criminal pros-

ecutions should be by a jury of the county or city where

the offense was committed, except as otherwise pro-

vided by the Legislature.”

At Stokes’s preliminary

examination,

Jones testiﬁed that the crime occurred in

Detroit. No evidence was admitted speciﬁcally demon-

strating that Detroit is situated in Wayne County.

Stokes argues that because it was not established that

Detroit is located within Wayne County, it was not

established that the Wayne Circuit Court was the

proper court to conduct his criminal trial. The district

and circuit courts could take judicial notice of the fact

that Detroit is situated within the borders of Wayne

County.

Counsel was not ineffective for failing to

For the same reasons, while the trial court abused its discretion by

failing to allow Stokes to point to Andre speciﬁcally, this error was

harmless, and does not warrant reversal. See People v Lukity, 460 Mich

484, 495; 596 NW2d 607 (1999) (holding that claims of preserved,

nonconstitutional error do not warrant reversal unless “it is more

probable than not that a different outcome would have resulted without

the error”).

People v Webbs, 263 Mich App 531, 533; 689 NW2d 163 (2004)

(quotation marks and citation omitted).

See MRE 201(b) (“A judicially noticed fact must be one not subject

to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot reason-

ably be questioned.”); MRE 201(e) (“Judicial notice may be taken at any

stage of the proceeding.”). See also People v Burt, 89 Mich App 293,

208 312

ICH

181 [Sept

raise such a trivial point in the trial court.

H. CUMULATIVE ERROR

Finally, Stokes argues that “[a]ll of the errors that

riddled” his trial deprived him of the right to a fair trial.

We disagree. “[T]he cumulative effect of several errors

can constitute sufﬁcient prejudice to warrant reversal

where the prejudice of any one error would not.”

But

with

the exception of the sentencing error previously

discussed, Stokes has failed to demonstrate the exis-

tence of any errors that resulted in prejudice. Thus,

while Stokes is entitled to relief with regard to his

claim of sentencing error, no further relief is war-

ranted.

III. CONCLUSION

We afﬁrm Stokes’s convictions, but we remand for

further

proceedings consistent with this opinion. We do

not retain jurisdiction.

ILDER

and F

ORT

OOD

, JJ., concurred with T

ALBOT

C.J.

297-298; 279 NW2d 299 (1979) (taking judicial notice of the fact that “no

football game between Washington and Dallas, or between any other

professional football teams, was televised on . . . December 24, 1976”).

See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010)

(“Failing to advance a meritless argument or raise a futile objection does

not constitute ineffective assistance of counsel.”).

People v LeBlanc, 465 Mich 575, 591; 640 NW2d 246 (2002).

As noted by our Supreme Court in Lockridge, two federal circuit

courts have adopted a remand procedure similar to the Crosby proce-

dure, “although modifying it so that the appellate court retains juris-

diction throughout the limited remand, and thus it is the appellate court

that will vacate the sentence upon being notiﬁed by the judge that he

would not have imposed it had he known that the guidelines were

merely advisory.” Lockridge, 498 Mich at 396 n 33 (quotation marks and

citations omitted). That our Supreme Court acknowledged such a

procedure, but did not adopt it, is informative. When an appellate court

orders a Crosby remand, it should not retain jurisdiction. See id.

2015] P

EOPLE V

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209

SALEM SPRINGS, LLC v SALEM TOWNSHIP

Docket No. 322956. Submitted September 1, 2015, at Lansing. Decided

September 8, 2015, at 9:05 a.m. Leave to appeal sought.

Salem Springs, LLC, brought an action in the Washtenaw Circuit

Court against Salem Township and the Washtenaw County Clerk,

seeking to enjoin an election that was to be held in November

2012 concerning the rezoning of property formerly owned by

plaintiff. Plaintiff had owned the property until 2009, when it

transferred the property to Salem Springs Owner, LLC, a sepa-

rate and distinct company, although plaintiff served as the

manager of Salem Springs Owner. The property had been zoned

as agricultural-residential property. In 2011, plaintiff sought to

have the property rezoned as general-commercial property. The

Salem Township Board of Trustees approved the change. Inter-

vening defendant Norman Klein, Sr., ﬁled a notice of intent under

MCL 125.3402(1) to petition to have the amendments submitted

to the electorate for approval. Klein later submitted a petition

signed by the requisite number of voters, and the township board

approved ballot language submitting the issue to the voters.

Plaintiff ﬁled this action to enjoin the vote, alleging the petition

was invalid. Klein and others moved to intervene. The court,

Donald E. Shelton, J., granted the motion to intervene and denied

plaintiff’s request for injunctive relief. The Court of Appeals and

the Michigan Supreme Court denied plaintiff’s applications for

leave to appeal. 493 Mich 880 (2012). The vote was held, and the

electorate voted to reverse the board’s decision to change the

zoning. Plaintiff then ﬁled an amended complaint that included a

quo warranto claim challenging the election results under MCL

600.4545. Intervening defendants moved for summary disposi-

tion, asserting that plaintiff lacked standing under the statute.

Plaintiff opposed intervening defendants’ motion for summary

disposition, asserting that summary disposition should instead be

granted in plaintiff’s favor because no material question of fact

remained with respect to whether Klein’s petition was invalid.

The court concluded that plaintiff had standing and it granted

summary disposition in favor of plaintiff. Intervening defendants

appealed.

210 312

ICH

210 [Sept

The Court of Appeals held:

Under MCL 600.4545(1), a lawsuit in the nature of a quo

warranto action may be brought whenever it appears that mate-

rial fraud or error has been committed at any election in such

county at which there has been submitted any constitutional

amendment, question, or proposition to the electors of the state or

any county, township, or municipality thereof. The purpose of

such an action is to test the validity of the election itself, and to

succeed requires a showing of fraud or error that might have

affected the outcome of the election. The action must be brought

within 30 days after the election by the attorney general, the

prosecuting attorney of the proper county, or by any citizen of the

county. Only those individuals speciﬁcally identiﬁed in the stat-

ute have authority to bring an action under the statute. Conse-

quently, in this case, plaintiff must have been a citizen of

Washtenaw County to have had standing to bring suit under the

statute.

To be a citizen of the county, at minimum, plaintiff would need

to have inhabited or resided in the county at the time of ﬁling

suit. Plaintiff did not inhabit Washtenaw County as required to

be considered a citizen of the county, given that its original

registered ofﬁce was located in Oakland County, other documents

listed plaintiff’s address as in Wayne County, and there was no

evidence that plaintiff owned property or had a place of business

in Washtenaw County. Neither plaintiff’s former ownership of the

property in Washtenaw County nor its management of Salem

Springs Owner conferred the requisite Washtenaw County citi-

zenship on plaintiff. Plaintiff and Salem Springs Owner were

organized as separate and distinct limited liability companies

under the Michigan Limited Liability Company Act, MCL

450.4101 et seq. Plaintiff, accordingly, had no interest in the

Washtenaw County property after it transferred ownership to

Salem Springs Owner, and even supposing that mere ownership

of land in a county confers citizenship for purposes of MCL

600.4545, plaintiff could not claim citizenship in Washtenaw

County based on its previous ownership of land there.

To the extent plaintiff suggested that its management of

Salem Springs Owner conferred standing on plaintiff under MCL

600.4545, this argument ignored the distinction between acting

as an agent on behalf of Salem Springs Owner and plaintiff’s

attempt to litigate in plaintiff’s own name. While plaintiff could

have, acting as the manager, ﬁled suit in the name of Salem

Springs Owner, it did not follow that plaintiff could ﬁle suit in its

own name based on Salem Springs Owner’s purported standing

2015] S

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under MCL 600.4545. Further, even accepting for the sake of

argument that Salem Springs Owner had standing under MCL

600.4545, plaintiff could not amend its pleadings to add Salem

Springs Owner as a party because the time limit for bringing the

action had expired and the relation-back doctrine, MCR 2.118(D),

does not apply to the addition of new parties. The trial court erred

by granting summary disposition in favor of plaintiff. Because

plaintiff lacked standing to bring suit under MCL 600.4545, the

trial court should have granted summary disposition in favor of

intervening defendants.

Reversed and remanded for entry of an order granting sum-

mary disposition in favor of intervening defendants.

ARRANTO —

LECTIONS —

ILE

UIT

Under MCL 600.4545(1), a lawsuit in the nature of a quo warranto

action may be brought whenever it appears that material fraud or

error has been committed at any election in such county at which

there has been submitted any constitutional amendment, ques-

tion, or proposition to the electors of the state or any county,

township, or municipality thereof; the action must be brought by

the attorney general, the prosecuting attorney of the proper

county, or by any citizen of the county; only those individuals

speciﬁcally identiﬁed in the statute have authority to bring an

action under the statute; to be a citizen of the county, at

minimum, the plaintiff would need to have inhabited or resided in

the county at the time of ﬁling suit.

Carson Fischer, PLC (by Robert

M. Carson and

Jeffrey B. Miller), for plaintiff.

Before: B

ORRELLO

, P.J., and H

OEKSTRA

and

O’C

ONNELL

, JJ.

OEKSTRA,

J. In this case, brought in the nature of a

quo warranto action under MCL 600.4545, plaintiff,

Salem Springs, LLC, challenged the results of a voter

referendum pertaining to a zoning amendment in Sa-

lem Township. Intervening defendants appeal as of

right the trial court’s order granting summary disposi-

tion in favor of plaintiff and invalidating the referen-

dum results. Because plaintiff lacks statutory standing

to bring a challenge under MCL 600.4545, we reverse

212 312 M

ICH

210 [Sept

the trial court’s order and we remand for entry of

summary disposition in favor of intervening defendants.

The underlying dispute in this case concerns the

zoning of 91.61 acres of property (the property) in

Salem Township, Washtenaw County, Michigan. Plain-

tiff previously owned the property, but it transferred

the property to Salem Springs Owner, LLC, in 2009.

Plaintiff is now the sole manager of Salem Springs

Owner, but Salem Springs Owner is a limited liability

company, separate and distinct from plaintiff.

In October 2011, the property in question was zoned

agricultural-residential property, and plaintiff submit-

ted an application to the township to have the property

rezoned to general-commercial property. The Salem

Township Planning Commission recommended denial

of plaintiff’s application, but it was nonetheless ap-

proved by the Salem Township Board of Trustees on

May 8, 2012. After approval of the amendments to the

zoning map, pursuant to MCL 125.3401(7), the town-

ship published notice on four separate occasions—on

May 20, May 24, May 31, and June 14—apprising the

public of the intended changes. On May 22, interven-

ing defendant Norman Klein, Sr., who lives in a resi-

dential area north of the subject property, ﬁled a notice

of intent under MCL 125.3402(1) to petition to have the

amendments submitted to the electorate for approval.

On July 12, Klein later submitted a petition signed by

the requisite number of voters, and the township clerk

concluded that Klein’s petition was adequate. See MCL

125.3402(2) and (3). The township board thereafter

approved ballot language submitting the issue of the

zoning amendments to the voters for approval.

Plaintiff ﬁled suit seeking to enjoin the vote based

on the contention that Klein’s petition was invalid. The

2015] S

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213

trial court denied plaintiff’s request for injunctive

relief and this Court, as well as the Michigan Supreme

Court, denied plaintiff’s emergency application for

leave to appeal.

After plaintiff’s application for leave

was

denied, the election proceeded on November 6,

2012, with the zoning referendum on the ballot. A

majority of voters were opposed to rezoning the prop-

erty in question to general-commercial property and

they voted to reverse the township board’s zoning

decision. In effect, the property remained zoned as

agricultural-residential property.

Following the election, on November 20, 2012, plain-

tiff ﬁled an amended complaint, which included a quo

warranto claim challenging the election results under

MCL 600.4545. Intervening defendants moved for

summary disposition based on the assertion that plain-

tiff lacked statutory standing to bring an action under

MCL 600.4545. Plaintiff opposed intervening defen-

dants’ motion for summary disposition and asserted

that summary disposition should instead be granted in

plaintiff’s favor because no material question of fact

remained with respect to whether Klein’s petition was

untimely and thus invalid. The trial court concluded

that plaintiff had standing and it granted plaintiff’s

motion for summary disposition based on its determi-

nation that Klein’s July 12 petition was untimely,

despite the fact that it was ﬁled within 30 days of the

township’s last published notice. Intervening defen-

dants now appeal as of right.

On appeal, consistently with their arguments in the

trial court, intervening defendants maintain that plain-

tiff lacked statutory standing under MCL 600.4545

See Salem Springs, LLC v Salem Twp, 493 Mich 880 (2012); Salem

Springs, LLC v Salem Twp, unpublished order of the Court of Appeals,

entered October 8, 2012 (Docket No. 312497).

214 312 M

ICH

210 [Sept

because plaintiff is not the county prosecuting attorney,

the attorney general, or a citizen of Washtenaw County.

In contrast, plaintiff maintains that it is a “citizen of the

county” within the meaning of MCL 600.4545 because a

corporation may, in general, be a citizen and more

particularly because it previously owned the land in

question and now continues to manage Salem Springs

Owner, the present owner of the land.

In the alterna-

ive, plaintiff contends that, even if it lacks standing,

any error amounts to merely a technical defect in the

pleadings because Salem Springs Owner has standing

and the pleadings can be amended to include Salem

Springs Owner. As discussed more fully later in this

opinion, we conclude that plaintiff lacked statutory

standing under MCL 600.4545, that plaintiff cannot

rely on Salem Springs Owner’s purported standing to

ﬁle suit, and that, because the time for ﬁling an action

under MCL 600.4545 has passed, plaintiff cannot

amend its pleadings to add Salem Springs Owner as a

new party. Because plaintiff lacks standing, the trial

court erred by denying intervening defendants’ motion

for summary disposition.

We review a trial court’s decision on a motion for

summary disposition de novo. Maiden v Rozwood,

Plaintiff also maintains that intervening defendants waived their

standing argument because they stipulated to an order allowing plain-

tiff to ﬁle the amended complaint which included the claim brought

under MCL 600.4545. We ﬁnd this argument unavailing. Far from

waiving the issue of standing, intervening defendants plainly preserved

it by raising the question of standing in their ﬁrst responsive pleading

to plaintiff’s amended complaint. See MCR 2.116(D)(2). Further, stand-

ing may be challenged in connection with a motion for summary

disposition under MCR 2.116(C)(8) or (10), and such a motion may be

brought “at any time[.]” Pontiac Police & Fire Retiree Prefunded Group

Health & Ins Trust v City of Pontiac No 2, 309 Mich App 611, 621; 873

NW2d 783 (2015) (quotation marks and citation omitted; alteration in

original). In short, intervening defendants’ challenge to plaintiff’s stand-

ing was timely raised and certainly not waived.

2015] S

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PRINGS,

LLC

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215

461 Mich 109, 118; 597 NW2d 817 (1999); Pontiac

Police & Fire Retiree Prefunded Group Health & Ins

Trust v City of Pontiac No 2, 309 Mich App 611,

617-618; 873 NW2d 783 (2015). Ordinarily, questions

of law, including statutory interpretation and the issue

of a party’s standing, are also reviewed de novo. In re

Complaint of Mich Cable Telecom Ass’n, 241 Mich App

344, 360; 615 NW2d 255 (2000).

Before a court may exercise jurisdiction over a

plaintiff’s claim, that plaintiff must possess standing.

Miller v Allstate Ins Co, 481 Mich 601, 606; 751 NW2d

463 (2008). “[S]tanding historically developed in Michi-

gan as a limited, prudential doctrine that was intended

to ‘ensure sincere and vigorous advocacy’ by litigants.”

Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich

349, 359; 792 NW2d 686 (2010). A litigant may have

standing “if the litigant has a special injury or right, or

substantial interest, that will be detrimentally affected

in a manner different from the citizenry at large or if

the statutory scheme implies that the Legislature

intended to confer standing on the litigant.” Id. at 372.

When a cause of action is governed by statute, the

Legislature may, of course, choose to limit the class of

persons who may raise a statutory challenge. Miller,

481 Mich at 607. Consequently, the doctrine of statu-

tory standing in particular requires statutory interpre-

tation to determine whether the Legislature intended

to “accord[] this injured plaintiff the right to sue the

defendant to redress his injury.” Id. (quotation marks

and citation omitted).

The claim at issue in the present case is in the

nature of a quo warranto action under MCL 600.4545.

Under MCL 600.4545(1), a lawsuit in the nature of a

quo warranto action may be brought “whenever it

appears that material fraud or error has been commit-

216 312 M

ICH

210 [Sept

ted at any election in such county at which there has

been submitted any constitutional amendment, ques-

tion, or proposition to the electors of the state or any

county, township, or municipality thereof.” The pur-

pose of such an action is to test the “validity of the

election itself,” and to succeed requires a showing of

“fraud or error that might have affected the outcome of

the election.” Barrow v Detroit Mayor, 290 Mich App

530, 542-543; 802 NW2d 658 (2010) (citation and

quotation marks omitted). The speciﬁc statutory re-

quirements for bringing an action under MCL

600.4545 are set forth in Subsection (2), which states:

Such action shall be brought within 30 days after such

election by the attorney general or the prosecuting attorney

of the proper county on his own relation, or on the relation

of any citizen of said county without leave of the court, or by

any citizen of the county by special leave of the court or a

judge thereof. Such action shall be brought against the

municipality wherein such fraud or error is alleged to

have been committed. [MCL 600.4545(2) (emphasis

added).]

According to the plain language of the statute, an

action

to challenge an election under MCL 600.4545

may be brought by (1) the attorney general, (2) the

prosecuting attorney of the proper county, or (3) “any

citizen of the county.” A person authorized to bring an

action under this section may do so “without any

showing of a special personal interest in the subject

matter at hand.” Penn Sch Dist No 7 v Lewis Cass

Intermediate Sch Dist Bd of Ed, 14 Mich App 109,

117-118; 165 NW2d 464 (1968). However, because MCL

600.4545 expressly empowers select persons to ﬁle

suit, it follows under the principle of expressio unius est

exclusio alterius that only those individuals speciﬁcally

identiﬁed in the statute have authority to bring an

action under the statute. See Miller, 481 Mich at

2015] S

ALEM

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LLC

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217

611-612. In other words, the statute prevents persons

not identiﬁed in the statute from bringing a challenge

to election results. Cf. id. In this case, it is undisputed

that plaintiff is neither a prosecuting attorney nor the

attorney general. Consequently, to ﬁle suit under MCL

600.4545, plaintiff must qualify as a “citizen of the

county,” and the issue in this case thus becomes

whether plaintiff is a citizen of Washtenaw County.

There is no statutory deﬁnition of the phrase “citizen

of the county” in MCL 600.4545. Because the phrase is

undeﬁned, we accord the words of the statute their

plain and ordinary meaning and may consult a diction-

ary to ascertain that plain meaning. Spectrum Health

Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich

503, 515; 821 NW2d 117 (2012). Our primary goal

when interpreting statutory language is to ascertain

the Legislature’s intent, and, because the plain lan-

guage of the statute is the best indicator of legislative

intent, we will enforce clear and unambiguous statu-

tory language as written. Velez v Tuma, 492 Mich 1,

16-17; 821 NW2d 432 (2012); South Haven v Van Buren

Co Bd of Comm’rs, 478 Mich 518, 528; 734 NW2d 533

(2007).

According to its plain and ordinary dictionary mean-

ing, a “citizen” is “1 : an inhabitant of a city or town;

[especially] : one entitled to the rights and privileges of

a freeman 2 a : a member of a state b : a native or

naturalized person who owes allegiance to a govern-

ment and is entitled to protection from it[.]” Merriam-

Webster’s Collegiate Dictionary (11th ed). See also

Black’s Law Dictionary (10th ed) (“Someone who, by

either birth or naturalization, is a member of a political

community, owing allegiance to the community and

being entitled to enjoy all its civil rights and protec-

tions; a member of the civil state, entitled to all its

218 312 M

ICH

210 [Sept

privileges.”). A “county” is, by deﬁnition, “the largest

territorial division for local government within a state

of the U.S.” Merriam-Webster’s Collegiate Dictionary

(11th ed).

From these basic deﬁnitions, to be a “citizen of the

county” it would appear that, at a minimum, the

plaintiff would need to inhabit or reside in the speciﬁc

county in question. See Bacon v Bd of State Tax

Comm’rs, 126 Mich 22, 29; 85 NW 307 (1901). That is,

the statute clearly refers to “any citizen of the county,”

meaning that, assuming a corporation may be a citizen

for

purposes of MCL 600.4545, it would not be sufﬁ-

cient to establish citizenship in the United States or

even in Michigan; rather, it would be necessary to

establish citizenship, and thus some degree of resi-

dency, in the speciﬁc county at issue. By way of

analogy, “[t]he citizens of this State are citizens of the

United States, and the citizens of the United States

residing within the borders of this State are citizens of

this State.” People v Ruthenberg, 229 Mich 315, 355;

201 NW 358 (1924) (quotation marks and citation

omitted). By extension, it would follow that citizens of

the United States, and speciﬁcally citizens of Michi-

gan, residing in a particular county in Michigan

qualify as citizens of that county.

On the facts of this case, it is clear that plaintiff did

not in any way inhabit Washtenaw County as required

to be considered a citizen of the county. Plaintiff’s

Articles of Organization indicate that, at the time of its

organization, its registered ofﬁce was in Farmington

Hills, Michigan, which is in Oakland County. Other

documents, including the warranty deed conveying the

subject property to Salem Springs Owner, list plain-

tiff’s address in Livonia, Michigan, which is in Wayne

Emphasis added.

2015] S

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County. Further, there is no indication that plaintiff

owns property in Washtenaw County or that plaintiff

has a place of business in Washtenaw County. In short,

under any understanding of what it means to reside in

or inhabit as required to establish citizenship, plaintiff

does not reside in, or inhabit, Washtenaw County.

In contrast to this conclusion, plaintiff claims that it

can

be considered a citizen of the county because (1) it

previously owned the property in question until 2009

and (2) it manages Salem Springs Owner, which now

owns the property at issue. These arguments are

wholly unavailing. Even supposing for the sake of

argument that Salem Springs Owner’s mere owner-

ship of the property establishes citizenship for Salem

Springs Owner in Washtenaw County, neither plain-

tiff’s former ownership of the property nor its manage-

ment of Salem Springs Owner confers this citizenship

on plaintiff.

Speciﬁcally, both plaintiff and Salem Springs Owner

are organized as separate and distinct limited liability

companies under the Michigan Limited Liability Com-

pany Act, MCL 450.4101 et seq. A limited liability

company may, like a corporation, own and hold real

Given plaintiff’s almost nonexistent ties with Washtenaw County, it

is obvious plaintiff is not a citizen of the county, and, on these facts, we

do not ﬁnd it necessary to deﬁne the precise residency parameters

necessary to establish what it means to be a citizen of a county for

purposes of MCL 600.4545. Intervening defendants have also argued on

appeal that plaintiff cannot be a citizen because as a corporation it

cannot vote. Because of plaintiff’s clear lack of residency, we likewise

ﬁnd it unnecessary to determine if a corporation may be a citizen under

MCL 600.4545 or to establish what rights and privileges, if any, a person

must possess to qualify as a citizen for purposes of this provision.

Instead, we narrowly hold, on the basis of the facts of this case, that

because plaintiff in no way resides in Washtenaw County, it is not a

“citizen of the county” as required for statutory standing under MCL

600.4545.

220 312

ICH

210 [Sept

property. MCL 450.4210; MCL 450.1261(f). “A member

[of a limited liability company] has no interest in speciﬁc

limited liability company property.” MCL 450.4504(2).

Consequently, when plaintiff executed a warranty deed

transferring the property to Salem Springs Owner, “the

entire bundle of rights to the property” passed from

plaintiff to Salem Springs Owner. Eastbrook Homes, Inc

v Treasury Dep’t, 296 Mich App 336, 348; 820 NW2d 242

(2012). After this 2009 transfer, plaintiff no longer had

an interest in the property, which is instead held solely

by Salem Springs Owner as a limited liability company.

See VanderWerp v Plainﬁeld Charter Twp, 278 MichApp

624, 630; 752 NW2d 479 (2008). Accordingly, even

supposing that mere ownership of land in a county

confers citizenship for purposes of MCL 600.4545, plain-

tiff cannot claim citizenship in Washtenaw County on

the basis of its previous ownership of land now held by

Salem Springs Owner.

To the extent plaintiff suggests that its management

of Salem Springs Owner somehow confers standing on

plaintiff under MCL 600.4545, this argument ignores

the distinction between acting as an agent on behalf of

Salem Springs Owner and plaintiff’s current attempt

to litigate in plaintiff’s own name. In particular, a

limited liability company may be managed by manag-

ers as speciﬁed in the articles of organization. MCL

450.4402(1). A manager is considered an agent of the

limited liability company for the purpose of its busi-

ness, and the acts of a manager in the limited liability

company’s name typically bind the limited liability

company. MCL 450.4406. Salem Springs Owner’s op-

erating agreement speciﬁes that it will be managed by

a manager, “who, acting alone and without the ap-

proval of any Member will have the free, exclusive and

absolute right, power and authority to manage and

control the Company and its property and assets . . . .”

2015] S

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221

As enumerated in the operating agreement, the man-

ager’s powers include the authority to sue and to

defend litigation on Salem Springs Owner’s behalf. See

also MCL 450.4210; MCL 450.1261(b). Certainly, con-

sidering the authority possessed by the manager,

plaintiff could, acting as the manager, ﬁle suit in Salem

Springs Owner’s name, assuming that Salem Springs

Owner possessed standing under MCL 600.4545 as a

“citizen of the county.”

However, it does not follow that plaintiff can ﬁle suit

in its own name based on Salem Springs Owner’s

rights and purported standing under MCL 600.4545. It

is well-established that “[a] corporation is its own

‘person’ under Michigan law, an entity distinct and

separate from its owners, even when a single share-

holder holds ownership of the entire corporation.” Hills

& Dales Gen Hosp v Pantig, 295 Mich App 14, 20; 812

NW2d 793 (2011). Further, when multiple related

corporations are involved, the law presumes that these

corporations constitute separate legal entities. Id. at

20-21. With regard to principles of standing and “the

real party in interest,” because the law treats a corpo-

ration as an entirely separate entity, when a suit is

brought to enforce corporate rights or to redress or

prevent injury to a corporation, the action ordinarily

must be brought in the name of the corporation, not

that of a stockholder, ofﬁcer, or employee.

Belle Isle

A member of a limited liability company may commence and main-

tain a lawsuit based on the rights of the limited liability company,

provided that certain statutory conditions are met. See MCL 450.4510.

Among these statutory conditions, a member may not sue on the rights

of the limited liability company unless the member has made a written

demand for action by the limited liability company and the company has

failed to comply. See MCL 450.4510(b) and (c). In this case, plaintiff does

not argue that it has taken action as a member of Salem Springs Owner,

and, in any event, it is plain that the conditions of MCL 450.4510 have

not been satisﬁed given that plaintiff was fully authorized as the

222 312

ICH

210 [Sept

Grill Corp v Detroit, 256 Mich App 463, 474; 666 NW2d

271 (2003). Although a limited liability company is not

a corporation under Michigan law, Alliance Obstetrics

& Gynecology, PLC v Treasury Dep’t, 285 Mich App

284, 288; 776 NW2d 160 (2009), it is nonetheless true

that the rules regarding corporate form apply equally

to limited liability companies, Hills & Dales, 295 Mich

App at 21. See also Florence Cement Co v Vettraino, 292

Mich App 461, 468-469; 807 NW2d 917 (2011). There-

fore, given that Salem Springs Owner is a separate and

distinct legal entity from plaintiff, it follows that, in a

suit in which standing is premised on Salem Springs

Owner’s purported status as a “citizen of the county”

under MCL 600.4545, the suit must be brought in

Salem Springs Owner’s name rather than the name of

Salem Springs Owner’s manager, i.e., plaintiff. See

Belle Isle Grill, 256 Mich App at 474. Accordingly,

plaintiff cannot rely on its management of Salem

Springs Owner to establish standing to sue in plain-

tiff’s name under MCL 600.4545. Because plaintiff is

not a citizen of Washtenaw County, plaintiff lacked

standing and the trial court erred by denying interven-

ing defendants’ motion for summary disposition.

On appeal, plaintiff contends that, even if it lacked

standing to bring suit under MCL 600.4545, because

Salem Springs Owner has standing, plaintiff should be

allowed to amend its complaint to name Salem Springs

Owner as a plaintiff because the failure to include

Salem Springs Owner amounts to nothing more than a

technical defect in the pleadings that in no way preju-

diced intervening defendants. Contrary to these asser-

tions, accepting for the sake of argument that Salem

Springs Owner has standing under MCL 600.4545,

manager of Salem Springs Owner to take legal action in Salem Springs

Owner’s name, but failed to do so. See MCL 450.4510(a).

2015] S

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223

plaintiff cannot amend its pleadings to add Salem

Springs Owner as a party because the time limit for

bringing such an action has expired

and the relation-

back doctrine, which normally permits amendments to

relate back to the original time of ﬁling, does not apply

to the addition of new parties. See Miller v Chapman

Contracting, 477 Mich 102, 106; 730 NW2d 462 (2007).

Speciﬁcally, under MCR 2.118(D):

An amendment that adds a claim or a defense relates

back

to the date of the original pleading if the claim or

defense asserted in the amended pleading arose out of the

conduct, transaction, or occurrence set forth, or attempted

to be set forth, in the original pleading.

In contrast to an amendment to add claims or defenses,

in this case plaintiff seeks to add an entirely new party

to the action, and the relation-back rule set forth in

MCR 2.118(D) does not apply to the addition of new

parties. See Miller, 477 Mich at 106-108.

Moreover, bearing in mind that Salem Springs

Owner is a separate and distinct entity from plaintiff,

plaintiff’s proposed amendment cannot be character-

ized as an inadvertent misnomer or an unimportant

mistake in the name of a party. Rather, plaintiff seeks

the addition of an entirely new party after the expira-

tion of the time limit for bringing suit, and the misno-

mer doctrine is inapplicable to the substitution or

addition of new or different parties. Id. at 106-107.

“ ‘As a general rule, . . . a misnomer of a plaintiff or

defendant

is amendable unless the amendment is such as

Pursuant to MCL 600.4545(2), an action to challenge an election

“shall be brought within 30 days after such election . . . .” See also

Barrow, 290 Mich App at 542. Consequently, in this case, “any citizen of

the county” had until December 6, 2012 to bring a challenge to the

voting results under MCL 600.4545.

224 312

ICH

210 [Sept

to effect an entire change of parties.’ ” Parke, Davis & Co

v Grand Trunk Ry System, 207 Mich 388, 391; 174 NW 145

(1919) (citation omitted). The misnomer doctrine applies

only to correct inconsequential deﬁciencies or technicali-

ties in the naming of parties, for example, “ ‘[w]here the

right corporation has been sued by the wrong name, and

service has been made upon the right party, although by a

wrong name . . . .’ ” Wells v Detroit News, Inc, 360 Mich

634, 641; 104 NW2d 767 (1960), quoting Daly v Blair, 183

Mich 351, 353; 150 NW 134 (1914); see also Detroit

Independent Sprinkler Co v Plywood Products Corp, 311

Mich 226, 232; 18 NW2d 387 (1945) (allowing an amend-

ment to correct the designation of the named plaintiff from

“corporation” to “partnership”)[,] and Stever v Brown, 119

Mich 196; 77 NW 704 (1899) (holding that an amendment

to substitute the plaintiffs’ full names where their ﬁrst

and middle names had been reduced to initials in the

original complaint would have been permissible). Where,

as here, the plaintiff seeks to substitute or add a wholly

new and different party to the proceedings, the misnomer

doctrine is inapplicable. [Id. (quotation marks and citation

omitted; alterations in original).]

In short, because the time for bringing a challenge

under

MCL 600.4545 has expired, and the relation-

back doctrine does not apply, plaintiff cannot now

amend its complaint to add Salem Springs Owner as a

new party. See Miller, 477 Mich at 106-108.

Plaintiff is not a citizen of Washtenaw County and

therefore plaintiff lacked statutory standing to chal-

lenge the election results under MCL 600.4545. Fur-

ther, because the time for pursuing a challenge under

MCL 600.4545 has passed, Salem Springs Owner can-

not now be added, or substituted, as a party to the

lawsuit. Given plaintiff’s lack of standing to bring a

challenge under MCL 600.4545, the trial court erred by

denying intervening defendants’ motion for summary

2015] S

ALEM

PRINGS,

LLC

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225

disposition.

See In re Rottenberg Trust, 300 Mich App

339, 355; 833 NW2d 384 (2013).

Reversed and remanded for entry of summary dis-

position in favor of intervening defendants. We do not

retain jurisdiction. Having prevailed in full, interven-

ing defendants may tax costs under MCR 7.219.

ORRELLO

, P.J., and O’C

ONNELL

, J., concurred with

OEKSTRA

, J.

Because intervening defendants were entitled to summary disposi-

tion based on plaintiff’s lack of standing, we offer no opinion on the

timeliness of Klein’s July 12 petition.

226 312 M

ICH

210 [Sept

In re CONSERVATORSHIP OF BITTNER

Docket No. 320688. Submitted August 4, 2015, at Detroit. Decided

September 8, 2015, at 9:10 a.m.

Suzanne Bittner-Korbus petitioned the Macomb County Probate

Court to appoint a conservator for her mother, Shirley Bittner.

The petition alleged that Shirley was unable to manage her

property and business affairs effectively because of mental deﬁ-

ciency. Shirley objected and denied the allegations in the petition.

After reviewing reports prepared by an appointed guardian ad

litem and an independent medical examiner, the court, Carl J.

Marlinga, J., ordered a conservatorship and appointed Stacey

Bittner, one of Shirley’s other daughters, as the conservator.

Stacey appealed the conservatorship order on Shirley’s behalf.

The Court of Appeals held:

Under MCL 700.5401(1), a probate court may appoint a

conservator or make another protective order if the court deter-

mines that (a) the individual is unable to manage property and

business affairs effectively for reasons such as mental illness,

mental deﬁciency, physical illness or disability, chronic use of

drugs, chronic intoxication, conﬁnement, detention by a foreign

power, or disappearance, and (b) the individual has property that

will be wasted or dissipated unless proper management is pro-

vided, or money is needed for the individual’s support, care, and

welfare or for those entitled to the individual’s support, and that

protection is necessary to obtain or provide money. Under MCL

700.5407(1), the court must exercise this authority in a manner

that encourages the development of maximum self-reliance and

independence in a protected individual and must make protective

orders only to the extent necessitated by the protected individu-

al’s mental and adaptive limitations and other conditions war-

ranting the procedure. Accordingly, when considering a petition

for conservatorship, a probate court should approach the task

from a perspective of respect for the individual’s right to acquire,

enjoy, and dispose of his or her property as the individual sees ﬁt.

Any restrictions on this fundamental right must be narrowly

tailored to the individual’s speciﬁc capabilities and incapacities.

Under MCL 700.5408, without appointing a conservator, the

2015] In

re B

ITTNER

ONSERVATORSHIP

227

court may authorize, direct, or ratify a transaction necessary or

desirable to achieve a security, service, or care arrangement

meeting the protected individual’s foreseeable needs. MCL

700.5419(1) allows for the creation of a limited conservatorship

specifying that only a part of the protected individual’s property

vests in the conservator. Read together, MCL 700.5407(1), MCL

700.5419(1), and MCL 700.5408 mandate that a court carefully

and thoughtfully consider whether arrangements less intrusive

than a conservatorship will adequately protect an individual’s

property as well as his or her autonomy. In this case, there was

evidence that Shirley’s cognitive impairments gave rise to prob-

lems in consistently being able to initiate and carry out the tasks

necessary to effectively manage her ﬁnancial affairs. But this

ﬁnding, standing alone, did not clearly and convincingly evidence

the need for conservatorship. Difﬁculties with math and memory

plague many elderly (and not so elderly) individuals. These

irksome attendants to the aging process are not necessarily

disabling. Poor subtraction skills and relatively low cognitive-

ability testing scores hardly render a person mentally ill or

mentally deﬁcient, or even incapable of making rational decisions

regarding one’s bounty. Clear and convincing evidence that a

person is unable to manage property and business affairs effec-

tively requires more than low marks on arithmetic or memory

tests, or inconsistent ineptitude in balancing a checkbook. The

fact that Shirley recognized her intellectual shortcomings and

sought out Stacey’s assistance demonstrates effective manage-

ment skill rather than disability. The evidence substantiated that

Shirley paid her bills on time, lived within her means, satisfac-

torily managed her household, and maintained an adequate

ability to make responsible decisions. Accordingly, the probate

court erred by ﬁnding that clear and convincing evidence satisﬁed

MCL 700.5401(3)(a). The evidence also failed to support a conclu-

sion that MCL 700.5401(3)(b) had been satisﬁed, given the dearth

of evidence that Shirley’s property would be wasted or dissipated

unless proper management was provided. The probate court also

overlooked consideration of the statutory directive that protective

orders encourage maximum self-reliance and independence by

restricting an individual’s rights only to the extent necessary to

safeguard an individual’s estate. The evidence demonstrated that

Shirley had proactively entered into a voluntary arrangement

that adequately protected her assets and allowed her a meaning-

ful measure of autonomy.

Reversed and remanded.

228 312

ICH

227 [Sept

TATUTES —

STATES AND

ROTECTED

NDIVIDUALS

ODE —

ONSERVATORSHIPS —

PPOINTMENT OF A

ONSERVATOR —

IMITATIONS

Under MCL 700.5407(1), a court must exercise its authority under

Part 4 of Article V of the Estates and Protected Individuals Code,

MCL 700.5401 et seq., in a manner that encourages the develop-

ment of maximum self-reliance and independence in a protected

individual and must make protective orders only to the extent

necessitated by the protected individual’s mental and adaptive

limitations and other conditions warranting the procedure; when

considering a petition for conservatorship, a court should ap-

proach the task from a perspective of respect for the individual’s

right to acquire, enjoy, and dispose of his or her property as the

individual sees ﬁt; any restrictions on this fundamental right

must be narrowly tailored to the individual’s speciﬁc capabilities

and incapacities; the court must consider whether arrangements

less intrusive than a conservatorship will adequately protect an

individual’s property as well as his or her autonomy.

Cashen & Strehl, PC (by W

illiam K. Cashen), for

Suzanne Bittner-Korbus.

Speaker Law Firm, PLLC (by Liisa R. Speaker), for

Stacey Bittner.

Before: R

ONAYNE

RAUSE

, P.J., and G

LEICHER

and

TEPHENS

, JJ.

LEICHER

, J. Over Shirley Bittner’s strenuous objec-

tion, the probate court appointed her daughter, Stacey

Bittner, as conservator of Shirley Bittner’s estate.

Stacey Bittner also opposed the appointment. And so

did the guardian ad litem appointed by the probate

court, as well as the court-appointed psychologist who

evaluated Shirley Bittner. The probate court neverthe-

less determined that Shirley Bittner’s memory prob-

lems, arithmetic inadequacies, and mild cognitive deﬁ-

cits rendered her unable to manage her property and

business affairs.

The probate court made no ﬁnding that Shirley

Bittner’s property would be wasted or dissipated ab-

2015] In re B

ITTNER

ONSERVATORSHIP

229

sent appointment of a conservator and overlooked

consideration of the statutory directive that protective

orders encourage “maximum self-reliance and inde-

pendence” by restricting an individual’s rights only to

the extent necessary to safeguard an individual’s es-

tate. MCL 700.5407(1). The evidence demonstrates

that Shirley Bittner had proactively entered into a

voluntary arrangement that adequately protected her

assets and allowed her a meaningful measure of au-

tonomy. We reverse.

Shirley Bittner is 74 years old. For convenience and

clarity, in the balance of this opinion we will use her

ﬁrst name. We refer to her three daughters, Suzanne

Bittner-Korbus, Shirleen Vencleave, and Stacey

Bittner, as Suzanne, Shirleen, and Stacey.

Shirley’s husband of more than ﬁfty years passed

away in October 2011. Stanley Bittner had single-

handedly managed the couple’s ﬁnancial affairs.

Newly widowed, Shirley developed serious health

problems that required surgery, medications, and a

temporary stay in a nursing home. She emerged from

this ordeal with some confusion. Shirley decided to

entrust the management of her ﬁnances to Suzanne,

and granted Suzanne a durable power of attorney.

Shirley revised her living trust to designate Suzanne

as a co-trustee with authority to act independently.

In June 2013, Shirley petitioned the probate court

for an accounting and a protective order. The petition

averred that Suzanne had diverted a considerable

amount of Shirley’s money to herself, converted many

of Shirley’s accounts to joint tenancies, and withdrew

funds without Shirley’s authorization. Shirley revoked

Suzanne’s power of attorney and co-trustee status, the

230 312 M

ICH

227 [Sept

petition asserted, but Suzanne failed to return all the

money she misappropriated and refused to “undo the

joint tenancy creations . . . .” Shirley demanded an

accounting, restoration of her assets, and imposition of

a surcharge. In September 2013, the probate court

entered a temporary restraining order and authorized

discovery.

Two months later, Suzanne ﬁled a petition seeking

appointment of a conservator for Shirley. The petition

alleged that Shirley was unable to manage her prop-

erty and business affairs effectively because of mental

illness and mental deﬁciency. In support of this allega-

tion, Suzanne claimed that “Shirley believes that all

her money is gone, she is spending time with her

daughter Shirleen and her grandson who have previ-

ously stolen from her, [and] she does not remember

things she did.” Suzanne requested that a public ad-

ministrator act as conservator of Shirley’s estate.

Shirley responded to the petition by denying that

she needed a conservator and insisting that the peti-

tion was “simply a last minute frivolous effort to

distract from Petitioner Suzanne Bittner-Korbus’ ille-

gal behavior[.]” (Emphasis omitted.) Further, Shirley’s

answer maintained, the petition lacked any “allega-

tions that Shirley is not managing her assets appro-

priately or that her management is adversely affected

by some ‘mental illness.’ ”

The probate court ordered that Shirley undergo an

independent medical examination with psychologist

Terry Rudolph, Ph.D., and appointed attorney Helene

Phillips as Shirley’s guardian ad litem. Attorney Phil-

lips met with Shirley on January 30, 2014. According

to Phillips’s report, Shirley expressed a correct under-

standing of a conservatorship and its attendant re-

sponsibilities, denied that she lacked the “mental ca-

2015] In re B

ITTNER

ONSERVATORSHIP

231

pacity to handle her estate,” and explained in detail

the basis for her belief that Suzanne had helped herself

to some of Shirley’s assets. The report continued:

I went over the ﬁnancial documents form with her and

on the most part she was able to provide me with the

majority of her ﬁnancial information. Her daughter Sta-

c[e]y corrected a few accounts and added a few accounts.

She informed me that she was paying all her own bills and

that at times her daughter Stac[e]y was helping her.

Subsequently, Phillips interviewed Stacey. Phillips

concluded:

After my meeting with Shirley Bittner, conversation

with daughter Stac[e]y and conversations with both Su-

zanne’s attorney and Shirley’s attorney I do not believe

that Shirley Bittner falls under the code’s requirements of

being a person who needs protection and is not in need of

a conservator. I would recommend that the court not

approve this conservatorship. I have some minor concerns

with Shirley Bittner’s full knowledge of her assets but I

believe that there are enough safeguards in place with the

[power of attorney given to Stacey] and daughter Stac-

[e]y’s help.

Dr. Rudolph interviewed Shirley in February 2014

and

administered several psychological tests. He noted

that Shirley had originally scheduled the exam for

January 31 but forgot about it and “only came to know

of it during a conversation with her attorney.” Dr.

Rudolph summarized his encounter with Shirley as

follows:

Today, Ms[.] Bittner was oriented to person. She was

able

to name her presumptive heirs. Ms[.] Bittner ap-

peared to be able to identify her sources and amounts of

monthly income, albeit that she was reading from pre-

pared notes. She appeared to be aware of her real estate

holdings.

232 312 M

ICH

227 [Sept

Ms[.] Bittner was alert, verbal and oriented fully to

person and place and generally to time. Her memory was

in the low average to borderline range but her fund of

general information was intact. She was poor at mental

arithmetic. Ms[.] Bittner’s interpretation of proverbs was

superﬁcial and literal and her reasoning was concrete. As

a result, Ms[.] Bittner’s formal judgment was marginal.

Testing indicates that Ms[.] Bittner functions in the low

average range of cognitive abilities. She displayed an

intact vocabulary and fund of general information along

with some capacity to deal with abstract material. Ms[.]

Bittner was very poor at mental arithmetic and quantita-

tive facts. She was readily able to initiate and maintain

verbal responses, but was very poor at the initiation and

maintenance of motor responses. This does not bode well

for her continuing to drive at this time. Ms[.] Bittner had

some difﬁculty in registering and recalling new material.

Ms[.] Bittner has testamentary capacity and could

make an informed decision about who she would want to

assist her in handling her own affairs and make sugges-

tions as to how she would want her assets used on her

behalf. She has the capacity to live independently in her

home for the time being and make daily decisions about

activities, foods she wants to eat and clothes she wants to

wear. Ms[.] Bittner’s presentation during this evaluation,

as well as her performance on objective testing indicates

problems in consistently being able to initiate and carry

out the tasks necessary to effectively manage her ﬁnancial

affairs. She has poor registration and recall, as well as

poor arithmetic and quantitative skills which negatively

impact her ability to be able to independently manage her

ﬁnancial resources.

His report concluded with the following recommenda-

tions:

1. Ms[.] Bittner has cognitive impairments brought

about

by Vascular Dementia, but not at a level of severity

to be considered a Legally Incapacitated Person who

requires the assistance of a Conservator to preserve her

assets and assist her with her ﬁnancial affairs.

2015] In

re B

ITTNER

ONSERVATORSHIP

233

2. Ms[.] Bittner has testamentary capacity and could

make an informed decision about who she would want to

handle her affairs and give some direction as to how she

would want her assets used on her behalf.

3. Ms[.] Bittner has made arrangements for her

daughter, Stac[e]y Bittner, to assist her with ﬁnancial

matters. This is within her current decision making ca-

pacity. It will probably be in her best interest to have

someone who can provide her with checks and balances

and support in the conduct of her ﬁnancial affairs.

The probate court entertained argument regarding

the

conservatorship petition, granted it, and appointed

Stacey as conservator. The court’s bench opinion dis-

credited Dr. Rudolph’s recommendations, ﬁnding his

opinions tainted by his inaccurate assumption that the

standard at issue mirrored that for declaring a person

“legally incapacitated.” “[I]n my mind,” the court elabo-

rated, “he’s talking about a legally incapacitated per-

son as that term is deﬁned in Section 1105 [MCL

700.1105(i)] meaning a person who is incapacitated so

as to require the assistance of a Guardian. The stan-

dards for a Conservator are different.”

The court then turned to the ﬁrst factual require-

ment for appointment of a conservator, that an indi-

vidual is “unable to manage property and business

affairs effectively” for reasons such as mental illness

and mental deﬁciency. Dr. Rudolph’s report, the court

emphasized, supports that Shirley falls within this

rubric:

This is what Dr. Rudolph says on page 5, “Ms. Bittner’s

presentation

during this evaluation, as well as her perfor-

mance on objective testing indicates problems consistently

being able to initiate and carry out the tasks necessary to

effectively manage her ﬁnancial affairs.” He may not

admit to it, but he nails the statutory language directly.

234 312

ICH

227 [Sept

He says that she has problems in being able to initiate and

carry out the tasks necessary to effectively manage her

ﬁnancial affairs.

The court further noted Dr. Rudolph’s ﬁndings that

Shirley had “ ‘poor registration and recall,’ ” “ ‘poor

arithmetic and quantitative skills,’ ” marginal judg-

ment, and low-average cognitive abilities. “For all of

those reasons,” the court concluded, “I ﬁnd that the

condition here for Shirley Bittner ﬁts squarely into

Section 5401(3) (a) [MCL 700.5401(3)(a)], which is that

the individual is unable to manage property and busi-

ness affairs effectively. So, I will appoint a Conserva-

tor.”

The conservatorship order grants Stacey Bittner

“authority with respect to all assets of the estate,”

requires the ﬁling of an annual account, forbids the

sale, assignment, transfer or mortgage of any real

estate without written court order, and prohibits the

sale, “transfer, discount, assign[ment]” or encum-

brance of any annuity or life insurance policies in

which Shirley has an interest, absent a court order. On

Shirley’s behalf, Stacey now appeals the conservator-

ship order. Suzanne has ﬁled a brief defending the

conservatorship.

We review a probate court’s appointment or removal

a ﬁduciary for an abuse of discretion. In re Williams

Estate, 133 Mich App 1, 11; 349 NW2d 247 (1984). An

abuse of discretion occurs when the court’s decision

falls outside the range of reasonable and principled

outcomes. Maldonado v Ford Motor Co, 476 Mich 372,

388; 719 NW2d 809 (2006). However, the probate

court’s ﬁndings of fact are reviewed for clear error. In

re Townsend Conservatorship, 293 Mich App 182, 186;

2015] In re B

ITTNER

ONSERVATORSHIP

235

809 NW2d 424 (2011). “A ﬁnding is clearly erroneous

when a reviewing court is left with a deﬁnite and ﬁrm

conviction that a mistake has been made, even if there

is evidence to support the ﬁnding.” Id. We review

issues of statutory interpretation de novo. Id.

III

As a preliminary matter, we dispense with Su-

zanne’s contentions that Stacey lacks standing to pur-

sue this appeal and that because Stacey ﬁled her claim

of appeal more than 21 days after entry of the conser-

vatorship order we should have dismissed it. Suzanne

raised both arguments in a previously ﬁled motion to

dismiss. This Court held that pursuant to MCR

7.204(A)(3), the claim of appeal was timely ﬁled. With

respect to standing, this Court found that Suzanne had

not established that Stacey lacked standing to bring

this appeal in her capacity as conservator.

The law-of-

the-case

doctrine precludes this Court from revisiting

these same issues. See People v White, 307 Mich App

425, 428-429; 862 NW2d 1 (2014). In any event, pur-

suant to MCR 2.201(B)(1), a conservator “may sue in

his or her own name without joining the party for

whose beneﬁt the action is brought.” Thus, a conserva-

tor may ﬁle an appeal on behalf of his or her ward

without naming the ward as an appellant.

Our consideration of Shirley’s challenge to the

robate court’s order starts with the section of the

Estates and Protected Individuals Code (EPIC), MCL

700.1101 et seq., setting forth the standards govern-

In re Bittner Conservatorship, unpublished order of the Court of

Appeals, entered October 10, 2014 (Docket No. 320688).

236 312 M

ICH

227 [Sept

ing conservatorship appointments. Under MCL

700.5401(1), the court “may appoint a conservator or

make another protective order” (emphasis added) if

the court determines that both of the following crite-

ria are satisﬁed:

(a) The individual is unable to manage property and

business affairs effectively for reasons such as mental

illness, mental deﬁciency, physical illness or disability,

chronic use of drugs, chronic intoxication, conﬁnement,

detention by a foreign power, or disappearance.

(b) The individual has property that will be wasted or

dissipated unless proper management is provided, or

money is needed for the individual’s support, care, and

welfare or for those entitled to the individual’s support,

and that protection is necessary to obtain or provide

money. [MCL 700.5401(3).]

These prerequisites must be established by clear

and

convincing evidence. MCL 700.5406(7). The clear-

and-convincing-evidence standard is “the most de-

manding standard applied in civil cases . . . .” In re

Martin, 450 Mich 204, 227; 538 NW2d 399 (1995).

Clear and convincing proof

produce[s] in the mind of the trier of fact a ﬁrm belief or

conviction

as to the truth of the allegations sought to be

established, evidence so clear, direct and weighty and

convincing as to enable [the factﬁnder] to come to a clear

conviction, without hesitancy, of the truth of the precise

facts in issue. [Id. (quotation marks and citations omitted;

alterations in original).]

Furthermore, in fashioning a conservatorship order,

[t]he court shall exercise the authority conferred in [Part

of Article V of EPIC, MCL 700.5401 through MCL

700.5433] to encourage the development of maximum

self-reliance and independence of a protected individual

and shall make protective orders only to the extent neces-

2015] In

re B

ITTNER

ONSERVATORSHIP

237

sitated by the protected individual’s mental and adaptive

limitations and other conditions warranting the proce-

dure. [MCL 700.5407(1).]

We agree that Dr. Rudolph likely conﬂated the

standards for imposing a conservatorship and for ap-

pointing a guardian for a legally incapacitated person.

We also agree with the probate court that clear and

convincing record evidence substantiated that Shir-

ley’s cognitive impairments give rise to “ ‘problems

consistently being able to initiate and carry out the

tasks necessary to effectively manage her ﬁnancial

affairs.’ ” But this ﬁnding, standing alone, does not

clearly and convincingly evidence a need for conserva-

torship.

The plain language of MCL 700.5401(3)(a) requires

a determination that an “individual is unable to man-

age property and business affairs effectively,” and that

this disability arises from causes such as “mental

illness” or “mental deﬁciency.” We ﬁrst consider

whether clear and convincing evidence substantiated

that Shirley Bittner was “unable” to perform the tasks

necessary to “effectively” care for her assets.

Dr. Rudolph’s ﬁnding meets this statutory criterion

only to the extent that it demonstrates intermittent

“problems” with Shirley’s ability to effectively man-

age her ﬁnances. Whether Dr. Rudolph would ﬁnd

Shirley consistently unable to conscientiously and

competently manage her affairs remains unknown;

Dr. Rudolph never addressed this speciﬁc question.

Although Dr. Rudolph observed that Shirley has

“problems in consistently” initiating and carrying out

tasks relevant to her ﬁnances, he rendered no opinion

regarding the real question: do Shirley Bittner’s men-

tal “deﬁcien[cies]” render her “unable” to act as a

responsible custodian for her funds? The sentence

238 312 M

ICH

227 [Sept

immediately following Dr. Rudolph’s pronouncement

regarding Shirley’s “problems in consistently” initiat-

ing and carrying out pertinent tasks states: “She has

poor registration and recall, as well as poor arithme-

tic and quantitative skills which negatively impact

her ability to be able to independently manage her

ﬁnancial resources.” (Emphasis added.) But do the

problems that “negatively impact” Shirley’s abilities

rise to a level that render her “unable” to think and

act appropriately regarding her ﬁnances?

The evidence supporting a ﬁnding of “inability” must

be clear and convincing. Here, the probate court in-

ferred that Dr. Rudolph would agree with the probate

court’s interpretation of Dr. Rudolph’s ﬁndings. Given

the demanding standard of proof applicable in this

case, we are not so sure.

Difﬁculties with math and memory plague many

elderly (and not so elderly) individuals. These irksome

attendants to the aging process are not necessarily

disabling. Poor subtraction skills and relatively low

cognitive-ability testing scores hardly render a person

mentally ill or mentally deﬁcient, or even incapable of

making rational decisions regarding one’s bounty. In

our view, clear and convincing evidence that a person

“is unable to manage property and business affairs

effectively” requires more than low marks on arithme-

tic or memory tests, or inconsistent ineptitude in

balancing a checkbook. MCL 700.5401(3)(a). Further,

that Shirley recognized her intellectual shortcomings

and sought out Stacey’s assistance demonstrates effec-

tive management skill rather than disability. We ﬁnd

the arrangement Stacey and Shirley made akin to an

attorney’s employment of support staff and electronic

“tickler” notes to manage a caseload, or to a patient’s

use of pill boxes and telephonic reminders to manage a

2015] In re B

ITTNER

ONSERVATORSHIP

239

medical regimen. The evidence substantiates that

Shirley pays her bills on time, lives within her means,

satisfactorily manages her household, and (according

to both Phillips and Dr. Rudolph) maintains an ad-

equate ability to make responsible decisions. That

Shirley detected Suzanne’s alleged theft of Shirley’s

money, arranged for Stacey’s assistance with her ﬁ-

nances, and sought an accounting bespeaks her intel-

lectual competence. Accordingly, we are left with a

deﬁnite and ﬁrm conviction that the probate court

erred by ﬁnding that clear and convincing evidence

satisﬁed MCL 700.5401(3)(a).

But even assuming that the probate court correctly

concluded that clear and convincing evidence estab-

lished Shirley’s inability to manage her property and

business affairs effectively, the probate court made no

ﬁndings regarding MCL 700.5401(3)(b), which ad-

dresses whether Shirley’s property “will be wasted or

dissipated unless proper management is provided . . . .”

Nor does clear and convincing evidence of record sub-

stantiate this prong of MCL 700.5401(3). Indeed, the

evidence preponderates to the contrary.

The only evidence suggesting waste or dissipation of

assets is that Suzanne, not Shirley, improperly trans-

ferred funds. We ﬁnd no indication that under Shirley’s

management, money or property was mishandled.

Rather, the record supports that Shirley responsibly

sought Stacey’s assistance and granted her a power of

attorney. No facts presented to the probate court even

hinted at ﬁscal mismanagement under this regime.

As Phillips noted, the “safeguards in place with the

[power of attorney] and daughter Stac[e]y’s help”

weigh against a conservatorship. Despite Shirley’s

age-related mental inﬁrmities, her ﬁnancial affairs

are in good order and well-controlled with Stacey’s

240 312 M

ICH

227 [Sept

assistance. Thus, this record demonstrates that the

necessary prerequisites for a conservatorship have

not been fulﬁlled.

Further, we observe that the probate court failed to

take into account the Legislature’s command that it

“shall exercise the authority conferred in this part to

encourage the development of maximum self-reliance

and independence of a protected individual and shall

make protective orders only to the extent necessitated

by the protected individual’s mental and adaptive

limitations and other conditions warranting the pro-

cedure.” MCL 700.5407(1). This subsection of EPIC

has yet to be construed by an appellate court. A

comment to MCL 700.5407 by the reporter for the

EPIC drafting committee of the State Bar of Michigan

provides, “Subsection (1) states a public policy that

the court’s authority over an adult’s assets and ﬁnan-

cial affairs should be the least intrusive possible

while still providing needed protection. This policy is

stated in numerous places throughout Part 4 of Ar-

ticle V.” Martin & Harder, Estates and Protected

Individuals Code With Reporters’ Commentary (ICLE,

February 2015 update), p 401. In a similar vein, the

“Reporter’s Comment” to MCL 700.5401 adds:

It is important to appreciate that the court may

rovide assistance in alternative ways. Either a conser-

vator may be appointed, or the court, without appointing

a conservator, may issue an order of protection authoriz-

ing, directing, or ratifying some action for the manage-

ment or protection of the individual’s assets. The alter-

native approaches are available both for minors and for

adults in need of protection. For adults, an order of

protection without appointing a conservator may be

consonant with the direction in MCL 700.5407(1) for the

court to be as minimally intrusive as possible. [Id. at

394.]

2015] In

re B

ITTNER

ONSERVATORSHIP

241

“While not binding,” the reporter’s comments concern-

ing EPIC may “aid in the interpretation of a statute or

rule.” In re Lundy Estate, 291 Mich App 347, 355; 804

NW2d 773 (2011).

We draw from these sources the principle that when

considering a petition for conservatorship, a probate

court should approach the task from a perspective of

respect for the individual’s right to acquire, enjoy, and

dispose of his or her property as the individual sees ﬁt.

Any restrictions on this fundamental right must be

narrowly tailored to the individual’s speciﬁc capabili-

ties and incapacities, bearing in mind the heightened

evidentiary threshold for judicial interference. EPIC

provides a probate court with tools for crafting orders

that balance personal rights with demonstrated needs

for protection. MCL 700.5408(1) provides, in relevant

part:

If it is established in a proper proceeding that a basis

exists

as described in [MCL 700.5401] for affecting an

individual’s property and business affairs, the court, with-

out appointing a conservator, may authorize, direct, or

ratify a transaction necessary or desirable to achieve a

security, service, or care arrangement meeting the pro-

tected individual’s foreseeable needs. Protective arrange-

ments include, but are not limited to, payment, delivery,

deposit, or retention of money or property; sale, mortgage,

lease, or other transfer of property; entry into an annuity

contract, contract for life care, deposit contract, or contract

for training and education; or an addition to or establish-

ment of a suitable trust. [Emphasis added.]

MCL 700.5419(1) allows for the creation of a limited

conservatorship

“specifying that only a part of the

protected individual’s property vests in the conserva-

tor . . . .” Read together, MCL 700.5407(1), MCL

700.5419(1), and MCL 700.5408 mandate that a court

carefully and thoughtfully consider whether arrange-

242 312 M

ICH

227 [Sept

ments less intrusive than a conservatorship will ad-

equately protect an individual’s property as well as his

or her autonomy.

Here, the evidence presented to the probate court

established that Shirley’s ﬁnancial affairs were in good

order and well-managed through her arrangement

with Stacey. Although Shirley exhibited some deﬁcits

in memory, math, motor skills, and executive function-

ing, she understood her sources of income and eco-

nomic responsibilities. Shirley’s grant of a durable

power of attorney to Stacey conﬁrms rather than

negatives her ability to effectively manage her prop-

erty and business affairs. We are deﬁnitely and ﬁrmly

convinced that the probate court erred by ﬁnding that

the evidence satisﬁed that a conservatorship was ap-

propriate under MCL 700.5401(3).

We reverse the order establishing a conservatorship

and appointing a conservator, and remand for further

proceedings. We do not retain jurisdiction.

ONAYNE

RAUSE

, P.J., and S

TEPHENS

, J., concurred

with G

LEICHER

, J.

2015] In re B

ITTNER

ONSERVATORSHIP

243

PERKOVIC v ZURICH AMERICAN INSURANCE COMPANY

Docket No. 321531. Submitted September 1, 2015, at Detroit. Decided

September 10, 2015, at 9:00 a.m. Leave to appeal sought.

Dragen Perkovic was injured in a motor vehicle accident in Febru-

ary 2009, and he ﬁled a complaint in the Wayne Circuit Court

against a number of parties, including Zurich American Insur-

ance Company, Citizens Insurance Company, and Hudson Insur-

ance Company. At the time of the accident, plaintiff was driving a

semi-truck he owned and leased to a company that insured the

vehicle with Zurich. Plaintiff’s personal vehicles were insured by

Citizens, and plaintiff had a bobtail policy with Hudson. The

court, Michael F. Sapala, J., granted Zurich’s motion for summary

disposition and ultimately dismissed plaintiff’s claims against

Citizens after determining that Hudson was the highest priority

insurer. The Court of Appeals determined that defendant had

priority over Hudson, and plaintiff’s claims against Hudson were

dismissed. Perkovic v Hudson Ins Co, unpublished opinion per

curiam of the Court of Appeals, issued December 20, 2012 (Docket

No. 302868). Plaintiff’s claim against Zurich proceeded. The trial

court, Maria Oxholm, J., granted Zurich’s motion for summary

disposition under MCR 2.116(C)(7) because plaintiff failed to

provide Zurich with the notice required by MCL 500.3145(1)

before the period of limitations expired. Plaintiff appealed.

The Court of Appeals held:

1. The trial court properly granted Zurich’s motion for sum-

mary disposition under MCR 2.116(C)(7) because plaintiff failed

to give Zurich proper notice of his injury within one year after the

accident that caused it. MCL 500.3145(1) requires that a claim for

personal protection insurance (PIP) beneﬁts be commenced no

later than one year after the date of the accident causing injury

unless (1) the claimant gives written notice of the injury within

one year of the accident, or (2) the insurer has made a previous

payment of PIP beneﬁts for the injury. If the claimant gives

proper written notice to the insurer, he or she may commence an

action against the insurer within one year after incurring the

most recent allowable expense. Beneﬁts are recoverable only for

one year before the date on which the action was commenced. In

244 312

ICH

244 [Sept

this case, plaintiff’s notice of injury did not satisfy the require-

ments of MCL 500.3145(1) and so did not toll the one-year period

of limitations for commencing the action. Because plaintiff did not

ﬁle his complaint against Zurich within one year of the accident,

and because his notice to Zurich was not sufﬁcient to toll the

period of limitations, the trial court appropriately granted Zu-

rich’s motion for summary disposition.

2. Receipt of plaintiff’s medical records and the bill for plain-

tiff’s medical treatment did not adequately alert Zurich to the

possibility that a claim would be made for payment of PIP

beneﬁts. In this case, the medical facility that treated plaintiff

after the accident sent to Zurich plaintiff’s medical records and a

bill for plaintiff’s treatment for the purpose of obtaining payment.

The bill included plaintiff’s name as the insured and his address,

and plaintiff’s medical records indicated that he was injured on a

certain date, the nature of his injuries, and that he was admitted

to the medical facility that treated him. Until an insurer receives

written notice alerting it to a potential claim by an insured, the

insurer has no way of knowing whether it should begin an

investigation into the accident and make a determination of the

expenses incurred and whether those expenses are covered

losses. The medical facility’s submission to Zurich of plaintiff’s

medical records and the facility’s bill for treating plaintiff’s

injuries did not constitute the written notice required by MCL

500.3145(1) because it did not alert Zurich to a potential claim by

plaintiff for no-fault beneﬁts.

Afﬁrmed.

Mark Granzotto, PC (by Mark

Granzotto), and Law

Ofﬁces of Michael J. Morse, PC (by Donald J. Cum-

mings), for Dragen Perkovic.

Dean & Fulkerson, PC (by James K. O’Brien and

James M. Dworman), for Zurich American Insurance

Company.

Before: T

ALBOT

, P.J., and W

ILDER

and F

ORT

OOD

, JJ.

ILDER

, J. Plaintiff Dragen Perkovic, appeals as of

right an order granting summary disposition to defen-

dant Zurich American Insurance Company. We afﬁrm.

2015] P

ERKOVIC V

URICH

MERICAN

245

This case arises out of a motor vehicle accident that

occurred on February 28, 2009. Plaintiff was the driver

and owner of a semi-truck, which he leased to E.L.

Hollingsworth and Company (Hollingsworth) under an

independent contractor’s operating agreement.

Hollingsworth had an automobile insurance policy

with defendant that covered Hollingsworth’s equip-

ment and the vehicles it leased. Plaintiff also had a

personal automobile insurance policy through Citizens

Insurance Company (Citizens) and a bobtail insurance

policy through Hudson Insurance Company (Hudson)

for occasions on which the vehicle was not being

operated for Hollingsworth.

On February 28, 2009, while plaintiff was driving

down an interstate, the car in front of plaintiff began to

spin, and plaintiff swerved to avoid the car. As a result,

plaintiff drove his truck into a wall. Plaintiff subse-

quently received emergency medical treatment at The

Nebraska Medical Center.

On April 30, 2009, James White, a custodian of

records for The Nebraska Medical Center, mailed to

defendant plaintiff’s medical records and a medical bill

for services performed on plaintiff. According to

White’s afﬁdavit, White sent the medical bill and

plaintiff’s medical records on behalf of plaintiff in order

to obtain payment for plaintiff’s accident-related inju-

ries. The medical bill listed “Dragen Perkovic” under

the “Insured’s Name” and included plaintiff’s address

of 3472 South Blvd., Bloomﬁeld Hills, MI 48304. Plain-

tiff’s medical records also included plaintiff’s name as

the insured, his address, and a policy number. Plain-

tiff’s medical records stated:

46 yo male semi truck driver c/o R upper back pain after

MVC.

States that he was driving down interstate when

246 312 M

ICH

244 [Sept

car in front of him began to spin[,] he swerved to avoid the

car since in semi and ran into a wall hitting front[]driver

side.

Plaintiff’s medical records further stated that plaintiff

may have suffered a “back sprain, cervical sprain or

fracture, chest wall contusion, contusion, head injury,

liver injury, myocardial contusion, pneumothorax,

splenic injury, sprained or fractured extremity.”

On May 19, 2009, defendant sent notice to The

Nebraska Medical Center indicating that it was deny-

ing payment for the services rendered to plaintiff.

Defendant stamped the statement, “No injury report

on ﬁle for this person,” on the medical bill for the

services performed on plaintiff.

As stated in the trial court’s opinion granting sum-

mary disposition:

On August 11, 2009, Plaintiff ﬁled his Complaint

against

Citizens. On February 12, 2010, Plaintiff amended

his Complaint to add Hudson, Business Insurers of

America, Inc.[,] BIA Associates, Inc.[,] and Forsyth/BIA,

Inc.[,] as defendants. On March 23, 2010, defendants

Business Insurers of America, Inc., BIA Associates, Inc.[,]

and Forsyth/BIA, Inc[.,] were voluntarily dismissed from

this lawsuit. It was not until March 25, 2010, more than a

year after the accident, that Plaintiff ﬁled his Second

Amended Complaint adding Zurich as a defendant. The

Michigan Department of State Assigned Claim Facility

was also added as a defendant on December 9, 2010, but

was dismissed from the lawsuit on May 18, 2011.

On September 9, 2010, in its Opinion and Order, the

Honorable Michael F. Sapala granted Zurich’s motion for

summary disposition, dismissed Hudson and named Citi-

zens the highest priority insurer. Subsequently, Citizens

ﬁled a motion for reconsideration, which was granted on

November 8, 2010. In its Opinion and Order, Judge Sapala

dismissed Citizens and named Hudson the highest prior-

ity insurer. Thereafter, Hudson ﬁled a motion for recon-

2015] P

ERKOVIC V

URICH

MERICAN

247

sideration. The motion was denied in a February 11, 2011

Opinion and Order which conﬁrmed Hudson had priority

over Zurich and dismissed all claims against Citizens.

On December 20, 2012, the Michigan Court of Appeals

reversed this Court’s decision, ruling that Zurich is the

highest priority insurer, and dismissed all claims against

Hudson.

[1]

The court held that MCL 500.3114(3) applied in

this case and upheld Hudson’s exclusion of coverage

provision reasoning that, because Zurich provided cover-

age, the Hudson and Zurich policies together provided

Plaintiff with continuous coverage. Zurich’s application

for leave to appeal was denied on April 29, 2013.

[2]

On August 7, 2013, defendant ﬁled a motion for

summary

disposition under MCR 2.116(C)(7) because

the statute of limitations in MCL 500.3145 required

dismissal of plaintiff’s claim. Defendant claimed that it

had not received within one year immediately follow-

ing plaintiff’s accident any written notice of injury, and

that plaintiff had not been paid any beneﬁts.

On October 2, 2013, plaintiff ﬁled a response to

defendant’s motion for summary disposition. Plaintiff

contended that he complied with the notice require-

ment when White sent The Nebraska Medical Center

medical bill and plaintiff’s medical records to defen-

dant on April 30, 2009. The medical bill and records

were in written form and speciﬁcally stated plaintiff’s

address and the nature of plaintiff’s injury.

On October 3, 2013, defendant ﬁled a reply to

plaintiff’s response to defendant’s motion for summary

disposition. Defendant argued that the medical records

sent to it were insufﬁcient notice because nothing in

the medical records indicated that plaintiff intended to

See Perkovic v Hudson Ins Co, unpublished opinion per curiam of the

Court of Appeals, issued December 20, 2012 (Docket No. 302868).

See Perkovic v Hudson Ins Co, 493 Mich 971 (2013).

248 312 M

ICH

244 [Sept

make a claim for personal protection insurance ben-

eﬁts. Moreover, the mailing was not from plaintiff, was

not sent on plaintiff’s behalf, and was not even known

about by plaintiff.

On October 4, 2013, the trial court heard arguments

on defendant’s motion for summary disposition, and

the parties’ arguments were consistent with their

briefs. On February 20, 2014, the trial court entered an

order granting defendant’s motion for summary dispo-

sition. The trial court ﬁrst distinguished Lansing Gen

Hosp, Osteopathic v Gomez, 114 Mich App 814; 319

NW2d 683 (1982), stating that “[t]here was no question

in Gomez that the agent was providing the notice with

the intent to ﬁle a claim.” The trial court then stated:

Turning to the case at bar, the Court notes that Mr.

White’s

afﬁdavit states that the bill and records were sent

to Zurich on behalf of Plaintiff to obtain payment for his

accident related injuries. This is different and distin-

guishable from sending a notice of injury for the purpose of

opening a claim for personal injury protection no-fault

beneﬁts on behalf of Plaintiff. Furthermore, there was no

additional document enclosed or statement written on the

medical records, which would indicate any intention to ﬁle

a claim on Plaintiff’s behalf. Moreover, there is no evi-

dence that Plaintiff even had any knowledge that the

Nebraska Medical Center billed Zurich for the services it

rendered. Had Plaintiff authorized the Nebraska Medical

Center to send a notice of intent to ﬁle a claim, or even had

knowledge that a notice was sent, the fact that Plaintiff

would have had an open claim with Zurich would have

been alleged in his Second Amended Complaint adding

Zurich to the instant lawsuit. However, the Second

Amended Complaint provides that “A Claim Number has

not yet been assigned by Defendants or is currently

unknown.”

Likewise, had the Nebraska Medical Center been

tasked with the duty to provide notice of intent to ﬁle a

claim on Plaintiff’s behalf, it would have certainly commu-

2015] P

ERKOVIC V

URICH

MERICAN

249

nicated with either Zurich, providing them with a sufﬁ-

cient notice, or with Plaintiff, letting him know that no

claim for personal protection insurance beneﬁts had been

opened, after receiving notice from Zurich that no injury

report existed for Plaintiff.

Therefore, the Court ﬁnds that a medical care provider

sending bills and corresponding medical records to obtain

payment for the services it rendered to the injured indi-

vidual does not satisfy the requirements of MCL 500.3145.

The purpose of sending the notice is to ﬁle a claim, not to

obtain payment. Allowing unexplained bills and medical

records, without more, to serve the notice requirements of

MCL 500.3145 would defeat the purpose of the statute, as

medical providers would have an incentive to bill every

possible insurance company to increase their chance of

getting paid for the services they render to an injured

person. This, in turn, would place an undue burden on

insurance companies to investigate every bill sent to them

by a medical provider when there is no existing claim or

injury report for the injured individual named on the bill.

Accordingly, the Court holds that there has to be some

evidence that Plaintiff, or someone on his behalf, is

intending to ﬁle a claim for personal protection insurance

beneﬁts for the notice requirement to be satisﬁed. [Cita-

tion omitted.]

Thereafter, plaintiff ﬁled a motion for reconsideration,

which

the trial court denied.

On appeal, plaintiff contends that the trial court

erred by granting summary disposition to defendant

because there is no requirement that the documents be

sent with the intent to ﬁle a claim; therefore, plaintiff

argues that he provided sufﬁcient notice under MCL

500.3145(1). We disagree.

A grant or denial of summary disposition is reviewed

de novo. Shay v Aldrich, 487 Mich 648, 656; 790 NW2d

629 (2010). When deciding whether a motion for sum-

mary disposition under MCR 2.116(C)(7) was properly

decided, we must “consider all documentary evidence

250 312 M

ICH

244 [Sept

and accept the complaint as factually accurate unless

afﬁdavits or other documents presented speciﬁcally

contradict it.” Id. “If no facts are in dispute, and if

reasonable minds could not differ regarding the legal

effect of the facts, the question whether the claim is

barred is an issue of law for the court.” Dextrom v

Wexford Co, 287 Mich App 406, 431; 789 NW2d 211

(2010).

MCL 500.3145(1) provides:

An action for recovery of personal protection insurance

beneﬁts

payable under this chapter for accidental bodily

injury may not be commenced later than 1 year after the

date of the accident causing the injury unless written

notice of injury as provided herein has been given to the

insurer within 1 year after the accident or unless the

insurer has previously made a payment of personal pro-

tection insurance beneﬁts for the injury. If the notice has

been given or a payment has been made, the action may be

commenced at any time within 1 year after the most

recent allowable expense, work loss or survivor’s loss has

been incurred. However, the claimant may not recover

beneﬁts for any portion of the loss incurred more than 1

year before the date on which the action was commenced.

The notice of injury required by this subsection may be

given to the insurer or any of its authorized agents by a

person claiming to be entitled to beneﬁts therefor, or by

someone in his behalf. The notice shall give the name and

address of the claimant and indicate in ordinary language

the name of the person injured and the time, place and

nature of his injury.

In Devillers

v Auto Club Ins Ass’n, 473 Mich 562, 574;

702 NW2d 539 (2005), the Michigan Supreme Court

explained:

[Section] 3145(1) contains two limitations on the time for

ﬁling suit and one limitation on the period for which

beneﬁts may be recovered:

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(1) An action for personal protection insurance

[PIP] beneﬁts must be commenced not later than

one year after the date of accident, unless the

insured gives written notice of injury or the insurer

previously paid [PIP] beneﬁts for the injury.

(2) If notice has been given or payment has been

made, the action may be commenced at any time

within one year after the most recent loss was

incurred.

(3) Recovery is limited to losses incurred during

the one year preceding commencement of the action.

[Citation omitted.]

The Court recognized that the language of the statute

“must

be enforced according to its plain meaning, and

cannot be judicially revised or amended to harmonize

with the prevailing policy whims of members of this

Court.” Id. at 582.

In this case, the medical bill and plaintiff’s medical

records listed “Dragen Perkovic” as the “insured” and

provided his address of “3472 South Blvd, Bloomﬁeld

Hills, MI 48304.” The medical records also indicated

that Dragen Perkovic was the person injured, that he

was admitted to The Nebraska Medical Center in

Omaha, Nebraska, at 12:03 p.m. on February 28, 2009,

after a motor vehicle accident that occurred on the

interstate, and that he may have suffered a “back

sprain, cervical sprain or fracture, chest wall contusion,

contusion, head injury, liver injury, myocardial contu-

sion, pneumothorax, splenic injury, sprained or frac-

tured extremity.” Thus, the notice provided plaintiff’s

name and address, and it indicated in ordinary lan-

guage the name of the person injured and the time,

place, and nature of his injury. Additionally, the medical

bill and medical records were given to defendant within

one year after the accident: the accident occurred on

252 312 M

ICH

244 [Sept

February 28, 2009, and the medical bill and medical

records were sent to defendant on April 30, 2009.

Defendant, however, contends that the requirement

in MCL 500.3145(1) that the notice be made “by a

person claiming to be entitled to beneﬁts therefor, or by

someone in his behalf,” means that the information

must convey the intent to make a claim for PIP

beneﬁts. Defendant cites an unpublished decision that

relied on the Michigan Supreme Court’s decision in

Welton v Carriers Ins Co, 421 Mich 571, 579-580; 365

NW2d 170 (1984), overruled in part by Devillers, 473

Mich at 577, 581.

In W

elton, the Michigan Supreme

Court required the plaintiff to make a speciﬁc claim for

personal protection insurance beneﬁts to trigger toll-

ing of the one-year-back rule set forth in MCL 500.3145

because “something more than a general notice of

injury [was required to toll the one-year-back rule].”

Devillers, 473 Mich at 576. The Welton Court stated

that “[u]ntil a speciﬁc claim is made, an insurer has no

way of knowing what expenses have been incurred,

whether those expenses are covered losses and, indeed,

whether the insured will ﬁle a claim at all.” Welton, 421

Mich at 579. However, Welton involved the tolling of

the one-year-back rule, which is not at issue here, and,

in fact, is no longer permitted. Devillers, 473 Mich at

593. Thus, the analysis from Welton is not applicable in

this case.

Regarding the notice provision enabling claimants

to extend the period for recovery of personal protection

insurance beneﬁts up to one additional year, which is

at issue in this case, this Court explained in Dozier v

State Farm Mut Auto Ins Co, 95 Mich App 121, 128;

290 NW2d 408 (1980):

Devillers overruled Lewis v DAIIE, 426 Mich 93; 393 NW2d 167

(1986), which had adopted the rule from Welton.

2015] P

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253

The policy and purposes such statutes are intended to

serve have been stated thus:

Statutes of limitations are intended to compel the

exercise of a right of action within a reasonable time

so that the opposing party has a fair opportunity to

defend; to relieve a court system from dealing with

stale claims, where the facts in dispute occurred so

long ago that evidence was either forgotten or manu-

factured; and to protect potential defendants from

protracted fear of litigation.

Notice provisions have different objectives than stat-

utes of limitations:

Notice provisions are designed, inter alia, to

provide time to investigate and to appropriate funds

for settlement purposes.

In light of these objectives, and the existence in a single

statutory provision of both a notice provision and a limi-

tation of action provision, we conclude that substantial

compliance with the written notice provision which does in

fact apprise the insurer of the need to investigate and to

determine the amount of possible liability of the insurer’s

fund, is sufﬁcient compliance under § 3145(1). [Quotation

marks and citations omitted.]

In Dozier,

the plaintiffs’ attorney sent a letter to the

defendant indicating that he had been retained to

represent the plaintiffs regarding the injuries one of

the plaintiffs sustained “in the accident of June 9th”

and claiming “a lien on any and all settlements in

regard to this accident.” Id. at 124. This Court indi-

cated that the letter informed the defendant of the

accident, and because the credibility of the letter was

untainted, it provided the defendant with adequate

warning to permit it to conduct an investigation of the

matter. Id. at 129-130. However, because the letter did

“[not] indicate in ordinary language the place and

nature of [the] injury, defendant [wa]s denied knowl-

254 312 M

ICH

244 [Sept

edge of the essential facts upon which its liability

depend[ed] and therefore [it could not] appropriate

funds for settlement purposes.” Id. at 130. Nonethe-

less, the Court did not actually decide whether the

notice was sufﬁcient because it concluded that the

defendant had waived its right to assert the insufﬁ-

ciency of the notice. Id.

In Walden v Auto Owners Ins Co, 105 Mich App 528,

530; 307 NW2d 367 (1981), the plaintiff orally reported

the accident in which he was involved to his insurance

agent who ﬁlled out an “Auto Accident Notice” form

and transmitted it to the defendant. This Court held

that the notice was not fatally defective because the

injury section was not completed. Id. at 534. Citing

Dozier, the Court concluded that “the accident form

was even more complete in that it gave the name and

address of the claimant, the time and place of the

vehicular accident, and speciﬁed that plaintiff rolled

over while in his truck.” Id.

Similarly, in Gomez, 114 Mich App at 819, the

policyholder orally notiﬁed his insurance agent about

the accident involving his vehicle, and the agent pro-

vided written notice to the defendant. This Court held

that the written notiﬁcation describing the time and

the place of the accident was sufﬁcient even though the

notice did not name the claimant because he could not

be located. Id. at 823, 825. The Court concluded that

the written notiﬁcation, describing the time and place

of the accident, was sufﬁcient to provide time for the

defendant to investigate the accident. Id. at 825.

In Heikkinen v Aetna Cas & Sur Co, 124 Mich App

459, 461; 335 NW2d 3 (1983), the plaintiff’s husband

died after being overcome by the exhaust fumes of his

vehicle. The plaintiff was insured by the defendant and

obtained a policy through an agent who also prepared

2015] P

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255

income tax returns. Id. The plaintiff provided the

insurance agent with a copy of her husband’s death

certiﬁcate for purposes of preparing her tax return. Id.

She argued that the death certiﬁcate constituted notice

under MCL 500.3145(1). Id. at 463. Analyzing Dozier,

the Court stated that “[t]he letter in Dozier, although

not strictly complying with the contents requirements

of notice, did fulﬁll the purposes of the limitations and

notice provisions of the statute.” Id. The Court stated:

The instant case involves a mirror image of the Dozier

facts.

Plaintiff had strictly complied with the contents

requirements for notice but did not fulﬁll the purposes of

the limitations and notice provisions of § 3145(1). The

death certiﬁcate received by Mr. Gilmore contained all the

requisite information but it was not presented to him

under circumstances indicating that a claim in connection

with the death might be asserted. Mr. Gilmore was pre-

paring plaintiff’s tax return. No discussions concerning

the policy were held at this time or any other time.

Although plaintiff had previously informed Mr. Gilmore of

her husband’s death, she stated this was for the purpose of

removing her husband’s name from the policy of insur-

ance. She did not indicate she was asserting a claim and in

fact testiﬁed that she was unaware of the existence of any

claim either at the time of the telephone call or at the time

the death certiﬁcate was presented for purposes of prepar-

ing the tax return. Under these circumstances, Mr.

Gilmore was not apprised of the need to investigate and

appropriate funds nor of the need to inform Aetna to do so.

Notice encompasses something more than words typed

on a piece of paper. The words should be presented in a

form, or under circumstances, designed to in fact apprise

the insurer of the need to investigate and to determine the

amount of possible liability of the insurer’s fund.

The death certiﬁcate presented in connection with

preparation of the plaintiff’s tax return, although sufﬁ-

cient in content, did not fulﬁll the purposes of the statute.

Therefore, the death certiﬁcate did not constitute notice

256 312

ICH

244 [Sept

under the statute. The trial judge did not err in granting

defendant’s motion. [Heikkinen, 124 Mich App at 463-464

(quotation marks and citation omitted).]

In Joiner v Mich Mut Ins Co, 137 Mich App 464, 470;

357 NW2d 875 (1984), this Court recognized that prior

decisions of the Court had held “that where the no-

fault insurer and the workers’ compensation insurer

are the same entity, notice of a workers’ compensation

claim does not necessarily satisfy the notice require-

ments of § 3145(1), where the notice is not likely to

alert the insurer to the pendency of a possible no-fault

claim.” In one prior decision, this Court stated that

“mere notice of an injury under circumstances unre-

lated to a possible claim for no-fault beneﬁts does not

trigger the insurer’s investigative procedures nor does

it advise the insurer of the need to appropriate funds

for settlement.” Id. at 471. However, in Joiner, the

plaintiff’s complaint with the Insurance Bureau con-

tained a handwritten statement indicating that the

plaintiff had ﬁled for both no-fault beneﬁts and work-

ers’ compensation beneﬁts. Id. at 471-472. The com-

plaint also clearly stated that the accident involved a

motor vehicle. Id. at 472. Thus, the Court held “that

the complaint was designed to and did in fact apprise

defendant of the pendency of a possible no-fault claim.”

Id.

This Court does not always require strict, technical

compliance with the requirements of MCL 500.3145(1),

and in Dozier, Walden, and Gomez, there was no

indication that the defendants were unaware of a

possible no-fault claim. The defendants in those cases

were sent either a letter or a written notice form. See

Gomez, 114 Mich App at 819; Walden, 105 Mich App at

530; Dozier, 95 Mich App at 124. We agree with the

trial court that “[t]here was no question in Gomez that

2015] P

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257

the agent was providing the notice with the intent to

ﬁle a claim.” This is similarly true in Dozier and

Walden.

In this case, however, no letter or written notice

form was sent that would alert defendant to the

possible pendency of a no-fault claim. Rather, the

medical bill and medical records were sent to defen-

dant without any indication of a possible claim. In fact,

according to White, the bill and records were sent for

the purpose of obtaining payment. This notice of injury,

which was unrelated to a possible claim for no-fault

beneﬁts, did not trigger defendant’s investigative pro-

cedures or advise defendant of the need to appropriate

funds for settlement. See Joiner, 137 Mich App at 471.

Similar to the death certiﬁcate in Heikkinen, 124 Mich

App at 464, the medical bill and medical records,

although sufﬁcient in content, did not fulﬁll the pur-

poses of the statute. Accordingly, plaintiff did not

provide sufﬁcient notice pursuant to MCL 500.3145(1),

and the trial court properly granted summary disposi-

tion in favor of defendant.

Afﬁrmed. As the prevailing party, defendant may tax

costs under MCR 7.219.

ALBOT

, P.J., and F

ORT

OOD

, J., concurred with

ILDER

, J.

258 312 M

ICH

244 [Sept

WALEGA v WALEGA

Docket No. 321721. Submitted September 1, 2015, at Detroit. Decided

September 10, 2015, at 9:05 a.m.

Charles Walega ﬁled an action in the Macomb Circuit Court against

Kathleen Walega, State Farm Mutual Automobile Insurance

Company, and Farm Bureau Insurance Company for no-fault

beneﬁts after he was seriously injured when a gun safe weighing

more than 1,500 pounds fell onto his left leg as the safe was being

dragged behind, or loaded onto, plaintiff’s truck. Plaintiff ﬁled a

motion for summary disposition, and the circuit court, Mark S.

Switalski, J., granted the motion, ruling that plaintiff was en-

titled to personal protection insurance (PIP) beneﬁts for his

injury regardless of whether the safe was being dragged behind or

loaded onto the truck. The court denied Farm Bureau’s motion for

reconsideration and entered a stipulated judgment for plaintiff,

subject to defendant’s reservation of its right to appeal the

judgment. Farm Bureau appealed.

The Court of Appeals held:

The trial court properly granted plaintiff’s motion for sum-

mary disposition because plaintiff’s injury was closely related to

the truck’s use as a motor vehicle as is required for the recovery

of PIP beneﬁts under the no-fault act. An insured individual is

entitled to PIP beneﬁts when his or her injury has a causal

connection to the use of a motor vehicle as a motor vehicle. Using

a truck to move an item is a normal and foreseeable use of the

truck, and it was undisputed that the truck was being driven in

order to move the safe when plaintiff was injured. Therefore,

plaintiff’s injury resulted from the use of his truck as a motor

vehicle. Whether the safe was being pulled by a rope attached to

the truck’s trailer hitch, or was partially loaded onto the truck’s

bed when it fell, is not dispositive. Plaintiff was entitled to PIP

beneﬁts no matter whether the safe fell after striking an uneven

portion of the driveway pavement as it was being dragged behind

the truck or the safe fell off the truck bed when the truck

accelerated. Under either of these circumstances, the truck was

moving at the time of plaintiff’s injury and was thus quite

obviously engaged in a transportational function.

Afﬁrmed.

2015] W

ALEGA V

ALEGA

259

-F

AULT

NSURANCE —

PIP B

ENEFITS —

IRCUMSTANCES OF

NJURY —

SE OF A

OTOR

EHICLE AS A

OTOR

EHICLE

An insured individual injured by an object on or attached to a motor

vehicle is entitled to Personal Protection Insurance beneﬁts when

his or her injury is closely related to the motor vehicle’s use as a

motor vehicle; using a truck to transport an item is a normal and

foreseeable use of the truck, and a truck moving on a driveway is

clearly engaged in a motor vehicle’s transportational function.

Lipton Law, PC (by Chris

Camper and Kyle J. Kelly),

for Charles Walega.

Willingham & Coté, PC (by Kimberlee A. Hillock,

John A. Yeager, and Troy D. Clarke), for Farm Bureau

Insurance Company.

Before: T

ALBOT

, P.J., and W

ILDER

and F

ORT

OOD

, JJ.

ILDER

, J. In this action for no-fault beneﬁts, defen-

dant Farm Bureau Insurance Company appeals as of

right a stipulated order entering judgment for plaintiff,

Charles Walega, in the amount of $75,000. The stipu-

lated order preserved defendant’s right to appeal the

trial court’s grant of summary disposition in favor of

plaintiff and the trial court’s denial of defendant’s

motion for reconsideration. Because we conclude that

plaintiff’s injury arose out of the ownership, operation,

maintenance, or use of a motor vehicle as a motor

vehicle, we afﬁrm.

On November 2, 2011, plaintiff, with the assistance

of his wife, Kathleen Walega, was moving a gun safe

that weighed more than 1,500 pounds. It is undisputed

that plaintiff’s truck was being used to help move the

safe. However, there is a factual dispute regarding how

the safe was being moved and the location of the safe at

the time the injury occurred.

According to defendant, the safe had been attached

to the truck’s trailer hitch by a rope, but was still on

260 312 M

ICH

259 [Sept

the ground while it was being moved. Defendant relies

on medical records, as well as a statement posted on

Facebook by Kathleen after the accident, which indi-

cate that Kathleen was driving the truck with the safe

attached to the trailer hitch by the rope. While the

truck was dragging the safe out of the garage onto the

driveway, the safe struck uneven concrete, causing it to

ﬂip over and land on plaintiff’s leg. Plaintiff and

Kathleen, however, testiﬁed at their depositions that

the safe was already partially loaded onto the bed of

the truck, and that when the truck hit the uneven

portion of the driveway, the safe fell out of the truck

and onto plaintiff’s leg.

Under either scenario, it is undisputed that the

truck was being driven by Kathleen at the time the

safe fell and landed on plaintiff’s leg. It is also undis-

puted that following the injury, plaintiff underwent

multiple surgeries before his left leg was eventually

amputated below the knee.

On March 2, 2012, plaintiff sought personal protec-

tion insurance (PIP) beneﬁts from defendant. In seek-

ing the beneﬁts, plaintiff claimed that the injury oc-

curred when Kathleen accelerated the truck over the

pavement, causing the safe to fall off the bed of the

truck. Plaintiff also claimed that even if the rope had

broken before the truck had been moved, he would still

be entitled to beneﬁts under MCL 500.3106(1)(b).

April

4, 2012, defendant informed plaintiff’s attorney

that it disagreed that plaintiff would be entitled to PIP

beneﬁts if the fall occurred during “preparation for

MCL 500.3106(1)(b) indicates that accidental bodily injury may

“arise out of the ownership, operation, maintenance, or use of a parked

vehicles as a motor vehicle” if “the injury was a direct result of physical

contact with equipment permanently mounted on the vehicle, while the

equipment was being operated or used, or property being lifted onto or

lowered from the vehicle in the loading or unloading process.”

2015] W

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261

loading and before loading itself.” Defendant also

noted factual discrepancies regarding what occurred,

indicated that in the absence of under-oath examina-

tion the investigation could not be advanced, and

stated that PIP beneﬁts would not be provided because

plaintiff had “not provide[d] reasonable proof of cover-

age of the claim.”

Plaintiff initiated the instant lawsuit on October 9,

2012. Following discovery and other matters, plaintiff

ﬁled his motion for summary disposition under MCR

2.116(C)(10) on September 5, 2013. Plaintiff argued

that he was entitled to coverage under MCL 500.3105

because, even under defendant’s version of the facts,

plaintiff was attempting to tow the safe with the

moving truck. Trucks are routinely used to transport

heavy objects. Further, the moving truck did not

merely represent the location of the injury. Rather, the

injury was directly related to the use of the truck as a

mode of transportation.

Defendant ﬁled its response on September 16, 2013,

arguing that plaintiff’s injuries did not arise out of the

transportational function of a motor vehicle because

the truck was either being used as an immobile anchor

point for the rope or was pulling the skidding safe.

Defendant claimed that the truck was being used as a

tool and was not being driven on a public roadway.

Defendant also argued that if the facts of the loss were

as stated by Kathleen, then plaintiff made misrepre-

sentations and the policy was void. Accordingly, defen-

dant argued, there was a genuine issue of material

fact, and summary disposition was not warranted.

Without holding oral argument, the trial court

granted plaintiff’s motion for summary disposition, in

part, on September 30, 2013. The trial court ruled that

262 312 M

ICH

259 [Sept

plaintiff was entitled to PIP beneﬁts under either

plaintiff’s version or defendant’s version of events:

As noted, plaintiff has attributed the accident to the

process of loading the safe into his truck. He then planned

to drive the safe to a buyer. Under these circumstances,

plaintiff would be entitled to PIP beneﬁts. MCL

500.3106(1)(b).

Defendant Kathleen Walega posted a Facebook entry on

November 5, 2011 describing the accident as happening

while the safe was being moved from the garage. Under this

version, plaintiff had tied a rope around the safe and

defendant Kathleen Walega was using the truck to pull the

safe from the garage so it could be loaded into the truck. As

the safe dragged across the driveway, it hit a raised portion

of pavement and tipped over onto plaintiff’s foot. Under

these circumstances, plaintiff would also be entitled to PIP

beneﬁts because the truck was being used (i.e., was not

parked) to move the safe—even if for a short distance—and

the safe was connected to the truck. McKenzie v Auto Club

Ins Ass’n, 458 Mich 214; 580 NW2d 424 (1998) (coverage

applicable if use of vehicle is closely related to its transpor-

tational function at time of injury); see also Block v Citizens

Ins Co of America, 111 Mich App 106; 314 NW2d 536 (1981)

(no coverage when accident occurs while carrying items to

vehicle and there is no actual connection to vehicle).

The trial court went on to state, however, that defen-

dant’s

fraud claim, based on allegations that Kathleen

changed her story to support plaintiff’s version of

events, was a defense that had to be decided by a jury.

The trial court also concluded that plaintiff’s asserted

damages were subject to reasonable dispute.

On October 22, 2013, defendant sought reconsidera-

tion and clariﬁcation of the trial court’s order. Defen-

dant argued, inter alia, that the trial court did not

address the possible use of the motor vehicle as an

anchor point and requested clariﬁcation based on the

2015] W

ALEGA V

ALEGA

263

trial court’s apparently contradictory ruling that plain-

tiff was entitled to PIP beneﬁts, but that defendant

was entitled to present its fraud defense to a jury.

On November 4, 2013, the trial court denied the

motion for reconsideration, noting that defendant’s

argument was the same as that made in its response to

plaintiff’s motion for summary disposition and further

stating:

[D]efendant Farm Bureau fails to cite any authority for

the

proposition that an item must be moved some mini-

mum distance to satisfy the transportational function test

for PIP coverage. Moreover, coverage has been afforded for

dragging items behind a vehicle. See Smith v Community

Service Ins Co, 114 Mich App 431; 319 NW2d 358 (1982)

(plaintiff injured while riding an inner tube being towed

by a motor vehicle entitled to coverage).

As previously noted, the evidence only suggests the

safe either fell from the back of a moving truck or tipped

over while being dragged by a moving truck. Hence, there

was no need to discuss the possible use of the truck as a

stationary anchor point or tool.

Finally, the trial court clariﬁed its earlier opinion

regarding

the fraud defense:

The subject policy voids coverage if there is an inten-

tionally concealed or misrepresented material fact or

circumstance, fraudulent conduct or false statement relat-

ing to a loss. Family Auto Policy, Part V, § C.

[

]

Thus,

Part V, § C of the relevant policy provides:

The entire policy will be void if, whether before or after a loss,

you, any family member, or any insured under this policy has:

1. intentionally concealed or misrepresented any material

fact or circumstance;

2. engaged in fraudulent conduct; or

3. made false statements;

264 312 M

ICH

259 [Sept

defendant Farm Bureau could only void coverage if a

material fact or statement relating to plaintiff’s loss was

misrepresented or falsely made. However, as both factual

scenarios result in coverage for plaintiff’s loss, any mis-

represented or false fact or statement was not material to

plaintiff’s loss. Consequently, defendant Farm Bureau’s

fraud defense does not preclude summary disposition on

the issue of plaintiff’s entitlement to PIP coverage and

should not have been noted as requiring submission to the

jury for resolution.

On May 2, 2014, the parties stipulated to entry of

judgment

in favor of plaintiff, subject to defendant’s

reservation of its right to appeal the trial court’s ruling

on plaintiff’s summary disposition motion and on de-

fendant’s motion for reconsideration. On May 12, 2014,

defendant ﬁled the instant appeal.

On appeal, defendant argues that the trial court

erred

in concluding that plaintiff was using his truck

as a motor vehicle at the time the injury occurred. We

disagree.

We review de novo the trial court’s ruling on a

motion for summary disposition. The Healing Place at

North Oakland Med Ctr v Allstate Ins Co, 277 Mich

App 51, 55; 744 NW2d 174 (2007).

“A motion under MCR 2.116(C)(10) tests the factual

sufﬁciency

of the complaint.” In evaluating such a motion,

a court considers the entire record in the light most

favorable to the party opposing the motion, including

afﬁdavits, pleadings, depositions, admissions, and other

relating to this insurance or to a loss to which this insurance

applies.

On November 25, 2013, before the judgment, defendant had ﬁled an

application for leave to appeal. The leave application was dismissed

following defendant’s motion to withdraw the appeal. See Walega v

Walega, unpublished order of the Court of Appeals, entered May 20,

2014 (Docket No. 319233).

2015] W

ALEGA V

ALEGA

265

evidence submitted by the parties. Where the proffered

evidence fails to establish a genuine issue regarding any

material fact, the moving party is entitled to judgment as

a matter of law. [Corley v Detroit Bd of Ed, 470 Mich 274,

278; 681 NW2d 342 (2004) (citations omitted)].

We also review de novo questions of law, including

statutory interpretation. Gorman v American Honda

Motor Co, Inc, 302 Mich App 113, 116; 839 NW2d 223

(2013).

The primary goal of statutory interpretation is to

“ascertain

the legislative intent that may reasonably be

inferred from the statutory language.” “The ﬁrst step in

that determination is to review the language of the statute

itself.” Unless statutorily deﬁned, every word or phrase of

a statute should be accorded its plain and ordinary mean-

ing, taking into account the context in which the words are

used. We may consult dictionary deﬁnitions to give words

their common and ordinary meaning. When given their

common and ordinary meaning, “[t]he words of a statute

provide ‘the most reliable evidence of its intent . . . .’ ”

[Krohn v Home-Owners Ins Co, 490 Mich 145, 156-157;

802 NW2d 281 (2011) (citations omitted; alteration in

original).]

In addition, as noted in Churchman

v Rickerson, 240

Mich App 223, 228-229; 611 NW2d 333 (2000):

The no-fault act generally is to be construed liberally

because it is remedial in nature. Putkamer v

Transamerica Ins Corp of America, 454 Mich 626, 631; 563

NW2d 683 (1997). However, this rule of construction is

intended to apply to the payment of beneﬁts to injured

parties, who were intended to beneﬁt from the adoption of

no-fault legislation. Id. Where appropriate, the act should

be broadly construed to effectuate coverage. McMullen v

Motors Ins Corp, 203 Mich App 102, 107; 512 NW2d 38

(1993).

MCL 500.3105(1) provides: “Under personal protec-

tion insurance an insurer is liable to pay beneﬁts for

266 312 M

ICH

259 [Sept

accidental bodily injury arising out of the ownership,

operation, maintenance or use of a motor vehicle as a

motor vehicle, subject to the provisions of this chapter.”

Analyzing the use of the phrase “as a motor vehicle” in

MCL 500.3105(1), our Supreme Court stated:

As a matter of English syntax, the phrase “use of a

motor vehicle ‘as a motor vehicle’ ” would appear to invite

contrasts with situations in which a motor vehicle is not

used “as a motor vehicle.” This is simply to say that the

modiﬁer “as a motor vehicle” assumes the existence of

other possible uses and requires distinguishing use “as a

motor vehicle” from any other uses. While it is easily

understood from all our experiences that most often a

vehicle is used “as a motor vehicle,” i.e., to get from one

place to another, it is also clear from the phrase used that

the Legislature wanted to except those other occasions,

rare as they may be, when a motor vehicle is used for other

purposes, e.g., as a housing facility of sorts, as an adver-

tising display (such as at a car dealership), as a foundation

for construction equipment, as a mobile public library, or

perhaps even when a car is on display in a museum. On

those occasions, the use of the motor vehicle would not be

“as a motor vehicle,” but as a housing facility, advertising

display, construction equipment base, public library, or

museum display, as it were. It seems then that when we

are applying the statute, the phrase “as a motor vehicle”

invites us to determine if the vehicle is being used for

transportational purposes. [McKenzie, 458 Mich at 218-

219.]

The McKenzie Court

went on to state that under the

Motor Vehicle Code, “ ‘[v]ehicle’ means every device in,

upon, or by which any person or property is or may be

transported or drawn upon a highway . . . .” Id. at 219,

quoting MCL 257.79 (some quotation marks omitted).

In addition to the statutory deﬁnition of “vehicle,” the

McKenzie Court also noted that “the dictionary deﬁni-

tion of ‘vehicle’ is ‘any device or contrivance for carry-

ing or conveying persons or objects, esp. over land or in

2015] W

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space . . . .’ ” McKenzie, 458 Mich at 219, quoting Web-

ster’s New World Dictionary (3d College Ed). Based on

these deﬁnitions, the Court held “that the clear mean-

ing of this part of the no-fault act is that the Legisla-

ture intended coverage of injuries resulting from the

use of motor vehicles when closely related to their

transportational function and only when engaged in

that function.” McKenzie, 458 Mich at 220. Applying

the transportational function test, the McKenzie Court

held that the insured in that case was not entitled to

PIP beneﬁts for injuries that resulted while using the

vehicle as sleeping accommodations because such use

was “too far removed from the transportational func-

tion to constitute use of the camper/trailer ‘as a motor

vehicle’ at the time of the injury.” Id. at 226.

In the instant case, viewing the facts in the light

most favorable to defendant, it is undisputed that the

insured truck was being driven for purposes of moving

the safe. As noted in McKenzie, 458 Mich at 221,

“moving motor vehicles are quite obviously engaged in

a transportational function.” While defendant at-

tempts to limit the importance of this statement, it is

clear that in the case at bar, the truck was moving for

the purpose of transporting or conveying the safe from

one location to another when the injury occurred.

Thus, “the requisite nexus between the injury and the

transportational function of the motor vehicle” is pres-

ent. Id. at 226.

Defendant relies on Morosini v Citizens Ins Co of

America (After Remand), 461 Mich 303, 310; 602 NW2d

828 (1999), which states that “[c]overage is not man-

dated by the fact that the injury occurred within a

moving vehicle” and that “[i]ncidental involvement of a

motor vehicle does not give rise to coverage . . . .”

However, defendant fails to note that Morosini made

268 312 M

ICH

259 [Sept

such statements based on the holdings of Thornton v

Allstate Inc Co, 425 Mich 643; 391 NW2d 320 (1986),

Marzonie v ACIA, 441 Mich 522; 495 NW2d 788 (1992),

and Bourne v Farmers Ins Exch, 449 Mich 193; 534

NW2d 491 (1995). Each of those cases dealt with a

situation in which the driver of the vehicle was injured

after being assaulted by a third party. None of the

drivers were injured as a result of a motor vehicle

accident. Morosini, 461 Mich at 307-309, citing Thorn-

ton, 425 Mich at 660; Marzonie, 441 Mich at 534; and

Bourne, 449 Mich at 203. Indeed, Morosini itself in-

volved a claim for PIP beneﬁts not as the result of

injuries that occurred in a car accident, but rather as

the result of injuries sustained when the plaintiff was

assaulted by the driver who rear-ended him. Morosini,

461 Mich at 305. Clearly, Morosini, and the cases relied

on therein (Thornton, Marzonie, and Bourne), are

distinguishable from the instant case.

Defendant also attempts to argue that this case is

akin

to Gooden v Transamerica Ins Corp of America,

166 Mich App 793; 420 NW2d 877 (1988). However, in

that case, the plaintiff was using his parked truck to

“ensure greater stability and to extend the ladder’s

reach” as the plaintiff was “chipping ice off the roof of

a friend’s home.” Id. at 795. In other words, the

plaintiff was simply using the truck to stabilize and

extend the ladder’s height; according to the Court, the

In McKenzie, this Court stated that the analysis used in Thornton, in

which the Michigan Supreme Court focused on “whether the alleged

injury was causally related to the ‘vehicular use,’ ‘functional character,’

or ‘functional use’ of a motor vehicle,” supported the transportational

function approach. McKenzie, 458 Mich at 222-223, quoting Thornton,

425 Mich at 660-661. The McKenzie Court stated that its approach,

“focusing on the transportational function, makes the same distinction

and provides a more speciﬁc deﬁnition for these terms.” McKenzie, 458

Mich at 223.

2015] W

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truck “was nothing more than a scaffold.” Id. at 805-

806. He was not using the truck to transport anything.

Defendant also relies on Winter v Auto Club of Mich,

433 Mich 446; 446 NW2d 132 (1989). However, that

case dealt with exceptions to the parked vehicle exclu-

sion, id. at 455, and, as noted in McKenzie, was

consistent with the Court’s approach in McKenzie,

because the “injury [in Winter] arose out of the use of a

motor vehicle as a foundation for construction equip-

ment and was not closely associated with the transpor-

tational function.” McKenzie, 458 Mich at 221.

We agree with plaintiff that this case is similar to

Smith, 114 Mich App 431, a case decided before No-

vember 1, 1990.

The Smith plaintiff “was injured

while riding on an inner tube which was being towed

by the insured vehicle.” Id. at 432. In ﬁnding that the

plaintiff was entitled to PIP beneﬁts, this Court stated:

[T]he motor vehicle itself was the instrumentality of the

plaintiff’s

injury. At the time of the accident the vehicle

was being driven down a public roadway which is a use

which is certainly consistent with its inherent nature and

in accordance with its intended purpose. It was being

used, therefore, as a motor vehicle and as a motor vehicle

would normally be used. The fact that it may not have

been contemplated, as the defendant argues, that the

operator of a motor vehicle would pull someone in an inner

tube over a snow-covered road, or the fact that it may have

been negligent or even illegal to do so, is no defense to

coverage under the provisions of the no-fault act. The act

is certainly intended to compensate for injuries sustained

Defendant further attempts to rely on several unpublished opinions

to support its position that the truck in this case was not being used “as

a motor vehicle” at the time it was being used to move the safe. These

cases are not precedentially binding on this Court, see MCR 7.215(C)(1),

and they are distinguishable from the instant case.

See MCR 7.215 (J)(1).

270 312 M

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259 [Sept

as the direct result of negligent or unexpected use of a

motor vehicle so long as the vehicle is being used “as a

motor vehicle”.

To be entitled to PIP beneﬁts a claimant must establish

a causal connection, which is more than fortuitous, inci-

dental or but for, between the use of the motor vehicle and

the injury sustained. DAIIE v Higginbotham [95 Mich App

213; 290 NW2d 414 (1980)]. We ﬁnd that such a causal

connection is established under the facts of this case. An

injury which directly results from the force of a motor

vehicle which is being driven down a roadway in the

normal manner is an injury which arises “out of the * * *

operation * * * or use of a motor vehicle as a motor vehicle

* * *.” [Smith, 114 Mich App at 434-435.]

Similarly, in this case, plaintiff’s injury resulted from

he force of the motor vehicle hitting uneven concrete

causing the safe to fall over and onto plaintiff’s leg.

Whether the safe was on the bed of the truck, or being

pulled by a rope from the back of the truck, at the time

the safe fell over, the truck “was the instrumentality of

plaintiff’s injury.” Smith, 114 Mich App at 434. Driving

a truck to transport an item is “consistent with [a

truck’s] inherent nature and in accordance with its

intended purpose.” Id. Although the particular method

used to transport the safe, i.e., dragging it, may not have

been contemplated, the use of a truck to transport an

item is a normal use. Thus, the injury occurred while

the truck was being used as a motor vehicle. Id.

Defendant’s attempt to distinguish Smith on the basis that the truck

in Smith was being driven down a public roadway, as opposed to down

a driveway, is unpersuasive. Defendant has not provided any caselaw,

and we have not located any, suggesting that an injury that occurred on

a driveway, as opposed to a roadway, is any less cognizable under the

no-fault act. Rather, “as § 3106 indicates, a vehicle need not be moving

at the time of an injury for the injury to arise out of the use of a motor

vehicle as a motor vehicle, i.e., out of its transportational function.”

McKenzie, 458 Mich at 219 n 6.

2015] W

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271

Finally, in Drake v Citizens Ins Co of America, 270

Mich App 22, 24; 715 NW2d 387 (2006), the plaintiff

was injured while “assisting [the delivery truck driver]

in unclogging the truck’s auger system” as the driver

attempted to unload animal feed. In holding that the

plaintiff was entitled to PIP beneﬁts, this Court spe-

ciﬁcally stated that the situation in Drake was “unlike

those circumstances identiﬁed in McKenzie as rare

instances ‘when a motor vehicle is used for other

purposes . . . .’ ” Drake, 270 Mich App at 26, quoting

McKenzie, 458 Mich at 219. This Court noted that the

vehicle involved in Drake was “a delivery truck, and it

was being used as such when the injury occurred.”

Drake, 270 Mich at 26. Accordingly, this Court held

that the plaintiff’s injury was “closely related to the

motor vehicle’s transportational function, and there-

fore arose out of the operation, ownership, mainte-

nance, or use of a motor vehicle ‘as a motor vehicle.’ ”

Id., citing McKenzie, 458 Mich at 220.

In the present case, plaintiff was using a truck to

move or transport a very heavy safe, at a minimum,

from his garage to his driveway. It is normal and

foreseeable to use a truck, ﬁtted with a trailer hitch, to

move heavy objects. Accordingly, plaintiff’s injury was

closely related to the transportational function of the

vehicle, and therefore, the injury arose out of the

operation, ownership, maintenance, or use of a motor

vehicle “as a motor vehicle.” For the above reasons, we

hold that the trial court did not err when it held that

plaintiff was entitled to PIP beneﬁts.

Afﬁrmed. As the prevailing party, plaintiff may tax

costs under MCR 7.219.

ALBOT

, P.J., and F

ORT

OOD

, J., concurred with

ILDER

, J.

272 312 M

ICH

259 [Sept

HILLENBRAND v CHRIST LUTHERAN CHURCH OF BIRCH RUN

Docket No. 319127. Submitted March 11, 2015, at Lansing. Decided

September 15, 2015, at 9:00 a.m.

Richard P. Hillenbrand brought an action seeking declaratory and

injunctive relief in the Saginaw Circuit Court, alleging that Christ

Lutheran Church of Birch Run had wrongfully terminated his

employment as a pastor in violation of the constitution and bylaws

of the Lutheran Church—Missouri Synod (LCMS), of which defen-

dant was a member. Plaintiff initially sought relief through the

dispute resolution process set forth in the LCMS’s bylaws, but

before a hearing could be held, defendant withdrew its member-

ship from the LCMS and declined to participate. Nevertheless, an

LCMS dispute resolution panel determined that it had the author-

ity to act in the matter and ruled that defendant’s decision to

terminate plaintiff’s employment should be reviewed and revised,

and further ruled that plaintiff was entitled to compensation from

defendant. After plaintiff brought this court action seeking to be

restored to his position, defendant moved for summary disposition,

arguing that the ecclesiastical abstention doctrine prevented a

court from determining whether a church had violated its own

policies and procedures. The court, Frederick L. Borchard, J.,

granted defendant’s motion under MCR 2.116(C)(4), ruling that

because the relationship between defendant and the LCMS was

congregational rather than hierarchical in nature, the court lacked

subject-matter jurisdiction over the action. The court denied plain-

tiff’s motion for reconsideration, and plaintiff appealed.

The Court of Appeals held:

1. The trial court did not err by granting defendant’s motion for

summary disposition. Under the ecclesiastical abstention doctrine,

if the facts indicate that a denomination is hierarchical, a civil

court may not redetermine the correctness of an interpretation of

canonical text or some decision relating to the government of the

religious polity, but must defer to the resolution of those issues by

the highest court of a hierarchical church organization. When a

denomination is determined to be hierarchical, trial courts have

jurisdiction to enter a judgment, but the judgment must resolve

the matter consistent with any determinations already made by

2015] H

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273

the denomination. Determining whether a denomination is hier-

archical is a factual question. A church organization is congrega-

tional if it is self-governing and hierarchical if it is part of and

governed by a larger organization. A plain reading of LCMS’s

constitution indicated that the LCMS was only an advisory body

and not a governing body. Therefore, the court did not clearly err by

determining that LCMS was congregational in nature. Further,

LCMS’s constitution provided that it controlled and superseded

bylaws and all other rules and regulations, including a 1983

resolution indicating that the LCMS had hierarchical dimensions,

and that LCMS’s resolutions were not binding on individual

congregations if the individual congregations deemed them inex-

pedient. This statement clearly left individual congregations open

to adopt or disregard LCMS’s resolutions. Because the plain

language of LCMS’s constitution expressly indicated that it was

not a governing body, the court was not required to accept the

interpretation provided by the denomination.

2. The trial court erred by ﬁnding that defendant could

withdraw from the LCMS because LCMS’s bylaws prohibited its

members from terminating their membership in a manner that

would render a decision of the dispute resolution panel inappli-

cable. Defendant informed the LCMS that it was withdrawing its

membership because of the politics involved with the Michigan

District of the Missouri Synod and because it wanted a pastor

who cared about them, and further informed the LCMS that it

would not be attending and did not agree to be bound by any

dispute resolution hearing conducted by the LCMS. Because

defendant was not permitted to render the dispute resolution

hearing inapplicable in that manner, its doing so was improper.

However, the trial court did not err by concluding that any

decision from the dispute resolution panel would have been

advisory and not binding on the parties.

Afﬁrmed.

Davis Burket Savage Listman Brennan (by Robert

Davis and William N. Listman) for plaintiff.

Johnston, Sztykiel & Hunt, PC (by J. Steven John-

ston and Joseph N. Fraser), for defendant.

Amicus Curiae:

Thompson Coburn LLP (by Todd A. Rowden) for the

Lutheran Church—Missouri Synod.

274 312 M

ICH

273 [Sept

Before: W

ILDER

, P.J., and S

ERVITTO

and S

TEPHENS

, JJ.

TEPHENS

, J. Plaintiff appeals as of right the opinion

and order of the trial court granting defendant’s mo-

tion for summary disposition under MCR 2.116(C)(4).

We afﬁrm.

I. BACKGROUND

Defendant is a Lutheran church. Plaintiff served as

astor at defendant church for seven years, from 2005

until his employment was terminated in 2012. In

2013, plaintiff ﬁled a complaint against defendant

that alleged defendant, as a member of the Lutheran

Church—Missouri Synod (LCMS), wrongfully termi-

nated plaintiff’s employment in violation of LCMS’s

constitution. Plaintiff requested that the trial court

enjoin defendant’s termination of plaintiff as its pas-

tor, order defendant to reinstate plaintiff as its pastor,

order defendant to remove any reference to defen-

dant’s termination of plaintiff as its pastor, and order

the restoration of plaintiff’s rights under his employ-

ment agreement with defendant.

According to plaintiff, LCMS’s constitution required

the employment dispute to be presented to an LCMS

Dispute Resolution Panel. A hearing was held before

such a panel on August 17, 2012, and August 18, 2012,

but defendant had withdrawn its membership from

LCMS on June 18, 2012, and stated that it would not

participate in the hearing. The panel ruled that defen-

dant’s decision to terminate plaintiff’s employment as

its pastor “should be reviewed and revised.” The panel

further concluded that plaintiff was entitled to com-

pensation from the date that defendant terminated

plaintiff’s employment as its pastor, March 11, 2012,

“until said time when [plaintiff] receives and, if he so

2015] H

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275

chooses, as led by the Holy Spirit, to accept a call to

another congregation,” in the amount of $59,800 as an

annual salary, as well as $12,500 for additional out-of-

pocket expenses related to health insurance, retire-

ment beneﬁts, and costs related to the hearing.

In lieu of ﬁling an answer to plaintiff’s complaint,

defendant ﬁled a motion for summary disposition

under MCR 2.108(B), MCR 2.116(C)(4), and MCR

2.116(C)(7). Defendant asserted that it was entitled to

summary disposition because the ecclesiastical ab-

stention doctrine prevented a court from determining

whether a church had violated its own policies and

procedures. Defendant also argued that it was en-

titled to summary disposition because, under the

common law governing arbitration, its agreement to

be bound by a hearing before an LCMS panel was

unilaterally revocable. Plaintiff ﬁled a response to

defendant’s motion, arguing that because LCMS was

hierarchical, as opposed to congregational, the hear-

ing before the panel was binding and should therefore

be enforced.

After a hearing, the trial court issued a written

opinion and order granting defendant’s motion for

summary disposition. The trial court found that LCMS

was congregational and not hierarchical. The trial

court found that the plain language of LCMS’s 1983

resolution created a hierarchical relationship only as

to the “initial call to become a pastor and not for the

decision to terminate a call.” The trial court further

ruled that even if the 1983 resolution language applied

to a pastor’s termination, the only remedy available

would be to revoke defendant’s membership in LCMS.

Lastly, the trial court ruled that LCMS did not have

authority to bind defendant during the hearing be-

cause defendant was no longer an LCMS member and

276 312 M

ICH

273 [Sept

had withdrawn its consent before the hearing. Plain-

tiff’s motion for reconsideration was denied.

This appeal followed. LCMS was granted leave to

ﬁle a brief amicus curiae.

II. SUMMARY DISPOSITION

Plaintiff maintains that the trial court’s grant of

summary disposition to defendant was erroneous be-

cause LCMS is a hierarchical organization. We dis-

agree.

“[This Court] review[s] the trial court’s grant or

denial of summary disposition de novo.” Teadt v Lu-

theran Church Missouri Synod, 237 Mich App 567, 574;

603 NW2d 816 (1999). A trial court’s interpretation of

an organization’s constitution and bylaws is also re-

viewed de novo. See Slatterly v Madiol, 257 Mich App

242, 250-251, 256; 668 NW2d 154 (2003). The Court

reviews a trial court’s ﬁndings of fact for clear error.

Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748

NW2d 221 (2008). “A trial court’s factual ﬁndings are

clearly erroneous only when the reviewing court is left

with the deﬁnite and ﬁrm conviction that a mistake

has been made.” Id. (citation and quotation marks

omitted).

Summary disposition is appropriate under MCR

2.116(C)(4) when a court lacks jurisdiction over the

subject matter of an action. When reviewing such a

motion, this Court “must determine whether the plead-

ings demonstrate that the defendant was entitled to

judgment as a matter of law, or whether the afﬁdavits

and other proofs show that there was no genuine issue

Hillenbrand v Christ Lutheran Church of Birch Run, unpublished

order of the Court of Appeals, entered May 28, 2014 (Docket No.

319127).

2015] H

ILLENBRAND V

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277

of material fact.” Manning v Amerman, 229 Mich App

608, 610; 582 NW2d 539 (1998).

“[T]he First and Fourteenth Amendments to the

United States Constitution protect freedom of religion

by forbidding governmental establishment of religion

and by prohibiting governmental interference with the

free exercise of religion.” Bennison v Sharp, 121 Mich

App 705, 712; 329 NW2d 466 (1982). “Both Religion

Clauses bar the government from interfering with the

decision of a religious group to ﬁre one of its ministers.”

Hosanna-Tabor Evangelical Lutheran Church & Sch v

EEOC, 565 US 171, 181; 132 S Ct 694; 181 L Ed 2d 650

(2012). The United States Supreme Court has con-

ﬁrmed “that it is impermissible for the government to

contradict a church’s determination of who can act as

its ministers.” Id. at 185.

Under the ecclesiastical abstention doctrine, “where

the facts indicate that a denomination is hierarchical,

‘civil courts may not redetermine the correctness of an

interpretation of canonical text or some decision relat-

ing to the government of the religious polity,’ . . . but

must defer to the resolution of those issues ‘by the

highest court of a hierarchical church organization[.]’ ”

Lamont Community Church v Lamont Christian Re-

formed Church, 285 Mich App 602, 616; 777 NW2d 15

(2009), quoting Smith v Calvary Christian Church, 462

Mich 679, 684; 614 NW2d 590 (2000); see also Benni-

son, 121 Mich App at 713. “[W]hen a denomination is

determined to be hierarchical, trial courts have juris-

diction to enter a judgment, but the judgment must

resolve the matter consistent with any determinations

already made by the denomination.” Id.

“The determination of whether a denomination is

hierarchical is a factual question.” Id. at 615, citing

278 312 M

ICH

273 [Sept

Calvary Presbyterian Church v Presbytery of Lake

Huron of the United Presbyterian Church, 148 Mich

App 105, 113; 384 NW2d 92 (1986). A denomination is

hierarchical if it “is but a subordinate part of a general

church in which there are superior ecclesiastical tribu-

nals with a more or less complete power of control . . . .”

Bennison, 121 Mich App at 720. “A denomination is

organized in a hierarchical structure when it has a

central governing body which has regularly acted

within its powers while the looser ‘congregational’

structure generally has all governing powers and prop-

erty ownership remaining in the individual churches.”

Lamont, 285 Mich App at 618 (citation, brackets, and

quotation marks omitted). Stated differently, a church

organization is congregational if it is self-governing; a

church organization is hierarchical if it is “part of and

governed by a larger organization.” Little v First Bap-

tist Church, Crestwood, 475 US 1148, 1148; 106 S Ct

1802; 90 L Ed 2d 347 (1986) (Marshall, J., dissenting)

(emphasis added).

The trial court found that it lacked jurisdiction over

the subject matter of this lawsuit under MCR

2.116(C)(4) because LCMS was congregational. Our

review of the trial court’s grant of summary disposi-

tion, therefore, begins with an examination of whether

LCMS is hierarchical or congregational.

According to defendant’s articles of association, its

members “shall worship and labor together according

to the discipline, rules and usage of [LCMS] in the

United States of America as from time to time autho-

rized and declared by the delegate convention.”

Article VII of LCMS’s constitution, entitled “Rela-

tion of the Synod to Its Members,” states as follows:

1. In its relation to its members the Synod is not an

ecclesiastical

government exercising legislative or coercive

2015] H

ILLENBRAND V

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HURCH

279

powers, and with respect to the individual congregation’s

right of self-government it is but an advisory body. Accord-

ingly, no resolution of the Synod imposing anything upon

the individual congregation is of binding force if it is not in

accordance with the Word of God or if it appears to be

inexpedient as far as the condition of a congregation is

concerned.

2. Membership of a congregation in the Synod gives

the Synod no equity in the property of the congregation.

Article XIII, “Expulsion from the Synod,” ¶ 1, provides

that “[m]embers who act contrary to the confession laid

down in Article II and to the conditions of membership

laid down in Article VI or persist in an offensive

conduct shall, after previous futile admonition, be

expelled from the Synod.” Article XIV grants LCMS the

right to “adopt bylaws that are consistent with and do

not contradict the Constitution of the Synod, which

controls and supersedes such bylaws and all other

rules and regulations of the Synod.”

Under § 1.10.1.1 of LCMS’s bylaws, “[t]he use of the

Synod’s conﬂict resolution procedures shall be the

exclusive and ﬁnal remedy for those who are in dis-

pute.” Section 1.10.2 states, in part, as follows regard-

ing the conﬂict resolution procedures:

It shall be the exclusive remedy to resolve such disputes

that

involve theological, doctrinal, or ecclesiastical issues

except those covered under Bylaw sections 2.14-2.17 and

except as provided in Bylaw 1.10.3. It is applicable

whether the dispute involves only a difference of opinion

without personal animosity or is one that involves ill will

and sin that requires repentance and forgiveness. No

person or agency to whom or to which the provisions of

this dispute resolution process are applicable because

such person or agency is a member of the Synod may

render these provisions inapplicable by terminating that

membership.

280 312

ICH

273 [Sept

Section 1.10.3, however, indicates that “[t]his chapter

provides evangelical procedures to remedy disputes

only and does not set forth procedures for expulsion

from membership[.]” It also indicates that “[w]hile

Christians are encouraged to seek to resolve all their

disputes without resorting to secular courts, this chap-

ter does not provide an exclusive remedy for . . . [d]is-

putes arising under contractual arrangements of all

kinds[.]” Under § 1.10.7.4, ¶ (d), the ﬁnal decision of a

dispute resolution hearing panel is “binding upon the

parties.”

LCMS’s 1983 resolution, entitled “To Reafﬁrm Es-

sential Congregational Polity of the Synod,” states that

“[t]he word ‘hierarchical’ is repugnant to Missouri

Synod Lutherans because etymologically it refers to

‘rule by the priesthood’ ” and is deﬁned differently by

civil courts than it is in theology. The resolution further

states that “[i]n past instances the Synod has utilized

the legal nomenclature ‘hierarchical’ in legal proceed-

ings in order to preserve to member congregations and

others who associate together within the Synod the

right to resolve disputes freely in accordance with

established synodical procedures[.]”

The LCMS resolution then states as follows:

Resolved,

That The Lutheran Church—Missouri Synod

reafﬁrms that its synodical polity is essentially and prin-

cipally congregational in nature and therefore is ordinar-

ily referred to as a congregational polity; and be it further

Resolved, That the Synod acknowledges that under the

deﬁnition and application of the word “hierarchical” in

civil law there are aspects in the relationships within the

Synod between and among congregations (e.g. Article II,

Confession; the calling of certiﬁed and endorsed pastors

only; agreements to abide by adjudicatory procedures and

their ﬁnal determinations) which under civil law may

2015] H

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imply, express, or evidence what the courts regard as

hierarchical dimensions; and be it further

Resolved, That, believing that Scripture (1 Cor. 6)

requires that we make every effort to avoid disputes or to

resolve them internally when they do arise, of the two

constitutional methods for resolving church disputes by

the civil courts, the Synod favors the “neutral principles of

law” method whenever it can be applied, and that when

neutral principles cannot be applied to resolve a particular

controversy, the Synod declares that it is able and willing

to resolve disputes internally; and be it further

Resolved, That while we believe the courts should

recognize that there are church polities other than “con-

gregational” and “hierarchical,” unless and until courts do

so, the present status of case law compels us to use certain

legal terminology; and be it ﬁnally

Resolved, That with the previously outlined explana-

tion, the Synod declares itself as satisﬁed with the proce-

dures heretofore followed by the Synod in instances in-

volving these issues.

Although its resolution and bylaws both apparently

attempt

to create an “exclusive,” “ﬁnal,” and “binding”

dispute resolution process, LCMS’s constitution un-

equivocally states that it “is not an ecclesiastical gov-

ernment exercising legislative or coercive powers, and

with respect to the individual congregation’s right of

self-government it is but an advisory body.” LCMS has

made it clear through its constitution, bylaws, and

resolution that individual congregations, including de-

fendant, are self-governing. There is no question that

at the time plaintiff was removed as defendant’s pas-

tor, defendant was “part of” LCMS; however, LCMS’s

constitution, its controlling document, expressly indi-

cates that defendant is not “governed by” LCMS. See

Little, 475 US at 1148 (Marshall, J., dissenting). Under

this plain reading of LCMS’s constitution, LCMS “is

282 312 M

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273 [Sept

but an advisory body” and not a governing body.

Therefore, LCMS is congregational in nature.

Plaintiff and LCMS ask this Court to ﬁnd LCMS to

be a hybrid entity: generally congregational, but hier-

archical in nature regarding confession, ministerial

call, and its dispute resolution process. We decline to

do so. We conclude that we are bound by LCMS’s

unequivocal statement in its constitution that it “is not

an ecclesiastical government exercising legislative or

coercive powers, and with respect to the individual

congregation’s right of self-government it is but an

advisory body.” LCMS’s constitution provides that it

“controls and supersedes such bylaws and all other

rules and regulations of the Synod.” Therefore, even if

the resolution indicates that LCMS has hierarchical

dimensions, such an indication is in direct conﬂict with

and superseded by the constitution’s statement that

LCMS does not affect an individual congregation’s

right of self-government.

LCMS’s contention that its resolution is consistent

with its constitution rests on the conclusory statement

that its “Commission on Constitutional Matters” de-

cided that it was. In short, LCMS’s own determination

is not binding on this Court if this Court “ ‘could

enforce [the documents] without engaging in a search-

ing and therefore impermissible inquiry into church

polity . . . .’ ” Lamont, 285 Mich App at 617 (citation

omitted).

Further, LCMS’s constitution declares that “no reso-

lution of the Synod imposing anything upon the indi-

vidual congregation is of binding force . . . if it appears

to be inexpedient as far as the condition of a congrega-

tion is concerned.” Stated differently, LCMS’s resolu-

tions are not binding on individual congregations if the

individual congregations deem them “inexpedient.”

2015] H

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This statement clearly leaves individual congregations

open to adopt or disregard LCMS’s resolutions based

on that congregation’s “condition.” Interpreting this as

advisory, rather than binding, is consistent with

LMCS’s self-imposed “advisory body” label.

Contrary to the assertions of plaintiff and LCMS,

the trial court refrained from delving into the polity of

the church. Courts are permitted to enforce a denomi-

nation’s constitutional provisions only if those consti-

tutional provisions are expressed in a way that would

not require courts to make an impermissible inquiry

into church polity. Lamont, 285 Mich App at 617. When

examining religious documents, “a civil court must

take special care to scrutinize the document in purely

secular terms, and not to rely on religious pre-

cepts . . . .” Jones v Wolf, 443 US 595, 604; 99 S Ct

3020; 61 L Ed 2d 775 (1979). Here, the plain language

of LCMS’s constitution expressly indicates that LCMS

is not a governing body. It is for this reason that our

Court need not “accept the interpretation provided by

the denomination . . . .” Lamont, 285 Mich App at 617.

We have merely applied the general principles of

contract law to this situation. See, e.g., Slatterly, 257

Mich App at 255-256 (“Bylaws are generally construed

in accordance with the same rules used for statutory

construction. Thus, we must ﬁrst look at the speciﬁc

language of the bylaw. If the language is unambiguous,

the drafters are presumed to have intended the mean-

ing plainly expressed.”).

It is worth noting, however, that Article VIII (“Sepa-

ration”) of defendant’s revised constitution states as

follows:

If, at any time, a separation shall take place on account

doctrines, the property of the congregation and all

beneﬁts therewith connected shall remain with those

284 312

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273 [Sept

communicant members who continue to adhere in confes-

sion and practice of Article III of this constitution. In event

of any disagreement that may lead to possible separation,

the ﬁnal decision relative to Article III shall rest with the

Board of Appeals of the Lutheran Church-Missouri Synod.

In the event the congregation shall totally disband, the

property and all rights connected therewith shall be

transferred to the Michigan District of the Lutheran

Church-Missouri Synod.

However, Article X (“Synodical Membership”), again in

the revised constitution, speciﬁcally states the follow-

ing:

This congregation shall be afﬁliated with the Lutheran

Church-Missouri

Synod as long as the confessions and

constitution of said Synod are in accord with the confes-

sion and constitution of this congregation as laid down in

Article III.

This congregation shall, to the best of its ability, col-

laborate with said Synod and assist it in effecting all

sound measures intended for the building up of the

Kingdom of God.

When considering Article XIII in relation to the docu-

ment

as a whole, it seems apparent that defendant

“afﬁliated” itself with LCMS, but did not subordinate

itself in a hierarchical relationship. See AFSCME

Council 25 v State Employees’ Retirement Sys, 294

Mich App 1, 24; 818 NW2d 337 (2011) (“Every provision

of the constitution must be interpreted in light of the

document as a whole, and no provision should be

construed to nullify or impair another.”).

Plaintiff relies heavily on Hosanna-Tabor Evangeli-

cal Lutheran Church & Sch v EEOC. In that case, a

Michigan Lutheran church and school, which was also a

member of LCMS, terminated a “called” teacher’s em-

ployment after she began suffering from and was diag-

nosed with narcolepsy and missed approximately seven

2015] H

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months of teaching. Hosanna-Tabor, 565 US at 178-

179. The reasons given for her termination were

insubordination, disruptive behavior, damage to her

working relationship with the church and school, and

threatening to take legal action. Id. at 179. The

teacher ﬁled a charge with the Equal Employment

Opportunity Commission (EEOC), alleging that her

employment was terminated in violation of the Ameri-

cans with Disabilities Act, 43 USC 12101 et seq. Id.

The EEOC and the teacher sued the church and

school, requesting that she be reinstated to her for-

mer position. Id at 180.

The issue before the United States Supreme Court

was whether the teacher was a minister, which would

entitle the church and school to protection under the

“ministerial exception” of the Civil Rights Act, 42 USC

2000e et seq., and other employment discrimination

laws. Id. The Court found that she was; therefore, the

Court concluded, “the First Amendment requires dis-

missal of this employment discrimination suit against

her religious employer.” Id. at 194. The Court ex-

plained that whether it reinstated the teacher to her

previous position or ordered compensatory and puni-

tive damages, “[s]uch relief would depend on a deter-

mination that Hosanna-Tabor was wrong to have re-

lieved [the teacher] of her position, and it is precisely

such a ruling that is barred by the ministerial excep-

tion.” Id. The Supreme Court explained that “[b]y

requiring the Church to accept a minister it did not

want, such an order would have plainly violated the

Church’s freedom under the Religion Clauses to select

its own ministers.” Id. Plaintiff contends that

Hosanna-Tabor directly controls the outcome of this

case in his favor.

286 312 M

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273 [Sept

In Hosanna-Tabor, the Supreme Court was faced

with determining whether a religious organization’s

freedom to select its ministers was implicated by an

employment discrimination suit, which the Court

held that it was. Id at ___. In the instant case,

however, plaintiff is asking this Court to do exactly

what the United States Supreme Court said courts

should not, i.e., impose an unwanted minister on a

church:

The members of a religious group put their faith in the

hands

of their ministers. Requiring a church to accept or

retain an unwanted minister, or punishing a church for

failing to do so, intrudes upon more than a mere employ-

ment decision. Such action interferes with the internal

governance of the church, depriving the church of control

over the selection of those who will personify its beliefs. By

imposing an unwanted minister, the state infringes the

Free Exercise Clause, which protects a religious group’s

right to shape its own faith and mission through its

appointments. According the state the power to determine

which individuals will minister to the faithful also violates

the Establishment Clause, which prohibits government

involvement in such ecclesiastical decisions. [Id. at 188-

189.]

The United States Supreme Court, citing Serbian

Eastern

Orthodox Diocese for the United States of

America & Canada v Milivojevich, 426 US 696; 96 S Ct

2372; 49 L Ed 2d 151 (1976), expressly refused to

determine whether the church, not LCMS or the em-

ployee, followed the required procedures in terminat-

ing the teacher’s employment. Hosanna-Tabor, 565 US

at 187. The Court made no reference to LCMS’s posi-

tion on whether the teacher’s employment was prop-

erly terminated. In the instant case, plaintiff is asking

this Court to determine that defendant failed to follow

the proper procedures in terminating his employment,

and to reinstate him through that process based on

2015] H

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LCMS’s position. This would involve analyzing the

church’s decision to terminate plaintiff’s employment

as its pastor in the exact manner that Hosanna-Tabor

forbids.

While acknowledging that this is a complicated

question, we conclude that the trial court did not err by

concluding that LCMS is congregational in nature and,

therefore, properly granted summary disposition to

defendant.

III. THE EFFECT OF THE DECISION OF THE

DISPUTE

RESOLUTION PANEL

Plaintiff also argues that the trial court erred by

ﬁnding that defendant could withdraw from the

Synod because defendant’s withdrawal nulliﬁed the

ruling of the decision of the dispute resolution panel.

Because LCMS’s bylaws prohibit its members from

terminating their membership in a manner that ren-

ders a decision of the dispute resolution panel inap-

plicable, we agree.

This Court reviews a trial court’s interpretation of an

organization’s bylaws de novo. See Slatterly, 257 Mich

App at 250. Review of a trial court’s ﬁndings of fact is for

clear error. Ambassador Bridge Co, 481 Mich at 35. “A

trial court’s factual ﬁndings are clearly erroneous only

when the reviewing court is left with the deﬁnite and

ﬁrm conviction that a mistake has been made.” Id.

(citation and quotation marks omitted).

As discussed, bylaw drafters are presumed to have

intended the meaning plainly expressed if the language

at issue is unambiguous. Slatterly, 257 Mich App at

255-256. This Court “presume[s] that every word has a

meaning and should avoid any construction that would

render any part of a bylaw nugatory.” Id. at 256.

288 312 M

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273 [Sept

Section 1.10.2 of LCMS’s bylaws states the following:

“No person or agency to whom or to which the provisions

of this dispute resolution process are applicable because

such person or agency is a member of the Synod may

render these provisions inapplicable by terminating

that membership.” In a letter dated June 18, 2012,

defendant informed LCMS that it was withdrawing its

membership effective that day “due to the politics in-

volved with the Missouri Synod” and because it wanted

“a pastor that cares about them.” In a letter dated

August 8, 2012, defendant informed LCMS that it

would not be attending and was not agreeing to be

bound by any dispute resolution hearing conducted by

LCMS.

The plain language of § 1.10.2 clearly indicates that

an LCMS member cannot terminate its membership in

a way that renders the dispute resolution hearing

process inapplicable. Here, two months before the

dispute resolution hearing was scheduled to take

place, defendant terminated its membership and re-

fused to attend the dispute resolution hearing. The

contents of the June 18 letter appear to refer to the

issue of plaintiff’s employment. As defendant was not

permitted to render the dispute resolution hearing

inapplicable in that manner under § 1.10.2, its doing so

was improper. Therefore, the trial court erred by mak-

ing any ﬁnding that permitted defendant to do so.

Nevertheless, any decision from the dispute resolu-

tion panel would have been advisory and not binding on

the parties as plaintiff argues. LCMS is “but an advisory

body” and is not a legislative or coercive body that

affects its individual congregations’ right to self-

government. Any recommendations it—or its individual

committees, including its dispute resolution panel—

makes are merely advisory under its constitution, and

2015] H

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289

each congregation may or may not choose to follow

them. The panel’s own wording further indicates that

its decision was advisory and not binding. In concluding

whether the panel had authority to act in this matter, it

stated “that it does have authority to act in this matter

to either uphold the action of the congregation in remov-

ing [plaintiff], or advise the congregation to review and

revise its decision.” (Emphasis added.) Then, in deter-

mining whether defendant “should . . . be advised to

review and revise its decision,” the dispute resolution

panel concluded that defendant’s decision “should be

reviewed and revised.” (Emphasis added.) Lastly, in

determining what “restitution” was owed from defen-

dant to plaintiff, the panel concluded by stating, in part,

as follows: “While it is beyond the purview and scope of

this Panel to determine every such damage, we did

conclude that, on the basis of the documentary evidence,

we could advise to an amount of restitution . . . .” (Em-

phasis added.) The record supports the trial court’s

ﬁnding that the panel’s decision was merely advisory.

The very most that the panel’s decision would have done

was to require defendant to “revisit and revise” its

decision to remove plaintiff as its pastor. It follows that

defendant would still be permitted to choose not to abide

by the panel’s advice.

Because LCMS’s constitution and bylaws, as well as

the hearing panel’s decision itself, are expressly advi-

sory in nature, the trial court did not err by concluding

that the dispute resolution panel’s decision was advi-

sory.

Afﬁrmed.

ILDER

, P.J., and S

ERVITTO

, J., concurred with

TEPHENS

, J.

290 312 M

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TITAN INSURANCE COMPANY v AMERICAN COUNTRY

INSURANCE COMPANY

BRONSON METHODIST HOSPITAL v TITAN INSURANCE

COMPANY

Docket Nos. 319342 and 321598. Submitted August 5, 2015, at Lansing.

Decided September 15, 2015, at 9:05 a.m. Leave to appeal denied

499 Mich 944.

In Docket No. 319342, Titan Insurance Company brought an action

in the Wayne Circuit Court against American Country Insurance

Company following a motor vehicle accident involving an unin-

sured vehicle. Stanley Hughes was injured while operating an

uninsured van owned by Safe Arrival Transportation, which was

in the business of transporting passengers. Hughes did not have

a personal no-fault policy. Hughes’s claim was assigned to Titan.

Titan ﬁled suit asserting that American Country, which insured a

different vehicle owned by Safe Arrival, was a higher priority

insurer. The parties ﬁled cross-motions for summary disposition.

The court, Lita M. Popke, J., granted summary disposition in

favor of American Country. Titan appealed.

In Docket No. 321598, Bronson Methodist Hospital brought an

action in the 8th District Court, Robert C. Kropf, J., against Titan

and American Country following a motor vehicle accident involv-

ing an uninsured vehicle. George Slack was injured while oper-

ating an uninsured van owned by Bronco Express Company, a

taxi service. Slack did not have a personal no-fault policy. Slack

was treated at Bronson, which sought reimbursement. The claim

was assigned to Titan, but Titan asserted that American Country

was responsible for the claim because American Country insured

other vehicles owned by Bronco Express. Titan ﬁled a cross-claim

against American Country in Bronson’s suit. American Country

moved for summary disposition. The court held that American

Country was responsible for the claim. American Country ap-

pealed in the Kalamazoo Circuit Court, Alexander C. Lipsey, J.,

which afﬁrmed the district court’s ruling. American Country

sought leave to appeal. The Court of Appeals granted leave in

Docket No. 321598 and consolidated the appeal in that case with

the appeal in Docket No. 319342.

The Court of Appeals held:

2015] T

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Under MCL 500.3114(1), a person must generally seek per-

sonal protection insurance (PIP) beneﬁts from his or her own

insurer, but the exceptions set forth in MCL 500.3114(2), (3), and

(5) supersede the general rule. Under MCL 500.3172, if no

insurance is available, a person may obtain beneﬁts through the

Assigned Claims Plan. MCL 500.3114(2) states that a person

suffering accidental bodily injury while an operator or a passen-

ger of a motor vehicle operated in the business of transporting

passengers shall receive the personal protection insurance ben-

eﬁts to which the person is entitled from the insurer of the motor

vehicle. In these cases, if the vehicles at issue had been properly

insured, Subsection (2) would have applied. Caselaw indicates

that in cases such as those at issue here, in which an exception to

MCL 500.3114(1) should apply but insurance is not available, the

general rule of Subsection (1) applies. Caselaw further demon-

strates that in cases in which Subsection (1) applies, but a

personal no-fault insurer is not available, as was the case here

because neither Hughes nor Slack had no-fault insurance, Sub-

section (4) applies. Subsection (4) states that except as provided

in Subsections (1) to (3), a person suffering accidental bodily

injury arising from a motor vehicle accident while an occupant of

a motor vehicle shall claim PIP beneﬁts from insurers in the

following order of priority: (a) the insurer of the owner or

registrant of the vehicle occupied, and then, (b) the insurer of the

operator of the vehicle occupied. Taken together, Subsections (1)

and (4) establish the general order of priority. That is, the

language “[e]xcept as provided in subsections (1) to (3)” at the

beginning of Subsection (4) means “if insurance is not available

under Subsections (1) to (3).” In the cases on appeal, under

Subsection (4)(a), because American Country insured other ve-

hicles owned by Safe Arrival and Bronco Express, it was respon-

sible for the claims at issue.

Circuit court judgment in Docket No. 319342 reversed, and

circuit court judgment in Docket No. 321598 afﬁrmed. Docket No.

319342 remanded for further proceedings.

LEICHER

, J., concurring, agreed with the majority that under

controlling caselaw American Country stood in higher priority

than Titan, but wrote separately to suggest that the text of MCL

500.3114 merited renewed consideration by the Supreme Court,

and stated that if she were writing on a clean slate, she would

hold the priority rules set forth in the statute ambiguous when

applied to PIP claims arising from commercial vehicle accidents.

MCL 500.3114(2) plainly provides, with carefully delineated

exceptions, that when a vehicle used in the commercial transpor-

292 312

ICH

291 [Sept

tation of customers is involved in an injury-producing accident,

the insurer of the commercial vehicle provides PIP coverage. The

Legislature omitted from this subsection any priority fall-back

rules. The Legislature’s omission of an alternative priority

scheme in the subsection speciﬁcally addressing vehicles oper-

ated in the business of transporting passengers could mean that

the Legislature did not intend to place responsibility on a speciﬁc

insurer that had not undertaken the risk of insuring the commer-

cial vehicle, but rather that when there was no coverage for the

vehicle that coverage would automatically default to the Assigned

Claims Plan. Alternatively, and as the lead opinion held, Subsec-

tion (4) serves as the priority road-map for vehicles operated in

the business of transporting passengers, even though such ve-

hicles are not mentioned in that subsection. A footnote in Parks v

Detroit Auto Inter-Ins Exch, 426 Mich 191 (1986), supports the

conclusion reached in the lead opinion. Application of that rule in

these cases means that American Country is responsible for the

PIP claims at issue, despite the fact that American Country never

agreed to insure the commercial vehicles involved in the acci-

dents. Perhaps this is what the Legislature intended. But given

the plain language of Subsections (2) and (4), it is plausible that

the Legislature envisioned that if a commercial transportation

service owner failed to obtain PIP coverage for some vehicles in

his or her ﬂeet, the risk would be spread to all insurers subject to

assigned claims obligations through the Assigned Claims Plan.

This ambiguity warrants further consideration by the Michigan

Supreme Court.

NSURANCE —

-F

AULT —

RIORITY

Under MCL 500.3114(1), a person must generally seek personal

protection insurance (PIP) beneﬁts from his or her own insurer,

but the exceptions set forth in MCL 500.3114(2), (3), and

(5) supersede the general rule; when an exception to MCL

500.3114(1) should apply but insurance is not available

in accordance with that exception, the general rule of Subsec-

tion (1) applies; when Subsection (1) applies, but a personal

no-fault insurer is not available, Subsection (4) applies; under

Subsection (4), if insurance is not available under Subsections

(1) to (3), a person suffering accidental bodily injury arising from

a motor vehicle accident while an occupant of a motor vehicle

shall claim PIP beneﬁts from insurers in the following order

of priority: (a) the insurer of the owner or registrant of the

vehicle occupied, and then, (b) the insurer of the operator of the

vehicle occupied.

2015] T

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Docket No. 319342:

Anselmi & Mierzejewski, PC (by Kevin P. Wirth), for

Titan Insurance Company.

Liedel Law Group (by William J. Liedel) for Ameri-

can Country Insurance.

Docket No. 321598:

Law Ofﬁces of Ronald M. Sangster PLLC (by Ronald

M. Sangster, Jr.,) and Harvey Kruse PC (by Lanae L.

Monera) for Titan Insurance Company.

Liedel Law Group (by William J. Liedel) for Ameri-

can Country Insurance.

Before: R

ONAYNE

RAUSE

, P.J., and G

LEICHER

and

TEPHENS

, JJ.

ONAYNE

RAUSE

, P.J. This consolidated appeal

stems from motor vehicle accidents involving unin-

sured drivers. At issue is which insurance providers

are responsible for the claims in issue. In Docket No.

319342, the Wayne Circuit Court granted defendant

American Country Insurance Company’s (American

Country) motion for summary disposition under MCR

2.116(C)(10) (no genuine issue of material fact). Plain-

tiff Titan Insurance Company (Titan) appeals as of

right. In Docket No. 321598, the Kalamazoo Circuit

Court afﬁrmed the district court’s decision granting

judgment in favor of Titan against American Country.

American Country appeals by leave granted. Bronson

Disputed claims involving Bronson Methodist Hospital are not at

issue in this appeal, as this Court granted Bronson’s motion to be

dismissed as a party to the appeal. Bronson Methodist Hosp v Titan Ins

Co, unpublished order of the Court of Appeals, entered June 12, 2015

(Docket No. 321598).

294 312 M

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291 [Sept

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Methodist Hosp v Titan Ins Co, unpublished order of

the Court of Appeals, entered September 29, 2014

(Docket No. 321598). We reverse in Docket No. 319342

and afﬁrm in Docket No. 321598.

In Docket No. 319342, Stanley Hughes was injured

in a motor vehicle accident while operating a van

owned by and registered to Safe Arrival Transporta-

tion, which is in the business of transporting passen-

gers. The van was uninsured. Hughes, an independent

contractor for Safe Arrival, did not have a personal

no-fault policy. Titan was assigned to handle Hughes’s

claim. Titan thereafter ﬁled suit against American

Country, which insured another vehicle owned by Safe

Arrival, asserting that American Country is the higher

priority insurer and that Titan was entitled to reim-

bursement from American Country. The parties ﬁled

cross-motions for summary disposition, each asserting

that the other was the higher priority insurer. Follow-

ing oral argument, the trial court granted American

Country’s motion and denied Titan’s. Titan moved for

reconsideration, which the trial court denied.

In Docket No. 321598, George Slack was injured in a

motor vehicle accident while driving a van for Bronco

Express Company, a taxi service company. Slack did

not have a personal insurer. The van was uninsured,

but American Country insured other vehicles owned by

Bronco Express. Slack was treated at Bronson Meth-

odist Hospital, which later sought reimbursement. The

claim was assigned to Titan, but Titan denied it,

asserting that American Country was responsible for

the claim under the no-fault act, MCL 500.3101 et seq.,

because it insured other vehicles owned by Bronco

Express. However, American Country also denied the

claim. Bronson thereafter ﬁled suit in district court

against Titan and American Country, and Titan cross-

2015] T

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PINION OF THE

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claimed against American Country. American Country

then moved for summary disposition. The district court

held that American Country was responsible for the

claim. American Country then appealed in the circuit

court, which afﬁrmed the district court’s holding.

American Country moved for reconsideration, which

the court denied.

At issue in this case is the priority of insurers under

MCL 500.3114, a question of statutory interpretation,

which this Court reviews de novo. Vitale v Auto Club

Ins Ass’n, 233 Mich App 539, 542; 593 NW2d 187

(1999). MCL 500.3114 provides as follows:

(1) Except as provided in subsections (2), (3), and (5), a

personal protection insurance policy described in [MCL

500.3101(1)] applies to accidental bodily injury to the

person named in the policy, the person’s spouse, and a

relative of either domiciled in the same household, if the

injury arises from a motor vehicle accident. A personal

injury insurance policy described in [MCL 500.3103(2)]

applies to accidental bodily injury to the person named in

the policy, the person’s spouse, and a relative of either

domiciled in the same household, if the injury arises from

a motorcycle accident. When personal protection insur-

ance beneﬁts or personal injury beneﬁts described in

[MCL 500.3103(2)] are payable to or for the beneﬁt of an

injured person under his or her own policy and would also

be payable under the policy of his or her spouse, relative,

or relative’s spouse, the injured person’s insurer shall pay

all of the beneﬁts and is not entitled to recoupment from

the other insurer.

(2) A person suffering accidental bodily injury while an

operator or a passenger of a motor vehicle operated in the

business of transporting passengers shall receive the

personal protection insurance beneﬁts to which the person

is entitled from the insurer of the motor vehicle. This

subsection does not apply to a passenger in the following,

unless that passenger is not entitled to personal protec-

tion insurance beneﬁts under any other policy:

296 312

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291 [Sept

PINION OF THE

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(a) A school bus, as deﬁned by the department of

education, providing transportation not prohibited by law.

(b) A bus operated by a common carrier of passengers

certiﬁed by the department of transportation.

transportation program.

(d) A bus operated by or providing service to a nonproﬁt

organization.

(e) A taxicab insured as prescribed in [MCL 500.3101 or

MCL 500.3102].

(f) A bus operated by a canoe or other watercraft,

bicycle, or horse livery used only to transport passengers

to or from a destination point.

(3) An employee, his or her spouse, or a relative of

either domiciled in the same household, who suffers

accidental bodily injury while an occupant of a motor

vehicle owned or registered by the employer, shall receive

personal protection insurance beneﬁts to which the em-

ployee is entitled from the insurer of the furnished

vehicle.

(4) Except as provided in subsections (1) to (3), a person

suffering accidental bodily injury arising from a motor

vehicle accident while an occupant of a motor vehicle shall

claim personal protection insurance beneﬁts from insurers

in the following order of priority:

(a) The insurer of the owner or registrant of the vehicle

occupied.

(b) The insurer of the operator of the vehicle occupied.

(5) A person suffering accidental bodily injury arising

from a motor vehicle accident which shows evidence of the

involvement of a motor vehicle while an operator or

passenger of a motorcycle shall claim personal protection

insurance beneﬁts from insurers in the following order of

priority:

(a) The insurer of the owner or registrant of the motor

vehicle involved in the accident.

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(b) The insurer of the operator of the motor vehicle

involved in the accident.

motorcycle involved in the accident.

(d) The motor vehicle insurer of the owner or registrant

of the motorcycle involved in the accident.

(6) If 2 or more insurers are in the same order of

priority to provide personal protection insurance beneﬁts

under subsection (5), an insurer paying beneﬁts due is

entitled to partial recoupment from the other insurers in

the same order of priority, together with a reasonable

amount of partial recoupment of the expense of processing

the claim, in order to accomplish equitable distribution of

the loss among all of the insurers.

Generally, pursuant to MCL 500.3114(1), a person

must seek personal protection insurance (PIP) beneﬁts

from his or her own insurer. Farmers Ins Exch v Farm

Bureau Gen Ins Co, 272 Mich App 106, 111; 724 NW2d

485 (2006). However, the exceptions in Subsections (2),

(3), and (5) supersede this general rule. Id. If no

insurance is available, a person may obtain beneﬁts

through the Assigned Claims Plan, which serves as the

insurer of last priority. MCL 500.3172; Cason v Auto

Owners Ins Co, 181 Mich App 600, 610; 450 NW2d 6

(1989).

All parties agree that because Hughes and Slack

were operators of motor vehicles in the business of

transporting passengers, we must ﬁrst examine Sub-

section (2). Subsection (2) states that the injured

person is entitled to PIP beneﬁts from the insurer of

the motor vehicle. However, because the vehicles in

both cases were uninsured, Subsection (2) does not

apply. At issue, then, is whether the other subsections

of MCL 500.3114 can still be applied. Titan argues that

other subsections of the statute indeed apply and

because insurance is not available under Subsection

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(1), Subsection (4) should apply. Under this reading of

the statute, American Country would be liable under

MCL 500.3114(4)(a), because it insured other vehicles

owned by Safe Arrival and Bronco Express. See Farm-

ers Ins Exch, 272 Mich App at 113-114; Pioneer State

Mut Ins Co v Titan Ins Co, 252 Mich App 330, 335-337;

652 NW2d 469 (2002). American Country counters that

there is no indication in the statute that once it is

determined that insurance is unavailable under Sub-

section (2), Subsection (4) applies. It argues that be-

cause there is no insurance available under Subsection

(2), Titan, as the assigned insurer, is responsible.

In Docket No. 319342, the circuit court held that

because Subsection (2) was the most relevant subsec-

tion given the circumstances of this case, it was “the

only provision that applies to [Hughes’s] injuries . . . .”

The court concluded that because there was no insur-

ance available under Subsection (2), the Assigned

Claims Plan was responsible for Hughes’s claim. The

court also reasoned that there was nothing in MCL

500.3114 indicating that if insurance is not available

under Subsection (2) that Subsection (4) would then

apply.

In Docket No. 321598, the circuit court reached the

opposite conclusion. American Country had relied on

the language “[e]xcept as provided in subsections (1) to

(3),” found at the beginning of Subsection (4), to argue

that if Subsections (1) through (3) could apply but

insurance was not available, Subsection (4) would not

apply. The circuit court rejected that argument, saying

that it “would make that particular provision of four

mean that if anyone, for whatever reason, could show

that for subparagraph 1 or subparagraph 3 that there

was not an insurer available that somehow that would

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accept [sic] that individual . . . from resorting to sub-

section (4).” The court said that it did not “believe that

the language as relates to the quoted passage is saying

that an individual is precluded from using four if it

could theoretically fall within the purview of one, two,

or three.” The court accordingly held that because

insurance was not available under Subsections (1)

through (3), Subsection (4) applied, and American

Country was responsible for the claim.

Turning for guidance to cases examining the inter-

action of other subsections of the statute, we discern a

general rule that when an exception to Subsection (1)

should apply but insurance is not available, the gen-

eral rule of Subsection (1) applies. In Auto-Owners Ins

Co v Lombardi Food Serv, Inc, 137 Mich App 695,

696-697; 358 NW2d 923 (1984), an employee was

injured while riding in a truck that was owned or

leased by his employer, and thus Subsection (3) would

have been applicable. However, the employer had

failed to insure the truck. Id. at 696. The Court held

that the employee’s personal insurer was liable under

Subsection (1). Id. at 697. See also Parks v Detroit Auto

Inter-Ins Exch, 426 Mich 191, 206; 393 NW2d 833

(1986) (stating that when no insurance is available

under Subsection (3), the employee is entitled to ben-

eﬁts from his or her personal insurer under Subsection

(1)). In Frierson v West American Ins Co, 261 Mich App

732, 733-737; 683 NW2d 695 (2004), the plaintiff was

injured while a passenger on a motorcycle in an acci-

dent involving a motor vehicle, and therefore Subsec-

tion (5) would have been applicable. However, the

insurers who would have been liable under that sub-

section were unidentiﬁable. Id. at 737. The Court held

that under Parks, the plaintiff’s personal insurer was

liable under Subsection (1). Id. at 737-738. In addition,

the Court broadly stated, “[W]hen an insurer that

300 312 M

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would be liable under one of the exceptions in MCL

500.3114(1) cannot be identiﬁed, the general rule ap-

plies and the injured party must look to her own

insurer for personal protection insurance beneﬁts.” Id.

at 738. As applied in the present case, because there is

no identiﬁable insurance under Subsection (2), if

Hughes and Slack had personal insurers, those per-

sonal insurers would be responsible for their beneﬁts

under Subsection (1).

Caselaw demonstrates that when Subsection (1)

applies but an insurer is not available, as is the case

here, Subsection (4) applies next. See Mich Mut Ins Co

v Farm Bureau Ins Group, 183 Mich App 626, 630; 455

NW2d 352 (1990) (stating that when insurance is not

available under Subsection (1), Subsection (4) applies).

In Parks, 426 Mich at 203 n 3, our Supreme Court

stated, “Those injured while occupants of motor ve-

hicles must look to the rules provided in subsections 1,

2, and 3 before applying the priorities listed in subsec-

tion 4.” (Emphasis omitted.) Indeed, this Court has

stated that Subsections (1) and (4) together establish

“the general order of priority . . . .” Mich Mut Ins Co,

183 Mich App at 631. Accordingly, if an exception

provided in Subsections (2), (3), or (5) would apply but

insurance is not available, Subsections (1) and (4)

apply in tandem.

It is always possible that a person injured in a motor

vehicle accident will have a personal policy and insur-

ance will thus be available under Subsection (1). Under

American Country’s argument, because Subsection (1)

could theoretically apply, Subsection (4) could never

apply. This Court must avoid an interpretation that

would render statutory language surplusage. Robinson

v Lansing, 486 Mich 1, 21; 782 NW2d 171 (2010).

Instead, Subsection (4) plainly governs which insur-

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ance applies when insurance is unavailable under

Subsection (1). That is, the language “[e]xcept as

provided in subsections (1) to (3)” at the beginning of

Subsection (4) means “if insurance is not available

under Subsections (1) to (3).” As applied in the present

cases on appeal, under Subsection (4), because Ameri-

can Country insured other vehicles owned by Safe

Arrival and Bronco Express, it is responsible for the

claims in these cases.

We reverse in Docket No. 319342 and afﬁrm the

lower court in Docket No. 321598. We remand Docket

No. 319342 for further proceedings consistent with this

opinion. We do not retain jurisdiction.

TEPHENS

, J., concurred with R

ONAYNE

RAUSE

, P.J.

LEICHER

, J. (concurring). These consolidated cases

arise from two accidents involving two uninsured vans

engaged in the business of transporting passengers.

Defendant American Country Insurance Company in-

sured other vehicles registered to the vans’ owners. In

both cases, plaintiff Titan Insurance Company was

tapped by the assigned claims plan to handle the

ensuing personal protection insurance (PIP) claims.

The lead opinion holds that pursuant to a single

sentence of obiter dictum contained in a 1986 footnote,

American Country stands in higher priority than Titan

and therefore must adjust the claims. I concur, but

write separately to suggest that the text of the govern-

ing statute merits renewed consideration by the Su-

preme Court.

This case turns on the formula governing priority.

MCL 500.3114 addresses “the order in which various

potentially liable insurers will be required to cover a

claim for beneﬁts.” Parks v Detroit Auto Inter-Ins Exch,

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426 Mich 191, 201; 393 NW2d 833 (1986). The lead

opinion holds that a subsection of the statute—MCL

500.3114(4)—controls the priority analysis in this case.

According to Subsection (4), the lead opinion declares,

American Country must manage the claims because it

insured other vehicles owned by or registered to the

two transportation businesses. I agree that a footnote

in Parks compels this result. See Parks, 426 Mich at

203 n 3. Were we writing on a clean slate, I would hold

the priority rules set forth in MCL 500.3114 ambiguous

when applied to PIP claims arising from commercial

vehicle accidents such as the two involved here.

A trio of foundational principles animates Michigan’s

no-fault act, MCL 500.3101 et seq. Losses occasioned by

accidental bodily injury arising from the operation of a

motor vehicle are compensated through a system of PIP

beneﬁts, payable without regard to fault. The owner or

registrant of a vehicle must purchase PIP coverage,

which usually covers any losses sustained by the indi-

vidual. MCL 500.3105. “[I]n a majority of cases, speciﬁc

recognized losses suffered as a result of motor vehicle

accidents will be compensated for by a person’s own

insurer.” Belcher v Aetna Cas & Surety Co, 409 Mich

231, 240; 293 NW2d 594 (1980).

The Legislature understood that despite the act’s

coverage imperative, the no-fault system would neces-

sarily have to accommodate the PIP needs of unin-

sured occupants of uninsured vehicles. This recogni-

tion yielded the contemporaneous enactment of a

back-up plan, a priority system specifying a method for

payment of PIP beneﬁts when an injured person lacked

no-fault coverage. MCL 500.3114 maps the course of

such priority determinations. At the end of the priority

road stands the insurer of last priority: the Michigan

Assigned Claims Plan (MACP) (successor to the Michi-

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gan Assigned Claims Facility). MCL 500.3172(1). An

injured person looks to the MACP for PIP coverage

if no [PIP] is applicable to the injury, no [PIP] applicable to

the injury can be identiﬁed, the [PIP] applicable to the

injury cannot be ascertained because of a dispute between

2 or more automobile insurers concerning their obligation

to provide coverage or the equitable distribution of the

loss, or the only identiﬁable [PIP] applicable to the injury

is, because of ﬁnancial inability of 1 or more insurers to

fulﬁll their obligations, inadequate to provide beneﬁts up

to the maximum prescribed. [MCL 500.3172(1).]

Before they resort to the MACP, the no-fault act

contemplates

that claimants will utilize MCL

500.3114’s priority system to determine where to seek

coverage among no-fault insurers. MCL 500.3114(1)

states the general rule that a PIP policy applies to “the

person named in the policy, the person’s spouse, and a

relative of either domiciled in the same household[.]”

Thus, an injured person usually turns to his or her own

policy ﬁrst, even if the injury arises from the operation

of an uninsured vehicle.

Subsection (2) creates an exception to the rule set

forth in Subsection (1). An injured driver or occupant of

a motor vehicle “operated in the business of transport-

ing passengers” must look to “the insurer of the motor

vehicle” for PIP beneﬁts, and not his or her own

insurer. This rule is subject to its own discrete excep-

tions, narrowing its reach. This subsection states in its

entirety:

A person suffering accidental bodily injury while an

operator

or a passenger of a motor vehicle operated in the

business of transporting passengers shall receive the

[PIP] beneﬁts to which the person is entitled from the

insurer of the motor vehicle. This subsection does not apply

to a passenger in the following, unless that passenger is

not entitled to [PIP] beneﬁts under any other policy:

304 312

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(a) A school bus, as deﬁned by the department of

education, providing transportation not prohibited by law.

(b) A bus operated by a common carrier of passengers

certiﬁed by the department of transportation.

transportation program.

(d) A bus operated by or providing service to a nonproﬁt

organization.

(e) A taxicab insured as prescribed in [MCL 500.3101 or

MCL 500.3102].

(f) A bus operated by a canoe or other watercraft,

bicycle, or horse livery used only to transport passengers

to or from a destination point. [MCL 500.3114(2) (empha-

sis added).]

This Court has thoughtfully summarized that MCL

500.31

14(2) and its exceptions

relate to “commercial” situations. It was apparently the

intent of the Legislature to place the burden of providing

no-fault beneﬁts on the insurers of these motor vehicles,

rather than on the insurers of the injured individual. This

scheme allows for predictability; coverage in the “commer-

cial” setting will not depend on whether the injured

individual is covered under another policy. A company

issuing insurance covering a motor vehicle to be used in a

[Subsection (2)] . . . situation will know in advance the

scope of the risk it is insuring. The beneﬁts will be speedily

paid without requiring a suit to determine which of the

two companies will pay what is admittedly due by one of

them. [State Farm Mut Auto Ins Co v Sentry Ins, 91 Mich

App 109, 114-115; 283 NW2d 661 (1979).]

MCL 500.3114(2) plainly provides that (with care-

fully

delineated exceptions) when a vehicle used in the

commercial transportation of customers is involved in

an injury-producing accident, the insurer of the com-

mercial vehicle provides PIP coverage. The Legislature

omitted from this subsection any priority fall-back

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rules, despite that the Legislature undoubtedly fore-

saw that injuries would arise from accidents involving

uninsured commercial vehicles. Although the Legisla-

ture took pains to carve out discrete exceptions to

Subsection (2), it notably omitted mention of or refer-

ence to a back-up plan governing the foreseeable risk

that an owner of a commercial vehicle in the business

of transporting passengers would fail to insure it.

In this sense, Subsection (2) could logically be inter-

preted

to function in a manner akin to a light switch.

When turned on, coverage responsibility falls to the

vehicle’s insurer. When turned off, there is no coverage,

which means that coverage automatically defaults to

the insurer of last resort—the MACP. The Legisla-

ture’s omission of an alternative priority scheme in the

subsection speciﬁcally addressing vehicles operated in

the business of transporting passengers could mean

that the Legislature did not intend to place responsi-

bility on a speciﬁc insurer that had not undertaken the

risk of insuring the commercial vehicle. After all, “[i]t

is impossible to hold an insurance company liable for a

risk it did not assume.” Auto-Owners Ins Co v Church-

man, 440 Mich 560, 567; 489 NW2d 431 (1992).

The exceptions for school buses, taxicabs, and other speciﬁcally

identiﬁed commercial vehicles place the responsibility for PIP coverage

on the passenger’s no-fault carrier, “unless that passenger is not entitled

to [PIP] beneﬁts under any other policy[.]” MCL 500.3114(2). Thus, the

exceptions reinstate the general rule that one looks to one’s own insurer

for PIP coverage. The Legislature decreed that the insurers of a

relatively small subset of commercial vehicles, such as the two vans

involved in this case, would be liable for PIP beneﬁts regardless of

whether the injured person had his or her own no-fault policy.

The MACP serves as an exception to this rule. The plan is a safety

net, of sorts, designed to supply coverage for injured and uninsured

automobile accident victims. The plan shifts the costs of care from the

taxpayers or medical-care providers, placing it on the insurers who

write most of the no-fault coverage policies in this state.

306 312

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Alternatively, and as the lead opinion holds, Subsec-

tion (4) serves as the priority road map for vehicles

operated in the business of transporting passengers,

even though such vehicles are not mentioned in that

subsection and appear to be speciﬁcally exempted from

its reach:

Except as provided in subsections (1) to (3),

a person

suffering accidental bodily injury arising from a motor

vehicle accident while an occupant of a motor vehicle shall

claim personal protection insurance beneﬁts from insurers

in the following order of priority:

(a) The insurer of the owner or registrant of the vehicle

occupied.

(b) The insurer of the operator of the vehicle occupied.

[MCL 500.3114(4) (emphasis added).]

What does the phrase “[e]xcept as provided in sub-

sections

(1) to (3)” mean in the context of Subsection

(4)? It could mean that except when there is coverage,

as set forth in Subsection (2), the rules of Subsection

(4) apply. The lead opinion affords this meaning to the

“except” clause, and I concur that this is a rational

reading of MCL 500.3114(4). Moreover, the Supreme

Court’s footnote in Parks seems to dictate this result,

as it states: “Those injured while occupants of motor

vehicles must look to the rules provided in subsections

1, 2, and 3 before applying the priorities listed in

subsection 4.” Parks, 426 Mich at 203 n 3.

Application of that rule in this case means that

American

Country is responsible for the PIP claims at

issue, despite that American Country never agreed to

insure the commercial vehicles involved in the acci-

dents and never received a single dollar in premium

Parks involved a claim governed by MCL 500.3114(3), and not

Subsection (2).

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payments for coverage of those vehicles. If MCL

500.3114(4) governs this priority dispute, the law has

created a contract that did not exist, and holds Ameri-

can Country liable for risks it never assumed.

I submit that an alternate interpretation is equally

valid: Subsection (2) operates as a stand-alone provi-

sion because it deals with a subset of vehicles present-

ing unique considerations. Owners of vehicles used to

transport passengers are required to purchase PIP

policies from no-fault insurers. Those no-fault insurers

are required to pay PIP beneﬁts to drivers and passen-

gers of such insured commercial vehicles. Here, the

vehicles were uninsured. Parks dictates that we bur-

den American Country with coverage responsibility

because American Country insured other vehicles

owned or registered by the same (lawbreaking) busi-

nesses, rather than spreading the risk to all insurers

writing no-fault policies in Michigan (as ordinarily

occurs when the MACP serves as the default). Ameri-

can Country bears responsibility despite that it had no

opportunity to underwrite the risks it undertook by

insuring some (or perhaps even one) vehicle in a larger

ﬂeet.

Perhaps this is what the Legislature intended. But

given the plain language of Subsections (2) and (4), I

ﬁnd it equally plausible that the Legislature envi-

sioned that if a commercial transportation service

owner failed to obtain PIP coverage for some vehicles

in his or her ﬂeet, the risk would be spread to all

insurers subject to assigned claims obligations, rather

than being borne solely by the innocent insurer for the

remaining vehicles.

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PEOPLE v HUMPHREY

Docket No. 320353. Submitted May 13, 2015, at Detroit. Decided

September 15, 2015, at 9:10 a.m. Leave to appeal denied 499 Mich

870.

Christopher Dorian Humphrey was charged in the Wayne Circuit

Court with carrying a concealed weapon (CCW), MCL 750.227(2).

Defendant ﬁled a motion to dismiss the CCW charge against him

because the concealed handgun he was carrying at the time of his

detention was missing a ﬁring pin and was therefore inoperable.

The court, Dana Margaret Hathaway, J., granted defendant’s

motion and dismissed the charge. The prosecution appealed.

The Court of Appeals held:

The trial court abused its discretion by granting defendant’s

motion to dismiss because the operability of a ﬁrearm is not

relevant to ﬁrearms offenses contained in Chapter XXXVII of the

Michigan Penal Code. The inoperability of a pistol is not an

afﬁrmative defense to CCW. In this case, defendant’s pistol was

not operable because it was missing a ﬁring pin. Defendant

argued that caselaw supported his assertion that he could not be

guilty of CCW, MCL 750.227(2), if the weapon he carried—a

pistol, in this case—was completely unusable and could not easily

be made operable. Defendant’s argument failed to recognize that

the Michigan Supreme Court had interpreted the term “ﬁrearm,”

as it was deﬁned in MCL 750.222, and as it should be interpreted

for all offenses in Chapter XXXVII of the Michigan Penal Code,

including CCW, to mean the type of weapon designed or intended

to propel a dangerous projectile by means of an explosive, gas, or

air. The statutory language does not reﬂect the Legislature’s

intention that operability be a factor in disposing of a CCW charge.

The Supreme Court’s interpretation of “ﬁrearm” governed defen-

dant’s case despite Court of Appeals caselaw to the contrary.

Additional support for the Supreme Court’s interpretation of

“ﬁrearm” is found in MCL 750.222(e), as amended. That statute

deﬁnes “ﬁrearm” as “any weapon which will, is designed to, or may

readily be converted to expel a projectile by action of an explosive.”

In consonance with the Supreme Court’s interpretation of “ﬁre-

arm” at the time of defendant’s detention, and the current

2015] P

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309

version of MCL 750.222(e), which mirrors the Court’s interpreta-

tion, the operability of defendant’s weapon was irrelevant to

whether he may be charged with and convicted of CCW. That is,

a defendant could be convicted of CCW even if the concealed

weapon carried by the defendant is inoperable.

Reversed and remanded.

RIMINAL

FFENSES —

IREARMS —

ARRYING A

ONCEALED

EAPON —

PER-

ABILITY OF

EAPON

The operability of a weapon is irrelevant to whether an individual

may be charged with and convicted of carrying a concealed

weapon under MCL 750.227(2); a weapon is a ﬁrearm for

purposes of MCL 750.227(2) if the weapon is designed or

intended to propel a dangerous projectile by means of an

explosive, gas, or air, and a defendant may not raise as an

afﬁrmative defense the fact that the weapon was inoperable at

the time it was conﬁscated; the amended deﬁnition of “ﬁrearm”

in MCL 750.222(e), which applies to all ﬁrearms offenses in

Chapter XXXVII of the Penal Code, is “any weapon which will,

is designed to, or may readily be converted to expel a projectile

by action of an explosive.”

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Kym L. Worthy, Prosecuting

Attorney, Timothy A. Baughman, Chief of Research,

Training, and Appeals, and Valerie M. Steer, Assistant

Prosecuting Attorney, for the people.

Melvin Houston for defendant.

Before: W

ILDER

, P.J., and O

WENS

and M. J. K

ELLY

, JJ.

ILDER

, P.J. The prosecution appeals as of right a

circuit court order granting defendant’s motion to

dismiss the charge against him of carrying a concealed

weapon (CCW), MCL 750.227(2). On appeal, the pros-

ecution argues that under the Michigan Supreme

Court’s interpretation of “ﬁrearm” under MCL

750.222(d) (providing the legal deﬁnition of “ﬁrearm”

for offenses in Chapter XXXVII of the Michigan Penal

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Code),

the inoperability of a pistol is not a valid

afﬁrmative defense to a CCW charge, and therefore,

the trial court erroneously dismissed defendant’s CCW

charge. We agree and reverse.

I. FACTS AND PROCEDURAL HISTORY

At approximately midnight on January 7, 2012,

Detroit

Police Ofﬁcer Johnny Strickland and another

ofﬁcer were patrolling the area of St. Marys Street and

McNichols Road in Detroit, Michigan, in a fully

marked police car. Strickland observed defendant and

another individual walking along the street despite the

availability of a pedestrian sidewalk, an offense for

which Strickland was authorized to issue a ticket.

Strickland and the other ofﬁcer approached defendant,

and defendant looked in their direction. When the

ofﬁcers stopped and got out of the car, defendant

“immediately reached . . . toward his right pocket as if

he was trying to reach into his pants.” Strickland

instructed defendant to place his hands in the air, but

defendant ﬂed when Strickland approached him.

Strickland told defendant to stop, identiﬁed himself as

a police ofﬁcer, and ran after defendant. After chasing

defendant for less than a block, Strickland caught up

with him and immediately detained him, at which time

defendant again attempted to reach into his right

pants pocket. After Strickland handcuffed defendant,

he frisked the area where defendant had reached and

felt a handgun through defendant’s pants. Defendant

did not produce a valid concealed pistol license, and the

weapon had not been visible before it was removed

from defendant’s pants because “he had on two pair of

MCL 750.222 was amended by 2015 PA 26, effective July 1, 2015, to

add several deﬁnitions. Consequently, the deﬁnition of “ﬁrearm” is now

found in MCL 750.222(e).

2015] P

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pants, [and] it was in the pants that [were] underneath

the ﬁrst pair.” Strickland could not recall if he ever

inspected the weapon to determine if it had been

loaded or operable.

On November 11, 2013, the trial court entered an

order requiring the Detroit Police Department to per-

form ballistics testing on the weapon seized from defen-

dant in order “to determine whether the weapon is

currently operable (i.e., capable of propelling a danger-

ous projective [sic: projectile]).” According to the labora-

tory report prepared by the Forensic Science Division of

the Michigan State Police, dated February 5, 2012, well

before the court’s order for ballistics testing, “[t]he

submitted ﬁrearm did not function in the condition it

was received [sic], due to a missing ﬁring pin.”

On January 6, 2014, defendant ﬁled a motion to

dismiss the CCW charge against him. Defendant ar-

gued that the trial court should dismiss the CCW charge

because the Michigan State Police ballistics report in-

dicated that the weapon seized from defendant “was

missing a ﬁring pin and, as a result, could not be easily

made operable at the time.” According to defendant, this

demonstrated that there was insufﬁcient evidence to

support one of the critical elements of the CCW charge.

In support of his position, defendant asserted that there

previously was a split of authority regarding whether

an inoperable weapon could give rise to a CCW charge,

but that subsequent cases resolved the issue and indi-

cated that “an afﬁrmative defense to the charge of

carrying a concealed pistol can be made by the presen-

tation of proof that the pistol in question would not ﬁre

and could not readily be made to ﬁre a projectile.”

Accordingly, defendant argued that no reasonable trier

of fact could ﬁnd that the weapon recovered from

defendant was operable, and therefore, the trial court

312 312 M

ICH

309 [Sept

should dismiss the CCW charge because the pistol did

not constitute a ﬁrearm under MCL 750.222, which

provides the deﬁnition relevant to MCL 750.227(2).

After a hearing on defendant’s motion, the trial

court ruled as follows:

Okay. I took an opportunity, I read [People v Peals, 476

Mich 636, 638; 720 NW2d 196 (2006)] as well as the other

cases that are cited in the Criminal Jury Instruction 11.6

because I thought that they would be helpful. My main

issue with [Peals] is that it makes it clear time and time

again that it applies to felon in possession and felony

ﬁrearm.

I tend to agree . . . that if there was a CCW charge

within that particular case it probably would have applied

it. However, throughout it’s [sic] holding it distinguishes

between the CCW charges and felon in possession and

felony ﬁrearm. So I think this is a call that, for another

court. I’m going to dismiss this case.

I think that ultimately the Court of Appeals or the

Michigan Supreme Court has to clarify whether or not

there [sic] new found opinion with respect to operability

under ﬁrearms further extends to CCW. ’Cause I haven’t

seen anything in the case law saying that it doesn’t. Other

than the [Peals] case, which is very clearly applies [sic] to

felony ﬁrearm and felon in possession.

So you’re probably right. And the Court’s going to get

there eventually. I just don’t think that they’ve done it yet.

And this might be the case to do it. So, I’m going to dismiss

it.

Accordingly, on January 28, 2014, the trial court en-

tered

an order dismissing the CCW charge for the

reasons stated on the record.

II. STANDARDS OF REVIEW

This Court “review[s] for an abuse of discretion a

trial

court’s decision on a motion to dismiss,” People v

2015] P

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313

Stone, 269 Mich App 240, 242; 712 NW2d 165 (2005),

which occurs “when [the trial court’s] decision falls

outside the range of principled outcomes,” People v

Nicholson, 297 Mich App 191, 196; 822 NW2d 284

(2012). However, this Court reviews de novo questions

of law on which a dismissal is based. People v Owen,

251 Mich App 76, 78; 649 NW2d 777 (2002). Addition-

ally, “[q]uestions of statutory construction are re-

viewed de novo.” People v Campbell, 289 Mich App 533,

535; 798 NW2d 514 (2010).

III. THE OPERABILITY OF A PISTOL IS NOT RELEVANT

CHARGES BROUGHT UNDER CHAPTER XXXVII OF THE

MICHIGAN PENAL CODE

The prosecution charged defendant with violating

MCL 750.227(2), which provides:

A person shall not carry a pistol concealed on or about

his or her person, or, whether concealed or otherwise, in a

vehicle operated or occupied by the person, except in his or

her dwelling house, place of business, or on other land

possessed by the person, without a license to carry the

pistol as provided by law and if licensed, shall not carry

the pistol in a place or manner inconsistent with any

restrictions upon such license.

At the time of the instant offense, MCL 750.222(e)

deﬁned

the term “pistol”

as “a loaded or unloaded

ﬁrearm that is 30 inches or less in length, or a loaded

2012 PA 242 amended MCL 750.222, effective January 1, 2013.

Although the deﬁnition of “pistol” changed slightly—the maximum

length of a pistol was changed from 30 inches to 26 inches—the

deﬁnition of “ﬁrearm” remained the same. However, MCL 750.222,

including the deﬁnition of “ﬁrearm,” was later amended by 2015 PA 26,

effective July 1, 2015, and 2015 PA 28, effective August 10, 2015. The

relevance of these amendments is discussed later in this opinion. “[A]

statute is presumed to operate prospectively unless [a] contrary intent is

clearly manifested,” but “an exception to this general rule is recognized

if a statute is remedial or procedural in nature.” People v Conyer, 281

314 312

ICH

309 [Sept

or unloaded ﬁrearm that by its construction and ap-

pearance conceals itself as a ﬁrearm.”

Additionally, at

the time of the instant offense, the term “ﬁrearm,”

which applied to all offenses in Chapter XXXVII of the

Michigan Penal Code, meant “a weapon from which a

dangerous projectile may be propelled by an explosive,

or by gas or air. Firearm does not include a smooth bore

riﬂe or handgun designed and manufactured exclu-

sively for propelling by a spring, or by gas or air, BB’s

[sic] not exceeding .177 caliber.” MCL 750.222(d).

As recognized in People v Brown, 249 Mich App 382,

384; 642 NW2d 382 (2002), “this Court has accorded

various meanings to the statutory term ‘ﬁrearm,’ de-

pending on the speciﬁc offense with which the defen-

dant has been charged.” Thus, while this Court found

that an inoperable weapon qualiﬁed as a ﬁrearm for

purposes of MCL 750.227b (possession of a ﬁrearm

during the commission of a felony (felony-ﬁrearm)),

and MCL 750.224f (felon in possession of a ﬁrearm

(felon-in-possession)), Brown, 249 Mich App at 384-

385, this Court has also held that the fact that a pistol

was inoperable afforded a defendant an afﬁrmative

defense to a CCW charge:

This Court has . . . held that a pistol, as deﬁned under the

concealed

weapons statute, must be operable. People v

Gardner, 194 Mich App 652; 487 NW2d 515 (1992). That

is, the pistol must be capable of propelling the requisite-

sized dangerous projectile or of being altered to do so

within a reasonably short time. Id., p 654; People v

Huizenga, 176 Mich App 800, 806; 439 NW2d 922 (1989).

An afﬁrmative defense to a charge of carrying a concealed

Mich App 526, 529; 762 NW2d 198 (2008) (quotation marks and

citations omitted; second alteration in original).

The deﬁnition of pistol found in MCL 750.222(e) applies to all the

crimes included in Chapter XXXVII of the Michigan Penal Code, MCL

750.222 through MCL 750.239a.

2015] P

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315

pistol can be made by the presentation of proof that the

pistol would not ﬁre and could not readily be made to ﬁre.

Gardner, supra. [People v Parr, 197 Mich App 41, 45; 494

NW2d 768 (1992).]

Consistent with this caselaw, subsequent opinions is-

sued by this Court, and both the former and current

versions of the model criminal jury instructions, recog-

nize that an inoperable handgun does not constitute a

ﬁrearm for purposes of the CCW statute, and that a

defendant is not guilty of CCW when the gun is

completely unusable and cannot be easily made oper-

able. See, e.g., Brown, 249 Mich App at 384; M Crim JI

11.6; CJI2d 11.6.

However, in People v Peals, 476 Mich 636, 638; 720

NW2d 196 (2006), the Michigan Supreme Court consid-

ered whether the defendant possessed a ﬁrearm, as

deﬁned in MCL 750.222(d), and was therefore properly

convicted of felon-in-possession, MCL 750.224f(1), and

felony-ﬁrearm, MCL 750.227b. The Supreme Court

held:

[T]he text of the statutory deﬁnition indicates that a

weapon

is a ﬁrearm if it is the type of weapon that was

designed or intended to propel a dangerous projectile by

an explosive, gas, or air. The deﬁnition describes the

category of weapons that constitute a “ﬁrearm,” but it does

not prescribe a requirement that the weapon be “operable”

or “reasonably or readily repairable.” In other words, the

design and construction of the weapon, rather than its

state of operability, are relevant in determining whether it

is a “ﬁrearm.” [Peals, 476 Mich at 638.]

Thus, the Supreme Court concluded, “the statute re-

quires

only that the weapon be of a type that is

designed or intended to propel a dangerous projectile.”

Id. at 642. The Supreme Court noted in its analysis

that this Court has attributed different meanings to

the term “ﬁrearm,” depending on the charged offense:

316 312 M

ICH

309 [Sept

[T]he Court of Appeals has held, after [People v] Hill [433

Mich 464; 446 NW2d 140 (1989)], that proof of operability

is not required to establish the offense of felon in posses-

sion of a ﬁrearm. In [Brown, 249 Mich App 382], the Court

of Appeals noted that various meanings had been accorded

to the term “ﬁrearm,” depending on the offense with which

the defendant had been charged. In the context of the

concealed weapons statute, MCL 750.227, the Court of

Appeals had held that an inoperable handgun was not a

“ﬁrearm.” See [Parr, 197 Mich App at 45], [Gardner, 194

Mich App at 654], and [Huizenga, 176 Mich App at

804-805]. But in the context of the felony-ﬁrearm statute,

the Brown Court noted that Court of Appeals case law does

not require proof of operability. See [People v Thompson,

189 Mich App 85; 472 NW2d 11 (1991)]; [People v Garrett,

161 Mich App 649; 411 NW2d 812 (1987)]; and [People v

Poindexter, 138 Mich App 322; 361 NW2d 346 (1984)]. The

Brown Court concluded “that the Thompson analysis, ﬁrst

applied to felony-ﬁrearm cases, should also be applied to

felon[-]in[-]possession cases.” Brown, 249 Mich App at 384-

385. [Peals, 476 Mich at 647-648 (emphasis added).]

Additionally, although an apparent secondary consid-

eration,

the Supreme Court also noted that its inter-

pretation of the statutory deﬁnition was consistent

with this Court’s existing caselaw regarding the spe-

ciﬁc offenses at issue in Peals:

As discussed, we believe the statutory deﬁnition of “ﬁre-

arm”

is clear. MCL 750.222(d) plainly provides that a

weapon is a ﬁrearm if it is the type of weapon that propels

dangerous projectiles by an explosive or by gas or air.

Moreover, as noted earlier, the existing Court of Appeals

case law provides that inoperability is not a defense to

either felony-ﬁrearm or felon in possession of a ﬁrearm.

[Id. at 655.]

The Supreme Court made no speciﬁc pronounce-

ment

that its interpretation of the term “ﬁrearm”

under MCL 750.222(d) was applicable to all ﬁrearms

cases. Nevertheless, the clear implication is that, given

2015] P

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317

the plain language of the statute, the Supreme Court’s

construction of the term “ﬁrearm” is the only viable

interpretation of the term as it concerns all the crimes

deﬁned in MCL 750.222 through MCL 750.239a. Peals,

476 Mich at 655-656; see People v Lewis, 302 Mich App

338, 341; 839 NW2d 37 (2013) (“When the statutory

language is plain and unambiguous, the Legislature’s

intent is clearly expressed, and judicial construction is

neither permitted nor required.”). Thus, in the instant

case, the trial court was bound by the Michigan Su-

preme Court’s pronouncement in Peals, 476 Mich at

655, that the deﬁnition of “ﬁrearm” in MCL 750.222(d)

was “clear” and “plain[],”and that “the design and

construction of the weapon, rather than its state of

operability, are relevant in determining whether [the

weapon] is a ‘ﬁrearm,’ ” id. at 638. This Court is also

bound by Peals, and we hold that Peals overruled the

holding in Gardner that the inoperability of a pistol is

an afﬁrmative defense to a CCW charge. Gardner, 194

Mich App at 654-655.

IV. CONCLUSION

“[A] trial court’s misapplication or misunderstand-

ing

of the law in reaching its decision . . . may consti-

tute an abuse of discretion.” People v Cress, 250 Mich

App 110, 149; 645 NW2d 669 (2002), rev’d on other

grounds 468 Mich 678 (2003). In this case, the trial

court abused its discretion by granting defendant’s

motion to dismiss the CCW charge because, under

Peals, the operability of a ﬁrearm is not relevant to

ﬁrearms offenses under Chapter XXXVII of the Michi-

gan Penal Code, and the inoperability of a pistol is no

longer a valid afﬁrmative defense to a CCW charge.

The new deﬁnition of “ﬁrearm” prescribed by 2015 PAs 26 and 28

supports our conclusion that operability is no longer a defense to a CCW

318 312 M

ICH

309 [Sept

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

WENS

and M. J. K

ELLY

, JJ., concurred with W

ILDER

P.J.

charge. Under the new deﬁnition, a “ ‘[f]irearm’ means any weapon

which will, is designed to, or may readily be converted to expel a

projectile by action of an explosive.” MCL 750.222(e) (emphasis added).

This deﬁnition, like the former deﬁnition interpreted by the Michigan

Supreme Court in Peals, “describes the category of weapons that

constitute a ‘ﬁrearm,’ but . . . does not prescribe a requirement that the

weapon be ‘operable’ or ‘reasonably or readily repairable,’ ” and indi-

cates that “the design and construction of the weapon, rather than its

state of operability, are relevant in determining whether it is a ‘ﬁre-

arm.’ ” Peals, 476 Mich at 638. Thus, we conclude that the reasoning

employed in Peals is still viable under the amended deﬁnition. See also

id. at 642 (“[T]he statute requires only that the weapon be of a type that

is designed or intended to propel a dangerous projectile.”) (emphasis

added).

2015] P

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319

PEOPLE v FEELEY

Docket No. 325802. Submitted August 5, 2015, at Lansing. Decided

September 15, 2015, at 9:15 a.m. Reversed and remanded 499

Mich 429.

The 53rd District Court, Carol Sue Reader, J., refused to bind Ryan

Scott Feeley over for trial on the charge of resisting and obstruct-

ing a police ofﬁcer, a charge that resulted from defendant’s failure

to comply with a Brighton reserve police ofﬁcer’s command. The

reserve police ofﬁcer and a full-time police ofﬁcer responded to a

call from a bar for assistance with a ﬁght occurring there. When

the ofﬁcers arrived on the scene, defendant was identiﬁed as the

individual causing the problem. When defendant ran away from

the reserve police ofﬁcer after the reserve ofﬁcer asked to speak

with defendant, the reserve ofﬁcer identiﬁed himself as a police

ofﬁcer, and he ordered defendant to stop. Defendant stopped after

the reserve ofﬁcer’s second command, looked at the reserve

ofﬁcer, uttered an expletive, and began reaching behind his back.

The reserve ofﬁcer pulled his weapon and ordered defendant to

the ground. Defendant complied, and with help from two other

ofﬁcers, defendant was taken into custody. The court refused to

bind defendant over for trial because the court concluded that

failure to comply with the command of a reserve police ofﬁcer was

not within the scope of MCL 750.81d. The prosecution ﬁled an

application for leave to appeal the district court’s decision. The

Livingston Circuit Court, Michael P. Hatty, J., denied the appli-

cation for lack of merit. The prosecution appealed by leave

granted.

The Court of Appeals held:

The district court properly refused to bind defendant over on

the charge of resisting and obstructing, and the circuit court

properly denied leave to appeal the district court’s decision,

because the applicable statute, MCL 750.81d, does not include

reserve police ofﬁcers in the list of persons with whose lawful

orders an individual must comply when the ofﬁcers are engaged

in the performance of their duties. The resisting and obstructing

statute penalizes an individual who knows, or has reason to

know, that a person is engaged in the performance of his or duties,

and who assaults, batters, wounds, resists, obstructs, opposes, or

320 312

ICH

320 [Sept

endangers that person during the performance of those duties.

The statute deﬁnes “person” by including a detailed list of

occupations to which the statute applies. “Reserve police ofﬁcer”

is not included in that list of occupations. If the Legislature

intended to penalize a defendant’s resistance to, and obstruction

of, a reserve police ofﬁcer’s performance of his or her duties, the

Legislature would have included reserve police ofﬁcers in the

statutory list. Because it did not, and because it did expressly list

a signiﬁcant number of occupations, the plain language of the

statute requires the exclusion of reserve police ofﬁcers from the

scope of the statute. Thus, the district court properly refused to

bind defendant over for trial on the resisting and obstructing

charge. In addition, the circuit court properly denied the prosecu-

tion’s application for leave to appeal the district court’s decision.

Afﬁrmed.

AWYER

, P.J., dissenting, would have reversed the district and

circuit courts, reasoning that MCL 750.81d(7)(b) ought to be

broadly interpreted to include reserve police ofﬁcers as “persons”

with whose lawful orders an individual must comply when the

orders are issued during the performance of the ofﬁcers’ duties.

Nothing in the language of MCL 750.81d suggests that reserve

police ofﬁcers should not be considered police ofﬁcers for purposes

of the statute. The statute neither explicitly includes reserve

police ofﬁcers in its deﬁnition of “person,” nor does it explicitly

exclude reserve police ofﬁcers from the deﬁnition. The distinction

between a reserve police ofﬁcer and a full-time police ofﬁcer

depends not on the nature of their service to the jurisdiction, but

on the nature of their schedules. Reserve police ofﬁcers are

part-time ofﬁcers who work when full-time ofﬁcers are on vaca-

tion or call in sick. Because a reserve police ofﬁcer is tasked with

the same duties as a full-time police ofﬁcer, an individual who

refuses to comply with the lawful order of a reserve police ofﬁcer

should face the same criminal liability as would an individual

who refuses to comply with the lawful order of a full-time police

ofﬁcer.

RIMINAL

FFENSES —

ESISTING AND

BSTRUCTING —

EFINITION OF

OLICE

FFICER

MCL 750.81d, the statute prohibiting resisting and obstructing a

police ofﬁcer, does not penalize individuals who refuse to comply

with a reserve police ofﬁcer’s command to stop; the resisting and

obstructing a police ofﬁcer statute expressly lists a number of

occupations included in its deﬁnition of “person” with whose

lawful orders an individual must obey when that person is

2015] P

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EELEY

321

engaged in the performance of his or her duties, and the indi-

vidual knows, or has reason to know, that the person is perform-

ing those duties; a reserve police ofﬁcer is not expressly men-

tioned in the list of occupations to which the statute applies, and

thus, the plain language of the statute does not support the

prosecution’s argument that a reserve police ofﬁcer falls within

the scope of the statute.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, and William J. Vailliencourt,

Jr., Prosecuting Attorney, for the people.

Fraser Trebilcock Davis & Dunlap, PC (by Brian P.

Morley), for defendant.

Before: S

AWYER

, P.J., and M. J. K

ELLY

and S

HAPIRO

JJ.

HAPIRO

, J. Defendant was arrested and charged

with resisting and obstructing a police ofﬁcer, MCL

750.81d, for failing to comply with the command of a

Brighton reserve police ofﬁcer. At the conclusion of the

preliminary hearing, the district court denied the pros-

ecution’s bindover request on the grounds that failure

to comply with the command of a reserve police ofﬁcer

was not within the scope of the statute. The circuit

court denied the prosecution’s application for leave to

appeal the district court’s order, and the prosecution

appealed in this Court by leave granted.

We afﬁrm.

The resisting and obstructing statute, MCL 750.81d,

states:

People v Feeley, unpublished order of the Court of Appeals, entered

April 3, 2015 (Docket No. 325802).

Generally, a district court’s decision to bind a defendant over for trial

is reviewed for an abuse of discretion. People v Fletcher, 260 Mich App

531, 551; 679 NW2d 127 (2004). However, this case involves questions of

statutory interpretation, which are reviewed de novo. See People v Flick,

487 Mich 1, 8-9; 790 NW2d 295 (2010).

322 312 M

ICH

320 [Sept

PINION OF THE

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(1) Except as provided in subsections (2), (3), and (4), an

individual who assaults, batters, wounds, resists, ob-

structs, opposes, or endangers a person who the individual

knows or has reason to know is performing his or her

duties is guilty of a felony punishable by imprisonment for

not more than 2 years or a ﬁne of not more than $2,000.00,

or both.

* * *

(7) As used in this section:

(a) “Obstruct” includes the use or threatened use of

physical interference or force or a knowing failure to

comply with a lawful command.

(b) “Person” means any of the following:

(i) A police ofﬁcer of this state or of a political subdivi-

sion of this state including, but not limited to, a motor

carrier ofﬁcer or capitol security ofﬁcer of the department

of state police.

(ii) A police ofﬁcer of a junior college, college, or univer-

sity who is authorized by the governing board of that

junior college, college, or university to enforce state law

and the rules and ordinances of that junior college, college,

or university.

(iii) A conservation ofﬁcer of the department of natural

resources or the department of environmental quality.

(iv) A conservation ofﬁcer of the United States depart-

ment of the interior.

(v) A sheriff or deputy sheriff.

(vi) A constable.

(vii) A peace ofﬁcer of a duly authorized police agency of

the United States, including, but not limited to, an agent

of the secret service or department of justice.

(viii) A ﬁreﬁghter.

(ix) Any emergency medical service personnel described

in . . . MCL 333.20950.

2015] P

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PINION OF THE

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(x) An individual engaged in a search and rescue

operation as that term is deﬁned in section 50c. [Emphasis

added.]

The prosecution contends that by implication, re-

serve police ofﬁcers fall under Subsection (7)(b)(i), i.e.,

“[a] police ofﬁcer of . . . a political subdivision of this

state . . . .” When interpreting statutes, we are re-

quired to look at the plain language of the statute to

discern the Legislature’s intent. People v Morey, 461

Mich 325, 329-330; 603 NW2d 250 (1999). In the

resisting and obstructing statute, the Legislature did

not include the term “reserve police ofﬁcer” in the

deﬁnition of persons whose lawful orders must be

obeyed in order to avoid criminal liability. Many other

law enforcement personnel one might reasonably con-

sider implicitly included in the term “police ofﬁcer”

were nevertheless explicitly listed in the statute. Had

the Legislature intended a broad meaning to apply to

the term “police ofﬁcer,” there would have been no need

to specify the statute’s application to, inter alia, uni-

versity police ofﬁcers, sheriff’s deputies, and federal

conservation ofﬁcers. See People v Jahner, 433 Mich

490, 500 n 3; 446 NW2d 151 (1989) (holding that a

“consistent principle of statutory construction is that

the express mention in a statute of one thing implies

the exclusion of other similar things (expressio unius

est exclusio alterius)”); see also People v Malik, 70

Mich App 133, 136; 245 NW2d 434 (1976). That the

Legislature pointedly did not include reserve police

ofﬁcers indicates that the omission was intentional.

See People v Underwood, 278 Mich App 334, 338; 750

NW2d 612 (2008) (holding that “provisions not in-

cluded in a statute by the Legislature should not be

included by the courts”); see also Houghton Lake Area

Tourism & Convention Bureau v Wood, 255 Mich App

127, 135; 662 NW2d 758 (2003) (holding that this

324 312 M

ICH

320 [Sept

PINION OF THE

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Court should assume that omissions by the Legislature

are intentional). Thus, by its terms, the statute does

not apply to the failure to obey the order of a reserve

police ofﬁcer.

The cases relied on by the prosecution are inappo-

site.

In People v McRae, 469 Mich 704, 710-715; 678

NW2d 425 (2004), the Supreme Court held that a

reserve police ofﬁcer was a state actor for Sixth

Amendment purposes. The case involved the applica-

tion of constitutional standards. There is no basis to

conclude that because a reserve police ofﬁcer has been

held to be a state actor under certain circumstances

that he or she is also a police ofﬁcer for purposes of the

resisting and obstructing statute. Indeed, a completely

private citizen may be held to be a state actor for

Fourth Amendment purposes. See United States v

Price, 383 US 787, 794 n 7; 88 S Ct 1152; 16 L Ed 2d

267 (1966). The term “state action” is broad and of no

The dissent asserts that the Legislature’s decision not to enumerate

reserve ofﬁcers along with the many other enumerated categories of

ofﬁcers is of “no signiﬁcance” and that we should therefore base our

decision on the fact that a lay dictionary deﬁnes “police force” as a “body

of trained ofﬁcers . . . .” In our view, this case does not require resort to

a lay dictionary, and certainly does not require deﬁnition of terms other

than those used in the statute. Moreover, the dissent’s reliance on the

dictionary’s use of the general term “trained ofﬁcers” is belied by the fact

that, by statute, the degree of training required to become a reserve

police ofﬁcer is far less than that required to become a “regularly

employed” police ofﬁcer, see MCL 28.602(l)(i), and may vary from one

municipality to another. We also decline to adopt the dissent’s view that

the difference between police ofﬁcers and reserve ofﬁcers “depends not

on the nature of their service . . . but on the nature of their schedule.”

The dissent cites no law in support of this conclusion, and it is factually

incorrect because, at least in the department in question, a reserve

ofﬁcer may not exercise any authority unless accompanied by a certiﬁed,

full-time police ofﬁcer. Finally, we reject the dissent’s suggestion that

this analysis would differ depending on whether a county or municipal-

ity has separate police and ﬁre departments or uses a uniﬁed public

safety department.

2015] P

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EELEY

325

PINION OF THE

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consequence in this case; for example, a public univer-

sity and its employees are generally state actors, but

no one could argue that by virtue of that legal classi-

ﬁcation, they are also police ofﬁcers for purposes of the

crime of resisting and obstructing.

In Bitterman v Village of Oakley, 309 Mich App 53;

868 NW2d 642 (2015), this Court considered whether

information concerning reserve police ofﬁcers fell

within the law enforcement exception to disclosure

under the Freedom of Information Act (FOIA), MCL

15.231 et seq. We reject the prosecution’s reliance on

Bitterman because the phrase used in MCL

15.243(1)(s)(viii), “law enforcement ofﬁcer, agent, or

informant,” is undoubtedly broader than the term

“police ofﬁcer.” Indeed, as this Court opined, reserve

police ofﬁcers likely ﬁt within the FOIA phrase.

Bit-

terman,

309 Mich App at 71-72. The term “police

ofﬁcer” in the resisting and obstructing statute is

markedly narrower. If the Legislature had intended

“police ofﬁcer,” as used in the statute, to be read so

broadly, it would not have needed to include a lengthy

list of law enforcement professionals and other occupa-

tions like ﬁreﬁghters, etc., to whom the law applies,

notably omitting reserve police ofﬁcers.

The prosecution and the dissent make reasonable

policy arguments in support of their view that the

failure to obey a properly supervised reserve police

ofﬁcer should result in some level of criminal liability.

However, the decision whether to criminalize such

actions, and if so, what sanctions to impose for engag-

The Bitterman Court did not decide “whether [police] reservists

should be considered ‘law enforcement ofﬁcers’ for the purpose of a FOIA

exemption,” because there was no evidence in the record of the reserv-

ists’ ”power or duties relating to law enforcement or preserving the

peace . . . .” Bitterman, 309 Mich App at 72.

326 312 M

ICH

320 [Sept

PINION OF THE

OURT

ing in such conduct, is a matter reserved for the

Legislature. See People v Ayers, 213 Mich App 708, 716;

540 NW2d 791 (1995) (“[T]he power to deﬁne crime and

ﬁx punishment is wholly legislative . . . .”).

Afﬁrmed.

M. J. K

ELLY

, J., concurred with S

HAPIRO

, J.

AWYER

, P.J. (dissenting). I respectfully dissent.

I disagree with the majority’s conclusion that Police

Ofﬁcer Douglas Roberts, a reserve ofﬁcer with the city

of Brighton, is not, in fact, a police ofﬁcer for purposes

of MCL 750.81d. The majority bases its conclusion on

the fact that MCL 750.81d does not speciﬁcally list the

job title “reserve police ofﬁcer” in its deﬁnition of

“person” under the statute. I ﬁnd this reasoning un-

persuasive.

MCL 750.81d(1) establishes as a two-year felony the

following:

Except as provided in subsections (2), (3), and (4), an

individual

who assaults, batters, wounds, resists, ob-

structs, opposes, or endangers a person who the individual

knows or has reason to know is performing his or her

duties is guilty of a felony punishable by imprisonment for

not more than 2 years or a ﬁne of not more than $2,000.00,

or both.

Subsections (2), (3), and (4) establish greater penalties

depending

on the level of injury caused to the “person.”

Furthermore, MCL 750.81d(7)(b) deﬁnes “person” as

any of the following:

(i)

A police ofﬁcer of this state or of a political subdivi-

sion of this state including, but not limited to, a motor

carrier ofﬁcer or capitol security ofﬁcer of the department

of state police.

2015] P

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ISSENTING

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, P.J.

(ii) A police ofﬁcer of a junior college, college, or univer-

sity who is authorized by the governing board of that

junior college, college, or university to enforce state law

and the rules and ordinances of that junior college, college,

or university.

(iii) A conservation ofﬁcer of the department of natural

resources or the department of environmental quality.

(iv) A conservation ofﬁcer of the United States depart-

ment of the interior.

(v) A sheriff or deputy sheriff.

(vi) A constable.

(vii) A peace ofﬁcer of a duly authorized police agency of

the United States, including, but not limited to, an agent

of the secret service or department of justice.

(viii) A ﬁreﬁghter.

(ix) Any emergency medical service personnel described

in . . . MCL 333.20950.

(x) An individual engaged in a search and rescue

operation as that term is deﬁned in section 50c.

The majority ﬁnds great signiﬁcance in the fact

hat the term “reserve police ofﬁcer” is not included in

this list. I ﬁnd no signiﬁcance in that fact. The

majority argues that because this list explicitly in-

cludes individuals in a number of categories that

might implicitly be considered police ofﬁcers, the

Legislature must have intended to exclude other

categories that are not explicitly mentioned. I ﬁnd

this reasoning to be ﬂawed.

The majority’s reasoning is correct only if we start

with the presumption that the Legislature has implic-

itly reached the same conclusion that the majority has

reached—that a reserve police ofﬁcer is not, in fact, a

police ofﬁcer. That is, the Legislature would have

explicitly included reserve police ofﬁcers in its listing

only (1) if the Legislature did not already consider

328 312 M

ICH

320 [Sept

ISSENTING

PINION BY

AWYER

, P.J.

reserve police ofﬁcers to be “police ofﬁcer[s] of this

state or of a political subdivision” under MCL

750.81d(7)(b)(i), or (2) if the Legislature wanted to

explicitly exclude reserve ofﬁcers from the deﬁnition of

“person” in MCL 750.81d(7)(b). But there is no evi-

dence in the text of the statute suggesting that the

Legislature views a reserve police ofﬁcer as anything

other than a police ofﬁcer. Nor is there any indication

that the Legislature intended to exclude reserve ofﬁ-

cers from the deﬁnition of “person.”

Next, it should not be overlooked that the statute,

while providing an extensive deﬁnition of “person,”

does not, however, provide a deﬁnition of “police

ofﬁcer.” Looking to Merriam-Webster’s Collegiate Dic-

tionary (11th ed), “police ofﬁcer” is deﬁned as “a

member of a police force[.]” And “police force” is

deﬁned as “a body of trained ofﬁcers entrusted by a

government with maintenance of public peace and

order, enforcement of laws, and prevention and detec-

tion of crime.” Thus, we need to look at whether

Ofﬁcer Roberts is a “trained ofﬁcer” entrusted by the

city of Brighton with the “maintenance of public peace

and order, enforcement of laws, and prevention and

detection of crime.”

Ofﬁcer Roberts testiﬁed that he attended a 16-week

police academy, that he was sworn as an ofﬁcer for the

city of Brighton, that the oath included the obligation to

uphold the laws of the city of Brighton and the state of

Michigan, and that he was issued a uniform and a

weapon. He worked full shifts, in a patrol car, along with

a full-time ofﬁcer. With respect to the speciﬁc events in

this case, Ofﬁcer Roberts testiﬁed that he and the

full-time ofﬁcer with whom he was working were re-

sponding to a call for service regarding a ﬁght in

progress at a bar. Defendant was identiﬁed as the

2015] P

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329

ISSENTING

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, P.J.

person causing the problem, and Ofﬁcer Roberts ap-

proached him and asked to speak with him. Defendant

responded by running away from Roberts, who identi-

ﬁed himself as a police ofﬁcer and ordered defendant to

stop. Defendant only complied after Ofﬁcer Roberts

repeated the command. After defendant stopped, he

looked at Ofﬁcer Roberts, said “fuck you,” and then

reached behind his back. Concerned that defendant was

reaching for a weapon, Ofﬁcer Roberts drew his own

weapon and ordered defendant to the ground. Defen-

dant complied, and with the assistance of two other

ofﬁcers who had arrived at the scene, defendant was

taken into custody. I would suggest that these facts

establish that Ofﬁcer Roberts is a trained ofﬁcer who

has been entrusted by the city of Brighton and its police

chief with the “maintenance of public peace and order,

enforcement of laws, and prevention and detection of

crime.”

Moreover, I would note that this dictionary deﬁni-

tion of “police ofﬁcer,” and its application to reserve

ofﬁcers, ﬁnds some support in our Legislature’s lan-

guage, albeit in a different statute. While I can ﬁnd no

use of the term “reserve police ofﬁcer” in the statutes

of this state, at the time of the events in this case, the

concealed pistol license statute deﬁned the terms

“reserve peace ofﬁcer” and “reserve ofﬁcer” to mean

an individual authorized on a voluntary or irregular basis

a duly authorized police agency of this state or a

political subdivision of this state to act as a law enforce-

ment ofﬁcer, who is responsible for the preservation of the

peace, the prevention and detection of crime, and the

enforcement of the general criminal laws of this state, and

who is otherwise eligible to possess a ﬁrearm under this

act. [MCL 28.421(1)(g).]

330 312

ICH

320 [Sept

ISSENTING

PINION BY

AWYER

, P.J.

In addition to using a deﬁnition similar to the

dictionary deﬁnitions of “police ofﬁcer” and “police

force,” there is another aspect I ﬁnd compelling—the

reference in MCL 28.421(1) to a reserve ofﬁcer serving

on a “voluntary or irregular basis.” The distinction

between a police ofﬁcer and a reserve police ofﬁcer

depends not on the nature of their service to the city,

but on the nature of their schedule. Both are police

ofﬁcers—that is, both have a duty to preserve the

peace, prevent and detect crime, and enforce the crimi-

nal laws of this state. The distinction is that a reserve

ofﬁcer does so on an irregular basis. Or, as Ofﬁcer

Roberts testiﬁed in this case, he works two or three

shifts a month, ﬁlling in for ofﬁcers who are on vaca-

tion or have called in sick. That is, unlike a regular,

full-time ofﬁcer, he does not have a regular schedule.

But I see nothing in MCL 750.81d that draws a

distinction based on whether an ofﬁcer performs his or

her duties according to a regular schedule.

Finally, I would note that if we were to follow the

majority’s rationale that all categories of “persons”

must be explicitly listed in the statute, those “per-

sons” whose job titles are different than simply “police

ofﬁcer” would be necessarily excluded. For example, a

number of jurisdictions utilize “public safety” depart-

ments rather than police departments. Yet, MCL

750.81d(7)(b) does not include “public safety ofﬁcers”

in its list. I doubt that the Legislature intended to

exclude them from the coverage of the statute.

Rather, I believe the Legislature presumed that pub-

lic safety ofﬁcers, like reserve police ofﬁcers, fall

within the general category of “police ofﬁcers” because

public safety ofﬁcers are also charged with preserving

the peace, preventing and detecting crime, and en-

forcing the law.

2015] P

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331

ISSENTING

PINION BY

AWYER

, P.J.

For these reasons, I conclude that Ofﬁcer Roberts is

a police ofﬁcer of a political subdivision of this state,

namely the city of Brighton. Accordingly, defendant

could be found guilty under MCL 750.81d if he resisted

or obstructed Ofﬁcer Roberts in the performance of his

duties.

I would reverse the lower courts and direct the

district court to bind defendant over for trial if it ﬁnds

that there is otherwise sufﬁcient evidence to do so.

332 312 M

ICH

320 [Sept

ISSENTING

PINION BY

AWYER

, P.J.

DOE v BOYLE

Docket No. 320102. Submitted March 3, 2015, at Lansing. Decided

September 22, 2015, at 9:00 a.m.

John Doe, a minor, through his mother and next friend, brought an

action in the Ingham Circuit Court against Renee Boyle, Michael

Hand, the state of Michigan, the Department of Human Services

(DHS), and the Department of Human Services of Wexford-

Missaukee Counties. The case arose after Hand, also a minor at

the time, sexually assaulted Doe. Hand was a ward of the state

and was living with Boyle, a foster-care provider. The government

defendants were dismissed from the action without prejudice.

Boyle moved for the appointment of a guardian ad litem for Hand

in accordance with MCR 2.201(E)(1)(c). The court entered an

order appointing Thomas Woods as Hand’s guardian ad litem.

Doe then ﬁled a separate action in the Ingham Circuit Court

against Citizens Insurance Company of America, Hand, and

Boyle, seeking a declaration that Citizens had a duty to defend

and indemnify Hand and Boyle in this action. Citizens moved for

summary disposition, which the court, Joyce Draganchuk, J.,

granted. Doe appealed, and the Court of Appeals afﬁrmed. Doe v

Citizens Ins Co of America, 287 Mich App 585 (2010). Boyle then

ﬁled for bankruptcy, resulting in a stay of this action until her

discharge from bankruptcy in December 2009. In July 2010,

Woods, relying on MCR 3.916(D), moved for payment of his fees

and costs. The court, Rosemarie E. Aqualina, J., ruled that Doe

was responsible for paying Woods’s costs, but not his legal fees.

Both Doe and Woods moved for reconsideration. The court denied

the motions, but then, one week later, set aside that order, stating

that it had been improperly entered without affording Doe’s

attorneys an opportunity to be heard. Following a hearing, the

court granted Doe’s motion for reconsideration, ruling that Woods

was not entitled to any compensation. Woods was discharged

from his duties as Hand’s guardian ad litem on June 24, 2011,

after Hand reached the age of majority. On July 19, 2011, the

court entered a consent judgment against Hand. On July 22,

2011, the court entered another order, purporting to dismiss

plaintiff’s claims against Hand. In August 2011, Woods appealed.

Doe moved to dismiss the claim of appeal. The Court of Appeals

2015] D

OE V

OYLE

333

granted the motion, concluding that the circuit court’s July 22,

2011 order was not a ﬁnal order and even if the July 19, 2011

order were a ﬁnal order, Woods’s claim of appeal was not timely

ﬁled from that judgment. Doe v Boyle, unpublished order of the

Court of Appeals, entered November 2, 2011 (Docket No. 305627).

In January 2012, Boyle moved for summary disposition, asserting

that Doe’s claims against her were barred by her bankruptcy

discharge. Woods separately moved for a ﬁnal order closing the

case. The circuit court ruled that Boyle had already been dis-

missed from the case and denied Woods’s motion for entry of a

ﬁnal order. Woods ﬁled an application for leave to appeal, which

the Court of Appeals granted. The Court of Appeals ultimately

reversed the circuit court’s denial of Woods’s motion for entry of a

ﬁnal order closing the case and remanded the case for entry of a

ﬁnal order. Doe v Boyle, unpublished opinion of the Court of

Appeals, issued December 10, 2013 (Docket No. 310725). On

remand, the parties stipulated entry of a ﬁnal judgment dismiss-

ing all remaining claims and closing the case. Woods appealed,

seeking to reverse the circuit court’s decision denying his motion

for costs and fees.

The Court of Appeals held:

Under MCL 600.2415 and MCR 2.201(E)(1)(c), a person who

defends a suit as a guardian ad litem on behalf of a minor is not

responsible for the costs of the action. Woods, therefore, was

entitled to receive his costs from another party. His costs included

the attorney fees he incurred as guardian ad litem. MCR

2.201(E)(3)(a) contemplates that a guardian ad litem will be

awarded his or her costs and expenses. The term “expenses”

encompasses reasonable payment for legal services because, as

guardian ad litem, Woods expended time and labor in order to

provide legal services to Hand. Therefore, the circuit court abused

its discretion when it denied Woods’s motion for fees and costs.

Under MCL 400.203, DHS was responsible for Hand’s care.

Accordingly, it was responsible for bearing the expenses related to

Hand’s defense. The fact that the government defendants were

dismissed from the case did not negate the fact that Hand was a

ward of the state, and DHS remained responsible for his care.

Therefore, DHS was responsible for payment of Woods’s costs and

expenses. Woods’s motion for payment was timely ﬁled. MCR

2.625(f), which sets forth a 28-day time limit for seeking taxable

costs, did not apply because Woods requested payment before a

ﬁnal judgment was entered and there were no other applicable

time limits on a guardian ad litem’s request for attorney fees and

costs. Finally, DHS’s argument that it did not have notice of

334 312

ICH

333 [Sept

Woods’s appointment was unpersuasive given the facts of the

case. Accordingly, the fact that the circuit court did not send a

notice to DHS when Woods was appointed as Hand’s guardian ad

litem did not preclude payment. DHS was responsible for pay-

ment of the costs and attorney fees that Woods incurred as

guardian ad litem for Hand.

Reversed and remanded for a determination of the costs and

expenses that Woods incurred as guardian ad litem for Hand.

TTORNEY

EES —

UARDIAN

ITEM —

ARDS OF THE

TATE —

ESPONSIBILITY

FOR

AYMENT OF

OSTS

Under MCL 600.2415 and MCR 2.201(E)(1)(c), a person who

defends a suit as a guardian ad litem on behalf of a minor is not

responsible for the costs of the action; under MCL 400.203, the

Department of Human Services is responsible for the care of

wards of the state; that responsibility includes liability for costs

and expenses related to the legal defense of a ward by a guardian

ad litem; a guardian ad litem’s costs and expenses include

attorney fees incurred as guardian ad litem.

Mark Granzotto, PC (by Mark

Granzotto), The Keane

Law Firm, PC (by Christopher J. Keane), and Robert

Harrison & Associates PLC (by Robert S. Harrison) for

John Doe, Christopher J. Keane, and Robert S. Harri-

son.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, and William R. Morris, Assistant Attor-

ney General, for the Department of Human Services.

Allan Falk, PC (by Allan Falk), and Cummins Woods

PC (by Thomas E. Woods), for Thomas E. Woods.

Before: J

ANSEN

, P.J., and M

ETER

and B

ECKERING

, JJ.

URIAM

. Appellant, Thomas Woods (Woods), ap-

peals as of right following the circuit court’s entry of

ﬁnal judgment. In particular, Woods challenges the

2015] D

OE V

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335

circuit court’s earlier order denying his request to be

compensated for services rendered as a court-

appointed guardian ad litem. We reverse and remand

for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On July 14, 2006, John Doe (Doe), a 5-year-old

minor

, was at the beach in Traverse City, Michigan.

Defendant Michael Hand (Hand), a 13-year-old minor,

was also at the beach. Hand asked Doe to accompany

him to a public restroom. While inside the public

restroom, Hand sexually assaulted Doe. At the time of

the incident, Hand was a ward of the state of Michigan

and was living with defendant Renee Boyle (Boyle), a

foster-care provider. The parental rights of Hand’s

natural parents had been previously terminated.

Doe, by his mother as next friend (plaintiff), sued

Hand, Boyle, the state of Michigan, the Michigan

Department of Human Services (DHS),

and DHS of

exford-Missaukee Counties in the Ingham Circuit

Court. The complaint was ﬁled on July 6, 2007. To

proceed with her claims against minor child Hand,

plaintiff ﬁled an ex parte motion for the appointment of

a guardian ad litem for Hand under MCR

2.201(E)(1)(c).

On October 12, 2007, the circuit court entered an

order dismissing defendants DHS, DHS of Wexford-

Missaukee Counties, and the state of Michigan from

this action without prejudice.

A hearing on plaintiff’s

DHS is now known as the Department of Health and Human

Services. See Executive Order No. 2015-4.

Plaintiff later sued the state, DHS, and DHS of Wexford-Missaukee

Counties in the Court of Claims, where her causes of action were

dismissed on the grounds of governmental immunity and failure to state

a claim on which relief could be granted. This Court afﬁrmed. Doe v

336 312 M

ICH

333 [Sept

motion to appoint a guardian ad litem for Hand was

held on January 23, 2008. The attorney for plaintiff

and Doe noted that Hand needed a next friend or

guardian ad litem because he was a minor. The circuit

judge remarked, “I don’t know who to suggest to

appoint. I don’t know anybody that does this sort of

thing. We’ll ﬁnd you somebody.” Woods happened to be

present in the courtroom for an unrelated matter. The

circuit judge apparently knew Woods and asked him

whether he would be willing to serve as Hand’s guard-

ian ad litem. Woods agreed. The court entered an order

appointing Woods as guardian ad litem under MCR

2.201(E)(1)(c). Woods entered his appearance as

“Guardian Ad Litem and attorney[]” for Hand. Woods

then ﬁled answers to plaintiff’s ﬁrst and second

amended complaints on behalf of Hand.

Meanwhile, plaintiff ﬁled a separate action for de-

claratory relief. In this separate action, plaintiff sought

a declaration that Boyle’s provider of homeowner’s

insurance, Citizens Insurance Company (Citizens),

was obligated to defend Boyle and indemnify her for

any liability that she might incur as a result of plain-

tiff’s claims. Citizens moved for summary disposition.

Woods appeared in the declaratory-judgment action as

guardian ad litem for Hand, siding with plaintiff and

arguing for insurance coverage. Woods concurred in

plaintiff’s opposition to Citizen’s motion for summary

disposition. The circuit court ultimately granted sum-

mary disposition in favor of Citizens because there was

a sexual-molestation exclusion in Boyle’s insurance

policy, and this Court afﬁrmed. Doe v Citizens Ins Co of

America, 287 Mich App 585, 586-588; 792 NW2d 80

(2010). Boyle subsequently ﬁled for bankruptcy, result-

Michigan, unpublished opinion per curiam of the Court of Appeals,

issued December 8, 2009 (Docket No. 285274).

2015] D

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337

ing in an automatic stay of this action until Boyle’s

discharge from bankruptcy in December 2009.

On July 23, 2010, after several months with no

additional action by plaintiff’s attorneys, Woods ﬁled

a motion for fees and costs. Relying on MCR 3.916(D),

Woods asserted that he was entitled to recover his

expenses and costs, including attorney fees, from

DHS in the amount of $20,720.79. Woods attached

detailed billing statements to his motion. DHS op-

posed the motion, arguing that MCR 3.916(D) applied

only in juvenile-delinquency and child-protective pro-

ceedings, and not in general tort litigation such as the

instant case. DHS contended that the superintendent

of the Michigan Children’s Institute (MCI)—and not

Woods—served as Hand’s guardian because Hand was

a ward of the state. Alternatively, DHS argued that it

could not be held responsible for paying Woods’s fees

because (1) it was dismissed from the lawsuit more

than two years earlier, (2) it never received notice of

Woods’s appointment as guardian ad litem, (3) Woods

was not appointed as Hand’s attorney, but merely as

Hand’s guardian ad litem, and (4) Woods waited too

long to ﬁle his motion for fees.

In reply, Woods pointed to the language of MCR

2.201(E)(1)(c), which provides, in part, that “[i]f the

minor or incompetent person does not have a conser-

vator to represent the person as defendant, the action

may not proceed until the court appoints a guardian ad

litem, who is not responsible for the costs of the action

unless, by reason of personal misconduct, he or she is

speciﬁcally charged costs by the court.” (Emphasis

added.) Woods asserted that this language entitled

him, as Hand’s guardian ad litem, to recover his costs

and expenses. According to Woods, it was disingenuous

for DHS to argue that it never received notice of his

338 312 M

ICH

333 [Sept

appointment because DHS was present at the time and

had actual knowledge of his appointment as guardian

ad litem. Woods also pointed out that, because no one

had been nominated to serve as Hand’s guardian ad

litem within 21 days after service of process, the circuit

court was entitled to sua sponte appoint a guardian ad

litem of its own choice, no nomination was necessary,

and the parties were not entitled to advance notice.

MCR 2.201(E)(2)(a)(iii).

Woods acknowledged that the Superintendent of

MCI serves as “guardian” for wards of the state under

MCL 400.203(1). But he argued that the term “guard-

ian” in MCL 400.203(1) and MCL 712A.18 is separate

and distinct from the term “guardian ad litem” in MCR

2.201(E). As for DHS’s contention that Woods’s motion

was untimely, Woods argued that there was no court

rule or statute limiting the amount of time in which he

was required to request his fees and costs. Woods

requested an additional $7,246.12 in attorney fees for

prosecuting the motion for fees and costs.

On January 5, 2011, the circuit court issued a

written opinion and order denying Woods’s motion

seeking fees and costs from DHS. Instead, the circuit

court ruled that plaintiff was responsible for paying

Woods’s costs as an element of taxable costs, but

plaintiff was not responsible for Woods’s legal fees.

Woods moved for reconsideration, arguing that he was

entitled to attorney fees because his appointment as

guardian ad litem had at all times contemplated the

rendering of associated legal services for Hand. Woods

also argued that if he could not recover his costs and

expenses from DHS or plaintiff, then he would be left

without a remedy. He argued that it would be contrary

to Michigan law to require a court-appointed guardian

ad litem to serve without compensation. Plaintiff’s

2015] D

OE V

OYLE

339

attorneys separately moved for reconsideration of the

January 5, 2011 order.

On March 22, 2011, the circuit court denied the

motions, reiterating that DHS was not responsible for

the payment of Woods’s fees and observing that neither

Woods nor plaintiff’s attorneys had shown any pal-

pable error warranting reconsideration. About a week

later, the circuit court stated that it had erroneously

denied the motion of plaintiff’s attorneys for reconsid-

eration without affording them an opportunity to be

heard. The court set aside its order of March 22, 2011,

and scheduled a hearing on the matter. Woods ﬁled a

motion requesting that he be discharged from any

further duties as guardian ad litem and released from

the case. He submitted a proposed order to this effect

under the 7-day rule of MCR 2.602(B)(3). Plaintiff

objected to the proposed order, arguing that Woods

should be required to continue as Hand’s guardian ad

litem. Following a hearing, the circuit court granted

the motion of plaintiff’s attorneys for reconsideration of

the March 22, 2011 order. On May 27, 2011, the court

issued an order to this effect, providing that Woods was

not entitled to any compensation whatsoever, and

clarifying that Woods’s motion for fees and costs was

being denied in full.

On May 18, 2011, plaintiff moved for summary

disposition with respect to her remaining intentional

tort claims against Hand. Woods continued as Hand’s

guardian ad litem, given that he was not relieved of his

duties by court order, and ﬁled a response to plaintiff’s

motion for summary disposition on June 13, 2011. On

June 24, 2011, the parties and court signed a stipu-

lated order discharging Woods from the case and

releasing him from any further obligations as Hand’s

guardian ad litem since Hand had reached the age of

340 312 M

ICH

333 [Sept

majority. On July 19, 2011, the circuit court entered a

consent judgment against Hand in the amount of

$1,000,000. Hand stipulated to the entry of the judg-

ment. Then, on July 22, 2011, the court curiously

entered an order dismissing plaintiff’s claims against

Hand with prejudice and without costs to either party.

On July 27, 2011, Woods entered an appearance as

the former guardian ad litem for Hand. On August 12,

2011, Woods ﬁled a claim of appeal in this Court,

challenging the circuit court’s denial of his request for

fees and costs. Plaintiff moved to dismiss Woods’s

claim of appeal, arguing that the circuit court’s order of

July 22, 2011, was not a ﬁnal order appealable by right.

On November 2, 2011, this Court dismissed Woods’s

claim of appeal for lack of jurisdiction. Doe v Boyle,

unpublished order of the Court of Appeals, entered

November 2, 2011 (Docket No. 305627). This Court

noted that, assuming the July 19, 2011 order was the

ﬁnal order, Woods had not appealed it within 21 days

as required by MCR 7.204(A)(1)(a). This Court denied

Woods’s motion for reconsideration on December 21,

2011. Doe v Boyle, unpublished order of the Court of

Appeals, entered December 21, 2011 (Docket No.

305627).

In January 2012, Boyle ﬁled a motion for summary

disposition under MCR 2.116(C)(7), arguing that plain-

tiff’s claims against her should be dismissed because

they were barred by her bankruptcy discharge. Plain-

tiff argued that the motion was unnecessary because

her claims against Boyle had already been administra-

tively dismissed as a result of the bankruptcy proceed-

ings. Plaintiff also argued that her attorneys had not

received timely notice of Boyle’s motion. Woods ﬁled a

brief, noting that plaintiff continued to maintain that

Boyle was a party to the litigation even after the

2015] D

OE V

OYLE

341

bankruptcy discharge. Woods argued that plaintiff

should be estopped from making the new argument

that her claims against Boyle had already been ad-

ministratively dismissed. Woods also ﬁled his own

motion on March 26, 2012, requesting that the circuit

court enter a ﬁnal order closing the case. At oral

argument, on April 4, 2012, the circuit court stated

that Boyle had already been dismissed from the case

at the time of her discharge from bankruptcy and

remarked that Woods was seeking the entry of a ﬁnal

order so that he could “have a little crack at the Court

of Appeals.” On May 22, 2012, the court denied

Woods’s motion for the entry of a ﬁnal order closing

the case.

On June 12, 2012, Woods ﬁled an application for

leave to appeal in this Court. This Court granted the

application on March 28, 2013. Doe v Boyle, unpub-

lished order of the Court of Appeals, entered March 28,

2013 (Docket No. 310725). After plenary review, this

Court reversed the circuit court’s denial of Woods’s

motion for the entry of a ﬁnal order closing the case.

Doe v Boyle, unpublished opinion per curiam of the

Court of Appeals, issued December 10, 2013 (Docket

No. 310725). This Court ruled that although Boyle’s

discharge from bankruptcy had rendered unenforce-

able any attempt to collect from her, it had not actually

extinguished the pending state-court action. Id. at 4.

This Court continued, “The matter against Boyle hav-

ing not been adjudicated through a written order of the

trial court, the trial court erred by ﬁnding that the

instant case was closed and in refusing to enter a

written order dismissing defendant Boyle from the

case.” Id. This Court remanded the matter to the

circuit court for entry of a ﬁnal order closing the case.

Id. at 5. On remand, the parties stipulated entry of a

ﬁnal judgment dismissing all remaining claims and

342 312 M

ICH

333 [Sept

closing the case. Woods timely ﬁled his claim of appeal

in this Court on January 29, 2014.

II. STANDARD OF REVIEW

We review a trial court’s decision regarding whether

to grant an award of attorney fees and costs for an

abuse of discretion. See Smith v Khouri, 481 Mich 519,

526; 751 NW2d 472 (2008) (opinion by T

AYLOR

, C.J.).

“An abuse of discretion occurs when the trial court’s

decision is outside the range of reasonable and prin-

cipled outcomes.” Id. We review de novo the proper

application and interpretation of a court rule. Rental

Props Owners Ass’n of Kent Co v Kent Co Treasurer,

308 Mich App 498, 532; 866 NW2d 817 (2014). Simi-

larly, we review de novo issues regarding the proper

interpretation and application of a statute. Detroit Pub

Sch v Conn, 308 Mich App 234, 246; 863 NW2d 373

(2014).

III. GUARDIAN AD LITEM COSTS AND EXPENSES

Woods argues that he was entitled to compensation

for

the services he rendered as guardian ad litem and

that the circuit court abused its discretion when it

determined that DHS was not required to pay for his

costs and expenses. We agree.

Woods acted as Hand’s guardian ad litem in the

circuit court. Black’s Law Dictionary (10th ed) deﬁnes

the term “guardian ad litem” as a “guardian, [usually]

a lawyer, appointed by the court to appear in a lawsuit

on behalf of an incompetent or minor party.” 3 Michi-

gan Pleading & Practice (2d ed, 2015 revised volume),

Woods identiﬁed plaintiff’s former attorneys, Christopher J. Keane

and Robert S. Harrison, as appellees in addition to plaintiff and the

government defendants.

2015] D

OE V

OYLE

343

§ 28:1, p 4, deﬁnes the term “guardian ad litem” as “a

guardian appointed to represent a ward in legal pro-

ceedings in which the ward is a party defendant.”

Woods was appointed guardian ad litem by the court

pursuant to MCR 2.201(E)(2)(a), which provides:

Appointment of a next friend or guardian ad litem shall

made by the court as follows:

(i) if the party is a minor 14 years of age or older, on the

minor’s nomination, accompanied by a written consent of

the person to be appointed;

(ii) if the party is a minor under 14 years of age or an

incompetent person, on the nomination of the party’s next

of kin or of another relative or friend the court deems

suitable, accompanied by a written consent of the person

to be appointed; or

(iii) if a nomination is not made or approved within 21

days after service of process, on motion of the court or of a

party.

Because Woods was appointed to act as Hand’s

guardian

ad litem, he was not responsible for the costs

of the lawsuit. MCL 600.2415 provides:

Any person who brings an action as next of friend for an

infant,

or a person who is insane or otherwise mentally

incompetent, shall be responsible for the costs of the suit.

However, no person who defends a suit as guardian ad

litem of an infant or otherwise incompetent person shall be

responsible for the costs of the suit unless speciﬁcally

charged by the court for some personal misconduct in the

case. [Emphasis added.]

Similarly, MCR 2.201(E)(1)(c) provides:

If the minor or incompetent person does not have a

conservator

to represent the person as defendant, the

action may not proceed until the court appoints a guard-

ian ad litem, who is not responsible for the costs of the

action unless, by reason of personal misconduct, he or she

344 312

ICH

333 [Sept

is speciﬁcally charged costs by the court. It is unnecessary

to appoint a representative for a minor accused of a civil

infraction. [Emphasis added.]

It is clear that Woods was not responsible for the costs

of the case because MCL 600.2415 and MCR

2.201(E)(1)(c) state that a guardian ad litem is not

responsible for the costs of the action. As further

support for the fact that a guardian ad litem is not

responsible for his or her costs, MCR 2.201(E)(3)(a)

adds:

Except for costs and expenses awarded to the next friend

guardian ad litem or the represented party, a person

appointed under this subrule may not receive money or

property belonging to the minor or incompetent party or

awarded to that party in the action, unless he or she gives

security as the court directs. [Emphasis added.]

MCR 2.201(E)(3)(a) contemplates that a guardian ad

litem

will receive an award for his or her costs and

expenses, which further indicates that Woods was not

responsible for his own costs and expenses. Woods,

therefore, was entitled to receive his costs and ex-

penses from another party. See MCL 600.2415; MCR

2.201(E)(1)(c) and (3)(a).

In addition, Woods was entitled to receive attorney

fees as part of the costs and expenses he incurred as

guardian ad litem. The phrase “costs and expenses” is

not deﬁned in MCR 2.201(E)(3)(a). We give an unde-

ﬁned term its ordinary meaning and consult a diction-

ary to determine the ordinary meaning, if necessary.

See Haynes v Neshewat, 477 Mich 29, 36; 729 NW2d

488 (2007). The term “cost” is deﬁned in Black’s Law

Dictionary (10th ed) as “[t]he amount paid or charged

for something; price or expenditure.” Black’s Law Dic-

tionary (10th ed) deﬁnes “expense” as “[a]n expendi-

ture of money, time, labor, or resources to accomplish a

2015] D

OE V

OYLE

345

result; [especially], a business expenditure chargeable

against revenue for a speciﬁc period.” The term “ex-

pense” encompasses reasonable payment for the legal

services rendered by Woods as guardian ad litem

because Woods expended time and labor in order to

provide legal services to Hand. See MCR

2.201(E)(3)(a).

Therefore, Woods is entitled to pay-

ment

for any costs that he incurred and for the legal

services he rendered as guardian ad litem. Accordingly,

the circuit court abused its discretion when it denied

Woods’s motion for fees and costs after reconsideration

of the issue.

DHS is responsible for payment of Woods’s expenses

and costs because Hand was a ward of the state of

Michigan. MCL 600.2415 and MCR 2.201(E) do not

clarify which party is responsible for payment of the

costs and expenses of a guardian ad litem.

However,

the

fact that DHS is responsible for payment of

Woods’s expenses and costs is apparent from the fact

Thus, the award of attorney fees is consistent with the “American

rule” regarding attorney fees, which provides that attorney fees are

generally not recoverable unless a statute, court rule, or the common

law provides an exception. See Silich v Rongers, 302 Mich App 137,

147-148; 840 NW2d 1 (2013).

MCR 2.201(E)(1)(b) and MCL 600.2415 provide that the person who

appears as next friend on behalf of the plaintiff is responsible for the

“costs” of the suit. However, as explained in further detail later in this

opinion, Woods did not present a bill of taxable costs after the ﬁnal

judgment in the case. See MCL 600.2405(6) (providing that attorney

fees may be taxed as costs when authorized); MCL 600.2415; MCR

2.201(E)(1)(b); MCR 2.625(F). Instead, Woods ﬁled a motion for fees and

costs before either party prevailed in the case. Additionally, the court

rule does not specify that a next friend is responsible for the services of

a guardian ad litem for the opposing party. Furthermore, a next friend

is not responsible for all the costs and expenses in the action given that

MCR 2.201(E)(3)(a) contemplates that costs and expenses may be

awarded to a next friend. Therefore, plaintiff was not liable to pay for

Woods’s services as an element of taxable costs.

346 312

ICH

333 [Sept

that DHS was accountable for Hand’s care. MCL

400.203(1) provides, in part:

A child under 17 years of age, provision for whose

support and education has been made under regulations

of the department, may be admitted to the Michigan

children’s institute by commitment to the department. All

children committed to the Michigan children’s institute

shall be considered committed to the department and

shall be subject to review by the juvenile division of the

probate court under . . . MCL 712A.1 to 712A.32. The

superintendent of the institute shall represent the state as

guardian of each child committed beginning with the day

the child is admitted and continuing until the child is 19,

unless the superintendent or the department discharges the

child sooner as provided in [MCL 400.208 or MCL

400.209] or if the child is at least 18 years of age but less

than 21 years of age and is participating in extended

foster care services as described in section 11 of the young

adult voluntary foster care act. [Emphasis added.]

MCL 400.203(2) adds:

The superintendent of the institute has the power to

make

decisions on behalf of a child committed to the

institute. The attorney general or his or her representa-

tive shall represent the Michigan children’s institute

superintendent in any court proceeding in which the

superintendent considers such representation necessary

to carry out his or her duties under this act.

MCL 400.203(2) clariﬁes that the superintendent is

responsible

for the decision-making on behalf of the

child from the time the child is admitted until the child

turns 19 years old. Therefore, because the department

was responsible for making decisions on behalf of

Hand, DHS is the proper party for bearing the ex-

penses related to Hand’s defense. The fact that the

state of Michigan, DHS, and DHS of Wexford-

Missaukee Counties were dismissed from the case does

not negate the fact that Hand was a ward of the state,

2015] D

OE V

OYLE

347

and DHS remained responsible for Hand’s care. There-

fore, DHS is also responsible for payment of Woods’s

costs and expenses.

A similar outcome is required in child-protective and

delinquency proceedings. MCR 3.916(D) provides, “The

court may assess the cost of providing a guardian ad

litem against the party or a person responsible for the

support of the party, and may enforce the order of

reimbursement as provided by law.” (Emphasis added.)

MCR 3.916(D) applies to delinquency and child-

protective proceedings within the family division of the

circuit court. MCR 3.901(B)(1); MCR 3.903(A)(4). Ac-

cordingly, in the context of a delinquency or child-

protective proceeding, it is clear that the family divi-

sion of the circuit court may order that the person

responsible for the support of the party pay the costs of

providing a guardian ad litem. This case presents an

analogous situation because a guardian ad litem was

appointed for a ward of the state. Although Woods was

appointed in a civil case, rather than in a child-

protective or delinquency proceeding, the situation is

comparable given that Hand was a ward of the state

and required a guardian ad litem in order for the case

to proceed. Thus, a similar outcome is warranted. In

this case, the person responsible for Hand was the

state. See MCL 400.203. Therefore, we conclude that

DHS is the responsible party for payment of Woods’s

fees and expenses.

Finally, the fact that the superintendent was Hand’s

guardian does not negate the fact that Woods acted as

guardian ad litem. Woods argues that the term “guard-

ian” in MCL 400.203(1) and MCL 712A.18 merely

signiﬁed the responsibility of the superintendent to

provide for the needs of the wards entrusted to the

superintendent’s care. Woods points out, in contrast,

348 312 M

ICH

333 [Sept

that a “guardian ad litem” appointed under MCR

2.201(E)(1)(c) is charged with the task of representing

a defendant minor child in a lawsuit. In short, Woods

argues that the terms “guardian” and “guardian ad

litem” have different meanings. See Sheahan v Wayne

Circuit Judge, 42 Mich 69, 70; 3 NW 259 (1879)

(describing the difference between a general guardian,

who does not represent a minor for purposes of litiga-

tion, and a guardian ad litem, who represents the

minor in litigation); 3 Michigan Pleading & Practice

(2d ed, 2015 revised volume), § 28:4, pp 7-8 (describing

the difference between a general guardian and a

guardian ad litem). We agree that the two terms have

different meanings and that Woods is entitled to com-

pensation for the services he rendered while represent-

ing Hand in the lawsuit in spite of the fact that the

state had control over Hand’s care. For the reasons

discussed, the circuit court abused its discretion when

it determined that Woods was not entitled to payment

and that DHS was not responsible for payment.

IV. TIMING OF REQUEST

The circuit court abused its discretion when it con-

cluded

in its opinion that Woods took too long to ﬁle his

motion for fees and costs. Woods ﬁled his motion six

months after this Court issued an opinion regarding

the liability of Boyle’s insurer. In arguing that Woods

was not entitled to costs, DHS relied on MCR

2.625(F)(2), which provides a 28-day time limit for

seeking taxable costs. MCR 2.625(F)(2), however, ap-

plies only when there is a ﬁnal judgment in the case.

See MCR 2.625(F)(1) and (2) (providing that a trial

court may tax costs when it signs the judgment, or the

party entitled to taxable costs must seek the taxable

costs within 28 days after the judgment was signed or

2015] D

OE V

OYLE

349

entry of an order denying postjudgment relief). Woods,

though, requested payment for his services under MCR

3.916(D) before entry of the ﬁnal judgment in the case.

Woods does not argue that the circuit court entered a

ﬁnal order before he sought his fees and costs. Instead,

Woods argues that he was entitled to fees and costs

because he acted as guardian ad litem for Hand and he

ﬁled his motion before entry of the ﬁnal judgment.

Therefore, the time limit outlined in MCR 2.625(F)

does not bar Woods’s request. There are no other

applicable time limits on a guardian ad litem’s request

for attorney fees and costs. Therefore, the fact that

Woods ﬁled his motion for fees and costs approximately

six months after this Court determined that an exclu-

sion in Boyle’s insurance policy precluded recovery

from Boyle’s insurer did not prohibit Woods from

requesting fees and costs.

V. NOTICE

The circuit court also abused its discretion when it

determined

that DHS must receive notice of the ap-

pointment of a guardian ad litem. The circuit court

failed to cite authority for the proposition that DHS

must be notiﬁed when a guardian ad litem is ap-

pointed. DHS’s argument that it did not have notice of

Woods’s appointment is unpersuasive in light of the

fact that Hand was a ward of the state. DHS was on

notice that a guardian ad litem would be appointed

because Hand did not have a conservator to represent

him. See MCR 2.201(E)(1)(c) (providing that a guard-

ian ad litem must be appointed if a minor does not have

a conservator). Furthermore, DHS had knowledge of

the lawsuit given that it was initially a party to the

lawsuit. Additionally, DHS had the ability to examine

the court records and ﬁles in the case, and Woods’s

350 312 M

ICH

333 [Sept

appearance as lawyer and guardian ad litem for Hand

appeared on the circuit court register of actions. See

MCR 8.119(D)(1)(c) (providing that the register of

actions is a case record); MCR 8.119(H) (providing that

case records deﬁned in MCR 8.119(D) are public re-

cords and outlining the process for access to public

records).

Plaintiff also requested a guardian ad litem

for

Hand under MCR 2.201(E)(1)(c) in its ﬁrst

amended complaint, which was served on DHS. There-

fore, the fact that the circuit court did not send a notice

to DHS when Woods was appointed as Hand’s guard-

ian ad litem does not preclude payment.

VI. CONCLUSION

DHS is responsible for payment of the costs and

attorney

fees that Woods incurred as guardian ad litem

for Hand. We reverse and remand for a determination

of the costs and expenses that Woods incurred as

guardian ad litem for Hand. We do not retain jurisdic-

tion. As the prevailing party, Woods may tax costs

pursuant to MCR 7.219.

ANSEN

, P.J., and M

ETER

and B

ECKERING

, JJ., con-

curred.

We note that, contrary to the argument of the state of Michigan,

DHS, and DHS of Wexford-Missaukee Counties, the circuit court has

jurisdiction over the issue of Woods’s fees and expenses. See MCR

2.201(E)(1) and (2)(a); Truitt v Battle Creek, 208 Mich 618, 622; 175

NW2d 578 (1920) (noting that the issue of the compensation and

expenses of a guardian ad litem are determined by the trial court).

2015] D

OE V

OYLE

351

PEOPLE v CORBIN

Docket No. 319122. Submitted May 14, 2015, at Traverse City. Decided

September 22, 2015, at 9:05 a.m.

Jeffry Lewis Corbin pleaded guilty in the Leelanau Circuit Court

to second-degree criminal sexual conduct (CSC-II) involving two

sons of one of defendant’s friends, referred to pseudonymously

as Austin and Shane. The CSC-II charge involving Austin was

dismissed because the statutory period of limitations had ex-

pired on the charge, but at defendant’s plea hearing, in addition

to pleading guilty to the CSC-II charges involving Shane,

defendant also admitted to the misconduct with Austin. The

court, Thomas G. Power, J., sentenced defendant to 9 to 15 years

of imprisonment and conducted a hearing to determine the

amount of restitution owed to Austin and Shane. The court’s

restitution order included the estimated future costs of therapy,

psychiatric care, and medication, lost wages, and the amount of

money each brother had already paid for treatment. The Court

of Appeals denied for lack of merit defendant’s delayed applica-

tion to appeal the trial court’s order of restitution. Defendant

sought leave to appeal in the Michigan Supreme Court. The

Supreme Court, in lieu of granting leave to appeal, remanded

the case to the Court of Appeals for consideration as on leave

granted. 497 Mich 886 (2014).

The Court of Appeals held:

1. The trial court erred when it awarded restitution to

Austin because the charge related to defendant’s misconduct

with Austin had been dismissed. Restitution is appropriate only

when a victim was harmed by the course of a defendant’s

conduct when that conduct gives rise to a conviction. In this

case, the CSC charge against defendant for his misconduct

involving Austin was dismissed because the statutory period of

limitations had expired. Therefore, defendant was no longer

charged with CSC involving Austin, and the trial court was

prohibited from ordering defendant to pay restitution to a victim

not harmed by conduct giving rise to a conviction. That is, a trial

352 312

ICH

352 [Sept

court may not order restitution to a victim of a defendant’s

uncharged conduct.

2. The trial court abused its discretion when it ordered

defendant to pay Shane an amount of restitution based on

estimated costs of treatment for a typical individual, not on costs

estimated on the basis of Shane’s demonstrated need for treat-

ment, the type of treatment needed, and the length of time

treatment should continue. The statutory language requires that

restitution be reasonably determined for losses reasonably ex-

pected to be incurred. The trial court ordered a restitution

amount based on research indicating the average treatment

expectations for a typical individual. The prosecution failed to

produce evidence to show that Shane himself would require

certain modes of treatment for a certain length of time for a

certain amount of money. Because the restitution amounts calcu-

lated were based on unspeciﬁed hourly fees for treatment not

tailored to Shane’s unique needs, the restitution did not satisfy

the statutory requirement that it be for losses reasonably ex-

pected to be incurred.

3. The trial court erred by ordering defendant to pay restitu-

tion for Shane’s lost wages because lost earning capacity is not

the same as income loss. The statutory language authorizes

restitution for a victim’s after-tax income loss when the income

loss is a result of the crime. In this case, the trial court adopted

Shane’s father’s assertion that Shane had been offered a job

paying $400 a week but that Shane could not accept the position

because of the legal proceedings related to this case. Even if lost

earning capacity qualiﬁed as income loss, the trial court failed to

require evidence of the after-tax amount of Shane’s income loss,

and no evidence suggested that Shane was unable to work during

the entire time the court used to calculate his income loss.

4. The Sixth Amendment does not require that a jury deter-

mine the amount of restitution a defendant should pay a victim

of his or her crime. Judicial fact-ﬁnding is permissible when a

trial court is deciding on the amount of restitution to order.

Whether restitution constitutes a criminal punishment is not

dispositive, because an order of restitution does not make more

severe the penalty a defendant receives after pleading to or

being convicted of a crime. That is, restitution is a restorative

remedy that does not increase a defendant’s sentence after

conviction.

Restitution order vacated; case remanded for further proceed-

ings.

2015] P

EOPLE V

ORBIN

353

ESTITUTION —

SYCHOLOGICAL

NJURIES —

TANDARD FOR

ALCULATING

MOUNT

ESTITUTION

Under the Crime Victim’s Rights Act, MCL 780.751 et seq., reason-

ableness is the standard by which a restitution award is to be

measured; there is no requirement that the amount of restitution

be easily ascertained or measured; rather, a restitution award

must represent losses that are reasonably determined and rea-

sonably expected to be incurred as a result of the crime, and the

losses must bear some relationship to the individual victim’s

needs and circumstances; a victim’s losses may not be measured

solely by referring to an average or typical situation involving

similar losses.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, and Joseph T. Hubbell, Pros-

ecuting Attorney, for the people.

F. Randall Karfonta and Michael H. Dettmer for

defendant.

Before: G

LEICHER

, P.J., and K. F. K

ELLY

and S

ERVITTO

JJ.

LEICHER

, P.J. The prosecution charged that defen-

dant sexually abused two young brothers. Both victims

are now adults; we refer to them pseudonymously as

Shane and Austin. Defendant pleaded guilty to the

charged conduct involving Shane. The prosecutor dis-

missed a single count involving Austin. The trial court

sentenced defendant to prison and ordered him to pay

$276,800 in restitution to Austin, and $276,985 to

Shane. Defendant challenges only the restitution or-

der.

We conclude that the restitution awards cannot

stand. Because defendant’s illegal acts involving Aus-

tin did not give rise to defendant’s convictions, Austin

is not entitled to any restitution. Shane’s restitution

award, too, must be vacated, as the evidence provided

no reasonable factual basis for substantial components

354 312 M

ICH

352 [Sept

of the total. Accordingly, we vacate most of the restitu-

tion order and remand for further proceedings.

Austin and Shane were born in 1989 and 1991,

respectively. They resided in Kansas City with their

mother and father until 1992, when their parents

separated. Their parents’ divorce ﬁnalized in 1994, and

the brothers moved with their mother to Traverse City.

Their father relocated to Belgium a year later and

remained overseas until 2000, when he returned to

Kansas City.

Defendant and his wife lived in Traverse City and

were close friends of the brothers’ mother. Shane

described defendant as a quasi-father ﬁgure. As boys,

the brothers frequently visited defendant’s home. De-

fendant repeatedly assaulted them there, and on cross-

country skiing trips in Canada, between 1995 and

2005. Shane disclosed the abuse in January 2011.

When interviewed by the police, defendant admitted to

having engaged in sexual contact with both brothers.

The felony information set forth three counts of

second-degree criminal sexual conduct (CSC-II) involv-

ing Shane, and one count involving Austin. At defen-

dant’s guilty plea hearing, the prosecutor conceded

that the statutory period of limitations had run on the

allegations concerning Austin and voluntarily dis-

missed that charge. When tendering his guilty plea,

defendant nevertheless admitted to having engaged in

criminal sexual conduct with Austin.

The trial court imposed an upward departure sen-

tence of 9 to 15 years’ imprisonment and subsequently

convened a restitution hearing. At the hearing, the

victims’ father conceded that he had been physically

separated from his sons during an approximately six-

2015] P

EOPLE V

ORBIN

355

year period, but denied that he had been meaningfully

absent from their lives. He detailed the expenditures

he attributed to their sexual abuse. The father re-

counted that he incurred “roughly $4000” in therapy

charges for both victims, and provided an “estimate” of

the costs incurred for their medications of “about a

thousand dollars.” Shane had failed his ﬁrst year of

college due to the trauma of the abuse, the father

asserted, resulting in a separate ﬁnancial loss of “[a]p-

proximately $20,000.” Both sons lost income, the fa-

ther claimed, because the pending court proceedings

rendered them unable to accept job offers at two

afﬁliated ice cream shops that would have paid each

$400 weekly. The father elucidated: “They were really

in no condition to take on a role of management in a

time consuming process we were going through at the

time with this.”

The victims described the psychological trauma

caused by the assaults and the difﬁculties they have

endured in trying to lead normal lives. Shane ex-

plained that he has been diagnosed with post-

traumatic stress disorder (PTSD), which causes ﬂash-

backs and nightmares. He agreed with the prosecutor

that the PTSD “affected” his ability to be successful in

college, and “interfered with” his ability to obtain

gainful employment. Austin, too, suffers from PTSD.

He completed only one year of college before deciding

that he was emotionally unable to continue attending

classes.

Beginning in 2011, both victims have engaged in

psychological counseling with Mark McGonigle, a li-

censed clinical social worker in Missouri. McGonigle

has an undergraduate degree in psychology from the

University of Dallas, a degree in “social welfare” from

the University of Kansas, and a master’s degree in

356 312 M

ICH

352 [Sept

“applied spirituality” from the University of San Fran-

cisco. Defendant’s counsel stipulated to McGonigle’s

qualiﬁcations to testify as an expert witness in “the

area of PTSD.” McGonigle served as the prosecution’s

sole witness regarding the victims’ need for therapy

and the projected costs of their care.

McGonigle characterized PTSD as “an anxiety dis-

order” that produces “a chronic reaction to traumatic

events that kind of creates its own syndrome of emo-

tional, mental and behavioral problems.” To qualify for

the diagnosis, an individual must “have a signiﬁcant

impairment in functioning both inner [sic] personal,

social, occupational or other important areas of func-

tioning.” In McGonigle’s view, Shane “had both major

depression that was recurrent in his life and post-

traumatic stress disorder.” McGonigle attributed the

cause of Shane’s PTSD to “the sexual abuse he experi-

enced from [defendant], and that was also a major

factor in his depression.” Austin shares with Shane the

PTSD diagnosis and its cause; McGonigle did not

diagnose Austin as suffering from major depression

“because he hasn’t shown those symptoms.”

McGonigle testiﬁed that although his contact with

Shane had been “somewhat sporadic,” they “developed

a treatment plan for treatment of PTSD . . . . I was

expecting kind of a long course of treatment with

possible referral to in-patient intensive therapy as

needed.” In a written report admitted as evidence

during the hearing, McGonigle expressed that the

brothers “will likely need therapy for a period of many

years and likely intermittently over the course of their

lives, especially as they mature into men of marital

age.” The cost of that therapy on a twice-weekly basis,

he elaborated, would depend “on the individual thera-

pist’s fee structure, [and] will likely cost approximately

2015] P

EOPLE V

ORBIN

357

$14,000-18,000 per year.” “To be secure,” he continued,

“and given their young ages, I think they should plan

to receive at least 8-10 years of such treatment.”

McGonigle explained that the “intensive inpatient

treatment” he recommended could occur at a facility

such as The Meadows in Arizona, which charges “ap-

proximately $42,000” for a stay of four to six weeks.

The brothers’ projected future “psychiatric care” and

medication costs, McGonigle predicted, would range

from $3,000 to $5,000 each year. McGonigle’s report

indicates that Shane had paid $1,785 “[t]o date” for his

therapy.

In a bench opinion, the trial court awarded both

brothers

$15,000 a year in outpatient therapy costs for

eight years, totaling $120,000 for each brother. The

trial court found that both brothers were also entitled

to the costs of inpatient admissions at The Meadows,

which the court estimated at $42,000 each. The court

adopted McGonigle’s cost estimates for medication and

psychiatric services of $40,000 for each brother, and

further granted each brother $31,200 in lost wages,

yielding a total of $275,200 each. The court then added

to that sum the amounts already paid for treatment:

$1,600 for Austin, and $1,785 for Shane.

Defendant sought delayed leave to appeal the resti-

tution

order. This Court denied the application “for

McGonigle’s treatment records, admitted as an exhibit at the resti-

tution hearing, reﬂect 12 visits with Shane in 2011, and none in 2012.

McGonigle testiﬁed that he had approximately four sessions with Shane

in 2013 that he had not yet documented. Assuming that he had not

billed for the 2013 sessions, we calculate that McGonigle charged

$148.75 for each session. At a similar rate, $15,000 a year would yield

approximately 100 therapy visits.

The trial court’s written restitution order states that Shane was

awarded $277,985 in restitution. That amount represents a miscalcula-

tion of the amount of restitution the court ordered from the bench.

358 312

ICH

352 [Sept

lack of merit in the grounds presented.” People v

Corbin, unpublished order of the Court of Appeals,

entered April 25, 2014 (Docket No. 319122). Defendant

then sought leave to appeal in the Supreme Court, and

moved to add issues for that Court’s consideration. The

Supreme Court granted the motion to add issues and,

in lieu of granting leave to appeal, remanded the case

to this Court for consideration as on leave granted.

People v Corbin, 497 Mich 886 (2014).

The William Van Regenmorter Crime Victim’s

Rights

Act (CVRA), MCL 780.751 et seq., mandates

that a sentencing court order convicted defendants to

“make full restitution to any victim of the defendant’s

course of conduct that gives rise to the conviction[.]”

MCL 780.766(2). A “victim” is “an individual who

suffers direct or threatened physical, ﬁnancial, or

emotional harm as a result of the commission of a

crime.” MCL 780.766(1). Under the CVRA, restitution

is available to compensate victims for losses associated

with either physical or psychological injury. An order of

restitution may compel a defendant to:

(a) Pay an amount equal to the reasonably determined

cost

of medical and related professional services and

devices actually incurred and reasonably expected to be

incurred relating to physical and psychological care.

* * *

after-tax income loss suffered by the victim as a result of

the crime. [MCL 780.766(4).]

Michigan’s general restitution statute, MCL 769.1a,

deﬁnes

“victim” in essentially the same fashion, clari-

2015] P

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359

fying that the term reaches individuals harmed “as a

result of the commission of a felony, misdemeanor, or

ordinance violation.” MCL 769.1a(1)(b). Like the

CVRA, the general restitution statute demands that a

sentencing court order restitution when appropriate.

MCL 769.1a(2). The language differs, however, regard-

ing restitution for the costs of medical or psychological

care:

(4) If a felony, misdemeanor, or ordinance violation

results

in physical or psychological injury to a victim, the

order of restitution may require that the defendant do 1 or

more of the following, as applicable:

(a) Pay an amount equal to the cost of actual medical

and related professional services and devices relating to

physical and psychological care. [MCL 769.1a.]

Unlike the CVRA, the general restitution statute per-

mits

restitution only for “actual medical and related

professional services.” MCL 769.1a(4)(a) (emphasis

added). Both statutes allow a victim to recover “after-

tax income loss suffered . . . as a result of” the “crime,”

MCL 780.766(4)(c), or the “felony,” MCL 769.1a(4)(c).

The CVRA provides that the prosecution has the

burden of proving by a preponderance of the evidence

the amount of the victim’s loss. MCL 780.767(4). “MCL

780.766(2) requires a direct, causal relationship be-

tween the conduct underlying the convicted offense

and the amount of restitution to be awarded.” People v

McKinley, 496 Mich 410, 421; 852 NW2d 770 (2014).

This Court has held that court-ordered restitution is

not a substitute for civil damages. People v Tyler, 188

Mich App 83, 89; 468 NW2d 537 (1991). Nor is resti-

tution properly awarded for losses paid by insurance.

People v Dimoski, 286 Mich App 474, 480-481; 780

NW2d 896 (2009).

360 312 M

ICH

352 [Sept

“The proper application of . . . statutes authorizing

the assessment of restitution at sentencing is a matter

of statutory interpretation, which we review de novo.”

McKinley, 496 Mich at 414-415. We review a court’s

calculation of a restitution amount for an abuse of

discretion, People v Gubachy, 272 Mich App 706, 708;

728 NW2d 891 (2006), and its factual ﬁndings for clear

error, People v Fawaz, 299 Mich App 55, 64; 829 NW2d

259 (2012). A trial court may abuse its discretion by

blurring the distinction between a civil remedy for

damages and the criminal penalty of restitution.

People v Orweller, 197 Mich App 136, 140; 494 NW2d

753 (1992).

III

We ﬁrst address a question raised in defendant’s

“motion

to add issues,” which the Supreme Court

granted in the order remanding the case to this Court

for consideration as on leave granted. In that motion,

defendant adopted the issues presented by the defen-

dant in McKinley, 496 Mich at 414, which included

that Michigan’s statutory restitution scheme cannot

withstand constitutional scrutiny because it permits

restitution based on uncharged conduct never submit-

ted to a jury. In McKinley, the Supreme Court declined

to reach this constitutional question, invoking the

“venerable rule of constitutional avoidance . . . .” See

id. at 415-417. Rather, the Court focused on the plain

language of MCL 780.766(2), which provides that “full

restitution” may be authorized only for “any victim of

the defendant’s course of conduct that gives rise to the

conviction . . . .” Id. at 419 (quotation marks omitted;

omission in original). By consulting a dictionary, the

Supreme Court determined that the phrase “gives rise

to” means “to produce or cause.” Id. The Court con-

2015] P

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361

cluded: “Only crimes for which a defendant is charged

‘cause’ or ‘give rise to’ the conviction. Thus, the statute

ties ‘the defendant’s course of conduct’ to the convicted

offenses and requires a causal link between them.” Id.

In reaching this result, the Court overruled its prior

decision in People v Gahan, 456 Mich 264; 571 NW2d

503 (1997), which had governed the McKinley trial

court’s restitution decision. McKinley, 496 Mich at 413,

419.

Given the Supreme Court’s order that we consider

the issues raised in defendant’s motion, we must

address whether the trial court appropriately awarded

restitution to Austin. Defendant was not convicted of

CSC involving Austin. Accordingly, McKinley dictates

that defendant’s abuse of Austin “may not be relied on

as a basis for assessing restitution[.]” Id. at 419.

Because the trial court lacked any authority to award

restitution for defendant’s uncharged conduct, we va-

cate the entirety of Austin’s restitution award. In the

remainder of this opinion, we therefore need only

address the restitution awarded to Shane.

Defendant contends that the restitution amounts

allocated

for Shane’s future medical and psychological

treatment and lost wages were not authorized by MCL

780.766. The evidence supporting these awards, defen-

dant asserts, was entirely speculative and did not

represent “easily ascertainable” or “measurable”

losses.

Throughout the last four decades, this Court has

repeatedly declared that restitution may encompass

only those losses that are “easily ascertained and are a

direct result of a defendant’s criminal conduct.” Gu-

bachy, 272 Mich App at 708; see also Tyler, 188 Mich

362 312 M

ICH

352 [Sept

App at 89; People v Pettit, 88 Mich App 203, 207 n 2;

276 NW2d 878 (1979). This oft-invoked rule was ﬁrst

established in People v Heil, 79 Mich App 739, 742,

748-749; 262 NW2d 895 (1977), which involved the

propriety of a restitution order imposed as a condition

of the defendant’s probation. In Heil, a jury convicted

the defendant of manslaughter arising from a car

accident. Id. at 740-741. The trial court imposed a

probation sentence conditioned on “payment within 90

days of $3,000 to the victim’s wife, and additionally,

payment of one half of defendant’s after-tax income

throughout the probation period.” Id. at 741. When the

defendant failed to make the payments, the trial court

revoked his probation. Id.

On appeal, the defendant argued that the damages

encompassed by the restitution award “ha[d] never

been measured” and that the record lacked a factual

basis for the computation of the sum. Id. at 748. This

Court agreed, characterizing the “reparational

amounts ordered paid” as “essentially arbitrary.” Id.

Moreover, the Court reasoned:

The probation statute does not create a substitute for

action for civil damages. Criminal and civil liability are

not synonymous. A criminal conviction does not necessar-

ily establish the existence of civil liability. Civil liability

need not be established as a prerequisite to the require-

ment of restitution as a probation condition; such restitu-

tion for personal injury, therefore, generally should be

more limited in scope than civil damages. In the instant

case we believe that restitution should encompass only

those losses which are easily ascertained and measured,

and which are a direct result of the defendant’s criminal

acts. [Id. at 748-749.]

Because the record failed to elucidate the “purpose of

the

payments” and “the manner in which they were

determined,” this Court reversed the order revoking

2015] P

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363

the defendant’s probation. Id. at 749. Post-Heil, this

Court has frequently echoed that restitution awards

must be rooted in damages that are “easily ascertained

and measured, and which are a direct result of the

defendant’s criminal acts.”

We discern no rational basis for continuing to em-

brace Heil’s “easily ascertained and measured” formu-

lation, as the Heil Court operated in an entirely

different (and no longer pertinent) statutory milieu.

The probation statute then in effect, MCL 771.3, per-

mitted the sentencing court to “ ‘impose such other

lawful conditions of probation, including restitution in

whole or in part to the person or persons injured or

defrauded, as the circumstances of the case may re-

quire or warrant, or as in its judgment may be meet

and proper.’ ” Heil, 79 Mich App at 742, quoting MCL

771.3. In Heil, the Court constructed a policy-driven

limitation on the breadth of restitution orders imposed

as conditions of probation. Here, however, we confront

speciﬁc statutory language that displaces any need for

policy analysis.

Enacted in 1985, the CVRA incorporates several

highly speciﬁc provisions addressing restitution. Its

central, “extensive” restitution section in the CVRA’s

felony article, MCL 780.766, permits recovery of “the

costs of physical and occupational therapy, as well as

the cost of psychological care for the victim and the

victim’s family, which at the time was not an ordinary

part of restitution.” Van Regenmorter, Crime Victims’

Rights—A Legislative Perspective, 17 Pepperdine L

Rev 59, 67 (1989). The statute’s current version autho-

rizes sentencing courts to order payment of “an amount

equal to the reasonably determined cost of medical and

related professional services and devices actually in-

curred and reasonably expected to be incurred relating

to physical and psychological care.” MCL 780.766(4)(a).

364 312 M

ICH

352 [Sept

Thus, the plain language of the CVRA instructs

sentencing courts that the standard to be applied when

calculating a restitution amount is simply one of rea-

sonableness. “Reasonably determined” future losses

(including the cost of future medical and psychological

care) are subject to restitution, provided that the court

ﬁnds that such losses are “reasonably expected to be

incurred.” This language does not suggest the need for

absolute precision, mathematical certainty, or a crystal

ball. On the other hand, speculative or conjectural

losses are not “reasonably expected to be incurred.”

Where the evidence provides a reasonably certain

factual foundation for a restitution amount, the statu-

tory standard is met.

The general restitution statute, MCL 769.1a, was

also

enacted in 1985. As we have noted, it sets forth a

different standard for recovery of the costs of psycho-

logical care. Under MCL 769.1a(4)(a), an order of

restitution may require a defendant to “[p]ay an

amount equal to the cost of actual medical and related

professional services . . . relating to . . . psychological

care.” (Emphasis added.) Our Supreme Court has

deﬁned the word “actual” as “existing in act, fact, or

reality; real.” Omdahl v West Iron Co Bd of Ed, 478

Mich 423, 428; 733 NW2d 380 (2007) (quotation marks

and citations omitted).

Although tort law principles are not necessarily controlling in the

interpretation and application of the CVRA, we ﬁnd them instructive.

“In Michigan, in order to recover damages on the basis of future

consequences, it is necessary for a plaintiff to demonstrate with ‘rea-

sonable certainty’ that the future consequences will occur.” Larson v

Johns-Manville Sales Corp, 427 Mich 301, 317; 399 NW2d 1 (1986),

citing Prince v Lott, 369 Mich 606, 609; 120 NW2d 780 (1963). See also

King v Neller, 228 Mich 15, 22; 199 NW 674 (1924) (“[O]nly such future

damages can be recovered as the evidence makes reasonably certain will

necessarily result from the injury sustained . . . .”).

2015] P

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365

The trial court properly awarded restitution for the

costs of the “actual” professional services rendered to

Shane in the amount of $1,785. The more difﬁcult

question is whether the CVRA authorizes the award

ordered by the trial court for Shane’s future psycho-

logical care expenses. While future (not yet incurred)

psychological expenses indisputably fall within the

ambit of MCL 780.766(4)(a), the prosecution must

demonstrate by an evidentiary preponderance that the

claimed expenses are “reasonably expected to be in-

curred.” Here, we ﬁnd the requisite proof sorely lack-

ing.

In his direct testimony, McGonigle hedged as to the

speciﬁcs of the therapy he proposed: “I was expecting

kind of a long course of treatment with possible refer-

ral to in-patient intensive therapy as needed.” He was

even less certain regarding the amount of money

needed to address Shane’s future psychological

therapy needs. McGonigle admitted that the numbers

he provided the court were conjectural:

[Y]ou say they both likely have a long way to go with

various modes of therapy before they are capable of

following through with their goals. When you say they are

both likely, you can’t provide opinions as to what they need,

and in terms of actually following through with their goals

though?

A. Yeah.

Q. That’s correct?

A. And, I would like to comment on that if I could?

Q. Absolutely.

A. I’m actually prohibited in my practice from giving

people any solid ﬁgures about how much treatment it will

take to get over their problem. And, treatment is very - -

it’s really hard to get an exact amount as a prescription.

Q. I’m sorry?

366 312

ICH

352 [Sept

A. What I think I can do is look at, and that applies to

an individual, what you can do is there is research that

indicates average lengths of time that it takes to work out

certain severity of problems and how much therapy is

needed and that’s what I relied on for my report.

Q. And, that goes to your next sentence, the fourth

paragraph, is that what you’re basically saying? Well,

under the circumstances it’s never proper to predict the

exact amount of therapy needed for any condition?

A. Yeah.

Q. And, so, you don’t know what needs to be reasonably

expected to be incurred, in terms of dollars?

A. Well, not in the actual amount, but I think it’s

reasonable to say there’s an average and this is what you

would want available for someone facing this particular

kind of problem, you would want to shoot in the ballpark

and that’s what you could expect with the average.

Q. In your next page of that you indicate in a paragraph

it’s likely these boys may need psychiatric care. But, do I

take it you have not referred them to any psychiatrist?

A. No, I did not. I think partly because they wanted to

opt for a more therapeutic path, they weren’t really open

for that notion. I think as time evolves and as they mature

and grow that could change. [Emphasis added.]

On redirect examination, the prosecuting attorney

read

the relevant statutory language aloud, and in-

quired, “is it your opinion that these amounts you

quoted are reasonably expected to be incurred as a

result of this crime in the future?” McGonigle an-

swered afﬁrmatively.

The trial court acknowledged that McGonigle had

provided only general, one-size-ﬁts-all numbers, but

resolved the inherent uncertainties of McGonigle’s

calculations by ﬁxing on ﬁgures below or equal to

McGonigle’s approximations:

2015] P

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367

His Exhibit 3 recommends ongoing out-patient counseling

treatment, that they should be seeing a counselor twice

per week and he estimates I think it was 14 to 18,000 a

year. We’ll use 15,000 per year, he recommends 8 to 10

years, we’ll go with 8 years then. And, that at, let’s see

here I said 15,000 a year times 8 years is $120,000, that

would be for each of them. We’ll deal with them separately,

$120,000. Also he recommended 2 long-term treatment

admissions to an in-patient program and he’s got one

that’s mentioned here, but I don’t think he says that

speciﬁcally has to be the one, but that’s an idea of what

kind of cost it would be, and that would be 42,000

approximately per admission, that’s described in Exhibit

McGonigle’s inability to provide the court with cost

ﬁgures

speciﬁc to Shane renders the court’s estimates

fatally uncertain. An informed guess as to a victim’s

future psychological therapy costs does not equate with

an amount “reasonably expected to be incurred.” While

we recognize that an element of uncertainty always

lurks in the background when a fact-ﬁnder predicts

future damages, see Hannay v Dep’t of Transp, 497

Mich 45, 86-88; 860 NW2d 67 (2014), the evidence

presented here bore only the most tenuous connection

to Shane’s needs. McGonigle admitted that the num-

bers he supplied the court did not speciﬁcally apply to

Shane, and did not constitute “solid ﬁgures about how

much treatment” Shane would reasonably require to

heal. Instead, McGonigle relied on “average lengths of

time” regarding other, unspeciﬁed patients, found in

“research” he failed to identify. This attenuated evi-

dence did not sufﬁce to demonstrate the loss that was

“reasonably expected to be incurred,” and it did not

distinguish Shane’s loss from the loss incurred by an

average PTSD patient.

Moreover, McGonigle did not provide the court with

sufﬁcient grounds for a reasonably accurate restitution

368 312 M

ICH

352 [Sept

award predicated on the “direct” harm Shane sus-

tained “as a result of the commission of a crime.” MCL

780.766(1). In McKinley, 496 Mich at 421, the Supreme

Court emphasized that “MCL 780.766(2) requires a

direct, causal relationship between the conduct under-

lying the convicted offense and the amount of restitu-

tion to be awarded.” As noted by our Supreme Court in

McKinley, Michigan’s restitution statute instructs a

sentencing court to “consider the amount of the loss

sustained by any victim as a result of the offense.” Id.,

quoting MCL 780.767(1) (quotation marks omitted).

The phrase “as a result of” contemplates factual cau-

sation. See People v Laidler, 491 Mich 339, 344-345;

817 NW2d 517 (2012). “The concept of factual causa-

tion is relatively straightforward. In determining

whether a defendant’s conduct is a factual cause of the

result, one must ask, ‘but for’ the defendant’s conduct,

would the result have occurred?” People v Schaefer, 473

Mich 418, 435-436; 703 NW2d 774 (2005), mod in part

on other grounds, People v Derror, 475 Mich 316; 715

NW2d 822 (2006). “Proximate cause,” too, “is a stan-

dard aspect of causation in criminal law and the law of

torts.” Paroline v United States, 572 US___, ___; 134 S

Ct 1710, 1720; 188 L Ed 2d 714 (2014). “For a defen-

dant’s conduct to be regarded as a proximate cause, the

victim’s injury must be a ‘direct and natural result’ of

the defendant’s actions.” Schaefer, 473 Mich at 436

(citations omitted). The CVRA, we conclude, permits

an award only for losses factually and proximately

caused by the defendant’s offense; nothing in the text

or structure of the statute suggests otherwise.

The record contains no evidence that defendant’s

conduct caused the speciﬁc future loss reﬂected in the

restitution awarded by the trial court. Perhaps Shane

will require precisely the amount of therapy that the

trial court awarded. On this record, however, we have

2015] P

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369

no basis for drawing a reasonable conclusion that likely

he will, as the only guidance on that score was provided

by McGonigle, who admitted that he was “actually

prohibited . . . from giving people any solid ﬁgures about

how much treatment it will take to get over their

problem.” Thus, we perceive no direct relationship be-

tween the psychological consequences of defendant’s

criminal acts toward Shane and the amount of restitu-

tion awarded. While Shane is entitled to restitution for

future psychological therapy expenses that he reason-

ably expects to incur as a direct result of defendant’s

criminal acts, “[r]estitution is not intended to provide a

windfall for crime victims but rather to ensure that

victims, to the greatest extent possible, are made whole

for their losses.” United States v Huff, 609 F3d 1240,

1249 (CA 11, 2010) (quotation marks and citation omit-

ted). McGonigle’s testimony did not inform the trial

court what it would take to make Shane whole (as

opposed to any average sexual abuse victim). His “ball-

park” estimate may have been the best he could offer as

a licensed social worker, but no evidence suggests that a

more certain estimate, predicated speciﬁcally on

Shane’s condition and likely future needs, was other-

wise impossible to procure.

Even less evidence substantiated the trial court’s

$31,200 award for Shane’s lost wages. The CVRA pro-

vides for restitution of “after-tax income loss suffered by

the victim as a result of the crime.” MCL 780.766(4)(c).

The victims’ father testiﬁed that both young men had

been offered summer positions in Traverse City paying

$400 per week (we assume pre-tax), which they had

been unable to accept due to the pending court proceed-

ings. The trial court assumed that $400 represented

“the amount they could have made in the market,” and

that they would have worked continuously throughout

the summer and for the next 78 weeks, when both

370 312 M

ICH

352 [Sept

obtained work in Kansas City. But lost earning capacity

is not the same as “income loss.”

Unfortunately, the CVRA does not provide a deﬁni-

tion of the term “income loss.” In ﬁlling in this gap, we

look to a dictionary for a deﬁnition of the relevant term.

“Income” is “[t]he return in money from one’s business,

labor, or capital invested; gains, proﬁts, salary, wages,

etc.” Black’s Law Dictionary (6th ed). Here, Shane never

had an “income” that defendant’s conduct caused him to

lose. Even assuming that Shane’s loss of the ability to

earn income at the ice cream store correlates to “income

loss,” the court made no effort to calculate after-tax

income loss, as required by the statute. Furthermore, no

evidence suggested that the brothers lacked the ability

to earn wages for a full 78 weeks.

In summary, we vacate the trial court’s order award-

ing Shane restitution for future therapy costs, future

medication expenses, future psychiatric services, and

lost wages. The sums awarded for these categories of

loss were not “reasonably determined,” and do not

correspond to amounts “reasonably expected to be

incurred” by Shane for future psychological care or

after-tax income loss. We remand for correction of the

order to reﬂect the amount paid for psychological

therapy, $1,785. Should the prosecution elect to pres-

ent additional testimony, the court may conduct a new

restitution hearing.

We now turn to the remaining issue that the Su-

preme

Court ordered added for consideration when it

remanded the case to this Court. Citing Apprendi v

New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d

435 (2000), Southern Union Co v United States, 567 US

___; 132 S Ct 2344; 183 L Ed 2d 318 (2012), and Alleyne

2015] P

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ORBIN

371

v United States, 570 US ___; 133 S Ct 2151; 186 L Ed

2d 314 (2013), defendant contends that because resti-

tution is a form of punishment, the Sixth Amendment

requires that a jury, rather than a sentencing court,

determine the amount owed. Many other courts have

considered the same argument. None have resolved

this challenge in the manner defendant urges. We

decline the opportunity to break new legal ground.

In Southern Union, 567 US at ___; 132 S Ct at

2348-2349, the United States Supreme Court held that

the amount of a criminal ﬁne imposed as part of a

defendant’s sentence must be determined by a jury.

The Supreme Court’s opinion in Apprendi dictated this

result, the Court explained, as “Apprendi’s ‘core con-

cern’ is to reserve to the jury ‘the determination of facts

that warrant punishment for a speciﬁc statutory of-

fense.’ ” Id. at ___; 132 S Ct at 2350 (citation omitted).

A criminal ﬁne and restitution are not synonymous,

however. A plethora of federal circuit courts of appeal

have held that “judicial factﬁnding to determine the

appropriate amount of restitution under a statute that

does not prescribe a maximum does not implicate a

defendant’s Sixth Amendment rights.” United States v

Bengis, 783 F3d 407, 413 (CA 2, 2015) (citing cases

from three other circuits). A few other circuits have

rejected defendant’s argument based on the conclusion

that restitution is a civil rather than a criminal pen-

alty, negating Apprendi’s relevance. United States v

Kieffer, 596 Fed Appx 653, 664 (CA 10, 2014) (citing

additional cases). Still other courts consider restitution

a criminal penalty but have nonetheless concluded

that the Sixth Amendment erects no obstacle to judi-

cial fact-ﬁnding as to the amount owed:

Restitution is, at its essence, a restorative remedy that

compensates

victims for economic losses suffered as a

372 312

ICH

352 [Sept

result of a defendant’s criminal conduct. In this sense,

even though restitution is a criminal punishment, it does

not transform a defendant’s punishment into something

more severe than that authorized by pleading to, or being

convicted of, the crime charged. Rather, restitution consti-

tutes a return to the status quo, a ﬁscal realignment

whereby a criminal’s ill-gotten gains are returned to their

rightful owner. In these circumstances, we do not believe

that ordering a convicted defendant to return ill-gotten

gains should be construed as increasing the sentence

authorized by a conviction pursuant to Booker.

[4]

[United

States v Leahy, 438 F3d 328, 338 (CA 3, 2006).]

We are unaware of any state or federal courts that

have

adopted defendant’s constitutional argument and

ﬁnd it unavailing.

We vacate the order of restitution entered by the

trial

court. On remand, the prosecution may seek leave

from the trial court to conduct a second restitution

hearing. Regardless of the result of that hearing, no

restitution shall be awarded to Austin. Should the

prosecution elect against convening another hearing,

the trial court shall enter an order of restitution

awarding Shane $1,785. We do not retain jurisdiction.

K. F. K

ELLY

and S

ERVITTO

, JJ., concurred with

LEICHER

, P.J.

In United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621

(2005), the United States Supreme Court struck down the mandatory

application of the federal sentencing guidelines as violative of the Sixth

Amendment.

We acknowledge that our Supreme Court recently decided in People

v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), that Apprendi, as

extended by Alleyne, renders Michigan’s sentencing guidelines “consti-

tutionally deﬁcient” to the extent they “require judicial fact-ﬁnding

beyond facts admitted by the defendant or found by the jury” to score

variables that mandate an increased ﬂoor for the minimum sentencing

guidelines range. (Emphasis omitted.) Lockridge, 498 Mich at 364.

Nothing in Lockridge suggests that its reasoning encompasses restitu-

tion orders entered in conjunction with sentencing.

2015] P

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ORBIN

373

NICKOLA v MIC GENERAL INSURANCE COMPANY

Docket No. 322565. Submitted September 10, 2015, at Detroit. Decided

September 24, 2015, at 9:00 a.m. Leave to appeal sought.

George and Thelma Nickola brought a declaratory action in the

Genesee Circuit Court against MIC General Insurance Company

(their no-fault insurer) in April 2005, asking the court to compel

arbitration. The Nickolas had been injured when another car

struck theirs. After the other driver’s insurer settled with the

Nickolas and paid them the limits of his policy, the Nickolas

sought underinsured-motorist (UIM) beneﬁts under their policy.

MIC denied the claim. The Nickolas then sent MIC a written

demand for arbitration of their claim. Although the policy stated

that either party could demand arbitration, MIC denied the

Nickolas’ demand, stating that it had never agreed to arbitrate

and that both parties had to agree before a UIM claim could

proceed to arbitration. In November 2005, however, after the

Nickolas had brought their lawsuit, MIC stated that it did not

object to arbitration. Because MIC had initially denied that

arbitration was proper, the Nickolas moved for sanctions against

it. The court, Richard B. Yuille, J., entered an order in March

2006, submitting the matter to arbitration, but reserving any

ruling on the request for sanctions, instead ordering the Nickolas

to provide the court and MIC a list of costs, expenses, and

attorney fees, which they agreed to do. The court retained

jurisdiction to enforce compliance and make further determina-

tions, orders, or judgments as necessary. Under the policy, each

party was to select one arbitrator, and the two arbitrators would

then select a third. If they could not agree within 30 days,

however, either could request that the court make the selection.

The parties named their respective arbitrators soon after the

court’s order, but the chosen arbitrators could not agree to the

appointment of the third. Neither party took action on the matter

for more than six years. During that time the Nickolas died and

their son, Joseph G. Nickola (plaintiff) was appointed as personal

representative of their estates and substituted as plaintiff in the

action. In August 2012, he moved for the trial court to appoint the

third arbitrator. The parties ﬁnally proceeded to arbitration in

October 2013, and the arbitration panel awarded $80,000 to

374 312

ICH

374 [Sept

plaintiff for George’s injuries and $33,000 for Thelma’s injuries.

The awards were to be inclusive of interest, if any, as an element

of the damages from the date of injury to the date of suit, but were

not inclusive of other interest, fees, or costs that the court might

otherwise allow. In November 2013, plaintiff moved for (1) attor-

ney fees and sanctions because of MIC’s frivolous defense to

arbitration, (2) penalty interest under MCL 500.2006, part of the

Uniform Trade Practices Act (UTPA) (MCL 500.2001 et seq.) for

MIC’s failure to promptly pay UIM beneﬁts, and (3) entry of a

judgment against MIC on the arbitration award. The court denied

the motion in all respects, but stated that it “afﬁrmed” the

arbitration award. With regard to penalty interest, the court

found that the UTPA did not apply to a claim for UIM beneﬁts and

that even if it did, the claim was reasonably in dispute and not

subject to penalty interest. Plaintiff appealed.

The Court of Appeals held:

1. Plaintiff argued that the trial court should have granted

sanctions against MIC under MCR 2.114 for initially asserting in

its ﬁlings with the court that arbitration could not be demanded

unilaterally under the insurance policy. Neither plaintiff nor the

Nickolas ever complied with the trial court’s order to provide

proof of their costs and attorney fees, however, even by the date of

the 2014 renewed request for sanctions. The failure to comply

with that order, despite having had years to do so, was tanta-

mount to a waiver of the issue.

2. MCL 500.2006(1) provides that an insurer must timely pay

its insured, an individual or entity directly entitled to beneﬁts

under its insured’s contract of insurance, or a third-party tort

claimant the beneﬁts provided under the terms of its policy. If the

insurer does not pay the beneﬁts in a timely fashion, MCL

500.2006(4) provides for the imposition of 12% interest on the

beneﬁts if the claimant is the insured or an individual or entity

directly entitled to beneﬁts under the policy. If the claimant is a

third-party tort claimant, however, that interest is imposed if the

insurer’s liability for the claim is not reasonably in dispute, the

insurer refused payment in bad faith, and a court determined

that there was bad faith. Accordingly, MCL 500.2006(4) draws a

distinction between a claimant who is the insured or an indi-

vidual directly entitled to beneﬁts under a policy (a ﬁrst-party

insured) and one who is a third-party tort claimant. UIM beneﬁts

are not statutorily mandated but arise solely from the insurance

policy. Plaintiff contended that he, as the Nickolas’ personal

representative, sought the payment of beneﬁts that were owed

directly to them as insureds under an insurance policy. Plaintiff,

2015] N

ICKOLA V

MIC G

375

however, did more than merely make a simple ﬁrst-party claim.

For plaintiff to succeed on his UIM claim, he had to essentially

allege a third-party tort claim against the Nickolas’ insurer. MIC,

as the insurer, stood in the shoes of the alleged tortfeasor, and

plaintiff sought beneﬁts from MIC that arose from the tortfeasor’s

liability. Such a third-party tort claim is different in nature from

a typical claim for ﬁrst-party beneﬁts because it will often require

proof of the nature and extent of the injuries, proof of the injured

person’s prognosis over time, and proof that the injuries ad-

versely affected the injured person’s ability to lead his or her

normal life. In addition, a third-party tort claim is designed to

compensate a claimant for past and future pain and suffering and

other economic and noneconomic losses rather than offering

compensation for immediate expenses that are generally associ-

ated with a ﬁrst-party claim. Plaintiff’s UIM claim was therefore

tied to a third-party tort claim for damages that was, in many

respects, fundamentally different from a typical ﬁrst-party claim.

Moreover, the claim was reasonably in dispute, particularly with

regard to whether the damages for the Nickolas’ injuries exceeded

the amount of the settlement with the other driver. Accordingly,

the second part of MCL 500.2006(4) applied, and the trial court

did not err by denying penalty interest to plaintiff.

3. Plaintiff also sought prejudgment interest under MCL

600.6013 from the date of the ﬁling of the complaint in April 2005

until payment of the arbitration award. MCL 600.6013(8) pro-

vides that interest on a money judgment recovered in a civil

action is calculated from the date of the ﬁling of the complaint on

the entire amount of the judgment, including attorney fees and

other costs. Plaintiff never raised the issue of prejudgment

interest before the trial court, however, and it appeared that the

arbitration award had never been reduced to a judgment or paid.

Despite the fact that plaintiff expressly sought entry of a judg-

ment on the arbitration award, the trial court did not honor that

request and simply “afﬁrmed” the arbitration award. To that

extent, the court erred. Because the arbitration award was never

reduced to a judgment and the case had not otherwise been

dismissed, plaintiff remained entitled to obtain a judgment on the

award and could raise the issue of prejudgment interest at that

time. MIC further argued that plaintiff was not entitled to

prejudgment interest because of his and the Nickolas’ delay in the

case. While a court may disallow prejudgment interest for periods

of delay that were not the fault of or caused by the debtor,

however, it did not appear that all the delays in the case could be

assigned to plaintiff and the Nickolas. If plaintiff seeks a judg-

ment on the arbitration award and raises the issue of prejudg-

376 312

ICH

374 [Sept

ment interest at the time, the delays can be a consideration for

the trial court but should not at the outset deny plaintiff any

claim to prejudgment interest under MCL 600.6013.

Afﬁrmed in part and remanded for further proceedings.

Bendure & Thomas (by Mark R. Bendure) and John

D. Nickola for plaintiff.

Harvey Kruse, PC (by Michael F. Schmidt and Na-

than Peplinski), for defendant.

Before: G

ADOLA

, P.J., and J

ANSEN

and B

ECKERING

, JJ.

URIAM

. In this action against defendant, MIC

General Insurance Company, doing business as GMAC

Insurance, concerning underinsured-motorist beneﬁts,

plaintiff, Joseph G. Nickola, as personal representative

of the estates of George and Thelma Nickola,

appeals

the

June 19, 2014 order denying plaintiff’s request for

attorney fees and interest.

We afﬁrm in part and

remand

for further proceedings.

George and Thelma were originally the plaintiffs in this action.

However, during the pendency of this case, they passed away, requiring

that their son, as personal representative, be substituted as the plain-

tiff. For ease of reference, we will refer to George and Thelma by name

and will use the term “plaintiff” to refer to Joseph G. Nickola, the

personal representative.

Although plaintiff’s claim of appeal asserts that this appeal of the

June 19, 2014 order is an appeal as of right, we do not agree. The order

did not dispose of all the claims of the parties, see MCR 7.202(6)(a)(i)

(describing ﬁnal orders); notably, as discussed in more detail later, the

order did not resolve plaintiff’s request for entry of a judgment on the

arbitration award. Moreover, because there is no judgment, the order

appealed does not qualify as a postjudgment order awarding or denying

attorney fees and costs under MCR 7.202(6)(a)(iv). However, in the

interest of judicial economy, we exercise our discretion and treat the

claim of appeal as an application for leave to appeal and grant the

application. See In re Beatrice Rottenberg Living Trust, 300 Mich App

339, 354; 833 NW2d 384 (2013).

2015] N

ICKOLA V

MIC G

377

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case involves a protracted procedural history.

The matter arose out of a motor vehicle accident that

occurred on April 13, 2004. George and Thelma, who

were insured by defendant, were injured

when an

automobile driven by Roy Smith, who was insured by

Progressive Insurance Company, struck their automo-

bile. The maximum available coverage on Smith’s auto

policy with Progressive was $20,000 per individual

involved in an accident. George and Thelma, with

defendant’s consent, settled the tort claim, with Pro-

gressive paying its client’s policy limits on or about

November 21, 2004. Thereafter, they turned to defen-

dant, their no-fault insurer, and sought underinsured-

motorist (UIM) beneﬁts. Defendant’s policy with

George and Thelma provided UIM coverage in the

amount of $100,000 per person and $300,000 per

accident; George and Thelma each sought $80,000,

which represented the $100,000 policy limit minus the

$20,000 already received from Progressive.

Defendant denied the claim for UIM coverage in

February 2005, alleging that George and Thelma could

not establish a threshold injury for noneconomic tort

recovery under MCL 500.3135. In response to this

denial, George and Thelma sent defendant a written

demand for arbitration of their UIM claim, consistent

with their auto policy. The UIM coverage provision in

their policy with defendant provided that if the insurer

and the insureds were unable to agree about (1)

whether an insured was legally entitled to UIM dam-

ages or (2) the amount of UIM damages,

As noted, George and Thelma died during the pendency of the

instant litigation. According to the record, neither death was caused by

injuries suffered in the motor vehicle accident that sparked this litiga-

tion.

378 312

ICH

374 [Sept

[e]ither party may make a written demand for arbitration.

In this event, each party will select an arbitrator. The two

arbitrators will select a third. If they cannot agree within

30 days, either may request that selection be made by a

judge of a court having jurisdiction. [Emphasis added.]

Despite the fact that the policy stated that either

party

could demand arbitration, defendant responded

to the request for arbitration on March 1, 2005, by

denying the demand, stating that it had never agreed

to arbitrate and that both parties had to agree to

arbitration under the policy before a UIM claim could

proceed to arbitration. The reasons for defendant’s

denial in the face of the policy’s arbitration clause are

not entirely clear from the record.

Defendant’s denial of the request for arbitration

prompted George and Thelma to ﬁle a complaint for

declaratory relief on April 8, 2005, in which they asked

the trial court to compel arbitration. In answering the

complaint, defendant “neither admit[ted] nor denie[d]

the allegations” raised in the complaint concerning

whether one party to its insurance contract with

George and Thelma could unilaterally compel arbitra-

tion, but admitted that it had denied George and

Thelma’s written demand for arbitration. However, in

a September 20, 2005 response to a request for admis-

sions, defendant admitted that the arbitration lan-

guage in the policy stated that either party could

unilaterally demand arbitration. And in November

2005, defendant stated that it had “no objection to the

matter being submitted to arbitration . . . .”

Because of defendant’s initial denial that arbitration

was proper, George and Thelma moved the trial court

for sanctions against defendant. They claimed that any

assertion by defendant that arbitration was not re-

quired under the policy was a “frivolous defense.”

2015] N

ICKOLA V

MIC G

379

Following a hearing on February 14, 2006, the trial

court entered an order submitting the matter to arbi-

tration, but reserved ruling on George and Thelma’s

request for sanctions in relation to the few-month

delay prompted by defendant’s initial opposition to

arbitration. Before it would rule on the matter, the

court expressly ordered that George and Thelma “shall

supply to the Court and to counsel for Defendant its

list of costs and expenses, as well as attorney fees[.]” At

the motion hearing, George and Thelma’s counsel

promised to provide the trial court with this informa-

tion. The trial court’s written order, dated March 6,

2006, retained jurisdiction to “enforce compliance

and/or make any other determination, orders and/or

judgments necessary to fully adjudicate the rights of

the Parties herein.”

The parties named their respective arbitrators soon

after the trial court’s written order, but disagreement

over the appointment of a third arbitrator brought the

proceedings to a grinding halt. The chosen arbitrators

could not agree about whom to appoint as the third

arbitrator. Neither party took action on the matter for

more than six years, until August 13, 2012, when

plaintiff moved the trial court to appoint a third

arbitrator.

It is unclear from the record what caused

this

lengthy delay. During this six-year delay, George

and Thelma died, leading to the appointment of plain-

tiff as personal representative of their respective es-

tates.

On appeal, defendant attempts to pin the entirety of the delay on

plaintiff. However, the arbitration agreement contained in the policy

provides that if the arbitrators selected by the parties were unable to

agree on a third arbitrator within 30 days, “either may request that

selection be made by a judge of a court having jurisdiction.” (Emphasis

added).

380 312

ICH

374 [Sept

The parties ﬁnally proceeded to arbitration in Octo-

ber 2013, and the arbitration panel awarded $80,000 to

plaintiff for George’s injuries and $33,000 for Thelma’s

injuries. The awards were to be “inclusive of interest, if

any, as an element of damages from the date of injury

to the date of suit, but not inclusive of other interest,

fees or costs that may otherwise be allowable by the

Court.”

On November 25, 2013, plaintiff moved the trial

court for (1) attorney fees and sanctions because of

defendant’s frivolous defense to arbitration, (2) penalty

interest under MCL 500.2006, part of the Uniform

Trade Practices Act (UTPA) (MCL 500.2001 et seq.), for

defendant’s failure to promptly pay UIM beneﬁts, and

(3) entry of a judgment against defendant on the

arbitration award. The trial court denied the motion in

all respects, but stated that it “afﬁrmed” the arbitra-

tion award. With regard to penalty interest, the court

found that the UTPA did not apply to a claim for UIM

beneﬁts. Further, even if the UTPA did apply, the

language “reasonably in dispute” in MCL 500.2006(4)

insulated defendant from having to pay penalty inter-

est. Finally, the trial court ruled that the issue of

penalty interest should have been heard before the

arbitration panel.

II. SANCTIONS UNDER MCR 2.1

Plaintiff argues that the trial court should have

granted sanctions against defendant under MCR 2.114

for initially asserting in its ﬁlings with the court that

arbitration could not be demanded unilaterally under

the insurance policy. The trial court’s 2006 order re-

served a ruling on attorney fees but required George

and Thelma to produce evidence of their attorney fees

incurred during the delay caused by defendant’s initial

2015] N

ICKOLA V

MIC G

381

refusal to arbitrate. Speciﬁcally, the order stated that

“Plaintiff shall supply to the Court and to counsel for

Defendant its list of costs and expenses, as well as

attorney fees[.]” George and Thelma and plaintiff

never complied with that order. Indeed, even when

plaintiff made a renewed request for sanctions in 2014,

he never complied with the trial court’s 2006 order to

provide proof of his attorney fees incurred during the

relevant period. Plaintiff’s failure to comply with that

order, despite having had years to do so, is tantamount

to a waiver of this issue.

“The usual manner of waiving

right is by acts which indicate an intention to

relinquish it, or by so neglecting and failing to act as to

induce a belief that it was the intention and purpose to

waive.” Cadle Co v Kentwood, 285 Mich App 240,

254-255; 776 NW2d 145 (2009) (citation and quotation

marks omitted; emphasis added). Given that plaintiff

repeatedly failed to comply with the trial court’s order

to provide documentation of his attorney fees for the

pertinent period, it is difﬁcult to fault the trial court for

failing to award those fees as a sanction under MCR

2.114. Indeed, plaintiff had more than eight years to

supply the requested information about fees, but never

did so. See Reed Estate v Reed, 293 Mich App 168,

177-178; 810 NW2d 284 (2011) (stating that waiver

may be shown by a course of conduct, including ne-

glecting and failing to act in such a manner as to

induce the belief that the party failing or neglecting to

act has the intent to waive). Plaintiff’s failure to act

and neglect of the trial court’s mandate is tantamount

to waiver. See Cadle Co, 285 Mich App at 254-255.

Plaintiff argues that it was “impossible” for him to

determine the amount of attorney fees to which he was

On appeal, plaintiff makes no effort to comply with the 2006 order

and has yet to produce evidence of his claimed attorney fees.

382 312 M

ICH

374 [Sept

allegedly entitled without waiting for arbitration to

conclude. This ignores that the trial court, at the

February 14, 2006 motion hearing, asked for the fees to

which plaintiff believed he was entitled at that time.

Plaintiff’s counsel expressly promised to provide that

ﬁgure. Plaintiff was to submit costs and fees incurred

during the time between when defendant answered the

complaint and admitted the mistake. There was never

an invitation by the trial court to include in the amount

of fees requested those fees incurred even after the

matter went to arbitration. Any attempt by plaintiff to

obtain additional fees ignored the court’s order. More-

over, the argument ignores the fact that, even when

arbitration was over, plaintiff still failed to provide the

trial court information about his requested fees.

We also note that plaintiff seeks attorney fees for

defendant’s conduct that occurred before George and

Thelma ﬁled their complaint in 2005. That is, plaintiff

appears to seek sanctions under MCR 2.114 for defen-

dant’s conduct in initially denying the UIM claim. Any

argument by plaintiff in this regard is without merit.

MCR 2.114(A) applies to “all pleadings, motions, afﬁ-

davits, and other papers provided for by” the court

rules. Defendant’s initial decision to deny arbitration

was not a pleading, motion, afﬁdavit, or other paper

ﬁled under the court rules. Rather, it was simply a

response to plaintiff’s request for arbitration. Nothing

about that response brings it within the ambit of

materials that could subject defendant to sanctions

under MCR 2.114.

III. PENALTY INTEREST UNDER THE UTPA

Plaintiff argues that the trial court erred by conclud-

ing

that defendant was not required to pay penalty

interest under the UTPA for its failure to timely pay

2015] N

ICKOLA V

MIC G

383

UIM beneﬁts. This Court reviews de novo the trial

court’s ruling on a motion for penalty interest under

MCL 500.2006(4). Angott v Chubb Group of Ins Cos,

270 Mich App 465, 475; 717 NW2d 341 (2006). Resolu-

tion of this issue also requires examination and inter-

pretation of MCL 500.2006(4), which is an issue of law

this Court reviews de novo. Id.

UIM beneﬁts are not statutorily mandated; they are

an agreement for beneﬁts voluntarily entered into

between an insured and an insurer. Dawson v Farm

Bureau Mut Ins Co of Mich, 293 Mich App 563, 568;

810 NW2d 106 (2011). The UTPA provides a mecha-

nism to help insureds obtain payment for these and

other types of beneﬁts in a timely manner. Griswold

Props, LLC v Lexington Ins Co, 276 Mich App 551, 554;

741 NW2d 549 (2007). “MCL 500.2006 provides for

imposition of penalty interest for the late payment of a

claim . . . .” Id. The statute provides, in pertinent part:

(1) A person must pay on a timely basis to its insured,

individual or entity directly entitled to beneﬁts under

its insured’s contract of insurance, or a third party tort

claimant the beneﬁts provided under the terms of its

policy, or, in the alternative, the person must pay to its

insured, an individual or entity directly entitled to ben-

eﬁts under its insured’s contract of insurance, or a third

party tort claimant 12% interest, as provided in subsec-

tion (4), on claims not paid on a timely basis. Failure to

pay claims on a timely basis or to pay interest on claims as

provided in subsection (4) is an unfair trade practice

unless the claim is reasonably in dispute.

* * *

(4) If beneﬁts are not paid on a timely basis the beneﬁts

paid shall bear simple interest from a date 60 days after

satisfactory proof of loss was received by the insurer at the

rate of 12% per annum, if the claimant is the insured or an

384 312 M

ICH

374 [Sept

individual or entity directly entitled to beneﬁts under the

insured’s contract of insurance. If the claimant is a third

party tort claimant, then the beneﬁts paid shall bear

interest from a date 60 days after satisfactory proof of loss

was received by the insurer at the rate of 12% per annum

if the liability of the insurer for the claim is not reasonably

in dispute, the insurer has refused payment in bad faith

and the bad faith was determined by a court of law. [MCL

500.2006(1) and (4).]

MCL 500.2006(4), the penalty-interest provision,

draws a distinction between a claimant who is the

insured or who is an individual directly entitled to

beneﬁts under an insurance contract (a ﬁrst-party

insured) and a claimant who is a third-party tort

claimant. The ﬁrst sentence of Subsection (4) simply

states that a ﬁrst-party insured is entitled to penalty

interest if beneﬁts are not paid within 60 days after the

insurer obtains satisfactory proof of loss. Griswold, 276

Mich App at 565. As explained by this Court in Gris-

wold, “[I]f the claimant is the insured or an individual

or entity directly entitled to beneﬁts under the in-

sured’s contract of insurance, and beneﬁts are not paid

on a timely basis, the claimant is entitled to 12 percent

interest, irrespective of whether the claim is reason-

ably in dispute.” Id. at 566 (citation and quotation

marks omitted). By comparison, the second sentence of

Subsection (4), which applies to third-party tort claim-

ants, imposes penalty interest on the insurer only if

the claim “is not reasonably in dispute.” Id. at 565-566.

Central to plaintiff’s argument on appeal is the notion

that the language “not reasonably in dispute” in MCL

500.2006(4) does not apply to claims by a ﬁrst-party

insured. Defendant, meanwhile, likens plaintiff to a

third-party tort claimant in this claim for UIM ben-

eﬁts, meaning that the language “not reasonably in

dispute” in MCL 500.2006(4) applies.

2015] N

ICKOLA V

MIC G

385

A brief examination of the facts at issue in Griswold

is illustrative in resolving this issue. In deciding Gris-

wold, this Court convened a special panel to resolve a

conﬂict over the application of MCL 500.2006(4) and

the types of claims to which the criterion of being

“reasonably in dispute” applied. The case involved a

consolidation of three cases. See Griswold, 276 Mich

App at 559. Two cases involved insureds who sought

beneﬁts from their respective insurers for water dam-

age. Id. at 559-560. In the third case, the insured’s

building was destroyed by a ﬁre, and the insured

sought beneﬁts from its insurer for the damage caused

by the ﬁre. Id. at 560. In other words, each of the three

consolidated cases involved insureds seeking beneﬁts

from their own insurers for losses that were directly

covered under the respective policies.

Plaintiff contends that he, as the personal repre-

sentative of the estates of George and Thelma, is

seeking payment of beneﬁts that were owed directly

to insureds under an insurance policy. As noted, UIM

beneﬁts arise solely from the policy. See McDonald v

Farm Bureau Ins Co, 480 Mich 191, 194; 747 NW2d

811 (2008) (explaining that “[w]hen an insured is

injured by a tortfeasor motorist whose own policy is

insufﬁcient to cover all of the insured’s damages, the

insured can seek coverage from his or her UIM policy

for damages that exceed the tortfeasor’s policy lim-

its”) (emphasis added). At ﬁrst glance, plaintiff’s

argument—that he is entitled to penalty interest

because he sought beneﬁts that were owed directly to

an insured by an insurer and that the language

“reasonably in dispute” in MCL 500.2006(4) does not

apply—has some appeal in light of Griswold.

However, the instant case is not as simple as Gris-

wold. As noted, Griswold involved consolidated cases

386 312 M

ICH

374 [Sept

in which each insurer was directly liable to its ﬁrst-

party insureds for covered losses. Here, while plaintiff

is seeking UIM beneﬁts that are provided under the

policy, he is doing more than merely making a simple

ﬁrst-party claim, as was involved in Griswold. In order

for plaintiff to succeed on his UIM claim, he essentially

has to allege a third-party tort claim against his own

insurer—or, in this case, against the insurer of George

and Thelma, of whom plaintiff is the personal repre-

sentative. Defendant, the insurer, stands in the shoes

of the alleged tortfeasor, and plaintiff seeks beneﬁts

from defendant that arose from the alleged tortfeasor’s

liability. See Auto Club Ins Ass’n v Hill, 431 Mich 449,

463-466; 430 NW2d 636 (1988) (explaining UIM cover-

age). See also Rory v Continental Ins Co, 473 Mich 457,

465; 703 NW2d 23 (2005) (explaining that “[u]ninsured

motorist insurance,” which is substantially similar to

UIM insurance, “permits an injured motorist to obtain

coverage from his or her own insurance company to the

extent that a third-party claim would be permitted

against the . . . at-fault driver”). This third-party tort

claim is different in nature from a typical claim for

ﬁrst-party beneﬁts, as it “will often require proof of the

nature and extent of the injured person’s injuries, the

injured person’s prognosis over time, and proof that

the injuries have had an adverse effect on the injured

person’s ability to lead his or her normal life.” Adam v

Bell, 311 Mich App 528, 535; 879 NW2d 879 (2015)

(citation and quotation marks omitted). In addition,

such a third-party tort claim is designed to compensate

a claimant “for past and future pain and suffering and

other economic and noneconomic losses rather than

compensation for immediate expenses” that are gener-

ally associated with a ﬁrst-party claim. Id. (citation

and quotation marks omitted). In other words, plain-

tiff’s UIM claim is tied to a third-party tort claim for

2015] N

ICKOLA V

MIC G

387

damages that, in many respects, is “fundamentally”

different from a typical ﬁrst-party claim. See id. (cita-

tion and quotation marks omitted).

In Auto-Owners Ins Co v Ferwerda Enterprises, Inc

(On Remand), 287 Mich App 248; 797 NW2d 168

(2010), vacated in part on other grounds 488 Mich 917

(2010),

this Court recognized that not all claims for

penalty interest under MCL 500.2006(4) ﬁt neatly into

the Griswold analysis. In that case, the insurer sought

a declaratory judgment stating that it had no duty to

defend and indemnify its insureds in a third-party tort

action based on an exclusion in the insurance policy. Id.

at 252. The insureds ﬁled a counterclaim, alleging

breach of contract, estoppel, and waiver, and they

requested penalty interest under MCL 500.2006(4). Id.

The trial court found that there was coverage for the

underlying third-party tort claim and awarded penalty

interest under MCL 500.2006(4). Id. at 253-254. On

appeal, the insureds defended the trial court’s award of

penalty interest on the ground that the insurer

breached its contract by failing to pay beneﬁts under

the insurance policy. Id. at 258. The insureds argued

that under Griswold, the issue of penalty interest

turned only on the failure to pay beneﬁts and not

whether those beneﬁts were reasonably in dispute. Id.

at 259. This Court disagreed with the insureds’ argu-

ment that the case involved a simple breach of the

In Ferwerda, 287 Mich App 248, this Court decided two issues: (1)

whether an award of attorney fees was appropriate and (2) whether the

imposition of penalty interest was warranted. Our Supreme Court

denied leave to appeal with regard to the penalty interest issue, but

remanded with regard to the attorney fee issue. Auto-Owners Ins Co v

Ferwerda Enterprises, Inc, 784 NW2d 44 (Mich, 2010). Subsequently,

the Court vacated this Court’s ruling regarding attorney fees. Auto-

Owners Ins Co v Ferwerda Enterprises, Inc, 488 Mich 917 (2010). Thus,

this Court’s holding with respect to penalty interest remains good law.

388 312

ICH

374 [Sept

insurance policy. Rather, in Ferwerda “the breach of

contract claim [was] speciﬁcally tied to the underlying

third-party tort claim.” Id. That situation, reasoned

the Court, was “a wholly different situation than that

found” in Griswold and other cases that awarded

penalty interest for the failure of an insurer to pay

ﬁrst-party claims. Id. at 259-260. As such, this Court

held that the language “reasonably in dispute” found in

the second sentence of MCL 500.2006(4) applied and

precluded an award of penalty interest because the

beneﬁts in that case were reasonably in dispute. Id. at

260.

Applying Ferwerda in the case at bar, the trial court

did not err by employing the language “reasonably in

dispute” found in the second sentence of MCL

500.2006(4) and denying penalty interest to plaintiff.

This case does not involve a claim in which the insured

simply sought the payment of beneﬁts due directly

under an insurance policy. As in Ferwerda, 287 Mich

App at 259, the situation in this case “is a wholly

different situation than that found” in cases such as

Griswold. Rather, the claim for beneﬁts under the UIM

coverage is “speciﬁcally tied to the underlying third-

party tort claim.” Id. Indeed, in the UIM context,

defendant is standing in the shoes of the alleged

tortfeasor. The fact that the claim for UIM beneﬁts was

speciﬁcally tied to the underlying third-party tort

claim warrants applying the language “reasonably in

dispute” found in the second sentence of MCL

500.2006(4). See id. The trial court did not err by

applying this standard to plaintiff’s claim for penalty

interest.

Moreover, contrary to plaintiff’s alternative conten-

tion on appeal, the claim in this case was reasonably in

dispute. Even assuming that plaintiff could establish a

2015] N

ICKOLA V

MIC G

389

threshold injury, plaintiff’s UIM claim needed to show

that the injuries suffered by George and Thelma ex-

ceeded the amount of the settlement with Smith.

See

McDonald, 480 Mich at 194 (explaining UIM cover-

age). Given George and Thelma’s respective ages, pre-

existing conditions, and the nature of the injuries

alleged in this case, the amount of damages, if any, that

they were entitled to beyond what they received from

Smith was a matter of reasonable dispute.

Thus, the

trial

court did not err by denying penalty interest

under MCL 500.2006(4).

IV. PREJUDGMENT INTEREST

Lastly, plaintiff seeks prejudgment interest under

MCL 600.6013 from the date of the ﬁling of the

complaint until payment of the arbitration award.

“MCL 600.6013 entitles a prevailing party in a civil

action to prejudgment interest from the date the com-

plaint was ﬁled to the entry of judgment.” Beach v

State Farm Mut Auto Ins Co, 216 Mich App 612, 624;

550 NW2d 580 (1996) (citation omitted). “The purpose

of this statute is to compensate the prevailing party for

loss of use of the funds awarded as a money judgment

and to offset the costs of litigation.” Farmers Ins Exch

v Titan Ins Co, 251 Mich App 454, 460; 651 NW2d 428

(2002). Plaintiff seeks interest under MCL

600.6013(8), which provides:

The policy’s UIM coverage provision states that “[w]e [the insurer]

will pay under this coverage only after the limits of liability under any

applicable bodily injury liability bonds or policies have been exhausted

by payment of judgments or settlements.”

This is not to say that UIM beneﬁts will in all cases be subject to

reasonable dispute. For instance, in a scenario in which an accident

rendered an otherwise healthy insured a quadriplegic and the tortfea-

sor’s insurance policy provided only $20,000 in recovery, there could

likely be no dispute that the insured was entitled to UIM coverage.

390 312 M

ICH

374 [Sept

Except as otherwise provided in subsections (5) and (7)

and subject to subsection (13), for complaints ﬁled on or

after January 1, 1987, interest on a money judgment

recovered in a civil action is calculated at 6-month inter-

vals from the date of ﬁling the complaint at a rate of

interest equal to 1% plus the average interest rate paid at

auctions of 5-year United States treasury notes during the

6 months immediately preceding July 1 and January 1, as

certiﬁed by the state treasurer, and compounded annually,

according to this section. Interest under this subsection is

calculated on the entire amount of the money judgment,

including attorney fees and other costs. In an action for

medical malpractice, interest under this subsection on

costs or attorney fees awarded under a statute or court

rule is not calculated for any period before the entry of the

judgment. The amount of interest attributable to that part

of the money judgment from which attorney fees are paid

is retained by the plaintiff, and not paid to the plaintiff’s

attorney.

Plaintiff is seeking prejudgment interest from the

date

of the complaint in April 2005 until the date of

payment. Plaintiff never raised the issue of prejudg-

ment interest before the trial court. In addition, it does

not appear from the record that the arbitration award

was ever reduced to a judgment or that the arbitration

award has been paid. Under the Michigan arbitration

act,

circuit courts have jurisdiction to enforce and

render

judgment on an arbitration award. Former

MCL 600.5025. Here, despite the fact that plaintiff’s

Effective July 1, 2013, the Legislature repealed the Michigan arbi-

tration act, former MCL 600.5001 et seq., and replaced it with the

Uniform Arbitration Act, MCL 691.1681 et seq. 2012 PA 370; 2012 PA

371; Fette v Peters Constr Co, 310 Mich App 535, 542; 871 NW2d 877

(2015). The Uniform Arbitration Act “does not affect an action or

proceeding commenced or right accrued before this act takes effect.”

MCL 691.1713. See also Fette, 310 Mich App at 542. Because George and

Thelma ﬁled a complaint for arbitration in 2005, the Uniform Arbitra-

tion Act does not apply, and the Michigan Arbitration Act governs. See

id.

2015] N

ICKOLA V

MIC G

391

motion expressly sought entry of a judgment on the

arbitration award, the trial court did not honor that

request. Instead, the court simply “afﬁrmed” the arbi-

tration award, and to that extent, the trial court erred.

Because it does not appear that the arbitration award

was ever reduced to a judgment, and this case has not

otherwise been dismissed, plaintiff remains entitled to

obtain a judgment on the award. And when seeking

that judgment, because the issue of prejudgment inter-

est was never decided, plaintiff can raise the issue of

prejudgment interest at that time. Accordingly, we

decline to address the prejudgment interest issue,

without prejudice to plaintiff’s raising it when he

moves for entry of a judgment enforcing the arbitration

award. Indeed, at this point, neither the arbitration

panel

nor the trial court has decided the issue of

plaintiff’s

entitlement to statutory prejudgment inter-

est under MCL 600.6013.

Lastly, on the issue of prejudgment interest, we note

that defendant contends that plaintiff should not be

entitled to any prejudgment interest because of his—

In this regard, we note that preaward, prejudgment interest would

ordinarily be deemed to have been submitted to the arbitration panel.

See Holloway Constr Co v Oakland Co Bd of Co Rd Comm’rs, 450 Mich

608, 618; 543 NW2d 923 (1996) (“The decision whether to award

preaward, prejudgment interest as an element of damages is reserved as

a matter of the arbitrator’s discretion.”). In this case, there was nothing

in the arbitration agreement reserving the issue of preaward, prejudg-

ment interest. However, the arbitration award expressly stated that the

arbitration panel awarded interest as an element of damages from the

time of the injury to the time the complaint was ﬁled, but did not decide

matters pertaining to “other interest.” Prejudgment interest after the

ﬁling of the complaint ﬁts into the broad category of “other interest.”

Thus, the arbitration panel expressly declined to address the prejudg-

ment interest plaintiff is now seeking. The record contains no indication

of why the arbitration panel did not consider any other interest, nor is

there any indication that the parties objected to the arbitration panel’s

decision in this regard.

392 312

ICH

374 [Sept

and George and Thelma’s—delays in this case. “[A]

court may disallow prejudgment interest for periods of

delay where the delay was not the fault of, or caused

by, the debtor.” Eley v Turner, 193 Mich App 244, 247;

483 NW2d 421 (1992). However, it is not apparent that

all the delays in this case can be attributed to plaintiff.

With regard to the six-year delay caused by disagree-

ment over the third arbitrator, defendant is incorrect

in stating that the arbitration agreement required the

insured, and only the insured, to petition the circuit

court to select a third arbitrator in the event of

disagreement. Rather, the agreement as embodied in

the policy states that “either may request that selec-

tion” of a third arbitrator “be made by a judge of a court

having jurisdiction.” (Emphasis added.) If plaintiff

raises the issue of prejudgment interest at the time he

seeks a judgment on the arbitration award, the delays

in this case can be a consideration for the trial court,

but should not at the outset deny plaintiff any claim to

prejudgment interest under MCL 600.6013.

Afﬁrmed in part and remanded to the trial court for

further proceedings not inconsistent with this opinion.

We do not retain jurisdiction.

ADOLA

, P.J., and J

ANSEN

and B

ECKERING

, JJ., con-

curred.

2015] N

ICKOLA V

MIC G

393

GILLETTE COMMERCIAL OPERATIONS NORTH AMERICA

& SUBSIDIARIES v DEPARTMENT OF TREASURY

Docket Nos. 325258, 325475 through 325492, 325505 through 325511,

325515 through 325518, 325520, 325522, 325523, 325525,

325526, 325528, 325529, 325532 through 325535, 325541,

325972, 325974, 326039, 326075, 326080, 326110, 326123, and

326136. Submitted September 2, 2015, at Detroit. Decided

September 29, 2015, at 9:00 a.m. Leave to appeal denied 499 Mich

960.

Gillette Commercial Operations North America & Subsidiaries and

others brought separate actions in the Court of Claims against

the Department of Treasury, seeking tax refunds premised on the

three-factor apportionment formula set forth in the Multistate

Tax Compact, former MCL 205.581 et seq. Plaintiffs were all

out-of-state corporations with business activities in Michigan.

Defendant refused the refund requests, asserting that the only

apportionment method available to plaintiffs was single-factor

apportionment under MCL 208.1301 of the Michigan Business

Tax Act (MBTA). In each action, the Court of Claims, M

ICHAEL

ALBOT

, J., granted summary disposition in favor of defendant,

concluding that 2014 PA 282 retroactively repealed the compact

and negated the basis of plaintiffs’ claims. The court rejected

plaintiffs’ challenges to the enactment of 2014 PA 282, concluding

that it was a valid, constitutional act. Plaintiffs appealed. The

Court of Appeals consolidated the appeals.

The Court of Appeals held:

1. The state and federal Constitutions forbid the enactment of

laws impairing the obligation of contracts. Although the language

of the federal Contracts Clause is absolute, its prohibition must

be accommodated to the inherent police power of the state to

safeguard the vital interests of its people. In order to determine

whether the Contracts Clause’s prohibition should be accommo-

dated, the Supreme Court developed a three-part test that

examines (1) whether a change in state law has operated as a

substantial impairment of a contractual relationship, (2) whether

the state has a signiﬁcant and legitimate public purpose for the

regulation, and (3) whether the adjustment of the rights and

responsibilities of the contracting parties is based on reasonable

394 312

ICH

394 [Sept

conditions and is of a character appropriate to the public purpose

justifying adoption of the legislation. In Michigan, there is a

strong presumption that statutes do not create contractual rights.

There were no words in the compact that indicated that the state

intended to be bound to the compact. Therefore, the presumption

had to be that the state did not surrender its legislative power to

require use of a different apportionment formula or to repeal the

compact altogether. Accordingly, plaintiffs’ state and federal Con-

tracts Clause arguments were unavailing because they were

premised on an incorrect view that the compact was a binding

contract under state law.

2. Plaintiffs further argued that Michigan created binding

contractual obligations by entering into the compact and that

those obligations were enforceable under the Contracts Clause.

The classic indicia of a binding interstate compact are (1) the

establishment of a joint regulatory body, (2) the requirement of

reciprocal action for effectiveness, and (3) the prohibition of

unilateral modiﬁcation or repeal. Although the compact created a

joint regulatory agency, it did not confer any governing or

regulatory powers on that body. Each state retained complete

freedom to adopt or reject the rules and regulations of the

commission. There was also nothing reciprocal about the com-

pact’s provisions. Each member state operated its tax system

independently from the tax systems of other member states. The

compact also allowed unilateral modiﬁcation and withdrawal

without notice to other member states. Accordingly, the compact

was not a binding agreement on the state, and the enactment of

2014 PA 282 was not prohibited.

3. The Due Process Clause has a substantive component that

protects individual liberty and property interests from arbitrary

government actions. But to be protected by the Due Process

Clause, a property interest must be a vested right. A vested right

is an interest that the government is compelled to recognize and

protect, of which the holder may not be deprived without injus-

tice. Federal and state courts have uniformly held that retroac-

tive modiﬁcation of tax statutes does not offend due process

considerations as long as there is a legitimate legislative purpose

that is furthered by a rational means and the period of retroac-

tivity is modest. A taxpayer’s reliance on a view of the law—even

a correct view of the law—does not prevent the Legislature from

retroactively amending the statute. To be vested, a right must be

more than a mere expectation based on an anticipated continu-

ance of the present laws. A legislature’s action to mend a leak in

the public treasury or tax revenue—whether created by poor

2015] G

ILLETTE V

REAS

’

395

drafting of legislation in the ﬁrst instance or by a judicial

decision—with retroactive legislation has almost universally

been recognized as rationally related to a legitimate legislative

purpose. In this case, the retroactive effect of 2014 PA 282 did not

violate the Due Process Clauses of either the state or federal

Constitutions. Plaintiffs did not have a vested interest protected

by the Due Process Clause in the continuation of the compact’s

apportionment provision, and the Legislature had a legitimate

purpose for giving retroactive effect to 2014 PA 282. Speciﬁcally,

it was legitimate for the Legislature to correct the Michigan

Supreme Court’s perceived misinterpretation of a prior law in

Int’l Business Machines Corp v Dep’t of Treasury, 496 Mich 642

(2014), and eliminate a signiﬁcant revenue loss resulting from

that misinterpretation. Retroactive application of 2014 PA 282

was also a rational means to further these legitimate purposes.

2014 PA 282 did not reach back to assess a wholly new tax on

long-concluded transactions. Rather, it clariﬁed the method of

apportionment for the previously enacted MBTA, had a modest

look-back period, and the Legislature promptly enacted 2014 PA

282 after the Michigan Supreme Court issued its opinion in Int’l

Business Machines.

4. The Separation of Powers Clause of the Michigan Consti-

tution, Const 1963, art 3, § 2, states that generally no person

exercising the powers of one branch of government shall exercise

powers properly belonging to another branch. The Legislature did

not violate this clause by obviating the Supreme Court’s decision

in Int’l Business Machines. The Legislature lacks authority to

reverse a judicial decision or repeal a ﬁnal judgment, but it has

the authority to amend a statute that it believes has been

misconstrued by the judiciary. 2014 PA 282 did not overturn the

Int’l Business Machines decision. Instead, the Legislature created

a new law, not interpreted by the courts, that explicitly repealed

the compact provisions effective January 1, 2008, to further what

the Legislature understood to have been its original intent when

it enacted 2007 PA 36. This did not impinge on the judiciary’s role

of interpreting the law but instead corrected a mistake that was

made clear by the holding in Int’l Business Machines.

5. The Commerce Clause, US Const, art I, § 8, provides that

Congress shall have the power to regulate commerce among the

several states, and has been held to prohibit discrimination

against interstate commerce and bar state regulations that

unduly burden interstate commerce. A tax violates the Commerce

Clause if it is facially discriminatory, has a discriminatory pur-

pose, or has the effect of unduly burdening interstate commerce.

396 312

ICH

394 [Sept

2014 PA 282 did not create any classiﬁcation based on a taxpay-

er’s state of origin or the location of commerce and, therefore, was

not facially discriminatory. No evidence was presented that 2014

PA 282 had a discriminatory purpose. In fact, 2014 PA 282 put in-

and out-of-state corporate taxpayers in the same position relative

to Michigan tax calculations. Finally, 2014 PA 282 did not have a

discriminatory effect; it merely precluded both in-state and

out-of-state taxpayers from electing the three-factor apportion-

ment formula previously available under the compact. The fed-

eral Constitution does not require the use of a particular appor-

tionment formula, and a single-factor formula is presumptively

valid. Accordingly, enactment of 2014 PA 282 did not violate the

Commerce Clause.

6. The right of citizens to petition their government for

redress of grievances is speciﬁcally guaranteed by the United

States Constitution, US Const, Am I, and the Michigan Consti-

tution, Const 1963, art 1, § 3. The right to petition extends to all

departments of the government and includes a right of access to

the courts. In this case, plaintiffs contended that, through the

enactment of 2014 PA 282, they were denied the right to petition

defendant and to appeal to a court for a refund of taxes already

paid. The elements of a backward-looking denial-of-access claim

include obstructive actions by state actors. Although plaintiffs

contend that enactment of 2014 PA 282 obstructed their access to

the courts by retroactively destroying their right to elect the

three-factor apportionment formula under the compact, a

backward-looking denial-of-access claim can only prevail when

the government is accused of barring the courthouse door by

concealing or destroying evidence. There is no allegation in these

cases that defendant or any state actor has concealed or destroyed

evidence. The enactment of 2014 PA 282 retroactively repealing

the compact and requiring the use of a single-factor apportion-

ment formula did not interfere with plaintiffs’ abilities to ﬁle

claims or seek refunds from the courts or defendant. All that

plaintiffs were prohibited from doing was seeking a refund under

one particular apportionment formula. This did not violate the

First Amendment.

7. Plaintiffs also challenged 2014 PA 282 under Michigan’s

Title-Object Clause, Const 1963, art 4, § 24; the Five-Day Rule,

Const 1963, art 4, § 26; and the Distinct-Statement Clause, Const

1963, art 4, § 32. Under the Title-Object Clause, no law may

embrace more than one subject, which must be expressed in its

title, and no bill may be altered or amended on its passage

through either house so as to change its original purpose as

2015] G

ILLETTE V

REAS

’

397

determined by its total content and not alone by its title. The

single object of 2014 PA 282 was to amend 2007 PA 36, the MBTA.

This general object was accomplished by amending provisions of

the MBTAand by repealing the compact. This object was reﬂected

in the title of 2014 PA 282, which referred to the amendment of

sections of 2007 PA 36 and the repeal of acts and parts of acts.

Enacting § 1 of 2014 PA 282 clariﬁed that the repeal of the

compact and the concomitant elimination of the apportionment

election provision was germane to the object of amending the

MBTA in that it clariﬁed the appropriate method of apportion-

ment. In other words, the compact and the MBTA were related to

one another because each pertained to the method of apportion-

ment. Thus, 2014 PA 282 did not contain diverse subjects that had

no necessary connection. Rather, repeal of the compact directly

related to, carried out, and implemented the principal object of

amending the MBTA. Although the title did not use the word

“compact,” a title need not be an index of all of an act’s provisions,

and neither legislators nor the public were deprived of notice of

the challenged provision. Further, amendment of the bill that

became 2014 PA 282 as it went through the Legislature did not

result in the introduction of an entirely new subject matter.

Rather, it permissibly extended the basic purpose of the original

bill. Accordingly, there was no Title-Object Clause violation.

Under the Five-Day Rule, no bill may be passed or become a law

at any regular session of the Legislature until it has been printed

or reproduced and in the possession of each house for at least ﬁve

days. The function of the change-of-purpose provision in the

Title-Object Clause is to fulﬁll the command of the Five-Day Rule.

In this case, the legislative record established that the bill that

became 2014 PA 282 was before each house for at least ﬁve days,

and there was no change in the bill’s original purpose. Therefore,

no violation of the Five-Day Rule occurred. The Distinct-

Statement Clause provides that every law that imposes, contin-

ues, or revives a tax must distinctly state the tax. The Distinct-

Statement Clause is violated if a statute imposes an obscure or

deceitful tax. 2014 PA 282 did not impose or revive any tax. It

clariﬁed the Legislature’s intent regarding the method of appor-

tionment under the MBTA. There was nothing deceptive about

the legislation, and there was no violation of the Distinct-

Statement Clause.

8. Summary disposition is premature if granted before dis-

covery on a disputed issue is complete. However, summary

disposition is appropriate if there is no fair chance that further

discovery will result in factual support for the party opposing the

motion. In this case, plaintiffs wanted to engage in further

398 312

ICH

394 [Sept

discovery, but the issues raised in these cases concerned statutory

interpretation and constitutional challenges, which are matters

of law. Plaintiffs failed to establish a fair chance that further

discovery would have led to any relevant support for their

position.

Afﬁrmed.

AXATION —

ETROACTIVE

EPEAL OF THE

ULTISTATE

OMPACT —

ONSTI-

TUTIONALITY

Enactment of 2014 PA 282, which retroactively repealed the Mul-

tistate Tax Compact, former MCL 205.581 et seq., effective

January 1, 2008, did not violate the state or federal Contracts

Clauses (US Const, art I, § 10, cl 1; Const 1963, art 1, § 10), state

or federal Due Process Clauses (US Const, Am XIV; Const 1963,

art 1, § 17), the state Separation of Powers Clause (Const 1963,

art 3, § 2), the federal Commerce Clause (US Const, art I, § 8), the

right of citizens to petition their government for redress of

grievances (US Const, Am I; Const 1963, art 1, § 3), or the state

Title-Object Clause, Five-Day Rule, or Distinct-Statement Clause

(Const 1963, art 4, §§ 24, 26, and 32).

Honigman Miller Schwartz and Cohn LLP (

by June

Summers Haas and Brian T. Quinn) and Silverstein

& Pomerantz LLP (by Amy Silverstein and Edwin

Antolin) for Gillette Commercial Operations North

America & Subsidiaries.

Miller, Canﬁeld, Paddock and Stone, PLC (by Clif-

ford W. Taylor, Gregory A. Nowak, Michael P. Coakley,

and David G. King), for Yaskawa America, Inc., Rainier

Investment Management, Inc., and others.

Honigman Miller Schwartz and Cohn LLP (by Dan-

iel L. Stanley and Brian T. Quinn) for Sonoco Products

Company.

Honigman Miller Schwartz and Cohn LLP (by Pat-

rick R. Van Tiﬂin, Daniel L. Stanley, and Brian T.

Quinn) for Anheuser-Busch, LLC, Ingram Micro, Inc.,

and others.

2015] G

ILLETTE V

REAS

’

399

Michael Best & Friedrich LLP (by Brian R. Tumm)

and Sutherland Asbill & Brennan LLP (by Jonathan

A. Feldman and Eric S. Tresh) for Lubrizol Corpora-

tion.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, and Eric M. Jamison, Zachary C.

Larsen, Michael R. Bell, Scott L. Damich, Emily C.

Zillgitt, and Randi M. Merchant, Assistant Attorneys

General, for the Department of Treasury.

Amicus Curiae:

Richard D. Pomp in propria persona.

Before: M

URRAY

, P.J., and J

ANSEN

and M

ETER

, JJ.

URRAY

, P.J.

I. INTRODUCTION

In these consolidated appeals, numerous foreign

corporations doing business in Michigan appeal as of

right

the trial court’s orders granting summary dispo-

sition to defendant, the Michigan Department of Trea-

sury, pursuant to MCR 2.116(I)(1), and dismissing

their complaints.

These cases involve a signiﬁcant number of state

and federal constitutional challenges to 2014 PA 282,

which the Legislature—taking the cue from the Su-

preme Court in Int’l Business Machines Corp v Dep’t

of Treasury, 496 Mich 642; 852 NW2d 865 (2014)

(IBM)—enacted to retroactively rescind Michigan’s

membership in the Multistate Tax Compact (the Com-

By foreign we mean corporations that were incorporated outside

Michigan, not necessarily outside the United States.

400 312 M

ICH

394 [Sept

pact), precluding foreign corporations from utilizing a

three-factor apportionment formula previously avail-

able under the Compact. See former MCL 205.581 et

seq., as enacted by 1969 PA 343. In a well-written and

well-reasoned opinion, the trial court rejected each of

the constitutional challenges.

For the reasons ex-

pressed

below, so do we. Consequently, we afﬁrm the

trial court’s ﬁnal orders of dismissal.

II. BACKGROUND FACTS AND PROCEDURAL HISTORY

Rather than re-creating the wheel, we adopt the

trial court’s recitation of the background facts leading

to these lawsuits:

History of the Compact

The Compact is an interstate tax agreement that was

originally enacted in 1967 by the legislatures of seven

states. The Compact was initially drafted out of concerns of

state sovereignty in reaction to the introduction of federal

legislation that sought to regulate various areas of state

taxation.

The original purposes of the Compact included:

(1) facilitating proper determination of state

and local tax liability of multistate taxpayers,

including the equitable apportionment of tax

bases and settlement of apportionment dis-

putes; (2) promoting uniformity and compat-

ibility in state tax systems; (3) facilitating

taxpayer convenience and compliance in the

ﬁling of tax returns and in other phases of tax

administration; and (4) avoiding duplicative

The trial court, M

ICHAEL

J. T

ALBOT

, J., issued two full opinions in

these cases. The orders resolving the other cases referred back to the

reasoning set forth in those opinions. For ease of reference, when we

refer to the trial court’s reasoning, we are referring to the reasoning set

forth in Yaskawa America, Inc v Dep’t of Treasury, unpublished opinion

and order of the Court of Claims, issued December 19, 2014 (Case No.

11-000077-MT).

2015] G

ILLETTE V

REAS

’

401

taxation. [US Steel Corp v Multistate Tax

Comm, 434 US 452, 456; 98 S Ct 799; 54 L Ed

2d 682 (1978).

]

Michigan adopted the Compact provisions, effective in

1970, through enactment of 1969 PA 343.

Apportionment Formulas under the Compact

and the MBT Act

The present case, and others like it, concern two

alternative methods of apportioning income for purposes

of calculating [Michigan business tax (MBT)]. Under the

MBT Act, created by 2007 PA 36,

income is apportioned

by applying a single factor apportionment formula based

solely on sales. MCL 208.1301(2). In contrast, under the

Compact’s election provision, income may be apportioned

using an equally-weighted, three-factor apportionment

formula based on sales, property and payroll. The poten-

tial effect of electing “out” of the MBT Act’s single-factor

apportionment methodology is a reduction of the overall

apportionment percentage for companies that do not have

signiﬁcant property and payroll located in Michigan.

Decision in IBM

In IBM, 496 Mich 642, the Supreme Court considered

the issue of whether MBT taxpayers must use a single-

factor apportionment formula as mandated by the MBT

Act or whether MBT taxpayers may elect to apply a

three-factor apportionment formula under the Compact.

The parties were asked by the Court to brief four issues:

(1) whether the plaintiff could elect to use the

apportionment formula provided in the Multi-

state Tax Compact, MCL 205.581, in calculat-

ing its 2008 tax liability to the State of Michi-

gan, or whether it was required to use the

apportionment formula provided in the Michi-

gan Business Tax Act, MCL 208.1101 et seq.; (2)

whether § 301 of the Michigan Business Tax

Act, MCL 208.1301, repealed by implication

Article III(1) of the Multistate Tax Compact; (3)

whether the Multistate Tax Compact consti-

tutes a contract that cannot be unilaterally

402 312

ICH

394 [Sept

altered or amended by a member state; and (4)

whether the modiﬁed gross receipts tax compo-

nent of the Michigan Business Tax Act consti-

tutes an income tax under the Multistate Tax

Compact. [Int’l Business Machines v Dep’t of

Treasury, 494 Mich 874; 832 NW2d 388 (2013).]

In its decision, the Court determined that for tax years

2008 through 2010,

the Legislature did not repeal by

implication the three-factor apportionment formula as set

forth in MCL 205.581 et seq., and concluded that the

taxpayer was entitled to use the Compact’s three-factor

apportionment formula in calculating its 2008 taxes. The

Court also concluded that both the business income tax

base and the modiﬁed gross receipts tax base of the MBT

are “income taxes” within the meaning of the Compact.

The Court did not reach the third issue of whether the

Compact constitutes a contract. On November 14, 2014,

the Michigan Supreme Court denied reconsideration. Int’l

Business Machines v Dep’t of Treasury, [497 Mich 894];

855 NW2d 512 (2014).

Retroactive Repeal of the Compact Provisions by

[2014] PA 282

On September 11, 2014, 2013 SB 156 (SB 156) was

enacted into law as [2014] PA 282, amending the MBT Act

and expressly repealing the Compact provisions, as codi-

ﬁed under MCL 205.581 to MCL 205.589. The Legislature

gave the Act retroactive effect by providing as follows:

Enacting section 1. 1969 PA 343, MCL 205.581

to 205.589, is repealed retroactively and effec-

tive beginning January 1, 2008. It is the intent

of the legislature that the repeal of 1969 PA

343, MCL 205.581 to 205.589, is to express the

original intent of the legislature regarding the

application of section 301 of the Michigan

business tax act, 2007 PA 36, MCL 208.1301,

and the intended effect of that section to

eliminate the election provision included

within section 1 of 1969 PA 343, MCL 205.581,

and that the 2011 amendatory act that

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amended section 1 of 1969 PA 343, MCL

205.581, was to further express the original

intent of the legislature regarding the applica-

tion of section 301 of the Michigan business

tax act, 2007 PA 36, MCL 208.1301, and to

clarify that the election provision included

within section 1 of 1969 PA 343, MCL 205.581,

is not available under the income tax act of

1967, 1967 PA 281, MCL 206.1 to 206.713.

[2014] PA 282 thus amended the MBT Act to express the

“original intent” of the Legislature with regard to (1) the

repeal of the Compact provisions, (2) application of the

MBT Act’s apportionment provision under MCL 208.1301,

and (3) the intended effect of the Compact’s election

provision under MCL 205.581.

The effect of the amend-

ments, as written, retroactively eliminates a taxpayer’s

ability to elect a three-factor apportionment formula in

calculating tax liability under both the MBT Act and

income tax act.

_____________________________________________________

The legislation, which was never enacted, was intro-

duced in the wake of Northwestern States Portland Ce-

ment Co v Minnesota, 358 US 450; 79 S Ct 357; 3 L Ed 2d

421 (1959), which held that there is no Commerce Clause

barrier to the imposition of a direct income tax on a foreign

corporation carrying on interstate business within a tax-

ing state.

The Compact was never approved by Congress, but it

was upheld against constitutional challenges in US Steel,

434 US 452.

For a history of business taxation in Michigan, see

IBM, 496 Mich at 648-650.

The Legislature explicitly repealed the Compact ap-

portionment provisions effective January 1, 2011, through

enactment of 2011 PA 40.

[2014] PA 282 also clariﬁed that the Compact’s

election provision is not available under the income tax act

of 1967, 1967 PA 281.

_____________________________________________________

404 312

ICH

394 [Sept

Between 2011 and 2015 these multistate taxpayers

all ﬁled suit in the Court of Claims seeking refunds due

under the Compact that had been refused by Treasury

on the ground that the only apportionment method

available was that established by the MBT. Most of the

cases were ﬁled prior to the Supreme Court’s resolu-

tion of IBM, so the trial court prudently held the cases

in abeyance pending that decision. Ultimately, how-

ever, the case was resolved not by the IBM decision,

but by passage of 2014 PA 282, at least once the trial

court upheld the statute against plaintiffs’ constitu-

tional challenges. We now turn our attention to those

same constitutional arguments.

III. ANALYSIS

STANDARDS OF REVIEW

The trial court entered summary disposition in favor

of Treasury under MCR 2.116(I)(1), a decision which we

review de novo. Keneﬁck v Battle Creek, 284 Mich App

653, 654; 774 NW2d 925 (2009). MCR 2.116(I)(1) states,

“If the pleadings show that a party is entitled to judg-

ment as a matter of law, or if the afﬁdavits or other

proofs show that there is no genuine issue of material

fact, the court shall render judgment without delay.” We

likewise pay no deference to the trial court’s statutory

interpretation or resolution of constitutional issues, as

both of those issues also require review de novo. Elba

Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 277-278;

831 NW2d 204 (2013); Gen Motors Corp v Dep’t of

Treasury, 290 Mich App 355, 369; 803 NW2d 698

(2010).

Though we can give no deference to the trial court’s legal rulings,

unlike the deference we give to discretionary calls on evidence or

ﬁndings of fact, we nevertheless give the trial court’s legal rulings

careful consideration.

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B. GENERAL PRINCIPLES

Before delving into our analysis of these issues, we

ﬁrst set forth in chronological sequence several undis-

puted factual matters and legal principles that, al-

though partially contained in Part II of this opinion,

are worth keeping in mind as they provide critical

background for our decision:

1. Michigan became a member state to the Compact

in 1970.

2. A member state can withdraw from the Compact

by “enacting a statute repealing the same.” Former

MCL 205.581, art X(2).

3. Under the Compact as originally enacted, a for-

eign business taxpayer had the option of either utiliz-

ing the apportionment formula under the Compact or

what was available under a state’s tax laws. Former

MCL 205.581, art III.

4. The Michigan Business Tax Act, enacted into law

in 2007 and effective January 1, 2008, required foreign

business taxpayers to use the apportionment formula

contained in the act. MCL 208.1301(2) and MCL

208.1303.

5. In 2011, the Legislature repealed the apportion-

ment provision of the Compact, effective January 1,

2011. 2011 PA 40.

6. In IBM, the Supreme Court held that through

2011 PA 40 the Legislature created a window (from

January 1, 2008 until January 1, 2011) wherein cer-

tain taxpayers could still utilize the apportionment

option available under Article IV of the Compact. The

Court recognized that the Legislature “could have—

but did not—extend this retroactive repeal to the start

date of the [MBT].” IBM, 496 Mich at 659.

406 312 M

ICH

394 [Sept

7. In response to the IBM decision, the Legislature

enacted 2014 PA 282, which retroactively repealed the

Compact to the start date of the MBT. 2014 PA 282

therefore eliminated the three-year window the IBM

Court stated was created by 2011 PA 40.

8. In general, it is constitutional for tax statutes to

be retroactively amended, and taxpayers do not gener-

ally have a vested interest in tax laws that exist at any

particular moment. United States v Carlton, 512 US

26, 30; 114 S Ct 2018; 129 L Ed 2d 22 (1994).

With these principles and facts in mind, we now turn

our attention to the precise arguments put forth by the

parties.

C. STATE AND FEDERAL CONTRACTS CLAUSES

We ﬁrst address whether repeal of the Compact

hrough 2014 PA 282 violated the Contracts Clauses of

the state and federal Constitutions. The United States

Constitution provides that “[n]o State shall . . . pass

any . . . Law impairing the Obligation of Contracts,” US

Const, art I, § 10, cl 1, while our state Constitution

similarly provides that “[n]o . . . law impairing the obli-

gation of contract shall be enacted,” Const 1963, art 1,

§ 10. In conducting this constitutional review, we give

deference to the legislative branch by presuming stat-

utes to be constitutional, and we will construe statutes

as constitutional unless their unconstitutionality is

clearly apparent. In re Request for Advisory Opinion

Regarding Constitutionality of 2011 PA 38, 490 Mich

295, 307; 806 NW2d 683 (2011). This presumption is

“ ‘especially strong’ ” when tax legislation is concerned.

Id. at 308 (citation omitted).

Like many provisions of the federal Constitution,

the Contracts Clause has not been applied by the

Supreme Court according to its plain, unequivocal

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language. As that Court has acknowledged, “[a]l-

though the language of the Contract Clause is facially

absolute, its prohibition must be accommodated to the

inherent police power of the State ‘to safeguard the

vital interests of its people.’ ” Energy Reserves Group,

Inc v Kansas Power & Light Co, 459 US 400, 410; 103

S Ct 697; 74 L Ed 2d 569 (1983), quoting Home Bldg

& Loan Ass’n v Blaisdell, 290 US 398, 434; 54 S Ct

231; 78 L Ed 413 (1934). In order to determine

whether the clause’s prohibition should be accommo-

dated, the Supreme Court developed a three-part test.

The ﬁrst part of the three-part test is “whether the

change in state law has ‘operated as a substantial

impairment of a contractual relationship.’ ” Gen Mo-

tors Corp v Romein, 503 US 181, 186; 112 S Ct 1105;

117 L Ed 2d 328 (1992), quoting Allied Structural

Steel Co v Spannaus, 438 US 234, 244; 98 S Ct 2716;

57 L Ed 2d 727 (1978).

Whether a change in state law has resulted in “a

substantial impairment of a contractual relationship”

itself requires consideration of three factors: “[1]

whether there is a contractual relationship, [2]

whether a change in law impairs that contractual

relationship, and [3] whether the impairment is sub-

stantial.” Romein, 503 US at 186. If this ﬁrst prong of

the test is met, i.e., “[i]f the state regulation constitutes

a substantial impairment, the State, in justiﬁcation,

must have a signiﬁcant and legitimate public purpose

behind the regulation . . . .” Energy Reserves Group,

459 US at 411. Finally, the third part of the test is

“whether the adjustment of the rights and responsibili-

ties of contracting parties [is based] upon reasonable

conditions and [is] of a character appropriate to the

public purpose justifying [the legislation’s] adoption.”

Id. at 412 (citation and quotation marks omitted;

408 312 M

ICH

394 [Sept

alterations in original). See also Borman LLC v 18718

Borman, LLC, 777 F3d 816, 824-825 (CA 6, 2015).

We agree with the trial court that the Compact is not

a binding contract under Michigan law. Because Con-

gress did not approve the Compact, Michigan law

governs its interpretation. See McComb v Wambaugh,

934 F2d 474, 479 (CA 3, 1991) (stating that where the

consent of Congress is not obtained, a compact does not

express federal law and must be construed as state

law). The trial court provided the following analysis of

the Compact under Michigan law, with which we are in

full agreement:

In Michigan, there is a “strong presumption that stat-

utes

do not create contractual rights.” Studier v Mich Pub

Sch Employees’ Retirement Bd, 472 Mich 642, 661; 698

NW2d 350 (2005). “In order for a statute to form the basis

of a contract, the statutory language must be plain and

susceptible of no other reasonable construction than that

the Legislature intended to be bound to a contract.” Id. at

662 (quotation marks and citation omitted). As noted in

the dissent in IBM, “[t]his presumption is grounded in the

principle that ‘surrenders of legislative power are subject

to strict limitations that have developed in order to protect

the sovereign prerogatives of state governments.’ ” IBM,

496 Mich at 682 (M

ORMACK

, J., dissenting), quoting

Studier, 472 Mich at 661.

There are no words in the Compact, as adopted by the

Legislature under 1969 PA 343, that indicate that the

state intended to be bound to the Compact, and speciﬁ-

cally to Article III(1). Therefore, the presumption must be

that the state did not surrender its legislative power to

require use of a particular apportionment formula. Such

interpretation comports with the Supreme Court’s recog-

nition of “the basic principle[] that the States have wide

Lower federal court decisions are not binding on this Court but may

be considered for their persuasive value. Abela v Gen Motors Corp, 469

Mich 603, 606-607; 677 NW2d 325 (2004).

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409

latitude in the selection of apportionment formulas . . . .”

Moorman [Mfg Co v Blair], 437 US [267,] 274[; 98 S Ct

2340; 57 L Ed 2d 197 (1978)]. This interpretation is also

consistent with the Court’s recent acknowledgement that

states “do not easily cede their sovereign powers . . . .”

Tarrant [Regional Water Dist v Herrmann], [569 US ___,

___] 133 S Ct [2120,] 2132 [186 L Ed 2d 153 (2013)].

Because there is no clear indication under MCL 205.581

that the state contracted away its ability to either select

an apportionment formula that differs from the Compact,

or to repeal the Compact altogether, the Court concludes

that no contractual obligation was created by enactment

of 1969 PA 343 that would prohibit the enactment of

[2014] PA 282.

See also Konopka,

309 Mich App at 361-365 (ﬁnding no

separation of powers violation where the Legislature

retroactively amended a statute that was perceived to

have been misconstrued by the judiciary); GMAC, 286

Mich App at 380 (“[I]t is the province of the Legislature

to acquiesce in the judicial interpretation of a statute

or to amend the legislation to obviate a judicial inter-

pretation.”).

There are several reasons why the Legislature did

not violate the Separation of Powers Clause by retro-

actively repealing the Compact to January 1, 2008,

thereby obviating the IBM Court’s legal conclusions.

First, 2014 PA 282 did not reverse a judicial decision or

repeal a ﬁnal judgment. In IBM, 496 Mich at 645,

658-659, 662 (opinion by V

IVIANO

, J.), the lead opinion

held that 2007 PA 36 did not implicitly repeal the

Compact’s election provision. 2014 PA 282 did not

overturn that judicial interpretation of the 2007 law.

Instead, the Legislature created a new law, not inter-

preted by the IBM Court, that explicitly repealed the

Compact provisions effective January 1, 2008, to fur-

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427

ther what the Legislature understood to have been its

original intent when it enacted 2007 PA 36. This did

not impinge on the judiciary’s role of interpreting the

law but instead corrected a mistake that was made

clear by the holding in IBM. That is, the Legislature in

2014 PA 282 explicitly repealed the Compact provisions

after the holding in IBM revealed that the Compact

election provision had not been implicitly repealed by

the enactment of 2007 PA 36. Although 2014 PA 282

may have rendered moot the effect of the judicial

interpretation in IBM, this did not overturn that

Court’s judgment and did not violate the Separation of

Powers Clause. See Romein, 436 Mich at 537 (citing

with approval a federal case “reason[ing] that the

Legislature’s enactment of a retroactive statute repeal-

ing the effects of a prior judicial decision is not an

exercise of judicial power”); GMAC, 286 Mich App at

380 (“[I]t is the province of the Legislature to acquiesce

in the judicial interpretation of a statute or to amend

the legislation to obviate a judicial interpretation.”).

Some plaintiffs cite Presque Isle Twp Bd of Ed v

Presque Isle Co Bd of Ed, 364 Mich 605, 612; 111

NW2d 853 (1961), for the proposition that a legisla-

tive body may not declare what its intention was on a

former occasion such that it would affect past trans-

actions. Although Presque Isle cited a Wisconsin case

that contained this language, the actual holding in

Presque

Isle was the unremarkable proposition that

one legislator’s present recollection of what he in-

tended when a bill was passed could not be received in

evidence for use in interpreting a statute. Id. The

holding in Presque Isle is inapplicable to this issue.

Northern Trust Co v Snyder, 113 Wis 516; 89 NW 460 (1902).

Plaintiffs also contend that the 2014 Legislature could not declare

the intent of the Legislature in 2007 because only 15% of the members

428 312 M

ICH

394 [Sept

Finally, plaintiffs proclaim that they are entitled to

the beneﬁt of the IBM Court’s ruling as to the effect of

2007 PA 36. They are wrong. Instead, it is well settled

that our duty as an appellate court is to apply the most

recent legislative pronouncement on an issue pending

before this Court when the Legislature makes the new

law or amendment retroactive. As stated by the United

States Supreme Court:

It is true, as petitioners contend, that Congress can

always

revise the judgments of Article III courts in one

sense: When a new law makes clear that it is retroactive,

an appellate court must apply that law in reviewing

judgments still on appeal that were rendered before the

law was enacted, and must alter the outcome accord-

ingly. . . . It is the obligation of the last court in the

hierarchy that rules on the case to give effect to Congress’s

latest enactment, even when that has the effect of over-

turning the judgment of an inferior court, since each court,

at every level, must “decide according to existing laws.”

Having achieved ﬁnality, however, a judicial decision

becomes the last word of the judicial department with

regard to a particular case or controversy, and Congress

may not declare by retroactive legislation that the law

applicable to that very case was something other than

what the courts said it was. [Plout v Spendthrift Farm,

Inc, 514 US 211, 226-227; 115 S Ct 1447; 131 L Ed 2d 328

(1995) (citations omitted).]

2014 PA 282 did not declare what the law was as to

any

ﬁnal judgment, as each of these cases was pend-

of the 2014 Legislature were members of the 2007 Legislature. We have

been presented with no authority stating that the composition of the

Legislature affects whether it may clarify its original intent in enacting

a prior law, Hover v Chrysler Corp, 209 Mich App 314, 319; 530 NW2d 96

(1995) (stating that a party may not leave it to the Court to search for

authority to sustain or reject the party’s position), and cannot square

that purported rule with the overwhelming caselaw recognizing the

Legislature’s power to correct what it perceives to be an incorrect

interpretation of a statute.

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429

ing

when the statute was passed. In other words,

none of these cases had a judgment that was “frozen,”

King v McPherson Hosp, 290 Mich App 299, 306; 810

NW2d 594 (2010) (quotation marks and citations omit-

ted), and so it was constitutionally permissible to apply

2014 PA 282 to these pending cases.

For all these reasons, we hold that the Legislature

did not violate the Separation of Powers Clause of the

state Constitution when it enacted 2014 PA 282.

F. COMMERCE CLAUSE

We next turn to plaintiff’s argument that 2014 PA

282

violates the Commerce Clause of the United States

Constitution.

The Commerce Clause, US Const, art I, § 8, pro-

vides: “The Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the sev-

eral States, and with the Indian Tribes . . . .” Although

the Commerce Clause says nothing about the protec-

tion of interstate commerce in the absence of any

action by Congress, the Supreme Court has greatly

expanded this Clause to include “a negative sweep” by

“prohibit[ing] certain state actions that interfere with

interstate commerce.” Quill Corp v North Dakota, 504

US 298, 309; 112 S Ct 1904; 119 L Ed 2d 91 (1992).

According to the Court, the Commerce “Clause prohib-

its discrimination against interstate commerce and

bars state regulations that unduly burden interstate

commerce.” Id. at 312 (citations omitted).

The United States Supreme Court . . . has established

four-pronged test to determine whether a state tax

Although International Business Machines is a party to these

appeals, its tax appeal from the 2008 tax year—the tax year subject to

the Supreme Court’s 2014 IBM decision—is not at issue here.

430 312 M

ICH

394 [Sept

violates the Commerce Clause. Complete Auto Transit, Inc

v Brady, 430 US 274, 279; 97 S Ct 1076; 51 L Ed 2d 326

(1977). A state tax will withstand scrutiny under a Com-

merce Clause challenge and will be held to be constitu-

tionally valid under the four-pronged test articulated in

Complete Auto provided that the tax: (1) is applied to an

activity having a substantial nexus with the taxing state,

(2) is fairly apportioned, (3) does not discriminate against

interstate commerce, and (4) is fairly related to the

services provided by the state. [Caterpillar, Inc v Dep’t of

Treasury, 440 Mich 400, 415; 488 NW2d 182 (1992).]

Only the third prong is challenged in this case; plain-

tiffs

contend that 2014 PA 282 discriminates against

interstate commerce. “A tax violates the third prong of

the Complete Auto test if it is facially discriminatory,

has a discriminatory purpose, or has the effect of

unduly burdening interstate commerce.” Caterpillar,

440 Mich at 422, citing Amerada Hess Corp v New

Jersey Dep’t of Treasury, 490 US 66, 75; 109 S Ct 1617;

104 L Ed 2d 58 (1989).

We hold that 2014 PA 282 does not discriminate

against or unduly burden interstate commerce. First,

2014 PA 282 is not facially discriminatory. A tax statute

is facially discriminatory if there is “an explicit dis-

criminatory design to the tax.” Amerada Hess, 490 US

at 76. 2014 PA 282 does not, on its face, create any

classiﬁcation based on a taxpayer’s state of origin or

the location of commerce. Rather, it repeals the Com-

pact and eliminates the provision allowing election of a

three-factor apportionment formula for all taxpayers,

both in-state and out-of-state companies. Therefore,

2014 PA 282 does not reﬂect an explicit discriminatory

design, and no facial discrimination occurred.

Second, 2014 PA 282 does not have a discriminatory

purpose. A discriminatory purpose may be found, for

example, where a tax statute “was motivated by an

2015] G

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431

intent to confer a beneﬁt upon local industry not

granted to out-of-state industry . . . .” Amerada Hess,

490 US at 76. 2014 PA 282 states that it was enacted to

express the original intent of the Legislature to elimi-

nate the election provision for purposes of the MBT Act

and the Income Tax Act, as well as to protect state

revenues. Senate Legislative Analysis, SB 156, Sep-

tember 10, 2014, pp 3-5. There is no evidence of a

legislative intent to give a beneﬁt to local industry that

is denied to out-of-state businesses. Indeed, 2014 PA

282 puts in- and out-of-state corporate taxpayers in the

same position relative to Michigan tax calculations.

There is a contention by some that a discriminatory

purpose is reﬂected in comments made by certain

legislators to the media, but as we have said, state-

ments of individual legislators generally do not com-

prise proper evidence of legislative intent. See

Chmielewski v Xermac, Inc, 457 Mich 593, 609 n 18;

580 NW2d 817 (1998); Detroit Pub Sch Bd of Ed v

Romulus Community Sch Bd of Ed, 227 Mich App 80,

89 n 4; 575 NW2d 90 (1997); Williamston v Wheatﬁeld

Twp, 142 Mich App 714, 719; 370 NW2d 325 (1985),

citing Presque Isle, 364 Mich at 612. Plaintiffs identify

no caselaw permitting consideration of the statements

of individual legislators, particularly statements made

to the media, to establish legislative intent. And in any

event, the purported media comments of the legislators

do not reveal any intent to discriminate against inter-

state commerce but, instead, are reasonably under-

stood to reﬂect a desire to ensure a level playing ﬁeld

and to avoid giving an unfair advantage to out-of-state

businesses. There is no evidence of a discriminatory

purpose underlying the enactment of 2014 PA 282.

Third, 2014 PA 282 does not have a discriminatory

effect, as it merely precludes both in-state and out-of-

432 312 M

ICH

394 [Sept

state taxpayers from electing the three-factor appor-

tionment formula previously available under the Com-

pact. The federal Constitution does not require the use

of a particular apportionment formula, and a single-

factor formula is presumptively valid. See Moorman,

437 US at 273, which provides a good example. In

Moorman, the Supreme Court rejected a Commerce

Clause challenge to Iowa’s use of a single-factor for-

mula; the Court did not agree with the argument that

Iowa’s single-factor formula was responsible for an

alleged duplication of taxation with Illinois, which

used a three-factor formula. Id. at 276-281. The Court

held that, in the absence of implementing legislation

from Congress, the Commerce Clause did not require

Iowa to compute net income under Illinois’s three-

factor formula. Id. at 277-278. The Court reasoned in

part that any disparity in the tax treatment of Iowa

and Illinois companies was “not attributable to the

Iowa statute. It treats both local and foreign concerns

with an even hand; the alleged disparity can only be

the consequence of the combined effect of the Iowa and

Illinois statutes, and Iowa is not responsible for the

latter.” Id. at 277 n 12. The purported “discrimination”

against interstate commerce was “simply a way of

describing the potential consequences of the use of

different formulas by the two States. These conse-

quences, however, could be avoided by the adoption of

any uniform rule; the ‘discrimination’ does not inhere

in either State’s formula.” Id.

Plaintiffs have not established that application of

the single-factor formula required by 2014 PA 282

discriminatorily affects out-of-state companies. As

noted, the single-factor formula applies to all taxpay-

ers, both Michigan and out-of-state companies. As with

the Iowa statute in Moorman, 2014 PA 282 treats local

and foreign companies with an equal hand by requir-

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433

ing the single-factor formula for both. Any purported

discrimination against interstate commerce is, in

truth, “simply a way of describing the potential conse-

quences of the use of different formulas by” Michigan

and other states. Moorman, 437 US at 277 n 12. Such

“consequences, however, could be avoided by the adop-

tion of any uniform rule; the ‘discrimination’ does not

inhere in” the apportionment formula used by Michi-

gan or by other states. Id. Plaintiffs have not estab-

lished that Michigan’s single-factor formula discrimi-

nates against interstate commerce. 2014 PA 282 does

not violate the Commerce Clause.

G. THE FIRST AMENDMENT

Moving on to the next argument, we conclude that

plaintiffs

were not denied the right to petition the

government under the First Amendment of the federal

Constitution or the analogous Michigan provision.

“The right of citizens to petition their government for

redress of grievances is speciﬁcally guaranteed by the

United States and Michigan Constitutions.” Jackson Co

Ed Ass’n v Grass Lake Community Sch Bd of Ed, 95

Mich App 635, 641; 291 NW2d 53 (1979), citing US

Const, Am I, and Const 1963, art 1, § 3. But this right

“may be circumscribed to the extent necessary to

achieve a valid state objective.” Jackson Co Ed Ass’n, 95

Mich App at 642. The right to petition extends to all

departments of the government and includes the right

of access to the courts. California Motor Transp Co v

Trucking Unlimited, 404 US 508, 510; 92 S Ct 609; 30 L

Ed 2d 642 (1972). See also In re ALZ, 247 Mich App 264,

276; 636 NW2d 284 (2001) (noting that the California

Motor Transp Court “found a constitutional basis for the

right of access to the courts as an aspect of the First

Amendment right of petition”); Mayor of Lansing v

434 312 M

ICH

394 [Sept

Knights of the Ku Klux Klan (After Remand), 222 Mich

App 637, 647; 564 NW2d 177 (1997) (“The First

Amendment right to petition the government has been

construed to implicate the right of access to courts for

redress of wrongs.”).

However, the First Amendment right to advocate

does not guarantee that the speech will persuade or

that the advocacy will be effective. Smith v Arkansas

State Hwy Employees, Local 1315, 441 US 463, 464-

465; 99 S Ct 1826; 60 L Ed 2d 360 (1979). That is, “the

First Amendment does not impose any afﬁrmative

obligation on the government to listen” or respond to

the speaker. Id. at 465. “Nothing in the First Amend-

ment or in [the United States Supreme] Court’s case

law interpreting it suggests that the rights to speak,

associate, and petition require government policymak-

ers to listen or respond to individuals’ communications

on public issues.” Minnesota State Bd for Community

Colleges v Knight, 465 US 271, 285; 104 S Ct 1058; 79

L Ed 2d 299 (1984). See also We The People Founda-

tion, Inc v United States, 376 US App DC 117, 120; 485

F3d 140 (2007) (rejecting the plaintiffs’ contention

“that they have a right under the First Amendment to

receive a government response to or ofﬁcial consider-

ation of a petition for a redress of grievances”).

Further, legislative retraction of the only remedy

available to a decision-maker is different from inter-

ference with the plaintiffs’ abilities to express their

views to the decision-maker. Thus, such a retraction

does not violate the right to petition the government.

Mich Deferred Presentment Servs Ass’n, Inc v Comm’r

of the Ofﬁce of Fin & Ins Regulation, 287 Mich App 326,

336; 788 NW2d 842 (2010) (ﬁnding no denial of lenders’

right of access to courts in a 42 USC 1983 case, stating

that “[p]laintiff cannot claim that a violation of 42 USC

2015] G

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1983 occurred simply because a newly enacted statute

precluded recovery of certain damages that plaintiff’s

members had become accustomed to receiving in [non-

sufﬁcient funds] cases”). Accord American Bus Ass’n v

Rogoff, 396 US App DC 353, 360; 649 F3d 734 (2011).

Plaintiffs assert that, in rejecting their argument,

the trial court erred in relying on cases addressing the

right to be heard by the Legislature; plaintiffs say they

are instead contending that they were “thrown out of

court.” As a result of the enactment of 2014 PA 282,

plaintiffs contend that they have been denied the right

to petition Treasury and to appeal to a court for a

refund of taxes already paid. Plaintiffs characterize

this as a classic denial of the right to petition and rely

on Flagg v Detroit, 715 F3d 165, 174 (CA 6, 2013), to

argue that they have established the elements neces-

sary to establish a denial of access to the courts.

In Flagg, the court observed that the United States

“Supreme Court has recognized a constitutional right

of access to the courts, whereby a plaintiff with a

nonfrivolous legal claim has the right to bring that

claim to a court of law.” Id. at 173, citing Christopher v

Harbury, 536 US 403, 415 n 12; 122 S Ct 2179; 153 L

Ed 2d 413 (2002). The right to access the courts does

not create substantive rights; a plaintiff claiming a

denial of access “must have an arguable, nonfrivolous

underlying cause of action.” Flagg, 715 F3d at 173. The

Flagg court explained:

Denial of access to the courts claims may be forward-

looking

or backward-looking. In forward-looking claims,

the plaintiff accuses the government of creating or main-

taining some frustrating condition that stands between

the plaintiff and the courthouse door. The object of the suit

is to eliminate the condition, thereby allowing the plain-

tiff, usually an inmate, to sue on some underlying legal

claim. In backward-looking claims, such as those at issue

436 312

ICH

394 [Sept

in the instant case, the government is accused of barring

the courthouse door by concealing or destroying evidence

so that the plaintiff is unable to ever obtain an adequate

remedy on the underlying claim. Backward-looking claims

are much less established than forward-looking claims,

but this Court has recognized them and the Supreme

Court has provided additional guidance as to the elements

of a viable backward-looking claim. [Id. (citations and

quotation marks omitted).]

Relying on Christopher, 536 US 403, and Swekel v City

of River Rouge, 119 F3d 1259 (CA 6, 1997), the Flagg

court identiﬁed the “elements of a backward-looking

denial of access claim: (1) a non-frivolous underlying

claim; (2) obstructive actions by state actors; (3) sub-

stantial[] prejudice to the underlying claim that cannot

be remedied by the state court; and (4) a request for

relief which the plaintiff would have sought on the

underlying claim and is now otherwise unattainable.”

Flagg, 715 F3d at 174 (citations and quotation marks

omitted; alteration in original).

Plaintiffs cannot establish the second element iden-

tiﬁed in Flagg for a backward-looking denial-of-access

claim, as there are no obstructive actions by state

actors. Although plaintiffs contend that enactment of

2014 PA 282 obstructed plaintiffs’ access to the courts

by retroactively destroying their right to elect the

three-factor apportionment formula under the Com-

pact and preventing them from obtaining a larger tax

refund, Flagg itself indicates that a backward-looking

denial of access claim can only prevail when “the

government is accused of barring the courthouse door

by concealing or destroying evidence . . . .” Flagg, 715

F3d at 173 (emphasis added). There is no allegation in

these cases that Treasury or any state actor has

concealed or destroyed evidence. The enactment of

2014 PA 282, which retroactively repealed the Compact

2015] G

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and required the use of a single-factor apportionment

formula, did not deny plaintiffs access to the courts. In

fact, as is obvious, this very litigation demonstrates

that plaintiffs have had an ample opportunity to pres-

ent their arguments to the courts.

Legislative elimi-

nation

of the right to elect the three-factor apportion-

ment formula, and any refund on the basis of such an

election, does not interfere with plaintiffs’ abilities to

ﬁle claims or seek refunds from the courts or Treasury.

All that they have been prohibited from doing is

seeking a refund under one particular formula. This

does not violate the First Amendment. See American

Bus Ass’n, 396 US App DC at 360; Mich Deferred

Presentment Servs Ass’n, Inc, 287 Mich App at 336.

H. MISCELLANEOUS STATE CONSTITUTIONAL PROVISIONS

Despite plaintiffs’ protests to the contrary, the en-

actment

of 2014 PA 282 did not violate the Title-Object

Clause, the Five-Day Rule, or the Distinct-Statement

Clause of the Michigan Constitution.

1. TITLE-OBJECT

Const 1963, art 4, § 24 provides:

No law shall embrace more than one object, which shall

expressed in its title. No bill shall be altered or

amended on its passage through either house so as to

change its original purpose as determined by its total

content and not alone by its title.

2014 PA 282 contains the following title:

AN ACT to amend 2007 PA 36, entitled “An act to meet

deﬁciencies

in state funds by providing for the imposition,

Like any other citizen, plaintiffs had the ability under the First

Amendment to voice any objection to the Legislature or Governor before

2014 PA 282 was passed and signed into law.

438 312 M

ICH

394 [Sept

levy, computation, collection, assessment, reporting, pay-

ment, and enforcement of taxes on certain commercial,

business, and ﬁnancial activities; to prescribe the powers

and duties of public ofﬁcers and state departments; to

provide for the inspection of certain taxpayer records; to

provide for interest and penalties; to provide exemptions,

credits, and refunds; to provide for the disposition of

funds; to provide for the interrelation of this act with other

acts; and to make appropriations,” by amending sections

111, 305, 403, and 433 (MCL 208.1111, 208.1305,

208.1403, and 208.1433), sections 111 and 305 as amended

by 2012 PA 605, section 403 as amended by 2008 PA 434,

and section 433 as amended by 2007 PA 215, and by

adding section 508; and to repeal acts and parts of acts.

This Court has explained:

When assessing a title-object challenge to the constitu-

tionality

of a statute, all possible presumptions should be

afforded to ﬁnd constitutionality. An amended title should

be construed reasonably, not narrowly and with unneces-

sary technicality. The goal of the Title-Object Clause is

notice, not restriction, of legislation, and it is only violated

where the subjects are so diverse in nature that they have

no necessary connection. The purpose of the clause is to

prevent the Legislature from passing laws not fully un-

derstood, and to ensure that both the legislators and the

public have proper notice of legislative content and to

prevent deceit and subterfuge. [Lawnichak v Dep’t of

Treasury, 214 Mich App 618, 620-621; 543 NW2d 359

(1995) (citations omitted).]

Three types of challenges may be asserted under the

itle-Object Clause:

(1) a “title-body” challenge, which indicates that the body

exceeds the scope of the title, (2) a “multiple-object chal-

lenge,” which indicates that the body embraces more than

one object, and (3) a “change of purpose challenge,” which

indicates that the subject matter of the amendment is not

germane to the original purpose. [Wayne Co Bd of

Comm’rs v Wayne Co Airport Auth, 253 Mich App 144, 185;

658 NW2d 804 (2002).]

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All three types of challenges have been raised in these

cases.

We agree with the trial court that plaintiffs’

multiple-objects challenge is devoid of merit. “The body

of the law, and not just its title, must be examined to

determine whether the act embraces more than one

object. The purpose of the single-object rule is to avoid

bringing into one bill diverse subjects that have no

necessary connection.” H J Tucker & Assoc, Inc v Allied

Chucker & Engineering Co, 234 Mich App 550, 557; 595

NW2d 176 (1999) (citations and quotation marks omit-

ted). “The object of the legislation must be determined

by examining the law as enacted, not as originally

introduced.” People v Kevorkian, 447 Mich 436, 456;

527 NW2d 714 (1994) (opinion by C

AVANAGH

, C.J., and

RICKLEY

and G

RIFFIN

, JJ.). “The object of a law is

deﬁned as its general purpose or aim. The constitu-

tional requirement should be construed reasonably

and permits a bill enacted into law to include all

matters germane to its object, as well as all provisions

that directly relate to, carry out, and implement the

principal object.” Gen Motors Corp, 290 Mich App at

388 (citations and quotation marks omitted). “Legisla-

tion should not be invalidated merely because it con-

tains more than one means of attaining its primary

object.” City of Livonia v Dep’t of Social Servs, 423

Mich 466, 499; 378 NW2d 402 (1985). “The Legislature

may enact new legislation or amend any act to which

the subject of the new legislation is germane, auxiliary,

or incidental. A statute may authorize the doing of all

things that are in furtherance of the general purpose of

the act without violating the one-object limitation of

art 4, § 24.” Mooahesh v Dep’t of Treasury, 195 Mich

App 551, 564; 492 NW2d 246 (1992) (citations and

quotation marks omitted), overruled in part on other

grounds by Silverman v Univ of Mich Bd of Regents,

440 312 M

ICH

394 [Sept

445 Mich 209 (1994), overruled in part on other

grounds by Parkwood Ltd Dividend Housing Ass’n v

State Housing Dev Auth, 468 Mich 763 (2003).

In Mooahesh, this Court quoted from a prior opinion

of this Court that summarized the single-object re-

quirement in a case concerning the repeal of a tax:

It might have been better draftsmanship to have

laced the provision concerning the taxability of mu-

nicipal transportation utilities in the general prop-

erty tax law (where one might expect to ﬁnd it) rather

than in the home rule act. There is, however, no

constitutional requirement that the legislature do a

tidy job in legislating. It is perfectly free to enact bits

and pieces of legislation in separate acts or to tack

them on to existing statutes even though some per-

sons might think that the bits and pieces belong in a

particular general statute covering the matter. The

constitutional requirement is satisﬁed if the bits and

pieces so enacted are embraced in the object expressed

in the title of the amendatory act and the act being

amended. [Mooahesh, 195 Mich App at 564, quoting

Detroit Bd of Street R Comm’rs v Wayne Co, 18 Mich

App 614, 622-623; 171 NW2d 669 (1969).]

The trial court in Mooahesh found

that 1988 PA 516,

which amended the Income Tax Act to provide that

lottery winnings are taxable, violated the Title-Object

Clause because it repealed a section of the Lottery Act

containing a tax exemption for lottery winnings, which

the trial court viewed as an object distinct from the

general object of raising revenue. Mooahesh, 195 Mich

App at 562. This Court reversed that determination,

noting that the object of 1988 PA 516 was to raise

revenue, id. at 565, and that “[t]he object of such an act

is necessarily broad-ranging and comprehensive.” Id.

at 566 (citation and quotation marks omitted).

Revenues can be raised in any number of ways, as

history

has made obvious. Taxes may be imposed, in-

2015] G

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441

creased, or rearranged. The object of meet[ing] deﬁciencies

in state funds may reasonably be found to include the

repeal of a tax exemption, even if that exemption does not

appear in any act speciﬁcally devoted to taxation. While it

might have been better draftsmanship to have provided

for a separate amendment to the Lottery Act, the inclusion

of the repeal of the tax exemption provision in an act

amending the income tax laws does not render the act in

violation of the single-object requirement. [Id. (citations

and quotation marks omitted; alteration in original).]

In rejecting plaintiffs’ multiple-objects challenge in

the present cases, the trial court discussed Mooahesh

and reasoned as follows:

Just as the statute considered in Mooahesh had

as its

general purpose the raising of revenues, so too was the

general purpose of [2014] PA 282. And just as it might

have been “better draftsmanship” to have provided for a

separate amendment repealing § 34 of the Lottery Act, the

Legislature in enacting [2014] PA 282 might have been

better advised to repeal the Compact provisions in a

separate act. But like the choice to amend the [Income Tax

Act] and repeal a section of the Lottery Act in one act, the

choice to include the repeal of the Compact and amend the

MBT in one act is not a violation of the single-object

requirement.

The trial court’s analysis is convincing. The single

bject, i.e., the general purpose or aim, of 2014 PA 282 is

to amend 2007 PA 36, the MBT Act. This general object

was accomplished by amending provisions of the MBT

Act and by repealing the Compact. This object is re-

ﬂected in the title of 2014 PA 282, which refers to the

amendment of certain sections of 2007 PA 36 and the

repeal of acts and parts of acts. Enacting § 1 of 2014 PA

282 provides that the Compact is repealed retroactive to

January 1, 2008, and provides that the repeal is in-

tended to express the original intent of the Legislature

regarding the application of a section of the MBT Act

442 312 M

ICH

394 [Sept

and to eliminate the apportionment election provision

in the Compact. This enacting section thus clariﬁes that

the repeal of the Compact and the concomitant elimina-

tion of the apportionment election provision is germane

to the object of amending the MBT Act in that it clariﬁes

the appropriate method of apportionment. In other

words, the Compact and the MBT Act are related to one

another because they each pertain to the method of

apportioning the tax base. Thus, 2014 PA 282 does not

contain diverse subjects that have no necessary connec-

tion. Rather, the repeal of the Compact directly relates

to, carries out, and implements the principal object of

amending the MBT Act.

“With regard to a title-body challenge, this Court

has indicated that the title of an act must express the

general purpose or object of the act.” Wayne Co Bd of

Comm’rs, 253 Mich App at 185. “Only the general

object and not all the details and incidents of a statute

need be indicated in the title.” Ace Tex Corp v Detroit,

185 Mich App 609, 616; 463 NW2d 166 (1990).

[I]t is not necessary that a title be an index of all of an act’s

provisions.

It is sufﬁcient that the act centers to one main

general object or purpose which the title comprehensively

declares, though in general terms, and if provisions in the

body of the act not directly mentioned in the title are

germane, auxiliary, or incidental to that general pur-

pose[.] [City of Livonia, 423 Mich at 501 (citations and

quotation marks omitted).]

“Whether a provision is germane to its purpose depends

pon its relationship to the object of the act.” Ace Tex

Corp, 185 MichApp at 616. “The test is whether the title

gives fair notice to the legislators and the public of the

challenged provision. The notice aspect is violated

where the subjects are so diverse in nature that they

have no necessary connection.” H J Tucker & Assoc, Inc,

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234 Mich App at 559 (citations and quotation marks

omitted).

Again, the title of 2014 PA 282 expresses the general

purpose or object of amending the MBT Act and refers

to the repeal of acts or parts of acts. Although the title

does not use the word “Compact,” the title need not be

an index of all of the act’s provisions. City of Livonia,

423 Mich at 501. The repeal of the Compact is ger-

mane, auxiliary, or incidental to the amendment of the

MBT Act because the elimination of the Compact’s

election provision is pertinent to the proper method of

apportionment of the MBT tax base. The subjects are

not so diverse in nature that they lack a necessary

connection, and neither the legislators nor the public

were deprived of notice of the challenged provision. See

also Mooahesh, 195 Mich App at 569 (“Despite [1988

PA 516’s] failure to state explicitly in the title that the

Lottery Act exemption was being repealed, we are able

to declare that the subjects are not so diverse as to

have ‘no necessary connection.’ ”).

When confronting a change-of-purpose challenge, a

court must consider whether the change comprises a

mere amendment or extension of the basic purpose of

the original bill or instead introduces an entirely new

and different subject matter. Anderson v Oakland Co

Clerk, 419 Mich 313, 328; 353 NW2d 448 (1984). “[T]he

test for determining if an amendment or substitute

changes a purpose of the bill is whether the subject

matter of the amendment or substitute is germane to

the original purpose. The test of germaneness is much

like the standard for determining whether a bill is

limited to a single object.” Kevorkian, 447 Mich at 461

(opinion by C

AVANAGH

, C.J., and B

RICKLEY

and G

RIFFIN

JJ.) (citations omitted). In Kevorkian, id. at 451-452,

the bill as introduced would have created a commission

444 312 M

ICH

394 [Sept

on death and dying to study “ ‘voluntary self-

termination of life,’ ” but the amended bill that became

law added criminal penalties for assisting another

person in committing suicide. Our Supreme Court

rejected a change-of-purpose challenge because the

criminal penalties were an interim measure that pro-

vided a stable environment while the commission, the

Legislature, and the citizenry studied the matter fur-

ther. Id. at 461; id. at 497 (B

OYLE

, J., concurring in

part); id. at 511-512 (L

EVIN

, J., concurring in part); id.

at 524 (M

ALLETT

, J., concurring in part).

With respect to 2014 PA 282, both the original and

amended bill contained provisions related to the MBT

tax base. The original purpose of SB 156 was to amend

the MBT Act in various ways, including by enacting

amendments concerning the gross-receipts tax base

under the MBT. The change implemented by substi-

tute H-1, as enrolled as 2014 PA 282, did not introduce

an entirely new and different subject matter. Instead,

it amended or extended the basic purpose of the

original bill by retaining the original amendments and

adding other provisions, including language retroac-

tively repealing the Compact provisions and express-

ing legislative intent concerning the use of the single-

factor apportionment formula and the elimination of

the Compact’s election provision. This was germane to

the original purpose of amending the MBT Act be-

cause, as discussed, the elimination of the Compact’s

election provision was pertinent to the proper method

of apportionment under the MBT Act. Therefore, the

repeal of the Compact was sufﬁciently interconnected

with the MBT Act that it fell within the basic purpose

of the original bill. This was a far cry from the

introduction of an entirely new and different subject

matter, as in Toth v Callaghan, 995 F Supp 2d 774, 778

(ED Mich, 2014), where a bill that began by allowing

2015] G

ILLETTE V

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445

emergency managers to reject, modify, or terminate

collective bargaining agreements ended up being

passed as a bill that excluded graduate student re-

search assistants from the deﬁnition of “public em-

ployee.”

2. THE FIVE-DAY RULE

Plaintiffs have also failed to establish a violation of

the

Five-Day Rule. Const 1963, art 4, § 26 provides, in

relevant part: “No bill shall be passed or become a law

at any regular session of the legislature until it has

been printed or reproduced and in the possession of

each house for at least ﬁve days.”

The ﬁve-day rule and the change of purpose provision

were

contained in the same article and section of the

Constitution of 1908. Const 1908, art 5, § 22. It is clear

that the function of the change of purpose provision, both

in the Constitution of 1908 and as modiﬁed in the Consti-

tution of 1963, is to fulﬁll the command of the ﬁve-day

rule.

Whether measured by the title of the act or by the title

and contents of the act, the ﬁve-day rule could be rendered

ineffective without a change of purpose provision. It is

equally clear that a change of purpose rule standing alone

would be meaningless, because any time the purpose of a

bill was changed it would be a new bill which could be

passed immediately. In sum, the alteration of purpose

provision operates as an ultimate limitation to prevent

evasion of the ﬁve-day rule. [Anderson, 419 Mich at

329-330.]

“A long history underscores an intent through these

requirements

to preclude last-minute, hasty legisla-

tion and to provide notice to the public of legislation

under consideration irrespective of legislative merit.”

Id. at 329.

446 312 M

ICH

394 [Sept

The legislative record establishes that SB 156 was

before each house for at least ﬁve days. And as dis-

cussed earlier, there was no change of the original bill’s

purpose. Accordingly, no violation of the Five-Day Rule

occurred.

3. DISTINCT-STATEMENT CLAUSE

Finally, plaintiffs have not established a violation of

the

Distinct-Statement Clause. Const 1963, art 4, § 32,

provides: “Every law which imposes, continues or re-

vives a tax shall distinctly state the tax.” The purpose

of this provision “is to prevent the Legislature from

being deceived in regard to any measure for levying

taxes, and from furnishing money that might by some

indirection be used for objects not approved by the

Legislature.” Dawson v Secretary of State, 274 Mich

App 723, 747; 739 NW2d 339 (2007) (opinion by

ILDER

, P.J.) (citations, quotation marks, and empha-

sis omitted). The Distinct-Statement Clause is violated

if a statute imposes an obscure or deceitful tax. Duke-

sherer Farms, Inc v Dep’t of Agriculture Dir, 73 Mich

App 212, 221; 251 NW2d 278 (1977), aff’d 405 Mich 1

(1979), such as when a tax is disguised as a regulatory

fee, Dawson, 274 Mich App at 740. 2014 PA 282 does

not impose or revive any tax, but clariﬁes the Legisla-

ture’s intent regarding apportionment of the MBT tax

base. There is nothing deceptive about the legislation.

It is clear from the title and body of 2014 PA 282 that

it is amending the MBT Act. There has been no

violation of the Distinct-Statement Clause.

I. DISCOVERY

“[S]ummary disposition is premature if granted be-

fore

discovery on a disputed issue is complete. How-

ever, summary disposition is appropriate if there is no

2015] G

ILLETTE V

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447

fair chance that further discovery will result in factual

support for the party opposing the motion.” Mackey v

Dep’t of Corrections, 205 Mich App 330, 333; 517 NW2d

303 (1994) (citation omitted). As alluded to earlier,

plaintiffs wanted to engage in discovery regarding

Michigan’s participation in the Commission since

2008, which according to plaintiffs would establish

that the Compact was not in fact repealed retroactively

beginning on January 1, 2008, because Michigan in

fact participated in the Commission during the rel-

evant time.

But as we also alluded to earlier, discovery on any of

these issues would not produce relevant information.

Setting aside plaintiffs’ failure to cite authority regard-

ing the relevancy of Michigan’s participation in the

Commission, more to the point is the fact that the

issues raised concern statutory interpretation and con-

stitutional challenges. And those issues are, as we said

before, matters of law. Elba Twp, 493 Mich at 277-278;

see also Hunter, 484 Mich at 257; GMAC, 286 Mich

App at 380. How and to what extent the state partici-

pated in the Commission has no bearing on the mean-

ing or effect of the words used in the statute or the

state and federal Constitutions. Accordingly, discovery

on this issue did not stand a fair chance of providing

support for plaintiffs’ position.

Discovery was also not required regarding the ex-

tent of plaintiffs’ reliance on the Compact’s election

provision. As a matter of law, taxpayers do “not have a

vested right in a tax statute or in the continuance of

any tax law,” Walker, 445 Mich at 703, while states

have wide latitude in the selection of apportionment

methodologies, Moorman, 437 US at 274. And a tax-

payer’s reliance on a particular tax law is insufﬁcient

to establish a due process violation because “[t]ax

448 312 M

ICH

394 [Sept

legislation is not a promise, and a taxpayer has no

vested right in” a tax statute. Carlton, 512 US at 33.

Therefore, plaintiffs have not established a fair chance

that discovery on the extent of their reliance on the

Compact apportionment method would have led to any

relevant support for their position.

Plaintiffs also incorrectly contend that discovery

should have been held regarding the Legislature’s

intent in enacting 2014 PA 282, including internal

communications regarding the purpose of the legisla-

tion. But as we previously made clear, statements of

individual legislators generally do not comprise proper

evidence of legislative intent. See Chmielewski, 457

Mich at 609 n 18; Detroit Bd of Ed, 227 Mich App at 89

n 4; City of Williamston, 142 Mich App at 719, citing

Presque Isle, 364 Mich at 612. Hence, discovery on this

issue would not have had a fair chance of producing

support for plaintiffs’ position.

Afﬁrmed. No costs, an issue of public importance

being involved. MCR 7.219(A).

ANSEN

and M

ETER

, JJ., concurred with M

URRAY

, P.J.

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449

PEOPLE v TERRELL

Docket No. 321573. Submitted September 1, 2015, at Detroit. Decided

September 29, 2015, at 9:05 a.m. Leave to appeal sought.

James Anthony Terrell was convicted by jury in Wayne Circuit

Court of three counts of assault with intent to do great bodily

harm less than murder, and one count each of resisting or

obstructing a police ofﬁcer, felon in possession of a ﬁrearm

(felon-in-possession), and possession of a ﬁrearm during the

commission of a felony (felony-ﬁrearm). The circuit court, James

A. Callahan, J., originally sentenced defendant as a fourth-

offense habitual offender to prison terms of 30 to 50 years for each

assault conviction, 5 to 15 years for the resisting or obstructing

conviction, 2 to 5 years for the felon-in-possession conviction, and

2 years for the felony-ﬁrearm conviction. Defendant appealed.

The Court of Appeals afﬁrmed defendant’s convictions in an

unpublished opinion per curiam but vacated his sentences and

remanded for resentencing because a conviction had been counted

twice when determining defendant’s habitual offender status and

the trial court had failed to articulate objective and veriﬁable

reasons for departing upward from the recommended sentence

under the sentencing guidelines. The trial court resentenced

defendant as a second-offense habitual offender to prison terms of

95 months to 15 years for each of the assault convictions, 1 to 2

years for the resisting or obstructing conviction, 5 to 7

/2 years for

the felon-in-possession conviction, and 2 years for the felony-

ﬁrearm conviction. Defendant moved for resentencing on the

basis of errors in scoring his offense variables (OVs) and prior

record variable (PRV) 7, the failure of the amended judgment of

sentence to reﬂect a waiver of fees and costs, and the trial court’s

alleged vindictiveness at resentencing. The trial court denied

defendant’s motion for resentencing, but directed that defen-

dant’s judgment of sentence be again amended to reﬂect a waiver

of fees and costs. Defendant appealed.

The Court of Appeals held:

1. Defendant’s properly scored OVs exceeded the point level of

OV Level VI, even if the scores for OVs 3 and 4 resulted from

judicial fact-ﬁnding. Defendant claimed that OVs 3, 4, and 9 were

450 312

ICH

450 [Sept

improperly scored according to the Supreme Court’s decision in

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), which

held that mandatory application of Michigan’s statutory sentenc-

ing guidelines was unconstitutional and ruled that the guidelines

were to be advisory only. Defendant argued that the scores for OVs

3, 4, and 9 were not supported by the jury’s verdict and had not

been admitted to by him. However, defendant’s OVs totaled 70

points without the scores from OVs 3, 4, or 9. Because OV Level VI

begins with an OV score of 75, if any one of the three challenged

OVs were supported by the jury’s verdict, defendant’s OV total

would exceed 75 points. Defendant’s OV 9 score of 10 points was

supported by the jury’s verdicts because the facts showed that

defendant shot at three police ofﬁcers, and the verdicts of guilty on

the three charges of assault with intent to do great bodily injury

less than death indicated that those three police ofﬁcers were

“victims” under MCL 777.39(1)(c); that is, the three police ofﬁcers

were in danger of physical injury or death as a result of defendant’s

conduct. With defendant’s OV 9 score, his OVs totaled 80 points

and placed him at the same level of VI under which he was

previously sentenced. The remaining OVs defendant challenged—

OVs 3 and 4—are irrelevant under this analysis because with or

without them, defendant’s OV score exceeded the total number of

points necessary for placement in OV Level VI.

2. The case was remanded to correct an error on defendant’s

amended judgment of sentence. Although the trial court waived

defendant’s fees and costs at defendant’s ﬁrst sentencing, the

amended judgment of sentence ordered defendant to pay a crime

victim’s rights assessment and court costs. After a resentencing

hearing, the trial court issued a written order directing that the

amended judgment of sentence itself be amended to indicate the

waiver of fees and costs. However, there was no evidence that an

amended judgment of sentence was ever issued, and remand was

necessary for such an amendment to be made.

3. Even when no errors in scoring a defendant’s OVs or PRVs

are identiﬁed, the defendant is entitled to a remand for possible

resentencing under the procedure of United States v Crosby, 397

F3d 103 (CA 2, 2005), if the trial court was constrained by the

sentencing guidelines when it imposed its sentence on the defen-

dant. A trial court is no longer bound to impose a sentence within

the guidelines range in the absence of a substantial and compel-

ling reason for departure. Before Lockridge, a trial court that

imposed a sentence within the guidelines range may have been

constrained by the unconstitutional application of Michigan’s

sentencing guidelines, which are now merely advisory under

Lockridge. According to Lockridge, a trial court may depart

2015] P

EOPLE V

ERRELL

451

from the guidelines range without having to articulate a substan-

tial and compelling reason for departure, and its sentence will be

reviewed for reasonableness.

4. There was no evidence of vindictiveness in the trial court’s

decision to resentence defendant for being a felon in possession of

a ﬁrearm to a sentence more severe than the sentence it imposed

at defendant’s initial sentencing. The trial court rebutted the

presumption of vindictiveness that arises when the same judge

resentences a defendant to a sentence longer than the one ﬁrst

imposed because the trial court explained its reasons for imposing

the longer sentence.

5. PRV 7 is properly scored when a defendant has a felony-

ﬁrearm conviction provided the felony-ﬁrearm conviction is not

counted as one of the concurrent or subsequent felony offenses

scored under PRV 7. Defendant claimed that PRV 7 should not

have been scored solely because one of his convictions was for

felony-ﬁrearm. Convictions that may not be used in calculating

the number of a defendant’s concurrent or subsequent felony

convictions under PRV 7 include felony-ﬁrearm and convictions

that result in a mandatory consecutive sentence. Although defen-

dant’s felony-ﬁrearm conviction could not be used as one of the

convictions on which his PRV 7 score was based, defendant was

convicted of ﬁve other felonies, none of which required a consecu-

tive sentence, and which were therefore properly considered

under PRV 7.

Remanded.

Lee A. Somerville and

James Anthony Terrell, in

propria persona, for defendant.

Before: T

ALBOT

, P.J., and W

ILDER

and F

ORT

OOD

, JJ.

ILDER

, J. A jury convicted defendant of three counts

of assault with intent to do great bodily harm less than

murder,

and one count each of resisting or obstructing

police ofﬁcer,

felon in possession of a ﬁrearm (felon-

in-possession),

and possession of a ﬁrearm during the

MCL 750.84(1)(a).

MCL 750.81d(1).

MCL 750.224f(1).

452 312 M

ICH

450 [Sept

commission of a felony (felony-ﬁrearm).

The trial court

originally sentenced defendant as a fourth-offense ha-

bitual offender

to prison terms of 30 to 50 years for

each assault conviction, 5 to 15 years for the resisting

or obstructing conviction, 2 to 5 years for the felon-in-

possession conviction, and 2 years for the felony-

ﬁrearm conviction. The judgment of sentence indicated

that the sentence for one of the assault convictions was

consecutive to the sentence for the felony-ﬁrearm con-

viction, which was concurrent with the remaining

sentences. In a prior appeal, this Court afﬁrmed defen-

dant’s convictions, but vacated his sentences and re-

manded for resentencing because of “issues regarding

defendant’s habitual offender status that need resolu-

tion and because of the errors associated with the

sentencing departure . . . .”

On remand, the trial court

resentenced

defendant as a second-offense habitual

offender,

to prison terms of 95 months to 15 years for

each assault conviction, 1 to 2 years for the resisting or

obstructing conviction, 5 to 7

years for the felon-in-

possession conviction, and 2 years for the felony-

ﬁrearm conviction. The amended judgment of sen-

tence, again, reﬂects that defendant’s sentence for one

of the assault convictions is consecutive to the sentence

for the felony-ﬁrearm conviction, which is itself concur-

rent with the remaining sentences. Defendant again

appeals as of right, challenging the sentences imposed

on remand. We remand for proceedings consistent with

this opinion and for correction of the amended judg-

ment of sentence to reﬂect the waiver of fees and costs.

MCL 750.227b(1).

MCL 769.12.

People v Terrell, unpublished opinion per curiam of the Court of

Appeals, issued September 24, 2013 (Docket No. 302135), p 17.

MCL 769.10.

2015] P

EOPLE V

ERRELL

453

Defendant’s convictions arise from a shootout with

the Detroit police. This Court delineated the following

relevant facts in its prior opinion:

The shootout occurred after a minivan carrying defen-

dant and his friend, Devon Gary, pulled over to the side of

the road while being followed by a marked police cruiser,

although the cruiser’s emergency lights and siren had not

been activated. The police had been following the minivan

based on suspicious behavior by its occupants and sus-

pected drunk driving. A second police vehicle, unmarked,

pulled up behind the marked police cruiser. Defendant

was a passenger in the minivan and, according to police

testimony, defendant leaped out of the minivan’s

passenger-side sliding door and opened ﬁre on police with

an AK-47 assault riﬂe. The police ofﬁcers returned ﬁre,

discharging their .40 caliber weapons 40 times based on

the number of shell casings found at the scene. Gary, who

was unarmed and had also exited the minivan, was shot

dead and defendant was struck in the leg by a bullet, but

he managed to escape.

Defendant ﬁrst stopped brieﬂy at a friend’s house, then

stayed a few days with his girlfriend, who helped treat the

wound, and defendant eventually went down to Memphis,

Tennessee, where he had friends and family, and where he

sought medical assistance in a hospital emergency room for

the bullet wound. A month later, defendant went to Des

Moines, Iowa, where he had resided off and on in past

years. He was arrested in Iowa. Defendant took the stand

in his own defense and admitted that he was in the minivan

with Gary, who went by the name Kano, but defendant

denied displaying, pointing, or ﬁring any weapon at the

police before the police started shooting. An AK-47 was

found a short distance from the scene of the shootout, but

well beyond the spot that Kano fell dead. Five shell casings

that were not discharged from the ofﬁcers’ guns were found

at the scene, although the expert on ballistics could not

deﬁnitively connect the casings to theAK-47. DNA evidence

placed defendant in the minivan, and a video captured by

454 312

ICH

450 [Sept

the marked police cruiser’s camera showed someone exiting

the minivan’s sliding door carrying a weapon.

The minivan involved in the incident belonged to a

married couple. The husband had been at a gas pump

ﬁlling the minivan’s tank at a Marathon station a few

hours before the shootout, while his wife was inside

paying, when he was approached by two young males. The

taller of the two men was wielding an AK-47 assault riﬂe.

The husband bolted toward the gas station’s entrance,

yelling at the men to just take the vehicle. The riﬂeman

then chased the husband in the direction of the gas

station’s front door. As the husband was entering the front

door of the station in his attempt to escape the riﬂeman,

his wife was exiting the station, and a female bystander,

who had been waiting to catch a bus, was stationed near

the Marathon’s front door. At that moment, a gunshot was

heard. The husband testiﬁed that he felt a bullet graze his

jacket, and a bullet struck the female bystander, causing a

minor injury. The wife escaped by running down the block.

The two perpetrators then drove off in the minivan. Kano

was identiﬁed by defendant’s uncle as the gun-toting man

seen in a video still captured by a gas station camera. The

couple could not identify defendant in a lineup, nor at

trial, as having participated in the crime. The bystander

had also failed to identify defendant in a lineup and at the

preliminary examination, although she claimed at trial

that defendant, while not wielding a weapon, was the

shorter man at the gas station who had been involved in

the crime. Defendant denied being at the Marathon sta-

tion that night and claimed that Kano gave him a ride in

the minivan shortly before the shootout occurred. Defen-

dant was acquitted of all charges arising out of the events

at the gas station, either by jury verdict or directed

verdict.

[8]

Defendant was originally charged with three counts of

assault

with intent to commit murder,

but he was

Terrell, unpub op at 1-3.

MCL 750.83.

2015] P

EOPLE V

ERRELL

455

convicted of three counts of the lesser offense of assault

with intent to do great bodily harm less than murder.

At sentencing, the prosecutor argued that the trial

court should impose a sentence that exceeded the sen-

tencing guidelines range. When imposing the sentence,

the trial court, without stating that it was departing

from the guidelines range, noted the “highly assaultive

nature” of the offenses, defendant’s lack of remorse, and

defendant’s inability to be rehabilitated. Thereafter, the

trial court completed a guidelines departure form in

which it cited defendant’s lack of remorse and his

inability to be rehabilitated as reasons to exceed the

guidelines range, which was 38 to 152 months for each

of defendant’s assault with intent to do great bodily

harm convictions, as enhanced for a fourth-offense ha-

bitual offender. The trial court sentenced defendant as a

fourth-offense habitual offender

to 30 to 50 years’

mprisonment for each assault conviction, 5 to 15 years’

imprisonment for the resisting or obstructing convic-

tion, 2 to 5 years’ imprisonment for the felon-in-

possession conviction, and a 2-year term of imprison-

ment for the felony-ﬁrearm conviction.

The trial court

xpressly declined to impose any costs or fees, mention-

ing defendant’s indigent status.

On September 24, 2013, this Court afﬁrmed defen-

dant’s convictions, but vacated his sentences and re-

manded for resentencing.

This Court concluded that

he habitual offender notice erroneously counted the

same previous conviction twice, and the Court re-

Terrell, unpub op at 1.

MCL 769.12.

The trial court also erroneously sentenced defendant for a felonious

assault conviction, which was subsequently removed from defendant’s

judgment of sentence.

Terrell, unpub op at 1, 17.

456 312 M

ICH

450 [Sept

manded for a determination of whether defendant’s

Iowa conviction constituted a felony in Michigan.

Fi-

nally, this Court concluded that the trial court failed to

meet the articulation requirement for an upward sen-

tence departure by failing to justify the particular

sentence departure with objective and veriﬁable rea-

sons.

On April 11, 2014, the parties appeared for resen-

tencing.

The parties agreed to reduce the score for

prior record variable (PRV) 2 (prior low severity felony

convictions) from 30 to 20 points because the Iowa

conviction was actually for a misdemeanor offense. The

attorneys agreed to score PRV 5 (prior misdemeanor

convictions) at two points, PRV 6 (relationship to

criminal justice system) at 10 points, and PRV 7

(subsequent or concurrent felony convictions) at 20

points. However, defendant himself objected to the

score for PRV 7, contending that it did not apply

because he was subject to a mandatory consecutive

sentence for his felony-ﬁrearm conviction. The trial

court questioned the attorneys about defendant’s posi-

tion, but they agreed that defendant’s convictions for

other felonies still supported a 20-point score for PRV

7. Thus, defendant’s total PRV score was 52 points,

placing him in PRV Level E (50-74 points) on the

applicable sentencing grid.

With regard to scoring the offense variables (OVs),

he parties agreed that OV 1 (aggravated use of a

weapon) was appropriately scored at 25 points. The

parties agreed to reduce the score for OV 2 (lethal

potential of weapon possessed or used) from 15 to 5

Id. at 11-12.

Id. at 13-17.

MCL 777.65 (Class D sentencing grid). Assault with intent to do

great bodily harm less than murder is a Class D offense.

2015] P

EOPLE V

ERRELL

457

points because the weapon was not fully automatic. The

parties agreed that OV 3 (physical injury to victim) was

appropriately scored at 100 points, that OV 4 (psycho-

logical injury to victim) was appropriately scored at 10

points, and that OV 9 (number of victims) was appro-

priately scored at 10 points. As for OV 12 (contempora-

neous felonious criminal acts) and OV 13 (continuing

pattern of criminal behavior), the parties agreed that

while either offense variable could be scored at 25

points, both could not be scored. The parties also agreed

that scoring either variable did not impact the outcome.

The trial court scored OV 12 at zero points and OV 13 at

25 points. The parties agreed that OV 19 (threat to

security of penal institution or court or interference

with administration of justice or rendering of emer-

gency services) was properly scored at 15 points. Thus,

defendant received a total OV score of 190 points,

placing him in OV Level VI (75+ points) on the appli-

cable sentencing grid.

The defendant’s habitual of-

fender

status was reduced to second-offense habitual

offender because after remand, the prosecutor was

precluded from adding other crimes to support the

habitual offender enhancement. The prosecution could

only correct errors, which included the Iowa misde-

meanor conviction and the mistake of counting the

same conviction twice. Therefore, defendant received a

reduced guidelines range of 38 to 95 months for each of

the assault with intent to do great bodily harm convic-

tions, and lesser potential maximum sentences of 15

years for the assault convictions,

and 7

years for

the felon-in-possession conviction.

Id.

One-and-one-half times the maximum sentence for a ﬁrst convic-

tion. See MCL 750.84(1)(a); MCL 769.10(1)(a).

One-and-one-half times the maximum sentence for a ﬁrst convic-

tion. See MCL 750.224f(5); MCL 769.10(1)(a).

458 312

ICH

450 [Sept

The prosecutor argued that the trial court should

reimpose the sentences it previously imposed, citing

defendant’s disregard for the law, his attitude toward

law enforcement, and his inability to conform his

conduct and be rehabilitated, as evidenced by his 19

major violations while in prison.

Defense counsel

argued

to the contrary, contending that the location of

the shell casings and the lack of damage to the police

cars indicated someone ﬂeeing the scene, not a standoff

with the police. Defense counsel further argued that

defendant’s several prior convictions were not assault-

ive or violent and noted that it was common for

younger inmates to receive misconduct tickets. Defen-

dant himself argued that his prison tickets were for

minor things, not “monstrous stuff.” Defendant also

noted that he had obtained his GED while in prison

and that he participated in prison programs, including

a program dealing with substance abuse. Defendant

denied ever shooting at the police and claimed that he

was framed.

The trial court sentenced defendant to prison terms

of 95 months to 15 years for each assault with intent to

do great bodily harm less than murder conviction, 1 to

2 years for the resisting or obstructing conviction, 5 to

years for the felon-in-possession conviction, and 2

years for the felony-ﬁrearm conviction.

As previously

noted, the amended judgment of sentence indicates

that the sentence for one of the assault convictions is

Defendant received violations for incidents including an assault

resulting in serious physical injury, and a charge of disobeying orders.

The trial court also sentenced defendant to 4 to 6 years’ imprison-

ment for a felonious assault conviction. The Michigan Department of

Corrections notiﬁed the court that defendant’s judgment of sentence

appeared to contain an erroneous conviction for felonious assault. On

April 24, 2014, the judgment of sentence was amended to remove the

conviction and sentence for felonious assault.

2015] P

EOPLE V

ERRELL

459

consecutive to the sentence for the felony-ﬁrearm con-

viction, and that the felony-ﬁrearm conviction is con-

current with the remaining sentences. The trial court

also ordered $408 in state costs, $130 for the crime

victim’s rights assessment, and $600 in court costs.

On June 27, 2014, defendant ﬁled an amended

motion for resentencing and for the correction of the

presentence investigation report (PSIR). Defendant

alleged that he was entitled to resentencing for the

following reasons: (1) the OV 3, OV 4, and OV 9 scores

were derived, at least in part, from facts not found by

a jury beyond a reasonable doubt; (2) although current

Michigan law did not support defendant’s claim that

the OVs should not be scored, the Michigan Supreme

Court had recently granted leave in People v Lock-

ridge

to address this issue; (3) at resentencing, the

trial

court had increased defendant’s felon-in-

possession sentence to 5 to 7

years’ imprisonment

from 2 to 5 years’ imprisonment without explanation,

giving rise to a presumption of vindictiveness; (4) fees

and costs had previously been waived because of de-

fendant’s indigent status, and under People v Cunning-

ham,

it was error to include costs at defendant’s

resentencing;

(5) if costs were deemed correctly im-

posed, they should be deferred until defendant was

paroled; and (6) if the scoring errors were deemed

waived, defendant was deprived of the effective assis-

tance of counsel. Defendant also claimed that he was

entitled to correction of his PSIR to remove any refer-

People v Lockridge, 304 Mich App 278; 849 NW2d 388 (2014), lv

granted 496 Mich 852 (2014).

People v Cunningham, 496 Mich 145; 852 NW2d 118 (2014),

superseded by statute People v Konopka (On Remand), 309 Mich App

345; 869 NW2d 651 (2015). Defendant previously ﬁled a motion for

resentencing on June 9, 2014. The amended motion for resentencing

was ﬁled to address the Cunningham decision, which was issued on

June 18, 2014.

460 312 M

ICH

450 [Sept

ences to a felonious assault conviction because he had

not been convicted of that offense.

On July 11, 2014, the trial court heard oral argu-

ments regarding the motion for resentencing. When

defendant raised the issue of the OV scores, the trial

court noted that defendant had preserved his Lockridge

challenge by raising it in the motion, but concluded that

it was premature to change the scoring in the absence of

a decision from our Supreme Court. Defendant had

amended the motion for resentencing because of the

intervening Cunningham decision, and the trial court

agreed to waive costs. The trial court also agreed to

strike references to carjacking and felonious assault

from the PSIR. Regarding the increased felon-in-

possession sentence, 5 to 7

years from 2 to 5 years, the

trial court expressed surprise that defendant’s sentence

represented an increase from the original sentence,

given that the 5-year minimum sentence was appropri-

ate when considering the guidelines range for defen-

dant’s assault convictions. The prosecutor did not object

to defendant being resentenced to 2 to 5 years’ impris-

onment for the felon-in-possession conviction, but in

order to foreclose the possibility of an additional resen-

tencing, the trial court surmised that a clerical error

was responsible for the lower initial sentence reﬂected

in the original judgment of sentence and denied defen-

dant’s motion to reinstate the lower sentence. On

July 15, 2014, the trial court signed an order reﬂecting

its rulings on defendant’s motion for resentencing.

Defendant ﬁrst argues that the trial court engaged in

judicial fact-ﬁnding when scoring OVs 3, 4, and 9 of the

sentencing guidelines, and that therefore, he is entitled

to resentencing under Alleyne v United States.

disagree

that resentencing is necessarily required.

Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314

(2013).

2015] P

EOPLE V

ERRELL

461

As this Court recently explained in People v Stokes,

our Supreme Court, in People v Lockridge,

held that

Michigan’s sentencing scheme “violates the Sixth

Amendment right to a jury trial because it requires

‘judicial fact-ﬁnding beyond facts admitted by the

defendant or found by the jury to score offense vari-

ables (OVs) that mandatorily increase the ﬂoor of the

guidelines minimum sentence range, i.e., the “manda-

tory minimum” sentence under Alleyne.’ ”

“[O]ur Su-

preme

Court concluded that the appropriate remedy

was to render Michigan’s sentencing guidelines merely

advisory.”

Accordingly, our Supreme Court “sever[ed]

MCL 769.34(2) to the extent that it is mandatory and

[struck] down the requirement of a ‘substantial and

compelling reason’ to depart from the guidelines range

in MCL 769.34(3).”

“A sentence that departs from the

applicable

guidelines range will be reviewed by an

appellate court for reasonableness.”

However, sen-

tencing courts must “continue to consult the applicable

guidelines range and take it into account when impos-

ing a sentence.”

As explained in Stokes,

the Lockridge Court de-

scribed the procedure to be used when considering

unpreserved Alleyne-based challenges, which are sub-

ject to plain-error review.

Regarding unpreserved

Alleyne claims,

our Supreme Court ruled that a defen-

People v Stokes, 312 Mich App 181; 877 NW2d 752 (2015).

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).

Stokes, 312 Mich App at 193-194, quoting Lockridge, 498 Mich at

364.

Stokes, 312 Mich App at 195, citing Lockridge, 498 Mich at 399.

Lockridge, 498 Mich at 391.

Id. at 392.

Id.

Stokes, 312 Mich App at 197.

462 312 M

ICH

450 [Sept

dant suffers no prejudice in cases

in which (1) facts admitted by the defendant and (2) facts

found by the jury were sufﬁcient to assess the minimum

number of OV points necessary for the defendant’s score to

fall in the cell of the sentencing grid under which he or she

was sentenced. In those cases, because the defendant

suffered no prejudice from any error, there is no plain

error and no further inquiry is required.”

[33]

Our Supreme Court further held that

all defendants (1) who can demonstrate that their guide-

ines minimum sentence range was actually constrained by

the violation of the Sixth Amendment and (2) whose sen-

tences were not subject to an upward departure can estab-

lish a threshold showing of the potential for plain error

sufﬁcient to warrant a remand to the trial court for further

inquiry.

[34]

Relying on U

nited States v Crosby,

our Supreme Court

held that

in cases in which a defendant’s minimum sentence was

established

by application of the sentencing guidelines in

a manner that violated the Sixth Amendment, the case

should be remanded to the trial court to determine

whether that court would have imposed a materially

different sentence but for the constitutional error. If the

trial court determines that the answer to that question is

yes, the court shall order resentencing.

[36]

Our Supreme Court articulated the precise procedure to

e followed, based on the procedure adopted in Crosby,

which includes providing the defendant with an oppor-

tunity to inform the court that he or she will not seek

resentencing.

Lockridge, 498 Mich at 394-395.

Id. at 395.

United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).

Lockridge, 498 Mich at 397.

Stokes, 312 Mich App at 198.

2015] P

EOPLE V

ERRELL

463

Unlike Lockridge, Stokes involved a preserved claim

of error.

The Court in Stokes held that a preserved,

nonstructural error is subject to the harmless beyond a

reasonable doubt test.

Similarly, in the instant case, if

we were to apply pre-Lockridge precedent, defendant’s

claim would be considered preserved because he raised

the Alleyne issue in his motion for resentencing.

ﬁnd that nothing in Lockridge compels a different con-

clusion. Accordingly, we review defendant’s claim for

harmless error beyond a reasonable doubt.

Defendant conceded at his sentencing hearing that

OVs 3, 4, and 9 were properly scored, and he does not

dispute on appeal that the guidelines were properly

scored under pre-Lockridge caselaw. Defendant now

claims, however, that based on Lockridge, the scoring

of these OVs was not supported by the jury’s verdict.

Defendant’s OV score totaled 190 points, placing him

in OV Level VI (75+ points) on the applicable sentenc-

ing grid.

Excluding the challenged OVs, defendant’s

total

OV score would have been 70 points. Therefore, if

any one of the challenged OVs was admitted by defen-

dant or supported by the jury’s verdict, then any

judicial fact-ﬁnding regarding the other two OVs would

not affect the range of defendant’s minimum sentence.

Whether defendant admitted the facts necessary to

support the scoring of OVs 3, 4, and 9

is of no

Id.

Id. at 198.

See People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004)

(“[I]f the sentence is within the appropriate guidelines sentence range, it

is only appealable if there was a scoring error or inaccurate information

was relied upon in determining the sentence and the issue was raised at

sentencing, in a motion for resentencing, or in a motion to remand.”).

MCL 777.65.

For the same reason that we concluded defendant did not waive the

issue, we conclude that his agreement to the scoring was not an

464 312 M

ICH

450 [Sept

consequence because the jury’s verdict supported the

scoring of OV 9.

Under OV 9, 10 points are assigned

if “[t]here were 2 to 9 victims who were placed in

danger of physical injury or death . . . .”

MCL

777.39(2)(a) provides: “Count each person who was

placed in danger of physical injury or loss of life or

property as a victim.” The jury found defendant guilty

of assaulting three different ofﬁcers. Therefore, scoring

OV 9 for two to nine victims was supported by the

jury’s verdict. Defendant’s argument that there was

only one victim for each assault is unpersuasive. The

jury clearly found that three ofﬁcers were placed in

danger when defendant opened ﬁre.

Accordingly, with

these

10 points, defendant’s total OV score was 80

points, keeping him in OV Level VI (75+ points) on the

applicable sentencing grid.

As a result, any judicial

fact-ﬁnding

regarding OVs 3 and 4 did not affect

defendant’s minimum sentence guidelines range.

In Stokes, this Court concluded that where judicially

found facts increased the minimum sentence guide-

lines range, the proper remedy was to remand and

follow the Crosby procedure to determine whether the

error was harmless.

In this case, however, any judi-

cial

fact-ﬁnding did not increase the minimum sen-

admission for Lockridge purposes. Rather, it could reasonably be inter-

preted as only an admission that the OVs were supported by a

preponderance of the evidence.

The prosecution conceded at oral argument that the facts necessary

to score OVs 3 and 4 were not found by the jury.

MCL 777.39(1)(c).

See People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004)

(concluding that 10 points were properly assessed under OV 9 when,

although only one person was actually robbed, the person who was

standing nearby and responded to the calls for help was also “placed in

danger of injury or loss of life” during the armed robbery).

MCL 777.65.

Stokes, 312 Mich App at 198.

2015] P

EOPLE V

ERRELL

465

tence guidelines range because the jury verdict sup-

ported a score placing defendant at OV Level VI (75+

points). Nonetheless, we adopt the remedy crafted in

Stokes as the appropriate remedy here, because re-

gardless that judicial fact-ﬁnding did not increase

defendant’s minimum sentence guidelines range, the

trial court’s compulsory use of the guidelines was

erroneous in light of Lockridge.

Here, the trial court

was

not obligated to sentence defendant within the

minimum sentence guidelines range. Instead, the trial

court was permitted to depart from the guidelines

range without articulating a substantial and compel-

ling reason, as long as the resulting sentence was itself

reasonable.

Therefore, we conclude that a remand to

engage

in the Crosby procedure is necessary to deter-

mine whether the error resulting from the compulsory

use of the guidelines was harmless.

As discussed in

Stokes, our Supreme Court’s agreement with the re-

mand analysis in Crosby indicates that the Crosby

procedure would apply to both preserved and unpre-

served errors.

In addition, there is no logical reason

why

the Crosby procedure would apply to unpreserved

errors, but not to preserved errors.

A defendant who

preserves his or her claim of error should be entitled to

See United States v Fagans, 406 F3d 138, 140-141 (CA 2, 2005)

(remanding for resentencing even though judicial fact-ﬁnding did not

increase the sentence guidelines range, because the compulsory use of

the federal sentencing guidelines was erroneous).

Lockridge, 498 Mich at 391-392.

See Stokes, 312 Mich App at 200. We decline the prosecution’s

invitation to review the sentencing hearing to determine whether there

was any indication that the trial court felt constrained by the guidelines

because, at the time of sentencing, the guidelines were mandatory.

Id. See Lockridge, 498 Mich at 395-396, quoting Crosby, 397 F3d at

117-118.

Stokes, 312 Mich App at 200.

466 312

ICH

450 [Sept

at least as much constitutional protection as a defen-

dant who does not preserve his or her claim.

Accordingly, we remand for the trial court to follow

the Crosby procedure outlined in Lockridge. Defendant

is entitled to avoid resentencing by promptly notifying

the trial court of his intent to do so.

“If notiﬁcation is

not

received in a timely manner,” the trial court should

continue with the Crosby procedure articulated in

Lockridge.

Defendant next seeks reinstatement of his original

sentence

of 2 to 5 years’ imprisonment for felon in

possession of a ﬁrearm, arguing that the increased

sentence of 5 to 7

years that was imposed on remand

is impermissibly vindictive. Defendant does not chal-

lenge the propriety of this sentence on any ground

except vindictiveness. A presumption of vindictiveness

arises when a defendant is resentenced by the same

judge and the second sentence is longer than the ﬁrst.

If the trial court states the reasons for the increase at

the

resentencing, the presumption may be overcome.

The record does not support defendant’s argument

that the increased sentence was motivated by vindic-

tiveness. Contrary to what defendant asserts, the trial

court explained its reasons for imposing the higher

sentence by expressing surprise that it had imposed a

lesser sentence originally, explaining that it considered

the ﬁve-year minimum sentence in relation to the

guidelines range for defendant’s assault conviction,

and determining that a ﬁve-year minimum sentence

was appropriate in consideration of that range. Be-

cause defendant does not dispute that computation,

Lockridge, 498 Mich at 398.

Id. See also Stokes, 312 Mich App at 203.

People v Colon, 250 Mich App 59, 66; 644 NW2d 790 (2002).

Id.

2015] P

EOPLE V

ERRELL

467

because the trial court’s reasons for imposing the

enhanced sentence at resentencing establish that the

sentence was not motivated by vindictiveness, and

because defendant does not otherwise challenge the

propriety of the enhanced sentence in light of his

habitual offender status, defendant has failed to dem-

onstrate that resentencing is required on this ground.

Defendant also challenges the trial court’s assess-

ment of fees and costs, as reﬂected in the amended

judgment of sentence dated April 24, 2014. At defen-

dant’s original sentencing, the trial court agreed to

waive all fees and costs in light of defendant’s indigent

status. However, the amended judgment of sentence

issued on remand contained assessments of fees and

costs. Defendant ﬁled a motion to correct the amended

judgment of sentence, and the trial court issued an

order dated July 15, 2014, in which it agreed to waive

all fees and costs in accordance with its decision at the

original sentencing. However, there is no indication

that a corrected judgment of sentence was issued.

Accordingly, we remand for the ministerial task of

correcting the judgment of sentence to reﬂect the

waiver of fees and costs.

Lastly, in a pro se supplemental brief ﬁled pursuant

to Supreme Court Administrative Order No. 2004-6,

Standard 4, defendant argues that he is entitled to

resentencing because the trial court erred by scoring

20 points for prior record variable (PRV) 7. There is no

merit to this issue. MCL 777.57(1)(a) directs a score of

20 points for PRV 7 if a defendant has two or more

subsequent or concurrent felony convictions, but MCL

777.57(2)(b) and (c) preclude the court from scoring “a

felony-ﬁrearm conviction,” or “a concurrent felony con-

viction if a mandatory consecutive sentence or a con-

secutive sentence imposed under section 7401(3) of the

468 312 M

ICH

450 [Sept

public health code, 1978 PA 368, MCL 333.7401, will

result from that conviction.” Defendant argues that

because he had a concurrent felony-ﬁrearm conviction,

the trial court was not permitted to score PRV 7. We

disagree.

Defendant’s argument is directed at the interpreta-

tion of the legislative sentencing guidelines, which

presents a legal question that we review de novo.

The

instructions

for PRV 7 only precluded the trial court

from relying on the felony-ﬁrearm conviction for pur-

poses of scoring PRV 7. The instructions did not

preclude the court from relying on defendant’s remain-

ing felony convictions. In addition to his felony-ﬁrearm

conviction, defendant stood convicted of three counts of

assault with intent to do great bodily harm less than

murder, resisting or obstructing a police ofﬁcer, and

felon in possession of a ﬁrearm, all of which are

felonies and none of which resulted in a consecutive

sentence.

Thus, defendant had at least two concur-

rent

felony convictions that could be considered for

purposes of PRV 7. Therefore, the trial court properly

assigned 20 points to PRV 7.

Remanded for proceedings consistent with this opin-

ion

and for ministerial correction of the judgment of

People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

We note that the amended judgment of sentence appears to incor-

rectly indicate that the sentence for one of the assault convictions is

consecutive to the sentence for the felony-ﬁrearm conviction, which is

itself concurrent with the other sentences. Generally, a sentence for a

felony-ﬁrearm conviction is to be consecutive with and precede the

sentence for the felony conviction. MCL 750.227b(3). Defendant may

raise this issue on remand.

Having found no error in scoring PRV 7, we similarly reject

defendant’s suggestion that counsel was ineffective. See People v Erick-

sen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance

a meritless argument or raise a futile objection does not constitute

ineffective assistance of counsel.”).

2015] P

EOPLE V

ERRELL

469

sentence to reﬂect the waiver of fees and costs in

accordance with the trial court’s July 15, 2014 order.

We do not retain jurisdiction.

ALBOT

, P.J., and F

ORT

OOD

, J., concurred with

ILDER

, J.

Defendant also asserts that this case should be reassigned to a

different judge for resentencing based on the trial court’s decision to

increase defendant’s sentence for the felon-in-possession conviction and

the trial court’s scoring of PRV 7. Having concluded that these do not

constitute grounds for resentencing, we reject this argument. Further,

given that we are remanding for the trial court to follow the Crosby

procedure articulated in Lockridge, it is appropriate for the same judge

to determine whether he would have imposed a materially different

sentence but for the constitutional error.

470 312

ICH

450 [Sept

PEOPLE v BERGMAN

Docket No. 320975. Submitted September 1, 2015, at Detroit. Decided

September 29, 2015, at 9:10 a.m. Leave to appeal denied 499 Mich

916.

Lisa Lynne Bergman was convicted by a jury in the St. Clair Circuit

Court of two counts each of second-degree murder, MCL 750.317;

operating a vehicle under the inﬂuence of intoxicating liquor or a

controlled substance (OUIL) causing death, MCL 257.625(4); and

operating a vehicle with a suspended license causing death, MCL

257.904(4), after the truck she was driving crossed the centerline

and collided with another truck, killing its driver (Russell Ward),

and his passenger. Although defendant’s blood alcohol concentra-

tion was below the legal limit, she tested positive for therapeutic

amounts of various prescription drugs or their metabolites. The

court, Michael L. West, J., sentenced defendant as a second-

offense habitual offender to concurrent prison terms of 25 to 50

years each for the second-degree murder convictions and 5 to 22

years for each conviction of OUIL and driving with a suspended

license. Defendant appealed as of right.

The Court of Appeals held:

1. The trial court did not abuse its discretion by excluding

evidence of intoxicants and controlled substances in Ward’s

bloodstream. The evidence established that defendant’s vehicle

crossed the centerline and struck Ward’s truck head-on. There

was no evidence that Ward was not properly driving within his

marked lane or that his vehicle would not have safely passed

defendant had defendant not crossed the centerline in front of

Ward. Because there was no evidence that Ward did anything to

contribute to the accident, the challenged evidence was not

probative of an intervening or superseding cause that could have

broken the causal link between defendant’s conduct and the

victims’ deaths. An accident victim’s inability to protect himself

and others from the consequences of another person’s unexpected

introduction of a serious hazard does not constitute an interven-

ing cause severing the causal chain between a defendant and the

victim. Ward’s intoxication was also not relevant to defendant’s

argument that she did not have the requisite level of intent to

support her conviction of second-degree murder. The offense of

2015] P

EOPLE V

ERGMAN

471

second-degree murder is committed when a defendant has knowl-

edge of her own propensity to create a notably severe hazard

when driving while intoxicated, and the victim’s state of intoxi-

cation is irrelevant to the defendant’s knowledge of her own

susceptibility to hazardous driving.

2. The trial court did not violate defendant’s right to due

process of law by denying her motion for the appointment of a

toxicology expert at public expense because she did not demon-

strate a nexus between the need for an expert and the facts of her

case. Defendant did not explain why she could not safely proceed

to trial without her own expert, establish why the objective

results of blood analysis might be unreliable, make an offer of

proof that an expert could dispute the prosecution experts’

opinions regarding the side effects of prescription medications

and their contribution to impaired driving, or establish that

expert testimony would have been likely to beneﬁt her case.

Accordingly, the trial court did not abuse its discretion by denying

defendant’s motion.

3. There was no error to review with regard to the denial of

defendant’s motion to appoint an investigator because defendant

withdrew the motion before it was decided, thereby waiving the

issue.

4. Defendant’s convictions for multiple counts of second-

degree murder, OUIL causing death, and driving with a sus-

pended license causing death did not violate her constitutional

protections against double jeopardy. The statutes governing

second-degree murder and driving with a suspended license

causing death enforce distinct societal norms, and their respec-

tive elements of malice and lack of a valid operator’s license are

distinctive to each. Similarly, the OUIL and suspended-license

statutes enforce distinct societal norms, and their respective

elements of intoxication while driving and lack of a valid opera-

tor’s license are distinctive to each.

5. The trial court did not abuse its discretion by admitting

evidence of defendant’s other acts of driving unsafely under

MRE 404(b)(1). Evidence of incidents in which defendant was

passed out in her vehicle or was involved in an accident while

impaired or while under the inﬂuence of or possessing prescrip-

tion pills was properly admitted to show defendant’s knowledge

and absence of mistake, and was relevant to the malice element

for second-degree murder because it was probative of defen-

dant’s knowledge of her inability to drive safely after consuming

prescription substances. Because the prior incidents were minor

in comparison to the charged offenses involving a head-on

472 312

ICH

471 [Sept

collision that caused the deaths of two individuals, the probative

value of the evidence was not substantially outweighed by the

danger of unfair prejudice under MRE 403. The fact that

defendant offered to stipulate that her license had been sus-

pended did not render the other-acts evidence inadmissible

because the evidence was relevant to prove the element of

malice.

6. Defendant was not entitled to resentencing under People v

Lockridge, 498 Mich 358 (2015), because facts found by the jury

were sufﬁcient to assess the minimum number of offense variable

(OV) points necessary for defendant’s score to fall in the cell of the

sentencing grid under which she was sentenced. The trial court

assessed 50 points for OV 3, which is appropriate when a victim

was killed, the death resulted from the commission of a crime and

the offense involved the operation of a vehicle, and the offender

was under the inﬂuence of or visibly impaired by the use of

alcoholic liquor, a controlled substance, or a combination of

alcoholic liquor and a controlled substance. Each of these facts

was necessarily found by the jury beyond a reasonable doubt

because the jury found defendant guilty of second-degree murder,

which requires the death of a victim, and the jury also found

defendant guilty of OUIL causing death, which required the jury

to ﬁnd that defendant was operating a vehicle while under the

inﬂuence of alcoholic liquor, a controlled substance, or other

intoxicating substance or a combination thereof. The trial court

also assessed 100 points for OV 9, which is appropriate when

multiple deaths occurred. The jury found defendant guilty of two

counts each of second-degree murder. Because more than 100 OV

points could be sustained on the basis of facts found by the jury

beyond a reasonable doubt, defendant could not establish preju-

dice from any error was therefore not entitled to resentencing or

other relief.

Afﬁrmed.

1. C

ONSTITUTIONAL

AW —

OUBLE

EOPARDY —

ECOND

-D

EGREE

URDER —

RIVING WITH

USPENDED

ICENSE

AUSING

EATH

A person may be convicted of second-degree murder and driving

with a suspended license causing death without violating the

constitutional protections against double jeopardy; the statutes

governing these crimes enforce distinct societal norms, and their

respective elements of malice and lack of a valid operator’s license

are distinctive to each (US Const, Am V; Const 1963, art 1, § 15;

MCL 750.317; MCL 257.904(4)).

2015] P

EOPLE V

ERGMAN

473

2. C

ONSTITUTIONAL

AW —

OUBLE

EOPARDY —

PERATING A

EHICLE

NDER

THE

NFLUENCE OF

IQUOR

AUSING

EATH —

RIVING WITH

USPENDED

ICENSE

AUSING

EATH

A person may be convicted of second-degree murder and operating

a vehicle under the inﬂuence of liquor causing death without

violating the constitutional protections against double jeopardy;

the statutes governing these crimes enforce distinct societal

norms, and their respective elements of intoxication while driving

and lack of a valid operator’s license are distinctive to each (US

Const, Am V; Const 1963, art 1, § 15; MCL 257.625(4); MCL

257.904(4)).

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Michael D. Wendling, Pros-

ecuting Attorney, and Hilary B. Georgia, Senior Assis-

tant Prosecuting Attorney, for the people.

Stuart G. Friedman for defendant.

Before: T

ALBOT

, P.J., and W

ILDER

and F

ORT

OOD

, JJ.

ILDER

, J. A jury convicted Lisa Lynne Bergman of

two counts each of second-degree murder, MCL

750.317; operating a vehicle under the inﬂuence of

intoxicating liquor or a controlled substance (OUIL)

causing death, MCL 257.625(4); and operating a ve-

hicle with a suspended license causing death, MCL

257.904(4). The trial court sentenced defendant, as a

second-offense habitual offender, MCL 769.10, to con-

current prison terms of 25 to 50 years each for the

second-degree murder convictions, and 5 to 22

years

for each conviction of OUIL and driving with a sus-

pended license. Defendant appeals as of right. We

afﬁrm.

Defendant’s convictions arise from a two-vehicle

collision

in Kimball Township in St. Clair County

474 312 M

ICH

471 [Sept

shortly before 2:00 a.m. on July 20, 2013. A witness to

the scene of the accident testiﬁed that there was heavy

rain and fog. Defendant was driving a Ford F-350

pickup truck in the eastbound lane of Lapeer Road

when she crossed the centerline, veered into the west-

bound lane, and collided head-on with a GMC Sonoma

S-10 pickup truck. Lieutenant Terpenning,

an expert

accident reconstruction, testiﬁed that there was “no

question” in his mind that defendant’s vehicle crossed

the centerline into oncoming trafﬁc. He did not observe

anything to indicate that the S-10 pickup truck did

anything improper or did “anything other than driv[e]

down its intended lane of travel.” The driver of the

GMC truck, Russell Ward, and his passenger, Koby

Raymo, both died from blunt traumatic injuries.

Defendant’s blood alcohol concentration (BAC) was

below the legal limit,

but she also tested positive for

carisoprodol

(trade name Soma, which is a muscle

relaxant and not an opiate), meprobamate (the active

metabolite of carisoprodol), oxycodone, and amphet-

amine. Although the levels of these drugs in her system

were within the therapeutic range,

Dr. Michele Glinn,

expert in forensic toxicology and the effect of drugs

and alcohol on the human body, testiﬁed that the

drugs, other than amphetamine, were central nervous

system depressants and combining them could mag-

Lieutenant Terpenning’s ﬁrst name does not appear in the record.

Defendant’s BAC measured from blood samples taken at the hospi-

tal after the accident was 52 milligrams per deciliter (0.052 grams per

100 milliliters). There was testimony that this would be equivalent to a

“.04 whole blood result[].” The sample measured by the State Police

revealed a BAC of 0.01 grams per 100 milliliters.

According to expert testimony, defendant’s carisoprodol level was

within the therapeutic range and her meprobamate level was possibly

within the therapeutic range, although the expert could not say for

certain.

2015] P

EOPLE V

ERGMAN

475

nify the effects and keep the drugs in the system

longer. Glinn testiﬁed that, in particular, alcohol and

Soma are a “bad combination.” In Glinn’s opinion, the

drugs in defendant’s system affected her ability to

operate a motor vehicle.

At trial, over defendant’s objection, the prosecution

presented evidence of seven prior incidents in which

defendant drove erratically, was passed out in her

vehicle, or struck another vehicle while impaired or

under the inﬂuence of prescription substances, such as

carisoprodol or Soma, or was in possession of pills, such

as Vicodin or Soma.

This evidence was offered for its

relevance

to the malice element of second-degree mur-

der because it was probative of defendant’s knowledge

of how her substance abuse impaired her driving.

Glinn opined that the current accident was the only

incident in which defendant used alcohol in combina-

tion with other drugs.

Before trial, the prosecutor ﬁled notice of its intent

to introduce evidence of defendant’s prior acts under

MRE 404(b). The prosecutor asserted that defendant’s

prior conduct showed that she knew that consuming

drugs and alcohol impaired her ability to safely operate

a vehicle, and the evidence was relevant to prove the

necessary element of malice for second-degree murder.

Defendant moved to exclude evidence of her prior acts

and to strike the prosecutor’s ﬁling of notice. She

argued that the police reports ﬁled with the prosecu-

tor’s notice of intent were inadmissible hearsay, and

she contended that the ﬁling of these reports would

give the media access to unproven charges and deprive

her of a fair trial. Defendant further argued that the

prior incidents were not admissible under MRE 404(b)

This other-acts evidence is discussed more fully in Part VI of this

opinion.

476 312 M

ICH

471 [Sept

because the court rule was intended to apply only to

preplanned criminal activity, not to unintentional con-

duct. Lastly, defendant argued that if the prior inci-

dents were admitted, she would lose her right to have

her guilt or innocence determined on the facts of the

case. She asserted that a limiting instruction would

not be sufﬁcient to prevent any prejudice.

The prosecutor argued that in all of the prior inci-

dents, defendant had carisoprodol, or Soma, and its

metabolite, meprobamate, in her system.

In a major-

ity

of the cases, defendant had hydrocodone (Vicodin)

in her system. The instant case involved the opiate

oxycodone (Oxycontin). In all but one prior incident,

defendant was in possession of various pills, including

Soma and Vicodin. The prosecutor argued that these

incidents established a pattern of behavior in which

defendant ingested controlled substances and drove

her vehicle, despite knowing the risk of doing so. The

prosecutor also argued that defendant’s persistence in

this pattern clearly demonstrated a lack of mistake or

accident, and showed that she knowingly engaged in

behavior that created a high risk of death or serious

harm to others. As such, the prosecutor contended, the

evidence was relevant to prove the requisite degree of

malice for second-degree murder.

At the hearing on this motion, defendant argued

that the “gratuitously ﬁled” police reports ﬁled in this

matter should be struck. Defendant argued that if the

prosecutor was permitted to introduce evidence of the

other cases, “we will be ﬁghting . . . perhaps up to ﬁve

simultaneous cases all at the same time in the Circuit

Contrary to the prosecutor’s argument below, the evidence at trial

did not establish that defendant was under the inﬂuence of Soma during

the January 1, 2008 incident, although she was in possession of Soma

pills.

2015] P

EOPLE V

ERGMAN

477

Court,” which would result in a “prejudicial effect . . .

beyond any possible curative jury instruction[.]” De-

fendant argued that knowledge, accident, and absence

of mistake were irrelevant when there was no allega-

tion that defendant committed an intentional act. The

trial court denied the defendant’s motion, concluding

that knowledge and absence of mistake were at issue

and the prosecutor had a legitimate purpose in admit-

ting the evidence “to show that this particular Defen-

dant had knowledge of how these particular drugs

affect her and how it affects her ability to drive . . . .”

The trial court agreed to give a cautionary instruction

if requested.

Defendant also moved for appointment of an expert

witness at public expense. She argued that the accu-

racy and interpretation of the State Police laboratory

tests were critical issues in the case, and claimed that

she would be deprived of a “meaningful defense”

unless an independent expert determined the accu-

racy and relevance of the “purported ﬁndings” in the

laboratory reports. The cost of an independent exami-

nation of each test result was $1,500. A retest of what

defendant referred to as “Sample B” was $760. Defen-

dant argued that, at a minimum, she required an

expert evaluation of her blood test results on the

night of the fatal collision and the Sample B blood

draw. She asserted that she was indigent and unable

to pay these costs.

The prosecutor argued in response that the prosecu-

tor’s endorsement of an expert witness does not auto-

matically entitle an indigent defendant to a court-

appointed expert. Defendant also failed to allege any

irregularity or deﬁciency with respect to the State

Police Crime Lab’s methods or protocols that would

establish a genuine need for a defense expert.

478 312 M

ICH

471 [Sept

At the hearing on this motion, defense counsel

stated that he needed an expert to advise him on

reviewing the toxicology reports and the “B sample.”

He explained that two samples are taken: the A

sample, which is analyzed by the forensic lab, and the

B sample, which is reserved for later testing. He

asserted that the prosecutor could not reasonably

argue that toxicology reports were relevant to the

prosecution’s case, but not relevant to the defense. The

prosecutor responded that defendant’s motion did not

include arguments about relevance and interpretation

of lab results. Rather, defendant’s motion was based on

reviewing methods and protocols to ensure that the

State Police Crime Lab used proper methods, and a

defendant is not entitled to an expert merely because

the prosecutor relies on an expert, but instead must

establish a “sufﬁcient nexus” between appointment of

an expert and a potential ﬂaw in the prosecution’s

expert evidence. Defense counsel replied that he could

not determine whether protocols were followed. The

trial court stated that the prosecutor was making

every effort to provide the “instrumental data” to the

defense for review and analysis. The trial court agreed

with the prosecutor that defendant had not established

a sufﬁcient nexus justifying further testing or dupli-

cate testing to see if the same result would be obtained.

The court indicated that it was unwilling to appoint at

public expense an expert to duplicate the prosecution’s

forensic testing, but it did not rule out the appointment

of a consultant-type expert to assist in reviewing the

existing data and materials from the prosecution.

Also before trial, defendant moved for appointment

of an investigator “to interview witnesses who were in

a position to observe the defendant prior to and imme-

diately following the collision.” Defendant needed the

investigator because defense counsel’s attempts to per-

2015] P

EOPLE V

ERGMAN

479

form an investigation had not yet yielded results.

Defendant subsequently withdrew this motion after

the trial court granted an adjournment of trial to allow

defense counsel more time for preparation.

In another pretrial motion, the prosecutor sought to

exclude evidence of the deceased victims’ toxicology

reports. The prosecutor noted that Ward’s toxicology

report indicated that he had a BAC of 0.054 grams per

100 milliliters, and 6.2 nanograms per milliliter of

delta-9 tetrahydrocannabinol (THC) and 17 nano-

grams per milliliter of delta-9 carboxy THC in his

bloodstream. His passenger, Koby Raymo, had a BAC

of 0.110 grams per 100 milliliters, and also 7.5 nano-

grams per milliliter of delta-9 THC and 10 nanograms

per milliliter of delta-9 carboxy THC in his blood-

stream. The prosecutor argued that this evidence

should be excluded because it was not relevant and it

was unduly prejudicial. Raymo’s toxicology results

were irrelevant because he was a passenger and could

not have contributed to the accident. Ward’s toxicology

results were irrelevant because the evidence clearly

established that defendant crossed the centerline and

struck Ward’s vehicle head-on, with no negligence by

Ward. Finally, the prosecutor argued that any proba-

tive value of the evidence was outweighed by the

danger of unfair prejudice, misleading the jury, and

confusion of the issues.

Defendant argued in response that Ward’s toxicity

levels were relevant to the issues of fault and causa-

tion. At the hearing on the motion, defense counsel

argued that the other driver had “therapeutic levels” of

the opiate pain reliever Tramadol and benzodiazepine.

The trial court excluded the evidence on the basis that

there was no legitimate question of fact regarding the

proximate cause of the accident. At trial, defense

counsel conducted voir dire examination of Dr. Mary

480 312 M

ICH

471 [Sept

Pietrangelo, the deputy medical examiner who per-

formed autopsies on Ward and Raymo, in order to

create a record of excluded testimony. Pietrangelo

testiﬁed that Ward’s ethanol level was below the legal

limit, his level of Tramadol (a pain medication) was

within a therapeutic dosage, and he had been exposed

to marijuana or a similar substance, but she could not

determine the level of exposure. Pietrangelo ruled out

those substances as contributing factors to his manner

of death. Defense counsel then renewed his motion to

admit Ward’s toxicology results. He argued that they

were relevant to show that Ward was unable to remain

alert and react to sudden emergencies. The trial court

stated that if Ward’s conduct was a factor in the

proximate cause of his death, “that does not necessar-

ily negate or nullify the conduct of Ms. Bergman if the

facts support what it is that she’s being accused of.”

The trial court concluded that in order for such evi-

dence to be potentially admissible, there would have to

be something “fairly substantial in terms of the detail

of this accident that would suggest that Mr. Ward was

somehow a cause of the accident.” While the trial court

did not rule out admitting the evidence of Ward’s

toxicology after development of the testimony, it was

never admitted.

After the prosecution rested its case, defendant

moved for a directed verdict regarding the two second-

degree-murder charges. The trial court denied the

motion.

The jury found defendant guilty of both counts of

second-degree murder, both counts of OUIL causing

death, and both counts of driving with a suspended

license causing death. At sentencing, defendant ob-

jected to the scoring of 50 points for offense variable

(OV) 3, but the trial court found that 50 points were

2015] P

EOPLE V

ERGMAN

481

properly assessed. Defendant also objected to the scor-

ing of OV 9, but the trial court found that 100 points

were properly assessed. Defendant objected to the

scoring of 25 points for OV 6, but the trial court found

that the assignment of 25 points was proper. Next,

defendant objected to the scoring of 25 points for OV

13, and the trial court agreed that it should be scored

at zero points. Defendant argued that OV 17 should be

scored at zero points and the prosecution agreed.

According to the sentencing information report, OV 5

was scored at 15 points, and OV 18 was scored at ﬁve

points. Defendant’s total OV score was 195 points, and

her prior record variable (PRV) score was 37 points,

placing her in OV level III (100+ points) and PRV level

D (25-49 points) of the applicable sentencing grid, MCL

777.61. The trial court concluded from these scores

that defendant’s sentencing guidelines range was 270

to 562 months or life, as enhanced for a second-offense

habitual offender, and sentenced defendant to concur-

rent prison terms of 25 to 50 years each for the

second-degree murder convictions, and 5 to 22

years

for each conviction of OUIL causing death and driving

with suspended license causing death.

Defendant ﬁrst contends that the trial court erred

excluding evidence of intoxicants and controlled

substances in the bloodstream of Ward, the driver of

the other vehicle, on the basis that the evidence was

relevant to establishing that Ward may have been

negligent and that defendant’s own conduct did not

rise to the level of depraved indifference for human life.

We disagree.

We review preserved claims of evidentiary error for

an abuse of discretion. People v Unger, 278 Mich App

482 312 M

ICH

471 [Sept

210, 216; 749 NW2d 272 (2008). “An abuse of discretion

occurs when the court chooses an outcome that falls

outside the range of reasonable and principled out-

comes.” Id. at 217.

“Generally, all relevant evidence is admissible at

trial,” and “[e]vidence which is not relevant is not

admissible.” People v Powell, 303 Mich App 271, 277;

842 NW2d 538 (2013) (quotation marks and citations

omitted); see also MRE 402. “ ‘Relevant evidence’

means evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.” MRE

401; see also People v McLaughlin, 258 Mich App 635,

665; 672 NW2d 860 (2003). “Relevance involves two

elements, materiality and probative value. Materiality

refers to whether the fact was truly at issue.” People v

Benton, 294 Mich App 191, 199; 817 NW2d 599 (2011)

(quotation marks and citation omitted). Evidence is

probative if it “tends to make the existence of any fact

that is of consequence of the determination of the

action more probable or less probable than it would be

without the evidence[.]” People v Feezel, 486 Mich 184,

197; 783 NW2d 67 (2010) (opinion by C

AVANAGH

, J.)

(quotation marks and citation omitted).

In Feezel, the defendant struck and killed a pedes-

trian with his car. In dark and heavily rainy condi-

tions, the victim was walking in the middle of an unlit,

ﬁve-lane road, with his back to oncoming trafﬁc. The

victim was “extremely intoxicated” at the time of the

accident with a blood alcohol content of 0.268 grams

per 100 milliliters of blood, or higher. The defendant’s

blood alcohol content was 0.091 to 0.115 grams per 100

milliliters, and marijuana was detected in his blood.

Feezel, 486 Mich at 188-189 (opinion by C

AVANAGH

, J.).

2015] P

EOPLE V

ERGMAN

483

The defendant was charged with failing to stop at the

scene of an accident that resulted in death, MCL

257.617(3); operating while intoxicated, second of-

fense, MCL 257.625(1); and operating a motor vehicle

with the presence of a controlled substance in his body,

causing death, MCL 257.625(4) and (8). Id. at 187-188.

The defendant argued on appeal that the trial court

abused its discretion by granting the prosecutor’s mo-

tion in limine to preclude evidence related to the

victim’s intoxication. Id. at 189, 191. Our Supreme

Court concluded that the evidence was relevant to the

issue of causation. Id. at 191. The Court reviewed the

concept of proximate cause, observing:

Proximate causation “is a legal construct designed to

prevent

criminal liability from attaching when the result

of the defendant’s conduct is viewed as too remote or

unnatural.” If the ﬁnder of fact determines that an inter-

vening cause supersedes a defendant’s conduct “such that

the causal link between the defendant’s conduct and the

victim’s injury was broken,” proximate cause is lacking

and criminal liability cannot be imposed. Whether an

intervening cause supersedes a defendant’s conduct is a

question of reasonable foreseeability. Ordinary negligence

is considered reasonably foreseeable, and it is thus not a

superseding cause that would sever proximate causation.

In contrast, “gross negligence” or “intentional misconduct”

on the part of a victim is considered sufﬁcient to “break the

causal chain between the defendant and the victim” be-

cause it is not reasonably foreseeable. Gross negligence,

however, is more than an enhanced version of ordinary

negligence. “It means wantonness and disregard of the

consequences which may ensue . . . .” “Wantonness” is

deﬁned as “[c]onduct indicating that the actor is aware of

the risks but indifferent to the results” and usually

“suggests a greater degree of culpability than reckless-

ness . . . .” Therefore, while a victim’s negligence is not a

defense, it is an important factor to be considered by the

484 312

ICH

471 [Sept

trier of fact in determining whether proximate cause has

been proved beyond a reasonable doubt. [Id. at 195-196

(citations omitted).]

The Court concluded that, because the prosecution

was required to prove the element of causation beyond a

reasonable doubt, evidence of the victim’s BAC was

material. Feezel, 486 Mich at 198 (opinion by C

AVANAGH

J.). The Court held that the evidence was “highly

probative of the issue of gross negligence, and there-

fore causation, because the victim’s intoxication would

have affected his ability to perceive the risks posed by

his conduct and diminished his capacity to react to the

world around him.” Id. at 199. The Court acknowl-

edged that “being intoxicated, by itself, is not conduct

amounting to gross negligence.” Id. However, examin-

ing the speciﬁc circumstances of that case, the Court

determined that “the proffered superseding cause was

the victim’s presence in the middle of the road with his

back to trafﬁc at night during a rain storm with a

sidewalk nearby.” Id. Accordingly, “the proofs were

sufﬁcient to create a jury-submissible question about

whether the victim was grossly negligent, and the

victim’s high level of intoxication would have aided the

jury in determining whether the victim acted with

‘wantonness and a disregard of the consequences

which may ensue . . . .’ ” Id. (citation omitted). The

Court also importantly noted:

Depending on the facts of a particular case, there may be

instances

in which a victim’s intoxication is not sufﬁ-

ciently probative, such as when the proofs are insufﬁcient

to create a question of fact for the jury about whether the

victim was conducting himself or herself in a grossly

negligent manner. [Id. at 198-199.]

Applying Feezel to

the instant case, we conclude that

the excluded evidence is not probative of an interven-

2015] P

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ERGMAN

485

ing or superseding cause that could break the causal

link between defendant’s conduct and the victims’

deaths. Unlike the pedestrian in Feezel, who unneces-

sarily placed himself in the path of oncoming trafﬁc in

conditions of poor visibility, there was no evidence that

the victims in this case had placed themselves in a

hazardous situation at the time of the collision. The

evidence established that defendant’s vehicle crossed

the centerline and struck the GMC truck head-on.

There was no evidence that Ward was not properly

driving within his marked lane, or that Ward’s vehicle

would not have safely passed defendant if defendant

had not crossed the centerline in front of Ward, pre-

senting a serious and unexpected hazard. Thus, there

was no evidence that Ward did anything that contrib-

uted to the accident in a way that would establish that

he was negligent or grossly negligent and by his

conduct was an intervening cause of the accident.

Although defendant speculates that Ward’s consump-

tion of controlled substances impaired his ability to

react and avoid the accident, a driver’s failure to avoid

a vehicle that suddenly crosses the median directly in

the path of oncoming trafﬁc does not constitute gross

negligence breaking the causal link. An accident vic-

tim’s inability to protect himself and others from the

consequences of another person’s unexpected introduc-

tion of a serious hazard does not constitute an inter-

vening cause severing the causal chain between the

defendant and the victim.

Defendant also argues that Ward’s intoxication was

relevant to her defense of the second-degree murder

charge because it would have shown that she did not

have the requisite level of intent. “[T]he relationship of

the elements of the charge, the theories of admissibil-

ity, and the defenses asserted governs what is relevant

and material.” Powell, 303 Mich App at 277 (citation

486 312 M

ICH

471 [Sept

and quotation marks omitted). The elements of second-

degree murder are “(1) a death, (2) the death was

caused by an act of the defendant, (3) the defendant

acted with malice, and (4) the defendant did not have

lawful justiﬁcation or excuse for causing the death.”

People v Smith, 478 Mich 64, 70; 731 NW2d 411 (2007).

“Malice is deﬁned as the intent to kill, the intent to

cause great bodily harm, or the intent to do an act in

wanton and wilful disregard of the likelihood that the

natural tendency of such behavior is to cause death or

great bodily harm.” People v Goecke, 457 Mich 442,

464; 579 NW2d 868 (1998). “The prosecution is not

required to prove that the defendant actually intended

to harm or kill. Instead, the prosecution must prove

the intent to do an act that is in obvious disregard of

life-endangering consequences.” People v Werner, 254

Mich App 528, 531; 659 NW2d 688 (2002) (quotation

marks and citation omitted). In Werner, this Court

addressed circumstances in which intoxicated driving

resulting in a fatality rises to the level of second-degree

murder:

We also recognize that Goecke held

that not every

intoxicated driving case resulting in a fatality constitutes

second-degree murder. However, the evidence in this case

disclosed “a level of misconduct that goes beyond that of

drunk driving.” This is not a case where a defendant

merely undertook the risk of driving after drinking. De-

fendant knew, from a recent prior incident, that his

drinking did more than simply impair his judgment and

reﬂexes. He knew that he might actually become so

overwhelmed by the effects of alcohol that he would

completely lose track of what he was doing with his

vehicle. If defendant knew that drinking before driving

could cause him to crash on boulders in front of a house,

without any knowledge of where he was or what he was

doing, he knew that another drunken driving episode

2015] P

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ERGMAN

487

could cause him to make another major mistake, one that

would have tragic consequences. [Werner, 254 Mich App at

533 (citations omitted).]

Thus, the offense of second-degree murder is com-

mitted when the defendant has knowledge of her own

propensity to create a notably severe hazard when

driving while intoxicated, and the victim’s state of

intoxication is irrelevant to the defendant’s knowl-

edge of her own susceptibility to hazardous driving.

We ﬁnd no basis to depart from the intervening-cause

analysis articulated in Feezel in a case such as this, a

prosecution for second-degree murder, when the evi-

dence does not support the theory that the victim

broke the chain of causation stemming from the

defendant’s conduct. Accordingly, we conclude that

the trial court did not abuse its discretion in exclud-

ing as irrelevant the evidence of Ward’s alcohol and

substance exposure.

III

Defendant next argues that she was denied due

process

of law and is entitled to a new trial because the

trial court erroneously denied her motion for appoint-

ment of a toxicology expert at public expense. We

disagree.

We review the trial court’s decision whether to

appoint an expert for an abuse of discretion. People v

Tanner, 469 Mich 437, 442; 671 NW2d 728 (2003).

MCL 775.15 authorizes payment for an expert witness,

provided

that an indigent defendant is able to show “that

there is a material witness in his favor within the juris-

diction of the court, without whose testimony he cannot

safely proceed to trial . . . .” If the defendant makes this

showing, the judge, “in his discretion,” may grant funds

488 312

ICH

471 [Sept

for the retention of an expert witness. A trial court is not

compelled to provide funds for the appointment of an

expert on demand.

To obtain appointment of an expert, an indigent defen-

dant must demonstrate a nexus between the facts of the

case and the need for an expert. It is not enough for the

defendant to show a mere possibility of assistance from

the requested expert. Without an indication that expert

testimony would likely beneﬁt the defense, a trial court

does not abuse its discretion in denying a defendant’s

motion for appointment of an expert witness. [People v

Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006)

(citations omitted).]

Defendant relies on Ake

v Oklahoma, 470 US 68, 77;

105 S Ct 1087; 84 L Ed 2d 53 (1985) (quotation marks

and citation omitted), in which the United States

Supreme Court held that “[m]eaningful access to jus-

tice” and fundamental fairness require that indigent

defendants be afforded, at state expense, the “basic

tools of an adequate defense or appeal[.]” This Court

recognized Ake in People v Leonard, 224 Mich App 569,

580-581; 569 NW2d 663 (1997), and still concluded

that “a defendant must show a nexus between the facts

of the case and the need for an expert.” Id. at 582.

We conclude that Ake does not require appointment

of a defense expert without a demonstration of a nexus

between the need for an expert and the facts of the

case. Here, defendant failed to establish the requisite

nexus. She asserted that toxicology evidence was a

critical part of the prosecution’s case, but she did not

explain why she could not safely proceed to trial

without her own expert. See MCL 775.15. She did not

establish why the objective results of blood analysis

might be unreliable. She made no offer of proof that an

expert could dispute the prosecution experts’ opinions

regarding the side effects of prescription medications

2015] P

EOPLE V

ERGMAN

489

and their contribution to impaired driving. Defendant

failed to establish that expert testimony would likely

beneﬁt her case. A mere possibility that the expert

would have assisted the defendant’s case is not sufﬁ-

cient. Carnicom, 272 Mich App at 617. Accordingly, the

trial court did not abuse its discretion by denying

defendant’s motion.

Defendant also argues that the trial court erred by

denying

her motion for appointment of an investigator.

Although defendant moved for the appointment of a

defense investigator, defendant withdrew the motion

before it was decided. By voluntarily withdrawing her

motion, defendant waived her right to a defense inves-

tigator. See People v Carter, 462 Mich 206, 215; 612

NW2d 144 (2000) (waiver is the intentional relinquish-

ment or abandonment of a known right). A waiver

extinguishes any error, leaving no error to review. Id.

Defendant next argues that her convictions for mul-

tiple

counts of second-degree murder, OUIL causing

death, and driving with a suspended license causing

death in connection with the death of each victim

violated her double jeopardy protections under the

United States and Michigan Constitutions. US Const,

Am V; Const 1963, art 1, § 15. We disagree.

Because defendant did not raise this double jeop-

ardy issue in the trial court, review is limited to plain

error affecting substantial rights. People v Meshell, 265

Mich App 616, 628; 696 NW2d 754 (2005). “The double

jeopardy clauses of the United States and Michigan

constitutions protect against governmental abuses for

490 312 M

ICH

471 [Sept

both (1) multiple prosecutions for the same offense

after a conviction or acquittal and (2) multiple punish-

ments for the same offense.” People v Calloway, 469

Mich 448, 450; 671 NW2d 733 (2003). “A dual prosecu-

tion and conviction of a higher offense and a lesser

cognate offense are permissible where the Legislature

intended to impose cumulative punishment for similar

crimes, even if both charges are based on the same

conduct.” Werner, 254 Mich App at 535. In Werner, this

Court squarely held that dual convictions for OUIL

causing death and second-degree murder do not violate

the double jeopardy clauses, explaining:

In P

eople v Kulpinski, 243 Mich App 8, 620 NW2d 537

(2000), this Court found no double jeopardy implications

where a defendant was convicted of both OUIL causing

death and involuntary manslaughter, MCL 750.321. Be-

cause the Legislature intended for the two statutes to

enforce distinct societal norms, and because each statute

contained an element not found in the other, the Court

concluded that multiple punishments were permissible. Id.

at 18-24; see also People v Price, 214 Mich App 538; 543

NW2d 49 (1995). This reasoning applies with equal force to

dual convictions of second-degree murder and OUIL caus-

ing death. If the Legislature intended for the OUIL causing

death statute to enforce societal norms that are distinct

from the societal norms enforced by the involuntary man-

slaughter statute (grossly negligent conduct), it clearly also

intended the OUIL statute to enforce societal norms other

than those enforced by the second-degree murder statute

(proscribing wanton conduct likely to cause death or great

bodily harm). Id. at 543-544; Kulpinski, [243 Mich App] at

22-23. Moreover, the OUIL causing death statute and

second-degree murder statute each contain an element not

found in the other. The OUIL causing death statute in-

cludes the element of operating a motor vehicle with a

speciﬁed blood alcohol level, but not the element of malice;

the converse is true of the second-degree murder statute.

Price, [214 Mich App] at 545-546; Kulpinski, [243 Mich

App] at 23-24. Accordingly, defendant’s convictions of both

2015] P

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ERGMAN

491

second-degree murder and OUIL causing death do not

violate the Double Jeopardy Clauses. [Werner, 254 Mich

App at 535-536.]

Although the Werner Court did not address double

jeopardy concerns with respect to convictions of

second-degree murder and driving with a suspended

license causing death, or convictions of OUIL causing

death and driving with a suspended license causing

death, the analysis in Werner applies with equal force

to these combinations of convictions. The statutes

governing second-degree murder and driving with a

suspended license causing death enforce distinct soci-

etal norms, and their respective elements of malice and

lack of a valid operator’s license are distinctive to each.

See Smith, 478 Mich at 70; MCL 257.904(4). Similarly,

the OUIL and suspended-license statutes enforce dis-

tinct societal norms, and their respective elements of

intoxication while driving and lack of a valid operator’s

license are distinctive to each. See MCL 257.625(4);

MCL 257.904(4).

Accordingly, defendant’s multiple

convictions

do not violate the double jeopardy clauses.

Defendant next argues that the trial court erred by

admitting evidence of her prior acts under MRE

404(b)(1). We disagree.

We review the trial court’s decision to admit evi-

dence for an abuse of discretion. People v Gursky, 486

Mich 596, 606; 786 NW2d 579 (2010). MRE 404(b)(1)

prohibits “[e]vidence of other crimes, wrongs, or acts”

to prove a defendant’s character or propensity to com-

mit the charged crime, but permits such evidence for

other purposes, “such as proof of motive, opportunity,

Defendant concedes that this Court is bound by Werner.

492 312 M

ICH

471 [Sept

intent, preparation, scheme, plan, or system in doing

an act, knowledge, identity, or absence of mistake or

accident when the same is material . . . .” Evidence of

other crimes or bad acts is admissible when it is offered

for a proper purpose, MRE 404(b)(1); it is relevant

under MRE 402; and its probative value is not substan-

tially outweighed by unfair prejudice, MRE 403. People

v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114

(1993), amended 445 Mich 1205 (1994).

In Werner, 254 Mich App at 533-534, this Court held

that evidence that the defendant had previously expe-

rienced an alcohol-induced blackout while driving,

during which he “crash[ed] on boulders in front of a

house, without any knowledge of where he was or what

he was doing,” was admissible under MRE 404(b)(1) in

a case in which the defendant was charged with

second-degree murder; OUIL causing death, OUIL

causing serious impairment of a body function; MCL

257.625(5); and driving with a suspended license, sec-

ond offense, MCL 257.904(1). This Court held that the

evidence was properly admitted to show knowledge

and absence of mistake, and was probative of the

malice element for second-degree murder because it

showed “that defendant knew that heavy drinking

could lead to a blackout, and that a blackout could lead

to defendant’s driving without any understanding of

what he was doing.” Id. at 539-540. The evidence also

was relevant because the defendant’s previous black-

out while driving “made it more probable than not that

he was aware this could happen to him.” Id. at 540.

This Court further concluded that the probative value

of the evidence outweighed any prejudicial effect be-

cause the prior incident involving a one-vehicle acci-

dent with no injuries to anyone was a minor incident in

comparison to the charged offense, in which the defen-

dant drove the wrong way on a freeway and caused the

2015] P

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ERGMAN

493

death of a young woman and seriously injured a young

man. In addition, the trial court gave an appropriate

cautionary instruction. Id.

We conclude that Werner is directly on point. The

prior acts evidence here involved incidents in which

defendant either drove unsafely, was passed out in her

vehicle, or was involved in an accident while impaired

or under the inﬂuence of prescription substances, or

was in possession of pills, such as Vicodin and Soma.

This evidence was properly admitted to show defen-

dant’s knowledge and absence of mistake, and was

relevant to the malice element for second-degree mur-

der because it was probative of defendant’s knowledge

of her inability to drive safely after consuming pre-

scription substances. And, because the prior incidents

were minor in comparison to the charged offenses

involving a head-on collision that caused the deaths of

two individuals, the probative value of the evidence

was not substantially outweighed by the danger of

unfair prejudice under MRE 403. Lastly, the trial court

gave an appropriate cautionary instruction to reduce

any potential for prejudice.

We reject defendant’s assertion that, under Old

Chief v United States, 519 US 172; 117 S Ct 644; 136 L

Ed 2d 574 (1997), there was no need to introduce the

prior acts evidence because she could have stipulated

that her license was suspended. In Old Chief, the

United States Supreme Court held that the trial court

abused its discretion in rejecting the defendant’s offer

to stipulate that he had a prior felony conviction, a

necessary element of the charged offense of felon in

possession of a ﬁrearm. Id. at 174. The Court observed

that “evidence of the name or nature of the prior

offense generally carries a risk of unfair prejudice to

the defendant” and that the defendant’s admission of a

494 312 M

ICH

471 [Sept

prior conviction was not only sufﬁcient to prove that

element of the charged offense, but also was “seem-

ingly conclusive evidence of the element.” Id. at 185-

186. The Court acknowledged that “the accepted rule

that the prosecution is entitled to prove its case free

from any defendant’s option to stipulate the evidence

away rests on good sense,” but reasoned that the

“recognition that the prosecution with its burden of

persuasion needs evidentiary depth to tell a continu-

ous story has . . . virtually no application when the

point at issue is a defendant’s legal status, dependent

on some judgment rendered wholly independently of

the concrete events of later criminal behavior charged

against him.” Id. at 189-190.

In People v Crawford, 458 Mich 376, 378; 582 NW2d

785 (1998), our Supreme Court considered the admis-

sion of the defendant’s prior conviction of possession

with intent to deliver cocaine in his jury trial for

possession with intent to deliver cocaine. Citing Old

Chief, the Court concluded that the defendant’s intent

was in issue “[b]ecause the prosecution must carry the

burden of proving every element beyond a reasonable

doubt, regardless of whether the defendant speciﬁcally

disputes or offers to stipulate any of the elements . . . .”

Crawford, 458 Mich at 389. In People v McGhee, 268

Mich App 600, 610 n 3; 709 NW2d 595 (2005), this

Court, citing Crawford, rejected the defendant’s argu-

ment that the prosecutor should not be permitted to

introduce prior acts evidence to prove that the defen-

dant acted with the requisite intent to distribute

drugs.

Here, defendant’s offer to stipulate that she had a

suspended license, while being conclusive of a neces-

sary element for that offense, would not have been

conclusive of or a sufﬁcient substitute for the malice

2015] P

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ERGMAN

495

element of second-degree murder, for which the evi-

dence was offered. Proof that defendant intentionally

acted “in wanton and wilful disregard of the likelihood

that the natural tendency of such behavior is to cause

death or great bodily harm,” Goecke, 457 Mich at 464,

is not a matter of legal status. Even a stipulation to the

fact of prior charges or convictions would not have been

conclusive of or a sufﬁcient substitute for the malice

element. Defendant’s prior incidents revealed that she

already had several close calls involving drug-impaired

driving, and thus should have recognized that she

could not safely drive while using drugs. Accordingly,

the trial court did not abuse its discretion by admitting

the other-acts evidence.

VII

Finally, relying on Alleyne

v United States, 570 US

___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), and

Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147

L Ed 2d 435 (2000), defendant argues that judicial

fact-ﬁnding at sentencing was improperly used to score

OVs 3, 7, 9, and 19,

and thereby increase the ﬂoor of

the

guidelines minimum sentence range, in violation of

her Sixth Amendment right to a jury trial. We dis-

agree.

In Apprendi, 530 US at 490, the United States

Supreme Court announced the general Sixth Amend-

ment principle that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable

doubt.” In Alleyne, 570 US at ___; 133 S Ct at 2155, the

Supreme Court extended this rule to mandatory mini-

We note that the trial court did not score OV 7 or 19.

496 312 M

ICH

471 [Sept

mum sentences. The Court held that “any fact that

increases the mandatory minimum is an ‘element’ that

must be submitted to the jury.” Id. at 133 S Ct at 2155.

In People v Lockridge, 498 Mich 358; 870 NW2d 502

(2015), our Supreme Court recently addressed the

application of the Apprendi and Alleyne rules to Michi-

gan’s sentencing guidelines. The Court concluded that

Michigan’s sentencing guidelines violate the Sixth

Amendment to the extent that they allow a sentencing

judge to ﬁnd by a preponderance of the evidence facts

that are used to score the offense variables and,

thereby, to mandatorily increase the ﬂoor of the guide-

lines minimum sentence range. Id. at 399. To remedy

this constitutional violation, the Court held that the

guidelines are “advisory only.” Id. The Court “sever[ed]

MCL 769.34(2) to the extent that it is mandatory and

[struck] down the requirement of a ‘substantial and

compelling reason’ to depart from the guidelines range

in MCL 769.34(3).” Id. at 391. The Court stated,

however, that the guidelines remain “a highly relevant

consideration in a trial court’s exercise of sentencing

discretion,” id., and that sentencing judges remain

obligated to determine the applicable guidelines range

and to take the guidelines range into account when

imposing a sentence, id. at 392.

The Lockridge Court further clariﬁed that when, as

in this case, the defendant did not object to the scoring

of the offense variables at sentencing on

Apprendi/Alleyne grounds, review is for plain error

affecting substantial rights. Lockridge, 498 Mich at

392. The Court also discussed how that standard is to

be applied in other cases. As relevant to this case, the

Court stated:

First, we consider cases in which (1) facts admitted by

the

defendant and (2) facts found by the jury were sufﬁ-

2015] P

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ERGMAN

497

cient to assess the minimum number of OV points neces-

sary for the defendant’s score to fall in the cell of the

sentencing grid under which he or she was sentenced. In

those cases, because the defendant suffered no prejudice

from any error, there is no plain error and no further

inquiry is required. [Id. at 394-395.]

In this case, the trial court scored the sentencing

guidelines for defendant’s second-degree-murder con-

viction. Defendant’s total OV score was 195 points and

her PRV score was 37 points, placing her in OV level

III (100+ points) and PRV level D (25-49 points). OV

Level III is the highest level of offense severity on the

applicable sentencing grid. MCL 777.61. Thus, as long

as at least 100 OV points can be sustained on the basis

of facts found by the jury beyond a reasonable doubt,

defendant cannot establish prejudice from any error,

and relief is not required. Defendant alleges that

judicial fact-ﬁnding occurred in the scoring of OVs 3, 7,

9, and 19.

The trial court assessed 50 points for OV 3, which is

appropriate

when (1) a victim was killed, (2) the “death

results from the commission of a crime and the of-

fense . . . involves the operation of a vehicle,” and (3)

“[t]he offender was under the inﬂuence of or visibly

impaired by the use of alcoholic liquor, a controlled

substance, or a combination of alcoholic liquor and a

controlled substance.” MCL 777.33(1)(b) and (2)(c)(i).

Each of these facts was necessarily found by the jury

beyond a reasonable doubt. The jury found defendant

guilty of second-degree murder, which requires the

death of a victim. The jury also found defendant guilty

of OUIL causing death, which required the jury to ﬁnd

that defendant was operating a vehicle while under the

She does not, however, challenge the accuracy of the scoring of those

OVs.

498 312 M

ICH

471 [Sept

inﬂuence of alcoholic liquor, a controlled substance, or

other intoxicating substance or a combination thereof.

MCL 257.625(1)(a). Thus, each of the facts necessary to

support a 50-point score for OV 3 was necessarily

found by the jury beyond a reasonable doubt. Accord-

ingly, the trial court’s scoring of OV 3 did not violate

defendant’s Sixth Amendment right to a jury trial.

The trial court also assessed 100 points for OV 9,

which is appropriate when “[m]ultiple deaths oc-

curred.” MCL 777.39(1)(a). MCL 777.39(2)(b) indicates

that 100 points are to be assessed only in homicide

cases. The jury found defendant guilty of two counts

each of second-degree murder. These verdicts reﬂect

that the jury found beyond a reasonable doubt that

multiple deaths occurred. Accordingly, the trial court’s

scoring of OV 9 did not violate defendant’s Sixth

Amendment right to a jury trial.

In sum, because facts found by the jury were sufﬁ-

cient to assess the minimum number of OV points

necessary for defendant’s placement in the D-III cell of

the sentencing grid under which she was sentenced,

there was no plain error and defendant is not entitled

to resentencing or other relief under Lockridge.

Afﬁrmed.

ALBOT

, P.J., and F

ORT

OOD

, J., concurred with

ILDER,

2015] P

EOPLE V

ERGMAN

499

HARPER WOODS RETIREES ASSOCIATION v

CITY OF HARPER WOODS

Docket No. 318450. Submitted February 4, 2015, at Detroit. Decided

October 1, 2015, at 9:00 a.m.

Harper Woods Retirees Association and various individuals who

have retired from employment with the city of Harper Woods

brought an action for breach of contract against the city in the

Wayne Circuit Court, claiming that defendant improperly made

unilateral changes to their health insurance beneﬁts. The court,

Susan D. Borman, J., granted plaintiffs’ motion for class certiﬁ-

cation but failed to identify the members of the class. The court

also granted defendant’s motion for summary disposition, relying

on a Sixth Circuit Court of Appeals case that authorized employ-

ers to unilaterally alter retirees’ vested health insurance coverage

if the alterations are reasonable. The court granted defendant’s

motion because plaintiffs had failed to address the issue of

reasonableness. Plaintiffs appealed in the Court of Appeals,

which retained jurisdiction over the case and remanded it to the

trial court with instructions to identify the class members and to

provide them with the notice required under MCR 3.501(C). The

class members were identiﬁed and given notice, and the Court of

Appeals addressed plaintiffs’ remaining arguments on appeal.

The Court of Appeals held:

1. The trial court erred by granting defendant’s motion for

summary disposition because an employer cannot unilaterally

modify vested health insurance beneﬁts provided to retirees

under a collective bargaining agreement (CBA) or personal con-

tract. The trial court based its decision on the ruling in Reese v

CNH America LLC, 694 F3d 681 (CA 6, 2012). Federal circuit

court decisions are not binding on state courts, and therefore, the

trial court was not obligated to follow Reese’s holding. In addition,

Reese’s conclusion that unilateral alterations to retirees’ vested

health insurance beneﬁts were permitted as long as the altera-

tions were reasonable occurred in a case in which the evidence

indicated that the parties intended to permit such alterations.

500 312

ICH

500 [Oct

Parties must be able to rely on the contractual language of the

agreement to which they mutually assented.

2. A retiree’s vested rights may not be altered without the

retiree’s consent. A right is vested when the retiree can show

that (1) he or she had a contractual right to the claimed beneﬁt

that was to continue after the agreement’s expiration and (2) the

right was included in his or her respective contract at the time

of retirement. However, the presumption that retirement ben-

eﬁts vest for the lifetime of a retiree violates the traditional

rules of contractual interpretation. Traditional rules of contrac-

tual interpretation apply to collective bargaining agreements

and the provision and duration of retirees’ health insurance

beneﬁts. The duration of a retiree’s beneﬁts and the beneﬁts to

which the retiree is entitled depend on the language used in the

CBA or personal contract under which the retiree claims the

beneﬁts.

3. Whether a retiree should continue to receive health insur-

ance beneﬁts, and the type of beneﬁts he or she should receive,

depends on the language of the CBA or personal contract under

which the retiree was given the beneﬁts. The case was re-

manded for the trial court to identify the speciﬁc CBA or

personal contract under which each member of the class claims

his or her health insurance beneﬁts. The trial court must then

apply ordinary contract principles to determine (1) whether the

parties intended the healthcare beneﬁts in each agreement to

survive after the agreement expired or (2) whether the retiree’s

healthcare beneﬁts terminated after the agreement expired so

that defendant was permitted to alter the retiree’s beneﬁts

under future contracts.

4. Plaintiffs claimed that a question of fact existed regarding

whether defendant was in a state of ﬁnancial crisis at the time

it altered the retirees’ health insurance coverage, but the trial

court did not address this argument, which rendered it unpre-

served. Even so, the reason why a breaching party failed to

fulﬁll its contractual obligations is not an element in a breach of

contract claim.

5. Plaintiffs’ claim that defendant violated city ordinances

when it altered retirees’ healthcare beneﬁts was not included in

plaintiffs’ statement of the questions presented, and therefore, the

claim was not properly presented for appellate review.

Reversed and remanded.

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ONTRACTS —

OLLECTIVE

-B

ARGAINING

GREEMENTS —

ETIREES —

EALTHCARE

ENEFITS

An employer cannot unilaterally modify a retiree’s vested health

insurance beneﬁts; alterations of a retiree’s vested health insur-

ance beneﬁts are governed by traditional principles of contractual

interpretation and the contractual language in the collective-

bargaining agreement or personal contract under which the

retiree claims the beneﬁts.

Mark A. Porter & Associates (by Mark

A. Porter) for

plaintiffs.

Bellanca LaBarge PC (by Sharon A. DeWaele) for

defendant.

Before: F

ORT

OOD

, P.J., and J

ANSEN

and G

ADOLA

, JJ.

ADOLA

, J. Plaintiffs appeal as of right from the trial

court’s order granting defendant’s motion for summary

disposition under MCR 2.116(C)(8) (failure to state a

claim) and MCR 2.116(C)(10) (no genuine issue of

material fact). We reverse and remand for further

proceedings consistent with this opinion.

I. FACTS

The Harper Woods Retirees Association (HWRA) is

nonproﬁt corporation composed of individuals who

were once employed by defendant, and who retired

between the 1980s and early 2000s. The individually

named plaintiffs are retirees who hold the following

positions within the HWRA: Jeffrey Manor, president;

James Manor, treasurer; Judith DeKeyser, secretary;

and Donald Kuczborski, trustee. According to plain-

tiffs’ complaint, members of the HWRA obtained

vested healthcare beneﬁts through multiple collective

bargaining agreements (CBAs) and personal con-

tracts with defendant. These agreements identiﬁed

speciﬁc health insurance plans, riders, and prescrip-

502 312 M

ICH

500 [Oct

tion drug co-pays available to retirees.

Plaintiffs

alleged that retirees previously received Blue Cross -

Blue Shield of Michigan (BCBS-M) “Traditional,” “Mas-

ter Medical,” or “Community Blue-1” insurance plans,

Plaintiffs attached three CBAs to their complaint. The January 1,

2004 through December 31, 2006 CBA between defendant and the

International Association of Fireﬁghters, Local No. 1188, AFL-CIO

stated the following:

For any employee covered by this Agreement and his depen-

dents, the City will pay the full cost of Blue Cross Preferred

Provider Organization (PPO) Comprehensive Hospital Semi-

Private Service with Riders D45NM, MM, ML, IMB, DCCR, Blue

Shield MVF-1 service with $2.00 prescription drug program, and

out of state reciprocity rider. Effective August 1, 1998, the

prescription drug rider shall be $10.00.

Upon an employee’s retirement from employment by the

City, and during the period of his retirement thereafter, . . . the

City will pay the full cost of the above health care insurance

coverages for such retiree and his spouse, until each has reached

age 65 and, from and after his reaching age 65, shall pay the full

cost of his Blue Cross/Blue Shield Care Insurance Plan which

supplements his own Medicare Health Care coverage.

* * *

For retirees and their spouses, the insurance coverage shall

continue to be the existing Traditional BCBS plan (#63049/905),

provided however that for those employees retiring on or after

October 1, 2005, the prescription co-pay shall be increased from

$2 to $5.

The 2000 through 2002 CBA between defendant and the American

Federation of State, County and Municipal Employees, Local No. 1107,

stated the following:

[F]or all retirees from the City’s service who were members of this

Local at the time of retirement from the City, the City will pay,

during the term of this agreement, the full cost of Blue Cross

Comprehensive Hospital, Semi-Private, Preferred Provider Orga-

nization, Service with Riders D, D45NM, MM, ML, Pap Smear

and Ten Dollar ($10.00) Prescription Drug Program Rider and of

Blue Shield MVF-1 Service.

The January 1, 2000 through December 31, 2002 CBA between defen-

dant and the Police Ofﬁcers Labor Council (Command Ofﬁcers Unit)

stated the following:

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which guaranteed either no deductibles for treatment

or “ﬁrst dollar” deductibles of approximately $10 for

ofﬁce visits. Plaintiffs also claimed that some of their

original health plans had a $2 deductible for generic

prescriptions and a $5 deductible for name brand

prescriptions.

On April 12, 2012, defendant announced plans to

unilaterally alter its retirees’ healthcare coverage. Ac-

cording to plaintiffs’ complaint, defendant sought to

move retirees under the age of 65 into a BCBS-M

“Community Blue-2” insurance plan, and retirees over

the age of 65 into a BCBS-M “Medicare Advantage,

Mid-Option” insurance plan. Plaintiffs alleged that the

new plans “would include co-pays and deductibles

amounting to $1,000.00 to $1,500.00 per year, per

retiree” and would require retirees who previously

paid $2 and $5 co-pays for their prescriptions to pay $5

for generic prescriptions and $20 for name brand

prescriptions.

In June 2012, individual retirees established the

HWRA to oppose defendant’s proposed changes. How-

ever, following two meetings between defendant and

the HWRA, defendant maintained that its retiree

healthcare beneﬁts expired at the term end of the

relevant CBAs, giving defendant the discretion to alter

retiree health insurance coverage. On July 9, 2012, the

city council approved defendant’s alterations, and on

August 1, 2012, the changes became effective.

The City agrees to pay the premium of the retirees for the Blue

Cross — Blue Shield Plan listed above except such plan shall be

traditional rather than PPO, and to provide additional coverage

for the employee’s spouse . . . .

The prescription drug rider for all retirees shall be a $ 2.00

co-pay plan.

504 312

ICH

500 [Oct

In October 2012, plaintiffs ﬁled a complaint alleging

breach of contract including violation of the Contract

Clauses of the United States Constitution. Plaintiffs

sought a declaration that defendant breached its con-

tracts, an injunction against further alteration of retiree

beneﬁts, and an order returning to retirees their previ-

ous health insurance coverage. Plaintiffs also sought

class certiﬁcation for the 88 members of the HWRA. The

trial court initially refused to certify the membership of

the HWRA as a class. However, following a motion

hearing on June 28, 2013, the court instructed plaintiffs

to reintroduce their motion for class certiﬁcation, and

instructed defendant to bring a motion for summary

disposition on the question of whether a municipality

may unilaterally alter the healthcare beneﬁts of its

retired employees.

At a hearing in September 2013, the court addressed

both motions. First, the court granted plaintiffs’ motion

for class certiﬁcation in part, deﬁning the certiﬁed class

to include all of defendant’s employees who (1) were

covered by a CBA at the time of retirement, or (2) had a

personal contract with defendant at the time of retire-

ment. However, the trial court did not identify the

speciﬁc persons included in the class certiﬁcation. Next,

addressing defendant’s motion for summary disposition,

the court relied on the holding of the United States

Court of Appeals for the Sixth Circuit in Reese v CNH

America LLC, 694 F3d 681 (CA 6, 2012) to conclude as

a matter of law that employers may unilaterally alter

retirees’ health insurance coverage provided in a CBA if

the alterations are reasonable. Because plaintiffs had

not challenged the reasonableness of defendant’s health

insurance alterations, the trial court granted defen-

dant’s motion.

Plaintiffs appealed as of right in this Court the trial

court’s summary disposition order. On appeal, plain-

2015] H

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tiffs argued that the lower court erred by granting

defendant’s motion for summary disposition, and that

it failed to provide proper notice to class members after

certifying the case as a class action. We held oral

argument on the matter on February 4, 2015. Shortly

thereafter, we issued an order remanding the case for

the limited purpose of identifying the members of the

certiﬁed class and providing them notice in compliance

with MCR 3.501(C).

Harper Woods Retirees Ass’n v City

f Harper Woods, unpublished order of the Court of

Appeals, entered February 13, 2015 (Docket No.

318450). In July 2015, the trial court submitted an

order on remand certifying the class and identifying the

class members. Now that the members of the class have

been identiﬁed, we address plaintiffs’ remaining argu-

ments on appeal.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion

or summary disposition. Cuddington v United Health

Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519

(2012). Defendant moved for summary disposition un-

der both MCR 2.116(C)(8) and MCR 2.116(C)(10), and

the trial court did not specify under which rule it

decided the motion. However, because the court decided

defendant’s motion on purely legal grounds without

referring to evidence outside the pleadings, we review

the motion under MCR 2.116(C)(8).

Spiek v Dep’t of

We also instructed the parties to submit supplemental brieﬁng on

the vesting of retirement beneﬁts in light of the United States Supreme

Court’s recent decision in M&G Polymers USA, LLC v Tackett, 574 US

___; 135 S Ct 926; 190 L Ed 2d 809 (2015).

In contract-based actions, any contracts attached to the complaint

are considered part of the pleadings. Liggett Restaurant Group, Inc v

City of Pontiac, 260 Mich App 127, 133; 676 NW2d 633 (2003); see also

MCR 2.113(F)(2). Plaintiffs attached excerpts of 33 CBAs and six

personal contracts to their response to the motion for summary dispo-

506 312

ICH

500 [Oct

Transp, 456 Mich 331, 338; 572 NW2d 201 (1998); see

also MCR 2.116(G)(5). “A motion under MCR

2.116(C)(8) tests the legal sufﬁciency of the complaint.”

Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817

(1999). When reviewing the motion, courts must accept

as true all well-pleaded factual allegations within the

complaint. Wade v Dep’t of Corrections, 439 Mich 158,

162-163; 483 NW2d 26 (1992). A decision granting a

motion under MCR 2.116(C)(8) is proper if the claims

alleged are “so clearly unenforceable as a matter of law

that no factual development could possibly justify

recovery.” Id. at 163. We review de novo questions

regarding the interpretation of a contract. In re Smith

Trust, 274 Mich App 283, 285; 731 NW2d 810 (2007),

aff’d 480 Mich 19 (2008).

III. DISCUSSION

Plaintiffs ﬁrst argue that the trial court erred by

granting

defendant’s motion for summary disposition

after concluding that under Reese, 694 F3d 681, defen-

dant could unilaterally modify any health insurance

beneﬁts provided to retirees under its CBAs or per-

sonal contracts, regardless whether the rights had

vested, as long as the modiﬁcations were reasonable.

We agree.

In Michigan, “[t]he foundational principle of our

contract jurisprudence is that parties must be able to

rely on their agreements[, and this] applies no less

strongly to collective bargaining agreements . . . .” Ma-

comb Co v AFSCME Council 25 Locals 411 & 893,

sition. The trial court did not consider these contracts in deciding the

motion for summary disposition. Rather, the court concluded that, as a

matter of law, an employer could unilaterally alter retiree healthcare

beneﬁts found in a CBA or personal contract if the alterations were

reasonable.

2015] H

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494 Mich 65, 80; 833 NW2d 225 (2013). “A collective

bargaining agreement, like any other contract, is the

product of informed understanding and mutual as-

sent.” Port Huron Ed Ass’n v Port Huron Area Sch Dist,

452 Mich 309, 327; 550 NW2d 228 (1996). When

contractual language is unambiguous, courts must

interpret and enforce the language as written because

an unambiguous contract reﬂects, as a matter of law,

the parties’ intent. Hastings Mut Ins Co v Safety King,

Inc, 286 Mich App 287, 292; 778 NW2d 275 (2009).

“[T]he principle of freedom to contract does not permit

a party unilaterally to alter [an] original contract.”

Quality Prod & Concepts Co v Nagel Precision, Inc, 469

Mich 362, 364; 666 NW2d 251 (2003). Rather, when the

alteration of a provision in a CBA “affects vested rights

already accrued[, the change] may give rise to a cause

of action in contract.” Dumas v Auto Club Ins Ass’n,

437 Mich 521, 530; 473 NW2d 652 (1991) (involving a

change in compensation policy for work already pre-

formed).

The trial court erred by concluding as a matter of

law that defendant could unilaterally alter the health

insurance beneﬁts provided under its CBAs and per-

sonal contracts. Generally, unilateral alteration of con-

tracts is prohibited because “mutuality is the center-

piece to waiving or modifying a contract . . . .” Quality

Prod, 469 Mich at 364.

The trial court also erred by

holding

that the reasonableness of defendant’s pro-

posed alterations, in light of the city’s alleged ﬁnancial

As a matter of law, the presence of a modiﬁcation clause in a written

contract also raises a presumption that a contract may not be modiﬁed

absent mutual assent. See Quality Prod, 469 Mich at 374. Although

plaintiffs did not attach the entirety of each CBA to their complaint, at

least one of the attached CBAs includes a modiﬁcation clause providing

that the agreement would remain in full force and effect absent written

notice, renegotiation, and “agreement upon a new contract.”

508 312 M

ICH

500 [Oct

crisis, was a proper basis on which to permit or refuse

enforcement of the contractual provisions at issue. In

Michigan, “[a] mere judicial assessment of ‘reasonable-

ness’ is an invalid basis on which to refuse to enforce

contractual provisions.” Rory v Continental Ins Co, 473

Mich 457, 470; 703 NW2d 23 (2005). Further, rising

medical insurance costs and the city’s ﬁnancial situa-

tion are irrelevant to the inquiry because the fact that

a contractual obligation “proved to be more onerous . . .

than anticipated is no defense.” Johnston v Miller, 326

Mich 682, 696; 40 NW2d 770 (1950).

By ruling that defendant could unilaterally alter

any of its retirees’ healthcare beneﬁts as a matter of

law, the trial court found the Sixth Circuit’s decision in

Reese, 694 F3d 681, controlling. In Reese, retirees

brought suit against their employer seeking a declara-

tion that they were entitled to lifetime health insur-

ance beneﬁts under their CBAs and an injunction

preventing their employer from altering the level of

healthcare beneﬁts then in effect. The Sixth Circuit

held that when an employer and its retirees “did not

perceive the relevant CBAs as establishing ﬁxed, un-

alterable beneﬁts,” an employer “could make ‘reason-

able’ changes to the healthcare plan covering eligible

retirees.” Id. at 684. The court described “reasonable”

alterations as those that are “reasonably commensu-

rate” with the former insurance plan, those that are

reasonable considering what medical care is currently

available, and those that provide beneﬁts roughly

similar to the beneﬁts provided to current employees.

Id. at 685. The court then offered a nonexhaustive list

of factors for the trial court to consider when determin-

ing if alterations are reasonable. Id. at 685-686.

In this case, the trial court was not bound to follow

Reese. “Although lower federal court decisions may be

2015] H

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persuasive, they are not binding on state courts.” Abela

v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325

(2004). Further, Reese does not stand for the proposi-

tion that an employer may always unilaterally alter its

retirees’ healthcare beneﬁts under a CBA, regardless

of the CBA’s speciﬁc language, as long as the altera-

tions are reasonable. Rather, the Reese court indicated

that a retiree’s right to health insurance beneﬁts under

a CBA could be unilaterally altered if evidence indi-

cated the parties intended to permit such alterations,

not because vested health insurance beneﬁts under a

CBA are unilaterally alterable as a matter of law.

Thus, defendant and the trial court erred by interpret-

ing Reese as

establishing an absolute right for employ-

ers to unilaterally alter health insurance coverage for

retirees.

Although the trial court erred in concluding that an

employer may, as a matter of law, unilaterally alter

any health insurance beneﬁts included in a CBA or

personal contract as long as the alterations are reason-

able, the preliminary question remains whether plain-

The Sixth Circuit also adopted this interpretation of Reese in United

Steel, Paper & Forestry, Rubber, Mfg Energy, Allied Indus & Serv

Workers Int’l Union AFL-CIO-CLC v Kelsey-Hayes Co, 750 F3d 546, 554

(CA 6, 2014) (“[In Reese,] the scope of the vested right to health care

could be unilaterally altered because that is what the evidence indicated

the parties intended in that case, not because all vested health care

rights in all CBAs are subject to unilateral alteration as a matter of

law.”). The Sixth Circuit recently vacated its decision in United Steel on

other grounds and remanded the case to the district court for reconsid-

eration in light of Tackett’s overruling of UAW v Yard-Man, Inc, 716 F2d

1476 (CA 6, 1983). United Steel, Paper & Forestry, Rubber, Mfg Energy,

Allied Indus & Serv Workers Int’l Union AFL-CIO-CLC v Kelsey-Hayes

Co, 795 F3d 525 (CA 6, 2015). In Tackett, 574 US at ___; 135 S Ct at 937;

190 L Ed 2d at ___, the United States Supreme Court overruled

Yard-Man, concluding that a judicially created inference that parties

intended beneﬁts under a CBA to vest for life upon retirement was

inconsistent with ordinary principles of contract law.

510 312

ICH

500 [Oct

tiffs had vested rights to the health beneﬁts they now

claim. “ ‘Under established contract principles, vested

retirement rights may not be altered without the

[retiree]’s consent.’ ” Butler v Wayne Co, 289 Mich App

664, 672; 798 NW2d 37 (2010), quoting Allied Chem

& Alkali Workers of America v Pittsburgh Plate Glass

Co, 404 US 157, 181 n 20; 92 S Ct 383; 30 L Ed 2d 341

(1971) (alteration omitted). However, in order to dem-

onstrate that a beneﬁt conferred in a CBA or personal

contract is deemed vested, a retiree must show that (1)

he or she had a contractual right to the claimed beneﬁt

that was to continue after the agreement’s expiration,

and (2) the right was included in his or her respective

contract at the time of retirement. See Butler, 289

Mich App at 672.

Plaintiffs suggest that their right to the speciﬁc

healthcare beneﬁts included in their CBAs and con-

tracts continued indeﬁnitely after retirement, regard-

less whether the explicit terms of the contracts indi-

cated that the parties intended those beneﬁts to

continue after the agreements expired. Such a position

is inconsistent with ordinary principles of contract law.

In M&G Polymers v Tackett, 574 US ___; 135 S Ct

926, 932; 190 L Ed 2d 809 (2015), the United States

Supreme Court rejected the Sixth Circuit’s decision in

UAW v Yard-Man, 716 F2d 1476 (CA 6, 1983), which

held that in the absence of contrary extrinsic evi-

dence, courts should presume that retiree beneﬁts

provided in a CBA are guaranteed for the lifetime of

any employee who retires under the CBA. The Yard-

Man court “inferred that parties would not leave

retiree beneﬁts to the contingencies of future negotia-

tions, and that retiree beneﬁts generally last as long

as the recipient remains a retiree . . . [which] ‘out-

weigh[ed] any contrary implications derived from a

routine duration clause terminating the agreement

2015] H

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generally.’ ” Tackett, 574 US at ___; 135 S Ct at 936,

quoting Yard-Man, 716 F2d at 1482-1483 (second al-

teration in original). Thus, although the Yard-Man

court recognized that “traditional rules of contractual

interpretation require a clear manifestation of intent

before conferring a beneﬁt or obligation,” the court

concluded that the duration of the conferred beneﬁt

was not subject to this conventional restraint. Tackett,

574 US at ___; 135 S Ct at 936 (quotation marks and

citation omitted).

In Tackett, the Supreme Court overruled Yard-

Man, holding that the presumption that retirement

beneﬁts vest for the lifetime of a retiree violates

traditional rules of contract interpretation. The Su-

preme Court explained that under traditional con-

tract interpretation principles, “courts should not

construe ambiguous writings to create lifetime prom-

ises,” and that generally, “ ‘contractual obligations

will cease, in the ordinary course, upon termination of

the bargaining agreement.’ ” Tackett, 574 US at ___;

135 S Ct at 936-937, quoting Litton Fin Printing Div,

Litton Business Sys, Inc v NLRB, 501 US 190, 207;

111 S Ct 2215; 115 L Ed 2d 177 (1991). The Supreme

Court noted that traditional contract principles do not

“preclude the conclusion that the parties intended to

vest lifetime beneﬁts for retirees” because “a

collective-bargaining agreement [may] provid[e] in

explicit terms that certain beneﬁts continue after the

agreement’s expiration.” Tackett, 574 US at ___; 135 S

Ct at 937 (quotation marks and citation omitted;

alterations in original). However, “when a contract is

silent as to the duration of retiree beneﬁts, a court

may not infer that the parties intended those beneﬁts

to vest for life.” Id. at ___; 135 S Ct at 937. We

conclude that the Supreme Court’s reasoning in Tack-

ett is consistent with Michigan’s contract jurispru-

512 312 M

ICH

500 [Oct

dence regarding CBAs, which applies with equal force

in both the public and private sectors. As our Supreme

Court has explained:

The foundational principle of our contract jurispru-

dence is that parties must be able to rely on their

agreements. This principle applies no less strongly to

collective bargaining agreements: when parties to a

collective bargaining agreement bargain about a subject

and memorialize the results of their negotiation in a

collective bargaining agreement, they create a set of

enforceable rules—a new code of conduct for

themselves—on that subject. A party to the collective

bargaining agreement has a right to rely on the agree-

ment as the statement of its obligations on any topic

covered by the agreement. [AFSCME Council 25, 494

Mich at 80 (quotation marks and citations omitted).]

The task, then, is to examine each of the CBAs and

personal

contracts in effect at the time of each respec-

tive class member’s retirement, and to determine (1)

whether the language governing retiree healthcare

beneﬁts indicates that the parties intended the same

beneﬁts to continue after expiration of the agreements

or (2) whether the beneﬁts terminated after expiration

of the agreements, so that defendant was permitted to

alter the beneﬁts under future contracts. See Butler,

289 Mich App at 672. Below, plaintiffs attached ex-

cerpts of 33 CBAs and six purported personal contracts

to their response to defendant’s motion for summary

disposition. The trial court did not address any of these

agreements when issuing its decision granting sum-

mary disposition to defendant; instead, the court ruled

that alteration of health insurance beneﬁts was appro-

priate as a matter of law as long as the alterations

were reasonable. At the time, the members of the class

had not been identiﬁed. In fact, they were only identi-

2015] H

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ﬁed in an order from the trial court dated July 27,

2015, following the remand from this Court.

There is currently no evidence before us indicating

which contracts apply to which class members based

on the members’ retirement dates, whether all the

relevant CBAs are included in the record, and whether

additional provisions in the CBAs beyond the excerpts

included below are necessary to properly interpret the

relevant contractual provisions. Accordingly, the lower

court record has not been sufﬁciently developed to

permit this Court to engage in an independent review

of the obligations contained in each of the agreements.

Therefore, we remand this case to the trial court for

further proceedings consistent with this opinion.

On remand, we instruct the trial court to determine

which contract applies to each individual class mem-

ber, and then to apply ordinary contract principles to

determine (1) whether the parties intended the retiree

healthcare beneﬁts identiﬁed in each respective agree-

ment to survive the expiration of the CBA or (2)

whether the retirees’ rights to the speciﬁcally identi-

ﬁed healthcare beneﬁts terminated upon expiration of

the agreement, so that defendant was permitted to

alter the beneﬁts under future contracts.

. UNPRESERVED CLAIMS

Finally, plaintiffs argue that the trial court erred by

granting defendant’s motion for summary disposition

because a question of fact existed regarding whether

We emphasize that the outcomes, i.e., whether a retiree’s right to

speciﬁc health insurance coverage extends beyond the expiration of the

agreement under which he or she retired, may not be the same for each

CBA and personal contract. Rather, the outcomes must be dictated by

the application of traditional principles of contract interpretation to the

language of each respective agreement.

514 312

ICH

500 [Oct

defendant was in a state of ﬁnancial crisis at the time

it altered plaintiffs’ health insurance coverage. The

lower court did not address this issue in deciding

defendant’s motion for summary disposition, rendering

it unpreserved. Hines v Volkswagen of America, Inc,

265 Mich App 432, 443; 695 NW2d 84 (2005). The

reason why a breaching party failed to fulﬁll its con-

tractual obligations is not an element in a breach of

contract claim. See Miller-Davis Co v Ahrens Constr,

Inc, 495 Mich 161, 178; 848 NW2d 95 (2014). Because

defendant’s ﬁnancial status was irrelevant to whether

it breached its contractual duties, we choose not to

address the parties’ arguments regarding this issue on

appeal.

Plaintiffs further argue that defendant violated city

ordinances by altering retirees’ healthcare beneﬁts.

However, this issue was not raised in plaintiffs’ state-

ment of the questions presented. Issues not speciﬁcally

raised in an appellant’s statement of questions pre-

sented are not properly presented to this Court. Grand

Rapids Employees Indep Union v Grand Rapids, 235

Mich App 398, 409-410; 597 NW2d 284 (1999). Accord-

ingly, we also decline to address this issue.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

ORT

OOD

, P.J., and J

ANSEN

, J., concurred with

ADOLA

, J.

2015] H

ARPER

OODS

ETIREES V

ARPER

OODS

515

PEOPLE v SLEDGE

Docket No. 324680. Submitted September 10, 2015, at Detroit. Decided

October 1, 2015, at 9:05 a.m.

Carla Sledge and Steven M. Collins were indicted in the Wayne

Circuit Court on two counts of misconduct in ofﬁce and two counts

of willful neglect of duty related to their involvement in the

failure of the Wayne County Jail Project. The court, Vonda R.

Evans, J., issued an order sua sponte that prohibited all potential

trial participants from making any extrajudicial statements to

the media or other individuals for the purpose of dissemination by

public communications (the gag order). The Detroit Free Press

(Free Press) intervened to challenge the order restraining trial

participants from speaking to the media. Defendants did not

contest the trial court’s gag order. The trial court granted the Free

Press’s motion to intervene but denied its motion to vacate the

gag order. The Free Press applied in the Court of Appeals for

leave to appeal the trial court’s denial of its motion, and the Court

denied the Free Press leave to appeal and the Free Press’s motion

for reconsideration. The Free Press ﬁled an emergency motion for

leave to appeal in the Michigan Supreme Court, and in lieu of

granting leave to appeal, the Supreme Court remanded the case

to the Court of Appeals for consideration as on leave granted. 497

Mich 979 (2015).

The Court of Appeals held:

1. The trial court improperly denied the Free Press’s motion

to vacate the gag order. The gag order prohibiting all potential

trial participants from making any extrajudicial statements to

the media or other individuals for the purpose of dissemination by

public communications was vague and overbroad, and it consti-

tuted a prior restraint on freedom of speech and freedom of the

press in violation of the First Amendment of the United States

Constitution and Article 1, § 5 of Michigan’s 1963 Constitution.

There exists a heavy presumption that an order constituting a

prior restraint is unconstitutional. In this case, the trial court

failed to overcome the presumption of the order’s unconstitution-

ality. The trial court did not conduct the proper analysis of the

516 312

ICH

516 [Oct

evidence and applicable law, and it further failed to make ﬁndings

of fact and conclusions of law to support its decision.

2. The trial court properly ruled that the Free Press had

standing to contest the imposition of the gag order. The Free

Press had standing because it qualiﬁed as a recipient of speech

and as a news gatherer. Where there are willing speakers, the

First Amendment freedoms apply both to the source of informa-

tion and to the recipients of that information. The First Amend-

ment further protects a news gatherer’s right to obtain news. The

gag order in this case infringed the Free Press’s right to gather

news because it silenced the sources from which the news would

be gotten.

3. A gag order must still be justiﬁed even when the order does

not constitute a prior restraint. In this case, the trial court’s

reasoning for imposing the gag order did not satisfy the lower

standard that applies when the restrictions placed on speech do

not constitute a prior restraint. That is, the trial court’s reasoning

failed to establish even that there was a reasonable likelihood

that pretrial publicity would prejudice defendants’ right to a fair

trial.

4. The trial court failed to conduct an analysis of the evidence

before imposing the gag order. To ﬁrst determine whether any

action should be taken to protect a defendant’s Sixth Amendment

right to a fair trial in the face of pretrial publicity, a trial court

must examine (1) the nature and extent of pretrial news coverage,

(2) whether the possible prejudice to a defendant’s right to a fair

trial could be mitigated by other measures, and (3) whether a

restraining order would be effective at preventing the threatened

danger to the defendant’s right to a fair trial. In this case, the

trial court made no such examination.

5. The trial court failed to explore other possible remedies for

the effects of pretrial publicity. Before imposing a gag order, a

trial court is required to consider other available remedies to

determine whether an alternative to the gag order might effec-

tively minimize the possibility of prejudice due to pretrial public-

ity. These remedies include a change of venue, postponement of

trial, speciﬁc voir dire on the issue, special jury instructions, or

jury sequestration. In this case, the trial court failed in its duty to

assess any reasonable alternatives to imposing restraints on the

First Amendment rights to freedom of speech, freedom of expres-

sion, and freedom of the press.

Reversed.

2015] P

EOPLE V

LEDGE

517

1. C

ONSTITUTIONAL

IGHTS —

IRST

MENDMENT —

REEDOM OF

PEECH —

RIOR

ESTRAINT

An order prohibiting all potential trial participants from making

any extrajudicial statements to the media or other individuals for

the purpose of dissemination by public communications is vague

and overbroad and constitutes a prior restraint on freedom of

speech, freedom of expression, and freedom of the press in

violation of the First Amendment of the United States Constitu-

tion and Article 1, § 5 of Michigan’s 1963 Constitution; there

exists a heavy presumption that an order constituting a prior

restraint is unconstitutional.

2. C

ONSTITUTIONAL

IGHTS —

IXTH

MENDMENT —

IGHT TO A

AIR

RIAL —

RETRIAL

UBLICITY

To justify a prior restraint on speech in light of pretrial publicity, a

trial court must examine (1) the nature and extent of pretrial

news coverage, (2) whether the possible prejudice to a defendant’s

Sixth Amendment right to a fair trial could be mitigated by other

measures, and (3) whether a restraining order would be effective

at preventing the threatened danger to the defendant’s right to a

fair trial; the trial court must also narrowly tailor the terms of the

restraining order.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Timothy A. Baughman, and

Robert A. Moran and James Gonzales, Assistant Pros-

ecuting Attorneys, for the people.

Gurewitz & Raben, PLC (by Harold Gurewitz), for

Carla Sledge.

James C. Thomas for Steven M. Collins.

Herschel P. Fink for intervenor Detroit Free Press,

Inc.

Before: G

ADOLA

, P.J., and J

ANSEN

and B

ECKERING

, JJ.

ANSEN

, J. In Docket Nos. 324680 and 324681, inter-

venor, the Detroit Free Press, Inc. (Free Press), ap-

peals by leave granted the trial court’s order denying

518 312 M

ICH

516 [Oct

its motion to vacate the order precluding “all potential

trial participants” in the cases pending against defen-

dants Carla Sledge and Steven M. Collins from com-

menting to the media about the case (gag order). We

reverse the trial court’s denial of the Free Press’s

motion to vacate the gag order, and we vacate the gag

order.

I. FACTS AND PROCEDURAL HISTORY

The Wayne County Jail Project, a 2010 project

budgeted

at $300 million to construct a jail in down-

town Detroit, came to a halt when construction was

only about a quarter complete because of approxi-

mately $100 million in cost overruns. The failure of the

project, in spite of the fact that $220 million of the

money budgeted for the project was spent, has been the

subject of public and media scrutiny.

The Free Press is

newspaper interested in publishing articles regard-

ing the criminal charges stemming from the failed jail

project. On September 12, 2014, defendant Sledge, the

former Wayne County Chief Financial Ofﬁcer, and

defendant Collins, the Assistant Wayne County Corpo-

ration Counsel, were each indicted on two counts of a

common-law offense (misconduct in ofﬁce), MCL

750.505, and two counts of willful neglect of duty, MCL

750.478, stemming from the Wayne County Jail Proj-

See, e.g., Walker, Wayne County authority had little say over

$300M jail project, Detroit Free Press (July 14, 2013), p 4A; The Detroit

Free Press Editorial Board, Wayne Co. ‘fail jail’ construction may

be criminal, Detroit Free Press (September 16, 2014), <http://

www.freep.com/story/opinion/editorials/2014/09/15/editorial-wayne-co-

fail-jail-construction-may-be-criminal/15691347/> (accessed Septem-

ber 17, 2015) [http://perma.cc/3ZRS-DCMR]; Walker, 3 plead not guilty

to wrongdoing in Wayne Co. jail case, Detroit Free Press (September

23, 2014), <http://www.freep.com/story/news/local/michigan/wayne/

2014/09/23/wayne-county-jail-arraigments/16099439/> (accessed Sep-

tember 17, 2015) [http://perma.cc/SG48-JC2Y].

2015] P

EOPLE V

LEDGE

519

ect. The indictment alleged that defendants intention-

ally misled the Wayne County Commission and the

Wayne County Building Authority regarding “the

cost(s) and/or ﬁnancial status of the Wayne County

Consolidated Jail Project,” and willfully neglected to

fully and honestly inform the Wayne County Commis-

sion and the Wayne County Building Authority regard-

ing the project.

On September 30, 2014, the trial court,

sua

sponte, sealed the court record and entered an

order, which stated:

IT IS HEREBY ORDERED that all potential trial

participants

shall be prohibited from making any extra

judicial [sic] statements regarding this case to members of

the media or to any individual(s) for the purpose of for [sic]

disseminating by public communications.

IT IS FURTHER ORDERED that potential trial par-

ticipants shall include all attorneys for the prosecution

and defense, the defendant and any agent acting on behalf

of the attorneys ordered.

The court did not hold a hearing or make any ﬁndings

fact when it sealed the record and entered the order.

On October 6, 2014, the Free Press’s attorney sent a

letter to the trial court, urging the court to vacate the

gag order prohibiting all potential trial participants

from making extrajudicial statements to the media

regarding the case. The letter argued that the great

public interest in the case outweighed any prejudice to

defendants’ right to a fair trial. The letter cited several

cases in support of the request. On October 14, 2014,

the Free Press ﬁled formal motions to intervene in the

case and to vacate the gag order. The Free Press

requested leave to intervene “pursuant to MCR 8.116(D)

and applicable United States Supreme Court prec-

edents giving the media standing to oppose restraints

The charges against Collins were dismissed on September 4, 2015.

520 312

ICH

516 [Oct

on its ability to gather news . . . .” In an accompanying

brief, the Free Press argued that the gag order was

overbroad and constituted an unconstitutional prior

restraint on speech.

On October 31, 2014, the trial court held a hearing

on the Free Press’s motions to intervene and to vacate

the gag order. The attorney for the Free Press empha-

sized that the gag order was overbroad and covered

“anybody potentially involved” in the case. He argued

that the gag order constituted a prior restraint on the

media’s ability to report on the news and that the gag

order was entered without a request from one of the

parties and without ﬁndings by the court. He stated

that the court ﬁle should be unsealed. Sledge’s attor-

ney stated that he appreciated the trial court’s efforts

to ensure a fair trial, but he could not disagree with the

legal authority cited by the Free Press. He noted that

he would leave the issue up to the trial court’s discre-

tion and did not speciﬁcally request that the court

uphold the gag order. Counsel for Collins stated that

the court entered the gag order in order to protect his

client’s right to a fair trial and noted that his client had

“a right to a jury that is untouched by bias,” but he did

not speciﬁcally request that the court uphold the gag

order. The prosecutor also agreed that the trial court

issued the gag order to protect defendants’ right to a

fair trial, but did not request that the trial court

uphold the gag order.

Ruling from the bench, the trial court granted the

Free Press’s motion to unseal the record, but the court

denied the Free Press’s motion to vacate the gag order.

The trial judge questioned whether the Free Press had

standing to challenge the gag order, but ultimately

found that the Free Press had standing. However, the

judge noted that the Free Press had access to the court

2015] P

EOPLE V

LEDGE

521

proceedings and that the gag order was not directed at

the media. The judge reasoned that the grand jury

process is a secretive process and does not involve

safeguards to ensure that the information presented is

properly tested and that the people against whom the

grand jury witnesses testiﬁed will not ﬁnd out what

the witnesses said. The judge also noted that she had a

duty to ensure that the right to a fair trial was not

prejudiced and reasoned that pretrial publicity would

deny each defendant the right to a fair trial. The judge

stated that she sealed the court ﬁle because she be-

lieved that the grand jury transcripts would be placed

in the ﬁle. The trial judge stated, “This is the Court’s

ﬁrst impression with that of a grand jury transcript or

testimony. I didn’t know how the process went.” The

prosecutor explained that the grand jury material

would not be part of the ofﬁcial court ﬁle. The court

then determined that it would unseal the court ﬁle.

In an opinion and order on the Free Press’s motion

to vacate the gag order issued on the same day, the

trial court determined that the Free Press had stand-

ing to intervene in the action as a recipient of speech.

The court further determined that there was not a

prior restraint on speech because the order did not

prevent the Free Press from speaking or from report-

ing on the proceedings. To justify the gag order, the

trial court emphasized that the grand jury process

involved secrecy and that the participants in a grand

jury proceeding were often “forbidden” to disclose de-

tails of the proceeding. The trial court stated that it

had “the right to balance the government’s interest in

secrecy against public disclosure,” and that disclosure

could “have a chilling effect on those who have testiﬁed

to be frank and candid.” The court further noted that

disclosure could make it difﬁcult to impanel a fair and

impartial jury. Finally, the court reasoned that pretrial

522 312 M

ICH

516 [Oct

publicity was reasonably likely to deprive defendants

of a fair trial. Thus, the court ruled that the gag order

was constitutional. Also, on the same day, the trial

court issued an order unsealing the record.

On November 19, 2014, the Free Press ﬁled an

application for leave to appeal in this Court the trial

court’s decision on the motion to vacate the gag order.

On December 4, 2014, in two identical orders, this

Court denied the Free Press’s application for leave to

appeal, stating in part:

The gag order placed no direct restraint of any kind on the

Free

Press and, therefore, the Free Press cannot claim

that the gag order is an impermissible prior restraint.

Nevertheless, the gag order issued here, and in particular,

the extension of the order to “ . . . all potential trial

participants . . .” conceivably implicates First Amendment

rights. However, the Free Press has not identiﬁed any

willing speaker who feels restrained as a result of this

order. Thus, this application is a mere generalized chal-

lenge to a First Amendment interest.

See People

v Sledge, unpublished order of the Court of

Appeals, entered December 4, 2014 (Docket No.

324680); People v Collins, unpublished order of the

Court of Appeals, entered December 4, 2014 (Docket

No. 324681). In two identical orders dated January 12,

2015, this Court also denied the Free Press’s motion for

reconsideration of the orders denying the Free Press’s

application for leave to appeal. See People v Sledge,

unpublished order of the Court of Appeals, entered

January 12, 2015 (Docket No. 324680); People v Col-

lins, unpublished order of the Court of Appeals, en-

tered January 12, 2015 (Docket No. 324681). On Feb-

ruary 23, 2015, the Free Press ﬁled an emergency

application for leave to appeal in the Michigan Su-

preme Court. On March 27, 2015, the Michigan Su-

preme Court vacated this Court’s orders, and in lieu of

2015] P

EOPLE V

LEDGE

523

granting leave to appeal, remanded the case to this

Court pursuant to MCR 7.302(H)(1) for consideration

as on leave granted. People v Sledge, 497 Mich 979

(2015). Shortly after the remand, this Court consoli-

dated Docket Nos. 324680 and 324681 for review on

appeal. See People v Sledge, unpublished order of the

Court of Appeals, entered April 1, 2015 (Docket Nos.

324680 and 324681).

II. FIRST AMENDMENT FREEDOMS

The Free Press argues that the gag order consti-

tuted

an unconstitutional prior restraint on the free-

dom of speech and the freedom of the press guaranteed

by the First Amendment. We agree.

We review a trial court’s decision on a motion to

intervene for an abuse of discretion. Auto-Owners Ins

Co v Keizer-Morris, Inc, 284 Mich App 610, 612; 773

NW2d 267 (2009). “ ‘An abuse of discretion occurs

when the decision results in an outcome falling out-

side the principled range of outcomes.’ ” Id. (citation

omitted). Constitutional questions are reviewed de

novo. Cummins v Robinson Twp, 283 Mich App 677,

690; 770 NW2d 421 (2009). Whether a party has

standing is a legal question that we also review de

novo. Manuel v Gill, 481 Mich 637, 642; 753 NW2d 48

(2008).

The United States and Michigan Constitutions

guarantee freedom of speech and freedom of the press.

US Const, Am I; Const 1963, art 1, § 5. The ability to

gather news is entitled to at least some First Amend-

ment protection. Branzburg v Hayes, 408 US 665, 681;

92 S Ct 2646; 33 L Ed 2d 626 (1972). The United States

Supreme Court has recognized the important role that

the press plays in the administration of justice:

524 312 M

ICH

516 [Oct

A responsible press has always been regarded as the

handmaiden of effective judicial administration, espe-

cially in the criminal ﬁeld. Its function in this regard is

documented by an impressive record of service over sev-

eral centuries. The press does not simply publish informa-

tion about trials but guards against the miscarriage of

justice by subjecting the police, prosecutors, and judicial

processes to extensive public scrutiny and criticism. [Ne-

braska Press Ass’n v Stuart, 427 US 539, 559-560; 96 S Ct

2791; 49 L Ed 2d 683 (1976) (quotation marks and citation

omitted).]

The First Amendment generally protects against an

order

that constitutes a prior restraint on speech. See

id. at 556. The gag order in this case constitutes a prior

restraint on the freedom of speech and the freedom of

the press, and the trial court failed to justify the

order—that is, the trial court failed to overcome the

heavy presumption of the order’s unconstitutionality.

A. STANDING

The trial court correctly determined that the Free

Press

had standing to challenge the gag order. “ ‘To

have standing, a party must have a legally protected

interest that is in jeopardy of being adversely af-

fected.’ ” Barclae v Zarb, 300 Mich App 455, 483; 834

NW2d 100 (2013) (citation omitted). The “party must

have ‘a special injury or right, or substantial interest,

that will be detrimentally affected in a manner differ-

ent from the citizenry at large . . . .’ ” Id. (citation

omitted; omission in original). “ ‘A plaintiff must assert

his own legal rights and interests and cannot rest his

claim to relief on the legal rights or interests of third

parties.’ ” Id. (citation omitted).

The fact that the Free Press had standing to chal-

lenge the gag order was uncontested in the trial court

and is uncontested on appeal. Nevertheless, we recog-

2015] P

EOPLE V

LEDGE

525

nize that the Free Press had standing to challenge the

gag order as a recipient of speech and as a news

gatherer. “Freedom of speech presupposes a willing

speaker. But where a speaker exists, . . . the protection

afforded is to the communication, to its source and to

its recipients both.” Virginia State Bd of Pharmacy v

Virginia Citizens Consumer Council, Inc, 425 US 748,

756; 96 S Ct 1817; 48 L Ed 2d 346 (1976). In In re

Application of Dow Jones & Co, Inc, 842 F2d 603, 604,

607 (CA 2, 1988), the United States Court of Appeals

for the Second Circuit determined that the news agen-

cies involved in the case had standing to challenge a

gag order prohibiting trial participants from speaking

with the press since the district court found that the

trial participants made extensive extrajudicial state-

ments before the restraining order was issued. The

Second Circuit noted, “It is hard, in fact, to imagine

that there are no willing speakers. Without them there

would be no need for a restraining order; it would be

superﬂuous.” Id. at 607.

Similarly, in this case, the trial court cited the

“extensive

media coverage” of the Wayne County Jail

Project as a reason for denying the Free Press’s motion

to vacate the gag order. The trial court’s statement and

imposition of a gag order including “all potential trial

participants” necessarily implied that there were will-

ing speakers that the court intended to preclude from

speaking. See Dow Jones, 842 F2d at 607. Further-

more, the Free Press identiﬁed at least one willing

speaker who felt restrained because of the gag order.

Wayne County Commissioner Raymond Basham

“ ‘Though not binding on this Court, federal precedent is generally

considered highly persuasive when it addresses analogous issues.’ ” Fed

Home Loan Mtg Ass’n v Kelley (On Reconsideration), 306 Mich App 487,

494 n 7; 858 NW2d 69 (2014) (citation omitted).

526 312 M

ICH

516 [Oct

signed a declaration in which he stated that he reason-

ably believed that he could be a potential trial partici-

pant, and that he was a willing speaker who felt

restrained from making statements to the media and

to his constituents as a result of the gag order. Basham

also stated that the gag order prevented him from

obtaining information necessary to carry out his duties

as chair of the Audit Committee, including discussing

the audit of the project with the Wayne County Auditor

General. Therefore, the Free Press established stand-

ing as a recipient of speech. See Virginia State Bd of

Pharmacy, 425 US at 756; Barclae, 300 Mich App at

483.

Furthermore, the Free Press had standing to chal-

lenge

the gag order as a news gatherer. In Branzburg,

the United States Supreme Court recognized that

“without some protection for seeking out the news,

freedom of the press could be eviscerated.” Branzburg,

408 US at 681. In CBS, Inc v Young, 522 F2d 234,

237-238 (CA 6, 1975), the United States Court of

Appeals for the Sixth Circuit held that a gag order

affected the right of a news organization to gather

news, even though the news organization was not a

party to the civil action. The court reasoned that the

gag order prohibited the news media from access “to

Although this Court’s review is generally limited to the lower court

record, the trial court found the Free Press had standing to challenge

the gag order, and the court did not require the Free Press to demon-

strate that there was a willing speaker. The Free Press attached

Basham’s declaration to its motion for reconsideration of its application

for leave to appeal in this Court after this Court noted in its orders

denying leave to appeal that the Free Press failed to identify a willing

speaker. See Detroit Leasing Co v Detroit, 269 Mich App 233, 237; 713

NW2d 269 (2005) (stating that a party may not expand the record on

appeal). Therefore, we consider the declaration as support for the

unchallenged argument on appeal that the Free Press had standing as

a recipient of speech.

2015] P

EOPLE V

LEDGE

527

important sources of information about the trial.” Id.

at 237. The court noted, “The protected right to publish

the news would be of little value in the absence of

sources from which to obtain it.” Id. at 238. Similarly,

in this case, the gag order was not directed at the Free

Press or the media in general. However, the gag order

cut the Free Press off from access to important sources

of information because it prohibited any potential trial

participant from speaking with the news media re-

garding the case. See id. As with the plaintiff in CBS,

the right of the Free Press to publish the news is of

little value without sources from which to obtain the

news. See id. Therefore, the Free Press had standing to

challenge the gag order as a gatherer of news and a

recipient of speech. See CBS, 522 F2d at 237-238.

B. PRIOR RESTRAINT

The gag order constituted an unconstitutional prior

restraint

on freedom of speech and freedom of the

press. Prior restraints constitute “the most serious and

the least tolerable infringement on First Amendment

rights.” Nebraska Press, 427 US at 559. “If it can be

said that a threat of criminal or civil sanctions after

publication ‘chills’ speech, prior restraint ‘freezes’ it at

least for the time.” Id. The damage of a prior restraint

is especially great when the prior restraint prevents

the media from publishing news stories and commen-

tary on current events. Id. Thus, a prior restraint on

speech is subject to the closest scrutiny, and there is a

heavy presumption that a prior restraint on speech is

unconstitutional. See CBS, 522 F2d at 238. “To justify

imposition of a prior restraint, the activity restrained

must pose a clear and present danger, or a serious

or imminent threat to a protected competing inter-

est.” Id. “The restraint must be narrowly drawn

528 312 M

ICH

516 [Oct

and cannot be upheld if reasonable alternatives are

available having a lesser impact on First Amendment

freedoms.” Id.

In CBS, the Sixth Circuit held that the gag order

entered in a civil case constituted a prior restraint on

the freedom of speech. CBS, 522 F2d at 240. The order

at issue in CBS, provided that “in addition to all counsel

and Court personnel, all parties concerned with this

litigation, whether plaintiffs or defendants, their rela-

tives, close friends, and associates are hereby OR-

DERED to refrain from discussing in any manner

whatsoever these cases with members of the news

media or the public.” Id. at 236. Notwithstanding the

fact that the gag order did not directly prohibit CBS or

any other news entity from speaking, the Sixth Circuit

held that the gag order “constitute[d] a prior direct

restraint upon freedom of expression.” Id. at 239. The

court reasoned that the order was vague and overbroad

because it prevented all parties and their relatives, close

friends, and associates from speaking about the case. Id.

at 239-240. The court observed, “Although the news

media are not directly enjoined from discussing the

case, it is apparent that signiﬁcant and meaningful

sources of information concerning the case are effec-

tively removed from them and their representatives.”

Id. at 239. The court further noted that the gag order

applied to a broad group of people and prohibited all

discussions regarding the case without regard to the

content of the discussions. Id. Finally, the court con-

cluded that the gag order impaired CBS’s right to obtain

information regarding the trial. Id.

Similarly, the vague and overbroad gag order at

issue in this case constitutes an impermissible prior

restraint upon the freedom of expression. The gag

order prohibits “all potential trial participants” from

2015] P

EOPLE V

LEDGE

529

making any extrajudicial statements to the media.

Although the gag order adds, “[P]otential trial partici-

pants shall include all attorneys for the prosecution

and defense, the defendant and any agent acting on

behalf of the attorneys ordered,” the gag order does not

limit the phrase “all potential trial participants” to the

attorneys, the defendants, and agents acting on behalf

of the attorneys. Instead, the precise scope of the gag

order is unclear. The Free Press “would be at a loss to

know with any degree of certainty what persons were

embraced by these terms.” See CBS, 522 F2d at 239.

Thus, the vague and overbroad scope of people covered

by the gag order indicates that it is an impermissible

prior restraint on the Free Press’s freedom of expres-

sion. See id. at 240. Furthermore, the subject matter of

the gag order is equally vague and overbroad. The gag

order prohibits any extrajudicial statements regarding

the case, regardless of the content of the discussions.

See id. at 239-240. Statements are prohibited “whether

prejudicial or innocuous, whether subjective or objec-

tive, [and] whether reportorial or interpretive.” See id.

Thus, the order is incredibly overbroad and vague, and

it constitutes a prior restraint on freedom of expres-

sion. See id. at 240. The gag order also constitutes a

prior restraint on freedom of the press. Although the

gag order does not directly prohibit the media from

discussing the case, it prohibits the most meaningful

sources of information from discussing the case with

the media. See id. at 239. Therefore, the right of the

Free Press to obtain information from all potential

trial participants is impaired. See id.

C. JUSTIFICATION FOR GAG ORDER

The gag order also fails under the strict scrutiny

standard

to overcome the heavy presumption of uncon-

530 312 M

ICH

516 [Oct

stitutionality attached to all prior restraints. See CBS,

522 F2d at 238. The trial court reasoned in its opinion

and order denying the Free Press’s motion to vacate

the gag order that the possible prejudice to each

defendant’s Sixth Amendment right to a fair trial

justiﬁed the order. A defendant in a criminal case has

the right to a fair trial by a panel of impartial jurors.

Nebraska Press, 427 US at 551. However, “[t]he au-

thors of the Bill of Rights did not undertake to assign

priorities as between First Amendment and Sixth

Amendment rights, ranking one as superior to the

other.” Id. at 561. A prior restraint on a First Amend-

ment right will be upheld only if there is a clear

showing that the exercise of the First Amendment

right will interfere with the right to a fair trial. See

CBS, 522 F2d at 241. In order to determine whether

the right to a fair trial justiﬁed the prior restraint, a

court

must examine the evidence before the trial judge when the

order

was entered to determine (a) the nature and extent

of pretrial news coverage; (b) whether other measures

would be likely to mitigate the effects of unrestrained

pretrial publicity; and (c) how effectively a restraining

order would operate to prevent the threatened danger.

The precise terms of the restraining order are also impor-

tant. [Nebraska Press, 427 US at 562.]

There was no clear showing that the exercise of First

Amendment

rights would interfere with defendants’

right to a fair trial. Instead, the trial court did not

make any ﬁndings of fact or conclusions of law when it

entered the gag order. The court failed to consider the

nature and extent of the pretrial news coverage,

whether the gag order would prevent the danger to

defendants’ right to a fair trial, whether there were

any willing speakers in this case, and whether there

were any effective alternatives to the gag order. Thus,

2015] P

EOPLE V

LEDGE

531

the trial court failed to justify the prior restraint when

it issued the gag order. See Nebraska Press, 427 US at

562; In re Application of the New York Times Co, 878

F2d 67, 68 (CA 2, 1989) (reversing a gag order prevent-

ing counsel in a criminal case from speaking to the

press and noting that the district court failed to make

a ﬁnding with regard to whether a willing speaker

existed); CBS, 522 F2d at 238.

Additionally, the trial court failed to adequately

justify

the gag order in its opinion and order denying

the Free Press’s motion to vacate the gag order. In its

opinion and order, the trial court identiﬁed pretrial

publicity and the grand jury process as the two main

reasons for entering the gag order:

The charges brought against the defendants at bar

Carla

Sledge and Steven Collins where [sic] a result of an

indictment by a one man grand jury. The grand jury

process is one of secrecy which is designed to evaluate a

prosecutor’s evidence and decide whether it supports

charging someone accused of a crime. Numerous wit-

nesses are interviewed in secrecy, many without the

beneﬁt of attorneys present at the time there [sic] testi-

mony is taken; the safe guards [sic] afforded by the

Michigan Rules of evidence don’t apply in gathering the

information.

Even after the grand jury is concluded participants, not

including witnesses many times are forbidden from dis-

closing matters related to the grand jury.

We note that unlike the facts in Dow Jones, defendants in this case

did not request the gag order or urge the trial court to afﬁrm it.

Furthermore, the gag order in Dow Jones only prevented the attor-

neys, the defendants, and the agents and representatives of the

attorneys from making any extrajudicial statement regarding the case,

while the gag order in this case prohibits all potential trial partici-

pants from making any extrajudicial statement regarding the case to

the media or an individual for the purpose of public dissemination.

532 312 M

ICH

516 [Oct

The Court has the right to balance the government’s

interest in secrecy against public disclosure, to assure that

the people against whom they testify would [not] ﬁnd out

[or] it would have a chilling effect on those who have

testiﬁed to be frank and candid. The further dissemina-

tion of this information that has not been properly safe-

guarded by the Michigan Rule[s] of Evidence could result

in an inability to secure a fair and impartial jury.

Because of the extensive media coverage of the now

defunct Wayne County Jail project has received [sic] it is

this Court[’]s belief that there is a reasonable like hood

[sic] that pretrial publicity will prejudice and deny the

criminal defendants at bar . . . a fair trial.

The trial court erred by ﬁnding that the gag order

was

necessary to maintain the secrecy of the grand

jury inquiry and to ensure that defendants received a

fair trial. Initially, it is apparent that the trial judge’s

decision was informed by the fact that she was un-

aware of the grand jury process. For instance, the trial

judge stated that she decided to close the ﬁle sua

sponte to prevent public disclosure of the “grand jury

transcript or testimony,” which the court assumed

would be included in the lower court ﬁle. This assump-

tion was incorrect. Disclosure of testimony and exhib-

its used during a grand jury inquiry is automatically

prohibited under statute, making sealing unnecessary.

See MCL 767.19f(1) (“Except as otherwise provided by

law, a person shall not publish or make known to any

other person any testimony or exhibits obtained or

used, or any proceeding conducted, in connection with

any grand jury inquiry.”). Attempting to convey this

fact to the trial court, the prosecutor explained that the

chief judge would review the materials considered in

the grand jury proceeding and that the discovery

materials would either be released to the parties or

sealed and separated from the ofﬁcial court ﬁle. The

grand jury testimony of witnesses who will testify at

2015] P

EOPLE V

LEDGE

533

trial is released to the defendant, but not ﬁled with the

court or released to the public at large. See MCL

767.19f(1); MCL 767.19g(2) (describing the process for

disclosure of speciﬁed grand jury testimony to the

defendant).

The trial court’s concerns about the Michigan Rules

of Evidence and witness identiﬁcation are illogical in

light of the fact that there will be a public trial. If the

prosecutor or defendants intend to use at trial some of

the grand jury materials released to them, the trial

court considers the safeguards imposed by the Michi-

gan Rules of Evidence before those materials are

admitted. Defendants are also entitled to know the

identity of the grand jury witnesses who testiﬁed

against them if those same witnesses will testify at

trial. See People v Bellanca, 386 Mich 708, 712; 194

NW2d 863 (1972), and MCL 767.19g(2).

Presumably,

the

prosecutor relays this fact to witnesses before they

agree to testify at the grand jury inquiry. If disclosure

of a witness’s identity caused a “chilling effect” as the

trial court feared, the prosecutor had available other

tools to secure the witness’s participation, such as

offering immunity or compelling the witness to appear

by subpoena. See MCL 767.19a; MCL 767.19b; MCL

767.21. Further, to the extent that grand jury materi-

als are admitted at trial or in lower court ﬁlings, the

Free Press and the public will have access to them.

Therefore, the grand jury inquiry did not justify entry

of the gag order.

Note that disclosure of grand jury testimony under MCL 767.19g(2)

is limited to the testimony of witnesses who will testify at trial; Bellanca

contains no such limitation, and in fact, indicates that a defendant

“must have access to the transcripts of the testimony of all witnesses for

or against him given before the ‘one-man grand juror’ in order to be

accorded due process.” Bellanca, 386 Mich at 712.

534 312 M

ICH

516 [Oct

Additionally, there is no basis for the trial court’s

ﬁnding that pretrial publicity would likely deny defen-

dants a fair trial. First, the trial court failed to consider

evidence on this issue and failed to explain the factual

basis for the gag order when the gag order was issued.

The mere fact that there was pretrial publicity does not

inevitably lead to the conclusion that there would be an

unfair trial. See Nebraska Press, 427 US at 554.

Instead, the trial court’s decision was premised on the

trial judge’s “belief” that the pretrial publicity in this

case would deny defendants a fair trial. Second, the

trial court failed to discuss the interests served by the

gag order, and the court failed to weigh the need to

deter publicity that could threaten defendants’ Sixth

Amendment right to a fair trial against the First

Amendment rights of the media and public to access

information. “Each right is crucial to the maintenance

of a free society. Without freedom of the press a free

society will not long endure. A free press is particularly

important when public ofﬁcials face criminal charges

relating to their use of ofﬁce.” Dow Jones, 842 F2d at

609. This is especially true in this case, considering the

public interest in the Wayne County Jail Project and

the apparent waste of millions of dollars of taxpayer

money. The trial court failed to consider the interests

involved and whether the possible prejudice to defen-

dants’ right to a fair trial justiﬁed the prior restraint.

See id. at 609-610.

In addition, the court was required to “explore

whether other available remedies would effectively

mitigate the prejudicial [pretrial] publicity.” Dow

Jones, 842 F2d at 611. Alternative measures to ensure

the fairness of trial include a change of venue, post-

ponement of trial, a focus on the issue during voir dire,

special jury instructions, or jury sequestration. Id. The

trial court failed to consider any of these measures as

2015] P

EOPLE V

LEDGE

535

alternatives to the gag order. See id.; CBS, 522 F2d at

238 (noting that a prior restraint “cannot be upheld if

reasonable alternatives are available having a lesser

impact on First Amendment freedoms”).

Finally, the trial court entered the gag order sua

sponte. During the hearing on the motion to vacate

the gag order, counsel for defendant Collins remarked

that the trial court was likely attempting to protect

his client’s rights by entering the gag order, but

refrained from asking the trial court to enforce the

order. Counsel for defendant Sledge also conceded

that he could not disagree with the Free Press’s

argument that the Michigan Rules of Professional

Conduct already acted as an appropriate control on

any statements by a party’s counsel. Signiﬁcantly,

neither defendants nor the prosecutor originally be-

lieved such an order was necessary, and during the

hearing, neither requested that the court uphold the

gag order. Ultimately, the trial court lacked aware-

ness of the issues and did not properly apply the law.

Because the trial court completely failed to support

the gag order with ﬁndings of fact or conclusions of

law, the gag order fails to overcome the heavy pre-

sumption of unconstitutionality.

Even assuming that the gag order did not consti-

tute a prior restraint, the trial court was nevertheless

required to justify the order. See Dow Jones, 842 F2d

at 609. When Sixth Amendment rights are at issue,

“the standard by which to measure justiﬁcation [for a

gag order] is whether there is a ‘reasonable likelihood’

that pretrial publicity will prejudice a fair trial.” Id.

at 610 (citation omitted). A gag order must be reason-

able and serve a legitimate purpose. See Radio &

Television News Ass’n of Southern California v United

States Dist Court for the Central Dist of California,

781 F2d 1443, 1447-1448 (CA 9, 1986). The trial court

536 312 M

ICH

516 [Oct

failed to make ﬁndings of fact or conclusions of law

indicating a “reasonable likelihood” that defendants’

right to a fair trial would be prejudiced. See Dow Jones,

842 F2d at 609. Furthermore, the overbroad scope of

the gag order was not reasonable for the reasons

discussed above. See Radio & Television News Ass’n,

781 F2d at 1447-1448. Therefore, the gag order fails to

meet even the lower standard that is applied when

there is no prior restraint. See id.

III. CONCLUSION

The trial court issued a gag order precluding all

potential

trial participants from making any extraju-

dicial statement regarding the case to the media or to

any person for the purpose of dissemination to the

public. The overbroad and vague gag order constituted

a prior restraint on freedom of speech, freedom of

expression, and freedom of the press, and the trial

court failed to justify the gag order. Accordingly, we

reverse the trial court’s denial of the Free Press’s

motion to vacate the gag order, and we vacate the gag

order. We do not retain jurisdiction.

ADOLA

, P.J., and B

ECKERING

, J., concurred with

ANSEN

, J.

2015] P

EOPLE V

LEDGE

537

PEOPLE v COMER

Docket No. 318854. Submitted October 1, 2015, at Detroit. Decided

October 8, 2015, at 9:00 a.m. Leave to appeal sought.

Justin T. Comer pleaded guilty to charges of ﬁrst-degree criminal

sexual conduct (CSC-I), MCL 750.520b(1)(c), and ﬁrst-degree

home invasion, MCL 750.110a(3), in the St. Clair Circuit Court.

The court, James Adair, J., sentenced defendant to 51 months to

18 years in prison for the CSC-I conviction. Defendant sought

leave to appeal. In lieu of granting leave to appeal, the Court of

Appeals vacated defendant’s CSC-I sentence and remanded for

resentencing. On remand, the court resentenced defendant to a

minimum of 42 months in prison for the CSC-I conviction. The

Michigan Department of Corrections notiﬁed the circuit court

that defendant’s sentence should have included lifetime elec-

tronic monitoring. The court, Michael West, J., held a hearing on

the question and ruled, over objection, that defendant’s plea was

defective. The circuit court offered defendant the chance to

withdraw his guilty plea or allow it to stand while acknowledging

that his plea carried with it lifetime electronic monitoring.

Defendant declined to withdraw his plea, and the circuit court

entered a new judgment of sentence maintaining the term of

incarceration previously imposed and adding a requirement of

lifetime electronic monitoring upon defendant’s release from

prison. Defendant again sought leave to appeal. The Court of

Appeals denied defendant’s delayed application, but the Supreme

Court remanded the case for consideration as on leave granted.

497 Mich 957 (2015).

The Court of Appeals held:

MCL 750.520b(2)(d) states that in addition to other penalties,

the court shall sentence a defendant convicted of CSC-I to lifetime

electronic monitoring under MCL 750.520n. In People v Brantley,

296 Mich App 546 (2012), the Court ofAppeals held that while the

language of MCL 750.520n(1) indicates that a trial court must

order a defendant who is convicted of CSC-I to submit to lifetime

electronic monitoring only if the defendant was 17 years old or

older and the victim was less than 13 years old, examining the

statutory language in context, defendants convicted of CSC-I are

538 312

ICH

538 [Oct

subject to lifetime monitoring regardless of the age of the defen-

dant or the victim. Therefore, defendant was subject to lifetime

electronic monitoring, and lifetime electronic monitoring should

have been imposed as part of defendant’s sentence. Because

defendant’s sentence did not include lifetime electronic monitor-

ing, the sentence was invalid. MCR 6.429 states that the court

may correct an invalid sentence. In People v Harris, 224 Mich App

597 (1997), the Court of Appeals held that a motion for resentenc-

ing is not a condition precedent for a trial court to correct an

invalid sentence under MCR 6.429(A) and that the court rule does

not set time limits with respect to a trial court’s authority to

correct an invalid sentence. In this case, the Court of Appeals was

bound by Harris. The trial court, accordingly, was empowered to

correct defendant’s invalid sentence.

Afﬁrmed.

LEICHER

, P.J., concurring, agreed with the result reached by

the majority because she was compelled to do so by the decision in

Harris, but in her view Harris was wrongly decided and should be

overruled. MCR 6.429(A) establishes that a trial court has the

authority to correct an invalid sentence. MCR 6.429(B) sets forth

various time limits for ﬁling a motion to correct an invalid

sentence. These procedures clearly contemplate that a court may

correct an invalid sentence only after a party has ﬁled a motion

seeking that relief. No motion was ﬁled in this case. Notices sent

by the Department of Corrections are merely advisory and do not

excuse compliance with the relevant statutes and court rules.

Under MCR 6.435(B), if a sentencing error is substantive, a court

may only modify the sentence if it has not yet entered judgment

in the case. In this case, the error was substantive. Because

judgment was entered, the trial court lacked authority to correct

the mistake. Further, the court abused its discretion by attempt-

ing to circumvent MCR 6.435 by withdrawing defendant’s guilty

plea and forcing him to enter a renewed plea of guilty. Under

MCR 6.310(C), a defendant may move to withdraw his or her

guilty plea within six months after sentence, and thereafter only

in accordance with the procedure set forth in MCR 6.500 et seq.

That did not happen in this case. The prosecution cited no

authority empowering the trial court to independently decide,

years after sentencing, that a defect in a plea proceeding allowed

it to set aside the guilty plea. The Court of Appeals failed to

address the implications of MCR 6.435 in Harris, and were it not

for Harris, Judge G

LEICHER

would have vacated the electronic

monitoring provision in defendant’s sentence.

2015] P

EOPLE V

OMER

539

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Michael D. Wendling, Pros-

ecuting Attorney, and Hilary B. Georgia, Assistant

Prosecuting Attorney, for the people.

Law Ofﬁces of Suzanna Kostovski (by Suzanna Kos-

tovski) for defendant.

Before: G

LEICHER

, P.J., and S

AWYER

and M

URPHY

, JJ.

URIAM

. Defendant pleaded guilty to ﬁrst-degree

criminal sexual conduct (CSC-I), MCL 750.520b(1)(c),

and ﬁrst-degree home invasion, MCL 750.110a(3). This

Court vacated his original sentences for reasons not

germane to this appeal, and new sentences were im-

posed. Neither the ﬁrst nor the second CSC-I sentence

included a provision for lifetime electronic monitoring

as required under MCL 750.520b(2)(d).

Three and a

alf months after defendant was resentenced, the De-

partment of Corrections notiﬁed the trial court that the

judgment of sentence omitted “any speciﬁc language

ordering lifetime electronic monitoring . . . .” Over de-

fendant’s objection, the trial court resentenced him a

third time and imposed lifetime electronic monitoring.

Defendant asserts that he is not subject to lifetime

electronic monitoring and that the trial court waited

too long before imposing that punishment. Binding

caselaw requires us to reject both arguments. Accord-

ingly, we afﬁrm.

In 2011, former St. Clair Circuit Court Judge James

Adair

sentenced defendant to 51 months’ to 18 years’

This provision required the court to sentence defendant to lifetime

electronic monitoring under MCL 750.520n.

540 312 M

ICH

538 [Oct

imprisonment for the CSC-I conviction. The judgment

of sentence form included a line to be checked by the

trial court indicating, “The defendant is subject to

lifetime monitoring under MCL 750.520n.” Judge

Adair did not place a checkmark on this line or

otherwise indicate in the judgment of sentence that

defendant was subject to lifetime electronic monitor-

ing.

Defendant sought leave to appeal his sentence,

contending that the trial court had improperly scored

several offense variables. In lieu of granting leave to

appeal, we vacated defendant’s CSC-I sentence and

remanded for resentencing. People v Comer, unpub-

lished order of the Court of Appeals, entered June 29,

2012 (Docket No. 309402). On October 8, 2012, Judge

Adair resentenced defendant, lowering his minimum

sentence for both convictions to 42 months’ imprison-

ment. The second judgment of sentence form includes

the same unchecked line referring to lifetime monitor-

ing and omits any other reference to that punishment.

On January 29, 2013, the Michigan Department of

Corrections notiﬁed Judge Adair that pursuant to

People v Brantley, 296 Mich App 546; 823 NW2d 290

(2012), defendant’s sentence should have included life-

time electronic monitoring. Defendant’s previous ap-

pellate counsel, Jacqueline Ouvry, ﬁled an objection,

arguing that Brantley did not apply to defendant and

that because the prosecution neglected to bring a

motion to correct defendant’s sentence, MCR

6.429(B)(3) precluded resentencing. Ms. Ouvrey fur-

ther contended that the Supreme Court’s opinions in

People v Cole, 491 Mich 325; 817 NW2d 497 (2012), and

People v Lee, 489 Mich 289; 803 NW2d 165 (2011),

prohibited the court from amending defendant’s sen-

tence to add a provision for lifetime electronic monitor-

2015] P

EOPLE V

OMER

541

ing. The prosecution replied that Brantley applied, and

that without a provision for lifetime electronic moni-

toring, defendant’s sentence was invalid. The prosecu-

tion insisted that the court had the authority to correct

defendant’s sentence by offering him the opportunity

to withdraw his previous guilty plea or allowing that

plea to stand after being informed of the lifetime

electronic monitoring requirement.

At a hearing conducted on April 29, 2013, Judge

Michael West, Judge Adair’s successor, found defen-

dant’s guilty plea “defective,” declaring: “I’m not going

to proceed further with the plea being defective.” Ms.

Ouvrey contended that omission of lifetime electronic

monitoring constituted a “substantive mistake” that

could be corrected only pursuant to a timely motion to

correct an invalid sentence, which the prosecution had

failed to ﬁle. The court rejected this argument, reason-

ing: “This is not a question of whether the sentence is

invalid. This is a question as to whether the plea was

invalid.” Judge West then offered defendant the oppor-

tunity to withdraw his guilty plea or to allow the plea

to stand while acknowledging that the plea “carries

with it . . . lifetime electronic monitoring.” Defendant

declined to withdraw his plea. Judge West signed a

new judgment of sentence maintaining the term of

incarceration previously imposed and adding, “Life-

time GPS upon release from prison.” (Capitalization

altered.)

Defendant again sought appellate review of his

sentence, and the trial court appointed different coun-

sel. This Court denied defendant’s delayed application

for leave to appeal. People v Comer, unpublished order

of the Court of Appeals, entered January 27, 2014

(Docket No. 318854). The Supreme Court remanded for

consideration as on leave granted. People v Comer, 497

Mich 957 (2015).

542 312 M

ICH

538 [Oct

Defendant ﬁrst contends that Brantley “did not

create a mandate to amend the Judgment of Sentence

in every CSC-I case issued since 2006, where lifetime

electronic monitoring was not applied.” While we agree

that no such “mandate” exists, we reject defendant’s

related argument that the law remains “not settled”

regarding whether defendants convicted of CSC-I are

subject to lifetime electronic monitoring. In Brantley,

this Court considered the statutory circumstances un-

der which a defendant convicted of CSC-I must submit

to lifetime electronic monitoring. The defendant in that

case contended that lifetime electronic monitoring

could be imposed only if the defendant was 17 years old

or older and the victim was less than 13 years old at

the time of the offense. Brantley, 296 Mich at 556. The

majority conceded that “the language of MCL

750.520n(1) does seem to indicate that a trial court

must order a defendant who is convicted of CSC-I to

submit to lifetime electronic monitoring only if the

defendant was 17 years old or older, and the victim was

less than 13 years old.” Id. at 557. Over a strong

dissent by Judge K. F. K

ELLY

, the majority neverthe-

less determined that “in context” and pursuant to a

tool of statutory interpretation known as the last-

antecedent rule, defendants convicted of CSC-I under

MCL 750.520b(1)(c) are subject to lifetime monitoring

under MCL 750.520b(2)(d), regardless of the age of the

defendant or the victim. Id. at 557-559.

In People v King, 297 Mich App 465, 487; 824 NW2d

258 (2012), the majority criticized Brantley’s reasoning

and called for a conﬂict panel to resolve which defen-

dants convicted of CSC-I are subject to lifetime elec-

tronic monitoring. This Court declined to convene a

conﬂict panel, People v King, 297 Mich App 802 (2012),

2015] P

EOPLE V

OMER

543

and the Supreme Court denied the defendant’s appli-

cation for leave to appeal. People v King, 493 Mich 938

(2013). More recently, in People v Johnson, 298 Mich

App 128, 135-136; 826 NW2d 170 (2012), we reiterated

that MCL 750.520b(2) “requires lifetime electronic

monitoring for ﬁrst-degree criminal sexual conduct

convictions when the defendant has not been sen-

tenced to life in prison without the possibility of

parole.” We are required to follow Brantley and John-

son, MCR 7.215(J)(1), and conclude that the law is now

settled: defendant was subject to lifetime electronic

monitoring when he was ﬁrst sentenced in 2011.

In Cole, 491 Mich at 327, 336, the Supreme Court

held that when enacting MCL 750.520n(1), the Legis-

lature intended to make lifetime electronic monitoring

part of the sentence itself for CSC-I. Accordingly,

because defendant’s sentence did not include electronic

monitoring, it was properly considered invalid by the

trial court.

III

We next consider whether the trial court possessed

the

authority to correct defendant’s sentence 20

months after the original sentencing.

Our resolution

this issue hinges on our interpretation of several

rules of criminal procedure. We interpret and apply

these rules de novo. Lee, 489 Mich at 295. In doing so,

we are guided by the general rules of statutory inter-

pretation. Hinkle v Wayne Co Clerk, 467 Mich 337, 340;

654 NW2d 315 (2002). Foremost among those rules is

that we must give effect to the intent and purpose

underlying them. Brown v Gainey Transp Servs, Inc,

Defendant’s 4

/2-page brief on appeal only tangentially raises this

issue, but we consider it nonetheless as defendant raised this issue more

fully in a reply brief ﬁled in propria persona in the Supreme Court.

544 312 M

ICH

538 [Oct

256 Mich App 380, 383; 663 NW2d 519 (2003). Because

both judgments of sentence violated the law by omit-

ting a provision for lifetime monitoring, we train our

attention on the rules governing correction of invalid

sentences.

MCR 6.429 is titled “Correction and Appeal of Sen-

tence.” Subrule (A) concerns a court’s “Authority to

Modify” a sentence. It provides that either party may

move “to correct an invalid sentence . . . .” The rule

continues, “The court may correct an invalid sentence,

but the court may not modify a valid sentence after it

has been imposed except as provided by law.”

In People v Harris, 224 Mich App 597, 601; 569

NW2d 525 (1997), this Court held that “a motion for

resentencing is not a condition precedent for a trial

court to correct an invalid sentence under MCR

6.429(A),” and that the court rule “does not set time

limits with respect to a trial court’s authority to correct

an invalid sentence.” Further, Harris broadly declares,

“There being no time restrictions speciﬁed in MCR

6.429(A), we decline to construe this court rule as

containing a jurisdictional time limitation. Therefore,

there was no impediment to the time of the trial court’s

decision . . . that would preclude it from ordering a

resentencing pursuant to MCR 6.429(A).” Id. We are

bound by Harris. MCR 7.215(J)(1). Accordingly, the

trial court was empowered to correct defendant’s in-

valid sentence without time limitation.

We afﬁrm.

LEICHER

, P.J., and S

AWYER

and M

URPHY

, JJ., con-

curred.

LEICHER

, P.J. (concurring). I concur with the result

reached in the majority opinion only because I am

2015] P

EOPLE V

OMER

545

ONCURRING

PINION BY

LEICHER

, P.J.

compelled to do so by People v Harris, 224 Mich App

597; 569 NW2d 525 (1997). In my view, Harris was

wrongly decided and should be overruled by our Su-

preme Court. Further, I believe that the Supreme

Court has signaled, albeit in obiter dictum, that the

analysis set forth in Harris is deeply ﬂawed. Were it

not for Harris, I would vacate the electronic monitoring

provision from defendant’s sentence.

Resolution of this case hinges on an interpretation of

two closely related court rules. The ﬁrst, MCR 6.429

sets forth two relevant subrules. Subrule (A) estab-

lishes that a trial court possesses the authority to

correct an invalid sentence. Subrule (B), titled “Time

for Filing Motion,” sets forth various time limits for

ﬁling a motion to correct an invalid sentence. Subrule

(B)(1) provides that “[a] motion to correct an invalid

sentence may be ﬁled before the ﬁling of a timely claim

of appeal.” If a claim of appeal has already been ﬁled,

a motion to correct an invalid sentence may be ﬁled

only in accordance with the procedure set forth in MCR

7.208(B), or the remand procedure set forth in MCR

7.211(C)(1).

MCR 6.429(B)(2). If the matter involves a

defendant

who may only appeal by leave (as here), a

motion to correct an invalid sentence must be ﬁled

“within 6 months of entry of the judgment of conviction

and sentence.” MCR 6.429(B)(3). When a defendant is

no longer entitled to appeal by leave, “the defendant

may seek relief pursuant to the procedure set forth in

subchapter 6.500.” MCR 6.429(B)(4).

MCR 7.208(B)(1) provides that “[n]o later than 56 days after the

commencement of the time for ﬁling the defendant-appellant’s brief” in

the Court of Appeals, the defendant may ﬁle in the trial court a motion

to correct an invalid sentence. MCR 7.211(C)(1) addresses motions to

remand ﬁled in the Court of Appeals “[w]ithin the time provided for

ﬁling the appellant’s brief . . . .” Neither rule applies here.

546 312

ICH

538 [Oct

ONCURRING

PINION BY

LEICHER

, P.J.

These procedures clearly contemplate that a court

may correct an invalid sentence only after a party has

ﬁled a motion seeking that relief. Although MCR

6.429(A) imbues a court with the authority to correct

an invalid sentence, MCR 6.429(B) describes in consid-

erable detail the process for correcting an invalid

sentence. That process commences with the ﬁling of a

motion. Justice S

TEPHEN

ARKMAN

reached the same

conclusion when dissenting from an order denying

leave to appeal in People v Peck, 481 Mich 863, 867

(2008) (M

ARKMAN

, J., dissenting). Joined by Justice

AVANAGH

, Justice M

ARKMAN

wrote that MCR 6.429

“requires that a ‘motion’ be ‘ﬁled’ by a ‘party’ before a

trial court may correct a sentence.” Id. at 867 n 1. No

motion was ﬁled in the case at bar.

Furthermore, I believe that the Supreme Court’s

opinion in People v Holder, 483 Mich 168; 767 NW2d

423 (2009), comes close to implicitly overruling Harris.

The defendant in Holder committed several crimes

after receiving a parole discharge from prison. Id. at

169. The trial court sentenced him for those crimes.

Subsequently, the Department of Corrections (DOC)

notiﬁed the defendant and the trial court that it had

“cancelled” the defendant’s parole discharge. The DOC

asked the judge “to amend defendant’s judgment of

sentence to reﬂect that the sentence imposed was to be

served consecutively to the sentence for which defen-

dant was on parole.” Id. at 170. The judge complied

with this request. Id. The Supreme Court held that

“[b]ecause the original judgment of sentence was valid

when imposed, the sentencing judge had no authority

to modify it pursuant to MCR 6.429(A),” and vacated

the amended sentence. Id. The Supreme Court empha-

sized that notices sent by the DOC to trial courts “are

merely advisory and informational in nature,” and do

2015] P

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, P.J.

not excuse compliance with “the relevant statutes and

court rules.” Id.

Holder is distinguishable from this case, as the

sentence in Holder was valid when imposed while

defendant’s sentence was not. However, in obiter dic-

tum the Holder Court observed:

While the DOC certainly has an obligation to ensure

that any sentence executed is free from errors, the depart-

ment is not a party to the underlying criminal proceedings

under either MCR 6.429 or MCR 6.435. As a result, we wish

to reiterate that any notices sent from the DOC to the

courts and parties regarding sentencing errors are merely

informational, and any requests contained therein merely

advisory. Any judge receiving such a notice must ascertain

the nature of the claimed error, determine whether the

error implicates a defendant’s sentence, and consider the

curative action recommended by the DOC. It is imperative,

however, that any corrections or modiﬁcations to a judg-

ment of sentence must comply with the relevant statutes

and court rules. Signiﬁcantly, if the claimed error is sub-

stantive, the court may modify the sentence only “[a]fter

giving the parties an opportunity to be heard” and if “it has

not yet entered judgment in the case. . . .” MCR 6.435(B).

Similarly, if the original judgment of sentence was valid

when entered, MCR 6.429(A) controls and mandates that

the court “may not modify a valid sentence after it has been

imposed except as provided by law.” [Id. at 176-177 (em-

phasis altered; bracketed alteration in original).]

Here, as in Holder,

a letter from the DOC triggered

the trial court’s correction of defendant’s sentence.

Here, as in Holder, the error was substantive rather

than clerical. I conclude, as the Supreme Court indi-

cated in Holder, that the procedure for correcting a

substantive error is governed by MCR 6.435(B).

MCR 6.435 empowers courts to correct “mistakes.”

This court rule distinguishes between two types of

mistakes—“clerical” and “substantive”—as follows:

548 312 M

ICH

538 [Oct

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LEICHER

, P.J.

(A) Clerical Mistakes. Clerical mistakes in judgments,

orders, or other parts of the record and errors arising from

oversight or omission may be corrected by the court at any

time on its own initiative or on motion of a party, and after

notice if the court orders it.

(B) Substantive Mistakes. After giving the parties an

opportunity to be heard, and provided it has not yet

entered judgment in the case, the court may reconsider and

modify, correct, or rescind any order it concludes was

erroneous. [Emphasis added.]

Because the omission of lifetime electronic monitoring

from

both judgments of sentence constituted a sub-

stantive rather than a clerical mistake, were it not for

Harris, I would hold that the trial court lacked the

authority to correct this mistake.

According to the 1989 Staff Comment to MCR 6.435,

Subrule (A) permits a court to correct “an inadvertent

error or omission in the record, or in an order or

judgment.” The purpose of Subrule (A) “is to make the

lower court record and judgment accurately reﬂect

what was done and decided at the trial level.” Central

Cartage Co v Fewless, 232 Mich App 517, 536; 591

NW2d 422 (1998) (discussing MCR 2.612(A)(1), which

is identical to MCR 6.435(A)) (citation and quotation

marks omitted).

The staff comment explains that Subrule (B), ad-

dressing “substantive mistakes,” “pertains to mistakes

relating not to the accuracy of the record, but rather, to

the correctness of the conclusions and decisions re-

ﬂected in the record.” The comment continues, “Sub-

stantive mistake refers to a conclusion or decision that

is erroneous because it was based on a mistaken belief

in the facts or the applicable law.” MCR 6.435, 1989

Staff Comment. The comment provides the following

examples intended to “illustrate the distinction” be-

tween clerical and substantive mistakes:

2015] P

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549

ONCURRING

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LEICHER

, P.J.

A prison sentence entered on a judgment that is erroneous

because the judge misspoke or the clerk made a typing

error is correctable under subrule (A). A prison sentence

entered on a judgment that is erroneous because the judge

relied on mistaken facts (for example, confused codefen-

dants) or made a mistake of law (for example, uninten-

tionally imposed a sentence in violation of the Tanner

rule

[2]

) is a substantive mistake and is correctable by the

judge under subrule (B) until the judge signs the judg-

ment, but not afterwards. [Id.]

During defendant’s ﬁrst two sentencing hearings,

neither

Judge Adair nor the prosecuting attorney men-

tioned lifetime electronic monitoring. Most likely, this

was because it remained unclear whether lifetime

electronic monitoring was required when a defendant’s

CSC-I offense did not involve a child under the age of

13. People v Brantley, 296 Mich App 546; 823 NW2d

290 (2012), and People v King, 297 Mich App 465; 824

NW2d 258 (2012), illustrate the disagreement over this

legal question. In my view, Judge Adair (and the

prosecutor) neglected to raise the issue of lifetime

monitoring because both were “laboring under a mis-

conception of the law . . . .” See People v Whalen, 412

Mich 166, 169-170; 312 NW2d 638 (1981). Their mis-

conception gave rise to a substantive mistake requir-

ing correction. Under MCR 6.435(B), that correction

could only occur before the court entered a judgment of

sentence.

Notably, in Harris, this Court failed to address MCR

6.435. I believe that properly construed, MCR 6.435

governs the procedure for correcting mistakes that

render a sentence invalid. Although MCR 6.429 em-

The “Tanner rule” refers to the prelegislative-sentencing-guidelines

rule that a defendant’s minimum sentence could be no more than

/3 of

his or her maximum sentence. See People v Tanner, 387 Mich 683; 199

NW2d 202 (1972).

550 312 M

ICH

538 [Oct

ONCURRING

PINION BY

LEICHER

, P.J.

powers a trial court to make corrections, MCR 6.435

imposes limits on that authority. Because the correc-

tion of substantive mistakes must occur before entry of

the judgment of sentence, I believe that Judge West

was foreclosed from adding lifetime electronic monitor-

ing as a term of defendant’s sentence.

Finally, I believe that Judge West erred by attempt-

ing to circumvent MCR 6.435 by withdrawing defen-

dant’s guilty plea and forcing him to enter a renewed

plea of guilty. A defendant may move to withdraw his

guilty plea within six months after sentence is im-

posed, and thereafter only in accordance with the

procedure set forth in MCR 6.500 et seq. MCR 6.310(C).

Defendant did not move to withdraw his guilty plea

within six months, and never invoked the procedures

set forth in MCR 6.500 et seq. MCR 6.310(C) further

provides:

If the trial court determines that there was an error in the

plea

proceeding that would entitle the defendant to have

the plea set aside, the court must give the advice or make

the inquiries necessary to rectify the error and then give

the defendant the opportunity to elect to allow the plea

and sentence to stand or to withdraw the plea.

In context, this provision of MCR 6.310(C) relates to

the

trial court’s determination of a motion brought by a

defendant to withdraw a guilty plea. MCR 6.310(E)

allows a court to vacate a plea on a prosecutor’s motion

“if the defendant has failed to comply with the terms of

a plea agreement.” I have located no authority empow-

ering a trial court to independently decide, years after

sentencing, that a defect in the plea proceeding re-

quired setting aside a guilty plea. Moreover, in People

v Strong, 213 Mich App 107, 111-112; 539 NW2d 736

(1995), this Court emphasized that a “trial court may

exercise its discretion to vacate an accepted plea only

2015] P

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OMER

551

ONCURRING

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, P.J.

under the parameters of the court rule.” Therefore, in

my view the trial court abused its discretion by with-

drawing defendant’s guilty plea and requiring him to

re-plead, and this defective procedure did not restart

the clock under MCR 6.435(B).

Harris permits a trial court to substantively modify

a defendant’s sentence without a motion, and at any

time. I believe that MCR 6.435 was intended to rein in

a court’s authority to alter even an invalid sentence,

and urge the Supreme Court to consider this question.

552 312 M

ICH

538 [Oct

ONCURRING

PINION BY

LEICHER

, P.J.

In re MARDIGIAN ESTATE

Docket No. 319023. Submitted March 11, 2015, at Lansing. Decided

October 8, 2015, at 9:05 a.m. Leave to appeal sought.

Melissa Goldberg, Susan Lucken, and others challenged the will

and trust of the decedent, Robert D. Mardigian, in the Charlevoix

County Probate Court. They claimed that attorney Mark S.

Papazian, the proponent of the documents and the recipient,

together with his children, of the majority of the decedent’s

estate, had drafted the documents in violation of the Michigan

Rules of Professional Conduct (MRPC). The will challengers

moved for partial summary disposition, contending that the

devises to Papazian and his family were void and unenforceable

because of the violation of public policy. The court, Frederick R.

Mulhauser, J., granted partial summary disposition in favor of

the challengers. Papazian appealed. While Papazian’s appeal was

pending, the probate court denied his request for a stay of further

proceedings. The remaining parties reached a settlement contin-

gent on the outcome of Papazian’s appeal.

The Court of Appeals held:

1. In re Powers Estate, 375 Mich 150 (1965), held that a will,

devising the bulk of the estate to a member of the family of the

attorney who drafted the will, and also naming the attorney as an

additional beneﬁciary, was not necessarily invalid. Rather, in

such circumstances, a question of undue inﬂuence exists, such

that undue inﬂuence arising from the relationship is presumed to

have been exerted as the means to secure the testamentary gift.

Powers controlled the outcome in this case, requiring a remand

for further proceedings in which Papazian would be required to

overcome the presumption of undue inﬂuence arising from the

attorney-client relationship in order for the devises left to him

and his family to be enforced. In re Karabatian’s Estate, 17 Mich

App 541 (1969), which reached a contrary conclusion, erred by

failing to follow Powers and was not binding.

2. With regard to the policy implications of this case, MRPC

1.8(c) states that a lawyer generally may not prepare an

instrument giving the lawyer, or certain persons related to the

lawyer, any substantial gift from a client, including a testamen-

2015] In

re M

ARDIGIAN

STATE

553

tary gift. The rules of professional conduct may, but do not

necessarily, constitute deﬁnitive indicators of public policy.

Therefore, while a violation of MRPC 1.8(c) is unethical conduct,

it is not necessarily conduct against public policy. And while

contracts entered into in violation of the MRPC have been found

unenforceable, trusts and wills are not contracts and implicate

different policy considerations. Accordingly, there may be valid

policy reasons for a court to treat a trust or will, drafted in clear

violation of the MRPC, differently than a contract drafted in

violation of the MRPC would be treated. The Legislature’s

statutory scheme also suggests that the contestant of a will or

trust must establish, inter alia, undue inﬂuence in order to

invalidate the trust or will. Because Papazian was the dece-

dent’s ﬁduciary, because he beneﬁted from the transaction with

the decedent, and because, as the drafter of the documents, he

had an opportunity to inﬂuence the decedent’s decision in that

transaction, it is presumed he exerted undue inﬂuence in

securing the devises at issue. However, caselaw and existing

statutes afford Papazian the opportunity to attempt to prove by

competent evidence that the presumption of undue inﬂuence

should be set aside, and that in fact the devises represent the

unfettered and uninﬂuenced intent of the decedent.

Reversed and remanded for further proceedings.

ERVITTO

, J., dissenting, disagreed with the majority’s conclu-

sion that Powers required remand for further proceedings, and

instead would have afﬁrmed the probate court’s determination

that the devises to Papazian and his children were void as against

public policy. Powers was decided long before the Supreme Court

adopted the MRPC. Those rules now speciﬁcally prohibit Papa-

zian’s conduct. Michigan courts have since held that contracts are

unethical when drafted in violation of the MRPC, and that

unethical contracts violate public policy and are unenforceable.

Given the analysis in those decisions and the adoption of the rules

governing attorney conduct, the holding in Powers was super-

seded by subsequent Supreme Court actions.

ILLS —

RUSTS —

EVISES TO THE

RAFTER —

RESUMPTION OF

NDUE

NFLU-

ENCE

A will or trust devising the bulk of the estate to the attorney who

drafted the document, or the attorney’s family, is not necessarily

invalid; rather, a question of undue inﬂuence exists, such that

undue inﬂuence arising from the relationship is presumed to

have been exerted as the means to secure the testamentary gift;

554 312 M

ICH

553 [Oct

in order to enforce the devise, the attorney must overcome the

presumption of undue inﬂuence arising from the attorney-client

relationship.

Young & Associates, PC (by Roger D. Young and J.

David Garcia), for Mark Papazian.

Ahern & Kill, PC (by Joseph A. Ahern, Amanda A.

Kill, and Carey L. Sienkiewicz), for Melissa Goldberg.

Bendure & Thomas (by Marc E. Thomas and Benja-

min I. Shipper) for Susan Lucken and Nancy Varbedian.

Miller, Canﬁeld, Paddock and Stone, PLC (by Gerald

J. Gleeson, II, Paul D. Hudson, and Dawn M. Schluter),

for Edward, Grant, and Matthew Mardigian.

Before: W

ILDER

, P.J., and S

ERVITTO

and S

TEPHENS

, JJ.

ILDER

, P.J. In this action originating in the Charle-

voix County Probate Court, appellees contested the

August 13, 2010 trust and the June 8, 2011 will of

decedent Robert D. Mardigian (decedent). Appellees

challenged the trust and will on the basis that appel-

lant, the proponent of the documents and the recipient,

together with his children, of the majority of decedent’s

estate, also was the drafter of the documents in viola-

tion of the Michigan Rules of Professional Conduct

(MRPC). In a motion for summary disposition ﬁled in

the probate court under MCR 2.116(C)(10), appellees

contended that the devises were void as against public

policy and, therefore, unenforceable. The probate court

granted the motion for summary disposition, and this

appeal ensued. For the reasons articulated herein, we

reverse.

I. STATEMENT OF FACTS

On August 13, 2010, decedent executed an amended

2015] In

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trust prepared by appellant,

decedent’s longtime-

friend and an attorney, which left the bulk of dece-

dent’s estate to appellant and his children, Todd Papa-

zian and Tyler Papazian. Decedent also executed a will

prepared by appellant on June 8, 2011, that contained

similar provisions. Decedent died on January 12, 2012.

After decedent’s death, appellant sought to intro-

duce the documents he had prepared for probate, along

with a petition to be appointed personal representative

pursuant to the language in the document. Appellees

Edward Mardigian, Grant Mardigian, and Matthew

Mardigian, decedent’s brother and nephews, respec-

tively, challenged the introduction of these documents

into probate, as did two of decedent’s nieces, appellees

Susan Lucken and Nancy Varbedian, and decedent’s

girlfriend, appellee Melissa Goldberg. At the same

time, various appellees, primarily appellees Edward,

Grant, and Matthew Mardigian, contended that sub-

sequent writings by decedent, namely a letter with

what appellant termed “dubious” handwritten notes

should be submitted instead, as writings intended to be

a will, and as an amendment to decedent’s trust.

Following discovery, appellees Edward, Grant, and

Matthew Mardigian moved for partial summary dispo-

sition and asked the probate court to void all gifts

contained in both the trust and the will to appellant

and his children, as a matter of law. Edward, Grant,

and Matthew Mardigian argued that the gifts were

against public policy, as evidenced by the MRPC,

speciﬁcally MRPC 1.8(c), which provides, “A lawyer

shall not prepare an instrument giving the lawyer or a

Although appellees discuss appellant’s initial denial of this fact in

their briefs on appeal, appellant’s counsel admitted that appellant

prepared the documents at the motion hearing below.

556 312 M

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553 [Oct

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person related to the lawyer as parent, child, sibling, or

spouse any substantial gift from a client, including a

testamentary gift, except where the client is related to

the donee.” The probate court initially denied the

motion.

However, after Edward, Grant, and Matthew

Mardigian

verbally renewed their motion during the

hearing on November 6, 2013, the probate court then

granted the motion on the ground that, as a matter of

public policy, it could not enforce the documents.

After the probate court granted the motion for

summary disposition, the matter proceeded toward a

scheduled jury trial. On the date of the scheduled trial,

the probate court denied appellant’s motion for a stay

under MCL 600.867(1); however, the probate court and

other parties agreed that appellant could continue to

participate in the subsequent proceedings. For reasons

not clear in the record, appellant decided not to con-

tinue to participate in the proceedings. Thereafter, the

other parties reached a settlement concerning the

distribution of funds and the jury was excused. This

Court subsequently denied appellant’s motion for a

stay, and denied reconsideration.

II. STANDARDS OF REVIEW

We review de novo a trial court’s ruling on a motion

for

summary disposition. Dillard v Schlussel, 308 Mich

App 429, 444; 865 NW2d 648 (2014).

When considering a motion for summary disposition un-

der MCR 2.116(C)(10), a court must view the evidence

submitted in the light most favorable to the party oppos-

ing the motion. “Summary disposition is appropriate un-

der MCR 2.116(C)(10) if there is no genuine issue regard-

ing any material fact and the moving party is entitled to

The probate court also denied appellant’s motion for partial sum-

mary disposition regarding all claims of undue inﬂuence.

2015] In

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judgment as a matter of law.” A genuine issue of material

fact exists when the evidence submitted “might permit

inferences contrary to the facts as asserted by the mo-

vant.” When entertaining a summary disposition motion

under Subrule (C)(10), the court must view the evidence in

the light most favorable to the nonmoving party, draw all

reasonable inferences in favor of the nonmoving party, and

refrain from making credibility determinations or weigh-

ing the evidence. [Id. at 444-445 (citations omitted).]

We also review de novo the proper interpretation of

trusts and wills, as well as the interpretation of stat-

utes. In re Stan Estate, 301 Mich App 435, 442; 839

NW2d 498 (2013).

III. ANALYSIS

A. BINDING SUPREME COURT PRECEDENT

In In re Powers Estate, 375 Mich 150, 157, 176, 179;

134 NW2d 148 (1965), our Supreme Court held that a

will devising the bulk of the estate to a member of the

family of the attorney who drafted the will, and also

naming the attorney as an additional beneﬁciary, was

not necessarily invalid. Rather, in such circumstances,

a question of undue inﬂuence exists, such that undue

inﬂuence arising from the relationship is presumed to

have been exerted as the means to secure the testa-

mentary gift. Id. at 179. In remanding for further

proceedings, the Powers Court stated:

This will contest is on no different legal and factual

basis

than any other in our past jurisprudence and we

caution court and counsel if the case is retried to conﬁne

the testimony to the issues:

(1) The well-deﬁned, well-recognized test of the testa-

trix’ competency to execute the testamentary instrument

at the time she executed it;

558 312

ICH

553 [Oct

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(2) The equally well-deﬁned and well-recognized issue

of the exercise of fraud or undue inﬂuence in the execution

thereof, including any presumption created by the fact

that proponent was deceased’s attorney and the fact that

he drew the instrument here involved as such. [Id.]

In his concurrence, Justice S

OURIS

further noted that:

Indeed, this Court almost 60 years ago bluntly warned

the profession against such conduct, in Abrey v. Dufﬁeld,

[149 Mich 248, 259; 112 NW 936 (1907)]:

By statute, a bequest to a subscribing witness,

necessary for proving the will, is declared absolutely

void (CL 1897, § 9268), and this, though the sub-

scribing witness may be and generally is ignorant of

the contents of the will. Although there is no statute

to invalidate a bequest to a scrivener, the reasons

are, at least, as strong for such a statute as in the

case of the subscribing witness. I believe it to be

generally recognized by the profession as contrary to

the spirit of its code of ethics for a lawyer to draft a

will making dispositions of property in his favor, and

this Court has held that such dispositions are prop-

erly looked upon with suspicion. Dudley v. Gates,

124 Mich 440 [83 NW 97 (1900)]. [Powers, 375 Mich

at 181 (S

OURIS

, J., concurring).]

Powers is directly on point with the facts presented

in the instant case and, as such, is binding on this

Court.

Under P

owers, we are required to remand for

further proceedings, in which appellant will be re-

quired to overcome the presumption of undue inﬂu-

ence arising from the attorney-client relationship in

order for the devises left to him and his family to be

enforced.

Because “[t]he rules of construction applicable to wills also apply to

the interpretation of trust documents,” In re Reisman Estate, 266 Mich

App 522, 527; 702 NW2d 658 (2005), we conclude that Powers applies to

both the trust and the will at issue in this case.

2015] In

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B. KARABATIAN’S ESTATE IMPROPERLY FAILED TO FOLLOW

POWERS AND, REGARDLESS, IS NOT BINDING ON THIS COURT

Although we remand for further proceedings, we

further address the signiﬁcant policy questions pre-

sented by this case. First, appellees note that in In re

Karabatian’s Estate, 17 Mich App 541; 170 NW2d 166

(1969), this Court held a will to be void as against

public policy under similar facts. But, we ﬁnd that the

Karabatian Court erred by failing to follow Powers as

binding precedent, and, as a pre-1990 decision, we are

not bound by Karabatian. MCR 7.215(J)(1); Adminis-

trative Order No. 1990-6. In addition, even if Karaba-

tian may have correctly foretold the outcome to be

reached by our Supreme Court should it decide to

consider a case with such facts as are presented here,

we lack the authority to overrule Powers:

Although the Court of Appeals panel in this case

correctly

anticipated our holding, we disapprove of the

manner in which the panel indicated its disagreement

with [People v Goff, 401 Mich 412; 258 NW2d 57 (1977)].

An elemental tenet of our jurisprudence, stare decisis,

provides that a decision of the majority of justices of this

Court is binding upon lower courts. [People v Mitchell, 428

Mich 364, 369; 408 NW2d 798 (1987) (citation omitted).]

C. TRUSTS AND WILLS IMPLICATE DIFFERENT PUBLIC POLICY

CONSIDERATIONS THAN CONTRACTS AND THEREFORE MAY

WARRANT DIFFERENT TREATMENT IN THE APPLICATION

OF THE MICHIGAN RULES OF PROFESSIONAL CONDUCT

Second, appellees rightly recognize that MRPC

1.8(c)

expressly prohibits the conduct at issue here.

Based principally on (1) the adoption of this provision,

(2) the fact that our Supreme Court has ruled that

“public rules of professional conduct may also consti-

tute deﬁnitive indicators of public policy,” Terrien v

Zwit, 467 Mich 56, 67 n 11; 648 NW2d 602 (2002), (3)

560 312 M

ICH

553 [Oct

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the fact that contracts entered into in violation of

the MRPC have been found unenforceable, Evans

& Luptak, PLC v Lizza, 251 Mich App 187, 189; 650

NW2d 364 (2002), and (4) the enactment by the

Legislature of MCL 700.7410(1) and MCL 700.2705,

appellees argue, separate and apart from the Kara-

batian decision, that the devises to appellant and his

children were void as against public policy. If appel-

lees were correct that MCL 700.7410(1) and MCL

700.2705, together with MRPC 1.8(c), make it clear

that the public policy of this state prohibits an attor-

ney or speciﬁed relative from receiving a devise from

an instrument prepared by the attorney for a client,

this case might be distinguishable from Powers. How-

ever, we conclude that appellees’ argument is unavail-

ing.

Terrien established only that “public rules of profes-

sional conduct may also constitute deﬁnitive indicators

of public policy.” Terrien, 467 Mich at 67 n 11 (emphasis

added). Accordingly, while the violation of MRPC 1.8(c)

is clearly unethical conduct, it is not clearly conduct

against public policy. Moreover, as noted in the com-

mentary to MRPC 1.0:

The Rules of Professional Conduct are rules of rea-

son.

. . . Some of the rules are imperatives, cast in the

terms “shall” or “shall not.” These deﬁne proper conduct

for purposes of professional discipline. . . .

* * *

. . . [A] violation of a rule does not . . . create any

presumption that a legal duty has been breached. . . . The

fact that a rule is a just basis . . . for sanctioning a lawyer

under the administration of a disciplinary authority[] does

not imply that an antagonist in a collateral proceeding or

transaction has standing to seek enforcement of the rule.

2015] In

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561

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The limitations noted in the commentary to MRPC 1.0

and in Terrien (that a violation of the MRPC may

constitute a deﬁnitive indicator of public policy) are

important considerations in the instant case, because

contracts, the legal instrument at issue in Lizza, are

distinctly different from trusts and wills, which are at

issue in this case.

A will is generally not a contract. 1 Williston, Con-

tracts (4th ed), § 1:7, p 48. Wills and contracts are

different in nature, most notably in that they derive

their binding force from differing sources. Finburg,

Wills—As Distinguished from Common Law Contracts,

16 BU L Rev 269, 272 (1936). Whereas a contract is “an

agreement between parties for the doing or not doing of

some particular thing and derives its binding force

from the meeting of the minds of the parties,” 95 CJS,

Wills, § 188, p 185, a will is “a unilateral disposition of

property acquiring binding force only at the death of

the testator and then from the fact that it is his or her

last expressed purpose, and a will, although absolute

and unconditional, cannot be termed a contract,” id.

(citation omitted). It is this difference that gives rise to

the separate and distinct rules applied to interpret the

meaning of wills and contracts. 5 Corbin, Contracts

(rev ed), § 24.1, p 6. Whereas, with most contracts, at

least two participants play a role in the formation and

performance, each party choosing some of the symbols

of expression, and each giving those symbols a mean-

ing that may differ materially from the meaning given

to them by the other party to the contract, a will, made

for the purpose of affecting the disposition of property

by stating the desire of the testator, requires courts to

give legal operation to the meaning of the symbols of

expression of only one person—the testator. Id. Thus,

while a court must interpret contracts in light of the

intent of all of the contracting parties, in the making of

562 312 M

ICH

553 [Oct

PINION OF THE

OURT

a will, the testator requires no other person’s under-

standing or assent. Id. (“No one is asked to make a

return promise, to render an executed consideration, or

to do any other act in reliance. In contrast, these

factors enter largely into the making and performance

of a contract. The result is that the court must deter-

mine, in accordance with applicable contract law,

which party’s meaning is to prevail, a determination

far less simple than in the case of a will.”).

While trusts and wills “are not the same, and

different legal rules govern each,” 90 CJS, Trusts, § 1,

p 130, under Michigan law, courts apply the same rules

of interpretation to trusts and wills, Reisman, 266

Mich App at 527. The primary goal of interpreting wills

is to give effect to the testator’s intent as long as it is

lawful. See Wanstead v Fisher, 278 Mich 68, 73; 270

NW 218 (1936) (“It is elementary that the cardinal

principle in the interpretation of wills is to carry out

the intention of the testator if it is lawful and can be

discovered; and that the whole will is to be taken

together and is to be so construed as to give effect, if it

be possible, to the whole.”); Sondheim v Fechenbach,

137 Mich 384, 387-388; 100 NW 586 (1904) (“The

general rule for the interpretation of wills is that it is

the duty of courts to give full and complete effect to the

testator’s intention, and carry out such intention if it

be lawful.”) (quotation marks and citation omitted).

Similarly, in interpreting trusts, “the probate court’s

objective is to ascertain and give effect to the intent of

the settlor.” Stan Estate, 301 Mich App at 442. The

devises to the appellant and his children are not, on

their face, unlawful devises. Therefore, they can only

be invalidated as unlawful if they are deﬁnitively

against public policy. No statute, including MCL

700.7410(1) and MCL 700.2705, renders these devises

as deﬁnitively contrary to public policy. Decedent’s

2015] In re M

ARDIGIAN

STATE

563

PINION OF THE

OURT

purported intent, to transfer assets to appellant and

appellant’s children, is not per se unlawful, as demon-

strated by the fact that, had an independent attorney

drafted the documents rather than appellant, there

was nothing illegal about the devises. Rather than the

purpose of the devises being illegal, it is the fact that

the person drafting the documents did so contrary to

the letter and spirit of the rules of professional conduct

that raises suspicion regarding the validity of the

devises.

In sum, there are valid policy reasons why our

Supreme

Court could reembrace the rule enunciated in

Powers and conclude that it is appropriate to treat a

trust or will, drafted in clear violation of the MRPC,

differently than a contract drafted in violation of the

MRPC would be treated. In the case of a contract

deemed void as against public policy because it violates

the MRPC, it is principally the drafting lawyer who

suffers the consequence of the invalid contract. How-

ever, when a trust or will is deemed void as against

public policy because the drafting attorney violated the

MRPC, the invalidation of the bequest potentially fails

to honor the actual and sincere desires of the grantor.

Accordingly, as noted in Powers, the proper remedy for

the rule violation may be to follow the normal proce-

dures intended to effectuate the grantor’s intent, but to

also treat the devises to the drafting attorney and his

family with suspicion, through application of a pre-

sumption of undue inﬂuence, rather than to declare

the devises void on their face. Powers, 375 Mich at 179;

id. at 180-181 (S

OURIS

, J., concurring). As explained in

Even this Court’s opinion in Karabatian, 17 Mich App at 546-547,

which did not follow Powers and concluded that a bequest to a scrivener

was void as contrary to public policy, nevertheless acknowledged that

there was no statute to invalidate a bequest to a scrivener.

564 312 M

ICH

553 [Oct

PINION OF THE

OURT

Part III(D) of this opinion, if appellant can rebut the

presumption of undue inﬂuence with competent evi-

dence, then the devises should be enforced.

D. THE PRESUMPTION OF UNDUE INFLUENCE MUST BE REBUTTED

BY APPELLANT TO AVOID INVALIDATION OF THE DEVISES

Finally, the statutory scheme provided by the Leg-

islature suggests that the contestant of a trust or will

must establish, inter alia, undue inﬂuence in order to

invalidate the trust or will. MCL 700.2501 provides as

follows:

(1) An individual 18 years of age or older who has

sufﬁcient

mental capacity may make a will.

(2) An individual has sufﬁcient mental capacity to

make a will if all of the following requirements are met:

(a) The individual has the ability to understand that he

or she is providing for the disposition of his or her property

after death.

(b) The individual has the ability to know the nature

and extent of his or her property.

her bounty.

(d) The individual has the ability to understand in a

reasonable manner the general nature and effect of his or

her act in signing the will.

The right to contest a will is statutory and “[a] contes-

tant

of a will has the burden of establishing lack of

testamentary intent or capacity, undue inﬂuence,

fraud, duress, mistake, or revocation.” MCL

700.3407(1)(c). That is, the testator’s capacity to make

a will is presumed. See also In re Skoog Estate, 373

Mich 27, 30; 127 NW2d 888 (1964). And whether a

testator had the requisite testamentary capacity “is

judged as of the time of the execution of the instru-

ment, and not before or after, except as the condition

2015] In re M

ARDIGIAN

STATE

565

PINION OF THE

OURT

before or after is competently related to the time of

execution.” Powers, 375 Mich at 158. Similarly, a trust

is created only if the settlor has capacity to create a

trust and the settlor indicates an intention to create

the trust. MCL 700.7402(1)(a) and (b). “A trust is void

to the extent its creation was induced by fraud, duress,

or undue inﬂuence.” MCL 700.7406.

“To establish undue inﬂuence it must be shown that

the grantor was subjected to threats, misrepresenta-

tion, undue ﬂattery, fraud, or physical or moral coer-

cion sufﬁcient to overpower volition, destroy free

agency and impel the grantor to act against his incli-

nation and free will.” In re Karmey Estate, 468 Mich 68,

75; 658 NW2d 796 (2003) (quotation marks and cita-

tion omitted). Motive, opportunity, or the ability to

control, without proof that it was exercised, are insuf-

ﬁcient to establish undue inﬂuence. Id. (citation omit-

ted). However, as previously discussed, in certain cir-

cumstances, undue inﬂuence is presumed:

A presumption of undue inﬂuence arises upon the

introduction

of evidence that would establish (1) the

existence of a conﬁdential or ﬁduciary relationship be-

tween the grantor and a ﬁduciary, (2) the ﬁduciary, or an

interest represented by the ﬁduciary, beneﬁts from a

transaction, and (3) the ﬁduciary had an opportunity to

inﬂuence the grantor’s decision in that transaction. [In re

Erickson Estate, 202 Mich App 329, 331; 508 NW2d 181

(1993).]

As this Court has further explained:

The establishment of this presumption creates a “manda-

tory

inference” of undue inﬂuence, shifting the burden of

going forward with contrary evidence onto the person

contesting the claim of undue inﬂuence. However, the

burden of persuasion remains with the party asserting

such. If the defending party fails to present evidence to

rebut the presumption, the proponent has satisﬁed the

566 312

ICH

553 [Oct

PINION OF THE

OURT

burden of persuasion. [In re Mikeska Estate, 140 Mich App

116, 121; 362 NW2d 906 (1985) (citation omitted).]

The framework adopted by our Legislature attempts

both to honor the actual intent of the grantor and

protect against abuse. Because appellant was dece-

dent’s ﬁduciary, because he beneﬁted from the transac-

tion with decedent, and because, as the drafter of the

documents, he had an opportunity to inﬂuence dece-

dent’s decision in that transaction, it is presumed he

exerted undue inﬂuence in securing the devises at issue.

However, caselaw and existing statutes afford appellant

the opportunity to attempt to prove by competent evi-

dence that the presumption of undue inﬂuence should

be set aside, and that in fact the devises represent the

unfettered and uninﬂuenced intent of decedent.

IV. CONCLUSION

On the basis of the binding precedent of our Su-

preme

Court in Powers and for the other reasons stated

in this opinion, we reverse and remand to the Charle-

voix County Probate Court for proceedings consistent

with this opinion. As the prevailing party, appellant

may tax costs under MCR 7.219.

TEPHENS

, J., concurred with W

ILDER

, P.J.

ERVITTO

, J. (dissenting). I respectfully dissent. The

majority is correct that In re Powers Estate, 375 Mich

150; 134 NW2d 148 (1965), stands for the proposition

that instruments drafted by an attorney that propose

to give a gift or devise to the attorney or the attorney’s

family members may be appropriate as long as the gift

or devise does not result from undue inﬂuence.

However, Powers was decided long before the 1988

adoption of the Michigan Rules of Professional Con-

2015] In re M

ARDIGIAN

STATE

567

ISSENTING

PINION BY

ERVITTO

, J.

duct (MRPC), or even the predecessor of those rules,

the Code of Professional Conduct, which was adopted

in 1971. See Evans & Luptak, PLC v Lizza, 251 Mich

App 187, 194; 650 NW2d 364 (2002). MRPC 1.8(c) now

speciﬁcally prohibits this conduct. Moreover, this

Court has held, in the context of a referral fee contract

sought to be upheld by the attorney, a contract is

unethical when it violates the MRPC, and “unethical

contracts violate our public policy and therefore are

unenforceable.” Lizza, 251 Mich App at 189.

The Lizza Court agreed with our Supreme Court’s

conclusion that “[i]t would be absurd if an attorney were

allowed to enforce an unethical fee agreement through

court action, even though the attorney potentially is

subject to professional discipline for entering into the

agreement.” Id. at 196 (quotation marks and citation

omitted; alteration in original). While the majority cor-

rectly notes that a will is not a contract, it would

nonetheless be equally absurd to allow appellant to

beneﬁt from his actions in the instant case given that he

is also subject to professional discipline for those ac-

tions. And, given the analysis in Lizza, including the

Lizza Court’s reliance on Abrams v Susan Feldstein, PC,

456 Mich 867 (1997), as well as the Supreme Court’s

adoption of rules governing attorney conduct, this Court

could conclude that the speciﬁc holding in Powers relied

on so heavily by appellant has been superseded by

subsequent Supreme Court actions.

With respect to public policy issues, our Supreme

Court has stated:

[T]he proper exercise of the judicial power is to determine

from

objective legal sources what public policy is, and not

to simply assert what such policy ought to be on the basis

of the subjective views of individual judges. . . .

568 312 M

ICH

553 [Oct

ISSENTING

PINION BY

ERVITTO

, J.

In identifying the boundaries of public policy, we be-

lieve that the focus of the judiciary must ultimately be

upon the policies that, in fact, have been adopted by the

public through our various legal processes, and are re-

ﬂected in our state and federal constitutions, our statutes,

and the common law. [Terrien v Zwit, 467 Mich 56, 66-67;

648 NW2d 602 (2002)].

The T

errien Court also stated, “We note that, besides

constitutions, statutes, and the common law, adminis-

trative rules and regulations, and public rules of pro-

fessional conduct may also constitute deﬁnitive indica-

tors of public policy.” Id. at 67 n 11 (emphasis added).

In fact, our Supreme Court is charged with promulgat-

ing the rules regarding the ethical conduct of attorneys

in Michigan. MCL 600.904 provides:

The supreme court has the power to provide for the

organization,

government, and membership of the state

bar of Michigan, and to adopt rules and regulations

concerning the conduct and activities of the state bar of

Michigan and its members, the schedule of membership

dues therein, the discipline, suspension, and disbarment

of its members for misconduct, and the investigation and

examination of applicants for admission to the bar.

It also has “the authority and obligation to take afﬁr-

ative action to enforce the ethical standards set forth

by the Michigan Rules of Professional Conduct . . . .”

Speicher v Columbia Twp Bd of Election Comm’rs, 299

Mich App 86, 91; 832 NW2d 392 (2012). Because “the

Legislature delegated the determination of public policy

regarding the activities of the State Bar of Michigan to

the judiciary pursuant to MCL 600.904 . . . , conduct

that violates the attorney discipline rules set forth in

the rules of professional conduct violates public policy.”

Id. at 92.

I would also note that while the majority cites the

presumption of undue inﬂuence with respect to trusts

2015] In re M

ARDIGIAN

STATE

569

ISSENTING

PINION BY

ERVITTO

, J.

and wills as a protection, the majority does not ad-

equately address MCL 700.7410(1), governing trusts,

which provides:

In addition to the methods of termination prescribed by

[MCL

700.7411 to MCL 700.7414], a trust terminates to

the extent the trust is revoked or expires pursuant to its

terms, no purpose of the trust remains to be achieved, or

the purposes of the trust have become impossible to

achieve or are found by a court to be unlawful or contrary

to public policy. [Emphasis added.]

MCL 700.2705 similarly provides:

The meaning and legal effect of a governing instrument

other

than a trust are determined by the local law of the

state selected in the governing instrument, unless the

application of that law is contrary to the provisions

relating to the elective share described in part 2 of this

article, the provisions relating to exempt property and

allowances described in part 4 of this article, or another

public policy of this state otherwise applicable to the

disposition.

Thus, once the trial court has found the terms of a

trust

or instrument of disposition to be contrary to

public policy the legal effect of the instrument is a

foregone conclusion and the meaning of the instrument

is no longer open to interpretation or subject to dispute

concerning intent. Given these statutory provisions,

longstanding caselaw, and the language of MRPC

1.8(c), I disagree with the majority’s conclusion that

Powers requires remand for further proceedings in

which appellant would be required to overcome the

presumption of undue inﬂuence. I would instead hold

that the trial court did not err when it determined that

the devises to appellant and his children in the June 8,

2011 will and the August 13, 2010 trust were void as

against public policy and I would afﬁrm.

570 312 M

ICH

553 [Oct

ISSENTING

PINION BY

ERVITTO

, J.

WHITE v HIGHLAND PARK ELECTION COMM

Docket No. 329222. Submitted October 6, 2015, at Detroit. Decided

October 8, 2015, at 9:10 a.m.

Desmond M. White sought a writ of mandamus and declaratory

relief in the Wayne Circuit Court because the Highland Park

Election Commission failed to appoint a Republican election

inspector. The court, Robert J. Colombo, Jr., J., concluded that

White did not have standing to challenge the appointment of

election inspectors because the governing statute authorized only

the county chair of a major political party to do so. White

appealed.

The Court of Appeals held:

The trial court properly held that White did not have standing

to challenge the appointment of election inspectors by the com-

mission. The applicable statute, MCL 168.674(3), authorizes only

the county chairs of the major political parties to challenge the

commission’s appointment of election inspectors. White did not

have standing because she had no legal cause of action, and

because she did not have a substantial interest in the statute’s

enforcement. In this case, the commission’s failure to appoint a

Republican election inspector resulted from the lack of Republi-

can applicants for a position as an election inspector.

Afﬁrmed.

Andrew A. Paterson for

Desmond M. White.

Perkins Law Group, PLLC (by Nikkiya T. Branch

and Todd R. Perkins), for defendants.

Before: M

URRAY

, P.J., and T

ALBOT

and K. F. K

ELLY

, JJ.

URRAY

, P.J. Plaintiff, Desmond M. White, appeals as

of right the trial court’s ﬁnal order dismissing plaintiffs’

veriﬁed complaint for a writ of mandamus and declara-

tory relief. We afﬁrm.

2015] W

HITE V

IGHLAND

ARK

LECTION

OMM

571

In this election-related case, White challenged mul-

tiple policies and acts of defendant Highland Park

Election Commission, but most of the issues raised in

the complaint were resolved between the parties prior to

the circuit court’s rulings at issue on appeal. What was

left for the circuit court to decide was whether MCL

168.674(2) required the Commission to appoint one or

more Republican election inspectors. The parties agreed

that, of all those who had submitted applications to the

Commission to be appointed an election inspector, none

had designated themselves as a Republican Party rep-

resentative. Based upon that undisputed fact, and rely-

ing upon both MCL 168.674(2) and (3), the trial court

held that: (1) plaintiffs lacked standing to challenge the

political party composition of the election inspectors

because state law gave that right to the county chairs of

a major political party, and (2) in any event, the Com-

mission did not violate MCL 168.674(2) because no

Republican representatives had submitted applications

to be election inspectors.

We agree with the trial court that White lacked

standing to sue for a perceived violation of MCL

168.674(2). Standing exists, according to the Court in

Lansing Schools Ed Ass’n v Lansing Bd of Ed, 487

Mich 349, 372; 792 NW2d 686 (2010), when there

exists a legal cause of action or a plaintiff meets the

requirements of MCR 2.605. Lansing Schools Ed Ass’n

sought to return Michigan standing jurisprudence to

what it was prior to Lee v Macomb Co Bd of Comm’rs,

464 Mich 726; 629 NW2d 900 (2001), and Nat’l Wildlife

Federation v Cleveland Cliffs Iron Co, 471 Mich 608;

684 NW2d 800 (2004). Prior to those decisions our

Court had stated, amongst many other principles, that

a plaintiff must assert her own legal rights and cannot

rest her claim on the legal rights or interests of third

parties. See, e.g., In re EP, 234 Mich App 582, 598; 595

572 312 M

ICH

571 [Oct

NW2d 167 (1999), rejected on other grounds by In re

Trejo Minors, 462 Mich 341; 612 NW2d 407 (2000).

Here, MCL 168.674(2) provides no legal cause of

action, neither to White nor to any other member of the

public, to enforce its provisions. Nor does White, who

as to this issue is no different than all other members

of the public (and she did not even allege that she was

a resident of Highland Park, where the electors would

have been working), have a substantial interest in

seeing the statute enforced. See Lansing Schools Ed

Ass’n, 487 Mich at 372. Indeed, the statute explicitly

gives the right to enforce the political party designa-

tions to the major political party county chairs, MCL

168.674(3), which is consistent with other parts of the

statute that allow those same county chairs to submit

names on behalf of their parties to city election ofﬁcials

for use as election inspectors. See MCL 168.673a and

MCL 168.674(1). As noted, the statute does not provide

for a civil cause of action, but instead provides county

chairs with the ability to ﬁle administrative appeals to

challenge certain inspector appointments. MCL

168.674(3) and (4). In essence, the Legislature has

created a form of public enforcement through an ad-

ministrative appeal process, and has made that pro-

cess available only to county chairs of the major

political parties. White does not have standing to sue

to enforce the provisions of MCL 168.674. See, e.g.,

Wallad v Access Bidco Inc, 236 Mich App 303, 308; 600

NW2d 664 (1999).

Afﬁrmed. Defendants may tax costs, having pre-

vailed in full. MCR 7.219(A).

ALBOT

and K. F. K

ELLY

, JJ., concurred with M

URRAY

P.J.

2015] W

HITE V

IGHLAND

ARK

LECTION

OMM

573

In re DUKE ESTATE

Docket No. 321234. Submitted July 15, 2015, at Detroit. Decided

October 13, 2015, at 9:00 a.m.

Crystal Clark, Charles Franklin (Frank) Duke, and Marega Delizio

ﬁled a petition in the Wayne County Probate Court to determine

whether title to a 40-acre piece of property had been conveyed to

the decedent’s sons (Frank Duke and respondent Robert Duke) by

an improperly notarized deed or whether the property remained

property of the decedent’s estate. The parties executed the deed

and had it notarized before the decedent’s death. Respondent

recorded the deed approximately four months after the decedent’s

death. The court, Judy A. Hartsﬁeld, J., concluded that defects in

the deed’s notarization invalidated the conveyance, and the court

granted petitioners’ petition to set aside the quitclaim deed

purporting to convey the property to the decedent’s sons. Respon-

dent appealed.

The Court of Appeals held:

1. The probate court improperly granted petitioners’ petition

to set aside the quitclaim deed intended to convey the property

from the decedent to his sons, because the acknowledgment of an

instrument may be defective without invalidating the conveyance

described in the instrument. In this case, the probate court

properly held that the acknowledgment did not satisfy the statu-

tory requirements for recording instruments related to interests

in property, but the court failed to recognize that a conveyance

made by a defective instrument may still be valid if the convey-

ance was made in good faith and for a valid consideration. An

instrument must be properly acknowledged before it can be

recorded, but an instrument need not be properly acknowledged

to effect a valid conveyance of property. Having not received any

evidence on whether the instrument was executed in good faith

and for a valuable consideration, the trial court erred by sum-

marily deciding the case in petitioners’ favor.

2. The probate court properly concluded that the notary had

failed to accurately note the date of the deed’s execution and

acknowledgment and that the afﬁdavit ﬁled by the notary indi-

cating that the deed was executed at a time after the date

574 312

ICH

574 [Oct

appearing in the instrument did not correct the errors in notari-

zation. Any instrument may be invalidated for a violation of the

acknowledgment requirements. In this case, the deed itself con-

tained a date different from the date the instrument was alleg-

edly executed, and the notary’s afﬁdavit explaining the discrep-

ancy was insufﬁcient to correct the defect.

3. An afﬁdavit recorded under MCL 565.202 does not allow for

the broad correction of errors in a recorded document. The saving

afﬁdavit authorized by MCL 565.202 applies only to errors or

discrepancies in a person’s name.

Reversed and remanded.

ROPERTY —

ONVEYANCE OF

NTEREST IN

ROPERTY —

RROR IN

CKNOWLEDG-

MENT —

AVING

FFIDAVIT

The saving afﬁdavit required by MCL 565.202 is limited to the

correction of errors or discrepancies in the name of a person on a

recorded instrument; the saving afﬁdavit cannot cure other errors

in the acknowledgment or notarization of the instrument.

Julia Blakeslee for petitioners.

Anthony J. Garczynski, PLC (by Anthony J. Garc-

zynski), for respondent.

Before: W

ILDER

, P.J., and S

HAPIRO

and R

ONAYNE

RAUSE

, JJ.

ILDER

, P.J. Respondent Robert Duke appeals as of

right a probate court order granting the petition ﬁled

by petitioners Crystal Clark, Charles Franklin Duke

(Frank), and Marega Delizio, to determine title to real

estate located in Huron Township, Michigan, and to set

aside the quitclaim deed that allegedly conveyed the

property at issue in this case. We reverse and remand

for further proceedings consistent with this opinion.

Before his death, decedent Charles E. Duke (dece-

dent)

executed a quitclaim deed that conveyed approxi-

mately 40 acres of land on Inkster Road in Huron

2015] In re D

UKE

STATE

575

Township, Michigan (Inkster Road property), to his

sons, Frank and respondent. According to the nota-

tions on the document, the deed was acknowledged by

decedent, petitioner Frank, and respondent on May 14,

2007, before “EA Labadie,” a notary public whose

commission was to expire on December 30, 2014. On

September 23, 2009, decedent passed away. In January

2010, respondent recorded the quitclaim deed with the

Wayne County Register of Deeds. On April 28, 2010,

respondent was appointed personal representative of

decedent’s estate. When respondent ﬁled his initial

inventory of the estate on September 7, 2011, he did

not include the Inkster Road Property.

On January 9, 2014, petitioners ﬁled a petition to

determine

title to the Inkster Road property and to set

aside the quitclaim deed, arguing that the Inkster

Road property was property of decedent’s estate. Peti-

tioners ﬁrst argued that the quitclaim deed was

fraudulent and void under MCL 565.46 and MCL

565.47 because it was improperly notarized and, as a

result, could not be validly recorded as a conveyance of

real estate under MCL 565.201(1)(c). Petitioners con-

tended that the alleged notary, E. A. Labadie, was not

a notary public as of May 14, 2007. Petitioners pro-

vided printouts from the Michigan Department of

State website indicating that Labadie became a notary

public on October 15, 2008. Next, petitioners argued

that respondent procured the “notarization” of the

quitclaim deed to beneﬁt himself because Labadie was

an employee of respondent. Finally, petitioners argued

that there was no evidence that the deed was actually

delivered, as the deed was not recorded during dece-

In the meantime, a dispute arose among the parties related to

respondent’s purported failure to comply with reporting and inventory

requirements.

576 312 M

ICH

574 [Oct

dent’s lifetime and, instead, was hidden away until

respondent recorded the deed after decedent’s death.

Thus, because a court may invalidate under MCL

55.307(2) any notarial act that is not performed in

compliance with the Michigan Notary Public Act, peti-

tioners requested that the probate court order that the

quitclaim deed was void, and therefore, that it did not

transfer title of the Inkster Road property from dece-

dent to respondent and Frank. Additionally, petition-

ers asserted that respondent “must be charged with

knowledge of the falsity of the notarization of the

quit-claim deed” because Labadie was respondent’s

employee, and because respondent authorized Labadie

to use respondent’s business address and phone num-

ber in her application to become a notary public in

2008.

On February 10, 2014, Labadie executed an afﬁdavit

averring that she witnessed decedent execute the quit-

claim deed “on or about April 13, 2009,” and that the

date written and printed on the deed was incorrect.

She also stated “[t]hat following execution of the deed,

at the direction of [decedent], I made two copies of the

deed and delivered the original to [respondent], and

gave the copies to [petitioner Frank] and [decedent].”

On or about February 14, 2014, petitioners ﬁled a

brief in support of their petition. Petitioners raised the

same arguments as those discussed in their initial

petition and supporting brief, but they also argued,

inter alia, that the deed constituted a gift because it

was not supported by consideration. Petitioners as-

serted that the deed should be governed by the law

applicable to gifts, not by the more lenient standards

for real estate conveyances that are supported by paid

consideration. Additionally, petitioners asserted that

the deed was not a valid gift under Michigan law.

2015] In re D

UKE

STATE

577

Finally, petitioners argued that the deed was statuto-

rily defective and that the “savings statute,” MCL

565.604, was not applicable because the statute only

applies when a conveyance is “made in good faith and

upon a valuable consideration.” Speciﬁcally, petition-

ers contended that, despite the fact that Labadie was a

notary public, the circumstances in which respondent

arranged to have his employee sign the quitclaim deed,

when no consideration was given to decedent, was

evidence that the deed was executed in bad faith.

On February 26, 2014, Labadie’s afﬁdavit was re-

corded with the Wayne County Register of Deeds. Also

on or about February 26, 2014, respondent ﬁled a brief

in response to petitioners’ petition. Respondent as-

serted that decedent had signed a preprinted deed

prepared by attorney Renee Schattler Burke in 2007.

According to respondent, the deed was dated May 14,

2007, but it was actually executed on or about April 13,

2009. Additionally, respondent claimed that when the

deed was signed on or about April 13, 2009, Labadie

was, at that time, a notary public, the deed was signed

in Labadie’s presence, and Labadie erroneously con-

formed the date in her notary block to the date printed

on the deed. Furthermore, respondent indicated “[t]hat

upon realizing [that] the date on the notary block (and

the deed itself) was incorrect, Ms. Labadie prepared

and recorded an [a]fﬁdavit of correction, as allowed by

MCL 565.202, correcting the date of the deed . . . and

her notary block to April 13, 2009.” Respondent at-

tached a copy of the recorded afﬁdavit to his response.

Respondent also argued that the burden of proof with

regard to delivery had shifted to petitioners based on

the contents of Labadie’s afﬁdavit. Finally, respondent

argued that the court should hold the deed valid, even

if the afﬁdavit of correction was insufﬁcient to correct

the defects in the acknowledgment, because the only

578 312 M

ICH

574 [Oct

evidence presented to the court indicated that dece-

dent intended to convey the property through the deed,

and the deed was sufﬁcient to provide notice of the

conveyance. Respondent further noted that Michigan

courts seek to carry out the parties’ intentions, even if

a deed is incomplete or ambiguous, and he provided a

business letter from attorney Daniel Keith to demon-

strate that decedent had intended to transfer the

property to respondent and petitioner Frank as early

as 2001.

On March 5, 2014, the probate court held a hearing

on the petition, and the parties presented arguments

consistent with those raised in their briefs. In addition,

petitioners contested respondent’s claim that peti-

tioner Frank was present when the deed was purport-

edly executed in April 2009, indicating that petitioner

Frank was present and willing to testify that he was

not present when the deed was executed. Although the

court did not ask him to testify, petitioner Frank—who

was sworn as a witness at the beginning of the hearing

but was never examined by petitioners’ or respondent’s

counsel—brieﬂy conﬁrmed on the record that he was

not present in April 2009. Regarding recordation under

MCL 565.46, respondent argued that there is a differ-

ence between executing a valid conveyance and mak-

ing a deed eligible for recording, arguing that there is

no dispute that a valid conveyance occurred in the

instant case. The probate court stated that an afﬁdavit

ﬁled by the attorney who prepared the deed (Burke)

was not “particularly persuasive” or “clear and con-

vincing” as to the date on which the deed was actually

executed, and that it did not believe that Labadie

notarized the deed in April 2009. Instead, the court

stated that it believed that the deed was actually

executed on May 14, 2007, in light of its disbelief that

a notary would sign the deed while ignoring, and

2015] In re D

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579

failing to correct, the numerous places on the deed that

included the May 14, 2007 date. Accordingly, the pro-

bate court set aside the deed and held that the Inkster

Road property was property of decedent’s estate. The

probate court indicated that it would issue a written

order and opinion with its reasoning for the holding.

On March 17, 2014, the probate court entered an

opinion and order consistent with its statements on the

record. The court set aside the quitclaim deed based on

its authority to invalidate a notarial act under MCL

55.307(2), noting that a deed must be acknowledged

before a notary public in order to be validly recorded,

and ﬁnding that the deed was not properly notarized

given the uncontroverted evidence that Labadie was

not a notary public on May 14, 2007. Additionally, the

court indicated that it gave no credence to Burke’s

afﬁdavit, and that because respondent procured her as

a notary, he cannot now claim that he was unaware of

Labadie’s credentials. Furthermore, the court noted

there was some question regarding whether the deed

was properly delivered, but it declined to rule on this

issue given its decision to set aside the quitclaim deed

on the basis that the deed’s notarization was invalid.

This Court reviews de novo a probate court’s conclu-

sions

of law. In re Kostin Estate, 278 Mich App 47, 53;

748 NW2d 583 (2008). Likewise, “[t]his Court reviews

de novo equitable actions to quiet title.” Special Prop

VI LLC v Woodruff, 273 Mich App 586, 590; 730 NW2d

753 (2007). When a probate court sits without a jury,

this Court reviews its factual ﬁndings for clear error. In

re Bennett Estate, 255 Mich App 545, 549; 662 NW2d

772 (2003). “A ﬁnding is clearly erroneous when a

reviewing court is left with a deﬁnite and ﬁrm convic-

580 312 M

ICH

574 [Oct

tion that a mistake has been made, even if there is

evidence to support the ﬁnding.” Id. “The reviewing

court will defer to the probate court on matters of

credibility, and will give broad deference to ﬁndings

made by the probate court because of its unique

vantage point regarding witnesses, their testimony,

and other inﬂuencing factors not readily available to

the reviewing court.” In re Erickson Estate, 202 Mich

App 329, 331; 508 NW2d 181 (1993), citing MCR

2.613(C).

III

We ﬁrst address respondent’s argument that the

trial

court erred by setting aside the deed because the

“only evidence submitted” indicates that the deed

was properly executed—and, therefore, recordable—

because it was executed on or about April 13, 2009, at

which time Labadie was a notary public. In support of

this argument, respondent asserts that Labadie’s afﬁ-

davit was adequate to correct the alleged errors in the

dates of execution and acknowledgment pursuant to

MCL 565.202.

We disagree.

MCL

565.202 provides:

The register of deeds shall, however, receive any such

instrument for record, although the same does not comply

Respondent also argues that petitioners failed to provide any sup-

port for their suspicion related to Labadie’s participation in the convey-

ance on the basis of her employment with respondent and in light of the

fact that the address she provided to the State of Michigan in conjunc-

tion with her notary public commission was respondent’s address.

Because the probate court did not consider this argument, or the

existence of bad faith more generally, and because we are remanding for

further proceedings, we decline to review this issue in the interests of

judicial economy. See People v Trakhtenberg, 493 Mich 38, 55 n 11; 826

NW2d 136 (2012), citing Peterman v Dep’t of Natural Resources, 446

Mich 177, 183; 521 NW2d 499 (1994).

2015] In

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581

with the requirements of this act: Provided, There is

recorded therewith an afﬁdavit of some person having

personal knowledge of the facts, which afﬁdavit shall be

either printed or typewritten, shall comply with the re-

quirements of this act, and shall state therein:

(a) The correct name of any person, the name of whom

was not printed, typewritten or stamped upon such instru-

ment as required by this act;

(b) In case such instrument does not comply with the

requirements of paragraph (b) of section 1, the correct

name of such person and shall state that each of the

names used in such instrument refer to such person.

[Emphasis added.]

MCL 565.202 has only been cited in one opinion,

Cipriano

v Tocco, 757 F Supp 1484, 1491 (ED Mich,

1991), in a context that is not precisely applicable to

the instant case. Thus, we determine here as a matter

of ﬁrst impression whether, consistent with MCL

565.202, Labadie’s afﬁdavit was sufﬁcient to correct

the purported error in the date of acknowledgment.

The primary goal of judicial interpretation of stat-

utes is to ascertain and give effect to the intent of the

Legislature, Mich Ed Ass’n v Secretary of State (On

Rehearing), 489 Mich 194, 217; 801 NW2d 35 (2011), by

examining the speciﬁc language of the statute, United

States Fidelity & Guaranty Co v Mich Catastrophic

Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795

NW2d 101 (2009). “If the statutory language is unam-

biguous, we must presume that the Legislature in-

tended the meaning it clearly expressed and further

construction is neither required nor permitted.” Nastal

v Henderson & Assoc Investigations, Inc, 471 Mich 712,

720; 691 NW2d 1 (2005). “[T]he interpretation to be

given to a particular word in one section [is] arrived at

after due consideration of every other section so as to

produce, if possible, a harmonious and consistent en-

582 312 M

ICH

574 [Oct

actment as a whole.” Macomb Co Prosecutor v Murphy,

464 Mich 149, 160; 627 NW2d 247 (2001) (quotation

marks and citation omitted; alterations in original).

In reading the plain language of MCL 565.202 in

context with the other sections of the Recording Re-

quirements Act, we conclude that a “saving afﬁdavit”

under MCL 565.202 only applies to errors or discrep-

ancies in a person’s name. Clearly, the reference to “the

requirements of this act” in MCL 565.202 refers to the

Recording Requirements Act, MCL 565.201 et seq.

MCL 565.201

sets forth the requirements for record-

ing

an instrument with the register of deeds, and MCL

565.201a delineates the requirements related to the

drafter’s name and business address on recorded in-

struments. Neither MCL 565.201 nor MCL 565.201a

mentions any requirement regarding the date on

which an instrument is executed or acknowledged.

Instead, MCL 565.201(1) speciﬁcally requires that the

name of each person purporting to execute an instru-

ment be legibly printed, typewritten, or stamped under

his or her signature, and that a discrepancy may not

exist between an individual’s name as printed, type-

written, or stamped under his or her signature and the

individual’s name as indicated in the acknowledgment

or jurat. MCL 565.201a requires that “[e]ach instru-

ment described in section 1 executed after January 1,

1964 shall contain the name of the person who drafted

the instrument and the business address of such per-

son.”

Moreover, MCL 565.202 requires that an afﬁdavit

shall state the correct name of a person when that

person’s name was not printed, typewritten, or

stamped on the instrument, or when there was a

MCL 565.201 was amended, effective October 17, 2014. 2014 PA 347.

This opinion refers to the version of MCL 565.201 that was in effect in

March 2014, the time at which the probate court ruled on the petition.

2015] In

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STATE

583

discrepancy between a person’s name as printed, type-

written, or stamped underneath his or her signature

and the name as stated in the acknowledgment or

jurat. “The word ‘shall’ is generally used to designate a

mandatory provision . . . .” Old Kent Bank v Kal Kus-

tom Enterprises, 255 Mich App 524, 532; 660 NW2d

384 (2003). Thus, because an afﬁdavit shall include the

correct name of each person purporting to execute an

instrument, it follows that an afﬁdavit may only be

recorded under MCL 565.202 to correct errors or omis-

sions with regard to a person’s name, but not other

errors such as the date on which an instrument was

executed or acknowledged. Compare MCL 565.202

with MCL 565.201(1) and MCL 565.201a. Therefore,

contrary to respondent’s argument that “MCL []

565.202 allows for the broad correction of errors on

recorded documents by subsequently recording an af-

ﬁdavit,” we ﬁnd that Labadie’s afﬁdavit was insufﬁ-

cient to correct the purported errors in the deed.

Respondent also asserts that the probate court im-

properly

focused on the recordability of the deed in-

stead of whether the deed effectuated a valid convey-

ance, and therefore, the probate court failed to

recognize that respondent’s unrebutted evidence dem-

onstrated that the property was validly conveyed

through a quitclaim deed that was properly delivered.

For reasons other than those argued by respondent, we

remand to the probate court for further proceedings.

The trial court expressly declined to rule on whether proper delivery

was completed in this case. We too decline to review this issue. Given

that issues of fact not decided by the lower court must ﬁrst be addressed,

the interests of judicial economy are not well served by an initial ruling

on this question by this Court. See Trakhtenberg, 493 Mich at 55 n 11,

584 312 M

ICH

574 [Oct

The probate court accurately recognized that a deed

transferring title is presumed to be valid if it is in

writing, signed by the grantor, witnessed, and nota-

rized. See MCL 565.47; MCL 565.152. The probate

court also accurately recognized that improperly ac-

knowledged deeds shall not be recorded. See MCL

565.8; MCL 565.46; MCL 565.47; MCL 565.201(1)(c).

Additionally, as the probate court indicated, a court is

permitted

to invalidate an improper notarial act pur-

suant to MCL 55.307(2):

citing Peterman, 446 Mich at 183. On remand, the probate court is not

precluded from addressing this or any other relevant issue it did not

previously address.

MCL 565.46 states:

The preceding sections of this chapter to procure, enforce and

obtain the proof and acknowledgment of deeds, shall be, and the

same are hereby made applicable to all instruments in writing in

any wise affecting the title to lands which are required or

authorized to be acknowledged, or acknowledged and recorded.

MCL 565.47 provides, “A deed, mortgage, or other instrument in writing

that by law is required to be acknowledged affecting the title to lands, or

any interest therein, shall not be recorded by the register of deeds of any

county unless the deed, mortgage, or other instrument is acknowledged

or proved as provided by this chapter.” (Emphasis added.) Within the

chapter, MCL 565.8 provides, in relevant part:

Deeds executed within this state of lands, or any interest in

lands, shall be acknowledged before any judge, clerk of a court of

record, or notary public within this state. The ofﬁcer taking the

acknowledgment shall endorse on the deed a certiﬁcate of the

acknowledgment, and the true date of taking the acknowledgment,

under his or her hand. [Emphasis added.]

Additionally, MCL 565.201(1)(c) states:

(1) An instrument executed after October 29, 1937 by which

the title to or any interest in real estate is conveyed, assigned,

encumbered, or otherwise disposed of shall not be received for

record by the register of deeds of any county of this state unless

that instrument complies with each of the following require-

ments:

* * *

2015] In

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STATE

585

(1) Subject to subsection (2) and in the courts of this

state, the certiﬁcate of a notary public of ofﬁcial acts

performed in the capacity of a notary public, under the

seal of ofﬁce, is presumptive evidence of the facts con-

tained in the certiﬁcate except that the certiﬁcate is not

evidence of a notice of nonacceptance or nonpayment in

any case in which a defendant attaches to his or her

pleadings an afﬁdavit denying the fact of having received

that notice of nonacceptance or nonpayment.

(2) Notwithstanding subsection (1), the court may in-

validate any notarial act not performed in compliance

with this act. [MCL 55.307.]

However, the probate court failed to recognize that

under

Michigan law, an invalid acknowledgment does

not render void an otherwise valid conveyance of real

estate. It is well settled that

[d]eeds of real estate, to be entitled to record, must be

acknowledged,

but an acknowledgment is not a part of the

conveyance. Title to real estate may be transferred by

conveyances not acknowledged. Deeds in order to be

recorded should be witnessed, but a deed not witnessed is

good between the parties. [Kerschensteiner v Northern

Mich Land Co, 244 Mich 403, 417; 221 NW 322) (1928)

(citations omitted).]

Likewise, in the absence of fraud, duress, or coercion,

“[t]his

court has upon many occasions held that an

acknowledgment is not necessary to give validity to a

conveyance, the purpose of acknowledgment being to

entitle the instrument to record.” Turner v Peoples

State Bank, 299 Mich 438, 450; 300 NW 353 (1941). See

also Irvine v Irvine, 337 Mich 344, 352; 60 NW2d 298

(1953) (“It is well settled by prior decisions of this

upon the instrument is legibly printed, typewritten, or stamped

upon the instrument immediately beneath the signature of that

notary public.

586 312 M

ICH

574 [Oct

Court that an instrument of conveyance is good as

between the parties even though not executed with

such formalities as to permit it to be recorded.”); Evans

v Holloway Sand & Gravel, Inc, 106 Mich App 70, 82;

308 NW2d 440 (1981).

Furthermore, MCL 565.604 expressly provides that

a deed may remain valid even if the acknowledgment is

defective. In relevant part, MCL 565.604 states:

No conveyance of land or instrument intended to operate

such conveyance, made in good faith and upon a

valuable consideration, whether heretofore made or here-

after to be made, shall be wholly void by reason of any

defect in any statutory requisite in the sealing, signing,

attestation, acknowledgment, or certiﬁcate of acknowledg-

ment thereof; . . . but the same, when not otherwise effec-

tual to the purposes intended, may be allowed to operate

as an agreement for a proper and lawful conveyance of the

premises in question, and may be enforced speciﬁcally by

suit in equity in any court of competent jurisdiction,

subject to the rights of subsequent purchasers in good

faith and for a valuable consideration; and when any such

defective instrument has been or shall hereafter be re-

corded in the ofﬁce of the register of deeds of the county in

which such lands are situate, such record shall hereafter

operate as legal notice of all the rights secured by such

instrument. [Emphasis added.]

In the probate court, petitioners argued that this

“savings

statute” was inapplicable to the instant case

because the deed was not made in good faith and for a

valuable consideration. The court, however, did not

make any ﬁndings regarding whether good faith and

valuable consideration were present. Therefore, given

the relevant caselaw and the text of MCL 565.604, we

conclude that the probate court erred by setting aside

the deed solely due to a defect in the acknowledgment

without also ﬁnding a lack of good faith or valuable

consideration, or the presence of another invalidating

2015] In re D

UKE

STATE

587

circumstance, such as fraud, legally sufﬁcient mistake,

coercion, or undue inﬂuence. See Schmalzriedt v Tits-

worth, 305 Mich 109, 118-120; 9 NW2d 24 (1943).

Accordingly, we reverse the probate court’s order and

remand this case for further evidence to be taken on

the issues of good faith and consideration, and any

other relevant issues. MCR 7.216(A)(5).

In concluding that remand is necessary in this case,

we decline to accept petitioners’ argument that it is

clear that the conveyance was not supported by valu-

able consideration. Petitioners assert that, because the

deed states that it was executed for “valuable consid-

eration in the amount of One ($1.00) Dollars,” the deed

is a gift on its face. In general, “[t]o have consideration

there must be a bargained-for exchange.” Gen Motors

Corp v Dep’t of Treasury, 466 Mich 231, 238; 644 NW2d

734 (2002). “Courts do not generally inquire into the

sufﬁciency of consideration. It has been said ‘[a] cent or

a pepper corn, in legal estimation, would constitute a

valuable consideration.’ ” Id. at 239 (citations omitted).

However,

the rule in Michigan is [also] that

a deed’s recital of

valuable consideration is not conclusive regarding whether

the property was actually sold for value. “The consider-

ation recited in a deed is not conclusive, but can after-

wards be inquired into.” And with respect to the issue of

parol evidence, our Supreme Court has speciﬁcally held

that “[w]hile the consideration expressed in a written

instrument is prima facie to be taken as the actual

consideration, the rule is well settled by abundant author-

ity that parol evidence is admissible to show that the true

consideration was . . . different from that expressed.” [In

re Rudell Estate, 286 Mich App 391, 410; 780 NW2d 884

(2009) (citations omitted; ﬁrst emphasis added; second

alteration in original).]

Petitioners cite Daane

v Lovell, 83 Mich App 282,

292; 268 NW2d 377 (1978), in support of their conten-

588 312 M

ICH

574 [Oct

tion that the deed is a gift. In Daane, the stated

consideration for the deed at issue there was “One

Dollar ($1.00) and other valuable considerations less

than Ten Dollars ($10.00).” Id. at 296 (H

OLBROOK

, J.,

dissenting). This Court found that, “[u]pon reviewing

the entire record, we are satisﬁed that the transaction

was intended as a gift.” Id. at 292 (opinion of the Court)

(emphasis added). The majority opinion includes no

discussion of whether such consideration was actually

paid, and the dissenting opinion suggests that it was

evident from the testimony that no consideration was

actually paid. Id. at 296, 304-306 (H

OLBROOK

, J., dis-

senting). Additionally, the circumstances of the Daane

case did not involve a deed that was defective due to a

deﬁciency in the sealing, signing, attestation, acknowl-

edgment, or certiﬁcate of acknowledgment. In addi-

tion, whether valuable consideration was present for

purposes of MCL 565.604 was not at issue in Daane.

Accordingly, we conclude that this Court’s holding in

Daane does not require holding as a matter of law that

the deed in dispute in the instant case was a gift

unsupported by consideration.

Therefore, because the probate court did not con-

sider

the circumstances surrounding the stated consid-

eration or whether in fact consideration was provided

Accord Takacs v Takacs, 317 Mich 72, 82; 26 NW2d 712 (1947)

(ﬁnding that a conveyance of property was a gift when the deed recited

consideration of one dollar, and the parties “conceded . . . that the

grantees made no payment of any kind to plaintiff, nor was there any

agreement on their part to support him in the future, or otherwise to do

anything for his beneﬁt”) (emphasis added); Fischer v Union Trust Co,

138 Mich 612, 614; 101 NW 852 (1904) (“To say that the one dollar was

the real, or such valuable consideration as would of itself sustain a deed

of land worth several thousand dollars, is not in accord with reason or

common sense. The passing of the dollar by the brother to his sister, and

by her to her father, was treated rather as a joke than as any actual

consideration. . . . The deed was a gift . . . .”) (emphasis added).

2015] In

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STATE

589

in exchange for the conveyance, we ﬁnd that remand is

necessary for the trial court to factually determine, for

purposes of MCL 565.604, whether the conveyance was

made upon a valuable consideration, and whether the

conveyance was made in good faith.

Finally, defendant argues that the probate court

erred

by granting petitioners’ petition “in summary

fashion” because it evaluated credibility and made

factual ﬁndings regarding the date on which the deed

was executed without holding an evidentiary hearing.

Given our conclusion that remand is necessary for

further evidence to be taken on the issues of good faith

and consideration, MCR 7.216(A)(5), we need not con-

sider the merits of this argument.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion. No party having prevailed in full, no costs may be

taxed. MCR 7.219(A).

HAPIRO

and R

ONAYNE

RAUSE

, JJ., concurred with

ILDER

, P.J.

590 312 M

ICH

574 [Oct

VARRAN v GRANNEMAN

Docket Nos. 321866 and 322437. Submitted June 9, 2015, at Lansing.

Decided October 13, 2015, at 9:10 a.m.

Emily Varran, through her mother and next friend Julia Varran,

ﬁled a complaint in the Washtenaw Circuit Court, seeking to

determine paternity and custody of a then three-month-old child

she had conceived with defendant Peter Granneman. Emily

initially had custody of the child, but at eight months of age the

child went to live with Peter. Peter, a minor himself at the time,

lived with his own parents, Debora and James Granneman. After

Peter turned 18, and the child was a little over one year old, the

court entered a consent judgment giving Peter full custody. Emily

was awarded supervised parenting time, which she exercised

sporadically until her death in 2007. When the child was approxi-

mately 2

/2 years old, Peter moved out of his parents’ home. The

child generally remained with Peter’s parents, but would spend

one or two nights a week with Peter. By the summer of 2012, the

child had begun living with Peter during the week and visiting

with Peter’s parents on the weekend. The child’s visitation time

with Peter’s parents was later reduced to every other weekend. In

May 2013, Peter advised his parents that they would no longer be

permitted to have overnight visits with the child. Peter’s parents

intervened in the custody action, moving for grandparenting

time. The court, Carol Kuhnke, J., awarded grandparenting time

to Peter’s parents, and subsequently entered an order speciﬁcally

providing them with visitation every other Saturday from 10:00

a.m. until Sunday at 6:00 p.m. Peter appealed both the opinion

(Docket No. 321866) and the order (Docket No. 322437). The

Court of Appeals dismissed the appeals for lack of jurisdiction.

Peter sought leave to appeal. In lieu of granting leave to appeal,

the Supreme Court vacated the orders of dismissal and remanded

the case to the Court of Appeals for further consideration. 497

Mich 928 (2014); 497 Mich 929 (2014).

On remand, the Court of Appeals held:

1. Under MCR 7.203(A)(1), the Court of Appeals has jurisdic-

tion of an appeal of right ﬁled by an aggrieved party from a ﬁnal

2015] V

ARRAN V

RANNEMAN

591

judgment or order of a circuit court as deﬁned by MCR 7.202(6).

MCR 7.202(6)(a)(iii) deﬁnes the terms “ﬁnal judgment” and “ﬁnal

order” in a domestic relations action as including a postjudgment

order affecting the custody of a minor. The plain language of the

terms used in MCR 7.202(6)(a)(iii) does not distinguish between

physical and legal custody. Accordingly, a postjudgment order

affecting the custody of a minor is an order that produces an effect

on, or inﬂuences in some way, the legal or physical custody of a

minor. While an order for grandparenting time cannot change the

legal or physical custody of a child, it can affect the custody of a

child. A parent has a fundamental right, protected by the Due

Process Clause of the Fourteenth Amendment, to make decisions

concerning the care, custody, and control of his or her child. A

grandparenting-time order interferes with that right. Accord-

ingly, when a parent has legal custody of a child, an order

regarding grandparenting time is a postjudgment order affecting

custody of the minor. In this case, because Peter had legal custody

of the child, the court’s order specifying the grandparenting-time

schedule affected custody of the child, making it a ﬁnal order

under MCR 7.202(6)(a)(iii), and, therefore, appealable by right

under MCR 7.203(A)(1). Because the Court had jurisdiction over

Peter’s claim of appeal in Docket No. 322437, the Court treated

the claim of appeal in Docket No. 321886 as an application for

leave to appeal and granted it.

2. In order to give deference to the decisions of ﬁt parents,

under the grandparenting-time statute, MCL 722.27b, it is pre-

sumed that a ﬁt parent’s decision to deny grandparenting time

does not create a substantial risk of harm to the child. To rebut

the presumption, a grandparent must prove by a preponderance

of the evidence that the parent’s decision to deny grandparenting

time creates a substantial risk of harm to the child’s mental,

physical, or emotional health. This statutory presumption is

consistent with the requirements of United States Supreme

Court and Michigan Supreme Court precedent. The use of a

clear-and-convincing-evidence standard of proof, rather than a

preponderance-of-the-evidence standard, is not constitutionally

required. A parent’s fundamental right to make decisions con-

cerning the care, custody, and control of their children is not most

at jeopardy when a grandparent petitions a court for grandpar-

enting time; an order of grandparenting time does not sever a

parent’s rights to a child. Accordingly, the requirement that a

grandparent, in order to rebut the presumption given to a ﬁt

parent’s decision, prove by a preponderance of the evidence that

the parent’s decision to deny grandparenting time creates a

substantial risk of harm to the child is sufﬁcient to protect the

592 312

ICH

591 [Oct

fundamental rights of the parent. Peter’s facial challenge to the

constitutionality of the grandparenting-time statute thus failed.

3. There are two ways that an action for grandparenting time

can be commenced under MCL 722.27b: (1) if the circuit court has

continuing jurisdiction over the child, the child’s grandparent

shall seek a grandparenting time order by ﬁling a motion with the

circuit court in the county where the court has continuing

jurisdiction, and (2) if the circuit court does not have continuing

jurisdiction over the child, the child’s grandparent shall seek a

grandparenting-time order by ﬁling a complaint in the circuit

court for the county where the child resides. Under the Child

Custody Act, MCL 722.21 et seq., when a child custody dispute

has been submitted to the trial court, either as an original action

under the act or when it has arisen incidentally in another action

in the trial court, the trial court may, upon petition, consider the

reasonable grandparenting time of maternal or paternal grand-

parents as provided in MCL 722.27b. Accordingly, the trial court

had subject-matter jurisdiction to hear the motion brought by

Peter’s parents for grandparenting time.

4. MCL 722.27b(4) states that in order to give deference to the

decisions of ﬁt parents, it is presumed that a ﬁt parent’s decision

to deny grandparenting time does not create a substantial risk of

harm to the child’s mental, physical, or emotional health. Relying

on this language, Peter contended that to obtain an order for

grandparenting time, a grandparent must ﬁrst establish that the

parent refused all visitation between the child and the grandpar-

ent. But nothing in MCL 722.27b(1), which sets forth when a

grandparent may seek a grandparenting-time order, requires

that there be a denial of grandparenting time before a grandpar-

ent may seek a grandparenting-time order. The Legislature’s

intent in enacting MCL 722.27b(4)(b) was not to set forth require-

ments for when a grandparent may seek an order for grandpar-

enting time (as it had already done in MCL 722.27b(1)), but

merely to provide a scheme in which a parent’s decision regarding

visitation is given deference.

5. The trial court initially qualiﬁed psychologist Nancy Fish-

man as an expert and permitted her to testify as an expert, but

later disqualiﬁed her and ruled that it would disregard opinions

that she had proffered as an expert. Nonetheless, in ﬁnding that

there would be a substantial risk of harm to the child’s mental

and emotional health if grandparenting time were not granted,

the trial court relied on statements the child made to Fishman.

Peter afﬁrmatively waived any hearsay objection to the admis-

sion of the child’s statements to Fishman, thereby allowing the

2015] V

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593

facts and data on which Fishman based her opinion to be

admitted into evidence. Accordingly, Peter could not argue on

appeal that the trial court erred by considering those statements.

6. Orders concerning grandparenting time may be reversed if

the trial court’s ﬁndings of fact were against the great weight of

the evidence. In this case, the evidence showed that the child

lived with his grandparents for numerous years and that the

grandparents raised the child as their own. The child’s state-

ments indicated that he saw his grandparents as parental ﬁgures

and not only that he wanted to spend time with them, but that he

would be angry, sad, and depressed if he could not. The evidence

did not clearly preponderate against the trial court’s ﬁnding that

a denial of grandparenting time would create a substantial risk of

harm to the child’s mental and emotional health.

Afﬁrmed.

URPHY

, J., dissenting, concluded that Peter was required to

pursue his appeal by an application for leave and, therefore,

would have dismissed Peter’s claims of appeal for lack of juris-

diction. The Supreme Court’s intent in drafting MCR

7.202(6)(a)(iii) was to allow for an appeal of right solely with

respect to postjudgment orders in domestic relations actions in

which a court either granted a motion that effectively sought to

change the legal or physical custody of a minor or denied such a

motion. The Supreme Court did not intend to provide for an

appeal of right in cases involving a postjudgment order in which

a court ruled on a motion for or to modify grandparenting or

parenting time, neither of which is mentioned in MCR

7.202(6)(a)(iii). In the simplest of terms relative to postjudgment

proceedings, custody decisions are appealable of right under MCR

7.203(A)(1) and MCR 7.202(6)(a)(iii), and grandparenting- and

parenting-time decisions are appealable by applications for leave

to appeal under MCR 7.203(B). The majority’s contrary interpre-

tation is not consistent with the language of the court rules. The

trial court’s order here did not have an effect on or inﬂuence

where the child would live; therefore, it was not a postjudgment

order affecting the physical custody of a minor for purposes of

MCR 7.202(6)(a)(iii).

1. P

ARENT AND

HILD —

OSTJUDGMENT

RDERS

FFECTING

USTODY —

PPEALS

IGHT —

RANDPARENTING

IME

A postjudgment order affecting the custody of a minor is an order

that produces an effect on, or inﬂuences in some way, the legal or

physical custody of a minor; an order for grandparenting time can

594 312 M

ICH

591 [Oct

affect the custody of a child, making it a ﬁnal order under MCR

7.202(6)(a)(iii), and, therefore, appealable by right under MCR

7.203(A)(1).

2. P

ARENT AND

HILD —

RANDPARENTING

IME —

TANDARD OF

ROOF —

ONSTITUTIONALITY

The requirement of MCL 722.27b that a grandparent, in order to

rebut the presumption given to a ﬁt parent’s decision to deny

grandparenting time, only needs to prove by a preponderance of

the evidence that the parent’s decision creates a substantial risk

of harm to the child’s mental, physical, or emotional health is

facially constitutional.

3. P

ARENT AND

HILD —

RANDPARENTING

IME —

REREQUISITES

There is no requirement under MCL 722.27b that there be a denial

of grandparenting time before a grandparent may seek a

grandparenting-time order.

Legal Services of South Central Michigan (by Tracy

E. Van den Bergh, Ann L. Routt, and Jessica K. Hirsh)

for Peter Granneman.

Daniel R. Victor, PLLC (by Daniel R. Victor), for

Debora and James Granneman.

Amicus Curiae:

Anne L. Argiroff, Judith A. Curtis, Kevin S. Gentry,

Liisa R. Speaker, and Trish Oleksa Haas for the Michi-

gan Coalition of Family Law Appellate Attorneys.

Before: R

ONAYNE

RAUSE

, P.J., and M

URPHY

and

ERVITTO

, JJ.

ERVITTO

, J. These matters are before us on remand

from our Supreme Court for further consideration of

our June 20, 2014 order dismissing Peter Granneman’s

claim of appeal in Docket No. 321866 for lack of

jurisdiction and our July 16, 2014 order dismissing his

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PINION OF THE

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claim of appeal in Docket No. 322437 for the same

reason. The Supreme Court directed us to “issue an

opinion speciﬁcally addressing the issue of whether an

order regarding grandparenting time may affect cus-

tody within the meaning of MCR 7.202(6)(a)(iii), or

otherwise be appealable by right under MCR

7.203(A).” Varran v Granneman, 497 Mich 928 (2014);

Varran v Granneman, 497 Mich 929 (2014).

Plaintiff, Emily Varran (Mother), who is deceased,

and defendant, Peter Granneman (Father), are the

parents of a minor child (referred to as “A” hereafter),

born in 2002, when the parents were both minors. The

parents never married. Mother initially had custody of

A, but when A was 8 months old he went to live with

Father, who resided with his parents, intervening peti-

tioners (Grandparents). This arrangement continued

until 2005 when A was 2

years old. At that time,

Grandparents asked Father to leave their home because

of hostility and conﬂicts. A continued to reside with

Grandparents, and Father initially visited A once a

week at Grandparents’ home. Within a few months,

Father had A with him on Saturday nights at his

apartment.

Mother passed away in 2007. In 2007, Father began

having A stay with him on Friday and Saturday nights.

In the summer of 2012, A began living with Father

during the week and visiting with Grandparents every

weekend. In the spring of 2013, Father reduced A’s

visits with Grandparents to every other weekend. In

May 2013, Father advised Grandparents that they

would no longer have overnight visits with A and that

any contact between them and A would be under Fa-

ther’s supervision.

Grandparents, as intervening petitioners, ﬁled a

motion for grandparenting time with A in June 2013.

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In a July 2013 order, the trial court awarded Grand-

parents temporary visitation with A every other week-

end from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.

and set the matter for an evidentiary hearing. At the

conclusion of the evidentiary hearing, the trial court

issued a written opinion on April 25, 2014, wherein it

determined that A would suffer a substantial risk of

future harm to his mental and emotional health if

grandparenting time were not granted. The trial court

additionally applied the best-interest factors set forth in

MCL 722.27b(6) and found that it was in A’s best

interest to allow grandparenting time. The trial court

thereafter, on May 30, 2014, entered an order providing

Grandparents with visitation with A every other Satur-

day from 10:00 a.m. until Sunday at 6:00 p.m. Father

claimed an appeal from the trial court’s April 25, 2014

opinion granting grandparenting time (Docket No.

321866) and its May 30, 2014 order setting a speciﬁc

grandparenting-time schedule (Docket No. 322437). As

previously indicated, this Court initially dismissed both

appeals, but our Supreme Court remanded the appeals,

directing us to address “whether an order regarding

grandparenting time may affect custody within the

meaning of MCR 7.202(6)(a)(iii), or otherwise be appeal-

able by right under MCR 7.203(A).” The Supreme Court

further directed that if this Court determines that the

lower court order is appealable by right, we must take

jurisdiction over Father’s claims of appeal and address

their merits. Varran, 497 Mich at 928; Varran, 497 Mich

at 929. We consolidated the appeals.

I. APPLICATION OF MCR 7.202(6)(a)(iii)

The ﬁrst issue for resolution is, as directed by the

Supreme

Court, whether an order for grandparenting

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time affects custody within the meaning of MCR

7.202(6)(a)(iii), making it appealable as of right under

MCR 7.203(A). Whether this Court has jurisdiction to

hear an appeal is an issue reviewed de novo. Wardell v

Hincka, 297 Mich App 127, 131; 822 NW2d 278 (2012).

The interpretation and application of a court rule is a

question of law that this Court reviews de novo. Haliw

v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753

(2005).

MCR 7.203(A) provides:

The court has jurisdiction of an appeal of right ﬁled by

aggrieved party from the following:

(1) A ﬁnal judgment or ﬁnal order of the circuit court, or

court of claims, as deﬁned in MCR 7.202(6), except a

judgment or order of the circuit court

(a) on appeal from any other court or tribunal;

(b) in a criminal case in which the conviction is based

on a plea of guilty or nolo contendere:

An appeal from an order described in MCR

7.202(6)(a)(iii)-(v) is limited to the portion of the order

with respect to which there is an appeal of right.

(2) A judgment or order of a court or tribunal from

which appeal of right to the Court of Appeals has been

established by law or court rule.

MCR 7.202(6)(a) deﬁnes a “ﬁnal judgment” or “ﬁnal

order”

in a civil case as the following:

(i) the ﬁrst judgment or order that disposes of all the

claims and adjudicates the rights and liabilities of all the

parties, including such an order entered after reversal of

an earlier ﬁnal judgment or order,

(ii) an order designated as ﬁnal under MCR 2.604(B),

(iii) in a domestic relations action, a postjudgment

order affecting the custody of a minor,

598 312

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591 [Oct

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(iv) a postjudgment order awarding or denying attorney

fees and costs under MCR 2.403, 2.405, 2.625 or other law

or court rule,

(v) an order denying governmental immunity to a

governmental party, including a governmental agency,

ofﬁcial, or employee under MCR 2.116(C)(7) or an order

denying a motion for summary disposition under MCR

2.116(C)(10) based on a claim of governmental immu-

nity[.]

The rules of statutory interpretation apply to the

interpretation

of court rules. Reed v Breton, 279 Mich

App 239, 242; 756 NW2d 89 (2008). The goal of court

rule interpretation is to give effect to the intent of the

drafter, the Michigan Supreme Court. Fleet Business

Credit, LLC v Krapohl Ford Lincoln Mercury Co, 274

Mich App 584, 591; 735 NW2d 644 (2007). The Court

must give language that is clear and unambiguous its

plain meaning and enforce it as written. Id. Each word,

unless deﬁned, is to be given its plain and ordinary

meaning, and the Court may consult a dictionary to

determine that meaning. TMW Enterprises Inc v Dep’t

of Treasury, 285 Mich App 167, 172; 775 NW2d 342

(2009).

On appeal, Father and Grandparents limit their

arguments to whether an order regarding grandpar-

enting time is a postjudgment order affecting the

custody of a minor under MCR 7.202(6)(a)(iii). How-

ever, this Court was not tasked by the Supreme Court

with only determining whether an order regarding

parenting time was a “ﬁnal judgment” or “ﬁnal order”

under MCR 7.202(6)(a)(iii). It was also tasked with

determining whether an order regarding grandparent-

ing time would otherwise be appealable by right under

MCR 7.203(A). Varran, 497 Mich at 929; Varran, 497

Mich at 928. Under MCR 7.203(A)(1), this Court has

jurisdiction of an appeal of right from a ﬁnal judgment

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or order of the trial court, as deﬁned in MCR 7.202(6),

while under MCR 7.203(A)(2), this Court has jurisdic-

tion of an appeal of right from a judgment or order for

which an appeal of right has been established by law or

court rule. There is no law or court rule providing an

appeal by right from an order regarding grandparent-

ing time. Therefore, under MCR 7.203(A), there is only

an appeal by right from an order regarding grandpar-

enting time if the order is a “ﬁnal order” or “ﬁnal

judgment” as deﬁned in MCR 7.202(6). MCR

7.203(A)(1).

Two deﬁnitions of a “ﬁnal judgment” or “ﬁnal order”

are potentially applicable to the present case: (1) “the

ﬁrst judgment or order that disposes of all the claims

and adjudicates the rights and liabilities of all the

parties, including such an order entered after reversal

of an earlier ﬁnal judgment,” MCR 7.202(6)(a)(i), and

(2) “a postjudgment order affecting the custody of a

minor,” MCR 7.202(6)(a)(iii). We will address each in

turn.

The grandparenting-time statute provides two ways

that an action for grandparenting time can be com-

menced. MCL 722.27b(3) states:

A grandparent seeking a grandparenting time order

shall

commence an action for grandparenting time, as

follows:

(a) If the circuit court has continuing jurisdiction over

the child, the child’s grandparent shall seek a grandpar-

enting time order by ﬁling a motion with the circuit court

in the county where the court has continuing jurisdiction.

(b) If the circuit court does not have continuing juris-

diction over the child, the child’s grandparent shall seek a

grandparenting time order by ﬁling a complaint in the

circuit court for the county where the child resides.

600 312 M

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591 [Oct

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In this case, Grandparents did not commence their

action for grandparenting time by ﬁling a complaint.

Instead, a child custody dispute concerning A was

initiated by A’s mother in the trial court in 2003.

Grandparents sought grandparenting time by ﬁling a

motion with the trial court in that case. The trial court

found that entry of a grandparenting-time order would

be in the best interests of A and entered such an order

on May 30, 2014. Because the May 30, 2014 order

provided a grandparenting-time schedule, it disposed

of Grandparents’ claim for grandparenting time and

adjudicated the rights and liabilities of Father and

Grandparents. It cannot be ignored, however, that

MCR 7.202(6)(a)(i) speciﬁcally deﬁnes a “ﬁnal judg-

ment” or “ﬁnal order” to mean “the ﬁrst judgment or

order that disposes of all the claims and adjudicates

the rights and liabilities of all the parties . . . .” (Em-

phasis added). Use of the singular deﬁnite article “the”

before “ﬁrst judgment” contemplates one order in a

civil action. See, e.g., Massey v Mandell, 462 Mich 375,

382 n 5; 614 NW2d 70 (2000). When A’s mother

initiated the custody case in 2003, the parties to that

case were Mother and Father and the ﬁrst order that

disposed of the claims and adjudicated all the rights

and liabilities of Mother and Father was the February

2004 consent order regarding custody, parenting time,

and support of A. Accordingly, under the deﬁnition of

MCR 7.202(6)(a)(i), the February 2004 consent order

was the “ﬁnal judgment” or “ﬁnal order.” Because there

was no reversal of the February 2004 consent order, no

subsequent order in the case could be considered a

“ﬁnal judgment” or “ﬁnal order” under MCR

7.202(6)(a)(i). The May 31, 2014 order in this case is

therefore not a “ﬁnal judgment” or “ﬁnal order” under

MCR 7.202(6)(a)(i).

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We next turn to whether an order regarding grand-

parenting time is a postjudgment order affecting the

custody of a minor under MCR 7.202(6)(a)(iii). Helpful

to this Court’s resolution is a review of the few cases

that have addressed MCR 7.202(6)(a)(iii). In Thurston

v Escamilla, 469 Mich 1009 (2004), our Supreme Court

determined that a postdivorce order granting a par-

ent’s motion for a change of domicile was an order

affecting the custody of the minors and was thus a ﬁnal

order, appealable by right. In that case, the divorce

judgment had previously awarded joint legal and

physical custody to both parties and the change of

domicile allowed one of the parties to move, with the

children, to New York.

In Wardell v Hincka, 297 Mich App at 132-133, a

panel of this Court took a close look at the deﬁnition of

“affect” when determining whether the denial of a

postjudgment motion for change of custody was an

order “affecting the custody of a minor” under MCR

7.202(6)(a)(iii) and thus appealable as of right:

Black’s Law Dictionary deﬁnes “affect” as “[m]ost gen-

erally

, to produce an effect on; to inﬂuence in some way.”

Black’s Law Dictionary (9th ed), p 65. In a custody

dispute, one could argue, as plaintiff does, that if the trial

court’s order does not change custody, it does not produce

an effect on custody and therefore is not appealable of

right. However, one could also argue that when making

determinations regarding the custody of a minor, a trial

court’s ruling necessarily has an effect on and inﬂuences

where the child will live and, therefore, is one affecting the

custody of a minor. Furthermore, the context in which the

term is used supports the latter interpretation. MCR

7.202(6)(a)(iii) carves out as a ﬁnal order among postjudg-

ment orders in domestic relations actions those that affect

the custody of a minor, not those that “change” the custody

of a minor. As this Court’s long history of treating orders

denying motions to change custody as orders appealable

602 312

ICH

591 [Oct

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by right demonstrates, a decision regarding the custody of

a minor is of the utmost importance regardless of whether

the decision changes the custody situation or keeps it as is.

We interpret MCR 7.202(6)(a)(iii) as including orders

wherein a motion to change custody has been denied.

[Alteration in original.]

In Rains v Rains, 301 Mich App 313, 315; 836 NW2d

709 (2013), the trial court awarded the parties joint

legal and physical custody of their child in a judgment

of divorce. The judgment also established a parenting-

time schedule. Approximately two years later, the

mother moved for a change in domicile, seeking to

move the child with her to Traverse City and to modify

the parenting-time schedule. The father, in response,

moved for primary physical custody. The trial court

denied the mother’s request for a change in domicile,

id. at 319, and this Court held that the mother pre-

sented an appeal from a ﬁnal order under MCR

7.202(6)(a)(iii), despite the father’s claim that because

the trial court’s decision effectively left the parties’

custody arrangement as it was, it did not affect the

custody of the minor child, id. at 321-324. The Rains

Court based its decision, in part, on Wardell, 297 Mich

App 127, noting that under Wardell, a trial court need

not change a custodial arrangement in order for its

decision to affect custody. Rains, 301 Mich App at 323.

Rather, the inquiry was “whether the trial court’s order

denying plaintiff’s motion for a change of domicile

inﬂuences where the child will live, regardless of

whether the trial court’s ultimate decision keeps the

custody situation ‘as is.’ ” Id. at 321 (quotation marks

omitted). From Rains and Wardell, it can be gleaned

that when a motion addresses the amount of time a

parent spends with a child such that it would poten-

tially cause a change in the established custodial

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environment, an order regarding that motion is a ﬁnal

order under MCR 7.202(6)(a)(iii).

MCR 7.202(6)(a)(iii) requires that the order, to be

considered a ﬁnal order appealable by right, affect the

“custody” of the minor child. “Custody,” like “affect,” is

not deﬁned in Chapter 7 of the Michigan Court Rules.

The term “custody” as used in the family law context is,

however, deﬁned in Black’s Law Dictionary (10th ed)

as follows:

The care, control, and maintenance of a child awarded by

court to a responsible adult. Custody involves legal

custody (decision-making authority) and physical custody

(caregiving authority), and an award of custody [usually]

grants both rights. [Formatting altered.]

Further, “the Child Custody Act draws a distinction

between

physical custody and legal custody: Physical

custody pertains to where the child shall physically

‘reside,’ whereas legal custody is understood to mean

decision-making authority as to important decisions

affecting the child’s welfare.” Grange Ins Co of Mich v

Lawrence, 494 Mich 475, 511; 835 NW2d 363 (2013).

We recognize that the Michigan cases thus far address-

ing MCR 7.202(6)(a)(iii) have addressed physical cus-

tody and have thus focused their inquiries on the effect

of the challenged order on where the child would live.

It would thus be tempting to conclude that this Court

rule only comes into play when the physical custody of

a child is at issue. Although there is a distinction

between physical and legal custody, MCR

7.202(6)(a)(iii) contains no distinguishing or limiting

language. Based on the plain language of the terms

used in MCR 7.202(6)(a)(iii), then, a “postjudgment

order affecting the custody of a minor” is an order that

produces an effect on or inﬂuences in some way the

legal custody or physical custody of a minor.

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The grandparenting-time statute, MCL 722.27b,

does not grant legal custody or physical custody of a

child to a grandparent who has obtained a

grandparenting-time order. Thus, an order for grand-

parenting time cannot alter or change the legal custody

or physical custody of a child. But that does not mean

that an order for grandparenting time cannot affect

(i.e., produce an effect on or inﬂuence) the custody of a

child. In Thurston, 469 Mich at 1009, for example,

despite the fact that the trial court’s order that granted

the mother’s motion for change in domicile did not

alter the award of joint legal and physical custody, the

Supreme Court still held that the order was one

affecting the custody of a minor.

According to Father, an order for grandparenting

time is one that affects the custody of a minor because it

interferes with a parent’s right to determine the care,

custody, and control of his or her child. A parent has a

fundamental right, one that is protected by the Due

Process Clause of the Fourteenth Amendment, to make

decisions concerning the care, custody, and control of his

or her child. Troxel v Granville, 530 US 57, 66; 120 S Ct

2054; 147 L Ed 2d 49 (2000) (opinion by O’Connor, J.); In

re Sanders, 495 Mich 394, 409; 852 NW2d 524 (2014). It

cannot be disputed that a grandparenting-time order

interferes with a parent’s fundamental right to make

decisions concerning the care, custody, and control of a

child. Although a parent has denied grandparenting

time, a grandparent may obtain an order for grandpar-

enting time if the grandparent proves by a preponder-

ance of the evidence that the denial of grandparenting

time will create a substantial risk of harm to the child

and if the trial court ﬁnds by a preponderance of the

evidence that a grandparenting-time order is in the

child’s best interests. MCL 722.27b(4)(b) and (6). Be-

cause a grandparenting-time order overrides a parent’s

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legal decision to deny grandparenting time, a

grandparenting-time order interferes with a parent’s

fundamental right to make decisions concerning the

care, custody, and control of his or her child. Thus, when

a parent has legal custody of the child, an order regard-

ing grandparenting time is a postjudgment order affect-

ing the custody of a minor. MCR 7.202(6)(a)(iii). Because

Father had legal custody of A, we hold that the May 30,

2014 order was a “ﬁnal judgment” or “ﬁnal order” under

MCR 7.202(6)(a)(iii) and, therefore, appealable by right,

MCR 7.203(A)(1).

It is true, as the dissent points out, that the award or

denial of grandparenting time did not change the

legal-custody arrangement between Father and now

deceased Mother and did not deprive Father of sole

legal custody of A. But a “change” in custody is not

what is required under MCR 7.202(6)(a)(iii)—the lan-

guage of the rule requires only an order “affecting”

custody, which is materially different. Furthermore, it

cannot be ignored that this dispute does not concern a

motion to resolve a postjudgment dispute between two

parents. Generally, when postjudgment custody issues

warrant the trial court’s involvement it is because the

two people who have the same fundamental rights to

the care and custody of the same child (including

decision-making authority) are at odds and the court is

required to resolve a stalemate. In this case, however,

the dispute concerns the trial court’s award of visita-

tion to third parties—who are not vested with the

fundamental rights that are ordinarily reserved for

parents—against the express decision of A’s only living

parent and, thus, the only parent with legal and

physical custody. Moreover, during those periods of

visitation, A’s Grandparents will impliedly have at

least some of the rights generally reserved for parents

with legal or physical custody (e.g., whether and how to

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treat the child if he is not feeling well; whether to

expose the child to religion and religious practices; and

to what persons, television programs, and movies to

expose the child). Thus, the award of grandparenting

time affected the custody of A.

In accordance with the foregoing analysis and pur-

suant to the Supreme Court’s remand order in Docket

No. 322437, we take jurisdiction over Father’s claim of

appeal and address the merits of the arguments raised

by Father. We will also treat the claim of appeal in

Docket No. 321866 as an application for leave to appeal

and grant it.

II. CONSTITUTIONALITY OF THE GRANDPARENTING-TIME STATUTE

Father argues on appeal that the grandparenting-

ime statute is unconstitutional. We disagree.

This Court reviews constitutional issues de novo.

Mahaffey v Attorney General, 222 Mich App 325, 334;

564 NW2d 104 (1997). Statutes are presumed consti-

tutional, and this Court has a duty to construe a

statute as constitutional unless its unconstitutionality

is clearly apparent. Cadillac Mayor v Blackburn, 306

Mich App 512, 516; 857 NW2d 529 (2014). The burden

of proving that a statute is unconstitutional is on the

party challenging the statute. In re Request for Advi-

sory Opinion Regarding Constitutionality of 2005 PA

71, 479 Mich 1, 11; 740 NW2d 444 (2007).

The Fourteenth Amendment of the United States

Constitution, US Const, Am XIV, prohibits a state

from depriving any person of life, liberty, or property

without due process of law. Sanders, 495 Mich at 409.

This promise of due process includes “a substantive

component that provides heightened protection

against government interference with certain funda-

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mental rights and liberty interests.” Id. (quotation

marks and citation omitted). Among these fundamen-

tal rights is the right of parents to make decisions

concerning the care, custody, and control of their chil-

dren. Id. In other words, “[p]arents have a signiﬁcant

interest in the companionship, care, custody, and man-

agement of their children, and the interest is an

element of liberty protected by due process.” In re JK,

468 Mich 202, 210; 661 NW2d 216 (2003).

MCL 722.27b(4) provides:

All of the following apply to an action for grandparent-

ing

time under [MCL 722.27b(3)]:

* * *

(b) In order to give deference to the decisions of ﬁt

parents, it is presumed in a proceeding under this subsec-

tion that a ﬁt parent’s decision to deny grandparenting

time does not create a substantial risk of harm to the

child’s mental, physical, or emotional health. To rebut the

presumption created in this subdivision, a grandparent

ﬁling a complaint or motion under this section must prove

by a preponderance of the evidence that the parent’s

decision to deny grandparenting time creates a substan-

tial risk of harm to the child’s mental, physical, or emo-

tional health. If the grandparent does not overcome the

presumption, the court shall dismiss the complaint or

deny the motion.

ﬁnal and nonappealable judgment that the burden of proof

described in subdivision (b) is unconstitutional, a grand-

parent ﬁling a complaint or motion under this section

must prove by clear and convincing evidence that the

parent’s decision to deny grandparenting time creates a

substantial risk of harm to the child’s mental, physical, or

emotional health to rebut the presumption created in

subdivision (b).

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Father argues that the grandparenting-time statute

is unconstitutional because of the use of the

preponderance-of-the-evidence standard. He contends

that use of a clear-and-convincing-evidence standard is

necessary to protect a parent’s fundamental right to

make decisions concerning the care, custody, and con-

trol of his or her children. While Father contends that

the statute is unconstitutional both on its face and as

applied to the present case, his argument, as pre-

sented, is actually only a facial challenge. “To make a

successful facial challenge to the constitutionality of a

statute, the challenger must establish that no set of

circumstances exists under which the [a]ct would be

valid.” Judicial Attorneys Ass’n v Michigan, 459 Mich

291, 303; 586 NW2d 894 (1998) (quotation marks and

citations omitted; alteration in original). In contrast,

an as-applied challenge “alleges a present infringe-

ment or denial of a speciﬁc right or of a particular

injury in process of actual execution of government

action.” Bonner v Brighton, 495 Mich 209, 223 n 27;

848 NW2d 380 (2014) (quotation marks and citation

omitted).

“The function of a standard of proof, as that concept

is embodied in the Due Process Clause and in the

realm of factﬁnding, is to instruct the factﬁnder con-

cerning the degree of conﬁdence our society thinks he

should have in the correctness of factual conclusions

for a particular type of adjudication.” Cruzan v Mis-

souri Dep’t of Health Dir, 497 US 261, 282; 110 S Ct

2841; 111 L Ed 2d 224 (1990) (quotation marks and

citations omitted). “[I]n any given proceeding, the

minimum standard of proof tolerated by the due pro-

cess requirement reﬂects not only the weight of the

private and public interests affected, but also a societal

judgment about how the risk of error should be distrib-

uted between the litigants.” Santosky v Kramer, 455

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US 745, 755; 102 S Ct 1388; 71 L Ed 2d 599 (1982).

“Thus, while private parties may be interested in-

tensely in a civil dispute over money damages, appli-

cation of a ‘fair preponderance of the evidence’ stan-

dard indicates both society’s ‘minimal concern with the

outcome,’ and a conclusion that the litigants should

‘share the risk of error in roughly equal fashion.’ ” Id.

(citation omitted). The United States Supreme Court

has mandated an intermediate standard of proof—

clear and convincing evidence—when the individual

interests at stake are both “particularly important”

and “more substantial than mere loss of money.” Id. at

756 (quotation marks and citation omitted). In Santo-

sky, the United States Supreme Court held that a

state, before it may terminate parental rights, must

support its allegations by clear and convincing evi-

dence. Id. at 747-748, 768-770.

Father is correct that the United States Supreme

Court has observed that one of the oldest recognized

liberty interests is that of a parent to determine the

care, custody, and control of his or her children, includ-

ing the children’s associations. See Troxel, 530 US 57.

While the Supreme Court in Troxel did address a

grandparent-visitation statute and rule that it was

unconstitutional, the statute in this case is not con-

trary to Troxel.

In Troxel, 530 US 61 (opinion by O’Connor, J.), a

Washington statute provided that “ ‘[a]ny person may

petition the court for visitation rights’ ” and that “ ‘[t]he

court may order visitation rights for any person when

visitation may serve the best interest of the child . . . .’ ”

(Citation omitted.) Under this statute, the grandpar-

ents moved for greater visitation with their two grand-

daughters than the children’s mother would allow.

The trial court granted the requested visitation.

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The United States Supreme Court held that the Wash-

ington statute was unconstitutional. Justice O’Connor,

writing for a plurality of the Court, concluded that the

Washington statute, when applied to the case, in-

fringed the mother’s fundamental rights as a parent.

Id. at 67-68, 72-73. It was never alleged, and there was

no ﬁnding, that the mother was an unﬁt parent. Id. at

68. This was important, Justice O’Connor stated, be-

cause “there is a presumption that ﬁt parents act in the

best interests of their children.” Id. She explained that

the problem was not that the trial court intervened but

that when it did, it gave no special weight to the

mother’s determination of her daughters’ best inter-

ests. Id. at 69. “[I]f a ﬁt parent’s decision of the kind at

issue here becomes subject to judicial review, the court

must accord at least some special weight to the par-

ent’s own determination.” Id. at 70. Justice O’Connor

also noted that there was no allegation that the mother

ever sought to preclude all visitation, and the trial

court gave no weight to the mother’s acquiescence to

some visitation. Id. at 71. She concluded that the

Washington statute was unconstitutional as applied

because it failed to afford the determination of the

mother, a ﬁt parent, any material weight. Id. at 72.

According to the plurality opinion in Troxel, then, in

order to protect a parent’s fundamental right to raise

his or her children, a visitation statute must require

that the trial court afford deference to the decisions of

a ﬁt parent regarding third-party visitation.

The grandparenting-time statute at issue in this

case requires that the trial court afford deference to a

ﬁt parent’s decision to deny grandparenting time.

There is a presumption that a ﬁt parent’s decision to

deny grandparenting time does not create a substan-

tial risk of harm to the child. MCL 722.27b(4)(b). To

rebut this presumption, a grandparent must prove by a

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preponderance of the evidence that the parent’s deci-

sion creates a substantial risk of harm to the child. Id.

Thus, the grandparenting-time statute does not allow

a trial court to grant grandparenting time simply

because it disagrees with the parent’s decision. It thus

abides by the Troxel deference requirement. The extent

of deference that must be afforded, however, was not

discussed in Troxel and forms the heart of Father’s

argument—that the amount of deference required by

the statute is inadequate, rendering the statute uncon-

stitutional.

On this issue, Father relies principally on Hunter v

Hunter, 484 Mich 247; 771 NW2d 694 (2009). In

Hunter, 484 Mich 247, the Supreme Court addressed

the conﬂicting presumptions that arise under the Child

Custody Act (CCA), MCL 722.21 et seq., when there is

a custody dispute between a parent and a third party

with whom a child has an established custodial envi-

ronment. Under MCL 722.25(1), in a custody dispute

between a parent and a third party, the court “shall

presume that the best interests of the child are served

by awarding custody to the parent or parents, unless

the contrary is established by clear and convincing

evidence.” Under MCL 722.27(1)(c), a court may not

modify a previous custody order or issue a new custody

order so as to change the established custodial envi-

ronment unless there is clear and convincing evidence

that the change is in the best interest of the child. The

Supreme Court held that, in order to protect a ﬁt

parent’s fundamental constitutional rights, the paren-

tal presumption of MCL 722.25(1) must control over

the presumption in favor of an established custodial

environment in MCL 722.27(1)(c). Hunter, 484 Mich at

263-264. The Supreme Court then addressed a “re-

maining constitutional question” regarding the

amount of deference due under Troxel to ﬁt parents. Id.

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at 264. The Court concluded that MCL 722.25(1) pro-

vides sufﬁcient deference to ﬁt parents’ fundamental

rights to the care, custody, and management of their

children because it requires, in order to rebut the

parental presumption, clear and convincing evidence

that custody by the parent is not in the child’s best

interests. Id. at 264-265. The Supreme Court summa-

rized the clear-and-convincing evidence standard:

The clear and convincing evidence standard is “the

most

demanding standard applied in civil cases . . . .” This

showing must “ ‘produce[] in the mind of the trier of fact a

ﬁrm belief or conviction as to the truth of the allegations

sought to be established, evidence so clear, direct and

weighty and convincing as to enable [the fact-ﬁnder] to

come to a clear conviction, without hesitancy, of the truth

of the precise facts in issue.’ ” [Id. at 265 (citations

omitted; alterations in original).]

The Supreme Court concluded that requiring a third

party

to establish by clear and convincing evidence

that it is not in the child’s best interests for the parent

to have custody “was entirely consistent with Troxel’s

holding.” Id. It explained, “Although a ﬁt parent is

presumed to act in his or her child’s best interests, a

court need give the parent’s decision only a ‘presump-

tion of validity’ or ‘some weight.’ That is precisely what

MCL 722.25(1) does when it requires clear and con-

vincing evidence to rebut the presumption.” Id.

Hunter is minimally instructive in the present case.

The Supreme Court in Hunter merely concluded that

MCL 722.25(1) provides sufﬁcient deference to a ﬁt

parent’s fundamental rights to the care, custody, and

management of their child because it requires, in order

to rebut the parental presumption, clear and convincing

evidence that custody by the parent is not in the child’s

best interests. However, in Hunter, a preponderance-

of-the-evidence standard was not at issue, nor

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was it ever discussed. The Supreme Court never said

that a clear-and-convincing-evidence standard, rather

than a preponderance-of-the-evidence standard, was

constitutionally mandated. It simply declared that the

standard, as set forth in the statute, was sufﬁcient.

As previously stated, the grandparenting-time stat-

ute is consistent with Troxel. Because the

grandparenting-time statute presumes that a ﬁt par-

ent’s decision to deny grandparenting time does not

create a substantial risk of harm to the child, and

because it requires a grandparent to prove by a pre-

ponderance of the evidence that the parent’s decision

creates a substantial risk of harm to the child, the

statute gives deference to the decisions of a ﬁt parent.

See DeRose v DeRose, 469 Mich 320, 332; 666 NW2d

636 (2003).

It does not allow the trial court to grant

grandparenting

time simply because it disagrees with

the parent’s decision. See id. Moreover, a parent’s

fundamental right to make decisions concerning the

care, custody, and control of their children is not most

at jeopardy when a grandparent petitions a court for

grandparenting time. See Hunter, 484 Mich at 269. An

order granting grandparenting time does not sever,

permanently and irrevocably, a parent’s parental

The Legislature rewrote the grandparenting-time statute in 2004

(2004 PA 542) after the DeRose Court, 469 Mich at 333-334, held that a

prior version of the statute was unconstitutional under Troxel because it

did not require that any deference be given to the decisions that a ﬁt

parent makes for his or her child. The Legislature included the language

requiring that deference be given to the decisions of ﬁt parents in the

rewritten grandparenting-time statute so that the statute would comply

with Troxel and DeRose. See Keenan v Dawson, 275 Mich App 671,

678-679; 739 NW2d 681 (2007), in which this Court stated that Troxel

and DeRose “directly led to the 2004 amendment of MCL 722.27b” and

that, in response to the those decisions, the Legislature attempted to

correct the constitutional inﬁrmities of the grandparenting-time stat-

ute.

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591 [Oct

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rights to a child, and it remains subject to modiﬁcation

and termination. Therefore, we conclude that, because

due process concerns are not at their highest in cases

involving requests for grandparenting time, see id., the

requirement that grandparents, in order to rebut the

presumption given to a ﬁt parent’s decision, prove by a

preponderance of the evidence that the parent’s deci-

sion to deny grandparenting time creates a substantial

risk of harm to the child is sufﬁcient to protect the

fundamental rights of parents. Father’s facial chal-

lenge to the constitutionality of the grandparenting-

time statute thus fails.

III. SUBJECT-MATTER JURISDICTION

Father next contends that the trial court lacked

jurisdiction

to hear Grandparents’ motion for grand-

parenting time. We disagree.

As explained in Part I of this opinion, there are two

ways that an action for grandparenting time can be

commenced: (1) “[i]f the circuit court has continuing

jurisdiction over the child, the child’s grandparent

shall seek a grandparenting time order by ﬁling a

motion with the circuit court in the county where the

court has continuing jurisdiction” and (2) “[i]f the

circuit court does not have continuing jurisdiction over

the child, the child’s grandparent shall seek a grand-

parenting time order by ﬁling a complaint in the circuit

court for the county where the child resides.” MCL

722.27b(3).

Father argues that the trial court lacked subject-

matter jurisdiction over Grandparents’ motion for

grandparenting time because the court did not have

continuing jurisdiction over A. According to Father, the

trial court did not have continuing jurisdiction over A

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because Father was awarded sole legal and physical

custody over A in 2004 and Mother died in 2007.

Subject-matter jurisdiction is the right of the a court

to exercise judicial power over that class of cases; not the

particular case before it, but rather the abstract power to

try a case of the kind or character of the one pending; and

not whether the particular case is one that presents a

cause of action, or under the particular facts is triable

before the court in which it is pending, because of some

inherent facts which exist and may be developed during

the trial. [Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283

NW 45 (1938) (citation and quotation marks omitted).]

A trial court’s lack of subject-matter jurisdiction ren-

ders

a trial court’s judgment void. Bowie v Arder, 441

Mich 23, 56; 490 NW2d 568 (1992); Altman v Nelson,

197 Mich App 467, 472-473; 495 NW2d 826 (1992).

However, the only support Father has cited in support

of his argument is an unpublished opinion per curiam

of the Court of Appeals. Unpublished decisions are not

binding on the Court. MCR 7.215(C)(1) and (J)(1).

Trial courts have subject-matter jurisdiction over

child custody disputes. Bowie, 441 Mich at 39. Addi-

tionally, the power to hear and decide requests by a

child’s grandparents for grandparenting time has not

been prohibited or given exclusively to another court.

See id. Pursuant to the CCA, when a child custody

dispute has been submitted to the trial court, either

as an original action under the CCA or when it has

arisen incidentally in another action in the trial court,

the trial court may “[u]pon petition consider the

reasonable grandparenting time of maternal or pater-

nal grandparents as provided in [MCL 722.27b] . . . .”

MCL 722.27(f). Accordingly, the trial court had

subject-matter jurisdiction to hear Grandparents’ mo-

tion for grandparenting time. It had the right to

616 312 M

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591 [Oct

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exercise judicial power over requests by a child’s

grandparents for grandparenting time. See Joy, 287

Mich at 253-254.

IV. INTERPRETATION OF MCL 722.27b

Father contends that to obtain grandparenting time

under the statute, a grandparent must ﬁrst demon-

strate that a ﬁt parent’s decision to deny grandparent-

ing time creates a substantial risk of harm to the child

and that he did not deny, i.e., refuse or reject, all

visitation between Grandparents and A. According to

Father, Grandparents are therefore not eligible for

relief under MCL 722.27b and the trial court erred by

interpreting the word “deny” in any other manner in

order to allow relief.

“ ‘Orders concerning [grand]parenting time must

be afﬁrmed on appeal unless the trial court’s ﬁndings

were against the great weight of the evidence, the

court committed a palpable abuse of discretion, or the

court made a clear legal error on a major issue.’ ”

Keenan v Dawson, 275 Mich App 671, 679; 739 NW2d

681 (2007) (citation omitted; alteration in original).

Issues of statutory interpretation are questions of

law. Koontz v Ameritech Servs, Inc, 466 Mich 304, 309;

645 NW2d 34 (2002). Questions of law are reviewed

for clear legal error. McCain v McCain, 229 Mich App

123, 125; 580 NW2d 485 (1998). “Clear legal error

occurs when the trial court errs in its choice, inter-

pretation, or application of the existing law.” Sturgis v

Sturgis, 302 Mich App 706, 710; 840 NW2d 408 (2013)

(citation and quotation marks omitted).

The goal of judicial interpretation of statutes is to

ascertain and give effect to the intent of the Legisla-

ture. Tevis v Amex Assurance Co, 283 Mich App 76, 81;

770 NW2d 16 (2009). The rules of statutory construc-

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tion serve as guides to assist in determining legislative

intent with a greater degree of certainty. Niles Twp v

Berrien Co Bd of Comm’rs, 261 Mich App 308, 313; 683

NW2d 148 (2004). Statutory language should be con-

strued reasonably, keeping in mind the purpose of the

statute. Rose Hill Ctr, Inc v Holly Twp, 224 Mich App

28, 32; 568 NW2d 332 (1997). Once the intention of the

Legislature is discovered, it must prevail over any

conﬂicting rule of statutory construction. Thompson v

Thompson, 261 Mich App 353, 361 n 2; 683 NW2d 250

(2004).

The best indicator of legislative intent, and the ﬁrst

thing to be examined when determining intent, is the

language of the statute. Tevis, 283 Mich App at 81. If

the language of the statute is unambiguous, the

Legislature is presumed to have intended the mean-

ing clearly expressed, and a court must enforce the

statute as written. Ameritech Publishing, Inc v Dep’t

of Treasury, 281 Mich App 132, 136; 761 NW2d 470

(2008). Every word of a statute is presumed to have

some meaning, and this Court must avoid an inter-

pretation that renders any part of the statute surplus-

age or nugatory. Mich Farm Bureau v Dep’t of Envi-

ronmental Quality, 292 Mich App 106, 132; 807 NW2d

866 (2011). Effect should be given to every sentence,

phrase, clause, and word. Id. Each word, unless

speciﬁcally deﬁned, is to be given its plain and ordi-

nary meaning, and the Court may consult a diction-

ary to determine that meaning. TMW Enterprises,

Inc, 285 Mich App at 172. Additionally, “a court may

read nothing into an unambiguous statute that is not

within the manifest intent of the Legislature as

derived from the words of the statute itself.” Roberts

v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d

663 (2002).

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Another rule of statutory construction is that statu-

tory provisions are not to be read in isolation. Robinson

v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010).

Rather, to discern the true intent of the Legislature,

statutory provisions must be read as a whole. Id.

Father’s argument is premised on MCL 722.27b(4),

which states, in relevant part, as follows:

All of the following apply to an action for grandparent-

ing time under [MCL 722.27b(3)]:

* * *

(b) In order to give deference to the decisions of ﬁt

parents, it is presumed in a proceeding under this subsec-

tion that a ﬁt parent’s decision to deny grandparenting

time does not create a substantial risk of harm to the

child’s mental, physical, or emotional health. To rebut the

presumption created in this subdivision, a grandparent

ﬁling a complaint or motion under this section must prove

by a preponderance of the evidence that the parent’s

decision to deny grandparenting time creates a substantial

risk of harm to the child’s mental, physical, or emotional

health. If the grandparent does not overcome the pre-

sumption, the court shall dismiss the complaint or deny

the motion. [Emphasis added.]

However, MCL 722.27b(1) provides:

A child’s grandparent may seek a grandparenting time

order

under 1 or more of the following circumstances:

(a) An action for divorce, separate maintenance, or

annulment involving the child’s parents is pending before

the court.

(b) The child’s parents are divorced, separated under a

judgment of separate maintenance, or have had their

marriage annulled.

is deceased.

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(d) The child’s parents have never been married, they

are not residing in the same household, and paternity has

been established by the completion of an acknowledgment

of parentage under the acknowledgment of parentage act,

1996 PA 305, MCL 722.1001 to 722.1013, by an order of

ﬁliation entered under the paternity act, 1956 PA 205,

MCL 722.711 to 722.730, or by a determination by a court

of competent jurisdiction that the individual is the father

of the child.

[2]

(e) Except as otherwise provided in [MCL 722.27b(13)],

legal custody of the child has been given to a person other

than the child’s parent, or the child is placed outside of

and does not reside in the home of a parent.

(f) In the year preceding the commencement of an action

under [MCL 722.27b(3)] for grandparenting time, the

grandparent provided an established custodial environ-

ment for the child as described in [MCL 722.27], whether or

not the grandparent had custody under a court order.

Nothing in MCL 722.27b(1), which sets forth when a

randparent may seek a grandparenting-time order,

requires that there be a denial of grandparenting time

before a grandparent may seek a grandparenting-time

order. In the present case, Grandparents brought their

motion for grandparenting time under MCL

722.27b(1)(d) and (f). Father has never disputed that,

under MCL 722.27b(1)(d) and (f), Grandparents could

seek an order for grandparenting time. Accordingly,

under MCL 722.27b(1), Grandparents could seek an

order of grandparenting time irrespective of whether

Father had completely denied them all grandparenting

time with A. Additionally, MCL 722.27b(4)(b) was in-

cluded in the grandparenting-time statute so that the

statute would no longer be constitutionally inﬁrm. See

MCL 722.27b(2) prohibits a trial court from allowing the parent of a

father who never married the child’s mother from seeking an order for

grandparenting time if the father’s paternity has never been estab-

lished.

620 312

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Keenan, 275 Mich App at 678-679. To withstand a

constitutional challenge under Troxel and DeRose, a

grandparenting-time statute must require that a trial

court give deference to a ﬁt parent’s decision regarding

visitation between his or her child and the child’s

grandparent. See DeRose, 469 Mich at 332-334. The

Legislature’s intent in enacting MCL 722.27b(4)(b),

then, was not to set forth requirements for when a

grandparent could seek an order for grandparenting

time (as it had already done in MCL 722.27b(1)), but

merely to provide a scheme in which a parent’s decision

regarding visitation is given deference. This is the only

logical conclusion when the grandparenting-time stat-

ute is read as a whole and when the historical context

and development of MCL 722.27b(4)(b) are considered.

V. EXPERT TESTIMONY

Father argues that the trial court, upon concluding

that

the testimony of Grandparents’ expert, psycholo-

gist Dr. Nancy Fishman, was not reliable, erred when

it considered the statements that A made to Fishman

as evidence. We disagree.

A trial court’s decision regarding the admissibility of

expert testimony is reviewed for an abuse of discretion,

Surman v Surman, 277 Mich App 287, 304-305; 745

NW2d 802 (2007), as are all the trial court’s eviden-

tiary decisions, Taylor v Kent Radiology, PC, 286 Mich

App 490, 519; 780 NW2d 900 (2009). A trial court

abuses its discretion if its decision results in an out-

come outside the range of principled outcomes. Sur-

man, 277 Mich App at 305.

MRE 702 provides:

If the Court determines that scientiﬁc, technical, or

other

specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

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witness qualiﬁed as an expert by knowledge, skill, expe-

rience, training, or education may testify thereto in the

form of an opinion or otherwise if (1) the testimony is

based on sufﬁcient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably to

the facts of the case.

Under MRE 702, a trial court must act as a gatekeeper

to ensure that all expert opinion testimony is reliable.

Gilbert v DaimlerChrysler Corp, 470 Mich 749, 783;

685 NW2d 391 (2004). MRE 702 incorporates the

standards of reliability that were described in Daubert

by the United States Supreme Court. Edry

v Adelman,

486 Mich 634, 639; 786 NW2d 567 (2010). Under

Daubert, a trial court must ensure that all expert

opinion testimony is relevant and reliable. Id. at 640. A

trial court must determine the reliability of expert

opinion testimony before the testimony may be admit-

ted. Tobin v Providence Hosp, 244 Mich App 626, 647;

624 NW2d 548 (2001).

The trial court initially qualiﬁed Fishman as an

expert, in accordance with MRE 702, and permitted

her to testify as such. Fishman had been asked by

Grandparents to offer an expert opinion regarding the

effect on A if he was not allowed to see Grandparents.

To reach an opinion, Fishman met with Grandparents

and A on several occasions. In a later order, the trial

court disqualiﬁed Fishman as an expert, ﬁnding that

her methods and opinions did not meet Daubert

standards and indicated that it would disregard Fish-

man’s expert opinions.

Nonetheless, in ﬁnding that

Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125

L Ed 2d 469 (1993).

Grandparents make no argument on appeal that the trial court

erred by determining that Fishman’s methods and opinions did not meet

Daubert standards.

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there would be a substantial risk of harm to A’s

mental and emotional health if grandparenting time

were not granted, the trial court relied heavily on

statements that A made to Fishman. In doing so, the

court noted that Father had afﬁrmatively waived any

hearsay objection to A’s statements made to Fishman,

which Fishman testiﬁed regarding and were also

contained in her report that had been admitted into

evidence.

Many of A’s statements to Fishman were hearsay;

they were out-of-court statements used for the truth of

the matter asserted. See MRE 801. Hearsay is not

admissible unless it falls within an exception. MRE

802. There has never been a claim by Grandparents

that any of A’s statements to Fishman fell within a

hearsay exception. As indicated by Grandparents, how-

ever, during the evidentiary hearing concerning Fish-

man’s testimony, Father withdrew any hearsay objec-

tion to the admission of A’s statements. In considering

A’s statements, the trial court relied on Father’s with-

drawal of the hearsay objection. Absent the with-

drawal of such objection, many of A’s statements would

have been inadmissible.

Waiver is the voluntary and intentional relinquish-

ment of a known right. MacInnes v MacInnes, 260 Mich

App 280, 287; 677 NW2d 889 (2004). “One who waives

his rights under a rule may not then seek appellate

review of a claimed deprivation of those rights, for his

waiver has extinguished any error.” People v Carter, 462

Mich 206, 215; 612 NW2d 144 (2000) (citation and

quotation marks omitted). Father voluntarily and inten-

tionally withdrew his hearsay objection to A’s state-

ments. Thus, Father cannot now argue on appeal that

the trial court erred by considering A’s statements

because the statements were hearsay and did not fall

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within a hearsay exception. Because Father withdrew

his hearsay objection to A’s statements, thereby allow-

ing the facts and data on which Fishman based her

opinion to be admitted into evidence, Father cannot now

claim on appeal that the trial court erred when it

considered A’s statements.

VI. SUBSTANTIAL RISK OF HARM

Father avers that the trial court’s ﬁnding that

randparents proved that a denial of grandparenting

time would create a substantial risk of harm was

against the great weight of the evidence. We disagree.

As noted earlier, an order concerning grandparent-

ing time may be reversed if the trial court’s ﬁndings of

fact were against the great weight of the evidence.

Keenan, 275 Mich App at 679. A trial court’s ﬁndings of

fact are not against the great weight of the evidence

unless the evidence clearly preponderates in the oppo-

site direction. Id. at 679-680. A trial court has superior

fact-ﬁnding ability, and this Court must give deference

to a trial court’s determination regarding the weight to

assign evidence. See Berger v Berger, 277 Mich App

700, 715; 747 NW2d 336 (2008).

We ﬁrst note that the vast majority of Father’s

argument on this issue is premised on his prior

argument—that the trial court erred by relying on A’s

statements to Fishman. Father makes no argument

that, if A’s statements to Fishman were properly

considered, the trial court’s ﬁnding was still against

the great weight of the evidence. Given our conclusion

that the trial court properly considered A’s state-

ments, we could simply afﬁrm the trial court’s factual

ﬁnding regarding a substantial risk of harm without

any analysis. However, thoroughness requires that

we point out several salient portions of A’s statements

624 312 M

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to Fishman that showed, by a preponderance of the

evidence, a denial of grandparenting time would

create a substantial risk of harm to A’s mental,

physical, or emotional health.

A told Fishman that he feels as though he merely

exists until the next time he gets to see his Grandpar-

ents and is very sad about losing his Grandparents. A

stated that he had grown up referring to his Grand-

parents as “Mom” and “Pop” and that he felt as though

he had lost the only home he had known. A stated that

being required to live with his father made him feel

like he had been kidnapped. A told Fishman that he is

afraid of not being able to see his Grandparents; that

sometimes he is homesick and lonely; that Grandpar-

ents’ house feels like home and that is where he

belongs and is most welcome; and that, if he could not

see Grandparents anymore, his life would be horrible,

he would be sad, angry, and depressed, and he would

not have much to look forward to.

As previously stated, the evidence showed that A

lived with his Grandparents for numerous years and

that the Grandparents raised A as their own child. A’s

statements support that he saw his Grandparents as

parental ﬁgures and certainly show that not only did

he want to spend time with them, he would be angry,

sad, and depressed if he could not. Under these circum-

stances, the evidence did not clearly preponderate

against the trial court’s ﬁnding that a denial of grand-

parenting time would create a substantial risk of harm

to A’s mental and emotional health. See Keenan, 275

Mich App at 680.

Afﬁrmed.

ONAYNE

RAUSE

, P.J., concurred with S

ERVITTO

, J.

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URPHY

, J. (dissenting). I conclude that defendant

Peter Granneman (Father) was required to pursue his

appeal by an application for leave and that he was not

entitled to appeal the trial court’s decision as of right.

Therefore, I would dismiss Father’s claims of appeal

for lack of jurisdiction under MCR 7.203(A).

In my

view, the clear intent of the Supreme Court in drafting

MCR 7.202(6)(a)(iii) was to allow for an appeal of right

solely with respect to postjudgment orders in domestic

relations actions in which a court either granted a

motion that effectively sought to change the legal or

physical custody of a minor or denied such a motion. The

Supreme Court did not intend to provide for an appeal

of right in cases involving a postjudgment order in

which a court ruled on a motion for or to modify

grandparenting or parenting time, neither of which is

mentioned in MCR 7.202(6)(a)(iii). In the simplest of

terms relative to postjudgment proceedings, custody

decisions are appealable of right under MCR 7.203(A)(1)

and MCR 7.202(6)(a)(iii), and grandparenting- and

parenting-time decisions are appealable by applications

for leave to appeal under MCR 7.203(B). Accordingly, I

respectfully dissent.

“Whether this Court has jurisdiction to hear an

appeal is an issue that we review de novo.” Wardell v

Hincka, 297 Mich App 127, 131; 822 NW2d 278 (2012).

We likewise review de novo, as a question of law, the

proper interpretation and application of the court

rules. Haliw v Sterling Hts, 471 Mich 700, 704; 691

NW2d 753 (2005). In Fleet Business Credit, LLC v

Krapohl Ford Lincoln Mercury Co, 274 Mich App 584,

The Supreme Court’s remand orders indicated, in part, that “[i]f the

Court of Appeals determines that the . . . [trial court’s] order[s] [are] not

appealable by right, it may then dismiss . . . [Father’s] claim[s] of appeal

for lack of jurisdiction . . . .” Varran v Granneman, 497 Mich 928 (2014);

Varran v Granneman, 497 Mich 929 (2014).

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591; 735 NW2d 644 (2007), this Court set forth the

governing principles concerning the construction of a

court rule:

The interpretation of court rules is governed by the

rules of statutory interpretation. Court rules should be

interpreted to effect the intent of the drafter, the Michigan

Supreme Court. . . . Clear and unambiguous language is

given its plain meaning and is enforced as written. But

language that is facially ambiguous, so that reasonable

minds could differ with respect to its meaning, is subject to

judicial construction. [Citations and quotation marks

omitted.]

MCR 7.203(A)(1) provides, in part, that this Court

“has jurisdiction of an appeal of right ﬁled by an

aggrieved party” from “[a] ﬁnal judgment or ﬁnal order

of the circuit court . . . as deﬁned in MCR 7.202(6) . . . .”

And MCR 7.202(6)(a)(iii) provides that a ﬁnal judg-

ment or order includes, “in a domestic relations action,

a postjudgment order affecting the custody of a mi-

nor[.]”

(Emphasis added.)

the context of family law, “custody” broadly

means “ ‘[t]he care, control, and maintenance of a child

awarded by a court to a responsible adult.’ ” In re AJR,

496 Mich 346, 358; 852 NW2d 760 (2014) (citation

omitted; alteration in original). In Michigan, two forms

of custody are recognized—“physical” custody and “le-

gal” custody. Id. at 359. “[T]he Child Custody Act draws

a distinction between physical custody and legal cus-

tody: Physical custody pertains to where the child shall

physically ‘reside,’ whereas legal custody is understood

to mean decision-making authority as to important

I agree with the majority that neither of the postjudgment orders at

issue qualify as “the ﬁrst judgment or order that disposes of all the

claims and adjudicates the rights and liabilities of all the parties” for

purposes of MCR 7.202(6)(a)(i).

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decisions affecting the child’s welfare.” Grange Ins Co

of Mich v Lawrence, 494 Mich 475, 511; 835 NW2d 363

(2013), citing MCL 722.26a(7)(a) and (b); see also In re

AJR, 496 Mich at 359.

In relationship to resolving

custody

disputes, a trial court may “[p]rovide for rea-

sonable parenting time of the child by the parties

involved, by the maternal or paternal grandparents, or

by others, by general or speciﬁc terms and conditions.”

MCL 722.27(1)(b). “Visitation,” as considered in the

context of either parenting or grandparenting time,

differs from custody and merely pertains to a person

having a “period of access to a child,” during which the

person “is responsible for the care of the child . . . .”

Black’s Law Dictionary (7th ed); see also MCL 722.27

(custody and custody-related matters); MCL 722.27a

(parenting time); MCL 722.27b (grandparenting time).

There is no dispute that a postjudgment order in a

domestic relations action that actually changes the

legal or physical custody of a minor constitutes an

order “affecting the custody of a minor,” giving rise to

an appeal of right under MCR 7.202(6)(a)(iii). See

Wardell, 297 Mich App at 131-133. In Wardell, this

Court concluded that a postjudgment order that denies

a motion for change of custody also qualiﬁes as an

order that affects the custody of a minor for purposes of

MCR 7.202(6)(a)(iii). Id. at 133. The Wardell panel

reasoned as follows:

Black’s Law Dictionary deﬁnes “affect” as “[m]ost gen-

erally

, to produce an effect on; to inﬂuence in some way.”

Black’s Law Dictionary (9th ed), p 65. In a custody

dispute, one could argue, as plaintiff does, that if the trial

Legal custody concerns the authority to decide such matters as what

school a child will attend or which doctor a child will visit for regular

medical care. See Dailey v Kloenhamer, 291 Mich App 660, 666; 811

NW2d 501 (2011); Bowers v VanderMeulen-Bowers, 278 Mich App 287,

295-296; 750 NW2d 597 (2008).

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court’s order does not change custody, it does not produce

an effect on custody and therefore is not appealable of right.

However, one could also argue that when making determi-

nations regarding the custody of a minor, a trial court’s

ruling necessarily has an effect on and inﬂuences where the

child will live and, therefore, is one affecting the custody of

a minor. Furthermore, the context in which the term is used

supports the latter interpretation. MCR 7.202(6)(a)(iii)

carves out as a ﬁnal order among postjudgment orders in

domestic relations actions those that affect the custody of a

minor, not those that “change” the custody of a minor. As

this Court’s long history of treating orders denying motions

to change custody as orders appealable by right demon-

strates,

[4]

a decision regarding the custody of a minor is of

the utmost importance regardless of whether the decision

changes the custody situation or keeps it as is. We inter-

pret MCR 7.202(6)(a)(iii) as including orders wherein a

motion to change custody has been denied. [Wardell, 297

Mich App at 132-133 (alteration in original).]

There is also a history of this Court treating parenting-time deci-

sions as appealable by application for leave. See, e.g., Young v Punturo

(On Reconsideration), 270 Mich App 553, 554; 718 NW2d 366 (2006)

(“Plaintiff . . . appeals to this Court by leave granted the . . . order . . .

which denied plaintiff’s motion to dismiss a parenting time review

pending in the circuit court.”) (citation omitted); Brown v Loveman, 260

Mich App 576, 578; 680 NW2d 432 (2004) (“Plaintiff appeals by leave

granted from the trial court’s order adopting a parenting time schedule

proposed by defendant . . . .”); DeVormer v DeVormer, 240 Mich App 601,

602; 618 NW2d 39 (2000) (“Defendant appeals by leave granted a circuit

court order denying his motion for parenting time with his son . . . .”).

Further, this Court has treated grandparenting-time decisions, arising

out of motions and not independent complaints, as appealable by

application for leave. See, e.g., Book-Gilbert v Greenleaf, 302 Mich App

538, 539; 840 NW2d 743 (2013) (“[T]he minor child’s paternal grand-

mother appeals by leave granted the family court order denying her

motion for grandparent visitation, MCL 722.27b.”) (punctuation omit-

ted); In re Keast, 278 Mich App 415, 417; 750 NW2d 643 (2008) (The

foster care provider “appeals by leave granted an . . . order allowing the

maternal grandparents of the children . . . visitation with the chil-

dren.”); Bert v Bert, 154 Mich App 208, 211; 397 NW2d 270 (1986) (“The

validity of the trial court’s actions in regard to the petition for grand-

parent visitation are now before this Court on leave granted.”).

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The Wardell decision did not address postjudgment

orders regarding motions for, or to modify, parenting or

grandparenting time. And the Court’s discussion of the

term “affecting” as used in MCR 7.202(6)(a)(iii) was

limited to the framework of a physical custody decision

or, in other words, “a trial court’s ruling [that] neces-

sarily has an effect on and inﬂuences where the child

will live . . . .” Id. at 132.

In accordance with the

conclusion

reached in Wardell, I conclude that the

Supreme Court employed the term “affecting” in MCR

7.202(6)(a)(iii) in order to ensure an appeal of right

with respect to not only postjudgment orders actually

changing the custody of a minor, but also postjudgment

orders denying a motion to change custody. If the

Supreme Court had intended to additionally allow for

an appeal of right in regard to postjudgment

parenting- or grandparenting-time orders, it certainly

would have used language referring to “parenting

time,” “grandparenting time,” or “visitation.”

The trial court’s order here did not have an effect on

or inﬂuence where the child would live; therefore, it

was not a postjudgment order affecting the physical

custody of a minor for purposes of MCR 7.202(6)(a)(iii).

An order that effectively determines the physical-

custody arrangement or statuses of the parties, i.e.,

one that resolves whether a party will now have or

continue having no physical custody, sole physical

custody, or joint physical custody of a minor, would be

an order truly having an effect on or inﬂuencing where

The Court’s examination of the issue in terms of whether an order

affects where a child will “live” indicates that the panel was focused on

physical custody and not legal custody. The Wardell parties had joint

physical and legal custody, which remained in place after the trial court

denied competing motions to change custody. Wardell, 297 Mich App at

129-130. It does not appear that the parties or the trial court in Wardell

were concerned with legal-custody matters.

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a minor will live. The entry of such an order was not

even a remote possibility in the present case in light of

the nature of the postjudgment motion that merely

sought limited grandparenting time.

I next address this Court’s opinion in Rains v Rains,

301 Mich App 313; 836 NW2d 709 (2013). In Rains, the

parties had joint legal and physical custody of their

minor child pursuant to a divorce judgment. The

plaintiff subsequently ﬁled a motion for change of

domicile, seeking to move the child from the Detroit

area to Traverse City. The plaintiff proposed an asso-

ciated modiﬁcation of the defendant’s parenting time

to every other weekend relative to the school year,

constituting a signiﬁcant reduction in the defendant’s

time with the child under the existing joint-custody

arrangement. Id. at 315. The defendant argued that

“the move would turn defendant into a ‘weekend dad’

instead of a full-time dad . . . .” Id. at 318-319. The

defendant ﬁled his own motion, requesting sole physi-

cal custody of the child. Id. at 315. The trial court

denied the plaintiff’s motion for change of domicile,

modiﬁed the parenting-time schedule to a straight

alternating-week format, and implicitly denied the

defendant’s motion to change custody. Id. at 319, 323.

The plaintiff ﬁled an appeal of right, and the defendant

argued “that the appeal should be dismissed for lack of

jurisdiction because the trial court’s order denying

plaintiff’s motion for change of domicile was not a ﬁnal

order appealable as of right.” Id. at 319-320.

Referring to and quoting the Wardell opinion, the

Rains panel stated that “we must ask whether the trial

court’s order denying plaintiff’s motion for a change of

domicile ‘inﬂuences where the child will live,’ regard-

less of whether the trial court’s ultimate decision keeps

the custody situation ‘as is.’ ” Rains, 301 Mich App at

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321, citing and quoting Wardell, 297 Mich App at

132-133. The Court noted that, “[u]nder Wardell, a

trial court need not change a custodial arrangement in

order for its decision to affect custody.” Rains, 301 Mich

App at 323.

The Court further stated and held:

Plaintiff had hoped to move the child to Traverse City,

where he would reside primarily with her and see defen-

dant every other weekend. The trial court’s decision not to

allow such a move to take place necessarily inﬂuenced

where the child would live. Therefore, the fact that the

parties were left in status quo as a result of the trial

court’s order is not dispositive.

Further, as in Thurston [v Escamilla, 469 Mich 1009

(2004)] and as further discussed below, the parties in this

case enjoyed joint legal and physical custody of the child

and there was an established joint custodial environment

with both parents. If a change in domicile will substan-

tially reduce the time a parent spends with a child, it

would potentially cause a change in the established cus-

todial environment. Therefore, we conclude that plaintiff

has properly invoked appellate jurisdiction as of right.

Wardell has provided an expansive deﬁnition of “affecting

the custody of a minor.” Additionally, in Thurston our

Supreme Court indicated that an order on a motion for

change of domicile that could affect an established joint

custodial environment is appealable by right. [Rains, 301

Mich App at 323-324 (citations omitted).]

[7]

To be clear, the Court in Wardell made the observation later referred

to by the panel in Rains in the context of determining whether the

denial of a motion to change custody affected the custody of a minor; the

Wardell Court was not speaking in general terms about a decision

resolving any motion in a domestic relations action, but rather a

custody-based motion.

I note that both the Wardell and Rains panels included a footnote

indicating that even if they had determined that the orders were not

appealable of right, they would have nevertheless, in the exercise of

their discretion and the interest of judicial economy, treated the claims

of appeal as applications for leave, granted leave, and then proceeded to

address the substantive issues. Rains, 301 Mich App at 320 n 2; Wardell,

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As reﬂected in this passage, the Rains panel con-

cluded that the plaintiff was entitled to an appeal of

right because the trial court’s order on the plaintiff’s

motion to change domicile inﬂuenced where the child

would live and because the prospective change in

domicile would have substantially reduced the defen-

dant’s time with the child, potentially causing a change

in the established custodial environment. I note that

Rains, like Wardell, was focused on physical custody.

The unremarkable principle that emanates from Rains

is that while a motion may be framed as one seeking a

change of domicile, if granting the motion would effec-

tively result in a change of custody or the established

custodial environment, the trial court’s postjudgment

order either granting or denying the motion is appeal-

able of right under MCR 7.203(A)(1) and MCR

7.202(6)(a)(iii).

The same can be said when a parent or

grandparent

ﬁles a motion for, or to modify, parenting

or grandparenting time, if indeed the nature of the

request is such that granting the motion would effec-

tively award custody to a party or alter the custodial

arrangement or environment.

See Stevens

v Stevens,

297 Mich App at 133 n 1. An argument can be made that the substantive

analysis and statements on jurisdiction were rendered nonbinding obiter

dicta given the inclusion of these footnotes. See People v Peltola, 489 Mich

174, 190 n 32; 803 NW2d 140 (2011) (“Obiter dicta are not binding

precedent. Instead, they are statements that are unnecessary to deter-

mine the case at hand and, thus, ‘lack the force of an adjudication.’ ”)

(citation omitted).

I do appreciate that an “established custodial environment” may

differ from a speciﬁc custody award set forth in an order, e.g., there can

be an order of joint physical custody, yet the established custodial

environment could be with just one of the parents. See MCL

722.27(1)(c); Berger v Berger, 277 Mich App 700, 707; 747 NW2d 336

(2008).

Of course, if a grandparent effectively seeks custody, it would be

necessary for the grandparent to satisfy the criteria in MCL 722.26c

regarding actions for custody by third persons.

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86 Mich App 258, 270; 273 NW2d 490 (1978) (“When

the requested [visitation] modiﬁcation amounts to a

change in the established custodial environment, the

trial court should not grant such a modiﬁcation unless

it is persuaded by clear and convincing evidence that

the change would be in the best interests of the child.”).

Once again, the trial court’s postjudgment order

here did not inﬂuence where the minor child would

live, and the order did not change, either directly or

effectively, the legal or physical custody arrangement;

Father retained sole legal and physical custody of the

child. And the postjudgment motion for grandparent-

ing time did not request, either directly or effectively, a

change of legal or physical custody relative to the child,

so such a change was not even a possibility.

The Supreme Court’s order in Thurston, 469 Mich

1009, which was referred to in Rains, does not add

much to the analysis, in that it essentially mirrors

Rains. The Thurston order provided:

In lieu of granting leave to appeal, the . . . order of the

Court

of Appeals is vacated, and the case is remanded to

that Court for plenary consideration. MCR 7.302(G)(1).

The divorce judgment awarded joint legal and physical

custody to both parties, and there was, in fact, an estab-

lished joint custodial environment under which defendant

had nearly daily contact with the children. The . . . order

of the Saginaw Circuit Court granting plaintiff’s motion

for change of domicile does not mention a change of

custody, but by permitting the children to be removed by

plaintiff to the State of New York, the order is one affecting

the custody of a minor . . . . Therefore, the . . . order is

ﬁnal, and appealable by right. [Thurston, 469 Mich 1009

(quotation marks omitted).]

Despite the failure of the plaintiff in Thurston to

frame

the motion as one that also sought a change of

custody, an appeal of right still arose because the trial

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court’s order allowing the change of domicile to New

York effectively changed the custody arrangement. In

no way do Thurston or Rains suggest that any and all

postjudgment orders on motions for change of domicile

are appealable of right; it is only when a domicile

motion has the potential of effectively changing cus-

tody or the established custodial environment that an

appeal of right is provided. The majority posits that

“[i]n Thurston, . . . despite the fact that the trial court’s

order that granted the mother’s motion for change in

domicile did not alter the award of joint legal and

physical custody, the Supreme Court still held that the

order was one affecting the custody of a minor.” While

the short order in Thurston may not be entirely clear,

I conclude, contrary to the majority’s construction of

the order, that the Thurston Court held that the order

changing domicile effectively altered custody. I reach

this conclusion given the Court’s references to the

existing “joint” custody award, the “joint” custodial

environment, the failure of the plaintiff to “mention a

change of custody,” and the fact that the defendant had

nearly daily contact with the children before the

change of domicile. Thurston, 469 Mich 1009 (empha-

sis added). Considering that the Thurston plaintiff was

moving to New York State, it is doubtful that the

existing custody award was not effectively changed.

I note that a similar situation was recently addressed in Sulaica v

Rometty, 308 Mich App 568, 576; 866 NW2d 838 (2014), wherein this

Court, after reviewing Rains, Wardell, and Thurston held, consistently

with my analysis, as follows with respect to a jurisdictional challenge

under MCR 7.202(6)(a)(iii):

In this case [involving an underlying order of joint physical

custody], the trial court’s orders affected the child’s domicile and

substantially reduced the amount of time plaintiff can spend with

the child as a result of the child’s move from Michigan to Florida.

Accordingly, we ﬁnd that both of the orders from which plaintiff

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As stated earlier, in this case Father’s sole legal and

physical custody of the child was not subject to possible

divestment or alteration in the lower court proceedings

in this case.

The crux of the majority’s position on the issue

regarding whether Father has an appeal of right is as

follows:

A parent has a fundamental right, one that is protected by

the

Due Process Clause of the Fourteenth Amendment, to

make decisions concerning the care, custody, and control

of his or her child. It cannot be disputed that a

grandparenting-time order interferes with a parent’s fun-

damental right to make decisions concerning the care,

custody, and control of a child. Although a parent has

denied grandparenting time, a grandparent may obtain an

order for grandparenting time if the grandparent proves

by a preponderance of the evidence that the denial of

grandparenting time will create a substantial risk of harm

to the child and if the trial court ﬁnds by a preponderance

of the evidence that a grandparenting-time order is in the

child’s best interests. Because a grandparenting-time or-

der overrides a parent’s legal decision to deny grandpar-

enting time, a grandparenting-time order interferes with

a parent’s fundamental right to make decisions concern-

ing the care, custody, and control of his or her child. Thus,

when a parent has legal custody of the child, an order

regarding grandparenting time is a postjudgment order

affecting the custody of a minor. MCR 7.202(6)(a)(iii).

Because Father had legal custody of [the child], we hold

that the . . . order was a “ﬁnal judgment” or “ﬁnal order”

under MCR 7.202(6)(a)(iii) and, therefore, appealable by

right, MCR 7.203(A)(1). [Citations omitted.]

I fully agree with the majority that a parent has a

fundamental

constitutional right, under due process

appeals were orders “affecting the custody of a minor” and that

they are appealable as of right. [Citations omitted; emphasis

added.]

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principles, to make decisions regarding the care, cus-

tody, and control of his or her child, and that right has

heightened protection from governmental interference.

In re Sanders, 495 Mich 394, 409; 852 NW2d 524

(2014). If I understand its analysis correctly, the major-

ity is concluding that a grandparenting-time order

entered against a parent’s wishes interferes with or

affects the parent’s fundamental constitutional right to

make decisions regarding the care of his or her child,

which equates to interfering with or affecting the

parent’s legal custody for purposes of MCR

7.202(6)(a)(iii). Because “legal” custody “is understood

to mean decision-making authority as to important

decisions affecting [a] child’s welfare,” Grange Ins Co,

494 Mich at 511, the majority is necessarily of the view

that the decision of a parent to disallow grandparent-

ing time constitutes an important decision affecting a

child’s welfare. Therefore, under the majority’s reason-

ing, the postjudgment order here affected Father’s

legal custody of the child, i.e., his decision-making

authority, considering that the order awarded grand-

parenting time contrary to his decision on the matter.

I surmise that part of the majority’s logic in deciding

that

a postjudgment, grandparenting-time order is one

affecting constitutional rights and legal custody is

grounded in the fact that a grandparent is an outside

or third party, not simply an opposing parent.

I respectfully disagree with the majority’s analysis,

because it reﬂects an overly broad construction of MCR

7.202(6)(a)(iii) that is not consistent with the language

of the court rule, thereby undermining our Supreme

Although not expressly discussed by the majority, it would appear,

given the majority’s analysis and reasoning and its acceptance of the

principles in Wardell and Rains, that it would have allowed Debora and

James Granneman an appeal of right had the trial court denied their

motion for grandparenting time.

2015] V

ARRAN V

RANNEMAN

637

ISSENTING

PINION BY

URPHY

, J.

Court’s intent. It is well accepted and beyond reasonable

dispute that there are three custodial classiﬁcations

related to both the physical and legal custody of a

child—(1) no custody, (2) sole custody, and (3) joint

custody. See MCL 722.27(1)(a) (stating that a court may

“[a]ward the custody of the child to 1 or more of the

parties involved”); MCL 722.26a (concerning joint cus-

tody). Keeping this in mind, when MCR 7.202(6)(a)(iii)

speaks of a postjudgment order “affecting the custody of

a minor,” it is necessarily concerned solely with orders

that address motions that had effectively sought to

change custody, because the custody of a minor would

not be affected in deciding motions unrelated to altering

a custodial classiﬁcation and arrangement. If a parent

has sole legal custody, and a motion is ﬁled for straight-

forward parenting or grandparenting time, the post-

judgment order resolving the motion cannot be an order

“affecting the custody of a minor” under MCR

7.202(6)(a)(iii). This is true given that “custody” was not

in dispute and could only have been affected had a

possibility existed that the parent’s sole legal custody

would be modiﬁed in a manner that left the parent with

“no” or “joint” legal custody. When, in light of the nature

of a motion ﬁled by a party, a postjudgment dispute will

deﬁnitively result in no change of custody, as between

the three recognized custodial classiﬁcations, the ulti-

mate order will simply never affect custody.

The majority is advocating in favor of an appeal of

right, not with respect to postjudgment orders affect-

ing custody as set forth in MCR 7.202(6)(a)(iii), but in

regard to postjudgment orders affecting the exercise of

custodial rights, affecting the parameters of earlier

custody awards, or affecting decisions made in rela-

tionship to having custody of a child, which do not

reach the level of potentially changing custody, i.e.,

affecting the custody of a child. The majority’s reason-

638 312 M

ICH

591 [Oct

ISSENTING

PINION BY

URPHY

, J.

ing thus opens a Pandora’s box for litigants to argue

that an appeal of right exists in cases intended to be

appealable only by application for leave, merely be-

cause custody-related rights, parameters, and deci-

sions, but not custody changes, were litigated.

While

the

postjudgment order in this case may have affected

or interfered with Father’s decision to disallow grand-

parenting time, it did not affect or potentially affect his

legal custody of the minor. Father retained sole legal

custody of his child, and he was never in danger of

losing sole legal custody.

Again, MCR 7.202(6)(a)(iii) only mentions custody;

it does not refer to parenting time, grandparenting

time, or visitation. Therefore, I am convinced that our

Supreme Court did not intend to extend appeals of

right to postjudgment visitation orders or any other

orders that did not address efforts to change custody.

In sum, I conclude, in the simplest of terms, that

postjudgment

custody decisions are appealable of right

under MCR 7.203(A)(1) and MCR 7.202(6)(a)(iii), and

that postjudgment grandparenting- and parenting-

time decisions are appealable by applications for leave

to appeal under MCR 7.203(B). I would therefore

dismiss Father’s appeal for lack of jurisdiction under

MCR 7.203(A). Accordingly, I respectfully dissent.

Under the majority’s analysis, any and all subsequent motions

regarding any type of modiﬁcation to the existing grandparenting-time

award will be appealable of right.

The majority’s opinion could be interpreted as suggesting that had

this case simply involved a parent seeking parenting time, an applica-

tion for leave would have been required. I am not prepared to recognize

a dichotomy wherein grandparents seeking grandparenting time have

an appeal of right if their postjudgment motion is denied, but the only

avenue for relief as to a parent who is denied a request for parenting

time is an application for leave. This would improperly elevate the

appellate rights of grandparents relative to a minor over the rights of

the minor’s parents.

2015] V

ARRAN V

RANNEMAN

639

ISSENTING

PINION BY

URPHY

, J.

FRANCESCUTTI v FOX CHASE CONDOMINIUM ASSOCIATION

Docket No. 323111. Submitted October 1, 2015, at Detroit. Decided

October 15, 2015, at 9:00 a.m.

Michael J. Francescutti brought an action in the Macomb Circuit

Court against Fox Chase Condominium Association after he

slipped and fell on an icy, snow-covered sidewalk in a common

area of the condominium development at which he co-owned a

condominium. Plaintiff severely injured his hand and wrist as a

result of the fall. Plaintiff alleged negligence and breach of

contract, and defendant moved for summary disposition. The

court, James M. Biernat, Jr., J., treated plaintiff’s claim as

naming premises liability as the basis for relief, and the court

granted defendant’s motion for summary disposition. Plaintiff

appealed.

The Court of Appeals held:

1. A condominium owner is a tenant in common with other

condominium owners for purposes of the common areas of a

condominium development. However, use of “tenant in common”

to describe plaintiff’s relationship with the common areas of his

condominium development does not transform plaintiff into a

“tenant,” as that term is understood. That is, plaintiff’s status as

a tenant in common does not make defendant a “lessor” for

purposes of MCL 554.139, the statute requiring a lessor to

maintain its property in reasonable repair.

2. Defendant owed no duty to plaintiff under the principles of

premises liability because plaintiff was neither an invitee nor a

licensee for purposes of those principles; plaintiff was a co-owner

of the common areas of the condominium development where he

was injured.

3. Plaintiff’s breach of contract claim fails because he cannot

identify any contractual language giving rise to a duty somehow

breached by defendant from which plaintiff’s injuries arose. Defen-

dant’s snow removal policy was not a contract between the parties

that placed some duty on defendant to protect plaintiff from injury

in the common areas of the condominium development.

Afﬁrmed.

640 312 M

ICH

640 [Oct

ROPERTY —

ONDOMINIUMS —

REMISES

IABILITY —

TATUS OF A

ONDOMINIUM

WNER

A condominium owner is a tenant in common with the other

condominium owners of the common areas of a condominium

development; the owner of a condominium is not an invitee or

licensee for purposes of a premises liability claim for injuries that

occurred in a common area of the condominium development.

Lippitt O’Keefe Gornbein, PLLC (by Daniel J. Mc-

Carthy), for plaintiff.

Bowen, Radabaugh & Milton, PC (by Thomas R.

Bowen and Mary Rourke Benedetto), for defendant.

Before: G

LEICHER

, P.J., and S

AWYER

and M

URPHY

, JJ.

AWYER

, J. Plaintiff appeals from the trial court’s

order granting summary disposition to defendant Fox

Chase Condominium Association on plaintiff’s slip-

and-fall claim.

We afﬁrm.

Plaintiff,

a professional magician, is the co-owner of

a condominium unit in defendant’s Fox Chase devel-

opment. One evening in February 2013 at approxi-

mately 11:00 p.m., plaintiff was walking his dog when

he slipped and fell on an icy, snow-covered sidewalk

located in a common area of the development. Plaintiff

alleges that as a result of the fall, he suffered severe

injuries to his hand and wrist, causing severe pain and

suffering and interfering with his ability to work as a

magician. Plaintiff ﬁled this action alleging negligence

and breach of contract. Defendant moved for summary

disposition, arguing that the open and obvious danger

Defendant Fox Chase is the condominium association formed under

the Condominium Act, MCL 559.101 et seq., while defendant Association

Management, Inc. (AMI), is the management company hired by defen-

dant Fox Chase to manage the Fox Chase complex. The claims against

defendant AMI were previously dismissed by stipulation of the parties.

Accordingly, we shall refer to a singular defendant, Fox Chase.

2015] F

RANCESCUTTI V

HASE

ONDO

’

641

doctrine precluded the negligence claim, and that there

was no contractual duty to remove the snow and ice

from the common areas on which plaintiff could base a

contract claim. The trial court agreed and granted

defendant’s motion for summary disposition.

Plaintiff ﬁrst argues that the trial court erred in

dismissing the negligence claim because defendant

had a duty under MCL 554.139 to maintain the prop-

erty in reasonable repair. We disagree. MCL 554.139

imposes such a duty on the lessor of land. Defendant is

not a lessor of land leased to plaintiff. Plaintiff co-owns

a condominium unit in the Fox Chase condominium

development. Plaintiff attempts to employ a semantic

sleight of hand by noting that under MCL 559.136 of

the Michigan Condominium Act, he is a tenant in

common of the common areas of the development. And

because that makes him a “tenant,” plaintiff posits

that that makes defendant a “lessor” of the land. It, of

course, does no such thing. Defendant does not lease

the common areas to plaintiff under a lease, and

therefore, defendant is not a “lessor” under MCL

554.139. That statute is not applicable to this case.

Next, we turn to plaintiff’s argument that the trial

court improperly dismissed his claim that defendant

was negligent for failing to exercise ordinary care.

Notably, the trial court treated plaintiff’s negligence

claim as one of premises liability rather than general

negligence. Plaintiff begins by agreeing with the trial

court that his status was one of invitee and then

discusses the duty owed to an invitee. Defendant, on

the other hand, argues that plaintiff should be consid-

ered a licensee, to whom a lesser duty is owed. But

neither the parties nor the trial court provide any

authority for the proposition that the status of an

owner of a condominium unit is either an invitee or a

642 312 M

ICH

640 [Oct

licensee with respect to the common areas of the

development. Nor were we able to ﬁnd any such

authority. But this question can easily be resolved by

looking at the deﬁnitions of those terms. “A ‘licensee’ is

a person who is privileged to enter the land of another

by virtue of the possessor’s consent,” while “[a]n ‘invi-

tee’ is ‘a person who enters upon the land of another

upon an invitation . . . .’ ”

The key to the resolution of this case is the phrase in

both

deﬁnitions, “the land of another.” Plaintiff did not

enter on “the land of another.” Plaintiff is, by his own

admission, a co-owner of the common areas of the

development. Plaintiff’s brief acknowledges that the

condominium owners are co-owners as tenants in com-

mon of the common areas of the development. And

because plaintiff is neither a licensee nor an invitee,

there was no duty owed to plaintiff by defendant under

premises liability. Rather, any duty owed to plaintiff by

defendant must arise either from principles of general

negligence or breach of contract.

As for a general negligence claim, while plaintiff’s

complaint merely labeled his claim as one of “negli-

gence,” rather than speciﬁcally one of premises liabil-

ity, the trial court concluded that the substance of the

allegations sounded in premises liability. And in read-

ing the complaint, we agree. In any event, plaintiff’s

arguments on appeal focus on his misplaced statutory

analysis as well as the trial court’s premises liability

analysis, and in particular, the applicability of the open

and obvious doctrine in this case. Plaintiff does not

make out an argument under general negligence. That

is, although calling his claim one of general negligence,

Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596-597;

614 NW2d 88 (2000), quoting Wymer v Holmes, 429 Mich 66, 71 n 1; 412

NW2d 213 (1987) (emphasis added).

2015] F

RANCESCUTTI V

HASE

ONDO

’

643

plaintiff only argues the claim, with the exception of

the alleged statutory violation, in the context of prem-

ises liability.

Turning to the other basis for plaintiff’s claim that

defendant owed a duty to him, plaintiff did plead a

breach of contract claim against defendant. The trial

court granted summary disposition in favor of defen-

dant on the contract claim because plaintiff failed to

identify any speciﬁc contractual language in support of

his breach of contract claim. Indeed, the trial court

stated that plaintiff’s contract claim was “nothing more

than a restatement of his premises liability claim.”

Plaintiff continues this shortcoming on appeal. Plain-

tiff directs us to no contract language that would

establish a contractual duty, and thus, plaintiff can

show no breach of duty. Plaintiff only points to a

document that defendant sent out regarding its snow

removal policy. Plaintiff cannot produce a contract that

actually creates a duty, much less provide any evidence

that any such duty was breached. In fact, given plain-

tiff’s cursory treatment, it is not at all apparent that

plaintiff has pursued this issue on appeal. That is, it

would be reasonable to conclude that plaintiff has

abandoned that issue. In any event, the trial court

properly dismissed the breach of contract claim.

Afﬁrmed. Defendant may tax costs.

LEICHER

, P.J., and M

URPHY

, J., concurred with

AWYER

, J.

644 312 M

ICH

640 [Oct

PEOPLE v TUCKER

Docket No. 322151. Submitted July 7, 2015, at Detroit. Decided

October 15, 2015, at 9:05 a.m. Leave to appeal sought.

Anthony Gestail Tucker pleaded no contest in the Oakland Circuit

Court to felonious assault and misdemeanor domestic violence. At

sentencing the court, Rae Lee Chabot, J., informed defendant he

was required to register as a sex offender because of the recapture

provision, MCL 28.723(1)(e), in the Sex Offenders Registration

Act (SORA), MCL 28.721 et seq. The recapture provision requires

a defendant to register under SORA when he or she is convicted

of a felony offense on or after July 1, 2011, if the defendant was

previously convicted of a listed offense for which he or she was not

required to register. In this case, when defendant was convicted of

felonious assault in 2013, the recapture provision in SORA

applied to defendant’s 1990 conviction of assault with intent to

commit criminal sexual conduct involving penetration because

the 1990 crime was a listed offense. SORA had not yet been

enacted at the time of defendant’s 1990 conviction, so defendant

was not required to register. Defendant ﬁled a motion to correct

an invalid sentence to have himself removed from the sex

offender registry. He argued that requiring him to register under

SORA violated the Ex Post Facto Clauses of the federal and state

constitutions. Defendant also argued that SORA’s provisions—

speciﬁcally, the in-person reporting requirements and the restric-

tions created by student safety zones—violated the Cruel and

Unusual Punishment Clause of the federal Constitution and the

Cruel or Unusual Punishment Clause of the state Constitution.

The court denied defendant’s motion. Defendant appealed by

delayed leave granted.

The Court of Appeals held:

1. The recapture provision in SORA does not violate the Ex

Post Facto Clauses of the federal or state constitutions. The

recapture provision did not change the penalty for defendant’s

1990 conviction of sexual assault. In fact, the recapture provision

had no effect at all on the previous conviction. The recapture

provision attached consequences to defendant’s 2013 felony con-

viction because of the 1990 conviction, but it did not increase the

2015] P

EOPLE V

UCKER

645

penalty for the 1990 conviction, it did not allow for conviction on

less evidence, it did not criminalize conduct that was not criminal

at the time it was committed, and it did not make the offense

more serious. In this case, the recapture provision enhanced the

penalty for his 2013 felony conviction because of the 1990

conviction, but the recapture provision did not in any way disturb

the penalty for the 1990 conviction.

2. Compliance with SORA’s in-person reporting requirements

and the prohibitions related to student safety zones does not

constitute punishment. Whether a statute imposes punishment

requires the reviewing court to conduct a two-step inquiry into

the statute’s content. First, the reviewing court must determine

whether the language and structure of the statute indicate that

the Legislature intended the statute to be a punishment or a civil

remedy. Second, if the Legislature intended to enact a civil

remedy, the reviewing court must determine whether the conse-

quences of the statute are so punitive in purpose or effect as to

negate the Legislature’s intent to create a civil remedy. In this

case, there was no dispute that the Legislature intended SORA to

be a civil remedy. Defendant argued, however, that complying

with SORA requirements concerning student safety zones and

in-person reporting was so punitive in purpose or effect that it

negated the civil purpose intended by the Legislature. To deter-

mine whether a statutory scheme is so punitive in purpose or

effect that it results in punishment requires an examination of

seven factors enunciated in Kennedy v Mendoza-Martinez, 372

US 144 (1963).

3. Requiring a defendant to comply with SORA’s in-person

reporting requirements and SORA’s prohibitions related to

student safety zones does not constitute punishment. The seven

factors in Mendoza-Martinez are (1) whether a sanction imposed

by the statute involves an afﬁrmative disability or restraint, (2)

whether the sanction has historically been regarded as a pun-

ishment, (3) whether the sanction requires scienter, (4) whether

the sanction promotes retribution and deterrence, (5) whether

the sanction applies to conduct that is already a crime, (6)

whether the sanction can be assigned to a rationally connected

alternative purpose, and (7) whether the sanction is excessive

compared to the alternative purpose. After the Court’s review of

ﬁve of the seven factors in Mendoza-Martinez (the Court did not

examine the role of scienter or the relationship between SORA

registration and criminal conduct), the Court concluded that

although a few of the factors weighed toward ﬁnding that SORA

requirements constituted punishment, the majority of factors

646 312

ICH

645 [Oct

did not. Because the Legislature clearly intended SORA to

provide the civil remedy of protecting the welfare of the general

public from the danger posed by convicted sex offenders, and

because the factors in Mendoza-Martinez did not favor a ﬁnding

of punishment, the Court held that SORA did not constitute

punishment and could not, therefore, constitute cruel or un-

usual punishment.

4. Compliance with the prohibitions related to student safety

zones and the requirements of in-person reporting results in an

afﬁrmative disability or restraint under the ﬁrst factor of

Mendoza-Martinez. Therefore, this factor weighs in favor of

ﬁnding that compliance with SORA’s student safety zone prohi-

bitions and in-person reporting is punishment. However, other

factors weigh more heavily against ﬁnding that in-person report-

ing and the restrictions related to student safety zones are

punishment.

5. The prohibition against living, working, or loitering in a

student safety zone resembles the historical punishment known

as banishment, and the demands of in-person reporting are

comparable to the conditions of supervised probation or parole.

This Mendoza-Martinez factor weighs in favor of ﬁnding that

compliance with SORA compares with practices historically con-

sidered punishments. However, factors in favor of ﬁnding that

SORA requirements constitute a civil remedy outweigh the fac-

tors in favor of ﬁnding that SORA requirements constitute

punishment.

6. Although the foremost purpose of student safety zones is

deterrence, a traditional aim of punishment, student safety zones

do not promote retribution. And to the extent that SORA’s

reporting requirements constitute punishment, the requirements

do not promote deterrence or retribution.

7. Student safety zones and in-person reporting bear a ratio-

nal connection to the nonpunitive purpose of protecting the

public’s welfare.

8. The Legislature is authorized to enact statutes that cat-

egorically apply to sex offenders without regard to the individual

circumstances of the offender or the offense. Therefore, that the

prohibition against living in a student safety zone applies to

offenders whose crimes did not involve children does not make

the restrictions imposed by student safety zones excessive. Nor

are the onerous in-person reporting requirements excessive. The

reporting requirements are reasonably designed to ensure that

the information on the registry is accurate and up-to-date.

Afﬁrmed.

2015] P

EOPLE V

UCKER

647

1. S

FFENDERS

EGISTRATION

CT —

ONSTITUTIONALITY —

EPORTING

EQUIREMENTS

In-person reporting, with the required frequency and for the

length of time determined by the offense of which a defendant

was convicted, does not constitute a punishment; the express

purpose of the Sex Offenders Registration Act (SORA) is to

protect public safety and the reporting requirements are not so

punitive in either purpose or effect so as to negate the civil

purpose of SORA; although in-person reporting requirements

impose afﬁrmative restraints and resemble conditions of super-

vised probation or parole, the reporting requirements do not

necessarily promote deterrence or retribution, are not excessive,

and are rationally related to the nonpunitive purpose of protect-

ing the public by ensuring that the sex offender registry is

accurate and up-to-date; because SORA reporting requirements,

while burdensome, do not constitute punishment, the require-

ments cannot constitute cruel or unusual punishment.

2. S

FFENDERS

EGISTRATION

CT —

ONSTITUTIONALITY —

TUDENT

AFETY

ONES

The prohibitions found in the Sex Offenders Registration Act

(SORA) provisions regarding student safety zones are not so

punitive in purpose or effect as to negate the Legislature’s

stated intent that SORA protect the public safety; although

student safety zones impose afﬁrmative restraints, resemble

historical punishments, and promote deterrence, they are not

excessive, and they are rationally connected to the nonpunitive

purpose of public safety; the Legislature is authorized to enact a

statutory scheme that categorically prohibits all sex offenders

from living, working, or loitering near school property; the

statutory law regarding student safety zones applies to all sex

offenders under SORA, and no individualized determination of

the future danger an offender might pose is necessary; because

student safety zones do not constitute punishment, enforcement

of the proscriptions related to student safety zones does not

constitute cruel or unusual punishment.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Jessica R. Cooper, Prosecut-

ing Attorney, Thomas R. Grden, Chief, Appellate Divi-

sion, and Tanya L. Nava, Assistant Prosecuting

Attorney, for the people.

648 312 M

ICH

645 [Oct

State Appellate Defender (by Jessica L. Zimbelman)

for defendant.

Amicus Curiae:

Soﬁa V. Nelson, Miriam J. Aukerman, and Kary L.

Moss for the American Civil Liberties Union.

Before: H

OEKSTRA

, P.J., and J

ANSEN

and M

ETER

, JJ.

URIAM

. Defendant appeals by delayed leave

granted

his no-contest plea convictions of felonious

assault, MCL 750.82, and domestic violence, MCL

750.81(2). Defendant was sentenced as a second-

offense habitual offender, MCL 769.10, to 119 days,

time served, for the felonious assault conviction, and

93 days, time served, for the domestic violence convic-

tion. Defendant was also required to register as a sex

offender under the Sex Offenders Registration Act

(SORA), MCL 28.721 et seq. We afﬁrm.

I. BACKGROUND

Defendant was convicted in 1990 of assault with

intent

to commit criminal sexual conduct involving

penetration, MCL 750.520g(1). He was sentenced to

three years’ probation and was discharged in 1993. On

October 1, 1995, SORA went into effect. See 1994 PA

295. Although assault with intent to commit criminal

sexual conduct involving penetration is a listed offense

requiring registration, MCL 28.722(w)(iv), defendant

was not required to register because he was discharged

from probation before the registry went into effect,

MCL 28.723(1). In 2011, the Legislature amended

See People v Tucker, unpublished order of the Court of Appeals,

entered July 3, 2014 (Docket No. 322151).

2015] P

EOPLE V

UCKER

649

SORA, 2011 PA 17, to include the following “recapture”

provision, codiﬁed at MCL 28.723(1)(e):

(1) Subject to subsection (2), the following individuals

who are domiciled or temporarily reside in this state or

who work with or without compensation or are students in

this state are required to be registered under this act:

* * *

(e) An individual who was previously convicted of a

listed offense for which he or she was not required to

felony on or after July 1, 2011.

On October 8, 2013, defendant pleaded no contest to

felonious

assault, MCL 750.82, and domestic violence,

MCL 750.81(2), under a Cobbs

agreement by which he

would be sentenced to time served. At sentencing, the

trial court told defendant that he would be required to

and

gave

defendant the opportunity to withdraw his plea.

Defendant declined. Defendant was required to regis-

ter for life as a Tier III offender.

Defendant then ﬁled a motion to correct an invalid

sentence to have himself removed from the SORA

registry, arguing that the registration requirement

violated the state and federal Ex Post Facto Clauses,

the federal Cruel and Unusual Punishment Clause,

and the state Cruel or Unusual Punishment Clause.

The trial court denied the motion and determined that

defendant was required to register under the terms of

SORA.

People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).

Defendant was required to register under MCL 28.723(1)(e) because

of his felonious assault conviction, which is a felony. See MCL 750.82(1).

His domestic violence conviction is a misdemeanor. MCL 750.81(2).

650 312 M

ICH

645 [Oct

II. EX POST FACTO CLAUSES

Defendant ﬁrst contends that the requirement that

he register as a sex offender under SORA violates the

Ex Post Facto Clauses of the state and federal consti-

tutions. We disagree.

We review de novo issues of constitutional law.

People v Temelkoski, 307 Mich App 241, 246; 859 NW2d

743 (2014), lv gtd 498 Mich 942 (2015). The United

States and Michigan Constitutions prohibit ex post

facto laws. People v Callon, 256 Mich App 312, 316-317;

662 NW2d 501 (2003), citing US Const, art I, § 10;

Const 1963, art 1, § 10. This Court has declined to

interpret the Ex Post Facto Clause of the Michigan

Constitution as affording broader protection than its

federal counterpart. Callon, 256 Mich App at 317. All

laws that violate ex post facto protections exhibit the

same two elements: “(1) they attach legal consequences

to acts before their effective date, and (2) they work to

the disadvantage of the defendant.” Id. at 318. “The

critical question [for an ex post facto violation] is

whether the law changes the legal consequences of acts

completed before its effective date.” Id. (quotation

marks and citations omitted; alteration in original).

This Court has identiﬁed four circumstances that im-

plicate the Ex Post Facto Clauses:

A statute that affects the prosecution or disposition of

criminal

cases involving crimes committed before the

effective date of the statute violates the Ex Post Facto

Clauses if it (1) makes punishable that which was not, (2)

makes an act a more serious criminal offense, (3) increases

the punishment, or (4) allows the prosecution to convict on

less evidence. [Riley v Parole Bd, 216 Mich App 242, 244;

548 NW2d 686 (1996).]

In this case, the third circumstance is at issue. Defen-

dant

argues that his registration as a sex offender has

2015] P

EOPLE V

UCKER

651

increased the punishment for his 1990 conviction. The

prosecution counters that MCL 28.723(1)(e) cannot

constitute an ex post facto law because it attaches legal

consequences to defendant’s 2013 felony conviction,

not his 1990 conviction.

We ﬁnd caselaw on recidivist statutes helpful in

answering this question. As a general matter, “ ‘recidi-

vist statutes . . . do not change the penalty imposed for

the earlier conviction.’ ” People v Reichenbach, 459

Mich 109, 124-125; 587 NW2d 1 (1998), quoting Nich-

ols v United States, 511 US 738, 747; 114 S Ct 1921;

128 L Ed 2d 745 (1994). Callon is instructive. The

defendant in Callon was convicted of impaired driving,

MCL 257.625(3), in 1993. Callon, 256 Mich App at 315.

On October 9, 1999, he was arrested for “operating a

vehicle under the inﬂuence of intoxicating liquor or

while having a blood alcohol content of 0.10 grams or

more per 100 milliliters of blood (OUIL/UBAL), MCL

257.625(1).” Callon, 256 Mich App at 314. During the

period between the two offenses, the Legislature

amended MCL 257.625(23)(a) so that a previous

impaired-driving conviction could be used to enhance a

subsequent OUIL/UBAL conviction. Id. at 315-316.

This Court rejected the defendant’s ex post facto chal-

lenge to this enhancement, holding that the amend-

ment to the statute had not altered the legal conse-

quences of his 1993 conviction, but rather, it altered

the legal consequences of his 1999 conviction. Id. at

318. This Court explained, “[T]he conduct for which

defendant is being punished is driving while intoxi-

cated or with an unlawful blood alcohol level after

having fair notice that the statute had been amended

to permit enhancement of an OUIL/UBAL conviction

with a prior impaired-driving conviction.” Id. at 319.

This Court concluded, “Simply put, there is no retro-

active application of the law where a prior conviction is

652 312 M

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645 [Oct

used to enhance the penalty for a new offense commit-

ted after the effective date of the statute.” Id. at 321.

In this case, although MCL 28.723(1)(e) is not a

traditional recidivist statute, the reasoning of Callon

applies nonetheless. Defendant’s registration was not

required until he committed another felony in 2013.

His 1990 conviction was used to enhance the conse-

quences of his 2013 felony, which was committed after

the effective date of the statute. This would be a

different case if on July 1, 2011, the effective date of

MCL 28.723(1)(e), defendant had been immediately

required to register as a sex offender because of his

1990 conviction alone. Rather, defendant is required to

dant’s registration in this case is inextricably tied to

his 1990 conviction, but this does not lead to the

conclusion that new legal consequences have been

added to that conviction. In Callon, the enhancement

was similarly tied to the defendant’s preceding

impaired-driving conviction, but the consequences

were added to his subsequent OUIL/UBAL offense. See

Callon, 256 Mich App at 318. Therefore, the recapture

provision found in MCL 28.723(1)(e) does not violate

the Ex Post Facto Clauses of the state and federal

constitutions.

III.

CRUEL OR UNUSUAL PUNISHMENT

Defendant next argues that requiring him to regis-

ter as a sex offender constitutes cruel or unusual

punishment. We disagree.

Amicus curiae American Civil Liberties Union argues that defen-

dant’s registration as a sex offender violates the Ex Post Facto Clauses

as applied to him. However, the United States Supreme Court has held

that ex post facto challenges cannot be brought on an as-applied basis.

Seling v Young, 531 US 250, 263; 121 S Ct 727; 148 L Ed 2d 734 (2001).

Therefore, we reject this argument.

2015] P

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653

As stated, we review de novo issues of constitutional

law. Temelkoski, 307 Mich App at 246. Defendant, as

the party challenging his SORA registration, bears the

burden of proving that it is unconstitutional. Id. at 247.

Article 1, § 16 of the Michigan Constitution prohib-

its the inﬂiction of cruel or unusual punishment.

The

threshold

question in this case is whether registration

constitutes punishment at all. See Temelkoski, 307

Mich App at 250-251. We have repeatedly held that sex

offender registration does not constitute punishment

because the registry is designed to protect the public

rather than punish the offender. Id. at 250-271; People

v Golba, 273 Mich App 603, 615-621; 729 NW2d 916

(2007); People v Pennington, 240 Mich App 188, 191-

197; 610 NW2d 608 (2000).

But defendant posits an

The Eighth Amendment of the United States Constitution prohibits

the inﬂiction of cruel and unusual punishment. US Const, Am VIII. The

equivalent state constitutional provision is interpreted more broadly

than the federal provision, and therefore, if a particular punishment

“passes muster under the state constitution, then it necessarily passes

muster under the federal constitution.” People v Nunez, 242 Mich App

610, 618 n 2; 619 NW2d 550 (2000).

One exception was People v Dipiazza, 286 Mich App 137; 778 NW2d

264 (2009). In that case, the defendant, aged 18, had a consensual sexual

relationship with NT, “who was nearly 15 years old.” Id. at 140. NT’s

parents “knew of the relationship and condoned it.” Id. at 154. The

defendant and NT subsequently married. Id. The defendant pleaded

guilty to attempted third-degree criminal sexual conduct, MCL 750.92;

MCL 750.520d(1)(a), and was placed on youthful trainee status under

the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq., on Aug-

ust 29, 2004. Dipiazza, 286 Mich App at 140. Under SORA, as it existed

at that time, the defendant was required to register as a sex offender. Id.

However, amendments to SORA went into effect on October 1, 2004, and

if the defendant had been placed on HYTA status on or after October 1,

2004, he would not have been required to register as a sex offender. Id.

at 141. The defendant was successfully discharged from HYTA status,

and he petitioned to be removed from the sex offender registry. Id. at

140. This Court held that the defendant’s registration as a sex offender

constituted cruel or unusual punishment as applied to him. Id. at 156.

654 312

ICH

645 [Oct

argument we have not yet addressed. He argues that

sex offender registration constitutes punishment be-

cause of the 2011 amendments that added to the SORA

registration requirements. He speciﬁcally draws our

attention to student safety zones and in-person report-

ing requirements. We take this opportunity to address

the constitutionality of these provisions.

A. HISTORY OF SORA

SORA ﬁrst went into effect on October 1, 1995. 1994

A 295; People v Dipiazza, 286 Mich App 137, 142; 778

NW2d 264 (2009). It has since been amended 20 times.

See 2014 PA 328; 2013 PA 2; 2013 PA 149; 2011 PA 17;

2011 PA 18; 2006 PA 46; 2006 PA 402; 2005 PA 121;

2005 PA 123; 2005 PA 127; 2005 PA 132; 2005 PA 301;

2005 PA 322; 2004 PA 237; 2004 PA 238; 2004 PA 240;

2002 PA 542; 1999 PA 85; 1996 PA 494; 1995 PA 10.

These amendments have generally made registration

intrusive and onerous for registrants. Defendant

argues that these successive amendments have turned

what was originally only a law enforcement tool into a

punishment for offenders.

In 2011, SORA was amended to include “a consent exception . . . that

provides some youthful offenders relief in situations involving consen-

sual sex acts.” Temelkoski, 307 Mich App at 261. The Temelkoski Court

held that in light of these amendments, the analysis in Dipiazza was

“outdated.” Id. at 258.

Defendant refers in his brief to the “legislative history” of these

changes as purportedly recounted in the legislative analyses. But our

Supreme Court has stated that such staff-prepared analyses are of little

value to interpreting statutes and “[i]n no way can . . . be said to

ofﬁcially summarize the intentions of those who have been designated

by the Constitution to be participants in th[e] legislative process . . . .”

In re Certiﬁed Question from the United States Court of Appeals for the

Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003).

We do not attempt to catalogue every amendment to SORA but only

those that are most relevant to the resolution of the questions before us.

2015] P

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655

The sex offender registry as it ﬁrst existed in 1995

was not public and was accessible only by law enforce-

ment. Dipiazza, 286 Mich App at 142. Offenders were

required to register for 25 years for their ﬁrst offense

and for life for a second or subsequent offense commit-

ted after October 1, 1995. MCL 28.725(3) and (4), as

enacted by 1994 PA 295. In 1996, limited public inspec-

tion was allowed. MCL 28.730(2), as added by 1996 PA

494. Police agencies were required to make registry

information for the zip codes within their jurisdiction

“available for public inspection during regular busi-

ness hours.” Id.

In 1999, the registry became available to the public

through the Internet. MCL 28.728(2), as amended by

1999 PA 85; Dipiazza, 286 Mich App at 142-143. Public

Act 85 of 1999 also added more listed offenses requir-

ing registration. MCL 28.722(d), as amended by 1999

PA 85. Further, Public Act 85 prescribed that persons

convicted of certain offenses would be required to

PA 85. Finally, offenders were required to report in

person to verify their domicile or residence. MCL

28.725a, as added by 1999 PA 85.

In 2002, SORA was amended to require sex offend-

ers who were students or employees at institutions of

higher education to register with the law enforcement

agency having jurisdiction over the institution’s cam-

pus. MCL 28.724a, as added by 2002 PA 542. A regis-

trant’s status as a student or employee at such an

institution began being listed on the registry. MCL

28.728(3)(b), as added by 2002 PA 542. Public Act 542

of 2002 also included a statement of legislative pur-

pose:

The legislature declares that the sex offenders regis-

tration

act was enacted pursuant to the legislature’s

656 312

ICH

645 [Oct

exercise of the police power of the state with the intent to

better assist law enforcement ofﬁcers and the people of

this state in preventing and protecting against the com-

mission of future criminal sexual acts by convicted sex

offenders. The legislature has determined that a person

who has been convicted of committing an offense covered

by this act poses a potential serious menace and danger to

the health, safety, morals, and welfare of the people, and

particularly the children, of this state. The registration

requirements of this act are intended to provide law

enforcement and the people of this state with an appro-

priate, comprehensive, and effective means to monitor

those persons who pose such a potential danger. [MCL

28.721a, as added by 2002 PA 542.]

In 2004, registrants were ﬁrst required to pay a $35

registration

fee. MCL 28.725a(6), as added by 2004 PA

237. Another 2004 amendment required that photo-

graphs of registrants be added to the registry. MCL

28.728(3)(c), as added by 2004 PA 238.

In 2005, SORA was amended to create “student

safety zones.” A student safety zone was deﬁned as “the

area that lies 1,000 feet or less from school property.”

MCL 28.733(f), as added by 2005 PA 121. Offenders

were generally precluded from residing within student

safety zones. MCL 28.735(1), as added by 2005 PA 121.

This preclusion did not apply if the offender was

residing within a student safety zone when the amend-

ment became effective. MCL 28.735(3)(c), as added by

2005 PA 121.

Otherwise, an offender was required to

“change

his or her residence to a location outside the

student safety zone not more than 90 days after he or

she [was] sentenced for the conviction that [gave] rise

to the obligation to register.” MCL 28.735(4), as added

by 2005 PA 121.

This exception did not apply “to an individual who initiate[d] or

maintain[ed] contact with a minor within that student safety zone.”

MCL 28.735(3)(c), as added by 2005 PA 121.

2015] P

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657

Another amendment in 2005 precluded offenders

from working or loitering within student safety zones.

MCL 28.734, as added by 2005 PA 127. “Loiter” was

deﬁned as “to remain for a period of time and under

circumstances that a reasonable person would deter-

mine [was] for the primary purpose of observing or

contacting minors.” MCL 28.733(b), as added by 2005

PA 121. This subsection likewise did not apply to a sex

offender working within a student safety zone when

the amendment became effective, MCL 28.734(3)(a), as

added by 2005 PA 127, or to a sex offender “whose place

of employment [was] within a student safety zone

solely because a school [was] relocated or [was] ini-

tially established 1,000 feet or less from the individu-

al’s place of employment,” MCL 28.734(3)(b), as added

by 2005 PA 127.

In 2006, the public became eligible to

receive

a notiﬁcation when a resident in a designated

zip code was required to register as a sex offender or

when a registered sex offender moved his or her

residence to that zip code. MCL 28.730(3), as amended

by 2006 PA 46.

In 2011, SORA underwent what defendant character-

izes as a “sweeping overhaul.” The recapture provision

was added. MCL 28.723(1)(e), as added by 2011 PA 17.

Further, sex offenders were classiﬁed into three tiers

according to the offenses of which they were convicted.

MCL 28.722(r) to (w), as added by 2011 PA 17. Tier I

offenders were required to register for 15 years, Tier II

offenders for 25 years, and Tier III offenders for life.

MCL 28.725(10) to (12), as amended by 2011 PA 17.

Offenders were also required to report in person when

they changed residences, changed places of employ-

Again, these exceptions did not apply “to an individual who initi-

ate[d] or maintain[ed] contact with a minor within that student safety

zone.” MCL 28.734(3)(a) and (b), as added by 2005 PA 127.

658 312 M

ICH

645 [Oct

ment, discontinued employment, enrolled as a student

with institutions of higher education, discontinued

such enrollment, changed their names, temporarily

resided at any place other than their residence for

more than seven days, established an e-mail or instant

message address or “any other designations used in

internet communications or postings,” purchased or

began regularly operating a vehicle, or discontinued

such ownership or operation. MCL 28.725(1), as

amended by 2011 PA 17.

In 2013, SORA was amended to require a $50

registration fee upon initial registration and each year

thereafter, capped at $550. MCL 28.725a(6), as

amended by 2013 PA 149. Further, the number of times

and the speciﬁc months during which an offender had

to report became dependent on the tier the offender fell

into and the offender’s birth month. MCL 28.725a(3),

as amended by 2013 PA 149. In the present case,

defendant, as a Tier III offender, must report four

times each year for the rest of his life, MCL

28.725a(3)(c), as well as when any of the events listed

in MCL 28.725(1) occur.

B. THE MENDOZA-MAR

TINEZ FACTORS

Determining whether a statutory scheme imposes a

punishment requires a two-step inquiry. Temelkoski,

307 Mich App at 258. First, the Court must determine

“whether the Legislature intended the statute as a

criminal punishment or a civil remedy.” Id. (quotation

marks and citation omitted). If the intent was to

punish, the inquiry is complete. Id. But “if the Legis-

lature intended to enact a civil remedy, the court must

also ascertain whether the statutory scheme is so

punitive either in purpose or effect as to negate [the

State’s] intention to deem it civil.” Id. (quotation marks

2015] P

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659

and citations omitted; alteration in original). To do so,

the Court looks to the seven factors enunciated in

Kennedy v Mendoza-Martinez, 372 US 144; 83 S Ct

554; 9 L Ed 2d 644 (1963). Temelkoski, 307 Mich App at

259. Those factors are as follows:

“[1] Whether the sanction involves an afﬁrmative disabil-

ity or restraint, [2] whether it has historically been re-

garded as a punishment, [3] whether it comes into play

only on a ﬁnding of scienter, [4] whether its operation will

promote the traditional aims of punishment—retribution

and deterrence, [5] whether the behavior to which it

applies is already a crime, [6] whether an alternative

purpose to which it may rationally be connected is assign-

able for it, and [7] whether it appears excessive in relation

to the alternative purpose assigned.” [People v Earl, 495

Mich 33, 44; 845 NW2d 721 (2014), quoting Mendoza-

Martinez, 372 US at 168-169.]

These seven factors serve as “useful guideposts” and

are

“neither exhaustive nor dispositive.” Earl, 495

Mich at 44. Further, a party asserting that a statutory

scheme imposes punishment must provide “ ‘the clear-

est proof that the statutory scheme is so punitive

either in purpose or effect [as] to negate the [State’s]

intention to deem it civil.’ ” Id., quoting Kansas v

Hendricks, 521 US 346, 361; 117 S Ct 2072; 138 L Ed

2d 501 (1997) (quotation marks and citations omitted;

second alteration in original).

In this case, defendant does not dispute that the

Legislature did not intend SORA to constitute punish-

ment. Indeed, the Legislature explicitly stated that its

purpose was to protect the public’s safety. MCL 28.721a.

Based largely on this statement of purpose, this Court

has “conclude[d] that the Legislature intended SORA as

a civil remedy to protect the health and welfare of the

public.” Temelkoski, 307 Mich App at 262. Therefore, it

is necessary to look to the Mendoza-Martinez factors to

660 312 M

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645 [Oct

determine whether the student safety zones and in-

person reporting requirements are so punitive in pur-

pose or effect that they negate the Legislature’s intent

to deem them civil. See id. at 262. In this endeavor, we

ﬁrst ﬁnd instructive the United States Supreme Court’s

application of the Mendoza-Martinez factors to the

Alaska sex offender registration statute in Smith v Doe,

538 US 84; 123 S Ct 1140; 155 L Ed 2d 164 (2003).

C. SMITH

“Smith .

. . is the preeminent case holding that a sex

offender registration and notiﬁcation law, as applied to

an adult defendant, is not a form of punishment.”

Temelkoski, 307 Mich App at 263. The United States

Supreme Court applied the Mendoza-Martinez factors

and determined that the Alaska sex offender registra-

tion statute, Alas Stat 12.63.010 et seq., did not consti-

tute punishment for ex post facto purposes. Smith, 538

US at 97-106.

1. AFFIRMATIVE DISABILITY OR RESTRAINT

The Smith Court

ﬁrst observed that sex offender

registration did not resemble imprisonment, “the para-

digmatic afﬁrmative disability or restraint.” Smith,

538 US at 100. The Court noted that the Alaska statute

did “not restrain activities sex offenders may pursue

but leaves them free to change jobs or residences.” Id.

The Court also reasoned that although registration

may negatively affect offenders—in ﬁnding housing

and employment, for example—“these consequences

ﬂow not from the Act’s registration and dissemination

provisions, but from the fact of conviction, already a

matter of public record.” Id. at 101. Finally, the Court

noted that offenders were not required to register in

person. Id.

2015] P

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661

The Court also rejected the contention that registra-

tion is akin to probation or supervised release, al-

though it acknowledged that the argument “ha[d] some

force.” Smith, 538 US at 101. The Court explained that

“[p]robation and supervised release entail a series of

mandatory conditions and allow the supervising ofﬁcer

to seek the revocation of probation or release in case of

infraction.” Id. Sex offenders, on the other hand, were

“free to move where they wish[ed] and to live and work

as other citizens, with no supervision.” Id. And al-

though registrants were required to “inform the au-

thorities after they change[d] their facial features

(such as growing a beard), borrow[ed] a car, or [sought]

psychiatric treatment, they [were] not required to seek

permission to do so.” Id. Further, although offenders

faced criminal penalties for failing to comply with

reporting requirements, those penalties arose from

proceedings that were separate from their underlying

offenses. Id. at 101-102.

2. HISTORICAL PUNISHMENTS

The Court found any resemblance between sex of-

fender

registration and historical shaming punish-

ments “misleading.” Smith, 538 US at 97-98. “Punish-

ments such as whipping, pillory, and branding,” the

Court explained, “inﬂicted physical pain and staged a

direct confrontation between the offender and the

public.” Id. at 98. Conversely, the stigma attached to a

registered sex offender “results not from public display

for ridicule and shaming but from the dissemination of

accurate information about a criminal record, most of

which is already public.” Id. The Court reasoned, “Our

system does not treat dissemination of truthful infor-

mation in furtherance of a legitimate governmental

objective as punishment.” Id. The Court also stated

662 312 M

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645 [Oct

that adverse effects felt by registrants, such as “mild

personal embarrassment” or “social ostracism” were

not “an integral part of the objective of the regulatory

scheme.” Id. at 99.

The Court added that “[t]he fact that Alaska posts

the information on the Internet d[id] not alter [its]

conclusion.” Smith, 538 US at 99. “The purpose and the

principal effect of notiﬁcation are to inform the public

for its own safety, not to humiliate the offender,” the

Court explained. Id. “Widespread public access is nec-

essary for the efﬁcacy of the scheme, and the attendant

humiliation is but a collateral consequence of a valid

regulation.” Id. “The process is more analogous,” the

Court stated, “to a visit to an ofﬁcial archive of criminal

records than it is to a scheme forcing an offender to

appear in public with some visible badge of past

criminality.” Id. The Court observed that the registry

was passive, as a member of the public must seek out

the information on the website. Id. The Court further

noted that Alaska’s website did not allow the public to

shame an offender by, for example, “posting comments

underneath his record.” Id.

3. SCIENTER

The Smith Court

found this factor to be “of little

weight” without an extended explanation. Smith, 538

US at 105.

4. TRADITIONAL AIMS OF PUNISHMENT: DETERRENCE

AND

RETRIBUTION

In Smith, it was undisputed that the sex offender

registry could potentially deter crime. Smith, 538 US at

102. But the Court noted that “[a]ny number of govern-

mental programs might deter crime without imposing

punishment.” Id. The Court reasoned, “ ‘To hold that the

2015] P

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663

mere presence of a deterrent purpose renders such

sanctions “criminal” . . . would severely undermine the

Government’s ability to engage in effective regulation.’ ”

Id., quoting Hudson v United States, 522 US 93, 105;

118 S Ct 488; 139 L Ed 2d 450 (1997).

The Court also disagreed with the proposition that

registration was retributive because the length of time

that an offender was required to register “appear[ed] to

be measured by the extent of the wrongdoing, not by

the extent of the risk posed.” Smith, 538 US at 102

(quotation marks and citation omitted). Although the

Court acknowledged that the statute “differentiate[d]

between individuals convicted of aggravated or mul-

tiple offenses and those convicted of a single nonaggra-

vated offense,” it found that such “broad categories”

and the “corresponding length of the reporting require-

ment” were “reasonably related to the danger of recidi-

vism,” which was “consistent with the regulatory ob-

jective.” Id.

5. CRIMINAL BEHAVIOR

As with the scienter factor, the Court found this

factor

to be “of little weight.” Smith, 538 US at 105.

“The regulatory scheme applies only to past conduct,

which was, and is, a crime,” the Court explained. Id.

The Court stated that this was “a necessary beginning

point, for recidivism is the statutory concern.” Id. The

Court added that “[t]he obligations the statute imposes

are the responsibility of registration, a duty not predi-

cated upon some present or repeated violation.” Id.

6. RATIONAL CONNECTION TO A NONPUNITIVE PURPOSE

The Court held that this was “a most signiﬁcant

factor in [its] determination that the statute’s effects

664 312 M

ICH

645 [Oct

[were] not punitive.” Smith, 538 US at 102 (quotation

marks and citation omitted). According to the Court,

the Alaska sex offender registration statute had “a

legitimate nonpunitive purpose of public safety, which

is advanced by alerting the public to the risk of sex

offenders in their communit[y].” Id. at 102-103 (quota-

tion marks and citation omitted; alteration in original).

According to the Court, the respondents acknowledged

that this purpose was valid and rational. Id. at 103.

They argued, however, that the statute “lack[ed] the

necessary regulatory connection because it [was] not

narrowly drawn to accomplish the stated purpose.” Id.

(quotation marks and citation omitted). The Court

rejected that argument and stated, “A statute is not

deemed punitive simply because it lacks a close or

perfect ﬁt with the nonpunitive aims it seeks to ad-

vance.” Id.

7. EXCESSIVENESS

The S

mith Court rejected the contention that the

statute was excessive because it applied to all con-

victed sex offenders without individual determina-

tions of dangerousness. Smith, 538 US at 103.

“Alaska could conclude that a conviction for a sex

offense provides evidence of substantial risk of recidi-

vism,” the Court reasoned. Id. The Court found this to

be “consistent with grave concerns over the high rate

of recidivism among convicted sex offenders and their

dangerousness as a class.” Id. The Court noted that

“[t]he risk of recidivism posed by sex offenders is

‘frightening and high.’ ” Id., quoting McKune v Lile,

536 US 24, 34; 122 S Ct 2017; 153 L Ed 2d 47 (2002).

The Court stated, “The Ex Post Facto Clause does not

preclude a State from making reasonable categorical

judgments that conviction of speciﬁed crimes should

2015] P

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665

entail particular regulatory consequences.” Smith,

538 US at 103-104. The Court further explained that

a legislature has the power to fashion “a rule of

universal application.” Id. at 104 (quotation marks

and citation omitted). “The State’s determination to

legislate with respect to convicted sex offenders as a

class, rather than require individual determination of

their dangerousness, does not make the statute a

punishment under the Ex Post Facto Clause.” Id. The

Court stated that Alaska was permitted to “dispense

with individual predictions of future dangerousness

and allow the public to assess the risk on the basis of

accurate, nonprivate information about the regis-

trants’ convictions without violating the prohibitions

of the Ex Post Facto Clause.” Id.

The Court also rejected the argument that the

duration of the reporting requirements was excessive.

Smith, 538 US at 104. The Court relied on empirical

research, which showed that most child molesters who

reoffend do so not within the ﬁrst several years after

they were released but that offenders can reoffend as

many as 20 years after release. Id.

The Court likewise rejected the contention that the

registry was excessive because of its wide dissemina-

tion. Smith, 538 US at 104. The Court reiterated that

the registry was passive because “[a]n individual

must seek access to the information.” Id. at 105. The

Alaska website also warned “that the use of displayed

information to commit a criminal act against another

person is subject to criminal prosecution.” Id. (quota-

tion marks and citation omitted). “Given the general

mobility of our population,” the Court reasoned, “for

Alaska to make its registry system available and

easily accessible throughout the State was not so

excessive a regulatory requirement as to become a

666 312 M

ICH

645 [Oct

punishment.” Id. The Court stated that determining

excessiveness “is not an exercise in determining

whether the legislature has made the best choice

possible to address the problem it seeks to remedy,”

but “whether the regulatory means chosen are rea-

sonable in light of the nonpunitive objective.” Id. The

Court concluded that the Alaska statute met that

standard. Id.

D. APPLICATION OF THE MENDOZA-MAR

TINEZ FACTORS

TO STUDENT SAFETY ZONES AND IN-PERSON REPORTING

REQUIREMENTS

This Court in Temelkoski generally endorsed the

analysis in Smith. Temelkoski, 307 Mich App at 262-

270. As noted, however, SORA has changed substan-

tially since it was ﬁrst enacted in 1994. Further, given

its recent amendments, it is also markedly different

from the Alaska statute reviewed by the United States

Supreme Court in Smith in 2003. Although defendant

argues that SORA as a whole is unconstitutional, he

primarily takes issue with the student safety zones and

in-person reporting requirements. Temelkoski did not

address these particular provisions, although it gener-

ally held that sex offender registration does not impose

punishment. Id. at 270. Under these circumstances, we

conclude that sex offender registration is not punish-

ment, and using the Mendoza-Martinez factors, we

focus on whether the student safety zones and in-person

reporting requirements are punitive in purpose or ef-

fect.

The prosecution relies heavily on Does 1-4 v Snyder, 932 F Supp 2d

803, 811-814 (ED Mich, 2013), in which the court held that the recent

amendments to SORA did not make the scheme punitive in effect.

However, the court relied on cases from before the student safety zone

and in-person reporting provisions were added to SORA. See id. There-

fore, we ﬁnd that decision unpersuasive.

2015] P

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667

1. AFFIRMATIVE DISABILITY OR RESTRAINT

a. STUDENT SAFETY ZONES

Some state courts have concluded that student

safety zones impose an afﬁrmative disability or re-

straint on sex offenders.

The Supreme Court of Indi-

ana, addressing a similar provision barring sex offend-

ers from residing within 1,000 feet of school property,

held that such a restriction “is neither minor nor

indirect.” State v Pollard, 908 NE2d 1145, 1147, 1150

(Ind, 2009). The Indiana law, however, did not include

a grandfather provision, and thus barred registrants

from living within 1,000 feet of a school even if the

registrant lived there before the law was passed. Id. at

1150. The law also required a registrant to change

residences if a school or youth program center opened

within 1,000 feet of the registrant’s residence. Id.

The Supreme Court of Kentucky, addressing a pro-

vision disallowing sex offenders to live within 1,000

feet of a school, stated that it found it “difﬁcult to

imagine that being prohibited from residing within

certain areas does not qualify as an afﬁrmative disabil-

ity or restraint.” Commonwealth v Baker, 295 SW3d

437, 440, 445 (Ky, 2009). As with those subject to the

Indiana law, a registrant in Kentucky “faces a constant

threat of eviction” because he or she would be forced to

move if a school opened within 1,000 feet of his or her

home. Id.

But other courts have held to the contrary. The

Supreme Court of Iowa, addressing a statute prohibit-

ing sex offenders from living within 2,000 feet of a

Cases from foreign jurisdictions are not binding on this Court, but

they may be persuasive. People v Campbell, 289 Mich App 533, 535; 798

NW2d 514 (2010). Similarly, lower federal court decisions are not

binding on this Court, but they too may be persuasive. People v Fomby,

300 Mich App 46, 50 n 1; 831 NW2d 887 (2013).

668 312 M

ICH

645 [Oct

school, recognized that such a provision “clearly im-

pose[s] a form of disability.” State v Seering, 701 NW2d

655, 659, 668 (Iowa, 2005). But the court held that “the

disabling nature of the statute is not absolute.” Id. at

668. The court added, “[W]e are mindful of the objec-

tives of the residency restriction under the statute and

understand that a statute that imposes some degree of

disability does not necessarily mean the state is impos-

ing punishment.” Id.

We agree with the reasoning of the Indiana and

Kentucky courts. Prohibiting registrants from living

and working in many areas is undoubtedly an afﬁr-

mative restraint. Further, application of the grandfa-

ther clause in Michigan is limited to residences where

the offenders were living on January 1, 2006. MCL

28.735(3)(c). If that clause does not apply and a

person who lives in a student safety zone commits a

sex offense and is required to register, he or she will

be forced to leave his or her home. MCL 28.735(4).

Therefore, rather than merely restraining sex offend-

ers, the student safety zone restriction may expel

offenders in certain circumstances. Also, an offender

who is not protected by the grandfather clause faces

the constant prospect that he or she will be forced to

move if a new school opens near his or her home.

Unlike in Smith, offenders in Michigan are not en-

tirely free to change residences or jobs given the

student safety zone provisions in SORA. Although we

agree with the Seering court that such a restraint is

not “absolute,” it is a restraint nonetheless. See

Seering, 701 NW2d at 668.

b. IN-PERSON REPORTING REQUIREMENTS

Some state courts have also concluded that fre-

uent in-person reporting requirements impose an

2015] P

EOPLE V

UCKER

669

afﬁrmative disability or restraint. The Supreme Ju-

dicial Court of Maine held that a similar provision

requiring quarterly, in-person reporting “place[d] sub-

stantial restrictions on the movements of lifetime

registrants and may work an impractical impediment

that amounts to an afﬁrmative disability.” State v

Letalien, 2009 Me 130, ¶ 37; 985 A2d 4 (2009) (quo-

tation marks and citation omitted). Distinguishing

the reporting requirement at issue in Smith, the court

stated that the requirement of quarterly, in-person

reporting for life “is undoubtedly a form of signiﬁcant

supervision by the state.” Id. “[I]t belies common

sense,” the court concluded, “to suggest that a newly

imposed lifetime obligation to report to a police sta-

tion every ninety days to verify one’s identiﬁcation,

residence, and school, and to submit to ﬁngerprint-

ing

[13]

and provide a current photograph,

[14]

is not a

substantial

disability or restraint on the free exercise

of individual liberty.” Id. at ¶ 58. The Supreme Court of

New Hampshire recently endorsed the Letalien Court’s

reasoning. Doe v State, 167 NH 382, 405; 111 A3d 1077

(2015).

The Supreme Court of Oklahoma adopted the same

reasoning regarding its similar in-person reporting

requirements. Starkey v Oklahoma Dep’t of Correc-

tions, 2013 Okla 43, ¶ 49; 305 P3d 1004 (2013). Like

defendant in the case at hand, the defendant in Star-

key would have been required, under threat of prosecu-

tion, “to make an ‘in person’ appearance every 90 days

for life and every time he moves, changes employment,

SORA requires ﬁngerprinting only once. See MCL 28.727(1)(q).

Under SORA, registrants must have a new photograph taken if

“[t]he ofﬁcer or authorized employee” determines that the registrant’s

preexisting photograph does not “match[] the appearance of the indi-

vidual sufﬁciently to properly identify him or her from that photograph.”

MCL 28.725a(5).

670 312

ICH

645 [Oct

changes student status, or resides somewhere for 7

consecutive days or longer.” Id. See also MCL

28.725(1); MCL 28.725a(3)(c). The Supreme Court of

Oklahoma deemed these requirements “signiﬁcant and

intrusive.” Starkey, 2013 Okla 43 at ¶ 49.

But other courts have disagreed. In United States v

Parks, 698 F3d 1, 6 (CA 1, 2012), the United States

Court of Appeals for the First Circuit held that al-

though periodic in-person reporting is inconvenient,

such “inconvenience is surely minor compared to the

disadvantages of the underlying scheme in its conse-

quences for renting housing, obtaining work and the

like—consequences that were part of the package that

Smith itself upheld.” In United States v WBH, 664 F3d

848, 857 (CA 11, 2011), the United States Court of

Appeals for the Eleventh Circuit likewise held that

quarterly in-person reporting “may be more inconve-

nient, but requiring it is not punitive.”

We agree with the reasoning of the Maine and

Oklahoma courts. The reporting requirements in

Michigan are onerous. Reporting requirements vary by

tier, and Tier III offenders, such as defendant, are

required to report in person four times a year for life.

MCL 28.725a(3). In addition, MCL 28.725(1) provides

that all registrants must report in person after any of

the following events occur:

(a) The individual changes or vacates his or her resi-

dence

or domicile.

(b) The individual changes his or her place of employ-

ment, or employment is discontinued.

tution of higher education, or enrollment is discontinued.

(d) The individual changes his or her name.

(e) The individual intends to temporarily reside at any

place other than his or her residence for more than 7 days.

2015] P

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671

(f) The individual establishes any electronic mail or

instant message address, or any other designations used

in internet communications or postings.

(g) The individual purchases or begins to regularly

operate any vehicle, and when ownership or operation of

the vehicle is discontinued.

(h) Any change required to be reported under section 4a.

In Smith,

the United States Supreme Court noted that

the reporting scheme in that case did not impose a

disability or restraint because offenders were not re-

quired to report in person. Smith, 538 US at 101. In

contrast, under SORA, offenders are required to report

in person up to four times a year and after any of the

events listed in MCL 28.725(1) occur. Many of the

events listed in MCL 28.725(1) may occur frequently in

the life of an average person. Thus, the in-person

reporting requirements strike us as more than a mere

inconvenience. Rather, we conclude that they amount

to an afﬁrmative disability or restraint.

2. HISTORICAL PUNISHMENTS

STUDENT SAFETY ZONES

Some courts have concluded that student safety

zones are analogous to historical punishments. In Pol-

lard, the Indiana Supreme Court stated that “restric-

tions on living in certain areas is not an uncommon

condition of probation or parole.” Pollard, 908 NE2d at

1151. Courts have also compared the restrictions to

banishment. “Banishment” is deﬁned as “ ‘a punish-

ment inﬂicted upon criminals, by compelling them to

quit a city, place, or country, for a speciﬁc period of time,

or for life.’ ” United States v Ju Toy, 198 US 253,

269-270; 25 S Ct 644; 49 L Ed 1040 (1905), quoting

Black’s Law Dictionary (citation omitted). In Baker, the

672 312 M

ICH

645 [Oct

Supreme Court of Kentucky found that the restrictions

that prevented offenders from living in certain areas

and that expelled offenders from their homes were

“decidedly similar to banishment.” Baker, 295 SW3d at

444. In Starkey, the Oklahoma Supreme Court con-

curred with that reasoning. Starkey, 2013 Okla 43 at ¶

60.

But other courts have denied that the prohibition

against residing in student safety zones is similar to

banishment. The Supreme Court of Iowa stated that

although a defendant “may have a sense of being

banished to another area of the city, county, or state,

true banishment goes beyond the mere restriction of

‘one’s freedom to go or remain where others have the

right to be: it often works a destruction on one’s social,

cultural, and political existence.’ ” Seering, 701 NW2d at

667, quoting Poodry v Tonawanda Band of Seneca

Indians, 85 F3d 874, 897 (CA 2, 1996). The court added

that “[o]ffenders are not banished from communities

and are free to engage in most community activities.” Id.

at 667.

We agree with the reasoning in Pollard and Baker

that the restrictions created by the student safety zone

provisions resemble banishment. Unlike the circum-

stances in Smith, SORA registrants are afﬁrmatively

barred from living in certain areas. Also, unless offend-

ers are protected by the limited grandfather provision,

they can be expelled from their residences as a conse-

quence of registration. Although admittedly not true

banishment, we ﬁnd the similarity undeniable. There-

fore, we believe that the restrictions imposed by the

student safety zones have historically been regarded as

a punishment.

b. IN-PERSON REPORTING REQUIREMENTS

Cases addressing in-person reporting requirements

2015]

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673

have focused on their similarity to supervised proba-

tion and parole. The Supreme Court of Indiana con-

cluded that in-person reporting was “comparable to

conditions of supervised probation or parole.” Wallace v

State, 905 NE2d 371, 380 (Ind, 2009). However, the

Wyoming Supreme Court, relying on Smith, disagreed

that in-person reporting requirements were similar to

supervised probation or parole. Kammerer v State,

2014 Wy 50, ¶ 22; 322 P3d 827 (2014). The court denied

that in-person reporting was similar to “monitoring . . .

imposed under supervised probation or parole . . . .” Id.

Many of the considerations noted by Smith still

apply to Michigan’s current Sex Offenders Registra-

tion Act. Sex offenders are not required to seek permis-

sion to do many things, such as change residences or

cars, but are only required to report such changes.

Also, penalties for failing to comply with SORA arise

from proceedings separate from the offender’s under-

lying offense. But the scheme examined in Smith did

not entail in-person reporting. As stated, defendant, as

a Tier III offender, must report in person four times

each year for the rest of his life, MCL 28.725a(3)(c), as

well as when any of the events listed in MCL 28.725(1)

occur. This is far more intrusive than the reporting

requirements in Smith and imposes a great amount of

supervision by the state. We agree with the Wallace

court that such demanding in-person reporting re-

quirements are at least “comparable to conditions of

supervised probation or parole.” See Wallace, 905

NE2d at 380.

3. SCIENTER

This Court has declined to consider this factor in

assessing

whether sex offender registration constitutes

674 312 M

ICH

645 [Oct

punishment. See Temelkoski, 307 Mich App at 262.

Therefore, we too decline to address the factor.

4. TRADITIONAL AIMS OF PUNISHMENT: DETERRENCE

AND RETRIBUTION

a. STUDENT SAFETY ZONES

Some courts have concluded that student safety

zones

promote deterrence and retribution to such a

degree that they are punitive. In Pollard, the Indiana

Supreme Court stated that such restrictions are “ap-

parently designed to reduce the likelihood of future

crimes by depriving the offender of the opportunity to

commit those crimes.” Pollard, 908 NE2d at 1152. The

court determined that the provision was “an even more

direct deterrent to sex offenders than the . . . registra-

tion and notiﬁcation regime.” Id. In Baker, the Su-

preme Court of Kentucky found that such restrictions

are retributive given that there was “no individualized

determination of the dangerousness of a particular

registrant.” Baker, 295 SW3d at 444. The court noted

that “[e]ven those registrants whose victims were

adults are prohibited from living near an area where

children gather.” Id. “When a restriction is imposed

equally upon all offenders, with no consideration given

to how dangerous any particular registrant may be to

public safety,” the court concluded, “that restriction

begins to look far more like retribution for past of-

fenses than a regulation intended to prevent future

ones.” Id. In Starkey, the Oklahoma Supreme Court

essentially adopted the same reasoning. Starkey, 2013

Okla 43 at ¶ 66. Courts concluding to the contrary have

We note that other courts have concluded that because most sex

offenses require a ﬁnding of scienter, this factor counsels in favor of

deeming registration punishment. See, e.g., Doe v State, 189 P3d 999,

1012-1013 (Alas, 2008).

2015] P

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675

relied on the statement from Smith, 538 US at 102,

that government programs can “deter crime without

imposing punishment.” See, e.g., Seering, 701 NW2d at

668; Kammerer, 2014 Wy 50 at ¶ 26.

The primary reason for the creation of the student

safety zones is the desire to speciﬁcally deter regis-

trants from committing future sexual offenses. As in

Pollard, it appears that the provisions were “designed

to reduce the likelihood of future crimes by depriving

the offender of the opportunity to commit those

crimes.” Pollard, 908 NE2d at 1152. Nonetheless, the

disclaimer from Smith still applies: “Any number of

governmental programs might deter crime without

imposing punishment.” Smith, 538 US at 102. But the

student safety zone provisions are unlike the statute at

issue in Smith. In that case, the Alaska statute was a

passive notiﬁcation scheme designed to allow members

of the public to protect themselves from sex offenders.

In this case, the student safety zone provisions are not

passive. Rather, registrants are speciﬁcally prohibited

from living, working, and loitering in many areas. We

agree with the observation of the Pollard court that

student safety zones are “an even more direct deter-

rent to sex offenders than the . . . registration and

notiﬁcation regime.” Pollard, 908 NE2d at 1152. In

sum, we ﬁnd that the foremost purpose of the student

safety zones is deterrence.

However, we disagree that the student safety zones

are necessarily retributive. Although the observations

of the Baker Court have some merit, we are mindful

that the Legislature is permitted to enact laws directed

at sex offenders as a class without individual determi-

nations of future dangerousness. See Smith, 538 US at

103-104. It is the province of the Legislature to deter-

mine that all sex offenders, regardless of their offenses,

676 312 M

ICH

645 [Oct

should be segregated from children. While one can

reasonably question the usefulness of such a broadly

sweeping measure, “[a] statute is not deemed punitive

simply because it lacks a close or perfect ﬁt with the

nonpunitive aims it seeks to advance.” Id. at 103.

Therefore, we cannot say that the student safety zones

have the purpose or effect of promoting retribution.

b. IN-PERSON REPORTING REQUIREMENTS

Cases have not extensively addressed whether in-

person

reporting requirements promote deterrence

and retribution. The requirements are designed to

ensure that the information provided on the registry is

accurate and up-to-date. Accurate and up-to-date in-

formation is essential to “monitor[ing] those persons”

who the “legislature has determined . . . pose[] a poten-

tial serious menace and danger to the health, safety,

morals, and welfare of the people, and particularly the

children, of this state.” MCL 28.721a. Therefore, we

cannot conclude that such measures necessarily pro-

mote deterrence or retribution. Still, we acknowledge

that more rigorous reporting requirements could pro-

mote deterrence and retribution. If, for example, of-

fenders were required to report in person twice daily,

such onerous requirements could begin to appear less

useful to promoting the regulatory goals of SORA and

more like deterrence and retribution. However, the

reporting requirements are not so extreme. Tier III

offenders—those subjected to the most frequent report-

ing requirements—are only required to report four

times each year, as well as when any of the events

listed in MCL 28.725(1) occur. See MCL 28.725a(3)(c).

Although certainly burdensome for the offenders, we

cannot say that these requirements promote deter-

rence or retribution to such an extent that they are

punitive.

2015] P

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UCKER

677

5. CRIMINAL BEHAVIOR

Like the United States Supreme Court, this Court

has declined to consider this factor in assessing

whether sex offender registration constitutes punish-

ment. See Smith, 538 US at 105; Temelkoski, 307 Mich

App at 262.

Therefore, we too decline to address this

factor

6. RATIONAL CONNECTION TO A NONPUNITIVE PURPOSE

As defendant admits, nearly every court has held

that sex offender registration laws serve the nonpuni-

tive purpose of promoting public safety. However, de-

fendant questions whether the connection is rational.

He calls attention to law review articles that advance

the proposition that registration laws do not reduce

recidivism and that sex offenders, as a class, are not

prone to recidivism. While perhaps true that in certain

circumstances the student safety zones and in-person

reporting requirements do more harm than good, we

cannot conclude that they are irrational measures for

accomplishing the stated regulatory purpose of SORA.

Moreover, we are not charged with determining the

wisdom of these measures. Such questions are for the

Legislature to decide. See People v Wallace, 284 Mich

App 467, 470; 772 NW2d 820 (2009) (noting that the

wisdom of a policy is a political question). Similarly,

the Legislature is charged with the authority to revisit,

if it so chooses, the efﬁcacy of the legislation.

We note that the Alaska Supreme Court, in Doe, concluded that

because registration laws only applied to convicted sex offenders and not

“other individuals who may pose a threat to society even if they were not

convicted,” the effect was punitive. Doe, 189 P3d at 1014-1015. For

example, registration laws do not apply to “defendants whose convic-

tions are overturned for reasons other than insufﬁciency of evidence of

guilt . . . despite having engaged in the same conduct” as an offender

who is forced to register. Id. at 1015.

678 312

ICH

645 [Oct

To the extent that defendant and amicus argue that

the recapture provision is not rational as applied to

defendant given that defendant’s last sex offense con-

viction was 25 years ago, we must disagree. The

argument has some merit, but we cannot conclude that

requiring defendant to register as a sex offender is

wholly irrational. Although defendant’s sex offense

conviction was 25 years ago, he committed another

felony in 2013, and has “shown a general tendency to

recidivate.” See People v Fredericks, 2014 Ill App (1st)

122122, ¶ 60; 383 Ill Dec 293; 14 NE3d 576 (2014).

7. EXCESSIVENESS

STUDENT SAFETY ZONES

Some courts have held that the broad application of

student safety zones is excessive. The Supreme Court

of Indiana stated, “Restricting the residence of offend-

ers based on conduct that may have nothing to do

with crimes against children, and without considering

whether a particular offender is a danger to the

general public, the statute exceeds its non-punitive

purposes.” Pollard, 908 NE2d at 1153. The Supreme

Court of Kentucky likewise concluded that given the

magnitude of the restraint imposed by residency

restrictions, the failure to make an individual deter-

mination of the danger a registrant may pose in the

future rendered the restrictions excessive. Baker, 295

SW3d at 446. Other courts have concluded to the

contrary. The Supreme Court of Iowa concluded that

given “the special needs of children” and “the impre-

cise nature of protecting children from the risk that

convicted sex offenders might reoffend,” residency

restrictions are not excessive. Seering, 701 NW2d at

668.

2015] P

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679

We ﬁnd that the Supreme Court’s observations in

Smith still apply. The Legislature is “not pre-

clude[d] . . . from making reasonable categorical judg-

ments that conviction of speciﬁed crimes should entail

particular regulatory consequences.” Smith, 538 US at

103-104. The Court explained that the legislature had

the power to fashion “a rule of universal application.”

Id. at 104 (quotation marks and citation omitted).

Further, “[t]he State’s determination to legislate with

respect to convicted sex offenders as a class, rather

than require individual determination of their danger-

ousness, does not make the statute a punishment

under the Ex Post Facto Clause.” Id.

One can reasonably question the usefulness of pro-

hibiting certain offenders from living and working

within student safety zones even though their offenses

were not committed against children. Despite these

reservations, as we have already noted, the wisdom of

a statute is a question for the Legislature. Wallace, 284

Mich App at 470. Moreover, the Legislature was not

precluded from making categorical judgments of this

nature. Smith, 538 US at 103. Therefore, the student

safety zone restrictions are not excessive.

b. IN-PERSON REPORTING REQUIREMENTS

Courts have not extensively addressed whether in-

person

reporting requirements are excessive. The Su-

preme Court of New Hampshire found the lifetime

duration of registration to be excessive. Doe, 167 NH at

410. “If in fact there is no meaningful risk to the public,

then the imposition of such requirements becomes

wholly punitive.” Id. We disagree. Again, the Legisla-

ture is tasked with determining the risk posed by sex

offenders. Moreover, although the in-person reporting

requirements of SORA are onerous, it is difﬁcult to

680 312 M

ICH

645 [Oct

conclude that they are necessarily excessive. Rather, as

stated, they are reasonably designed to ensure that the

information on the registry is accurate and up-to-date.

Therefore, the in-person reporting requirements are

not excessive.

E. CONCLUSION

1. STUDENT SAFETY ZONES

As is apparent from our foregoing discussion, the

Mendoza-Martinez factors point us in both directions

when it comes to student safety zones. We conclude

that student safety zones impose afﬁrmative re-

straints, resemble historical punishments, and pro-

mote deterrence. However, we also conclude that they

are rationally connected to the nonpunitive purpose of

public safety and that they are not excessive, because

the Legislature is permitted to make the categorical

judgment that sex offenders should not live, work, or

loiter near schools. Weighing these factors, we are

mindful that the burden lies with defendant to estab-

lish that student safety zones are punitive. As stated, a

party asserting that a statutory scheme imposes pun-

ishment must provide “the clearest proof” that the

scheme “ ‘is so punitive either in purpose or effect [as]

to negate the . . . intention to deem it civil.’ ” Earl, 495

Mich at 44, quoting Hendricks, 521 US at 361 (quota-

tion marks and citations omitted). In this case, because

the Mendoza-Martinez factors cut both ways, we can-

not conclude that defendant has met his burden. Fur-

ther, even some of the factors that weigh in defendant’s

favor only do so to a limited extent. Student safety

zones plainly restrict where offenders can live and

work, but the restrictions are not absolute, and there-

fore, the restrictions are distinguishable from true

banishment. And although student safety zones spe-

2015] P

EOPLE V

UCKER

681

ciﬁcally deter registered offenders, the Smith Court

held that a deterrent purpose alone will not render a

civil regulatory scheme punitive. Smith, 538 US at

102. Moreover, the nonpunitive purpose of the student

safety zones is “a most signiﬁcant factor” in determin-

ing whether they are punitive in effect. See id. (quota-

tion marks and citation omitted). Given these consid-

erations, there is not the clearest proof that the

student safety zone restrictions are so punitive in

purpose or effect as to negate the Legislature’s intent

to deem them civil.

2. IN-PERSON REPORTING REQUIREMENTS

Regarding the in-person reporting requirements,

the Mendoza-Martinez factors

do not readily lead to

one conclusion over the other. The requirements im-

pose afﬁrmative restraints and arguably resemble con-

ditions of supervised probation or parole. However, the

reporting requirements do not necessarily promote

deterrence or retribution, they are rationally con-

nected to the nonpunitive purpose of protecting the

public by ensuring that the registry is accurate, and

they are not excessive. As with the student safety

zones, we cannot ﬁnd the clearest proof that the

in-person reporting requirements are punitive in effect

given that the Mendoza-Martinez factors cut both

ways. Further, we again ﬁnd that even some of the

factors that weigh in defendant’s favor only do so to a

limited extent. Although the reporting requirements

are undeniably burdensome, their restraining effect is

not absolute. Registrants are not precluded from many

activities, such as changing residences or jobs, but are

merely required to report them. And many of the

considerations that Smith used to distinguish sex

offender registration from supervised probation or pa-

682 312 M

ICH

645 [Oct

role still apply to the in-person reporting require-

ments. Given these considerations, we conclude that

there is not the clearest proof that the in-person

reporting requirements are so punitive in purpose or

effect as to negate the Legislature’s intent to deem

them civil.

IV. CONCLUSION

We conclude that the recapture provision in MCL

28.723(1)(e)

is constitutional. First, the recapture pro-

vision did not change the legal consequences of defen-

dant’s 1990 conviction. Rather, it attached legal conse-

quences to his 2013 felony conviction. Therefore, that

provision does not violate the Ex Post Facto Clauses of

the state and federal constitutions. Second, the student

safety zones and in-person reporting requirements of

SORA do not constitute punishment. Therefore, they

necessarily cannot constitute cruel or unusual punish-

ment.

Afﬁrmed.

OEKSTRA

, P.J., and J

ANSEN

and M

ETER

, JJ., con-

curred.

2015] P

EOPLE V

UCKER

683

BILL AND DENA BROWN TRUST v GARCIA

In re BROWN ESTATE

Docket Nos. 322401 and 322402. Submitted October 8, 2015, at Petos-

key. Decided October 20, 2015, at 9:00 a.m.

In Docket No. 322401, Mark Brown (plaintiff), son of the late Bill

and Dena Brown and trustee of the Bill and Dena Brown Trust,

brought an action in the Montmorency Circuit Court to quiet title

to what had been the Browns’ marital home, asserting that Bill

Brown did not have the authority to convey the property to

himself after Dena Brown died because doing so was contrary to

the intent of the trust that the property pass to the trust

beneﬁciaries after the death of both original settlors. After Dena

Brown died and Bill Brown became the sole trustee of the trust,

Bill Brown had conveyed the marital home to himself by means of

a “Lady Bird” quitclaim deed, which provided that if Bill Brown

did not otherwise dispose of the property during his lifetime, on

his death, the property would pass to Geri Garcia (defendant), a

woman who had recently discovered that she was likely the

daughter of Bill’s brother, John Brown.

Docket No. 322402, plaintiff ﬁled a petition in the Montmorency

County Probate Court contesting Bill Brown’s February 10, 2012

will on the basis that it was the product of undue inﬂuence by

defendant. Bill and Dena Brown had initially executed identical

wills that provided for transfer of property to the trust, or, if the

testator’s spouse did not survive and the trust no longer existed,

then speciﬁc distribution provisions mirrored those of the trust.

In the 2012 will, Bill Brown disinherited his two children and

their children, devised the residue of his estate to defendant, and

appointed defendant the personal representative of his estate.

After Probate Judge Benjamin Bolser disqualiﬁed himself from

hearing the matter, the State Court Administrator assigned the

case to Circuit Judge Michael G. Mack, and the two actions were

consolidated.

Plaintiff moved for summary disposition pursuant to MCR

2.116(C)(9) and (10), and defendant moved for summary disposi-

tion under MCR 2.116(I). After a hearing, the court issued an

opinion and order granting in part defendant’s motion and

684 312

ICH

684 [Oct

denying plaintiff’s motion, ruling that the terms of the trust

authorized Bill Brown to execute the Lady Bird deed. With regard

to the undue-inﬂuence claim, the court issued a separate opinion

and order granting defendant’s motion for summary disposition

because all the deposition testimony supported the conclusion

that Bill Brown was acting of his own volition and plaintiff had

presented no evidence to the contrary. The court also rejected

consideration of a presumption of undue inﬂuence because the

evidence did not demonstrate a conﬁdential or ﬁduciary relation-

ship between defendant and Bill Brown. Plaintiff appealed.

The Court of Appeals held:

1. The trial court correctly ruled that the trust granted Bill

Brown the authority to execute the Lady Bird deed quitclaiming

the marital home to himself with a remainder to defendant.

Further, the trial court correctly ruled that the conveyance did

not alter or amend any part of the trust. The trust’s plain terms

authorized a settlor serving as trustee to engage in self-dealing

and also plainly authorized a settlor to direct the trustee with

respect to any matter concerning the administration or distribu-

tion of trust assets. The trust further authorized the trustee to

make distribution or division of trust assets in cash or in kind, to

deal in real property or any interest therein as the trustee

deemed appropriate and without regard to the duration of such

interests, and to execute and deliver an instrument that accom-

plished or facilitated the exercise of a power vested in the trustee.

Plaintiff’s assertion that the quitclaim deed effectively modiﬁed

or partially revoked the trust was untrue, despite the fact that

the quitclaim deed diminished the amount of property subject to

distribution, given that the trust’s terms remained unchanged

from the time that Bill and Dena Brown last jointly amended it.

The fact that Bill and Dena Brown could have taken title to the

marital home as joint tenants with rights of survivorship but

instead took title to the property as cotrustees did not establish

that they intended the property to remain in the trust. The plain

terms of the trust, not speculation regarding what the settlors

might have done but did not do, established the settlors’ intent.

Therefore, the trial court properly granted defendant summary

disposition regarding plaintiff’s action to quiet title with respect

to the marital home.

2. The trial court properly granted defendant summary

disposition of plaintiff’s undue-inﬂuence claim and did not abuse

its discretion by denying his motion for reconsideration. Plain-

tiff failed to produce any evidence creating a material question

of fact that either the Lady Bird deed or Bill Brown’s 2012 will

2015] B

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685

was the product of defendant’s undue inﬂuence. The trial court

also correctly ruled that no evidence was presented to establish

the existence of a conﬁdential or ﬁduciary relationship between

Bill Brown and defendant that would have invoked a presump-

tion of undue inﬂuence with respect to the documents in

question.

Afﬁrmed.

Lipson, Neilson, Cole, Seltzer & Garin, PC (by C.

Thomas

Ludden and Jeffrey T. Neilson), for the Bill

and Dena Brown Trust and Mark Brown.

Gault Davison, PC (by Edward B. Davison and

Margaret Brandenburg), for Geri Garcia.

Before: M

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ.

URIAM

. In these consolidated cases involving an

action to quiet title in Docket No. 322401 and a will

contest in Docket No. 322402, plaintiff Mark Brown

appeals by right the trial court’s order granting defen-

dant Geri Garcia summary disposition with respect to

plaintiff’s claim that the trust agreement did not

authorize the trustee’s deed at issue.

Plaintiff also

appeals

by right the trial court’s order granting sum-

mary disposition with respect to plaintiff’s claim of

undue inﬂuence by defendant. For the reasons dis-

cussed in this opinion, we afﬁrm.

I. SUMMARY OF FACTS AND PROCEEDINGS

Bill Brown and Dena Brown established an irrevo-

cable trust as part of their estate planning that was

Although Mark Brown is designated as “appellant” and Geri Garcia

as “appellee” in Docket No. 322402, for ease of reference, they will be

referred to respectively as “plaintiff” and “defendant” throughout this

opinion.

686 312 M

ICH

684 [Oct

intended to distribute their assets to various beneﬁcia-

ries after both had died. After Dena passed away, Bill

became the sole trustee of the trust. Bill, as trustee,

conveyed the marital home that was a trust asset to

himself by means of a “Lady Bird” quitclaim deed,

which provided that the property would pass to defen-

dant

on his death if Bill did not otherwise dispose of

the property during his lifetime. Bill did not otherwise

dispose of the property before his death. Plaintiff, the

successor trustee, asserts that Bill did not have the

authority to convey the property to himself after Dena

died because doing so was contrary to the intent of the

trust that the property pass to the trust beneﬁciaries

after the death of both original settlors. According to

plaintiff, the Lady Bird deed, in essence, partially

revoked an irrevocable trust. Plaintiff argues that the

trial court erred by ruling that the terms of the trust

permitted Bill’s action.

Plaintiff also argues that defendant was in a ﬁdu-

ciary relationship with Bill and exercised undue inﬂu-

ence over Bill with respect to executing the Lady Bird

deed. Plaintiff asserts that the trial court erred by

granting defendant summary disposition regarding his

undue-inﬂuence claim because questions of material

fact remain.

This type of quitclaim deed is named after President Lyndon

Johnson’s wife, “Lady Bird,” because President Johnson was thought to

have once used this type of deed to convey some land to her. In re Tobias

Estates, unpublished opinion per curiam of the Court of Appeals, issued

May 10, 2012 (Docket No. 304852), p 5. A Lady Bird deed conveys an

enhanced life estate that reserves to the grantor “the rights to sell,

commit waste, and almost everything else[.]” Id. (quotation marks and

citation omitted). See also Black’s Law Dictionary (10th ed), p 503

(deﬁning a “Lady Bird” deed as “[a] deed that allows a property owner to

transfer ownership of the property to another while retaining the right

to hold and occupy the property and use it as if the transferor were still

the sole owner”).

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687

On June 8, 2007, Bill and Dena as husband and wife

created the Living Trust Agreement of Bill M. Brown

and Dena G. Brown (the trust). Bill and Dena also

executed, on the same day, identical wills that provided

for transfer of property to the trust, or, if the testator’s

spouse did not survive and the trust no longer existed,

then speciﬁc distribution provisions mirrored those of

the trust. A year later, on June 11, 2008, Bill and Dena

exercised their authority under the terms of the trust

by amending it and their wills to alter the named

beneﬁciaries. These amendments did not alter the

terms of the trust at issue in this appeal.

On February 28, 2008, Bill and Dena acquired the

subject property located at 10395 South Airport Road,

Avery Township, Montmorency County, for $180,000.

The former owners

conveyed the property by warranty

deed

to Bill and Dena as trustees of the trust. Because

Dena had cancer, the Browns moved to this home to be

closer to Bill’s former daughter-in-law, Eunice Ruth

Dahn, who was a caregiver for both. Dena died on

August 10, 2008.

Defendant was born in California on April 22, 1983,

and immediately placed for adoption. In October 2009,

defendant was contacted by her birth mother, Pam

Altz, who informed defendant that her natural father

was John Brown, the brother of Bill. Thereafter, defen-

dant contacted John, who rejected defendant’s asser-

tion that he was her natural father and also refused to

provide a genetic sample for the purpose of testing.

At some point, Altz provided defendant’s telephone

number to Bill, and he called defendant. After defen-

dant wrote Bill a letter about herself and her family on

August 19, 2010, Bill and defendant regularly commu-

One of the property’s former owners was Yvonne Currie, who came to

know the Browns as customers at the bank where she worked.

688 312 M

ICH

684 [Oct

nicated by telephone and mail. In June 2011, defen-

dant ﬂew from California to Michigan and visited Bill

at his home. On January 12, 2012, Bill submitted

genetic material for testing and comparison to samples

from defendant. The test results excluded Bill as being

her possible father, but concluded that the probability

the two were related was 97.7% and that the “likeli-

hood that the alleged relative is the biological relative

of the tested child is 43 to 1.” Bill apparently provided

the test results to John, who responded in a March 8,

2012 letter indicating he thought that the information

showed that Bill was her real father.

In February 2012, defendant traveled from Califor-

nia to Michigan for her second visit with Bill. On

February 10, 2012, Bill and defendant went to a local

branch of PNC Bank, where Bill added her as a joint

owner with rights of survivorship to various accounts.

Bill and defendant then went to the ofﬁce of attorney

Benjamin Bolser, and Eunice Ruth Dahn joined them.

Bill had previously consulted with Bolser and various

documents were ready for signature. Defendant—and,

if she was unable to serve, Eunice Ruth Dahn—was

named as Bill’s attorney-in-fact (durable power of

attorney); defendant and Dahn were similarly ap-

pointed as Bill’s patient advocate (durable power of

attorney for healthcare). Bill executed a last will and

testament that (1) disinherited his two children and

their children, (2) devised and bequeathed all the

residue of his estate to defendant, and (3) appointed

defendant the personal representative of his estate.

Bill also signed a living will that directed the withhold-

ing of medical treatment in certain circumstances.

Finally, Bill, as the sole surviving settlor-trustee, con-

veyed the Airport Road property to himself as an

individual by means of a Lady Bird quitclaim deed that

2015] B

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689

would pass the property to defendant if Bill did not

otherwise dispose of it during his lifetime.

After February 2012, defendant, accompanied by

various members of her family, visited Bill for short

periods of no more than 5 days in March, April, August,

and October 2012. John Brown continued to disbelieve

defendant’s claim of paternity. He wrote to his brother

Bill on October 31, 2012, and admonished Bill to not

give anyone his cell phone number: “I’m not going to be

called and harassed anymore by all of those so called

kids of mine who read about me and are after my

money . . . .” Plaintiff, John’s son, became the succes-

sor trustee of the Bill and Dena Brown trust after Bill

passed away on January 16, 2013.

Plaintiff, as successor trustee, ﬁled an action in the

circuit court on February 1, 2013 to quiet title in the

trust to the Airport Road property (Docket No. 322401;

LC No. 13-003254-CH). This case requested that the

Lady Bird deed be declared null and void because it

was in contradiction to the terms of the trust. Defen-

dant ﬁled an answer on March 1, 2013, denying that

the deed was contrary to the terms of the trust. In later

proceedings, plaintiff developed his alternative theory

that defendant had used undue inﬂuence to cause Bill

to execute the deed. This case was assigned to Circuit

Judge Michael G. Mack.

On March 8, 2013, defendant, as Bill’s nominated

personal representative in his February 10, 2012 will,

ﬁled a petition in probate court for formal appointment

as personal representative and for determination of

heirs (Docket No. 322402; LC No. 13-007003-DE).

Plaintiff appeared by counsel on March 25, 2013. At a

hearing held on April 4, 2013 before Probate Judge

Benjamin Bolser, the parties stipulated the entry of an

order maintaining the status quo. Judge Bolser, be-

690 312 M

ICH

684 [Oct

cause of his prior involvement as an attorney and

witness to the matters in controversy, disqualiﬁed

himself from hearing the matter. The State Court

Administrator assigned this case to Judge Mack. On

April 22, 2013, plaintiff ﬁled a petition contesting

probate of the February 10, 2012 will on the basis that

it was the product of undue inﬂuence and sought

instead to probate Bill Brown’s June 11, 2008 will. On

May 13, 2013, the parties and Judge Mack agreed to

consolidate the two actions.

In June 2013, plaintiff moved for summary dispo-

sition under MCR 2.116(C)(9) and (10), and defendant

responded with her own motion for summary disposi-

tion under MCR 2.116(I). Judge Mack held a hearing

on the motions on July 15, 2013. The trial court took

the motions under advisement and subsequently is-

sued an opinion and order on August 8, 2013, granting

in part defendant’s motion and denying plaintiff’s

motion. The trial court concluded the terms of the

trust authorized Bill Brown as the surviving settlor-

trustee to execute the Lady Bird deed. In particular,

the trial court relied on Article VII of the trust, which

provided that “[d]uring Settlor’s lifetime, however,

Settlor may direct Trustee with respect to any matter

concerning the . . . distribution . . . of trust assets.”

Although Article II prohibited the surviving settlor

from revoking or amending the trust in any way, the

court found persuasive that Article VII powers re-

ferred to a singular settlor. Therefore, the court ruled

that “[w]hen [Bill] Brown executed the Lady Bird

deed on February [10], 2012 he was properly acting

under the authority granted to him in Article VII.

Additionally, Section 7.10 allowed him, as trustee, to

‘deal in real property . . . without regard to the dura-

tion of such interest.’ ”

2015] B

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691

The undue-inﬂuence claim, however, remained

pending, and following further discovery, defendant

moved for summary disposition regarding that claim.

After the parties presented oral arguments and further

brieﬁng, the trial court issued an opinion and order on

May 8, 2014, granting defendant’s motion. The trial

court relied primarily on the deposition of bank em-

ployee Yvonne Currie, who assisted Bill Brown in

making defendant a joint owner of various accounts,

and the testimony of then attorney Benjamin Bolser,

who drafted and witnessed the various documents

executed at his ofﬁce on February 10, 2012. The trial

court ruled that “all of the testimony supports the

conclusion that Bill Brown was acting of his own

volition and not subject to any undue inﬂuence” and

that “[p]laintiff has presented no evidence to the con-

trary.” The trial court also rejected consideration of a

presumption of undue inﬂuence because “the evidence

has not demonstrated a conﬁdential or ﬁduciary rela-

tionship between [defendant] and Bill Brown.” The

trial court entered an opinion and order denying plain-

tiff’s motion for reconsideration on June 5, 2014. Plain-

tiff now appeals by right.

II. THE TRUST

STANDARD OF REVIEW

This Court reviews de novo the trial court’s grant or

denial of a motion for summary disposition. Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A

motion under MCR 2.116(C)(10) tests the factual suf-

ﬁciency of a claim and must be supported by afﬁdavits,

depositions, admissions, or other documentary evi-

dence, the substance or content of which would be

admissible at trial. Id. at 120-121; Corley v Detroit Bd

of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The

692 312 M

ICH

684 [Oct

court must view the proffered evidence in the light

most favorable to the party opposing the motion.

Maiden, 461 Mich at 120. A court should grant the

motion when the submitted evidence fails to establish

any genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Brown

v Brown, 478 Mich 545, 552; 739 NW2d 313 (2007). “A

genuine issue of material fact exists when the record,

giving the beneﬁt of reasonable doubt to the opposing

party, leaves open an issue upon which reasonable

minds might differ.” West v Gen Motors Corp, 469 Mich

177, 183; 665 NW2d 468 (2003). When the undisputed

evidence shows that any party is entitled to judgment

as a matter of law, the court may enter judgment for

that party. MCR 2.116(I)(1) and (2); In re Baldwin

Trust, 480 Mich 915 (2007).

The interpretation of a trust agreement is also a

question of law reviewed de novo on appeal. In re

Herbert Trust, 303 Mich App 456, 458; 844 NW2d 163

(2013). “A court must ascertain and give effect to the

settlor’s intent when resolving a dispute concerning

the meaning of a trust.” Id. The settlor’s intent is

ascertained by looking to the words of the trust itself.

In re Perry Trust, 299 Mich App 525, 530; 831 NW2d

251 (2013). If the trust’s terms are ambiguous, a court

must look outside the document to determine the

settlor’s intent, and it may consider the circumstances

surrounding the creation of the trust and the general

rules of construction. In re Kostin Estate, 278 Mich App

47, 53; 748 NW2d 583 (2008). The fact that litigants

disagree regarding the meaning of a trust, however,

does not mean that it is ambiguous. See Detroit Wabeek

Bank & Trust Co v City of Adrian, 349 Mich 136, 143;

84 NW2d 441 (1957) (noting litigants espousing differ-

ent positions regarding the proper interpretation of a

will did not render its terms ambiguous); In re Reis-

2015] B

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693

man Estate, 266 Mich App 522, 527; 702 NW2d 658

(2005) (“The rules of construction applicable to wills

also apply to the interpretation of trust documents.”). A

court must also read a trust as a whole, harmonizing

its terms with the intent expressed, if possible. In re

Raymond Estate, 483 Mich 48, 52; 764 NW2d 1 (2009).

In sum, a court must enforce the plain and unambigu-

ous terms of a trust as they are written. Id.; Reisman

Estate, 266 Mich App at 527.

B. DISCUSSION

The trust’s plain terms authorize a settlor serving as

trustee

to engage in self-dealing and also plainly

authorize a settlor to direct the trustee “with respect to

any matter concerning the administration [or] distri-

bution . . . of trust assets.” The trust further authorizes

the trustee to “[m]ake distribution or division of trust

assets in cash or in kind,” to “deal in real property, or

any interest therein, as Trustee deems appropriate and

without regard to the duration of such interests,” and

to “[e]xecute and deliver an instrument that accom-

plishes or facilitates the exercise of a power vested in

Trustee.” Consequently, the trial court correctly ruled

that the trust granted Bill Brown as the surviving

settlor-trustee the authority under Article VII to ex-

ecute the February 10, 2012 Lady Bird deed quitclaim-

ing the Airport Road property to himself, with a

remainder to defendant. Further, the trial court cor-

rectly ruled that the conveyance did not alter or amend

any part of the trust. Thus, the trial court properly

granted defendant summary disposition regarding

plaintiff’s action to quiet title with respect to the

Airport Road property.

Plaintiff’s arguments to the contrary lack merit.

First, plaintiff asserts that the February 10, 2012

694 312 M

ICH

684 [Oct

quitclaim deed is contrary to the purpose of the trust to

distribute the trust’s assets to various named beneﬁ-

ciaries after the death of both settlors. While plaintiff

contends that the quitclaim deed effectively modiﬁed

or partially revoked the trust, this is simply not true

given that the trust’s terms remain unchanged from

the time that Bill Brown and Dena Brown last jointly

amended it. While the quitclaim deed clearly dimin-

ishes the amount of property subject to distribution

according to its terms, the trust itself was not modiﬁed.

Nevertheless, plaintiff asserts, without citation to any

provision in the trust, that “neither Bill Brown nor

Dena Brown could unilaterally remove” the Airport

Road property from the trust. But plaintiff fails to cite

any authority to support his argument that when a

married couple establishes an estate plan that includes

a trust, the surviving settlor-trustee is precluded from

transferring property from the trust even if doing so is

within the discretion vested in the settlor or trustee by

the terms of the trust document. “An appellant may

not merely announce his or her position and leave it to

this Court to discover and rationalize the basis for his

or her claims.” In re Temple Marital Trust, 278 Mich

App 122, 139; 748 NW2d 265 (2008). “And, where a

party fails to cite any supporting legal authority for its

position, the issue is deemed abandoned.” Prince v

MacDonald, 237 Mich App 186, 197; 602 NW2d 834

(1999).

Plaintiff also posits that because Bill Brown and

Dena Brown could have taken title to the Airport Road

property as joint tenants with rights of survivorship

but instead took title to the property as co-trustees,

they intended the property to remain in the trust. This

argument is unavailing. What the settlors might have

done, but did not do, does not establish the settlors’

intent with respect to the trust. Rather, the plain terms

2015] B

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695

of the trust establish the settlors’ intent. Raymond

Estate, 483 Mich at 52; Reisman Estate, 266 Mich App

at 527. As discussed already, the terms of the trust

plainly afford the surviving settlor-trustee broad au-

thority to engage in self-dealing, to distribute trust

assets in cash or in kind, to deal in real estate, and to

execute such instruments on such terms as the trustee

deems appropriate. The trustee’s exercise of these

powers that has the effect of diminishing trust assets

available for distribution after the death of the last

surviving settlor is nowhere prohibited by the terms of

the trust. This is not an absurd result, as plaintiff

argues, but one the settlors plainly contemplated.

Paragraph 4.2 of the trust provides that the trustee

may “pay to Settlors or apply for Settlors’ beneﬁt

amounts of principal (even to the exhaustion of the

trust) as Trustee, in Trustee’s discretion, deems neces-

sary or advisable to maintain Settlors’ customary stan-

dard of living.” While this provision does not speciﬁ-

cally authorize the quitclaim deed at issue, it

demonstrates that the trust was ﬁrst and foremost

drafted for the settlors’ beneﬁt during their lifetimes.

It provides no guarantee that “other” beneﬁciaries

under Article V would receive any distribution after

the death of the last surviving settlor.

Moreover, in a similar context of a married couple’s

estate plan, this Court has rejected imposing restric-

tions on the surviving spouse’s ability to dispose of the

couple’s property after the death of a spouse unless the

estate planning documents speciﬁcally impose restric-

tions. In re Leix Estate, 289 Mich App 574, 590-591; 797

NW2d 673 (2010). The Leix case concerned an agree-

ment to make mutual wills that would provide that, on

the death of the survivor, all of the survivor’s property

would go into a trust for a granddaughter for her life,

and on the granddaughter’s death, the remainder

696 312 M

ICH

684 [Oct

would be divided into three equal shares for the

granddaughter’s issue and two other heirs or their

issue. Id. at 578. After the death of his spouse, the

survivor transferred nearly all his assets into accounts

held jointly with the granddaughter and also trans-

ferred real estate to himself and the granddaughter as

joint tenants with survivorship rights. Id. at 576. “One

of the effects of the transfers was to divest the trust of

assets that the contingent trust beneﬁciaries might

have received upon [the granddaughter’s] death.” Id.

at 578. The other heirs brought an action to impose a

constructive trust, contending that the survivor’s life-

time transfers violated the agreement to execute mu-

tual wills. The trial court granted summary disposition

to the granddaughter because “nothing in the agree-

ment put any restrictions on what the surviving party

could do with the parties’ assets”; therefore, the asset

transfers did not breach the agreement. Id. at 577.

On appeal, this Court ﬁrst held that the agreement

to execute mutual wills was valid and became binding

on the death of the ﬁrst spouse. Id. at 578-579, citing

Schondelmayer v Schondelmayer, 320 Mich 565, 572;

31 NW2d 721 (1948). However, the mutual-will agree-

ment did not apply to speciﬁc property and did not

restrict the survivor’s ability to dispose of property

during the survivor’s lifetime. After surveying conﬂict-

ing caselaw from other jurisdictions, the Court rejected

the “appellant’s invitation to recognize implied limita-

tions on the transfer of assets by the surviving spouse

in the case of an agreement to make mutual wills.”

Leix Estate, 289 Mich App at 590. The Court reasoned

that “ ‘[a]n unambiguous contract must be enforced

according to its terms.’ ” Id., quoting Burkhardt v

Bailey, 260 Mich App 636, 656-657; 680 NW2d 453

(2004). Further, courts must enforce an agreement as

written absent an unusual circumstance, such as the

2015] B

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697

contract’s violating the law or being contrary to public

policy. Leix Estate, 289 Mich App at 590-591. The Leix

Estate Court held that these contract principles ap-

plied to the contract to make a mutual will. Conse-

quently, the Court held that “[r]egardless of whether

the [survivor’s asset] transfers were made for the

purpose of avoiding the testamentary disposition, the

agreement did not restrict [the survivor] from dispos-

ing of the assets as he saw ﬁt.” Id. at 591.

In the present case, nothing in the trust or other

testamentary documents restricted the surviving

settlor-trustee from disposing of trust assets as the

surviving settlor-trustee deemed appropriate. Indeed,

the trust speciﬁcally authorized Bill, as the surviving

settlor-trustee, to engage in self-dealing, to distribute

trust assets in cash or in kind, to deal in real estate, and

to execute any instruments the trustee considered ap-

propriate to carry out these powers. The trust agree-

ment must be enforced as written. Raymond Estate, 483

Mich at 52; Leix Estate, 289 Mich App at 590-591;

Reisman Estate, 266 Mich App at 527. The trial court

correctly ruled that defendant was entitled to summary

disposition regarding plaintiff’s action to quiet title with

respect to the Airport Road property.

III. THE UNDUE-INFLUENCE CLAIM

STANDARD OF REVIEW

This Court reviews de novo the trial court’s grant or

denial of a motion for summary disposition. Maiden,

461 Mich at 118. A trial court properly grants the

motion when the submitted evidence fails to establish

any genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Leix

Estate, 289 Mich App at 577.

698 312 M

ICH

684 [Oct

A trial court’s ruling on a motion for reconsideration

is reviewed for an abuse of discretion, which occurs

when the court’s decision falls outside the range of

principled outcomes. Yoost v Caspari, 295 Mich App

209, 219-220; 813 NW2d 783 (2012).

B. DISCUSSION

We afﬁrm the trial court on this issue because

plaintiff failed to produce any evidence creating a

material question of fact that either the Lady Bird

deed or the last will and testament was the product of

defendant’s undue inﬂuence over the free will of Bill

Brown. The trial court also correctly ruled that no

evidence was presented to establish a conﬁdential or

ﬁduciary relationship between Bill Brown and defen-

dant so as to invoke the presumption of undue inﬂu-

ence with respect to the documents executed on Feb-

ruary 10, 2012. Therefore, the trial court properly

granted defendant summary disposition and did not

abuse its discretion by denying plaintiff’s motion for

reconsideration.

The party alleging undue inﬂuence in the execution

of a testamentary instrument must present evidence

“that the grantor was subjected to threats, misrepre-

sentation, undue ﬂattery, fraud, or physical or moral

coercion sufﬁcient to overpower volition, destroy free

agency and impel the grantor to act against his incli-

nation and free will.” Kar v Hogan, 399 Mich 529, 537;

251 NW2d 77 (1976). Proof of motive, opportunity, or

even the ability to control the grantor is not sufﬁcient

to establish undue inﬂuence in the absence of afﬁrma-

tive proof that it was exercised. Id.; In re Karmey

Estate, 468 Mich 68, 75; 658 NW2d 796 (2003). Plain-

tiff presented no evidence to the trial court that defen-

dant had exerted undue inﬂuence over Bill Brown, and

2015] B

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699

on appeal, plaintiff points to none. Indeed, the afﬁrma-

tive evidence shows that Bill Brown’s actions on Feb-

ruary 10, 2012, in his individual capacity and as the

surviving settlor-trustee of the Bill and Dena Brown

trust, were Bill Brown’s free and voluntary choice.

Further, no evidence was presented that defendant

had inﬂuenced Bill Brown to create joint bank ac-

counts with her, to execute a new will naming defen-

dant as his personal representative and beneﬁciary, to

name defendant his attorney-in-fact for both general

purposes and healthcare decisions, or to execute the

Lady Bird quitclaim deed at issue.

Because plaintiff bore the ultimate burden of proof

and failed to produce any evidence to raise a material

question of fact regarding the elements of undue inﬂu-

ence, the trial court properly granted summary dispo-

sition to defendant on this claim. Kar, 399 Mich at 538

(“The ultimate burden of proof in undue inﬂuence

cases does not shift; it remains with the plaintiff

throughout trial.”); Leix Estate, 289 Mich App at 577

(summary disposition is appropriate if there is no

genuine issue of material fact and a party is entitled to

judgment as a matter of law). Plaintiff’s main assertion

of error regarding the trial court’s grant of summary

disposition is that the trial court failed to consider that

the circumstances raised a presumption of undue in-

ﬂuence because there was evidence of a conﬁdential or

ﬁduciary relationship between Bill Brown and defen-

dant. This argument is without merit.

A presumption of undue inﬂuence exists when evi-

dence establishes (1) the existence of a conﬁdential or

ﬁduciary relationship between the grantor and a ﬁdu-

ciary, (2) that the ﬁduciary or an interest represented

by the ﬁduciary beneﬁts from a transaction, and (3)

that the ﬁduciary had an opportunity to inﬂuence the

700 312 M

ICH

684 [Oct

grantor’s decision in the transaction. Kar, 399 Mich at

537. Even when the presumption arises, the ultimate

burden of proving undue inﬂuence remains on the

party alleging that it occurred. Id. at 538. But the

presumption satisﬁes the burden of persuasion, so if a

party opposing the allegation of undue inﬂuence “fails

to offer sufﬁcient rebuttal evidence,” then the party

alleging undue inﬂuence will have met its burden of

persuasion, i.e., its burden of showing the occurrence of

undue inﬂuence. Id. at 542. Generally, the fact-ﬁnder

must assess whether sufﬁcient evidence has been pre-

sented to rebut a presumption of undue inﬂuence. In re

Peterson Estate, 193 Mich App 257, 262; 483 NW2d 624

(1992).

Plaintiff identiﬁes no evidence of a conﬁdential or

ﬁduciary relationship between Bill Brown and defen-

dant that existed before the execution of the ques-

tioned documents. Instead, plaintiff asserts a boot-

strap argument that conﬂates the fact that the grant of

a power of attorney will create a ﬁduciary relationship,

citing In re Susser Estate, 254 Mich App 232, 236; 657

NW2d 147 (2002), with the general evidentiary prin-

ciple that subsequent acts may be circumstantial evi-

dence regarding earlier events, citing In re Persons

Estate, 346 Mich 517, 532; 78 NW2d 235 (1956) and

Walts v Walts, 127 Mich 607, 610; 86 NW 1030 (1901).

Plaintiff contends that Bill Brown’s creating a ﬁdu-

ciary relationship is sufﬁcient to raise a question of fact

regarding undue inﬂuence with regard to the execution

of contemporaneous or prior documents. This argu-

ment fails.

First, plaintiff cites no authority for the premise of

his argument that the creation of ﬁduciary relation-

ship retroactively extends a presumption of undue

inﬂuence to acts that took place before the ﬁduciary

2015] B

ROWN

RUST V

ARCIA

701

relationship was created. Moreover, the cases plaintiff

cites do not so hold. Persons Estate, 346 Mich at 532,

holds only that the conduct of the chief beneﬁciary of a

will before or after the will’s execution may be relevant

to whether undue inﬂuence was exerted in procuring

the making of the will. The case says nothing about a

presumption of undue inﬂuence applying retroactively

to times before the creation of a ﬁduciary relationship.

Similarly, Walts states the unremarkable evidentiary

principle that subsequent events may be circumstan-

tially relevant evidence to explain earlier conduct.

Thus, the evidence relates to prove a fact in existence

at an earlier time. Speciﬁcally, the Court stated that

“evidence showing acts of undue inﬂuence at a date

subsequent to the execution of the will is competent, in

connection with other facts and circumstances, in

support of the charge of undue inﬂuence exerted at the

earlier date[.]” Walts, 127 Mich at 610. This case also

does not hold that a presumption of undue inﬂuence

may be applied retroactively to times before the cre-

ation of a ﬁduciary relationship. An issue is deemed

abandoned when a party fails to cite any supporting

legal authority for its position. Prince, 237 Mich App at

197.

Second, our Supreme Court, in discussing the ele-

ments necessary to establish a presumption of undue

inﬂuence, clearly states that for the presumption to be

“brought to life,” i.e., to apply, evidence must be intro-

duced that would establish “the existence of a conﬁ-

dential or ﬁduciary relationship between the grantor

and a ﬁduciary . . . .” Kar, 399 Mich at 537. Stated

otherwise, the presumption of undue inﬂuence cannot

be applied to questioned documents that were created

before “the existence of a conﬁdential or ﬁduciary

relationship.” Thus, the creation of a ﬁduciary relation-

ship cannot shift the burden of persuasion with respect

702 312 M

ICH

684 [Oct

to undue inﬂuence that is alleged to have been exerted

before the ﬁduciary relationship was created. Because

the burden of production never shifted in this case

from plaintiff to defendant with respect to the ques-

tioned documents, and plaintiff failed to present evi-

dence to create a question of fact as to whether the

questioned documents were the product of undue in-

ﬂuence, the trial court properly granted defendant

summary disposition. Id. at 539-540; Leix Estate, 289

Mich App at 577.

Even if we were to assume that a presumption of

undue inﬂuence arising from the creation of the power

of attorney could be applied retroactively, we recognize

that the presumption creates only a permissible infer-

ence that may be rebutted by the introduction of

evidence to the contrary. Kar, 399 Mich at 541. The

ultimate burden of proof regarding undue inﬂuence

remains with the party who alleges that it occurred. Id.

at 539. In the present case, no evidence was presented

of undue inﬂuence and, in fact, the evidence showed

that Bill Brown’s actions were the result his own free

will. So, even if a presumption of undue inﬂuence

applied retroactively stemming from the creation of a

power of attorney in defendant, the presumption was

rebutted such that a reasonable trier of fact could only

conclude that the questioned documents were not the

product of undue inﬂuence. They were the result of Bill

Brown’s free will. See, e.g., id. at 537, 541, 543-544 (a

directed verdict is appropriate when a defendant’s

rebuttal evidence overcomes the presumption).

There-

fore,

considering the evidence submitted to the trial

The standard applicable to directed verdicts is the same as that for

a motion under MCR 2.116(C)(10), i.e., “whether reasonable minds,

taking the evidence in a light most favorable to the nonmovant, could

reach different conclusions regarding a material fact.” Skinner v Square

2015] B

ROWN

RUST V

ARCIA

703

court, even if a presumption of undue inﬂuence existed

at the time the questioned documents were created,

the evidence presented to the trial court, giving the

beneﬁt of reasonable doubt to plaintiff, does not leave

open a question of undue inﬂuence on which reason-

able minds might differ. Id. at 543-544; West, 469 Mich

at 183.

Plaintiff also argues that the trial court erred by

granting summary disposition to defendant regarding

undue inﬂuence because it relied on “conclusory opin-

ion” testimony of then attorney Benjamin Bolser and

bank employee Yvonne Currie. Both witnesses testiﬁed

in their depositions that they believed Bill Brown was

acting of his own volition when executing the ques-

tioned documents and that they saw nothing to indi-

cate otherwise. A trial court may only consider docu-

mentary evidence on a motion for summary disposition

under MCR 2.116(C)(10) “to the extent that the content

or substance would be admissible as evidence . . . .”

MCR 2.116(G)(6); see also Maiden, 461 Mich at 121.

Plaintiff’s argument in this regard lacks merit. To the

extent Bolser’s and Currie’s testimony amounted to lay

opinions, it would be substantively admissible because

it was “(a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in

issue.” MRE 701. “Any witness is qualiﬁed to testify as

to his or her physical observations and opinions formed

as a result of them.” Lamson v Martin (After Remand),

216 Mich App 452, 459; 549 NW2d 878 (1996).

In sum, the trial court properly granted defendant

summary disposition regarding plaintiff’s claim of un-

D Co, 445 Mich 153, 165 n 9; 516 NW2d 475 (1994), overruled in part on

other grounds Smith v Globe Life Ins Co, 460 Mich 446, 455 n 2; 597

NW2d 28 (1999).

704 312 M

ICH

684 [Oct

due inﬂuence with respect to the questioned docu-

ments. Leix Estate, 289 Mich App at 577. Furthermore,

the trial court also did not abuse its discretion by

denying plaintiff’s motion for reconsideration. Yoost,

295 Mich App at 219-220.

We afﬁrm. As the prevailing party, defendant may

tax costs pursuant to MCR 7.219.

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ., con-

curred.

2015] B

ROWN

RUST V

ARCIA

705

In re JAJUGA ESTATE

Docket No. 322522. Submitted October 8, 2015, at Petoskey. Decided

October 20, 2015, at 9:05 a.m.

Susan Veith ﬁled a petition in the Clare County Probate Court

objecting to a ﬁnal account and seeking to be awarded exempt

property under MCL 700.2404. Veith was the sole surviving child

of the decedent, Shelby J. Jajuga, who died testate. Her will

directed that her estate be divided equally between named

beneﬁciaries. The will speciﬁcally disinherited Veith. Joann

Chelenyak, the personal representative of Jajuga’s estate, had

refused to pay Veith the exempt-property allowance, contending

that she was not entitled to it because of the disinheriting

language in the will. The court, Marco S. Menezes, J., ruled that

Veith was entitled to the exempt property that she had requested,

concluding that a testator may not preclude a child from taking

exempt property through a disinheriting provision in a will.

Chelenyak appealed.

The Court of Appeals held:

Under MCL 700.2404, the decedent’s surviving spouse is

entitled to household furniture, automobiles, furnishings, appli-

ances, and personal effects from the estate up to a value not to

exceed $10,000 more than the amount of any security interests to

which the property is subject. If there is no surviving spouse, the

decedent’s children are entitled jointly to the same value. MCL

700.3101 provides that an individual’s power to leave property by

will is subject to the restrictions and limitations contained in the

Estates and Protected Individuals Code (EPIC), MCL 700.1101 et

seq. MCL 700.3101 further states that upon an individual’s death,

the decedent’s property devolves to the persons to whom the

property is devised by the decedent’s last will, subject to the

rights of creditors, the surviving spouse’s elective share, admin-

istration, certain allowances, and exempt property. Thus, a dece-

dent’s intended distribution of estate property is limited by the

provisions of the exempt-property statute. Under the plain lan-

guage of the exempt-property statute and reading that statute as

a whole and in context, the word “entitled” means having a legal

right to exempt property. There is no requirement that a child

actually receive a beneﬁt or share of the estate in order to claim

706 312

ICH

706 [Oct

exempt property. A child’s ability to claim exempt property is

separate from, independent of, or supplemental to any beneﬁt or

share received—or not received—under a will. Given the exis-

tence of a right to exempt property under MCL 700.2404 that is

separate from any property devised under the will, the language

in the decedent’s will that generally disinherited Veith was not

sufﬁcient under MCL 700.2404 to eliminate her statutory right to

exempt property because the disinheriting language did not refer

to Veith’s statutory rights. This reading of the statute is consis-

tent with caselaw from other jurisdictions that have considered

similar statutory language. Chelenyak was correct that MCL

700.2205 expressly provides for the waiver of exempt property by

a surviving spouse and that no other provision allows for such a

waiver by an adult child. However, given the legal differences

between a marital relationship and a parent-child relationship,

the possibility of waiver by a spouse under MCL 700.2205 does

not establish, contrary to Chelenyak’s assertion, that a decedent’s

surviving spouse has a vested right to exempt property while a

decedent’s child has only an unvested right. In light of the

signiﬁcant consequences that creating different rights for surviv-

ing spouses and adult children would have, the Legislature would

have expressly distinguished between the rights of those groups if

it had intended for that distinction to exist. In light of the plain

language of MCL 700.2404 and caselaw from other jurisdictions

interpreting provisions similar to those in EPIC, Veith had a

statutory right to exempt property under MCL 700.2404 that was

not eliminated by the disinheriting language in Jajuga’s will,

which included no expression of intent regarding Veith’s statu-

tory right to exempt property.

Afﬁrmed.

ILLS —

ISINHERITING

ROVISIONS —

HILD

’

IGHT TO

XEMPT

ROPERTY

Under the exempt-property statute, a decedent’s surviving spouse

is entitled to household furniture, automobiles, furnishings, ap-

pliances, and personal effects from the estate up to a value not to

exceed $10,000 more than the amount of any security interests to

which the property is subject; if there is no surviving spouse, the

decedent’s children are entitled jointly to the same value; a

decedent’s intended distribution of estate property is limited by

the provisions of the exempt-property statute, and a child’s ability

to claim exempt property is separate from, independent of, or

supplemental to any beneﬁt or share received—or not received—

under a will; a general disinheritance provision in a will is not

sufﬁcient to eliminate a child’s statutory right to exempt property

(MCL 700.2404).

2015] In

re J

AJUGA

STATE

707

Valerie Kutz-Otway, PLC (by Valerie Kutz-Otway),

for Susan Veith.

Martineau, Hackett, Romashko, O’Neil & Klaus,

PLLC (by Jeffrey J. Klaus), for Joann Chelenyak.

Before: M

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ.

IORDAN

, J. Respondent, Joann Chelenyak, who is

the personal representative of the estate of Shelby

Jean Jajuga, appeals as of right a probate court order

granting the petition for exempt property ﬁled by

petitioner, Susan P. Veith. We afﬁrm.

I. FACTUAL AND PROCEDURAL HISTORY

The relevant facts are undisputed in this case.

Petitioner

is the sole surviving child of the decedent,

Shelby Jean Jajuga. The decedent drafted her last will

and testament on January 16, 2002, under which her

estate was to be divided in equal parts among three

beneﬁciaries: (1) Mike and “Joanne Chelenysk,”

who

constituted

a single, joint beneﬁciary, (2) Jeanette

Mullins, and (3) Sherry Snyder. The decedent further

directed that petitioner and the decedent’s other chil-

dren, who were still living at the time, were to “inherit

nothing from [her] estate.” The decedent explained in

the will that her decision to disinherit her children was

“not because of any lack of love and affection I hold

toward them but because they have either received

compensation in advance of my death or because I do

not believe it would be in their best interest that they

inherit.” The decedent later ﬁled a codicil to her will,

appointing respondent as personal representative and

The will appears to have misspelled the name of beneﬁciary and

personal representative, Joann Chelenyak.

708 312 M

ICH

706 [Oct

directing that her estate be divided equally between

two, rather than three, named beneﬁciaries. The codi-

cil reafﬁrmed the remainder of the will and did not

alter the provision that disinherited petitioner.

Following the decedent’s death, petitioner ﬁled an

objection to the ﬁnal account “on the basis that the

Personal Representative has refused to pay Petitioner

the exempt property allowance as required by MCL

700.2404 . . . .” Petitioner asked the court to award the

exempt property that she had selected from the estate

(i.e., a car valued at $4,500, a tractor valued at $2,500,

and $7,000 in cash) or, in the alternative, $14,000 in

cash, plus $1,000 in attorney fees. In response, respon-

dent contended that petitioner was not entitled to

exempt property because she was speciﬁcally disinher-

ited under the will.

After holding a hearing on petitioner’s objection to

the ﬁnal account and requesting supplemental brieﬁng

from the parties, the probate court held, as an issue of

ﬁrst impression in Michigan, that petitioner was en-

titled to the exempt property that she had requested.

In light of the statutory language of MCL 700.2404,

other provisions of the Estates and Protected Individu-

als Code (EPIC), MCL 700.1101 et seq., and cases from

other jurisdictions construing similar statutory lan-

guage, the court concluded that a testator cannot

preclude a child from taking exempt property through

a disinheriting provision in a will. The Court found

that the meaning of “entitled” as used in MCL

700.2404 was ambiguous, but concluded, based on the

deﬁnition of “entitle” in Black’s Law Dictionary (9th

ed), that the Legislature intended to establish a legal

right to exempt property under MCL 700.2404 for a

surviving spouse or the children of a decedent in the

absence of a surviving spouse. In support of its conclu-

2015] In re J

AJUGA

STATE

709

sion that the word “entitled” referred to a legal right,

the court found that the phrase “in addition to” used in

MCL 700.2404(3) means “supplemental” and, there-

fore, did not establish a condition precedent that a

child must be eligible to receive a distribution from the

estate in order to claim exempt property.

The court acknowledged respondent’s argument

that the statute does not expressly “ ‘require exempt

property to be distributed to an adult child in contra-

diction to the express language’ ” of the will, but it

further noted that the statute does not directly “pro-

hibit exempt property from being distributed” when a

child has been disinherited, concluding that the Legis-

lature would have included such a provision if it had

intended to implement that limitation. The court also

recognized that a semantic difference exists between

an “allowance” and an “exemption” under EPIC, but

held that the distinction was not dispositive with

regard to the construction of “entitled,” noting that (1)

both an allowance and an exemption can constitute a

right, (2) Michigan caselaw has traditionally recog-

nized that allowances are rights and personal privi-

leges, and (3) the similarity between MCL 700.2402,

MCL 700.2403, and MCL 700.2404 clearly indicated

that the Legislature intended for those provisions to

operate in a parallel manner. Additionally, the court

rejected respondent’s argument that interpreting the

exempt-property provision as a right would conﬂict

with MCL 700.2102(2) and MCL 700.2302(2)(a), or

render those provisions inconsequential. The court

also held that the public policy underlying the exempt-

property statute was the protection of spouses and

children, and that the statute was a remedial statute

that should be liberally construed in favor of those

beneﬁtted under the statute. Finally, the court con-

710 312 M

ICH

706 [Oct

cluded that the rights of surviving children to exempt

property are equal to those of a surviving spouse.

II. STANDARDS OF REVIEW

This Court reviews de novo an issue of statutory

interpretation as a question of law. In re Temple Marital

Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008).

However, “appeals from a probate court decision are on

the record, not de novo.” Id., citing MCL 700.1305; MCL

600.866(1); MCR 5.802(B)(1); In re Webb H Coe Marital

and Residuary Trusts, 233 Mich App 525, 531; 593

NW2d 190 (1999). We review the probate court’s factual

ﬁndings for clear error and its dispositional rulings for

an abuse of discretion. Id. A “court abuses its discretion

when it chooses an outcome outside the range of reason-

able and principled outcomes.” Id.

III. WHETHER A DECEDENT MAY LIMIT OR MODIFY A SURVIVING

CHILD’S

CLAIM TO EXEMPT PROPERTY UNDER MCL 700.2404

On appeal, respondent asserts that the probate

court erred by granting petitioner’s claim of exempt

property. The gravamen of respondent’s arguments is

that a decedent may—through a provision that ex-

pressly disinherits a child under a will—eliminate an

adult child’s claim to exempt property under MCL

700.2404 when there is no surviving spouse. On the

facts of this case, we disagree and conclude that the

disinheriting language in the decedent’s will did not

eliminate petitioner’s statutory right to exempt prop-

erty under MCL 700.2404.

A. APPLICABLE LAW

This is an issue of ﬁrst impression under Mich-

gan law, which requires this Court to interpret

2015] In re J

AJUGA

STATE

711

MCL 700.2404 in the context of EPIC.

We restated

the following principles of statutory interpretation in

Book-Gilbert v Greenleaf, 302 Mich App 538, 541-542;

840 NW2d 743 (2013):

The judiciary’s objective when interpreting a statute is to

iscern and give effect to the intent of the Legislature.

First, the court examines the most reliable evidence of the

Legislature’s intent, the language of the statute itself.

When construing statutory language, [the court] must read

the statute as a whole and in its grammatical context,

giving each and every word its plain and ordinary meaning

unless otherwise deﬁned. Effect must be given to every

word, phrase, and clause in a statute, and the court must

avoid a construction that would render part of the statute

surplusage or nugatory. If the language of a statute is clear

and unambiguous, the statute must be enforced as written

and no further judicial construction is permitted. Generally,

when language is included in one section of a statute but

omitted from another section, it is presumed that the

drafters acted intentionally and purposely in their inclu-

sion or exclusion. The courts may not read into the statute

a requirement that the Legislature has seen ﬁt to omit.

When the Legislature fails to address a concern in the

statute with a speciﬁc provision, the courts cannot insert a

provision simply because it would have been wise of the

Legislature to do so to effect the statute’s purpose. Statutes

that address the same subject matter or share a common

purpose are in pari materia and must be read collectively as

one law, even when there is no reference to one another.

[Quotation marks and citations omitted; alteration in origi-

nal.]

MCL 700.1201 delineates speciﬁc rules of construction

that

should be applied when interpreting EPIC:

This act shall be liberally construed and applied to

promote its underlying purposes and policies, which in-

clude all of the following:

EPIC is modeled on the Uniform Probate Code. In re Sprenkle-Hill

Estate, 265 Mich App 254, 259; 703 NW2d 191 (2005).

712 312 M

ICH

706 [Oct

(a) To simplify and clarify the law concerning the

affairs of decedents, missing individuals, protected indi-

viduals, minors, and legally incapacitated individuals.

(b) To discover and make effective a decedent’s intent in

distribution of the decedent’s property.

dating a decedent’s estate and making distribution to the

decedent’s successors.

(d) To make the law uniform among the various juris-

dictions, both within and outside of this state.

MCL 700.2404 pertains to exempt property. It states:

(1) The decedent’s surviving spouse is also entitled to

household

furniture, automobiles, furnishings, appli-

ances, and personal effects from the estate up to a value

not to exceed $10,000.00 more than the amount of any

security interests to which the property is subject. If there

is no surviving spouse, the decedent’s children are entitled

jointly to the same value.

(2) If encumbered assets are selected and the value in

excess of security interests, plus that of other exempt

property, is less than $10,000.00, or if there is not

$10,000.00 worth of exempt property in the estate, the

spouse or children are entitled to other assets of the

estate, if any, to the extent necessary to make up the

$10,000.00 value. Rights to exempt property and assets

needed to make up a deﬁciency of exempt property have

priority over all claims against the estate, except that the

right to assets to make up a deﬁciency of exempt property

abates as necessary to permit payment of all of the

following in the following order:

(a) Administration costs and expenses.

(b) Reasonable funeral and burial expenses.

(d) Family allowance.

(3) The rights under this section are in addition to a

beneﬁt or share passing to the surviving spouse or chil-

2015] In

re J

AJUGA

STATE

713

dren by the decedent’s will, unless otherwise provided, by

intestate succession, or by elective share. The $10,000.00

amount expressed in this section shall be adjusted as

provided in section 1210.

As a preliminary matter, we acknowledge respon-

dent’s assertion that the primary role of the court when

interpreting a will is to ascertain the intent of the

testator and, if permissible under the law, effectuate

that intent: “In will cases the primary rule of construc-

tion and the primary function of courts is to ascertain

from the four corners of a will the intent of the testator

and, if legally possible, that intent must prevail.” Hay

v Hay, 317 Mich 370, 397; 26 NW2d 908 (1947); see

also Foster v Stevens, 146 Mich 131, 136; 109 NW 265

(1906). In the instant case, however, we are concerned

with interpreting and applying a statute, not discern-

ing the decedent’s testamentary intent. Nevertheless,

the rule of construction emphasized by respondent is

consistent with the rule of construction applicable to

EPIC under MCL 700.1201(b), i.e., to liberally construe

and apply the act in a way that promotes the discovery

and execution of the decedent’s intent in the distribu-

tion of the decedent’s property. There is no dispute in

this case that the decedent intended that petitioner

would inherit nothing from her estate.

However, it is important to recognize that MCL

700.3101 provides:

An individual’s power to leave property by will,

and the

rights of creditors, devisees, and heirs to his or her

property, are subject to the restrictions and limitations

contained in this act to facilitate the prompt settlement of

estates. Upon an individual’s death, the decedent’s prop-

erty devolves to the persons to whom the property is devised

by the decedent’s last will or to those indicated as substi-

tutes for them in cases involving lapse, disclaimer, or

other circumstances affecting devolution of a testate es-

714 312

ICH

706 [Oct

tate, or in the absence of testamentary disposition, to the

decedent’s heirs or to those indicated as substitutes for

them in cases involving disclaimer or other circumstances

affecting devolution of an intestate estate, subject to

homestead allowance, family allowance, and exempt prop-

erty, to rights of creditors, to the surviving spouse’s

elective share, and to administration. [Emphasis added.]

Accordingly, it is apparent that effectuating a dece-

dent’s

testamentary intent should not be our sole focus

in construing MCL 700.2404, as EPIC clearly provides

that an individual’s power to leave property by will is

subject to the exempt property provisions of MCL

700.2404.

Thus, we reject respondent’s argument that “[i]t is

counterproductive to permit the decedent to disinherit

an adult child on one hand and then grant the disin-

herited adult child rights in exempt property greater

than the right of the decedent to devise his or her

property.” Instead, it appears that MCL 700.3101 spe-

ciﬁcally contemplates and allows that result. Likewise,

we do not agree that “the statutory language is silent

as to whether or not [an] adult child’s ‘rights’ to exempt

property ha[ve] a ﬁrst priority over the decedent’s

devise or other intended distribution from the estate.”

Again, MCL 700.3101 expressly provides that a dece-

dent’s devises are subject to exempt property, which

clearly indicates that a decedent’s intended distribu-

tion of estate property is limited by the provisions of

the exempt-property statute. Therefore, given that the

language of an act is the most reliable evidence of the

Legislature’s intent, Book-Gilbert, 302 Mich App at

541, we reject respondent’s claim that there is no

statutory support for the court’s ruling that exempt

property may be distributed to an adult child in con-

tradiction to the express language disinheriting the

child under the will. For the same reasons, we reject

2015] In re J

AJUGA

STATE

715

respondent’s public policy claims regarding whether

the exempt-property provision of MCL 700.2404 has

priority over a decedent’s power to devise his or her

property in light of the unambiguous language in MCL

700.3101.

Additionally, respondent contends that resolution of

this appeal requires the construction of MCL 700.2101

because MCL 700.2101(2) and MCL 700.2404 appear

to conﬂict, and construing MCL 700.2404 in a way that

establishes a right to exempt property that cannot be

eliminated by express testamentary language would

render MCL 700.2101(2) inconsequential or trivial. We

disagree and conclude that the language of MCL

700.2101(2) is inapposite when determining the nature

of an adult child’s entitlement to exempt property

under MCL 700.2404.

MCL 700.2101 provides:

(1) Any part of a decedent’s estate not effectively

disposed

of by will passes by intestate succession to the

decedent’s heirs as prescribed in this act, except as modi-

ﬁed by the decedent’s will.

(2) A decedent by will may expressly exclude or limit

the right of an individual or class to succeed to property of

the decedent that passes by intestate succession. If that

individual or a member of that class survives the dece-

dent, the share of the decedent’s intestate estate to which

that individual or class would have succeeded passes as if

that individual or each member of that class had dis-

claimed his or her intestate share.

Whereas MCL 700.2101 governs property distributions

hen the decedent died intestate or did not provide for

the distribution of part of the estate in the will, MCL

700.2404 is applicable to both intestate and testate

estates. See MCL 700.2404(3). It is implicit in the plain

language of MCL 700.2404(3) that a distribution of

716 312 M

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exempt property does not constitute the passage of

property by intestate succession. Instead, given the

clear language that rights to exempt property under

MCL 700.2404 are in addition to any beneﬁt or share

that passes by intestate succession, it is evident that

exempt property passes by a means other than intestate

succession. This conclusion is further supported by the

fact that MCL 700.3101 states that the passage of a

decedent’s property through intestacy is “subject to

homestead allowance, family allowance, and exempt

property, to rights of creditors, to the surviving spouse’s

elective share, and to administration.” (Emphasis

added.) In addition, a decedent may limit the right of an

individual who would have taken under the laws of

intestate succession pursuant to MCL 700.2101 without

necessarily affecting the right of a surviving spouse or

child to exempt property under MCL 700.2404.

In this case, there is no dispute that the decedent

died testate, and that her will provided that her entire

estate was to be divided equally between her desig-

nated beneﬁciaries. Because the decedent’s entire es-

tate was “effectively disposed of” by her will, MCL

700.2101 is not applicable. See MCL 700.2101(1).

Likewise, for the foregoing reasons, we reject respon-

While John Martin, reporter for the EPIC drafting committee of the

Probate and Estate Planning Section of the State Bar of Michigan, in a

“Reporter’s Comment” concerning MCL 700.2402 cites MCL 700.2101(2)

as a provision that “point[s] to the fact that a decedent could omit a child

not only from taking anything under the decedent’s will but also from

receiving allowances as well,” the comment later states that “it is

unclear whether the decedent may modify or eliminate these exemp-

tions and allowances by will.” Martin & Harder, Estates and Protected

Individuals Code with Reporters’ Commentary (ICLE, February 2015

update), p 79. The plain language of the statutes leads us to conclude

that MCL 700.2101(2) is not dispositive in the instant case. See also

MCL 700.2205 (referring to a share passing by intestate succession and

exempt property as two separate rights).

2015] In

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dent’s claim that a conﬂict arises between MCL

700.2101 and MCL 700.2404 if a disinherited child is

permitted to claim exempt property, as the statutes

pertain to different types of property transfers.

B. THE LANGUAGE OF MCL 700.2404

THE MEANING OF “ENTITLED”

Respondent contends that the probate court erred by

ﬁnding that the Legislature’s use of the term “entitled”

in MCL 700.2404(1) establishes that a decedent’s chil-

dren have a statutory right to exempt property when

there is no surviving spouse. We disagree.

“Entitled” is not deﬁned by statute. “When the Leg-

islature has not deﬁned a statute’s terms, we may

consider dictionary deﬁnitions to aid our interpreta-

tion.” Autodie LLC v Grand Rapids, 305 Mich App 423,

434; 852 NW2d 650 (2014). According to Merriam-

Webster’s Collegiate Dictionary (11th ed), “entitle”

means “to furnish with proper grounds for seeking or

claiming something[.]” Similarly, Black’s Law Diction-

ary (10th ed) deﬁnes “entitle” as “[t]o grant a legal right

to or qualify for.” In considering both deﬁnitions, we

conclude that the plain meaning of “entitled” in this

context is having a legal right to exempt property, or

meeting the qualiﬁcations to claim exempt property as a

matter of law.

Respondent, however, asserts that “[t]he plain and

ordinary meaning of ‘entitled’ is one of eligibility as to

the right of priority” and does not establish an “abso-

lute right to the exempt property . . . .” Construing

“entitled” in the manner advocated by respondent is

inconsistent with the context of the word “entitled” in

the statute. MCL 700.2404(3) refers to a surviving

spouse’s entitlement (or, if there is no surviving

718 312 M

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spouse, the entitlement of the decedent’s children) to

the property listed in the statute as “rights.” The statute

does not indicate that these rights are merely proce-

dural rights of priority that arise once a child is eligible

to claim exempt property. See G C Timmis & Co v

Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710

(2003) (“In seeking meaning, words and clauses will not

be divorced from those which precede and those which

follow.”) (quotation marks and citation omitted); Potter v

McLeary, 484 Mich 397, 411; 774 NW2d 1 (2009)

(“[W]hen considering the correct interpretation, [a] stat-

ute must be read as a whole. Individual words and

phrases, while important, should be read in the context

of the entire legislative scheme. In deﬁning particular

words in statutes, we must consider both the plain

meaning of the critical word or phrase as well as its

placement and purpose in the statutory scheme.”) (cita-

tions omitted). Instead, the statutory language ﬁrst

describes the property to which a surviving spouse (or, if

there is no surviving spouse, the decedent’s children) is

entitled and subsequently states that those rights them-

selves “have priority over all claims against the estate,”

not that the rights only constitute rights of priority.

MCL 700.2404. Furthermore, the fact that the devises

in a testator’s will are subject to exempt property pur-

suant to MCL 700.3101 further suggests that surviving

spouses or children have a legal right to—not just a

right of priority as to—exempt property under MCL

700.2404. Therefore, in reading EPIC as a whole, see G

C Timmis, 468 Mich at 421; Book-Gilbert, 302 Mich App

at 541, we conclude that the term “entitled” does, in fact,

establish a right in a decedent’s child to claim exempt

property.

Although we agree with respondent that the right to exempt

property may be restricted to a certain extent, as it must abate as

2015] In

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This conclusion is supported by the comments of the

reporter for the EPIC drafting committee of the State

Bar of Michigan. “While not binding, the reporter’s

comments concerning EPIC may aid in the interpreta-

tion of a statute or rule.” In re Bittner Conservatorship,

312 Mich App 227, 242; 879 NW2d 269 (2015) (quota-

tion marks and citation omitted). The reporter’s com-

ment concerning MCL 700.2404 provides, in relevant

part: “Like the homestead allowance, the exempt prop-

erty allowance does not need to be elected. The surviv-

ing spouse is (or children are) entitled to the allowance,

and the personal representative has an obligation to

pay it.” Martin & Harder, Estates and Protected Indi-

viduals Code with Reporters’ Commentary (ICLE, Feb-

ruary 2015 update), p 82 (emphasis added). Likewise,

the reporter’s comment concerning MCL 700.2402,

which is cross-referenced in the comment regarding

MCL 700.2404, states, in pertinent part:

There is no statutory or court rule provision requiring

the

personal representative to give notice of the home-

stead allowance (or exempt property allowance) to the

surviving spouse (or children if there is no surviving

spouse). None is needed. These allowances are not elec-

tive. Subject to possible modiﬁcation by the testator or

spousal agreement (as explained below), they stand as

statutorily mandated transfers of a portion of the dece-

dent’s property. [Id. at 78.]

Therefore, for the reasons stated, we conclude that

the

Legislature’s use of the word “entitled” in MCL

necessary for the costs, expenses, and allowances listed in MCL

700.2404(2), this fact does not preclude a ﬁnding that a legal right

exists. Furthermore, as discussed later in this opinion, courts from other

jurisdictions that have interpreted strikingly similar statutory language

have concluded that the right to exempt property is “absolute.” See In re

Peterson Estate, 254 Neb 334, 340-341; 576 NW2d 767 (1998); In re

Wagley Estate, 760 P2d 316, 318 (Utah, 1988); In re Dunlap Estate, 199

Mont 488, 490-492; 649 P2d 1303 (1982).

720 312

ICH

706 [Oct

700.2404(1), especially when read in context, estab-

lishes a statutory right to a mandatory transfer of

exempt property, not merely a right of priority.

2. THE MEANING OF “IN ADDITION TO” AND

“UNLESS OTHERWISE PROVIDED”

Respondent argues that a plain reading of MCL

700.2404 reveals a preliminary assumption that an

adult child must actually receive a beneﬁt or share of

the estate in order to claim exempt property. We

disagree.

The plain language of the statute states that “[t]he

rights” to which a surviving spouse, or a decedent’s

child, is entitled under MCL 700.2404 “are in addition

to a beneﬁt or share passing to the surviving spouse or

children by the decedent’s will, unless otherwise pro-

vided, by intestate succession, or by elective share.”

MCL 700.2404(3) (emphasis added). As the probate

court concluded, we hold that the plain meaning of this

language is that a child’s ability to claim exempt

property is separate from, independent of, or supple-

mental to any beneﬁt or share received—or not

received—under a will. We discern no indication of a

condition precedent or a requirement that a child must

receive a devise under a will in order to claim exempt

property. This conclusion is consistent with the fact

Because we ﬁnd that MCL 700.2404 establishes a statutory right

regardless of whether the statute is remedial in nature, we need not

consider respondent’s argument that the trial court erroneously relied

on a conclusion that MCL 700.2404 was a remedial statute in determin-

ing whether petitioner had a statutory right to exempt property.

Nevertheless, we note that Michigan courts have distinguished reme-

dial statutes from statutes that confer substantive rights. See, e.g.,

Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 585; 624

NW2d 180 (2001); Rookledge v Garwood, 340 Mich 444, 453; 65 NW2d

785 (1954).

2015] In

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that a decedent’s devises under a will are subject to

exempt property, MCL 700.3101, which indicates that

the operation of the exempt-property statute is sepa-

rate and distinct from the speciﬁc devises of a will. This

conclusion is also consistent with the decisions of other

state courts interpreting language strikingly similar to

MCL 700.2404. See Part III(C) of this opinion.

Additionally, respondent argues that language ex-

pressly stating that an adult child is to receive nothing

under a will is sufﬁcient to trigger the “unless other-

wise provided” language under MCL 700.2404, such

that petitioner was not entitled to exempt property

under MCL 700.2404 given the disinheriting language

in the will. We disagree.

Given the existence of a right to exempt property

under MCL 700.2404 that is separate from any prop-

erty devised under the will, we conclude that the

language in the decedent’s will that generally disinher-

ited petitioner was not sufﬁcient under MCL 700.2404

to eliminate petitioner’s statutory right to exempt

property because the disinheriting language included

no reference to petitioner’s statutory rights.

Analogously, the reporter’s comment regarding MCL 700.2404 pro-

vides, “A speciﬁc devise of personal property to the spouse or children

without a further indication that it replaces this exemption should not

be interpreted as within the phrase ‘unless otherwise provided.’ ”

Martin & Harder, pp 81-82. The reporter’s comment in regard to MCL

700.2402 also states the following with regard to the “unless otherwise

provided” language in that statute, ultimately concluding that it is

unclear whether a decedent may modify or eliminate an exemption by

will:

The phrase “unless otherwise provided” in the last sentence of

§ 2402 permits a testator to stipulate that the allowance is to be

treated as part of the share given by will to the spouse (or other

recipient). The allowances in §§ 2402, 2403, and 2404, [MCL

700.2402, MCL 700.2403, and MCL 700.2404], are certainly

intended to offer some economic protection to the surviving

722 312 M

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706 [Oct

C. CASELAW FROM OTHER JURISDICTIONS

Our analysis is consistent with that in cases from

other jurisdictions that have considered statutes strik-

ingly similar to MCL 700.2404.

In In re Dunlap Estate,

199 Mont 488, 489; 649 P2d 1303 (1982), the decedent,

whose husband predeceased her, executed a will in

which she speciﬁcally disinherited her son, who sought

to claim exempt property. “The sole issue before [the

spouse and to children when they are eligible. May the decedent,

however, stipulate in his or her will that one or more of the

allowances not be paid? In other words, can a spouse or a child be

omitted from coverage by these allowances? It seems clear that a

spouse may not be denied these allowances through unilateral

action by the decedent. Section 2205, MCL 700.2205, appears to

state the only methods by which the spouse may be excluded from

receiving the allowances. All require consent of the spouse. Other

provisions point to the fact that a decedent could omit a child not

only from taking anything under the decedent’s will but also from

receiving allowances as well. These sections are MCL 700.2101(2)

(permitting exclusion from receiving an intestate share), and

§ 2302, MCL 700.2302 (providing no share for a child who is

deliberately or inadvertently excluded from a will, except in very

limited situations). The inclusion of dependent children in the

coverage of §§ 2402 and 2403 arguably is based on a public policy

of providing a minimal beneﬁt in all events for the one or those

who have an economic need. Because children who may take

exempt property under § 2404 need not be dependent children,

their inclusion may be based on simple fairness, not economic

necessity. Whatever the policy reason for including children

within the coverage of these provisions, it is unclear whether the

decedent may modify or eliminate these exemptions and allow-

ances by will. [Id. at 78-79 (emphasis added).]

“Cases from other jurisdictions, although not binding, may be

persuasive.” Holland v Trinity Health Care Corp, 287 Mich App 524, 529

n 2; 791 NW2d 724 (2010). We ﬁnd this caselaw especially signiﬁcant

given that MCL 700.1201 mandates that we liberally construe and apply

EPIC in order to “make the law uniform among the various jurisdic-

tions, both within and outside of this state.” MCL 700.1201(d). Although

the statutes construed in the cases from other jurisdictions cited in this

opinion were subsequently amended, we ﬁnd that interpreting MCL

700.2404 in a manner analogous to the interpretations of the similar,

albeit prior, versions of the statutes advances the uniformity and

predictability of the law.

2015] In

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court was] whether a child speciﬁcally disinherited by

will may take under [Mont Code Ann 72-2-802] which

provides exempt property for certain heirs.” Id. At the

time, Montana’s exempt-property statute provided:

(1) In addition to the homestead allowance, the

surviving

spouse of a decedent who was domiciled in

this state is entitled from the estate to value not

exceeding $3,500 in excess of any security interests

therein in household furniture, automobiles, fur-

nishings, appliances, and personal effects. If there is

no surviving spouse, children of the decedent are

entitled jointly to the same value. If encumbered

chattels are selected and if the value [in] excess of

security interests, plus that of other exempt prop-

erty, is less than $3,500 or if there is not $3,500

worth of exempt property in the estate, the spouse or

children are entitled to other assets of the estate, if

any, to the extent necessary to make up the $3,500

value.

(2) Rights to exempt property and assets needed

to make up a deﬁciency of exempt property have

priority over all claims against the estate, except

that the right to any assets to make up a deﬁciency

of exempt property shall abate as necessary to

permit prior payment of homestead allowance and

family allowance.

(3) These rights are in addition to any beneﬁt or

share passing to the surviving spouse or children by

the will of the decedent unless otherwise provided,

by intestate succession, or by way of elective share.

[Id. at 489-490, quoting Mont Code Ann 72-2-802

(now Mont Code Ann 72-2-413) (emphasis omitted).]

As in the instant case, the estate argued “(1) that

[

the] testator’s intent governs the above section, and (2)

that the statutory language in subsection (3) above,

‘unless otherwise provided,’ includes the will of the

testator by disinheriting the son and hence the son

cannot be the recipient of exempt property.” Dunlap

724 312 M

ICH

706 [Oct

Estate, 199 Mont at 490 (emphasis omitted). Like us,

the Montana Supreme Court disagreed and afﬁrmed

the district court’s order granting the disinherited

son’s petition for exempt property. Id. at 488-489, 492.

The court stated, “We agree . . . that the governing rule

in construction or interpretation of a testamentary

disposition is the intention of the testator and must

prevail; however, that is not our case here.” Id. at 490

(emphasis omitted). The Court reasoned that the

phrase “unless otherwise provided” must be considered

in light of the section as a whole and concluded, on the

basis of the language of the entire statute and caselaw

interpreting a surviving spouse’s right to exempt prop-

erty and the homestead allowance, that either the

surviving spouse or the decedent’s children have an

absolute right to exempt property. Id. at 490-492. The

court speciﬁcally found that “[t]he statute embodies a

priority right in the surviving spouse as against the

surviving children of the decedent, but does not grant

a surviving spouse any greater right to exempt prop-

erty than the surviving children.” Id. at 491. Moreover,

the Court determined that exempt property assets “are

protected from creditors so that property and money

can be distributed to those people whom Montana’s

legislature has determined to protect.” Id. Further, the

Court stated that “[t]he family protection provisions of

the Uniform Probate Code”—including the “statutory

rights vested in the surviving spouse and certain

children” to exempt property and allowances—“were

intended by the drafters to protect a surviving spouse

and children from disinheritance by a decedent.” Id. at

491-492.

Finally, the court noted, in upholding the

Respondent appears to contest this conclusion by arguing that the

trial court erred by failing to distinguish between allowances and

exemptions under EPIC, arguing that allowances are separate and

distinct from exempt property under EPIC. However, we decline to

2015] In

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child’s claim of exempt property, that “the decedent’s

will did no more than disinherit the child and ex-

pressed no intent as to statutory rights.” Id. at 492. See

also In re Herr Estate, 460 NW2d 699, 705-706 (ND,

1990) (citing with approval the court’s holding and

reasoning in In re Dunlap Estate and quoting a provi-

sion similar to MCL 700.3101 in determining that a

child was entitled to exempt property under a statute

similar to MCL 700.2404 even though she received

nothing under the decedent’s will).

Similarly, Nebraska’s Supreme Court construed a

prior version of its exempt-property statute, which was

similar to MCL 700.2404, in order to determine

“whether an adult, emancipated son of a testator is

entitled to an exempt property allowance of $5,000

pursuant to [Neb Rev Stat] 30-2323 (Reissue 1995)

when the will speciﬁcally provided that under no

circumstance should any share of the testator’s estate

go to his son.” Peterson Estate, 254 Neb 334, 335; 576

NW2d 767 (1998). At the time, the exempt-property

statute provided:

In addition to the homestead allowance, the sur-

viving

spouse of a decedent who was domiciled in

this state is entitled from the estate to value not

exceeding ﬁve thousand dollars in excess of any

security interests therein in household furniture,

automobiles, furnishings, appliances, and personal

address this argument because it has no bearing on our construction of

the right to exempt property under MCL 700.2404, and respondent

expressly concedes that “[t]he issue before this Court is limited only to

the Exempt Property provisions under MCL 700.2404, as they apply to

a disinherited adult child . . . .” Nevertheless, we note that the reporter’s

comments concerning these provisions expressly refer to the exempt-

property provision as “the exempt property allowance” and further refer

to “the allowances” under MCL 700.2402, MCL 700.2403, and MCL

700.2404, which strongly suggests that respondent asserts a false

distinction. See Martin & Harder, pp 78-83.

726 312

ICH

706 [Oct

effects. If there is no surviving spouse, children of

the decedent are entitled jointly to the same value. If

encumbered chattels are selected and if the value in

excess of security interests, plus that of other ex-

empt property, is less than ﬁve thousand dollars, or

if there is not ﬁve thousand dollars worth of exempt

property in the estate, the spouse or children are

entitled to other assets of the estate, if any, to the

extent necessary to make up the ﬁve thousand

dollars value. Rights to exempt property and assets

needed to make up a deﬁciency of exempt property

have priority over all claims against the estate

except for costs and expenses of administration, and

except that the right to any assets to make up a

deﬁciency of exempt property shall abate as neces-

sary to permit prior payment of homestead allow-

ance and family allowance. These rights are in

addition to any beneﬁt or share passing to the

surviving spouse or children by the will of the dece-

dent unless otherwise provided therein, by intestate

succession, or by way of elective share. [Id. at 336-

337, quoting Neb Rev Stat 30-2323 (Reissue 1995).]

The court “conclude[d] that the plain and unambiguous

language

of § 30-2323 creates a statutory right that

accrues to the surviving spouse or the surviving chil-

dren jointly if there is no surviving spouse upon the

death of the testator.” Peterson Estate, 254 Neb at 339.

In determining whether “this right is indefeasibly

vested or whether it may be abrogated by will,” the

court considered Dunlap Estate, 199 Mont 488, and

noted that other jurisdictions allowing a testator to

provide for a bequest instead of a statutory allowance

have indicated that the testator’s intent to do so “must

be clear from the language of the will before the court

will bar the statutory grant.” Peterson Estate, 254 Neb

at 339-340. The court ultimately held:

In construing the language of § 30-2323, we conclude

that

the statutory rights granted therein are vested and

2015] In

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indefeasible. The clear intent of § 30-2323 is to provide an

exempt property allowance, which beneﬁt is “in addition

to” any beneﬁts passing to the surviving spouse or surviv-

ing children by will, by intestate succession, or by way of

elective share. Unless a testator clearly provides in the

will that the devises and bequests are in lieu of exempt

property, then the spouse or children are entitled to both.

[Id. at 340.]

Finally, the court wrote:

If the will of a testator clearly provides otherwise, then

an exempt property allowance is not “in addition to” any

beneﬁt by will, intestate succession, or elective share.

Regardless, the rights set forth in § 30-2323 cannot be

defeated by a testator even though the testator may

require a spouse or child to choose between the devise or

the exempt property allowance.

The county court erred in ﬁnding that [the disinherited

son] was not entitled to an exempt property allowance.

The testator disinherited [the son], but [the son] is en-

titled to an exempt property allowance in accordance with

§ 30-2323. [Id. at 341.]

[9]

Even though the Nebraska Legislature amended Neb

Rev

Stat 30-2323 after the Peterson Estate decision

was issued to expressly prevent children disinherited

under a will from claiming exempt property, we con-

clude that the reasoning applied by the Nebraska

Supreme Court in Peterson Estate and the Montana

Supreme Court in Dunlap Estate, with respect to

statutes strikingly similar to MCL 700.2404, conﬁrms

that our holding is consistent with the plain

Although the Peterson Estate court did not expressly mention the

rules of construction in place under the probate code, when the case was

decided Nebraska’s probate code included rules of construction that

were nearly identical to Michigan’s rules of construction under MCL

700.1201—most notably, “to discover and make effective the intent of a

decedent in distribution of his or her property[.]” Neb Rev Stat 30-2202.

728 312

ICH

706 [Oct

language of MCL 700.2404 as it stands today.

Fur-

thermore, cases from other jurisdictions interpreting

exempt-property statutes with language similar to

MCL 700.2404 in regard to a surviving spouse and a

homestead allowance provision similar to MCL

700.2402, which also included entitlement language

that mirrors MCL 700.2404, have determined that the

statutes unambiguously establish an entitlement or

absolute right as a matter of law. See In re Martelle

Estate, 2001 Mont 194, ¶¶ 21 and 37; 306 Mont 253; 32

P3d 758 (2001); In re Wagley Estate, 760 P2d 316,

317-318 (Utah, 1988).

Therefore, in light of the plain language of the

statute

and caselaw from other jurisdictions interpret-

ing provisions similar to those in EPIC, we hold that

petitioner has a statutory right to exempt property

under MCL 700.2404 that was not eliminated by the

disinheriting language in the decedent’s will, which

included no expression of intent regarding petitioner’s

statutory right to exempt property.

D. DISTINCTION BETWEEN RIGHTS OF SURVIVING SPOUSES

AND

ADULT, NONDEPENDENT CHILDREN

Lastly, respondent contends that the trial court

erred by failing to distinguish between the rights of a

surviving spouse and the rights of adult, nondependent

children in applying MCL 700.2404. She argues, on the

basis of language in MCL 700.2205, that the Legisla-

Respondent concedes that an amendment of MCL 700.2404, as was

done in Nebraska, would give her the outcome that she seeks in this

appeal. But because a legislative ﬁx is not available to her, she would

like this Court to rewrite the statute. We decline to do so, as this is a

function of the Legislature.

As discussed later in this opinion, we perceive no indication in the

statutory text that a qualifying child has less of a right to exempt

property than a surviving spouse under MCL 700.2404.

2015] In

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ture did not intend for the rights granted to a surviving

spouse under MCL 700.2402 through MCL 700.2404 to

be equal to the rights granted to an adult child when

there is no surviving spouse. Although we agree that

the statutory text supports the conclusion that there is

a distinction between the rights of a surviving spouse

and the rights of an adult child, we are not persuaded

that MCL 700.2205, on its own, demonstrates that the

rights of an adult child to exempt property are not

vested.

Respondent is correct that MCL 700.2205 expressly

provides for the waiver of exempt property by a sur-

viving spouse and that no other provision allows for

such a waiver by an adult child. MCL 700.2205 states:

The rights of the surviving spouse to a share under

intestate

succession, homestead allowance, election,

dower, exempt property, or family allowance may be

waived, wholly or partially, before or after marriage, by a

written contract, agreement, or waiver signed by the party

waiving after fair disclosure. Unless it provides to the

contrary, a waiver of “all rights” in the property or estate

of a present or prospective spouse or a complete property

settlement entered into after or in anticipation of separate

maintenance is a waiver of all rights to homestead allow-

ance, election, dower, exempt property, and family allow-

ance by the spouse in the property of the other and is an

irrevocable renunciation by the spouse of all beneﬁts that

would otherwise pass to the spouse from the other spouse

by intestate succession or by virtue of a will executed

before the waiver or property settlement.

Respondent argues that we should infer from this

language

that a surviving spouse has a vested right to

exempt property that cannot be waived without the

consent of the spouse, while a nondependent adult

child does not have the same vested right, such that his

or her consent is not required for his or her right to

730 312 M

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706 [Oct

exempt property to be modiﬁed or eliminated by a

decedent’s will.

Given the signiﬁcant legal differences between—and

implications of—a marital relationship as opposed to a

parent-child relationship, we disagree that the express

possibility of waiver “by a written contract, agreement,

or waiver signed by the party waiving after fair disclo-

sure” under MCL 700.2205 necessarily establishes that

a decedent’s surviving spouse has a vested right to

exempt property while a decedent’s adult child does not.

Apart from the possibility of spousal waiver established

under MCL 700.2205, we discern no indication that the

Legislature intended for children to have different or

limited rights to exempt property as compared to a

surviving spouse. In light of the signiﬁcant conse-

quences that creating different rights for surviving

spouses and children would have, we conclude that the

Legislature would have expressly distinguished be-

tween the rights of those groups in the text if it had

intended for that distinction to exist. Cf. Sclafani v

Domestic Violence Escape, 255 Mich App 260, 269-270;

660 NW2d 97 (2003) (reasoning that the Legislature

would have expressed an intention more clearly if it had

intended to implement such a provision). It is not the

role of the Court to judicially legislate by adding lan-

guage to a statute, Empire Iron Mining Partnership v

Orhanen, 455 Mich 410, 421; 565 NW2d 844 (1997), and

this Court may not engraft a limitation of a right, which

is not included by the Legislature, “under the guise of

statutory construction,” see Lakeland Neurocare Ctrs v

State Farm Mut Auto Ins Co, 250 Mich App 35, 40; 645

NW2d 59 (2002).

Contrary to respondent’s claim, the reporter’s comment regarding

MCL 700.2205, like us, appears to draw the inference that an adult

child’s right to exempt property may not be waived:

2015] In

re J

AJUGA

STATE

731

Therefore, we reject respondent’s argument that

MCL 700.2205 indicates that an adult child has an

inferior right to exempt property compared to a surviv-

ing spouse.

IV. CONCLUSION

Although it may have been prudent for the Legis-

ature to speciﬁcally prescribe the way in which a

statement of a decedent’s intent to disinherit a child

under a will affects the child’s claim to exempt prop-

erty, especially given that one of the express purposes

and policies of EPIC is “[t]o discover and make

effective a decedent’s intent in distribution of the

decedent’s property,” MCL 700.1201(b), it is not our

role to do so. “When the Legislature fails to address a

concern in [a] statute with a speciﬁc provision, the

courts cannot insert a provision simply because it

would have been wise of the Legislature to do so to

effect the statute’s purpose.” Book-Gilbert, 302 Mich

App at 542 (quotation marks and citation omitted).

If the Legislature wished to extend the testator’s

intent in disinheriting a child to the child’s statutory

right to exempt property, it could have expressly stated

that intent in the statute. However, the statute is

silent in this regard. Therefore, for the reasons stated

in this opinion, we conclude that petitioner has a right

This section permits only a spouse to waive allowances and

the right to exempt property (as well as other rights). An adult

dependent child may be entitled to homestead and family

allowances under MCL 700.2402 and [MCL 700.2403]. An adult

child may be entitled to an exempt property allowance under

MCL 700.2404. These apparently are rights that may not be

waived. It is uncertain whether they may be modiﬁed or

eliminated by the decedent’s will. [Martin & Harder, p 72

(emphasis added); see also Bittner Conservatorship, 312 Mich

App at 242.]

732 312

ICH

706 [Oct

to exempt property under MCL 700.2404 that was not

eliminated by the disinheriting language in the dece-

dent’s will.

Afﬁrmed.

ARKEY

, P.J., and S

TEPHENS

, J., concurred with

IORDAN

, J.

2015] In re J

AJUGA

STATE

733

DELL v CITIZENS INSURANCE COMPANY OF AMERICA

Docket No. 322654. Submitted October 13, 2015 at Grand Rapids.

Decided October 20, 2015, at 9:10 a.m.

Tina Marie Dell ﬁled a complaint in the Allegan Circuit Court

against Citizens Insurance Company of America and Citizens

Insurance Company of the Midwest for payment of attendant-

care beneﬁts under a no-fault automobile insurance policy cover-

ing plaintiff in 1984, the time of the accident that caused her

injuries. In response to defendants’ initial motion for summary

disposition, plaintiff sought leave to amend her complaint to add

a claim under the Michigan Consumer Protection Act (MCPA),

MCL 445.901 et seq. Defendants contested plaintiff’s request to

amend her complaint, arguing that an amendment was time-

barred by MCL 445.911(7). Plaintiff was permitted to ﬁle an

amended complaint, defendants failed to answer, and the court,

Margaret Zuzich Bakker, J., entered a default judgment. The

court denied defendants’ motion to set aside the judgment. The

court later granted defendants’ motion for reconsideration and

set aside the default judgment. Defendants ﬁled two motions for

summary disposition, one based on the one-year-back rule in

MCL 500.3145(1), which was denied, and another under MCR

2.116(C)(8) for failure to state a claim. The court concluded that

plaintiff stated a claim under the MCPA and denied defendants’

motion for summary disposition under MCR 2.116(C)(8). A jury

found that defendants had violated the MCPA and awarded

plaintiff $1.7 million in unpaid beneﬁts and $300,000 in damages

for mental anguish. Plaintiff sought attorney fees and costs, and

defendants ﬁled a motion for judgment notwithstanding the

verdict (JNOV). The court granted defendants’ motion for JNOV,

agreeing with defendants that the jury’s verdict on plaintiff’s

no-fault claim (no expenses had been incurred between the time

of trial and one year before plaintiff ﬁled her complaint) estab-

lished also that plaintiff’s claim under the MCPA was time-barred

under MCL 445.911(7). The court denied plaintiff’s request for

attorney fees. Plaintiff appealed, and defendants cross-appealed.

The Court of Appeals held:

734 312

ICH

734 [Oct

1. The trial court properly denied defendants’ motion for

summary disposition for failure to state a claim because conduct

occurring during the claims-handling and adjustment process is

actionable under the MCPA for the period of time plaintiff

claimed payment as long as plaintiff ﬁled her complaint before

June 5, 2014. Plaintiff ﬁled her complaint in 2011. MCL 445.904

contains a list of conduct to which the MCPA does not apply.

Although language in MCL 445.904 expressly exempted from the

purview of the MCPA conduct made unlawful under the Insur-

ance Code, MCL 500.2001 et seq., another provision in the same

statute provided an exception to the exemption for claims brought

under MCL 445.911. In response to appellate decisions interpret-

ing the MCPA and claims under the Insurance Code, the Legis-

lature amended MCL 445.904 to clarify that the MCPA is in no

way applicable to conduct made unlawful under the Insurance

Code. The Legislature ultimately established that the MCPA does

not apply to any claims on or after March 28, 2001, but that it

does apply to claims under the Insurance Code if the claims

occurred before March 28, 2001, and if a complaint was ﬁled

before June 5, 2014. In this case, plaintiff was entitled to beneﬁts

that accrued from the time of the accident until March 28, 2001.

2. Even though conduct made a violation by the Insurance

Code may be actionable under the MCPA if it occurred before

March 28, 2001, and if a complaint was ﬁled before June 5, 2014,

that conduct must also constitute a violation of the MCPA. That

is, just because conduct is unlawful under the Insurance Code

does not make it unlawful under the MCPA. To be actionable

under the MCPA, the conduct must be made unlawful by the

MCPA itself. In this case, plaintiff alleged actions that qualiﬁed

as unfair, unconscionable, or deceptive methods, acts, or practices

in the conduct of trade or commerce. The products and services

provided by an insurance company fall within the MCPA’s deﬁ-

nition of trade and commerce, and include the claims-handling

and adjustment process.

3. An insurance company’s conduct after the sale of a policy

remains within the purview of the MCPA. In this case, the

conduct about which plaintiff complained involved defendants’

misrepresentation of their obligations under the insurance policy,

and it occurred after plaintiff and defendants had completed the

transaction that resulted in the sale of the insurance policy to

plaintiff. It was irrelevant that defendants’ conduct occurred after

the sale was completed and in the context of handling a claim

under the policy.

2015] D

ELL V

ITIZENS

735

4. The trial court improperly granted defendants’ motion for

JNOV on the basis that plaintiff’s claim was barred because the

statutory period of limitations had expired. The trial court should

not have granted JNOV because defendants waived their right to

defend on the basis that the statutory limitations period had

expired. An afﬁrmative defense, such as a statute of limitations

defense, must be raised in a party’s responsive pleading or in a

motion for summary disposition ﬁled before the responsive plead-

ing. In this case, defendants did not raise the defense in any

responsive pleading; raising the defense in their response to

plaintiff’s motion to amend her complaint does not qualify as

raising the defense in a responsive pleading.

5. A reference to one statute does not constitute a reference to

a different statute. In this case, defendants claimed that their

reference to the one-year-back rule in MCL 500.3145(1) should

have been sufﬁcient to raise the statute of limitations defense

contained in MCL 445.911(7). However, the Court concluded that

citation to a speciﬁc portion of one statute did not even arguably

alert defendants to the afﬁrmative defense outlined in another

statute.

Afﬁrmed in part, reversed in part, and remanded.

Zebrowski Law (by Thomas

A. Biscup) and Bendure

& Thomas (by Mark R. Bendure) for plaintiff.

Garan Lucow Miller, PC (by Daniel S. Saylor), for

defendants.

Before: T

ALBOT

, C.J., and B

ECKERING

and G

ADOLA

, JJ.

ALBOT

, C.J. Plaintiff, Tina Marie Dell, appeals as of

right the trial court’s order granting the motion of

defendants, Citizens Insurance Company of America

and Citizens Insurance Company of the Midwest (col-

lectively, Citizens), for judgment notwithstanding the

verdict (JNOV). Citizens cross-appeals from an order

of the trial court denying its motion for summary

disposition under MCR 2.116(C)(8). We afﬁrm the trial

court’s order denying Citizens’ motion for summary

disposition, reverse the trial court’s order granting

JNOV, and remand for further proceedings.

736 312 M

ICH

734 [Oct

I. FACTS AND PROCEDURAL HISTORY

This case arises out of an accident that occurred in

1984. Dell, a pedestrian, was struck by a motor vehicle.

She suffered a closed head injury and injuries to her

left leg. These injuries signiﬁcantly impair her ability

to walk. Since the accident, Dell has received no-fault

beneﬁts from Citizens under a policy issued to her

parents, Paula and Larry Chambers. To date, Citizens

has paid approximately $1M in beneﬁts to Dell.

The dispute in this matter centers on Citizens’

failure to pay attendant care beneﬁts to Dell from the

time of her accident through 2011. Dell has been under

the care of Dr. Brian Visser since her accident. At trial,

Dr. Visser testiﬁed that he believed Dell has always

needed attendant care. According to Paula Chambers,

she contacted Citizens in 1987 to request reimburse-

ment for attendant care she provided to Dell. Citizens

denied the request, informing her that no such beneﬁts

were available. In April 2011, through her attorney,

Dell submitted a written claim for attendant care

beneﬁts, attaching to the claim a prescription for

attendant care written by Dr. Visser. At that point,

Citizens began paying attendant care beneﬁts, includ-

ing reimbursement for attendant care provided in the

year before the 2011 claim was ﬁled.

Dell ﬁled suit on July 28, 2011, seeking unpaid

no-fault beneﬁts. On one of Citizens’ motions for sum-

mary disposition, the trial court ruled that under MCL

500.3145(1), Dell’s claim was limited to beneﬁts in-

curred no more than a year before she ﬁled her

complaint. Dell subsequently sought leave to amend

her complaint to add a claim under the Michigan

Consumer Protection Act (MCPA).

Citizens contested

MCL 445.901 et seq.

2015] D

ELL V

ITIZENS

737

the amendment, arguing that it was time-barred by

MCL 445.911(7). The trial court granted leave to

amend the complaint after concluding that there was a

question of fact regarding whether Dell’s MCPA claim

was barred by MCL 445.911(7).

After Dell ﬁled her amended complaint, Citizens

failed to timely ﬁle an answer, and a default judgment

was entered. Citizens’ motion to set aside the default

was denied by the trial court. Citizens ﬁled a motion

for reconsideration. Citizens subsequently ﬁled a mo-

tion for summary disposition, arguing that under MCL

500.3145(1) and this Court’s opinion in Grant v AAA

Mich/Wisconsin, Inc (On Remand),

Dell’s MCPA claim

must

be limited to expenses incurred no more than one

year before Dell ﬁled her complaint.

The trial court ﬁrst granted reconsideration and set

aside the default. The trial court denied Citizens’

motion for summary disposition, ﬁnding that MCL

500.3145(1) did not apply to Dell’s MCPA claim. Citi-

zens then ﬁled a motion under MCR 2.116(C)(8). The

motion argued that Dell’s amended complaint failed to

state a claim under the MCPA because the MCPA did

not apply to misconduct that occurs in the claims-

handling and adjustment process. The trial court de-

nied the motion, concluding that Dell’s complaint

stated a claim under the MCPA.

The matter proceeded to trial. With regard to Dell’s

claim for no-fault beneﬁts, the jury found that Dell had

not incurred any allowable expenses under the no-fault

act during the period between July 28, 2010 (one year

before ﬁling her complaint) and the time of trial. With

regard to Dell’s MCPA claim, the jury concluded that

Citizens had violated the MCPA. The jury awarded

Grant v AAA Mich/Wisconsin, Inc (On Remand), 272 Mich App 142;

724 NW2d 498 (2006).

738 312 M

ICH

734 [Oct

Dell $1.7 million in unpaid beneﬁts and $300,000 in

damages for mental anguish resulting from the viola-

tion. After trial, Dell ﬁled a motion seeking attorney

fees and costs. Citizens moved for JNOV, arguing that

the jury’s verdict with respect to the ﬁrst count estab-

lished that Dell’s MCPA claim was time-barred under

MCL 445.911(7). The trial court agreed and granted

the motion. Having granted JNOV, the trial court did

not consider Dell’s request for costs and attorney fees.

On appeal, Dell raises several issues, many of which

contest the trial court’s decision to grant JNOV. Citi-

zens cross-appeals, arguing that the trial court erred

when it concluded that the MCPA applies to miscon-

duct that occurs in the claims-handling and adjust-

ment process. We begin with Citizens’ cross-appeal.

II. CROSS-APPEAL

Citizens argues that the trial court erred when it

denied

Citizens’ second motion for summary disposi-

tion. We disagree.

A. STANDARD OF REVIEW

Issues of statutory interpretation are reviewed de

novo.

This Court also reviews de novo a trial court’s

decision

on a motion for summary disposition.

A motion under MCR 2.116(C)(8) tests the legal sufﬁ-

ciency of the complaint. All well-pleaded factual allega-

tions are accepted as true and construed in a light most

favorable to the nonmovant. A motion under MCR

2.116(C)(8) may be granted only where the claims alleged

are so clearly unenforceable as a matter of law that no

factual development could possibly justify recovery. When

Cooper v Auto Club Ins Ass’n, 481 Mich 399, 406; 751 NW2d 443

(2008).

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

2015] D

ELL V

ITIZENS

739

deciding a motion brought under this section, a court

considers only the pleadings.

[5]

B. DISCUSSION

The question before this Court is whether the con-

duct

alleged in Dell’s amended complaint, all of which

occurred in the claims-handling and adjustment pro-

cess, is actionable under the MCPA. In her amended

complaint, Dell alleged the following:

25. [Citizens has] engaged in unfair, unconscionable or

deceptive

conduct in violation of Chapter 20 of the Michi-

gan Insurance Code in its dealings with [Dell] and her

family, agents or representatives.

26. In particular, [Citizens has] violated [its] duties to

act honestly and to explain beneﬁts under MCL

500.2006(3) . . . .

27. [Citizens] also violated [its] obligations under MCL

500.2026, including but not limited to, the duty not to

misrepresent facts or coverages, the duty to communicate

promptly, the duty to afﬁrm or deny coverage timely, the

duty to promptly investigate claims, the duty to effectuate

prompt, fair and equitable settlements of claims, the duty

not to compel insureds to institute litigation by underpay-

ing, the duty to identify payments and coverage, and/or

the duty to explain [the] basis for denial or offer of

compromise. MCL 500.2026(1)(a), (b), (e), (d), (f), (g), (j),

(n). . . .

28. [Citizens’] violations of Chapter 20 [of] the Insur-

ance Code constitute unfair, unconscionable or deceptive

methods, acts or practices in the conduct of trade or

commerce as set forth in the [MCPA] . . . . See, e.g., MCL

445.903(1)(a), (c), (e), (n), (s), (x), (bb), (cc). . . .

In sum, Dell alleged several instances of conduct that

violated

Chapter 20 of the Insurance Code. She further

Id. at 119-120 (quotation marks and citations omitted).

740 312 M

ICH

734 [Oct

alleged that these violations constituted unfair, uncon-

scionable, or deceptive methods, acts, or practices

under the MCPA.

In Smith v Globe Life Ins Co, our Supreme Court

considered whether a private cause of action against

an insurance carrier arising out of the sale of a life

insurance policy could be brought under the MCPA.

Ultimately, the Court concluded that the plaintiff’s

MCPA claim could proceed. The Court’s decision

turned on its interpretation of MCL 445.904(1) and (2).

At the time of the Court’s decision, these statutes

provided, in relevant part:

(1) This act does not apply to either of the following:

(a)

A transaction or conduct speciﬁcally authorized

under laws administered by a regulatory board or ofﬁcer

acting under statutory authority of this state or the

United States.

* * *

(2) Except for the purposes of an action ﬁled by a person

under [MCL 445.911], this act does not apply to an unfair,

unconscionable, or deceptive method, act, or practice that

is made unlawful by:

(a) Chapter 20 of the insurance code of 1956, . . . [MCL]

500.2001 to [MCL] 500.2093 . . . .

[7]

Our Supreme Court explained that MCL

445.904(1)(a)

would generally exempt the sale of insur-

Smith v Globe Life Ins Co, 460 Mich 446, 449; 597 NW2d 28 (1999).

The contested issue in Smith revolved around whether the insurance

application accurately described the insured’s existing medical condi-

tions. On the insurance application, slash marks had been made in

boxes labeled “NO” in response to questions regarding previous medical

diagnoses. The plaintiff asserted that these marks were not in the

insured’s handwriting. See id. at 450, 452.

1993 PA 10 (emphasis added). See also Smith, 460 Mich at 462, 466.

2015] D

ELL V

ITIZENS

741

ance from the MCPA because such conduct was “ ‘spe-

ciﬁcally authorized under laws administered by a regu-

latory board or ofﬁcer acting under statutory authority

of this state or the United States.’ ”

However, the

ourt held that MCL 445.904(2) “provides an excep-

tion to that exemption by permitting private actions

pursuant to [MCL 445.911] arising out of misconduct

made unlawful by chapter 20 of the Insurance Code.”

This was because MCL 445.904(2) “exempt[ed] from

the MCPA unfair, unconscionable, or deceptive meth-

ods, acts, or practices made unlawful by chapter 20 of

the Insurance Code,” but that exemption was subject

to an exception for actions brought under MCL

445.911.

Thus, to give effect to the language of both

CL 445.904(1) and (2), the Court held that “the

exemptions provided by [MCL 445.904(1)(a)] and

[MCL 445.904(2)(a)] are inapplicable to plaintiff’s

MCPA claims to the extent that they involve allega-

tions of misconduct made unlawful under chapter 20

of the Insurance Code.”

In response to S

mith, our

Legislature amended MCL 445.904 to provide that

without exception, the MCPA does not apply to con-

duct “made unlawful by chapter 20 of the insurance

code . . . .”

This amendment took effect on March 28,

2001.

The

next event of relevance is this Court’s decision

in Converse v Auto Club Group Ins Co (Converse I).

Smith, 460 Mich at 465, quoting MCL 445.904(1)(a).

Smith, 460 Mich at 467.

Id. at 466-467.

Id. at 467.

MCL 445.904(3), as enacted by 2000 PA 432.

Converse v Auto Club Group Ins Co, unpublished opinion per

curiam of the Court of Appeals, issued March 3, 2011 (Docket No.

293303) (Converse I), rev’d in part 493 Mich 877 (2012).

742 312 M

ICH

734 [Oct

Converse I, the trial court dismissed a plaintiff’s claim

under the MCPA “based on its determination that the

no-fault act provides an exclusive remedy for causes of

action arising in a motor vehicle accident context.”

two-to-one decision, this Court afﬁrmed the trial

court, but on a different basis. This Court ﬁrst held

that any claims accruing after March 28, 2001, could

not be sustained because of the effect of 2000 PA 432.

With respect to those accruing before March 28, 2001,

this Court explained that such actions “were permitted

pursuant to MCL 445.911 of the MCPA arising out of

misconduct made unlawful by chapter 20 of the insur-

ance code.”

However, this Court concluded that any

such claim was limited to those “within one year

immediately preceding December 2005,” the last date a

payment was received by the plaintiff.

To reach this

conclusion, this Court relied on MCL 445.911(7), which

provides, in relevant part:

“[A]n action under this section shall not be brought more

than

6 years after the occurrence of the method, act, or

practice which is the subject of the action nor more than 1

year after the last payment in a transaction involving the

method, act, or practice which is the subject of the action,

whichever period of time ends at a later date.”

[18]

This Court reasoned that because the statutory lan-

guage

dictated that the Court apply whichever of the

two time periods ended at a later date, the plaintiff’s

MCPA claim must be limited to claims “within one year

immediately preceding December 2005.”

But because

Converse I, unpub op at 2.

Id. at 3.

Id.

Id., quoting MCL 445.911(7).

Id.

2015] D

ELL V

ITIZENS

743

any cause of action based on conduct occurring after

March 28, 2001, was barred by the amendments to

MCL 445.904, the majority concluded that the insurer

was entitled to summary disposition.

On October 26, 2012, our Supreme Court perempto-

rily

reversed, in part, this Court’s decision in Converse

With regard to MCL 445.911(7), our Supreme Court

explained:

MCL 445.911(7) of the MCPA provides, in pertinent part:

An action under this section shall not be brought

more than 6 years after the occurrence of the

method, act, or practice which is the subject of the

action nor more than 1 year after the last payment

in a transaction involving the method, act, or prac-

tice which is the subject of the action, whichever

period of time ends at a later date.

Because plaintiff brought this action within one year of

the last payment, plaintiff’s action was timely ﬁled and

thus plaintiff can seek to recover damages resulting from

the methods, acts or practices violative of the MCPA

based on conduct by defendant occurring from July 29,

1992 [the date the plaintiff alleged the misconduct be-

gan] to March 28, 2001 (the effective date of MCL

445.904(3)).

[22]

Our Supreme Court’s order in Converse

II prompted

our Legislature to again amend MCL 445.904.

MCL

445.904 now reads:

(3) This act does not apply to or create a cause of action

for an unfair, unconscionable, or deceptive method, act, or

practice that is made unlawful by chapter 20 of the

Converse I, unpub op at 3-4.

Converse v Auto Club Group Ins Co, 493 Mich 877 (2012) (Converse

II).

Id. at 877-878.

2014 PA 251.

744 312 M

ICH

734 [Oct

insurance code of 1956, 1956 PA 218, MCL 500.2001 to

500.2093, if either of the following is met:

(a) The method, act, or practice occurred on or after

March 28, 2001.

(b) The method, act, or practice occurred before

March 28, 2001. However, this subdivision does not apply to

or limit a cause of action ﬁled with a court concerning a

method, act, or practice if the cause of action was ﬁled in a

court of competent jurisdiction on or before June 5, 2014.

[24]

Through its ﬁrst enacting section, 2014 PA 251 was

given

retroactive effect and made effective March 28,

2001.

In the act’s second enacting section, our Legis-

lature explained:

This amendatory act is curative and intended to

prevent any misinterpretation that this act applies to or

creates a cause of action for an unfair, unconscionable, or

deceptive method, act, or practice occurring before March

28, 2001 that is made unlawful by chapter 20 of the

insurance code of 1956, 1956 PA 218, MCL 500.2001 to

500.2093, that may result from the decision of the

Michigan supreme court in Converse v Auto Club Group

Ins Co, No. 142917, October 26, 2012.

[26]

Thus, under the most recent amendment to MCL

445.904, a plaintiff generally may not bring a claim

under the MCPA alleging harm resulting from an

“unfair, unconscionable, or deceptive method, act, or

practice that is made unlawful by chapter 20 of the

insurance code . . . , MCL 500.2001 to 500.2093 . . . .”

However, if the “method, act, or practice” at issue

occurred

before March 28, 2001, and a complaint was

MCL 445.904(3)(a) and (b).

2014 PA 251, enacting § 1.

2014 PA 251, enacting § 2.

MCL 445.904(3).

2015] D

ELL V

ITIZENS

745

ﬁled on or before June 5, 2014, the claim remains

viable.

The unlawful acts, methods, or practices

stated in Dell’s complaint were alleged to have oc-

curred before March 28, 2001, and she ﬁled her com-

plaint well before June 5, 2014. Thus, the restrictions

stated in MCL 445.904(3) do not apply to her claim.

In Dell’s view, this conclusion settles the matter.

Relying on Smith and Converse, Dell takes the position

that any conduct that violates Chapter 20 of the

Insurance Code is incorporated into the MCPA through

MCL 445.904. Citizens, however, argues that Smith

and the cases that followed do not stand for the

proposition that all conduct made unlawful by Chapter

20 of the Insurance Code is actionable under the

MCPA. Rather, Citizens argues that to be actionable,

the MCPA itself must render that conduct unlawful. In

this regard, we agree with Citizens.

The purpose of MCL 445.904 is not to deﬁne what

constitutes a violation of the MCPA; it is to remove

certain types of claims from the MCPA’s purview. MCL

445.904 does so by explaining speciﬁc areas to which

the MCPA does not apply. It is MCL 445.903 that

deﬁnes “[u]nfair, unconscionable, or deceptive meth-

ods, acts, or practices” and makes such conduct unlaw-

ful under the MCPA in the ﬁrst instance. In other

words, MCL 445.903 broadly deﬁnes most of the con-

duct that is unlawful under the MCPA,

while MCL

445.904

removes certain subsets of this conduct from

the MCPA’s coverage. Thus, to determine whether Dell

has stated a viable claim under the MCPA, the ﬁrst

question to be answered is whether the conduct she

MCL 445.904(3)(b).

Along with MCL 445.903, the MCPA contains other provisions that

require or prohibit certain conduct. See MCL 445.903a through MCL

445.903i. None of these provisions are relevant to this matter.

746 312 M

ICH

734 [Oct

alleges is unlawful under MCL 445.903; the second

question is whether that conduct is exempted from the

MCPA’s purview by MCL 445.904.

Smith does not hold to the contrary. In Smith, the

question whether the particular conduct at issue vio-

lated MCL 445.903(1) was not addressed. Rather, the

question before the Court involved only the second part

of the inquiry, i.e., whether the particular claim was

exempted from the MCPA’s purview by MCL 445.904.

Although the Court determined that the particular

conduct

at issue was not exempted from the MCPA by

MCL 445.904, it was not asked to determine whether

the conduct came within the MCPA’s general purview

as expressed by MCL 445.903.

Smith did

not hold

that MCL 445.904(2) created a cause of action for

violations of Chapter 20 of the Insurance Code; it

merely held that MCL 445.904 did not remove from the

MCPA claims alleging conduct that violates Chapter 20

of the Insurance Code.

Nor does Converse II reach a different conclusion. In

its order, our Supreme Court stated, “[b]ecause plain-

tiff brought this action within one year of the last

payment, plaintiff’s action was timely ﬁled and thus

plaintiff can seek to recover damages resulting from

the methods, acts or practices violative of the MCPA

based on conduct by defendant occurring from July 29,

1992, to March 28, 2001 . . . .” (Emphasis added.)

Thus, as was the case in Smith,

our Supreme Court did

not conclude that a violation of Chapter 20 of the

See Smith, 460 Mich at 462 (describing the issue as “whether [the

insurer] is exempted from plaintiff’s claim of MCPA violations”) (empha-

sis added).

Notably, however, the plaintiff in Smith did speciﬁcally allege

several violations of MCL 445.903(1). See Smith, 460 Mich at 451 n 1.

Converse II, 493 Mich at 878 (emphasis added).

2015] D

ELL V

ITIZENS

747

Insurance Code was alone sufﬁcient to state a claim

under the MCPA. Rather, the plaintiff’s allegations of

unconscionable, unfair, or deceptive methods, acts, or

practices were what was actionable.

Thus, we hold that the MCPA does not create a cause

of action for violations of Chapter 20 of the Insurance

Code. Rather, Dell must allege a violation of the MCPA

itself to survive Citizens’ motion for summary disposi-

tion under MCR 2.116(C)(8). Citizens argues that the

conduct alleged in the complaint does not state a claim

under the MCPA because, under its interpretation of

MCL 445.903, the MCPA does not reach misconduct in

the claims-handling and adjustment process. Citizens

ﬁrst relies on MCL 445.903(1), which provides that

“[u]nfair, unconscionable, or deceptive methods, acts,

or practices in the conduct of trade or commerce are

unlawful . . . .” Citizens argues that the deﬁnition of

“trade or commerce” does not encompass the claims-

handling and adjustment process. We disagree.

MCL 445.902(1)(g) deﬁnes “trade or commerce” as

the conduct of a business providing goods, property, or

service

primarily for personal, family, or household pur-

poses and includes the advertising, solicitation, offering

for sale or rent, sale, lease, or distribution of a service or

property, tangible or intangible, real, personal, or mixed,

or any other article, or a business opportunity.

As may be seen, nothing in this deﬁnition explicitly

discusses

insurers, or more speciﬁcally, the claims-

handling and adjusting process. But “[b]ecause the

MCPA is a remedial statute designed to prohibit unfair

practices in trade or commerce, it must be liberally

construed to achieve its intended goals.”

Undoubt-

Price v Long Realty, Inc, 199 Mich App 461, 471; 502 NW2d 337

(1993).

748 312 M

ICH

734 [Oct

edly, at least as it pertains to conduct that occurred

before March 28, 2001, the MCPA applies to insurance

companies generally.

And as MCL 445.902(1)(g)

makes clear, “trade or commerce” is much broader than

simply advertising, marketing, or selling a product. It

includes “the conduct of a business providing [a prod-

uct or service].”

An insurance company “provides” the

very

product or service it is in the business of

delivering—insurance coverage—through the claims-

handling and adjustment process. Such conduct ﬁts

within MCL 445.902(1)(g)’s deﬁnition of “trade or com-

merce.”

Most of the speciﬁc types of conduct that are unlaw-

ful under the MCPA are stated in the various subsec-

tions of MCL 445.903(1). Dell’s complaint alleged that

Citizens violated several of these subsections. The trial

court concluded that at a minimum, Dell’s complaint

stated a claim under MCL 445.903(1)(n). Under this

subsection, it is an unlawful method, act, or practice to

“caus[e] a probability of confusion or of misunderstand-

ing as to the legal rights, obligations, or remedies of a

party to a transaction.”

Dell alleged that Citizens

misrepresented

Dell’s legal right to certain beneﬁts

under the insurance policy. She also alleged that Citi-

zens misrepresented its own legal obligations under

the policy. Such misrepresentations would create a

“probability of confusion or of misunderstanding as to”

Dell’s legal rights and Citizens’ obligations under the

policy. According to MCL 445.903(1)(n), these allega-

tions stated a claim under the MCPA.

Citizens argues that this Court should interpret

MCL 445.903(1)(n) as not encompassing misconduct

MCL 445.904(3). See also Converse II, 493 Mich at 878.

MCL 445.902(1)(g).

MCL 445.903(1)(n).

2015] D

ELL V

ITIZENS

749

that occurs in the claims-handling and adjustment

process. We ﬁnd nothing in the plain language of MCL

445.903(1)(n) to support such a limitation. Citizens ﬁrst

argues that because the majority of the speciﬁc types of

conduct deﬁned by MCL 445.903(1) as unfair, uncon-

scionable, or deceptive methods, acts, or practices relate

to advertising, marketing, or sales, all of the provisions

should be interpreted as encompassing only advertising,

marketing, or sales conduct. It is true that many of the

subsections of MCL 445.903(1) refer to conduct that

occurs in advertising, marketing, or sales.

However,

ot every subsection is so limited. In Zine v Chrysler

Corp, this Court explained, with regard to MCL

445.903(1)(n), that “[b]ecause representations made

both before and after the transaction has been com-

pleted could cause a party to the transaction to misun-

derstand the party’s legal rights, [MCL 445.903(1)(n)]

can reasonably be understood to refer to acts that occur

before and after the transaction has been concluded.”

That is precisely the situation alleged in Dell’s com-

plaint.

Dell alleged that Citizens misrepresented its

own obligations and Dell’s rights created as a result of

a transaction between the parties, i.e., the sale of the

insurance policy. That the misrepresentations occurred

after the sale was completed or in the context of

handling a claim made under the policy is irrelevant.

See, e.g., MCL 445.903(1)(d) (“Representing that goods are new if

they are deteriorated, altered, reconditioned, used, or secondhand”);

(1)(e) (“Representing that goods or services are of a particular standard,

quality, or grade, or that goods are of a particular style or model, if they

are of another”); (1)(g) (“Advertising or representing goods or services

with intent not to dispose of those goods or services as advertised or

represented”); (1)(h) (“Advertising goods or services with intent not to

supply reasonably expectable public demand, unless the advertisement

discloses a limitation of quantity in immediate conjunction with the

advertised goods or services”).

Zine v Chrysler Corp, 236 Mich App 261, 281; 600 NW2d 384 (1999).

750 312

ICH

734 [Oct

Citizens also focuses on the term “transaction” in

MCL 445.903(1)(n). Citizens argues that the “transac-

tion” in this instance is the sale of the policy, and that

“to be actionable under the MCPA, the conduct mani-

festly must relate to the sales transaction.” Even

accepting, arguendo, Citizens’ basic premise, i.e., that

the misconduct must relate to the sale of the insurance

policy, Dell stated a claim under the MCPA. Citizens

was a party to the sale of the insurance policy. The

transaction created a legal obligation on the part of

Citizens to pay certain beneﬁts in the event of a

covered accident. Dell’s complaint alleged that Citizens

misrepresented its obligations. Again, that these mis-

representations occurred after the sale was completed

is irrelevant.

In sum, while a claim of a violation of Chapter 20 of

the

Insurance Code alone is insufﬁcient to state a claim

under the MCPA, when the allegation also constitutes

a violation of the MCPA, the claim may proceed if the

conduct at issue occurred prior to March 28, 2001, and

the complaint was ﬁled on or before June 5, 2014.

Dell’s complaint met these requirements, and accord-

ingly, Citizens’ motion for summary disposition was

properly denied.

III. JNOV

Dell argues that the trial court erred when it

granted

JNOV for a number of reasons. Because we

conclude that Citizens waived the statute of limita-

tions defense on which the trial court relied, we agree

that the trial court erred.

Id.

We note that while Dell argued that the statute of limitations had

been waived in response to the motion for JNOV, the trial court did not

address or decide the question. Generally, an issue must be raised,

2015] D

ELL V

ITIZENS

751

A. STANDARD OF REVIEW

“We review a trial court’s decision with regard to a

motion for JNOV de novo.”

“In reviewing a decision

regarding a motion for JNOV, this Court must view

the testimony and all legitimate inferences that may

be drawn therefrom in a light most favorable to the

nonmoving party. If reasonable jurors could have

honestly reached different conclusions, the jury ver-

dict must stand.”

“The interpretation and applica-

ion of the court rules, like the interpretation of

statutes, is a question of law that is reviewed de novo

on appeal.”

B. DISCUSSION

“[T]he running of the statute of limitations is an

afﬁrmative defense.”

Under MCR 2.111(F)(3), “[a]fﬁr-

mative defenses must be stated in a party’s responsive

pleading, either as originally ﬁled or as amended in

accordance with MCR 2.118.” However, “a party who

has asserted a defense by motion ﬁled pursuant to

MCR 2.116 before ﬁling a responsive pleading need not

again assert that defense in a responsive pleading later

addressed, and decided in the trial court to be preserved for review.

Mouzon v Achievable Visions, 308 Mich App 415, 419; 864 NW2d 606

(2014). But Dell “should not be punished for the omission of the trial

court.” Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521

NW2d 499 (1994). This Court may address the issue because it concerns

a legal question and all of the facts necessary for its resolution are

present. Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich

App 146, 157 n 6; 742 NW2d 409 (2007).

Morinelli v Provident Life and Accident Ins Co, 242 Mich App 255,

260; 617 NW2d 777 (2000).

Id. at 260-261 (citation omitted).

Colista v Thomas, 241 Mich App 529, 535; 616 NW2d 249 (2000).

Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312; 503

NW2d 758 (1993).

752 312

ICH

734 [Oct

ﬁled[.]”

Thus, a statute of limitations defense “must

be raised in the responsive pleading, unless [it] previ-

ously [was] raised in a motion for summary disposition

before the ﬁling of a responsive pleading.”

“The fail-

ure

to raise an afﬁrmative defense as required by the

court rule constitutes a waiver of that afﬁrmative

defense.”

The trial court’s decision to grant JNOV was based

entirely on the statute of limitations found in MCL

445.911(7). This statute provides that a claim under

the MCPA must be brought within six years of “the

occurrence of the method, act, or practice” that vio-

lates the MCPA, or within one year after the last

payment in a transaction involving the method, act,

or practice.

In its answer to Dell’s amended com-

laint, Citizens did not mention MCL 445.911(7) as an

afﬁrmative defense. At best, Citizens stated, “[e]ven if

Plaintiff states a claim of action under the [MCPA],

her recovery is limited to losses within one year prior

to ﬁling the complaint.” This statement did not estab-

lish that Citizens intended to defend against Dell’s

MCPA claim by asserting that the claim was barred

by MCL 445.911(7). Rather, it demonstrated that

Citizens contemplated that the claim might go for-

ward, but that Dell’s damages would be limited to

those incurred no more than a year before she ﬁled

her complaint.

MCR 2.111(F)(2)(a).

Stanke, 200 Mich App at 312.

Id. See also MCR 2.111(F)(2) (“A defense not asserted in the

responsive pleading or by motion as provided by these rules is waived,

except for the defenses of lack of jurisdiction over the subject matter of

the action, and failure to state a claim on which relief can be granted.”).

MCL 445.911(7).

While not explicitly stated, this statement seems directly aimed at

the one-year-back rule of MCL 500.3145(1).

2015] D

ELL V

ITIZENS

753

Nor did Citizens raise the defense in a motion for

summary disposition ﬁled before it ﬁled its answer.

Citizens did ﬁle a motion for summary disposition

prior to ﬁling its amended answer. However, this

motion argued that under MCL 500.3145(1), Dell’s

MCPA claim was limited to damages incurred in the

year before ﬁling the complaint. It did not argue that

Dell’s claim was barred by MCL 445.911(7). Quite the

contrary, Citizens argued that the one-year-back rule

of MCL 500.3145(1) trumped MCL 445.911(7) to the

extent that the two were in conﬂict.

Citizens argues that by raising the one-year limita-

tion

in its ﬁrst responsive pleading and summary

disposition motion, it should be deemed to have raised

MCL 445.911(7) as an afﬁrmative defense. Citizens

relies on this Court’s opinion in Jesperson v Auto Club

Ins Ass’n

as support. In Jesperson,

the plaintiff, in an

amended complaint, raised a claim alleging that the

defendant insurer failed to pay ﬁrst-party no-fault

beneﬁts.

In its answer to the amended complaint, the

insurer

raised MCL 500.3145(1) as an afﬁrmative

defense.

However, and much the same as occurred

here,

the insurer only referred to the one-year-back

provision of the statute; it “did not assert an afﬁrma-

Speciﬁcally, Citizens stated: “Moreover, to the extent that there is a

conﬂict between [MCL 500.3145(1)] . . . and MCL 445.911(7) . . . , in the

context of this case, [MCL 500.3145(1)] is the more speciﬁc of the two

and therefore controls.” It is true that the trial court, in its opinion

deciding the motion, discussed MCL 445.911(7) and opined that the time

period stated in this statute had not expired. However, neither party

had raised MCL 445.911(7) in the context of the motion. That the trial

court raised and considered the statute sua sponte does not demonstrate

that Citizens raised the defense.

Jesperson v Auto Club Ins Ass’n, 306 Mich App 632; 858 NW2d 105

(2014), lv gtd 497 Mich 987 (2015).

Id. at 636.

Id.

754 312 M

ICH

734 [Oct

tive defense that speciﬁcally referred to the separate

statute of limitations provision that is also reﬂected in

MCL 500.3145(1).”

The insurer later ﬁled a motion

for summary disposition, arguing that the plaintiff’s

ﬁrst-party claim was barred by the statute of limita-

tions stated in MCL 500.3145(1).

The plaintiff argued

that

this defense had been waived because it was not

raised in the insurer’s answer to plaintiff’s amended

complaint.

Without addressing the waiver issue, the

trial

court ruled that the statutory period of limitations

had run, and for that reason, granted summary dispo-

sition in favor of the defendant.

This Court stated that the plaintiff had only speciﬁ-

cally cited the one-year-back provision of MCL

500.3145(1) in its answer, but that by citing MCL

500.3145(1), the plaintiff “arguably was made aware of

the limitations period of that statute and [was] not

unfairly surprised by defendant’s assertion of the de-

fense.”

But it was also true “that defendant did not

refer

to the statute of limitations in any fashion, and

instead speciﬁcally described its afﬁrmative defense as

relating to the one-year-back provision of the statute,

thereby arguably suggesting that it was not citing the

statute for any other purpose.”

However, this Court

did

not decide whether reference to the one-year-back

provision of MCL 500.3145(1) was sufﬁcient to avoid

waiver of the statute of limitations found in the same

statute. Rather, this Court explained that “leave to

amend pleadings should be freely granted,” and thus,

Id.

Id. at 637.

Id. at 638.

Id. at 638-639.

Id. at 647.

Id.

2015] D

ELL V

ITIZENS

755

“had the trial court found that defendant had failed to

plead the statute of limitations defense with sufﬁcient

clarity, it could have, in its discretion, granted defen-

dant leave to amend its pleading . . . .”

This Court

saw

“no need to remand the case for the trial court to

do just that.”

For this reason, this Court concluded

that the “defendant did not waive the afﬁrmative

defense of the statute of limitations.”

Jesperson does

not support Citizens’ argument in

this case. First, the Jesperson Court did not decide that

raising the one-year-back provision was sufﬁcient to

raise a statute of limitations defense. The Court ulti-

mately resolved the question on an alternate ground,

speciﬁcally, that the defense could have been added by

an amended answer, as is explicitly allowed by the

court rules. Second, even if this Court’s opinion could

be read as holding that raising the one-year-back rule

was sufﬁcient to also raise the statute of limitations, it

would only apply to the statute of limitations provision

stated in MCL 500.3145(1). The question in Jesperson

was whether citing a speciﬁc portion of MCL

500.3145(1) was sufﬁcient to raise the entire statute as

an afﬁrmative defense. In this case, Citizens’ motion

for JNOV relied on MCL 445.911(7)—an entirely dif-

ferent statute with no similar one-year-back provision.

Citizens’ assertion of a one-year limitation on damages

could not have even “arguably . . . made [Dell] aware of

the limitations period of [MCL 445.911(7)].”

Accord-

ingly

, Jesperson does not support Citizens’ position.

Citizens also argues that it adequately preserved its

statute of limitations defense by raising it in its re-

sponse to Dell’s motion to amend her complaint. How-

Id.

756 312 M

ICH

734 [Oct

ever, Citizens offers no authority, and we have found

none, holding that an afﬁrmative defense is adequately

preserved by raising it in a response to a motion for

leave to amend the complaint. Rather, our court rules

and caselaw are clear. “Under MCR 2.111(F)(3), afﬁr-

mative defenses must be raised in the responsive

pleading, unless they previously have been raised in a

motion for summary disposition before the ﬁling of a

responsive pleading, MCR 2.111(F)(2)(a).”

Clearly,

itizens’ response to the motion to amend was not a

responsive pleading.

Nor was the response a “motion

Stanke, 200 Mich App at 312. This Court’s application of the rule

has been strict. In Grzesick v Cepela, 237 Mich App 554, 559-563; 603

NW2d 809 (1999), the trial court determined that the defendant had

waived the afﬁrmative defense of comparative negligence because,

although the defense had been raised in the defendant’s answer to the

plaintiff’s complaint, as well as in the defendant’s answer to the

plaintiff’s ﬁrst amended complaint, the defendant failed to plead the

defense when responding to the plaintiff’s second amended complaint.

This Court agreed, explaining:

[J]ust as an amended complaint supersedes the original complaint,

a party’s most recent amended answer supersedes any previously

ﬁled responsive pleadings. Consequently, in order to be properly

preserved, an afﬁrmative defense must be expressly asserted, or

expressly incorporated from a former pleading, in each successive

amendment of the original responsive pleading. In this case, in

light of defendant’s failure to explicitly reassert the afﬁrmative

defense of comparative negligence in her answer to plaintiff’s

second amended countercomplaint, the trial court properly ruled

that defendant waived the defense. [Id. at 562-563 (emphasis

added).]

Thus, even in circumstances where an afﬁrmative defense had been

raised in a previous responsive pleading, this Court has found that the

failure to raise the defense precisely as required under the court rules

results in waiver.

See MCR 2.110(A) (deﬁning a “pleading” as a complaint, a cross-

claim, a counterclaim, a third-party complaint, an answer to a complaint,

cross-claim, counterclaim, or third-party complaint, or a reply to an

answer).

2015] D

ELL V

ITIZENS

757

ﬁled pursuant to MCR 2.116 . . . .”

Accordingly, Citi-

zens waived the statute of limitations found in MCL

445.911(7).

Because Citizens waived the afﬁrmative defense in

MCL 445.911(7), the trial court erred by granting

JNOV on that basis. The trial court’s order must be

reversed, and the matter remanded for entry of a

judgment in accordance with the jury’s verdict.

IV. REMAINING ISSUES

Dell raises a number of other arguments regarding

the

JNOV decision. Having concluded that the statute

of limitations defense was waived, we need not address

these arguments. Dell also raises issues related to

other decisions made by the trial court during the

proceeding. She asks us to consider these issues in the

event the jury’s verdict is not reinstated. Having con-

cluded that the verdict must be reinstated, we need not

address these remaining issues. However, one issue

remains. Relying on its decision to grant the motion for

JNOV, the trial court declined to consider Dell’s motion

for costs and attorney fees. On remand, we direct the

trial court to decide Dell’s motion.

The trial court’s decision with regard to Citizens’

motion for summary disposition is afﬁrmed. We re-

verse the trial court’s entry of JNOV. We remand the

matter for reinstatement of the jury’s verdict and

further proceedings consistent with this opinion. We do

not retain jurisdiction.

ECKERING

and G

ADOLA

, JJ., concurred with T

ALBOT

C.J.

MCR 2.111(F)(2)(a).

758 312 M

ICH

734 [Oct

PEOPLE v RAISBECK

Docket No. 321722. Submitted October 14, 2015, at Grand Rapids.

Decided October 20, 2015, at 9:15 a.m. Leave to appeal denied 499

Mich 871 (2016).

Tonya Lynn Raisbeck was charged in the Allegan Circuit Court with

one count of racketeering for ﬁve incidents of false pretenses

involving a total of 18 victims. Defendant operated Mobile Modi-

ﬁcation, Inc., a business that promised, for a fee, to obtain

mortgage modiﬁcations for its customers. There was no evidence

that a single mortgage modiﬁcation had been successfully com-

pleted. Defendant was convicted by jury, and the court, Kevin W.

Cronin, J., sentenced her to 3 to 20 years of imprisonment with

credit for 1 day served. The court also ordered defendant to pay a

total of $23,052.86 in restitution to 31 identiﬁed victims of the

racketeering scheme; some of the victims were not included in the

felony information charging defendant with racketeering. Defen-

dant appealed.

The Court of Appeals held:

1. There was sufﬁcient evidence for the jury to ﬁnd defendant

guilty of racketeering. Defendant argued that the predicate

felonies for racketeering must have occurred on different dates,

but the statutory language does not support her argument. A

single judgment of sentence reﬂecting the predicate felonies can

form the basis of a racketeering conviction even though the

precise date of each offense does not appear on the judgment of

sentence. All that the governing statute requires with regard to

timing is that the offenses occurred within a ten-year period of

time.

2. The trial court properly refused to credit defendant’s rack-

eteering sentence with time she spent in jail for two of the

predicate convictions on which defendant’s racketeering convic-

tion was based. A defendant is entitled to credit against a term of

imprisonment for time spent in jail because of being denied or

unable to furnish bond for the offense of which he or she was

convicted. That is, defendant was not entitled to credit for the 360

days she spent in jail as the penalty for her previous false

2015] P

EOPLE V

AISBECK

759

pretenses violations, because defendant was being sentenced for

her racketeering conviction and the time served was for her false

pretenses convictions.

3. The trial court improperly ordered restitution for individu-

als who were not listed in the information on which defendant’s

prosecution was based. Restitution is limited to victims of the

defendant’s course of conduct that gives rise to the conviction. In

this case, the trial court relied on caselaw that was later reversed

to order that defendant pay restitution to more victims than were

listed on the information. Restitution cannot be ordered for

uncharged conduct. Because the victims were not listed on the

information, their damages did not arise from the offense charged

in the information.

4. The trial court properly aggregated the victims’ losses to

reach the monetary threshold for a felony charge of racketeering.

The language in the false pretenses statute expressly states that

the amount of money involved in separate incidents may be

aggregated to reach the felony threshold, as long as the incidents

occur within a 12-month period of time. In this case, the aggre-

gate of the restitution amounts for victims listed in the informa-

tion exceeded the felony threshold of $1,000.

Judgment of sentence vacated with regard to restitution only,

remanded for entry of a revised restitution order, and afﬁrmed in

all other respects.

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, and Matthew K. Payok and M. Elizabeth Lip-

pitt, Assistant Attorneys General, for the people.

Tonya Lynn Raisbeck, in propria persona.

Before: T

ALBOT

, C.J., and B

ECKERING

and G

ADOLA

, JJ.

ALBOT

, C.J. Tonya Lynn Raisbeck appeals as of

right her conviction and sentence, after a jury trial, of

conducting or participating in the affairs of an enter-

prise directly or indirectly through a pattern of rack-

eteering activity (racketeering).

We afﬁrm Raisbeck’s

MCL 750.159i(1).

760 312 M

ICH

759 [Oct

conviction, but vacate the judgment of sentence with

respect to restitution only, and remand for further

proceedings.

In the summer of 2010, Special Agent John C.

Mulvaney headed an investigation into Mobile Modiﬁ-

cation, Inc. (MMI), a business incorporated by Rais-

beck in 2008. MMI operated from a location in Fenn-

ville. For a fee, MMI promised to obtain mortgage

modiﬁcations for its customers. Mulvaney’s investiga-

tion began after several complaints were received that

MMI would collect its fees, but provide nothing to its

customers. On July 27, 2010, Raisbeck was arrested on

misdemeanor charges and presented with a search

warrant for the premises on which the business oper-

ated. Raisbeck allowed agents to search the premises.

Through this search, agents discovered 195 customer

ﬁles. After reviewing these ﬁles, it did not appear that

a single modiﬁcation had been successfully completed.

Raisbeck was initially prosecuted in Allegan County

in case numbers 10-017019-FH and 10-017020-FH.

These cases concerned six victims. Ultimately, Rais-

beck was convicted of two counts of false pretenses

more than $1,000 but less than $20,000.

She was also

convicted

of one count of conspiracy to commit false

pretenses.

While preparing for this ﬁrst trial, Mul-

MCL 750.218(4)(a).

MMI was separately charged and convicted in lower court case

numbers 10-017015-FH and 10-017014-FH. Appeals were ﬁled in all

four cases, and the appeals were consolidated. People v Raisbeck,

unpublished order of the Court of Appeals, entered March 14, 2012

(Docket Nos. 308569, 308581, 308601, and 308665). On December 28,

2012, this Court dismissed MMI’s appeals because corporations may not

pursue an appeal without an attorney, and no attorney had ﬁled an

appearance on MMI’s behalf. People v Mobile Modiﬁcation, Inc, unpub-

lished order of the Court of Appeals, entered December 28, 2012 (Docket

Nos. 308569 and 308665). On February 20, 2013, this Court dismissed

both appeals arising from Raisbeck’s convictions because Raisbeck had

2015] P

EOPLE V

AISBECK

761

vaney became aware of additional victims of MMI.

After these initial cases concluded, Special Agent Pete

Ackerly took over the investigation. Ackerly identiﬁed

several additional victims. In January 2012, Raisbeck

was charged with racketeering in case number 12-

017853-FH, the case from which the instant appeal

arises. On September 6, 2013, after a lengthy trial, a

jury convicted Raisbeck of one count of racketeering.

Through a special verdict form, the jury concluded that

Raisbeck defrauded nine individual victims of a total of

$7,752.

SUFFICIENCY OF THE EVIDENCE

Raisbeck ﬁrst argues that the evidence presented at

trial was insufﬁcient to support her racketeering con-

viction. We disagree. “A challenge to the sufﬁciency of

the evidence in a jury trial is reviewed de novo, viewing

the evidence in the light most favorable to the prosecu-

tion, to determine whether the trier of fact could have

found that the essential elements of the crime were

proved beyond a reasonable doubt.”

As this Court has explained:

[I]n order to ﬁnd defendant guilty of racketeering, the jury

needed

to ﬁnd beyond a reasonable doubt that: (1) an

enterprise existed, (2) defendant was employed by or

associated with the enterprise, (3) defendant knowingly

conducted or participated, directly or indirectly, in the

affairs of the enterprise, (4) through a pattern of rack-

eteering activity that consisted of the commission of at

yet to ﬁle an appellate brief. People v Raisbeck, unpublished order of the

Court of Appeals, entered February 20, 2013 (Docket Nos. 308581 and

308601).

Speciﬁcally, the jury found that Raisbeck defrauded three victims of

$994 each, and six victims of $795 each. The jury found that Raisbeck

had not defrauded three additional victims.

People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014).

762 312 M

ICH

759 [Oct

least two racketeering offenses that (a) had the same or

substantially similar purpose, result, participant, victim,

or method of commission, or were otherwise interrelated

by distinguishing characteristics and are not isolated acts,

(b) amounted to or posed a threat of continued criminal

activity, and (c) were committed for ﬁnancial gain.

[6]

Raisbeck challenges whether there was sufﬁcient

evidence to demonstrate that she engaged in a pattern

of racketeering activity. As is provided by statute:

than 2 incidents of racketeering to which all of the

following characteristics apply:

(i) The incidents have the same or a substantially

similar purpose, result, participant, victim, or method of

commission, or are otherwise interrelated by distinguish-

ing characteristics and are not isolated acts.

(ii) The incidents amount to or pose a threat of contin-

ued criminal activity.

(iii) At least 1 of the incidents occurred within this state

on or after the effective date of the amendatory act that

added this section, and the last of the incidents occurred

within 10 years after the commission of any prior incident,

excluding any period of imprisonment served by a person

engaging in the racketeering activity.

[7]

To establish a pattern of racketeering activity, the

prosecutor

relied, in part, on Raisbeck’s previous false

pretenses convictions. Raisbeck argues that because

the prosecutor only presented a single judgment of

sentence, which did not establish the precise dates on

which she committed the previous offenses, the pros-

ecutor failed to establish the third statutory element of

racketeering. The essence of her argument is that to

People v Martin, 271 Mich App 280, 321; 721 NW2d 815 (2006), aff’d

482 Mich 851 (2008).

MCL 750.159f(c).

2015] P

EOPLE V

AISBECK

763

satisfy this element, the crimes must have been com-

mitted on separate dates, and without evidence of

these speciﬁc dates, her conviction cannot stand. Rais-

beck is incorrect. Nothing in the statutory deﬁnition of

a “pattern of racketeering activity” requires that the

predicate criminal acts forming the basis of a rack-

eteering conviction occur on different dates. The stat-

ute simply requires that the last criminal act occur

within ten years of the previous criminal act, excluding

the time during which a defendant is imprisoned.

The

criminal

acts at issue in this case all occurred within a

period of less than ten years. Moreover, even excluding

her previous false pretenses convictions, Raisbeck’s

racketeering conviction would be supported by the

jury’s conclusion that she defrauded nine additional

victims.

Raisbeck’s argument lacks merit.

Raisbeck

also argues that the prosecutor did not

present sufﬁcient evidence to establish that she en-

gaged in “racketeering” as that term is deﬁned. “Rack-

eteering” is deﬁned, in relevant part, as committing or

conspiring to commit “[a] felony violation of [MCL

750.218], concerning false pretenses.”

Raisbeck ar-

gues

that because no single transaction exceeded the

$1,000 threshold stated in MCL 750.218(4)(a), there

exists no evidence that she committed a felony viola-

tion of MCL 750.218. She argues that a prosecutor

cannot aggregate separate incidents to satisfy the

monetary threshold of MCL 750.218(4)(a). Raisbeck is

incorrect. To satisfy the monetary threshold stated in

MCL 750.218(4)(a), a prosecutor may aggregate sepa-

rate, but related, incidents that occur within any

MCL 750.159f(c)(iii).

The prosecutor aggregated these victims into three violations of

MCL 750.218(4)(a) (false pretenses).

MCL 750.159g(w).

764 312 M

ICH

759 [Oct

twelve-month period.

The prosecutor did so, aggre-

gating 18 separate acts into ﬁve violations of MCL

750.218(4)(a). Raisbeck does not dispute that the sepa-

rate incidents occurred within a period of twelve

months, or that, as aggregated, those violations satis-

ﬁed the $1,000 threshold.

Accordingly, Raisbeck’s

argument

lacks merit.

II. SENTENCE CREDIT

Raisbeck next argues that the trial court erred by

efusing to credit time served in jail against her

racketeering sentence. We disagree. “The question

whether defendant is entitled to sentence credit pur-

suant to MCL 769.11b for time served in jail before

sentencing is an issue of law that we review de

novo.”

Raisbeck served 360 days in jail for her prior false

retenses convictions. While she was in jail, the pros-

ecutor charged Raisbeck with racketeering, the charge

that resulted in the conviction at issue in this appeal. As

she did in the trial court, Raisbeck argues that she was

entitled to a credit of 360 days against her sentence

As is provided by Michigan’s false pretenses statute, “The values of

land, interest in land, money, personal property, use of the instrument,

facility, article, or valuable thing, service, larger amount obtained, or

smaller amount sold or disposed of in separate incidents pursuant to a

scheme or course of conduct within any 12-month period may be

aggregated to determine the total value involved in the violation of this

section.” MCL 750.218(8).

Regardless, we note that the record reﬂects that the individual

incidents occurred in a period of nine months, from June 2008 to

February 2009. The record also demonstrates that, through a special

verdict form, the jury concluded that Raisbeck committed no less than

three violations of MCL 750.218(4)(a). These violations do not include

Raisbeck’s previous convictions of false pretenses, which also formed

part of the basis for her racketeering conviction.

People v Waclawski, 286 Mich App 634, 688; 780 NW2d 321 (2009).

2015] P

EOPLE V

AISBECK

765

for racketeering because the false pretenses convic-

tions formed, in part, the basis for her racketeering

conviction.

A criminal defendant’s entitlement to credit for time

served in jail is provided by MCL 769.11b:

Whenever any person is hereafter convicted of any

crime within this state and has served any time in jail

prior to sentencing because of being denied or unable to

furnish bond for the offense of which he is convicted, the

trial court in imposing sentence shall speciﬁcally grant

credit against the sentence for such time served in jail

prior to sentencing.

[14]

As our Supreme Court has explained:

[MCL 769.11b] has been interpreted many different

ways

in the Court of Appeals, depending upon the factual

permutations that result in presentence conﬁnement in

particular cases. The sheer number and the factual

uniqueness of the host of cases that have been decided in

the Court of Appeals defy discrete categorization, or re-

statement of simple majority and minority rules.

It has been accurately observed, however, that inter-

pretations of the statute in the Court of Appeals have

fallen into one of three general categories: the liberal

approach that ordinarily affords credit for any presen-

tence conﬁnement served for whatever the reason, and

whether related or unrelated to the crime for which the

sentence in issue is imposed; the middle or intermediate

approach that asks the question whether the reason for

the presentence conﬁnement bears an “intimate and sub-

stantial relationship” to the offense for which the defen-

dant was convicted and is seeking sentence credit; and the

strict approach which limits credit to presentence conﬁne-

ment that results from the defendant’s ﬁnancial inability

or unwillingness to post bond for the offense for which he

has been convicted. Presumably, this last category would

MCL 769.11b.

766 312 M

ICH

759 [Oct

include instances in which the accused is denied bail

under the provisions of art 1, § 15 of the Michigan Consti-

tution.

The foregoing classiﬁcations are necessarily inexact,

and some cases will present factual scenarios that do not

ﬁt precisely within any of the stated categories.

[15]

Raisbeck’s argument relies on cases generally tak-

ing

the intermediate approach.

However, our Su-

preme Court resolved the apparent conﬂict among

these approaches by holding that “[t]o be entitled to

sentence credit for presentence time served, a defen-

dant must have been incarcerated ‘for the offense of

which he is convicted.’ ”

Our Supreme Court has since

reiterated

that “credit is to be granted for presentence

time served in jail only where such time is served as a

result of the defendant being denied or unable to

furnish bond ‘for the offense of which he is con-

victed.’ ”

In other words, our Supreme Court has

repudiated

the intermediate approach relied on by

Raisbeck. The time Raisbeck spent in jail was time

served on her previous false pretenses convictions, not

time served for the offense of which she was convicted

in this case. Accordingly, Raisbeck was not entitled to

sentence credit.

People v Prieskorn, 424 Mich 327, 333-334; 381 NW2d 646 (1985)

(citations omitted).

People v Tilliard, 98 Mich App 17; 296 NW2d 180 (1980); People v

Face, 88 Mich App 435; 276 NW2d 916 (1979); People v Groeneveld, 54

Mich App 424; 221 NW2d 254 (1974). We note that none of these

opinions are binding on this Court because each was decided before

November 1, 1990. MCR 7.215(J)(1); In re Stillwell Trust, 299 Mich App

289, 299 n 1; 829 NW2d 353 (2013).

Prieskorn, 424 Mich at 344, quoting MCL 769.11b.

People v Adkins, 433 Mich 732, 742; 449 NW2d 400 (1989). See also

People v Idziak, 484 Mich 549, 562-563; 773 NW2d 616 (2009), quoting

MCL 769.11b (stating that when a defendant “is incarcerated not

‘because of being denied or unable to furnish bond’ for the new offense,

but for an independent reason,” MCL 769.11b does not apply).

2015] P

EOPLE V

AISBECK

767

III. RESTITUTION

Finally, Raisbeck argues that the trial court erred by

ordering her to pay more than $23,000 in restitution.

We agree that the trial court erred in this regard. “This

Court generally reviews an order of restitution for an

abuse of discretion.”

“But when the question of resti-

tution

involves a matter of statutory interpretation,

the issue is reviewed de novo as a question of law.”

On September 3, 2013, the ninth day of trial, the trial

court and the parties discussed an amended informa-

tion that had been ﬁled by the prosecutor a few days

earlier. After the trial court reviewed the amended

information, it stated that there were “a total of 14

victims in this case.” The prosecutor corrected the trial

court, stating that “there’s a total of 18 victims . . . as

part of this.” The trial court requested that the prosecu-

tor amend the information to speciﬁcally name each

individual victim. The following day, September 4, 2013,

the prosecutor ﬁled a revised amended information.

This amended information included a single count of

racketeering and alleged ﬁve separate felony violations

of the false pretenses statute.

Each of these ﬁve

violations

involved three to four victims, and each

victim was identiﬁed by name.

After the trial concluded, but before sentencing, the

prosecutor ﬁled a motion seeking restitution for 85

victims of Raisbeck’s scheme. As is stated in the

prosecutor’s brief accompanying the motion, “the ma-

jority [of these victims] were not represented in the

charges.” The prosecutor relied on our Supreme

Court’s opinion in People v Gahan, which held that a

People v Dimoski, 286 Mich App 474, 476; 780 NW2d 896 (2009).

Id.

MCL 750.218.

768 312 M

ICH

759 [Oct

sentencing court was permitted to order restitution to

all victims, “even if those speciﬁc losses were not the

factual predicate for the conviction.”

Raisbeck re-

sponded to the motion by arguing that only those

victims who formed the factual predicate for her convic-

tion could be included in a restitution award. She

further argued that several of the victims who formed

the basis for her racketeering conviction had been

compensated through restitution awards connected to

her previous false pretenses convictions. In reply, the

prosecutor asserted that he would seek restitution for

approximately 30 victims beyond those who formed the

basis for Raisbeck’s racketeering conviction, as well as

for ﬁve of the victims that did form part of the basis of

the racketeering conviction.

Relying on G

ahan, the

trial court agreed that it could order restitution to be

paid to all victims of Raisbeck’s scheme. At sentencing,

the trial court considered documentary evidence detail-

ing the claims of these victims, and found that 31 claims

for restitution were substantiated. The trial court

awarded a total of approximately $23,000 in restitution.

After Raisbeck was sentenced, our Supreme Court

decided People v McKinley.

In McKinley,

our Supreme

Court explicitly overruled its decision in Gahan:

We conclude that the Gahan Court’s reading of MCL

780.766(2) is not sustainable and must be overruled. The

plain language of the statute authorizes the assessment of

full restitution only for “any victim of the defendant’s

course of conduct that gives rise to the conviction . . . .” The

statute does not deﬁne “gives rise to,” but a lay dictionary

People v Gahan, 456 Mich 264, 270; 571 NW2d 503 (1997), over-

ruled by People v McKinley, 496 Mich 410; 852 NW2d 770 (2014).

The jury determined that one of these ﬁve victims was not de-

frauded by Raisbeck. The trial court did not order restitution with

regard to this victim.

McKinley, 496 Mich 410.

2015] P

EOPLE V

AISBECK

769

deﬁnes the term as “to produce or cause.” Random House

Webster’s College Dictionary (2000), p. 1139. Only crimes

for which a defendant is charged “cause” or “give rise to”

the conviction. Thus, the statute ties “the defendant’s

course of conduct” to the convicted offenses and requires a

causal link between them. It follows directly from this

premise that any course of conduct that does not give rise

to a conviction may not be relied on as a basis for assessing

restitution against a defendant. Stated differently, while

conduct for which a defendant is criminally charged and

convicted is necessarily part of the “course of conduct that

gives rise to the conviction,” the opposite is also true;

conduct for which a defendant is not criminally charged

and convicted is necessarily not part of a course of conduct

that gives rise to the conviction. Similarly, the statute

requires that “any victim” be a victim “of” the defendant’s

course of conduct giving rise to the conviction, indicating

that a victim for whom restitution is assessed need also

have a connection to the course of conduct that gives rise

to the conviction. Allowing restitution to be assessed for

uncharged conduct reads the phrase “that gives rise to the

conviction” out of the statute by permitting restitution

awards for “any victim of the defendant’s course of con-

duct” without any qualiﬁcation.

[25]

Thus, in McKinley,

our Supreme Court concluded:

Because MCL 780.766(2) does not authorize the assess-

ment of restitution based on uncharged conduct, the trial

court erred by ordering the defendant to pay $94,431 in

restitution to the victims of air conditioner thefts attrib-

uted to the defendant by his accomplice but not charged by

the prosecution. We therefore vacate that portion of the

defendant’s judgment of sentence.

[26]

As held by our Supreme Court in McKinley,

trial

courts may not “impose restitution based solely on

Id. at 419-420.

Id. at 421.

770 312 M

ICH

759 [Oct

uncharged conduct.”

Here, the information lists a

single count of racketeering, “consisting of two or more

of the following incidents . . . [.]” The information then

lists ﬁve separate violations of the false pretenses

statute. Each of these ﬁve violations involves various

named victims, 18 in all. Thus, Raisbeck was charged

with racketeering on the basis of her conduct with

respect to the 18 individuals named in the information.

The trial court, however, ordered restitution based on

the claims of more than 20 victims who were not

named in the amended information. Because these

victims were not named in the amended information,

any illegal conduct with respect to these victims was

not charged. And because a trial court cannot order

restitution for losses related to uncharged conduct, the

trial court erred by ordering restitution for those

individuals who were not named in the information.

The prosecutor argues that the language of MCL

750.159i(l), as well as the deﬁnition of a “pattern of

racketeering activity” stated in MCL 750.159f(c), sup-

port a conclusion that all victims of Raisbeck’s poten-

tial scheme were included in the single racketeering

charge. Based on this premise, the prosecutor argues

that the rule of McKinley was not violated because

anyone defrauded by Raisbeck’s scheme was necessar-

ily included in the charge. Notably, this position is

precisely contrary to the prosecutor’s position in the

trial court. There, the prosecutor stated that the major-

ity of the victims for whom he sought restitution “were

not represented in the charges.” Regardless, we do not

read the statutory provisions cited by the prosecutor as

having any relevance to the proper scope of restitution.

The statutory provisions cited by the prosecutor (1)

state that a racketeering charge requires the existence

Id. at 424.

2015] P

EOPLE V

AISBECK

771

of a pattern of racketeering activity,

and (2) deﬁne the

phrase “pattern of racketeering activity.”

A “pattern

of racketeering activity” requires a showing of “not less

than 2 incidents of racketeering . . . .”

The term

“racketeering” is deﬁned as “committing, attempting to

commit, conspiring to commit, or aiding or abetting,

soliciting, coercing, or intimidating a person to commit

an offense for ﬁnancial gain,” involving any one of a

number of enumerated violations.

Thus, these provi-

sions provide that a single racketeering charge is

predicated on several individual incidents that form a

pattern of racketeering activity. These provisions do

not, however, necessarily expand the charge beyond

the speciﬁc incidents that form its factual predicate. In

this case, the amended information speciﬁcally names

18 individuals. Raisbeck’s acts against these individu-

als form the factual predicate for the single racketeer-

ing charge. The prosecutor simply did not charge

Raisbeck with committing a crime against any and all

victims of her scheme; he charged her with committing

a single crime against 18 named individuals.

The prosecutor also argues that as a policy matter,

this Court should allow the trial court’s order to stand

because to do otherwise would contravene the purpose

of the racketeering statute. Our Supreme Court “has

recognized that the Legislature is the superior institu-

tion for creating the public policy of this state[.]”

With

MCL 750.159i(l).

MCL 750.159f(c). We note that the prosecutor attempts to redeﬁne

the phrase “pattern of racketeering activity” by citing to a dictionary

deﬁnition of “pattern.” When our Legislature has deﬁned a term, that

deﬁnition controls, and it is unnecessary to turn to a dictionary. People

v Lewis, 302 Mich App 338, 342; 839 NW2d 37 (2013).

MCL 750.159f(c).

MCL 750.159g.

Woodman v Kera LLC, 486 Mich 228, 245; 785 NW2d 1 (2010).

772 312

ICH

759 [Oct

regard to restitution in felony cases, our Legislature has

announced its policy decision through MCL 780.766.

Our Supreme Court interpreted the statute in McKinley

and made clear that the statute “does not authorize the

assessment of restitution based on uncharged con-

duct . . . .”

The prosecutor cites no statute demonstrat-

ng that the Legislature has expressed the intent to

treat restitution with regard to a racketeering convic-

tion differently than a conviction for any other crime.

We decline the invitation to make a public policy deci-

sion that differs from that expressed by our Legislature.

McKinley requires that we vacate that portion of the

trial court’s judgment of sentence that awarded resti-

tution based on uncharged conduct.

Raisbeck must

pay

restitution only with regard to those victims

named in the information. The trial court awarded

$4,424.36 in restitution with regard to these victims.

Accordingly, we remand with instructions that the trial

court

enter an order assessing $4,424.36 in restitution

against Raisbeck.

The judgment of sentence is vacated with respect to

restitution, and the matter remanded for entry of an

order assessing $4,424.36 in restitution. Afﬁrmed in all

other respects. We do not retain jurisdiction.

ECKERING

and G

ADOLA

, JJ., concurred with T

ALBOT

C.J.

McKinley, 496 Mich at 421.

See id. at 424.

At the sentencing hearing, the trial court ordered restitution in the

amount of $4,225.36 with respect to the claims of individuals named in

the information. The trial court later granted the prosecutor’s motion to

order additional restitution in the amount of $199. This additional

amount was likewise based on the claim of an individual named in the

information, and accordingly, the trial court properly imposed this

additional amount.

2015] P

EOPLE V

AISBECK

773

HAYES v PAROLE BOARD

Docket No. 321547. Submitted October 13, 2015, at Lansing. Decided

October 20, 2015, at 9:20 a.m.

In January 1996, Nathan Hayes was convicted in the Kalamazoo

Circuit Court of armed robbery, conspiracy to commit armed

robbery, and possession of a ﬁrearm during the commission of a

felony. The court, William G. Schma, J., sentenced Hayes as a

habitual offender to serve concurrent terms of 20 to 30 years in

prison for his armed robbery and conspiracy convictions, which

were to be served consecutively to a two-year term for his felony-

ﬁrearm conviction. The calendar minimum date for Hayes’s release

is July 5, 2017, but his net minimum date for release (the calendar

minimum date minus Hayes’s disciplinary credits) was October 2,

2013. As early as 2008, Hayes began asking the Parole Board to

consider him for parole, but the board repeatedly denied his

requests. Hayes then asked Kalamazoo Circuit Court Judge Gary

C. Giguere, Jr. (who was Judge Schma’s successor) to grant the

board jurisdiction to consider him for parole. Judge Giguere

concluded that he did not have the authority to grant jurisdiction

because the board is automatically vested with it. Finally, Hayes

brought an action against the board in the Ingham Circuit Court,

seeking a writ of mandamus directing the board to consider him for

parole. The board argued that Hayes was not eligible for parole

under MCL 769.12(4)(a), that it did not have a clear legal duty to

consider Hayes for parole, and that Hayes’s proper avenue for

relief was to appeal Judge Giguere’s opinion and order. Hayes,

however, argued that the board had to consider him for parole after

his net minimum date without the need for approval from his

sentencing judge because it is only after parole consideration has

been given that the board must obtain judicial approval. The

Ingham Circuit Court, Rosemarie E. Aquilina, J., denied Hayes’s

request for a writ of mandamus and dismissed his complaint.

Hayes appealed.

The Court of Appeals held:

1. To obtain a writ of mandamus, the plaintiff must demon-

strate that (1) the plaintiff has a clear legal right to performance

of the speciﬁc duty sought to be compelled, (2) the defendant has

774 312

ICH

774 [Oct

a clear legal duty to perform that act, and (3) the act is ministe-

rial, involving no exercise of discretion or judgment. A clear legal

right is one clearly founded in or granted by law. It is a right that

is inferable as a matter of law from uncontroverted facts, regard-

less of the difﬁculty of the legal question to be decided.

2. Hayes was entitled to a writ of mandamus. Under MCL

769.12(4)(a), a habitual offender who is not a prisoner subject to

disciplinary time is generally not eligible for parole until the

expiration of the minimum term ﬁxed by the sentencing judge at

the time of sentence unless the sentencing judge or a successor

gives written approval for parole at an earlier date authorized by

law. MCL 791.234(1) provides that the Parole Board acquires

jurisdiction over such a prisoner when he or she has served time

equal to the minimum sentence imposed by the court less good

time and disciplinary credits, if applicable. MCL 791.235(1) re-

quires that not less than one month before the expiration of the

prisoner’s minimum sentence less applicable good time and disci-

plinary credits, at least one member of the board must interview a

prisoner before rejecting his or her parole. Accordingly, while MCL

769.12(4)(a) provides that Hayes will not be eligible for parole until

the proper judge gives written approval, that fact by itself does not

establish that the Parole Board has no obligation to consider Hayes

as a possible candidate for parole. MCL 769.12(4)(a) requires

written approval from the sentencing judge or that judge’s succes-

sor before a prisoner otherwise selected for parole becomes eligible

for the actual grant of parole, but it does not require written

approval before the prisoner can even be considered for conditional

release. Hayes became subject to the Parole Board’s jurisdiction

after he had served time equal to the minimum sentence imposed

by the court less good time and disciplinary credits. No judicial

approval was required. Consequently, at that point the board had

a duty to consider whether he was a proper candidate for parole.At

the very least, he was entitled under MCL 791.235(1) and (2) to an

interview before the board unless the board concluded that he had

a low probability of being paroled. Additionally, MCL 791.235(7)

required the board to create a parole eligibility report for him.

Neither event happened even though Hayes’s net minimum date

had passed. Under MCL 791.234 and MCL 791.235, the Board had

to consider Hayes for parole before the expiration of his net

minimum sentence. This right in conjunction with the board’s clear

duty rendered mandamus proper. Once parole consideration is

complete, if the board decides that parole is proper, then it must

obtain the successor judge’s approval before granting parole.

2015] H

AYES V

AROLE

775

3. While the Parole Board argued that mandamus was im-

proper because Hayes could have appealed Judge Giguere’s

opinion and order concerning the board’s jurisdiction, the judge’s

analysis was correct. Therefore, had Hayes appealed that deci-

sion, he would have been asking the Court of Appeals to afﬁrm

Judge Giguere’s decision and then go a step further and order the

board, which was not involved in that action, to consider Hayes

for parole. That appeal would have been improper.

Reversed and remanded.

Levine & Levine (by Sarissa

K. Montague) for Na-

than Hayes.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, and Scott R. Rothermel, As-

sistant Attorney General, for the Parole Board.

Before: M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

, JJ.

URIAM

. In this dispute over the right to be

considered for parole, petitioner, Nathan Hayes, ap-

peals by right the trial court’s opinion and order denying

his complaint for a writ of mandamus compelling re-

spondent, the Parole Board (the Board), to consider him

for parole. Because we conclude that Hayes established

grounds for mandamus, we reverse and remand.

I. BASIC FACTS

In January 1996, a jury found Hayes guilty of armed

robbery

, conspiracy to commit armed robbery, and

possession of a ﬁrearm during the commission of a

felony. The trial court sentenced Hayes as a habitual

offender to serve concurrent terms of 20 to 30 years in

prison for his armed robbery and conspiracy convic-

tions, which were to be served consecutively to a

two-year term for his felony-ﬁrearm conviction.

The “calendar minimum date” for Hayes’s release is

July 5, 2017. However, his “net minimum date”—his

776 312 M

ICH

774 [Oct

calendar minimum date less disciplinary credits—for

release was October 2, 2013. There is no dispute about

whether Hayes has earned his disciplinary credits or

concerning his net minimum date for release.

As early as 2008, Hayes began asking the Board to

consider him for parole, but the Board repeatedly

denied his requests. Hayes then asked Kalamazoo

Circuit Court Judge Gary C. Giguere, Jr., who is the

successor to Hayes’s sentencing judge, to grant the

Board jurisdiction to consider him for parole. Judge

Giguere concluded that he did not have the authority

to grant jurisdiction because the Board is automati-

cally vested with jurisdiction. Notably, the Board was

not involved in those proceedings.

Hayes then sued for a writ of mandamus. Speciﬁcally,

he asked the trial court to order the Board to consider

him for parole. The Board argued that mandamus was

improper. It asserted that Hayes was not eligible for

parole under MCL 769.12, that it did not have a clear

legal duty to consider Hayes for parole, and that Hayes’s

proper avenue for relief was to appeal Judge Giguere’s

opinion and order. Hayes ultimately argued that the

Board must consider him for parole after his net mini-

mum date without the need for approval from his

sentencing judge because it is only once that consider-

ation has been made that the Board must obtain judicial

approval. The trial court denied Hayes’s request for a

writ of mandamus and dismissed his complaint.

Hayes now appeals in this Court.

II. MANDAMUS

STANDARDS OF REVIEW

On appeal, Hayes argues that the trial court erred

when it determined that he had not established the

2015] H

AYES V

AROLE

777

right to a writ of mandamus compelling the Board to

comply with its statutory duty to consider him for

parole. This Court reviews for an abuse of discretion

the trial court’s decision on a request for a writ of

mandamus, but reviews de novo the proper interpre-

tation and application of the underlying law. Younkin v

Zimmer, 497 Mich 7, 9; 857 NW2d 244 (2014).

B. ANALYSIS

“A writ of mandamus is an extraordinary remedy.”

Lansing

Sch Ed Ass’n v Lansing Bd of Ed (On Re-

mand), 293 Mich App 506, 519; 810 NW2d 95 (2011). In

order to obtain a writ of mandamus, the plaintiff must

demonstrate that “(1) the plaintiff has a clear legal

right to performance of the speciﬁc duty sought to be

compelled, (2) the defendant has a clear legal duty to

perform such act and (3) the act is ministerial, involv-

ing no exercise of discretion or judgment.” Vorva v

Plymouth-Canton Community Sch Dist, 230 Mich App

651, 655; 584 NW2d 743 (1998). “[A] clear legal right is

one clearly founded in, or granted by, law; a right

which is inferable as a matter of law from uncontro-

verted facts regardless of the difﬁculty of the legal

question to be decided.” Rental Props Owners Ass’n of

Kent Co v Kent Co Treasurer, 308 Mich App 498,

518-519; 866 NW2d 817 (2014) (quotation marks and

citation omitted).

When construing a statute, this Court’s “purpose is

to discern and give effect to the Legislature’s intent.”

People v Morey, 461 Mich 325, 329-330; 603 NW2d 250

(1999). We begin with the text, and, if the language is

unambiguous, we “presume that the Legislature in-

tended the meaning clearly expressed—no further ju-

dicial construction is required or permitted, and the

statute must be enforced as written.” Id. at 330.

778 312 M

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774 [Oct

Further, “courts must give effect to every word, phrase,

and clause in a statute and avoid an interpretation

that would render any part of the statute surplusage or

nugatory.” Johnson v Recca, 492 Mich 169, 177; 821

NW2d 520 (2012) (quotation marks and citation omit-

ted). We will, however, review the statute in context to

produce—if at all possible—a harmonious and consis-

tent construction of the whole statutory scheme. People

v Cunningham, 496 Mich 145, 153-154; 852 NW2d 118

(2014). “Statutes that address the same subject matter

or share a common purpose are in pari materia and

must be read collectively as one law, even when there is

no reference to one another.” Menard Inc v Dep’t of

Treasury, 302 Mich App 467, 472; 838 NW2d 736

(2013).

Under MCL 769.12(4)(a), a habitual offender who is

not a prisoner subject to disciplinary time

is generally

“not

eligible for parole until” the expiration of the

“minimum term ﬁxed by the sentencing judge at the

time of sentence unless the sentencing judge or a

successor gives written approval for parole at an ear-

lier date authorized by law.” MCL 791.234(1) provides

that the Parole Board acquires jurisdiction over “a

prisoner sentenced to an indeterminate sentence and

conﬁned in a state correctional facility” when that

“prisoner has served a period of time equal to the

minimum sentence imposed by the court for the crime

of which he or she was convicted, less good time and

disciplinary credits, if applicable.” Under MCL

791.235(1), the Board has an obligation to interview a

Because defendant committed his crimes before December 15, 1998,

he is not a “prisoner subject to disciplinary time,” MCL 791.33c; MCL

800.34(5)(a), for whom different rules and time limits apply. The

statutes and the quotations from them throughout this opinion are

those applicable to prisoners who are not prisoners subject to disciplin-

ary time.

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prisoner before rejecting his or her parole: “[A] pris-

oner shall not be denied parole without an interview

before 1 member of the parole board. The interview

shall be conducted at least 1 month before the expira-

tion of the prisoner’s minimum sentence less appli-

cable good time and disciplinary credits . . . .” Addition-

ally, under MCL 791.235(7), “[a]t least 90 days before

the expiration of the prisoner’s minimum sentence less

applicable good time and disciplinary credits . . . , a

parole eligibility report shall be prepared by appropri-

ate institutional staff.”

The Board claims that it has no obligation to review

Hayes’s request for parole because he is “not eligible

for parole” under MCL 769.12(4)(a) until his sentenc-

ing judge or the judge’s successor provides written

approval. While it is true that MCL 769.12(4)(a) pro-

vides that Hayes will not be eligible for parole until the

proper judge gives written approval, that by itself does

not establish that the Board has no obligation to

consider Hayes as a possible candidate for parole. The

grant of parole generally means the grant of permis-

sion to leave conﬁnement with certain restrictions. See

People v Armisted, 295 Mich App 32, 38-39; 811 NW2d

47 (2011). The Board reads MCL 769.12(4)(a) as setting

forth the necessary requirements for a prisoner to

become eligible to be considered for release on parole;

however, nothing in MCL 769.12(4)(a), or any other

statute for that matter, requires written approval from

the sentencing judge or his or her successor for a

prisoner to be considered for release on parole. MCL

769.12(4)(a) requires written approval before a pris-

oner otherwise selected for parole will become eligible

for the actual grant of parole. It does not require, as the

Board suggests, written approval before a prisoner can

even be considered for conditional release.

780 312 M

ICH

774 [Oct

To adopt the Board’s understanding would require

us to ignore the unambiguous provisions of MCL

791.234 and MCL 791.235. Under MCL 791.234(1),

Hayes became “subject to the jurisdiction of the parole

board when [he had] served a period of time equal to

the minimum sentence imposed by the court for the

crime of which he or she was convicted, less good time

and disciplinary credits[.]” No judicial approval was

required. Consequently, at that point, the Board had a

duty to consider whether he was a proper candidate for

parole. At the very least, he was entitled to “an

interview before 1 member of the parole board” unless

the Board concluded that he had “a low probability of

being paroled.” MCL 791.235(1) and (2). Additionally,

he was entitled to have, and the Board was required to

create, “a parole eligibility report.” MCL 791.235(7).

That did not happen despite the fact that Hayes’s net

minimum date has passed.

Under MCL 791.234 and MCL 791.235, the Board

had to consider Hayes for parole before the expiration

of his net minimum sentence. It is Hayes’s right in

conjunction with the Board’s clear duty that renders

mandamus proper. “Mandamus is an extraordinary

remedy that may lie to compel the exercise of discre-

tion, but not to compel its exercise in a particular

manner.” Vorva, 230 Mich App at 655-656. Once that

consideration is complete, if the Board decides that

parole is proper, then it must obtain the successor

judge’s approval before granting parole, as required

under MCL 769.12(4)(a). Accordingly, Hayes is entitled

to a writ of mandamus.

C. OTHER ISSUES

The Board claims that this appeal should be dis-

missed

under MCL 600.5507, but that statute applies

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781

to civil actions concerning prison conditions, and MCL

600.5531(a) expressly excludes “proceedings challeng-

ing the fact or duration of conﬁnement in prison, or

parole appeals or major misconduct appeals” from that

category.

The Board also warns that resolution of this issue in

Hayes’s favor could cause “a waste of valuable Parole

Board resources to process a prisoner through the

lengthy pre-parole process only to have the sentencing

or successor judge deny it with a quick order.” This

argument fails to acknowledge that the Board’s pre-

ferred construction would involve a similar use of

resources, albeit by the trial courts rather than the

Board. Under the Board’s interpretation, trial courts

would be the point of ﬁrst contact for all prisoners who

are nearing (or even think they are nearing) their net

minimum sentence. The courts would have to investi-

gate the requests, determine which prisoners are in-

deed nearing their net minimum sentence, and then

make a decision, without the beneﬁt of a parole report,

about whether granting parole is appropriate. Then,

after expending valuable judicial time on the request,

the Board could—as with the trial court—simply deny

the request with a quick decision. Accordingly, this

argument is not a valid basis for refusing to grant

Hayes’s request for relief.

The Board additionally contends that, because the

relationship between MCL 791.234 and MCL 769.12 is

ambiguous, there cannot be a “clear legal duty” on the

part of the Board. MCL 791.234 and MCL 769.12 are

not, however, ambiguous. A clear legal duty, like a clear

legal right, is one that “is inferable as a matter of law

from uncontroverted facts regardless of the difﬁculty of

the legal question to be decided.” Rental Props Owners,

308 Mich App 518-519 (quotation marks and citation

782 312 M

ICH

774 [Oct

omitted). There is a clear legal duty on the part of the

Board to consider Hayes for parole, and that duty

cannot be disregarded because of the complex nature of

the legal question involved.

Lastly, the Board argues that mandamus is im-

proper because Hayes could have appealed Judge

Giguere’s opinion and order concerning the Board’s

jurisdiction. Judge Giguere’s analysis was correct. Ac-

cordingly, had Hayes appealed that decision, he would

have been asking this Court to afﬁrm the decision and

then go a step further and order the Board, which was

not involved in that action, to consider him for parole.

Such an appeal would have been improper. Mandamus

relief is appropriate here because the Board improp-

erly refused to consider a prisoner for parole upon the

expiration of his net minimum sentence. See Phillips v

Warden, State Prison of Southern Mich, 153 Mich App

557, 566; 396 NW2d 482 (1986).

III. CONCLUSION

Hayes was entitled to mandamus relief. We there-

fore

reverse the trial court’s opinion and order and

remand this matter to the trial court to issue a writ of

mandamus.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

, JJ.,

concurred.

2015] H

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783