BV_MiApp313

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

October 22, 2015, through December 29, 2015

CORBIN R. DAVIS

REPORTER OF DECISIONS

VOLUME 313

FIRST EDITION

2017

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

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

COLLEEN A. O’BRIEN ............................................................... 2017

HIEF

LERK

: JEROME W. ZIMMER, J

ESEARCH

IRECTOR

: JULIE ISOLA RUECKE

From October 26, 2015.

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

ROBERT P. YOUNG, J

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

USTICES

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

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

BRIDGET M. M

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

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

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

JOAN L. LARSEN....................................................................... 2017

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 KATHLEEN M. DAWSON

ANNE-MARIE HYNOUS VOICE SAMUEL R. SMITH

DON W. ATKINS ANNE E. ALBERS

JÜRGEN O. SKOPPEK AMY L. V

DYKE

AARON J. GAUTHIER

TATE

OURT

DMINISTRATOR

MILTON L. MACK

LERK:

LARRY S. ROYSTER

EPORTER OF

ECISIONS:

CORBIN R. DAVIS

RIER:

DAVID G. PALAZZOLO

From December 14, 2015.

TABLE OF CASES REPORTED

(Lines set in small type refer to orders appearing in the Special Orders

section beginning at page 801.)

AGE

Application of Consumers Energy Co for

Approval of a Gas Cost Recovery Plan,

In re .................................................................... 175

Application of DTE Gas Co for Approval of a

Gas Cost Recovery Plan, In re ....................... 175

Application of Michigan Gas Utilities Corp for

Approval of a Gas Cost Recovery Plan,

In re ................................................................. 175

Auto-Owners Ins Co v Dep’t of Treasury ......... 56

Capitol Transport, LLC, Chelik v ..................... 83

Carlton, People v ................................................ 339

Chelik v Capitol Transport, LLC ...................... 83

Chelsea (City of), Sylvan Twp v ........................ 305

Chiropractors Rehabilitation Group, PC v

State Farm Mutual Automobile Ins Co ........ 113

City of Chelsea, Sylvan Twp v .......................... 305

City of Flint, Smith v ......................................... 141

Conlin v Upton ................................................... 243

Covenant Medical Center, Inc v State Farm

Mutual Automobile Ins Co ............................. 50

AGE

Dep’t of Treasury, Auto-Owners Ins Co v ......... 56

Dep’t of Treasury, Ford Motor Co v .................. 572

Doe v Racette ...................................................... 105

Elite Health Centers, Inc v State Farm

Mutual Automobile Ins Co ............................. 113

Employers Mutual Casualty Co v Helicon

Associates, Inc ................................................ 401

Enbridge Energy Ltd Partnership v Upper

Peninsula Power Co ....................................... 669

Falconer v Stamps .............................................. 598

Flint (City of), Smith v ...................................... 141

Ford Motor Co v Dep’t of Treasury ................... 572

Frederick, People v ............................................. 457

Green, People v .................................................. 526

Helicon Associates, Inc, Employers Mutual

Casualty Co v ................................................. 401

Hemlock Semiconductor, LLC, Kyocera

Corp v .............................................................. 437

In re Application of Consumers Energy Co for

Approval of a Gas Cost Recovery Plan ......... 175

In re Application of DTE Gas Co for Approval

of a Gas Cost Recovery Plan ......................... 175

ii 313 M

ICH

AGE

In re Application of Michigan Gas Utilities

Corp for Approval of a Gas Cost Recovery

Plan ................................................................. 175

Jackson, People v (On Recon) ............................ 409

Kennedy v Robert Lee Auto Sales .................... 277

Kyocera Corp v Hemlock Semiconductor,

LLC .................................................................. 437

LMPS & LMPJ, Inc, Lowrey v .......................... 500

Lowrey v LMPS & LMPJ, Inc ........................... 500

MEEMIC Ins Co v Michigan Millers Mutual

Ins .................................................................... 94

Maben, People v ................................................. 545

Masroor, People v ............................................... 358

Masroor, People v ................................................................. 801

Michigan Film Ofﬁce, Teddy 23, LLC v ............ 557

Michigan

Millers Mutual Ins, MEEMIC Ins

Co v .................................................................. 94

Milliron, Stankevich v (On Remand) ................ 233

People v Carlton ................................................. 339

People v Frederick .............................................. 457

People v Green ................................................... 526

People v Jackson (On Recon) ............................. 409

People v Maben .................................................. 545

People v Masroor ................................................ 358

ABLE OF

ASES

EPORTED

iii

AGE

People v Masroor ................................................................. 801

People v Sardy .................................................... 679

People v Shank ................................................... 221

People v Steanhouse .......................................... 1

People v Van Doorne .......................................... 457

Racette, Doe v ..................................................... 105

Rittley, Teran v ................................................... 197

Robert Lee Auto Sales, Kennedy v ................... 277

Sardy, People v ................................................... 679

Shank, People v .................................................. 221

Smith v City of Flint .......................................... 141

Stamps, Falconer v ............................................. 598

Stankevich v Milliron (On Remand) ................. 233

State Disbursement Unit, Trantham v ............. 157

State Farm Mutual Automobile Ins Co,

Chiropractors Rehabilitation Group, PC v ... 113

State Farm Mutual Automobile Ins Co,

Covenant Medical Center, Inc v .................... 50

State Farm Mutual Automobile Ins Co, Elite

Health Centers, Inc v ..................................... 113

Steanhouse, People v ......................................... 1

Sylvan Twp v City of Chelsea ........................... 305

Teddy 23, LLC v Michigan Film Ofﬁce ............. 557

Teran v Rittley .................................................... 197

Trantham v State Disbursement Unit .............. 157

Treasury (Dep’t of), Auto-Owners Ins Co v ...... 56

Treasury (Dep’t of), Ford Motor Co v ............... 572

iv 313 M

ICH

AGE

Upper Peninsula Power Co, Enbridge Energy

Ltd Partnership v ........................................... 669

Upton, Conlin v .................................................. 243

Van Doorne, People v ......................................... 457

ABLE OF

ASES

EPORTED

UDGE

OLLEEN

A. O’B

RIEN

Judge Colleen A.

O’Brien was appointed

to the Court of Appeals

in October 2015. She

graduated from the

University of Michigan

in 1978 with a Bachelor

of Arts degree and from

the Detroit College of

Law with a Juris Doctor degree in 1981. Judge O’Brien

practiced law for 17 years before being elected to the

Oakland County Circuit Court in 1998. As a Circuit

Judge, she served as the Presiding Judge of the Female

Adult Treatment Court for 12 years and as the Presid-

ing Judge of the Civil/Criminal Division for several

years.

Judge O’Brien is a longtime member of the Michigan

Judges Association and served as President in 2015.

She has also served as President of the Oakland

County Women’s Bar Association and served on the

Board of Directors of the Women Lawyers Association

of Michigan. An active member of the Oakland County

Bar Association, Judge O’Brien received the Distin-

guished Public Servant Award in 2011.

Judge O’Brien’s civic activities include serving on

the Advisory Board to Crossroads for Youth, serving as

vii

a member of the Indigent Defense Advisory Commis-

sion, and serving as a member of the Interagency

Council on Homelessness.

viii 313 M

ICH

OURT OF

PPEALS

ASES

PEOPLE v STEANHOUSE

Docket No. 318329. Submitted May 13, 2015, at Detroit. Decided

October 22, 2015, at 9:00 a.m. Leave to appeal granted 499 Mich

934.

Alexander Jeremy Steanhouse was convicted by jury in the Wayne

Circuit Court of assault with intent to commit murder, MCL

750.83, and receiving and concealing stolen property less than

$20,000, MCL 750.535(3)(a). The court, Patricia Fresard, J.,

sentenced defendant to 30 to 60 years’ imprisonment for his

assault conviction and 1 to 5 years’ imprisonment for his receiv-

ing and concealing conviction. Defendant’s convictions arose from

an incident involving his good friend, Anton Valoppi. Anton was

hit over the head and his throat was slashed while defendant was

visiting Anton. Anton indicated that defendant was the perpetra-

tor, although he did not actually see who assaulted him. Defen-

dant claimed that another friend of his, Derrin Evans, was

present during the incident and that Evans was the perpetrator.

After the assault occurred, defendant went to his house to change

clothes because there was blood on them. He woke up his

girlfriend, Katherine McIntyre, and told her Anton had been

stabbed. Defendant did not then indicate who had stabbed Anton.

Later, defendant told McIntyre that Evans was responsible for

stabbing Anton. Evans admitted being present on the day of the

incident, but he denied committing the assault. Defendant moved

for a mistrial during closing arguments after the prosecutor’s

response to defendant’s implication that the prosecution had

failed to introduce as evidence Anton’s medical records because

the records would have helped defendant. The prosecutor stated

that defendant himself could have and should have introduced

his own medical records at trial if he believed that the records

supported his defense. The court denied defendant’s motion for a

mistrial. The jury found defendant guilty of assault with intent to

commit murder and receiving and concealing stolen property less

than $20,000. Defendant appealed.

The Court of Appeals held:

1. Defendant was not prejudiced by the prosecution’s failure

to include Evans as a res gestae witness. Defendant himself

EOPLE V

TEANHOUSE

contended that Evans was at the scene of the assault and so was

well aware that Evans could be a res gestae witness. Additionally,

the trial court did not abuse its discretion when it precluded

Evans from testifying because Evans intended to invoke his Fifth

Amendment right against self-incrimination. The trial court

rightly found that Evans had validly asserted his Fifth Amend-

ment privilege. Evans had a reasonable fear of incriminating

himself if questioned because defendant claimed that Evans was

intimately involved with the crimes; in fact, Evans himself

admitted being at the scene when Anton was assaulted. Finally,

the trial court’s preclusion of Evans’s testimony did not deprive

defendant of his right to present a defense. Defendant presented

his defense—that Evans was at the scene and that it was Evans

who stabbed Anton—through defendant’s own testimony, the

testimony of a police detective, and McIntyre’s testimony.

2. The trial court did not abuse its discretion by excluding as

inadmissible hearsay Evans’s statement to the police admitting

he was present during the assault. Contrary to defendant’s

argument, the statement was not admissible as a statement

against penal interest, MRE 804(b)(3), nor did the statement fall

under the catchall exception to the hearsay rule, MRE 804(b)(7).

Although Evans did admit, in his second statement to the police,

that he was present at the scene of the assault, Evans’s admission

included an extensive explanation of the way in which defendant

planned and executed the assault againstAnton. Because Evans’s

statement did not suggest that he was actually involved in

committing the crimes, his admission was not a statement

against penal interest. Evans’s statement also did not qualify for

admission under the catchall hearsay exception because the

statement was not accompanied by circumstances sufﬁcient to

corroborate the statement’s trustworthiness such as spontaneity,

consistency, and timeliness.

3. Defendant failed to demonstrate plain error affecting his

substantial rights in support of his claim that he was prejudiced

by the prosecutor’s use of his girlfriend’s prior inconsistent

statement as substantive evidence against him. McIntyre ﬁrst

told the police that defendant did not indicate who stabbed Anton.

McIntyre later said to the police that when he came home on the

night of the assault, defendant admitted he had stabbed Anton.

She recanted this statement immediately after giving it. Finally,

McIntyre testiﬁed at trial that defendant did not say who stabbed

Anton. In response to McIntyre’s testimony, the prosecution

introduced McIntyre’s prior inconsistent statement—the police

2 313

ICH

1 [Oct

interview in which she stated that defendant told her on the night

of the assault that he had stabbed Anton. Although McIntyre’s

statement could have been used to impeach her, the statement

should not have been used as substantive evidence of defendant’s

culpability. Therefore, the court plainly erred by allowing the

prosecutor to use McIntyre’s statement as substantive evidence.

Defendant was not, however, prejudiced by the court’s error. The

prosecution presented overwhelming evidence that defendant

was the person who assaulted Anton, including McIntyre’s state-

ment to the police, the consistent testimony of Anton’s parents,

and the physical evidence linking defendant to the assault.

4. Defense counsel’s performance arguably fell below an ob-

jective standard of reasonableness. Defense counsel failed to

object to the prosecutor’s improper use of McIntyre’s prior incon-

sistent statement as substantive evidence and failed to request a

limiting instruction regarding the jury’s proper use of the state-

ment. However, in light of the overwhelming evidence against

him, defendant cannot show that there was a reasonable prob-

ability that the result would have been different but for his

counsel’s errors. Further, defendant waived any challenge to the

court’s jury instructions when his counsel afﬁrmatively expressed

satisfaction with the instructions.

5. Defendant was not denied a fair trial by the prosecutor’s

allegedly improper comments and arguments. The prosecutor’s

references to defendant’s testimony as a “story” and a “lie” were

within the limits of proper argument. A prosecutor is entitled to

argue the evidence and all reasonable inferences from the evi-

dence and is not required to couch those arguments in the

blandest terms. While expressing the conclusion that defendant’s

credibility was questionable, the prosecutor did not impermissi-

bly indicate to the jury his opinion of the case. In addition, any

prejudice that may have resulted from the prosecutor’s remarks

was cured by the court’s instruction that the lawyers’ statements

and arguments were not evidence.

6. The trial court properly scored Offense Variables (OVs) 5

and 6. OV 5 assesses points for psychological injury requiring

professional treatment suffered by a victim’s family members as

a result of the offense. In this case, the OV 5 score was adequately

supported by a preponderance of record evidence. Anton’s parents

were in the process of seeking psychological help. They were

present in their home when the offense occurred, and they found

their son with a slit throat, apparently inﬂicted by one of Anton’s

good friends. In addition, OV 6 assesses points for a defendant’s

intent to kill or injure another individual. In this case, a prepon-

2015] P

EOPLE V

TEANHOUSE

derance of the evidence supported the 50-point score. The trial

court assessed 50 points for defendant’s premeditated attack on

Anton. Evidence showed that defendant lay in wait for Anton’s

return to the basement, struck Anton over the head, and slit his

throat. Signiﬁcantly, defendant did nothing to assist Anton after

Anton sustained the injuries.

7. The trial court did not plainly err by considering defen-

dant’s scores for OVs 3, 4, 5, and 6 when imposing defendant’s

sentence for his assault conviction. The trial court departed from

the minimum sentence recommended under the sentencing

guidelines. Consequently, even if the OV scores were not estab-

lished by the jury’s verdict or admitted by defendant, defendant

cannot show plain error.

8. Even though a sentence departure need not be justiﬁed by

substantial and compelling reasons, the sentence must be reason-

able, and to facilitate appellate review, the trial court must state

on the record reasons for the sentence. The Court of Appeals

readopted the principle of proportionality from People v Mil-

bourn, 435 Mich 630 (1990), as the standard for reviewing the

reasonableness of a sentence. A reasonable sentence is propor-

tional to the circumstances surrounding the offense and the

offender. When deciding on a defendant’s sentence, the trial court

may consider factors not contemplated by the OVs as well as

factors that are inadequately addressed by the OVs.

Convictions afﬁrmed, and case remanded for further proceed-

ings.

ENTENCING —

PPELLATE

EVIEW —

EASONABLENESS —

RINCIPLE OF

ROPOR-

TIONALITY

A sentence imposed must be reasonable, and sentences are re-

viewed for reasonableness under the principle of proportionality;

to be reasonable, a sentence must be appropriate to the circum-

stances surrounding the offense and the offender; when fashion-

ing a defendant’s sentence, a trial court may consider factors not

contemplated by the sentencing guidelines, as well as factors that

were inadequately addressed by the sentencing guidelines.

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 David A. McCreedy, Lead

Appellate Attorney, for the people.

4 313 M

ICH

1 [Oct

State Appellate Defender (by Chari K. Grove) for

defendant.

Before: W

ILDER

, P.J., and O

WENS

and M. J. K

ELLY

, JJ.

URIAM

. Defendant appeals as of right his jury

trial convictions of assault with intent to commit

murder, MCL 750.83, and receiving and concealing

stolen property less than $20,000, MCL 750.535(3)(a).

He was sentenced to 30 to 60 years’ imprisonment for

his assault with intent to commit murder conviction

and 1 to 5 years’ imprisonment for his receiving and

concealing stolen property conviction. We afﬁrm defen-

dant’s convictions, but remand for further proceedings

consistent with this opinion.

Defendant and Antonin (Anton) Valoppi were good

friends

and often smoked marijuana in the basement of

the home that Anton shared with his parents, Rory and

Suzanne Valoppi.

In September 2011, the Valoppi

residence

was robbed. Two weeks later, defendant told

Anton that he knew the individuals who had broken

into the Valoppi home and offered to retrieve the stolen

items if Anton paid him. According to defendant, he

discovered that Derrin Evans had committed the rob-

bery, and defendant retrieved the items from Evans.

Defendant partially returned the stolen property to

Anton, who gave him “reward” money in return. De-

fendant testiﬁed that he subsequently gave a portion of

the “reward” money to Evans.

We will refer to Antonin Valoppi by his nickname, “Anton,” and will

refer to Rory and Suzanne Valoppi by their ﬁrst names.

2015] P

EOPLE V

TEANHOUSE

On October 16, 2011, defendant went to the Valoppi

residence to smoke marijuana with Anton. Anton and

Rory did not recall anyone except defendant entering

their home. However, defendant testiﬁed at trial that

he and Evans both went to Anton’s home to smoke

marijuana.

When defendant arrived, Anton and defen-

dant went into the basement. Anton then went up-

stairs to retrieve his box of marijuana and returned to

the basement. The next thing Anton remembered was

waking up with his throat “hanging open” and seeing

defendant standing in front of him, staring at him, and

“wait[ing] for [him] to die.” Defendant made no at-

tempt to help Anton.

Anton ran upstairs to get help and told Rory “[t]hat

his friend tried to kill him.” While Rory and Suzanne

were helping Anton, Rory saw defendant run up the

stairs and out the side door of their home even though

Rory shouted at defendant for help. Suzanne asked

Anton what happened, and Anton replied, “A.J.

stabbed me.”

In response to questions by the 911

operator

, Anton indicated that A.J. Steanhouse com-

mitted the assault and provided defendant’s address.

Anton did not actually see who assaulted him, but he

believed that defendant was the only other person in

the basement when the assault occurred. Additionally,

Anton believed that he was struck in the head with a

wrench before his throat was slit, drawing this infer-

ence because he sustained a skull fracture, and he

later found a wrench with “hair sticking out of [it].”

According to defendant, Evans was the perpetrator

of the assault. When Anton, who was “past over [sic]

the level of being high,” went upstairs, Evans told

defendant that he was going to rob and kill Anton.

Anton testiﬁed that he did not know anyone named Derrin Evans.

“A.J.” is defendant, Alexander Jeremy Steanhouse.

6 313 M

ICH

1 [Oct

After Anton returned to the basement, Evans attacked

him, cut his throat, grabbed some marijuana and pills,

and left the residence. Defendant then rolled Anton

over, at which time the knife came out of his neck, and

called Anton’s name, waking Anton up. Defendant

testiﬁed that Anton accused defendant of stabbing him,

and defendant excitedly repeated that he was not the

one who assaulted Anton. Defendant then ran upstairs

and left the residence because he was “under the

inﬂuence and high,” and he was shocked and hurt that

Anton would believe that defendant “would do some-

thing like this to him.”

After leaving Anton’s home, defendant went to his

own house and changed his clothes because there was

blood on them. He woke up his girlfriend, Katherine

McIntyre, and told her that he had been at Anton’s

home and that Anton had been stabbed, but he did not

specify the perpetrator of the assault. Defendant then

left the house and stayed the night at a friend’s

residence. Defendant later told McIntyre that Chips

had stabbed Anton.

The

day after the incident, defendant turned himself

in and was arrested. He maintained his innocence and

implicated Chips as the perpetrator of the assault.

When the police searched defendant’s vehicle, they

discovered some of the items that were reported as

stolen from the Valoppi residence. Police ofﬁcers also

recovered defendant’s clothing from his home. Forensic

testing of the blood on defendant’s clothing and the

possible blood stain on the knife blade recovered from

the scene matched Anton’s DNA. Additionally, forensic

testing of the knife handle revealed two DNA types,

but only that of the major donor, Anton, could be

“Chips” is Evans’s nickname.

2015] P

EOPLE V

TEANHOUSE

identiﬁed; the testing could not conﬁrm whether the

minor donor’s DNA was defendant’s or Evans’s.

After the incident, Evans provided two statements

during separate interviews with a police detective. In

his ﬁrst statement, provided after the detective indi-

cated that defendant had implicated Evans as the

perpetrator of the assault, Evans stated that he was

not present at the scene of the assault. Evans provided

his second statement four months later while he was in

custody for a separate offense. After the detective

informed him again that defendant had implicated him

in Anton’s assault, and the detective stated that he

knew that Evans was present when the crime was

committed, Evans admitted that he was present in the

basement of Anton’s home at the time of the assault.

However, Evans claimed that defendant slit Anton’s

throat, after which Evans ran up the stairs and left the

residence.

At a pretrial hearing, the prosecutor informed the

trial court of the possibility that Evans could incrimi-

nate himself in light of his contradictory police state-

ments and defendant’s theory that Evans committed

the assault. The prosecutor asked the trial court to

appoint counsel for Evans and to conduct a hearing

before trial regarding whether Evans would exercise

his privilege against self-incrimination. The trial court

granted the prosecutor’s request.

On the ﬁrst day of the trial, before jury selection and

outside the presence of the prospective jurors, Evans’s

appointed counsel informed the trial court that he had

discussed the Fifth Amendment right against self-

incrimination with Evans. Evans’s attorney believed

that Evans could incriminate himself if he testiﬁed,

8 313 M

ICH

1 [Oct

given the inconsistencies between his two statements

and his potential testimony that he was present at the

scene of the crime. Evans’s attorney stated that he had

advised Evans to not testify, and that Evans had

decided to invoke his Fifth Amendment privilege. Be-

cause Evans would invoke his Fifth Amendment privi-

lege, the trial court ruled that Evans was an unavail-

able witness and did not compel him to testify.

Subsequently, defendant moved to admit the state-

ments that Evans made to the police pursuant to MRE

804(b)(3) (statement against penal interest) and MRE

804(b)(7) (catchall hearsay exception). The trial court

ruled that Evans’s statements were not admissible

under either hearsay exception, ﬁnding that neither of

Evans’s statements was against his penal interest and

that the statements lacked sufﬁcient indicia of trust-

worthiness.

During trial—after McIntyre testiﬁed that when

defendant came home on the night of the incident,

defendant stated that he was at Anton’s home and that

Anton was stabbed without specifying who stabbed

him—the prosecutor introduced a brief excerpt of

McIntyre’s police interview. During the interview,

McIntyre initially told the detective that defendant did

not admit that he stabbed Anton on the night of the

assault, but she later told the detective that defendant

admitted that he had stabbed Anton. After she left the

police station, McIntyre immediately called the detec-

tive and stated that she lied when she said that

defendant admitted that he stabbed Anton. At trial,

McIntyre testiﬁed that she lied to the police and

asserted that defendant never told her that he stabbed

Anton. She explained that she made the statement

during the interview because she was tired and felt

threatened, pressured, not safe, and uncomfortable

when the detective mentioned her children and indi-

2015] P

EOPLE V

TEANHOUSE

cated that she could get into trouble even though she

was not present during the offense.

During his closing argument, the prosecutor argued,

without objection, that defendant’s admission to McIn-

tyre that he stabbed Anton was substantive evidence of

defendant’s guilt. The trial court, also without objec-

tion, instructed the jurors that they could consider

prior inconsistent statements both for impeachment

purposes and as substantive evidence. Afterward, de-

fense counsel expressly approved the instructions pro-

vided by the trial court.

Also during his closing argument, the prosecutor

argued that defendant was the only person to go inside

the home and the only person in the basement except

for Anton. The prosecutor referred to defendant’s ac-

count of the criminal episode as a “lie” and a “story”:

What we have here is the defendant basically, following

the

old axiom about if you’re going to lie, tell a big lie.

Tell one that’s so shocking and enormous that people

don’t just immediately dismiss [it] as a lie, because it’s so

big but they have to just stand back and look at him; wait

a minute, is he really telling me what I think he’s telling

me.

And what you heard from the defendant about his

explanation for what happened, is precisely that. It’s the

big lie.

And we know that from a lot of different perspectives

and for a lot of different reasons.

One of them is the fact that he got caught up in the

details of what he was saying, and it turned out there were

some pretty major inconsistencies in what he was saying.

Because when you tell the big lie, you can’t always keep

your little details straight.

* * *

10 313

ICH

1 [Oct

He has not kept his details straight in the big lie he’s

told you. And beyond just the details that he’s gotten

wrong[,] it just doesn’t make any sense.

During his rebuttal argument, the prosecutor stated:

[W]hat they’re left with is the defendant’s big lie; that [sic]

so obviously a big lie that you can’t believe it.

* * *

Now, I think you have to ask yourself how is it, and why

is it, and when is it that the defendant came up with this

story about Chips having done this. . . .

[5]

* * *

[H]e’s faced with a situation where he’s got to tell you

the big lie and he’s got to have you believe that big lie.

Defense counsel asserted during his closing argu-

ment

that the prosecutor failed to present Anton’s

medical records, and therefore, prevented the jury

from being able to perform a “fair and meaningful”

evaluation of the extent of Anton’s injuries. During his

rebuttal, the prosecutor stated the following:

Now, you may have noticed I was taking a few notes

while

[defense counsel] was talking. So I’m going to

address a few of the issues that he did.

And ﬁrst on that list of issues is, I think what he

mentioned, one of the ﬁrst things, and he kept going back

to it, was there’s not enough blood here[,] he says. There’s

no[] medical records to show you what actually happened

to Anton Valoppi.

Well it’s true; I mean one thing you have to keep in

mind throughout this entire process is that, as I’ve just

said, I have the burden of proof.

Defense counsel objected to the prosecutor’s use of the word “story”

at this point.

2015] P

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The defense has no burden of proof whatsoever. They

don’t have to call any witnesses.

They didn’t have to call his own client to the witness

stand, didn’t have to call any witnesses whatsoever.

As the Judge told you from the beginning of the trial[,]

they could have just sat here and played tic-tac-toe.

And then just got up an argument [sic] in the end,

doesn’t even have to argue again.

But if they got up and argued again and just said

prosecutor didn’t prove his case and sat down, you would

have to consider all the same instructions whether we’ve

proven the case beyond a reasonable doubt; the defense

doesn’t have to do anything.

So I mean when you think about that argument about

the medical records though, it’s true we’ve had the medical

records for three months but so has [defense counsel].

* * *

[Defense counsel] doesn’t have to show you the medical

records he received[;] he has no burden of proof.

But when he argues to you that I should have shown

them to you, at least you ought to think well, if there’s

something important in there[, defense counsel,] you could

have brought it out.

He didn’t[] because all he wants to argue to you is that

somehow we’re being unfair to him. We didn’t bring any

medical records in here[;] he’s had them for three (3)

months.

At sentencing, defendant objected to the scoring of

Offense

Variable (OV) 5 and OV 6. The trial court

assessed 15 points for OV 5, ﬁnding that the evidence

and testimony were sufﬁcient to establish psychologi-

cal injury, especially in light of the trial court’s oppor-

tunity to observe the witnesses as they testiﬁed. The

12 313 M

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1 [Oct

trial court concluded that there was “no question that

psychological injury would be an issue” when a father

discovered his son with a slit throat, allegedly inﬂicted

by his son’s friend.

The trial court assessed 50 points for OV 6 on the

basis of its ﬁnding that the jury’s verdict and the

evidence presented at trial demonstrated that defen-

dant had “a clear, premeditated intent to kill in addi-

tion to an intent to rob.” Apart from indicating that it

believed that defendant intended to torture Anton

when he committed the assault, the trial court did not

specify the portions of testimony or evidence from

which it discerned a premeditated intent to kill. Later,

the trial court reiterated that it would score 50 points

for OV 6 in light of defendant’s statement that he knew

the individuals who stole the property from the resi-

dence, defendant’s offer to return the property, the fact

that defendant actually returned some of the property,

and the fact that some of the stolen property was found

in defendant’s car after the incident.

The trial court departed from the minimum range

recommended by the sentencing guidelines—171 to

285 months’ imprisonment—by 75 months, imposing a

sentence of 30 to 60 years’ imprisonment for the

assault with intent to commit murder conviction. The

trial court provided the following reasons for its depar-

ture:

[T]he ﬁrst two factors that the prosecutor mentions the

horrendous,

brutal assault on this young man when [it]

basically appeared [from] the facts that you thought he

was somehow rendered weak or incapacitated by his drug

use at that time.

And the action taken by you towards a person who

considers you a friend does substantiate the thought that

you are a person without a conscience, a person who’s

2015] P

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violent and depraved and that this is an assault that is

quite shocking even to people who have been in the courts

for 20 and more years.

The Court is going to sentence you accordingly to 30 to

60 years on the charge of assault with intent to commit

murder and one to ﬁve concurrently on the charge of

receiving [and] concealing stolen property between the

amounts of [$]1,000 but less than $20,000.

First, defendant raises three related claims concern-

ing

the prosecution’s responsibility to present Evans as

a res gestae witness and the trial court’s exclusion of

Evans’s testimony. He contends that the prosecution

violated its duty to present the res gestae of the case by

failing to acknowledge that Evans was a res gestae

witness and by objecting to defendant’s efforts to call

Evans as a witness. According to defendant, this de-

prived him of his right to present a defense. We

disagree.

Because a defendant must move in the trial court for

a posttrial evidentiary hearing or a new trial to pre-

serve a claim that the prosecution failed to produce a

res gestae witness, this issue is not preserved for

appeal. People v Dixon, 217 Mich App 400, 409; 552

NW2d 663 (1996). Unpreserved issues are reviewed for

plain error affecting substantial rights. People v Car-

ines, 460 Mich 750, 763; 597 NW2d 130 (1999). To

demonstrate such an error, the defendant must show

that (1) an error occurred, (2) the error was clear or

obvious, and (3) “the plain error affected [the defen-

dant’s] substantial rights,” which “generally requires a

showing of prejudice, i.e., that the error affected the

outcome of the lower court proceedings.” Id. at 763.

Reversal is warranted only if the error resulted in

conviction despite defendant’s actual innocence or if

14 313 M

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1 [Oct

the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings. Id.

Because Evans’s second statement to the police

indicated that he was present when the assault oc-

curred, Evans is arguably a res gestae witness, i.e.,

“one who is present at the scene of the alleged crime, at

the time of the alleged crime, or one who had occasion

to observe the surrounding events and circumstances.”

People v Dyer, 425 Mich 572, 577 n 4; 390 NW2d 645

(1986). Contrary to defendant’s argument on appeal,

following the enactment of MCL 767.40a, the prosecu-

tion no longer has an afﬁrmative duty to present the

“entire res gestae,” or call at trial all of the witnesses

who were present when a crime occurred. People v

Koonce, 466 Mich 515, 518-519; 648 NW2d 153 (2002).

Under MCL 767.40a, the prosecutor has a duty to

disclose “all known res gestae witnesses, to update the

list as additional witnesses bec[o]me known, and to

provide to the defendant a list of witnesses the pros-

ecution intend[s] to call at trial.” Koonce, 466 Mich at

520-521, citing MCL 767.40a(1) to (3). The prosecutor

is also “compelled to render reasonable assistance in

locating and serving process upon witnesses upon

request of the defendant.” Koonce, 466 Mich at 521,

citing MCL 767.40a(5).

Although the prosecutor did not include Evans as a

known res gestae witness on his witness list, the record

shows that the prosecutor’s omission did not prejudice

defendant, Carines, 460 Mich at 763, or violate his

right to present a defense, People v Unger, 278 Mich

App 210, 249-250; 749 NW2d 272 (2008). Because

defendant implicated Evans in the assault, it is appar-

ent that defendant was aware that Evans could be a

res gestae witness. Even though he did not intend to

present Evans as a witness, the prosecutor subpoenaed

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Evans and produced him for trial in the event that the

trial court ruled that Evans constituted a res gestae

witness and defendant desired to call him, thereby

satisfying the prosecution’s obligations under MCL

767.40a. As already discussed, the prosecutor properly

notiﬁed the trial court before trial of the possible need

for Evans to be informed of his Fifth Amendment right

against self-incrimination. Dyer, 425 Mich at 578 n 5.

Because Evans invoked his Fifth Amendment privilege

against self-incrimination and refused to testify, nei-

ther the prosecution nor the defense could call Evans

as a witness. People v Paasche, 207 Mich App 698, 709;

525 NW2d 914 (1994). Thus, there is no indication that

the prosecution committed a plain error affecting de-

fendant’s substantial rights by failing to include Evans

on the witness list as a res gestae witness, notifying

the trial court of the need to inform Evans of his Fifth

Amendment right against self-incrimination, and fail-

ing to call Evans as a witness.

Defendant next asserts that the trial court failed to

adequately inquire into whether Evans validly as-

serted his Fifth Amendment privilege against self-

incrimination and that the trial court erroneously

concluded that Evans had a valid Fifth Amendment

privilege. As such, defendant argues that the trial

court deprived defendant of his right to present a

defense when it precluded Evans from testifying. We

disagree.

“The decision to admit evidence is within a trial

court’s discretion, which is reviewed for an abuse of

that discretion.” People v Bynum, 496 Mich 610, 623;

852 NW2d 570 (2014). “Preliminary questions of law,

such as whether a rule of evidence or statute precludes

the admission of particular evidence, are reviewed de

novo, and it is an abuse of discretion to admit evidence

16 313 M

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1 [Oct

that is inadmissible as a matter of law.” Id. A trial court

“abuse[s] its discretion only when its decision falls

outside the principled range of outcomes.” People v

Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008).

Additionally, “[w]hether a defendant’s right to present

a defense was violated by the exclusion of evidence is a

constitutional question that this Court reviews de

novo.” People v Mesik (On Reconsideration), 285 Mich

App 535, 537-538; 775 NW2d 857 (2009).

The Fifth Amendment to the United States Consti-

tution and Article 1, § 17 of the 1963 Michigan Consti-

tution provide that “[n]o person shall be compelled in

any criminal case to be a witness against himself.”

People v Wyngaard, 462 Mich 659, 671; 614 NW2d 143

(2000) (quotation marks and citations omitted); People

v Schollaert, 194 Mich App 158, 164; 486 NW2d 312

(1992). “This prohibition ‘not only permits a person to

refuse to testify against himself at a criminal trial in

which he is a defendant, but also “privileges him not to

answer ofﬁcial questions put to him in any other

proceeding, civil or criminal, formal or informal, where

the answers might incriminate him in future criminal

proceedings.” ’ ” Wyngaard, 462 Mich at 671-672;

quoting Minnesota v Murphy, 465 US 420, 426; 104 S

Ct 1136; 79 L Ed 2d 409 (1984). Thus, a witness, as well

as the accused, has a right to exercise his or her

privilege against self-incrimination. Dyer, 425 Mich at

578. An attorney is not permitted to knowingly call a

witness when he or she is aware that the witness “will

claim a valid privilege not to testify,” because “critical

weight is added to the prosecution’s case” and an

“adverse inference . . . may be drawn against the de-

fendant by the jury from the claim of testimonial

privilege.” Paasche, 207 Mich App at 709 (quotation

marks and citation omitted).

2015] P

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Michigan courts have recognized a procedure for

“protect[ing] the defendant’s rights when the trial

court is confronted with a potential witness who plans

to assert a testimonial privilege.” Id. “The proper

procedure is for the prosecutor to inform the court, out

of the presence of the witness [and the jury], of the

possible need for the witness to be informed of Fifth

Amendment rights.” Dyer, 425 Mich at 578 n 5. The

“trial court must determine whether the witness un-

derstands the privilege and must provide an adequate

explanation if the witness does not.” Paasche, 207 Mich

App at 709. “The court must then hold an evidentiary

hearing outside the jury’s presence to determine the

validity of the witness’[s] claim of privilege.” Id. at 709.

“If the court determines the assertion of the privilege

to be valid, the inquiry ends and the witness is ex-

cused.” Id. However, “[i]f the assertion of the privilege

is not legitimate in the opinion of the trial judge, the

court must then consider methods to induce the wit-

ness to testify, such as contempt and other proceed-

ings.” Id. If the witness still refuses to testify, “the

court must proceed to trial without the witness, be-

cause there is no other way to prevent prejudice to the

defendant.” Id. at 709-710.

The record reveals that the trial court complied with

the applicable procedure and properly ordered that

Evans could not be called as a witness. The prosecutor

informed the trial court at a pretrial hearing of the

possibility that Evans may assert his privilege against

self-incrimination if he testiﬁed at trial. The trial court

appointed counsel for Evans and later held a hearing

outside the presence of the jury to determine whether

Evans intended to invoke his Fifth Amendment privi-

lege. As defendant asserts, the trial court did not

question Evans or make an explicit determination on

the record concerning the validity of Evans’s assertion

18 313 M

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1 [Oct

of the privilege against self-incrimination. Instead, the

trial court conducted an inquiry with Evans’s ap-

pointed counsel, who indicated that he had counseled

Evans regarding his Fifth Amendment privilege and

that Evans had decided not to testify. Evans’s counsel

explained that he had advised Evans not to testify

based on the “potentially dangerous” nature of Evans’s

prospective testimony—Evans’s inconsistent state-

ments to the police and possible testimony that he was

present when the assault occurred. As such, the record

shows that the trial court was notiﬁed that Evans’s

attorney had counseled Evans regarding his Fifth

Amendment privilege and that the trial court was

aware of the underlying factual basis that supported

Evans’s assertion of his Fifth Amendment privilege.

Additionally, the trial court was aware that defendant

had implicated Evans as the perpetrator of the assault,

and therefore, any further questioning of Evans re-

garding the validity of the assertion of his privilege

may have incriminated Evans. See People v Lawton,

196 Mich App 341, 346-347; 492 NW2d 810 (1992);

Dyer, 425 Mich at 579. We also ﬁnd signiﬁcant that,

before trial, the trial court provided defense counsel

with an opportunity to further question Evans’s ap-

pointed counsel regarding Evans’s intent to assert his

Fifth Amendment right against self-incrimination, but

defense counsel did not avail himself of that opportu-

nity; defendant cannot now complain of the trial court’s

procedure. See Lawton, 196 Mich App at 346.

Moreover, we ﬁnd that Evans validly asserted his

Fifth Amendment privilege, and the trial court prop-

erly excused Evans as a witness. Paasche, 207 Mich

App at 709. To properly assert such a privilege, a

witness must have a “reasonable basis . . . to fear

incrimination from questions . . . .” Dyer, 425 Mich at

578. Thus, “a trial court may compel a witness to

2015] P

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answer a question only where the court can foresee, as

a matter of law, that such testimony could not incrimi-

nate the witness.” Id. at 579. Defendant’s statements

to the police, his theory of the case, and his testimony

at trial indicated that Evans may have been intimately

associated with the criminal transaction or involved in

the commission of the crimes, thereby demonstrating a

reasonable basis for Evans to fear incrimination from

questions regarding his participation. Id. at 578. Addi-

tionally, the prosecutor indicated that he was unable to

predict whether charges would be brought against

Evans after he testiﬁed, which left open the possibility

of future prosecution. On this record, we ﬁnd that

Evans had a reasonable basis to fear incrimination

from answering questions about the criminal episode,

and it is not evident that the trial court could have

found, as a matter of law, that Evans’s testimony could

not incriminate him. Id. at 578-579. Accordingly, the

trial court did not abuse its discretion when it excluded

Evans as a witness. Bynum, 496 Mich at 623.

Finally, the trial court’s preclusion of Evans’s testi-

mony did not violate defendant’s right to present a

defense. A defendant has a constitutionally guaranteed

right to present a defense, which includes the right to

call witnesses. Unger, 278 Mich App at 249-250. “How-

ever, an accused’s right to present evidence in his

defense is not absolute.” Id. at 250, citing United States

v Scheffer, 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d

413 (1998); Crane v Kentucky, 476 US 683, 690; 106 S Ct

2142; 90 L Ed 2d 636 (1986). “The accused must still

comply with ‘established rules of procedure and evi-

dence designed to assure both fairness and reliability in

the ascertainment of guilt and innocence.’ ” People v

Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984),

quoting Chambers v Mississippi, 410 US 284, 302; 93 S

Ct 1038; 35 L Ed 2d 297 (1973). Likewise, as recognized

20 313 M

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1 [Oct

by the United States Court of Appeals for the Sixth

Circuit, “[a] defendant’s right to force a witness to

testify must yield to that witness’[s] assertion of his

Fifth Amendment privilege against self[-]incrimination,

where it is ‘grounded on a reasonable fear of danger of

prosecution.’ ” United States v Gaitan-Acevedo, 148 F3d

577, 588 (CA 6, 1998) (citation omitted). Thus, when a

witness legitimately exercises his or her Fifth Amend-

ment right against self-incrimination and refuses to

testify, neither the prosecution nor the defense can call

him or her as a witness. Dyer, 425 Mich at 576; Paasche,

207 Mich App at 709. Through his own testimony and

testimony elicited from a detective

and from McIntyre,

efendant was able to present his defense theory that

Evans was at the scene of the crime and committed the

assault. Thus, the trial court did not deprive defendant

of his right to present a defense. Unger, 278 Mich App at

249-250.

III

Second, defendant argues that the trial court abused

ts discretion by excluding as inadmissible hearsay

Evans’s statement

to the police that he was present

during the assault. According to defendant, Evans’s

statement was admissible under the statement against

penal interest exception to the hearsay rule, MRE

804(b)(3), or under the “catchall” exception to the hear-

say rule, MRE 804(b)(7). We disagree.

A detective testiﬁed that defendant claimed that Evans was present

at the scene, which explains why the detective obtained a DNA sample

from Evans and submitted it for forensic testing in an attempt to

eliminate “a secondary DNA sample that was on the knife handle.”

Defendant appears to assert only that the trial court erred by failing

to admit Evans’s statement that he was present at the crime scene, not

the ﬁrst statement that Evans made to the police, in which he denied

that he was present during the offense.

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This Court “use[s] a clearly erroneous standard in

reviewing the trial court’s ﬁndings of fact and an abuse

of discretion standard in reviewing the trial court’s

decision to exclude . . . evidence.” People v Barrera, 451

Mich 261, 269; 547 NW2d 280 (1996). However,

whether a statement was against a declarant’s penal

interest is a question of law that this Court reviews de

novo. Id. at 268.

“ ‘Hearsay’ is a statement, other than the one made

by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter

asserted.” MRE 801(c). Hearsay statements are not

admissible unless they fall under a recognized excep-

tion to the hearsay rule. MRE 802. MRE 804(b)(3)

provides an exception for a statement against interest,

which is deﬁned as

[a] statement which was at the time of its making so far

contrary

to the declarant’s pecuniary or proprietary inter-

est, or so far tended to subject the declarant to civil or

criminal liability, or to render invalid a claim by the

declarant against another, that a reasonable person in the

declarant’s position would not have made the statement

unless believing it to be true. [MRE 804(b)(3).]

Under that rule, “if a declarant is unavailable,

[8]

deﬁned

in MRE 804(a), [the declarant’s] out-of-court

statement against interest may avoid the hearsay rule

if certain thresholds are met[.]” Barrera, 451 Mich at

267. “A statement tending to expose the declarant to

criminal liability and offered to exculpate the accused

is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement.”

There is no dispute that Evans was unavailable under MRE 804(a)

due to the assertion of his Fifth Amendment privilege against self-

incrimination. People v Meredith, 459 Mich 62, 66; 586 NW2d 538

(1998).

22 313 M

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1 [Oct

MRE 804(b)(3). Whether to admit or exclude a state-

ment against a witness’s penal interest offered under

MRE 804(b)(3) is determined by considering “(1)

whether the declarant was unavailable, (2) whether

the statement was against penal interest, (3) whether

a reasonable person in the declarant’s position would

have believed the statement to be true, and (4) whether

corroborating circumstances clearly indicated the

trustworthiness of the statement.” Barrera, 451 Mich

at 268. A statement against a declarant’s penal inter-

est is “not limited to direct confessions,” “need not by

itself prove the declarant guilty,” and “need not have

been incriminating on its face, as long as it was

self-incriminating when viewed in context.” Id. at

270-271.

In exercising its discretion, the trial court must conscien-

tiously

consider the relationship between MRE 804(b)(3)

and a defendant’s constitutional due process right to

present exculpatory evidence. Likewise, appellate review

necessarily requires a review of the importance of the

statement to the defendant’s theory of defense in deter-

mining whether the trial court abused its discretion by

excluding the evidence. [Id. at 269 (citation omitted).]

The trial court properly concluded that Evans’s

second

police statement was not a statement against

his penal interest. Evans admitted that he was present

during the assault after the detective told Evans that

defendant had blamed Evans for planning and commit-

ting the assault, and the detective claimed that he

knew for a fact that Evans was present at the scene of

the crime. The context of Evans’s admission included

an extensive explanation of the way in which defen-

dant planned and executed the assault against Anton,

which does not demonstrate that the statement “so far

tended to subject the declarant to civil or criminal

liability . . . that a reasonable person in the declarant’s

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position would not have made the statement unless

believing it to be true.” MRE 804(b)(3). Instead, it

appears that Evans made the statement in order to

emphasize that he was merely present during the

offense and had no role in its commission. See People v

Wilson, 196 Mich App 604, 614; 493 NW2d 471 (1992)

(stating that mere presence is insufﬁcient to prove that

someone aided and abetted the commission of a crime).

Likewise, “the mere fact that the declarant invoked his

Fifth Amendment right not to testify does not make the

statement against penal interest.” Barrera, 451 Mich

at 270.

However, even if we construe Evans’s statement as

being against his penal interest because of his earlier

inconsistent statement to the police, we conclude, for

the reasons discussed below, that there were no cor-

roborating circumstances clearly indicating the trust-

worthiness of the statement. MRE 804(b)(7). See Bar-

rera, 451 Mich at 274-275 (adopting a totality-of-the-

circumstances test). In this case, Evans’s statement

was not crucial to defendant’s theory of defense be-

cause it clearly implicated defendant in the assault. As

such, “other factors [were appropriately] interjected to

weigh against admission of the statement.” Id. at

279-280.

Moreover, because Evans was in custody when he

made the statement to the authorities, there are three

additional factors that must be considered: (1) the

relationship between the confessing party and the

exculpated party and whether the confessor was likely

fabricating the story for the beneﬁt of his or her friend,

(2) whether the statement was voluntarily made after

Miranda

warnings were provided, and (3) whether the

statement

was made in order to curry favor with

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

24 313 M

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1 [Oct

authorities. Id. at 275. Here, because the statement

incriminated rather than exculpated defendant, Evans

did not likely make the statement to beneﬁt defendant.

In addition, there was no evidence that the statement

was involuntarily made or made to curry favor with

authorities. Nevertheless, the totality of the circum-

stances weighs against admission. Accordingly, the

trial court did not abuse its discretion when it pre-

cluded the admission of Evans’s statement under MRE

804(b)(3).

Likewise, the trial court did not abuse its discretion

when it concluded that Evans’s statement to the police

was not admissible under the catchall exception to the

hearsay rule when the declarant is unavailable, MRE

804(b)(7).

MRE 804(b)(7) provides for admission of a

statement

that is not speciﬁcally covered by any of the

other hearsay exceptions in MRE 804(b),

but [has] equivalent circumstantial guarantees of trust-

worthiness,

if the court determines that (A) the statement

is offered as evidence of a material fact, (B) the statement

is more probative on the point for which it is offered than

any other evidence that the proponent can procure

through reasonable efforts, and (C) the general purposes

of these rules and the interests of justice will best be

served by admission of the statement into evidence. [MRE

804(b)(7).]

In interpreting MRE 803(24), which is nearly iden-

tical

to MRE 804(b)(7), the Michigan Supreme Court

stated, “The ﬁrst and most important requirement is

that the proffered statement have circumstantial guar-

antees of trustworthiness equivalent to those of the

In his brief on appeal, defendant cites MRE 803(24), which is the

catchall hearsay exception applicable when the availability of the

declarant is immaterial. However, defendant moved in the trial court for

the admission of Evans’s statement under MRE 804(b)(7).

2015] P

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categorical hearsay exceptions.” People v Katt, 468

Mich 272, 290; 662 NW2d 12 (2003). A trial court

“should consider the ‘totality of the circumstances’

surrounding each statement to determine whether

equivalent guarantees of trustworthiness exist.” Id. at

291. Although “[t]here is no complete list of factors that

establish whether a statement has equivalent guaran-

tees of trustworthiness,” id., some relevant factors

include:

(1) the spontaneity of the statements, (2) the consistency

the statements, (3) lack of motive to fabricate or lack of

bias, (4) the reason the declarant cannot testify, (5) the

voluntariness of the statements, i.e., whether they were

made in response to leading questions or made under

undue inﬂuence, (6) personal knowledge of the declarant

about the matter on which he [or she] spoke, (7) to whom

the statements were made . . . , and (8) the time frame

within which the statements were made. [People v Geno,

261 Mich App 624, 634; 683 NW2d 687 (2004) (quotation

marks and citations omitted).]

The totality of the circumstances does not demon-

strate

that Evans’s statement is trustworthy. It is

evident that Evans had personal knowledge of whether

he was present when the assault occurred, and there is

no indication that Evans’s statement was involuntary,

especially given that the detective informed Evans of

his Miranda rights before Evans made the statement.

However, his admission was not spontaneous; it was

made after the detective reiterated that defendant had

implicated Evans in the assault, and the detective

stated that he knew that Evans was present during the

assault. Additionally, Evans’s statements were not

consistent. During his ﬁrst statement to the police,

Evans expressly denied being present when the as-

sault occurred, even though he was aware that defen-

dant had implicated him as the perpetrator. Evans’s

26 313 M

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1 [Oct

admission that he was present was made approxi-

mately four months after the assault, while he was in

custody for a separate offense. Accordingly, the trial

court did not abuse its discretion when it precluded the

admission of Evans’s statement under MRE 804(b)(7).

Third, defendant raises three claims related to the

prosecution’s

use of McIntyre’s prior inconsistent

statement (that on the night of the assault, defendant

told McIntyre that he had stabbed Anton) as substan-

tive evidence of defendant’s guilt. Defendant argues

that the prosecutor’s use of McIntyre’s prior inconsis-

tent statement as substantive evidence of defendant’s

guilt, and the trial court’s failure to provide a proper

cautionary instruction, violated his right to a fair trial.

Additionally, defendant asserts that defense counsel’s

failure to object to the trial court’s improper jury

instruction constituted ineffective assistance of coun-

sel. We reject defendant’s claims.

Because defendant did not object to the prosecutor’s

use of McIntyre’s statement, did not request a limiting

instruction, and did not object to the jury instructions

provided by the trial court, this issue is not preserved

for appeal. People v Grant, 445 Mich 535, 545-546, 553;

520 NW2d 123 (1994); People v Sabin (On Second

Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000).

Accordingly, defendant must demonstrate plain error

affecting his substantial rights. Carines, 460 Mich at

761-764.

To the extent that defendant challenges the

We reject the prosecution’s argument that defendant waived this

issue by introducing McIntyre’s police statement in its entirety. In light

of the prosecutor’s initial introduction of McIntyre’s prior inconsistent

statement, we ﬁnd that defendant permissibly “explore[d] the extent of

the inconsistencies by showing how those same statements were consis-

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jury instructions provided by the trial court, he afﬁr-

matively waived any claim of error when defense

counsel expressed satisfaction with the instructions

provided by the trial court. People v Gaines, 306 Mich

App 289, 310-311; 856 NW2d 222 (2014).

Defendant’s ineffective assistance claim is not pre-

served for appeal because defendant did not move in

the trial court for a new trial or a Ginther

hearing.

People v Payne, 285 Mich App 181, 188; 774 NW2d 714

(2009). This Court’s review of the issue is therefore

limited to errors apparent from the trial court record.

People v Petri, 279 Mich App 407, 410; 760 NW2d 882

(2008). “A claim of ineffective assistance of counsel is a

mixed question of law and fact. A trial court’s ﬁndings

of fact, if any, are reviewed for clear error, and this

Court reviews the ultimate constitutional issue arising

from an ineffective assistance of counsel claim de

novo.” Id. (citation omitted). In order to prove that

defense counsel was ineffective, a defendant must

demonstrate that (1) “ ‘counsel’s representation fell

below an objective standard of reasonableness,’ ” and

(2) the defendant was prejudiced, i.e., “that ‘there is a

reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have

been different.’ ” People v Vaughn, 491 Mich 642, 669;

821 NW2d 288 (2012), quoting Strickland v Washing-

ton, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d

674 (1984). “A defendant must also show that the

result that did occur was fundamentally unfair or

unreliable.” People v Lockett, 295 Mich App 165, 187;

814 NW2d 295 (2012).

tent with [McIntyre’s] trial testimony” and did not invite the purported

error. People v Sayles, 200 Mich App 594, 595; 504 NW2d 738 (1993); see

also MRE 801(d)(1)(B).

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

28 313 M

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Extrinsic evidence of a prior inconsistent statement

can be used “to impeach a witness even though the

statement tends directly to inculpate the defendant.”

People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669

(1997). “The purpose of extrinsic impeachment evi-

dence is to prove that a witness made a prior inconsis-

tent statement—not to prove the contents of the state-

ment.” People v Jenkins, 450 Mich 249, 256; 537 NW2d

828 (1995). “[A] prosecutor may not use an elicited

denial as a springboard for introducing substantive

evidence under the guise of rebutting the denial.”

People v Stanaway, 446 Mich 643, 693; 521 NW2d 557

(1994). “[P]rior unsworn statements of a witness are

mere hearsay and are generally inadmissible as sub-

stantive evidence.” People v Lundy, 467 Mich 254, 257;

650 NW2d 332 (2002). Thus, McIntyre’s prior inconsis-

tent statement during which she incriminated defen-

dant could not be admitted to prove the truth of the

matter asserted unless it fell within a recognized

hearsay exception. MRE 802; People v Musser, 494

Mich 337, 350; 835 NW2d 319 (2013); see also Jenkins,

450 Mich at 261-262.

The record shows that the prosecutor impermissibly

used McIntyre’s statement as substantive evidence by

arguing that the ﬁnal piece of evidence was McIntyre’s

statement to the police that on the night of the assault,

defendant told her that he had stabbed Anton. The

prosecution does not argue that McIntyre’s statement

was admissible under a hearsay exception, nor do we

believe that an exception applies. Compounding this

error, the trial court instructed the jury at the end of

the trial, in accordance with M Crim JI 4.5(2), that the

jury could consider prior inconsistent statements as

substantive evidence. Because McIntyre’s police state-

ment implicating defendant in the assault was admis-

sible only to impeach her trial testimony, the prosecu-

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tion’s use of the statement as substantive evidence of

defendant’s guilt, and the trial court’s instruction,

constituted plain error. See Stanaway, 446 Mich at

692-693; see also Carines, 460 Mich at 763-764, 774.

Likewise, because a jury is presumed to follow a trial

court’s instructions, People v Meissner, 294 Mich App

438, 457; 812 NW2d 37 (2011), it is probable that the

jury impermissibly considered McIntyre’s statement as

substantive evidence that defendant committed the

assault.

However, in light of the extensive evidence admitted

at trial linking defendant to the assault, we ﬁnd that

these errors did not prejudice defendant. Carines, 460

Mich at 763-764, 772. McIntyre’s trial testimony, and

the admission of McIntyre’s police interviews in their

entirety, conﬁrmed that she also told the detective that

(1) defendant told her that Anton was stabbed but did

not indicate who stabbed him and (2) defendant told

her that he did not commit the act, both of which were

consistent with her written police statement and with

her trial testimony. Additionally McIntyre testiﬁed

that she lied to the detective when she told him that

defendant had admitted that he stabbed Anton and

that immediately after leaving the police station, she

recanted her statement implicating defendant. Fur-

ther, apart from McIntyre’s incriminating police state-

ment, the consistent testimony of Anton, Rory, and

Suzanne, as well as the physical evidence linking

defendant to the crime, provided overwhelming evi-

dence that defendant committed the assault. There-

fore, use of McIntyre’s statement as substantive evi-

dence did not constitute plain error that affected

defendant’s substantial rights. Id. at 763-764, 774.

For the same reasons, we conclude that defense

counsel’s performance did not constitute ineffective

30 313 M

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1 [Oct

assistance. Defense counsel’s performance arguably

fell below an objective standard of reasonableness

when he failed to (1) object to the prosecution’s im-

proper use of McIntyre’s prior inconsistent statement

as substantive evidence of defendant’s guilt, (2) object

to the jury instructions as given, or (3) request a

limiting instruction regarding the use of McIntyre’s

statement. Vaughn, 491 Mich at 669-671. However, in

light of the overwhelming evidence implicating defen-

dant as the perpetrator of the assault, there is not a

reasonable probability that the result of the proceed-

ings would have been different but for counsel’s er-

rors.

Id.

at 671.

Fourth, defendant argues that the prosecutor’s im-

proper comments and arguments violated his right to a

fair trial. We disagree.

“Review of alleged prosecutorial misconduct is pre-

cluded unless the defendant timely and speciﬁcally

objects, except when an objection could not have cured

the error, or a failure to review the issue would result in

a miscarriage of justice.” Unger, 278 Mich App at

234-235 (quotation marks and citation omitted). Pre-

served claims of prosecutorial misconduct are reviewed

de novo. People v Abraham, 256 Mich App 265, 272; 662

NW2d 836 (2003). Unpreserved claims of prosecutorial

misconduct are reviewed for outcome-determinative

plain error. Unger, 278 Mich App at 234-235.

Additionally, defense counsel employed sound trial strategy by

introducing McIntyre’s police statements in their entirety, which al-

lowed the jury to review the portions of the interview during which

McIntyre indicated that defendant did not admit that he stabbed Anton,

and during which the police ofﬁcer allegedly pressured McIntyre into

falsely stating that defendant admitted that he committed the assault.

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“[T]he test for prosecutorial misconduct is whether a

defendant was denied a fair and impartial trial.”

People v Dobek, 274 Mich App 58, 63; 732 NW2d 546

(2007). “[A]llegations of prosecutorial misconduct are

considered on a case-by-case basis, and the reviewing

court must consider the prosecutor’s remarks in con-

text.” People v Bennett, 290 Mich App 465, 475; 802

NW2d 627 (2010). “[A] prosecutor’s comments must be

read as a whole and evaluated in light of defense

arguments and the relationship they bear to the evi-

dence admitted at trial.” People v Callon, 256 Mich App

312, 330; 662 NW2d 501 (2003). Additionally, this

Court may not “ﬁnd error requiring reversal where a

curative instruction could have alleviated any prejudi-

cial effect.” Bennett, 290 Mich App at 476 (quotation

marks and citation omitted).

Defendant begins by arguing that the prosecutor

improperly expressed his opinion regarding defen-

dant’s credibility and guilt by repeatedly referring

during his closing argument to defendant’s account of

the incident as a lie. We disagree.

Defendant did not object to these allegedly improper

characterizations of defendant’s testimony until de-

fense counsel objected to the prosecutor’s characteriza-

tion of defendant’s testimony as a “story” during the

prosecution’s rebuttal argument. The comments to

which defendant did not object are unpreserved and

reviewed for plain error affecting defendant’s substan-

tial rights, People v Brown, 294 Mich App 377, 382; 811

NW2d 531 (2011); Unger, 278 Mich App at 234-235,

and the comment to which defendant did object is

preserved and reviewed do novo, Abraham, 256 Mich

App at 272, 274.

Prosecutors are afforded “wide latitude” with regard

to their arguments during trial. People v Bahoda, 448

32 313 M

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1 [Oct

Mich 261, 282; 531 NW2d 659 (1995); Dobek, 274 Mich

App at 66. In general, prosecutors are “free to argue

the evidence and all reasonable inferences from the

evidence as it relates to their theory of the case.”

Unger, 278 Mich App at 236. However, “prosecutors

should not . . . express their personal opinions of a

defendant’s guilt, and must refrain from denigrating a

defendant with intemperate and prejudicial remarks.”

Bahoda, 448 Mich at 282-283. A prosecutor must also

refrain from suggesting or implying that he or she has

special knowledge regarding whether a witness is

worthy of belief, id. at 276; Dobek, 274 Mich App at 66,

but “[a] prosecutor may argue from the facts that a

witness, including the defendant, is not worthy of

belief, and is not required to state inferences and

conclusions in the blandest possible terms.” People v

Launsburry, 217 Mich App 358, 361; 551 NW2d 460

(1996) (citation omitted); see also People v Howard, 226

Mich App 528, 548; 575 NW2d 16 (1997).

The prosecutor’s characterization of defendant’s ac-

count of the criminal episode as a lie or a “story” did not

deprive defendant of a fair and impartial trial, Dobek,

274 Mich App at 63, nor did it constitute plain error

that affected defendant’s substantial rights, Unger,

278 Mich App at 235. Reviewing the challenged com-

ments in context, it is evident that the prosecutor’s

classiﬁcation of defendant’s account of the incident as a

lie properly advanced the prosecution’s position that

defendant’s testimony was not credible in light of the

contradictory evidence adduced at trial. During his

closing argument, the prosecutor pointed out the in-

consistencies in defendant’s testimony and explained

why he believed that defendant’s account of the crimi-

nal episode was not worthy of belief. The prosecutor

did not improperly imply that he had special knowl-

edge that defendant fabricated his account of the

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incident. Thus, the prosecutor’s argument was prop-

erly based on the evidence admitted at trial. Unger,

278 Mich App at 236; Howard, 226 Mich App at 548.

Likewise, the prosecutor’s labeling of defendant’s ac-

count of the criminal episode as a lie was not improper,

because the prosecutor was not required to use the

blandest possible language in presenting his argu-

ment. Unger, 278 Mich App at 239.

Moreover, any prejudice that may have resulted

from the prosecutor’s remarks was cured by the trial

court’s jury instructions. The trial court informed the

jury that the lawyers’ statements and arguments were

not evidence and that it was the jurors’ responsibility

to decide the facts of the case, to determine which

witnesses to believe, and to assess the importance of

the witnesses’ testimony. Jurors were also instructed

that they should rely on their own common sense and

everyday experiences in deciding which testimony to

believe. “[J]urors are presumed to follow their instruc-

tions.” Id. at 235.

Defendant next argues that the prosecutor imper-

missibly shifted the burden of proof by arguing that the

defense had Anton’s medical records and could have

introduced them at trial. We disagree.

We review this unpreserved issue for plain error

affecting defendant’s substantial rights. Brown, 294

Mich App at 382. “[A] prosecutor may not comment on

a defendant’s failure to testify or present evidence, i.e.,

the prosecutor may not attempt to shift the burden of

proof.” Abraham, 256 Mich App at 273. “[T]he prosecu-

tor’s comments must be considered in light of defense

counsel’s comments.” People v Watson, 245 Mich App

572, 592-593; 629 NW2d 411 (2001). “[A]n otherwise

improper remark may not rise to an error requiring

reversal when the prosecutor is responding to the

34 313 M

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1 [Oct

defense counsel’s argument.” Id. at 593 (quotation

marks and citation omitted; alteration in original).

During his closing argument, defense counsel ad-

vanced the theory that the prosecutor failed to present

to the jury a “fair [and] meaningful evaluation” of

Anton’s injuries because the prosecutor failed to pro-

duce Anton’s medical records, insinuating that the

records did not support the prosecution’s theory of the

case. It is evident that the prosecutor’s statements

regarding defendant’s opportunity to present the medi-

cal records were made in response to defense counsel’s

argument that the prosecutor was deﬁcient or unfair

when he failed to present Anton’s medical records.

Furthermore, the prosecutor did not actually argue

that defendant should have introduced Anton’s medi-

cal records; he only argued that defendant could have

introduced the medical records if he believed that

something in the records was signiﬁcant. At most, this

seemed to indicate that defendant had no reason to

introduce the records, and it did not shift the burden of

proof to defendant. Moreover, defendant is unable to

demonstrate the requisite prejudice in light of the

prosecutor’s repeated reminders during his argument

that defendant was not obligated to produce any evi-

dence whatsoever and that the prosecutor had the

burden of proof. Additionally, because any prejudicial

effect caused by the prosecutor’s comment about the

medical records was cured by the trial court’s instruc-

tion to the jury indicating that the prosecution, and not

defendant, had the burden of proof, Dobek, 274 Mich

App at 68, we ﬁnd no error requiring reversal, Bennett,

290 Mich App at 476.

Defendant also argues that the prosecutor errone-

ously referred to an extrajudicial fact when he stated

that the defense had the medical records for three

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months. “A prosecutor may not make a statement of

fact to the jury that is unsupported by the evidence in

the case.” People v Fisher, 193 Mich App 284, 291; 483

NW2d 452 (1992). However, this error was cured by the

trial court’s instruction that “[t]he lawyer[s’] state-

ments and their arguments are not evidence[;] they’re

only meant to help you understand the evidence and

each side[’]s legal theory,” and there is no indication

that the prosecutor’s comment about the medical re-

cords denied defendant a fair and impartial trial.

Dobek, 274 Mich App at 63.

Finally, defendant argues that the prosecutor misled

the jury and misrepresented the evidence presented at

trial by arguing that no one but defendant and Anton

were present when the assault occurred, despite the

prosecutor’s knowledge that Evans admitted to the

police that he was present during the assault. We

disagree.

Because defendant objected and moved for a mistrial

on the basis of the prosecutor’s comment,

Brown,

294

Mich App at 382, we review de novo the prosecutor’s

comment to determine whether it denied defendant a

fair and impartial trial, Bennett, 290 Mich App at 475.

“Although a prosecutor may not argue a fact to the jury

that is not supported by evidence, a prosecutor is free

to argue the evidence and any reasonable inferences

that may arise from the evidence.” Callon, 256 Mich

App at 330.

Anton, Rory, and Suzanne testiﬁed that the only

other person they saw in the house before and after the

incident was defendant. Additionally, Rory testiﬁed

that he only saw defendant leave the house after the

assault. Considering this testimony, the prosecutor

The trial court denied defendant’s motion for a mistrial.

36 313 M

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1 [Oct

properly argued the evidence admitted at trial and

reasonable inferences arising from the evidence, id.,

and did not violate defendant’s right to a fair trial,

Bennett, 290 Mich App at 475.

Fifth and lastly, defendant raises several issues

to the validity of his sentences. We remand for

further proceedings consistent with this opinion.

As a preliminary matter, we must consider the

Michigan Supreme Court’s recent decision in People v

Lockridge, 498 Mich 358; 870 NW2d 502 (2015). In

Lockridge, the Court held that “the rule from Apprendi

v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d

435 (2000), as extended by Alleyne v United States, 570

US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies

to Michigan’s sentencing guidelines and renders them

constitutionally deﬁcient.” Id. at 364. The Court ex-

plained that “to the extent that OVs scored on the basis

of facts not admitted by the defendant or necessarily

found by the jury verdict increase the ﬂoor of the

guidelines range, i.e., the defendant’s ‘mandatory

minimum’ sentence, that procedure violates the Sixth

Amendment.” Id. at 373-374. Accordingly,

[t]o remedy the constitutional violation, [the Court] sev-

er[ed]

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. [The Court]

also str[uck] down the requirement in MCL 769.34(3) that

a sentencing court that departs from the applicable guide-

lines range must articulate a substantial and compelling

reason for that departure. [Id. at 364-365.]

The Court also stated:

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[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. To pre-

serve as much as possible the legislative intent in enacting

the guidelines, however, we hold that a sentencing court

must determine the applicable guidelines range and take

it into account when imposing a sentence. [Id. at 365

(citation omitted).]

Likewise, the Court indicated that “[o]ur holding today

does

nothing to undercut the requirement that the

highest number of points possible must be assessed for

all OVs, whether using judge-found facts or not.” Id. at

392 n 28. Therefore, we conclude that, given the

continued relevance to the Michigan sentencing

scheme of scoring the variables, the standards of

review traditionally applied to the trial court’s scoring

of the variables remain viable after Lockridge.

[T]he circuit court’s factual determinations are reviewed

for

clear error and must be supported by a preponderance

of the evidence. Whether the facts, as found, are adequate

to satisfy the scoring conditions prescribed by statute, i.e.,

the application of the facts to the law, is a question of

statutory interpretation, which an appellate court reviews

de novo. [People v Hardy, 494 Mich 430, 438; 835 NW2d

340 (2013) (citation omitted).]

This Court reviews de novo, as a question of law, the

proper

interpretation of the sentencing guidelines.

People v Gullett, 277 Mich App 214, 217; 744 NW2d 200

(2007).

Defendant argues that the trial court erred in scor-

ing OV 5 because there was insufﬁcient evidence that

Anton’s parents sustained serious psychological injury.

The statutory basis of OV 5 is MCL 777.35, which

provides for an assessment of points when there “is

psychological injury to a member of a victim’s family.”

38 313 M

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1 [Oct

MCL 777.35(1). Fifteen points shall be assessed if

“[s]erious psychological injury requiring professional

treatment occurred to a victim’s family.” MCL

777.35(1)(a). Zero points shall be assessed if “[n]o

serious psychological injury requiring professional

treatment occurred to a victim’s family.” MCL

777.35(1)(b). “[T]he fact that treatment has not been

sought is not conclusive,” MCL 777.35(2), but “[t]here

must be some evidence of psychological injury on the

record,” Lockett, 295 Mich App at 183 (discussing the

assessment of points under OV 4 when “[s]erious

psychological injury requiring professional treatment

occurred to a victim,” id. at 182; MCL 777.34).

The trial testimony, which indicated that Anton’s

parents were present in their home when the crime

occurred, and that they found their son with his throat

slashed by someone whom they believed to be their

son’s close friend, clearly demonstrated the traumatic

nature of the incident. The trial court’s opportunity to

observe the demeanor of Anton’s parents during their

testimony also supported the trial court’s ﬁnding that

Rory and Suzanne sustained psychological injury. Fur-

ther, Anton testiﬁed at the sentencing hearing that his

parents were “deeply affected” by the incident and are

in the process of seeking psychological help. The facts

as found by the trial court were not clearly erroneous

and were supported by a preponderance of record

evidence. Accordingly, because the evidence sufﬁ-

ciently demonstrated that Anton’s parents sustained

serious psychological injury that may require profes-

sional treatment, the trial court properly assessed 15

points for OV 5. See Hardy, 494 Mich at 438; MCL

777.35(1)(a).

Defendant next argues that the trial court errone-

ously assessed 50 points for OV 6 because there was

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insufﬁcient evidence in the record to ﬁnd that defen-

dant had a premeditated intent to kill Anton. The

statutory basis of OV 6 is MCL 777.36, which assesses

points for “the offender’s intent to kill or injure another

individual.” MCL 777.36(1). A trial court shall assess

50 points for OV 6 if “[t]he offender had premeditated

intent to kill or [a] killing was committed while com-

mitting or attempting to commit” one of the offenses

enumerated in MCL 777.36(1)(a).

MCL 777.36(1)(a).

wenty-ﬁve points shall be assessed if “[t]he offender

had unpremeditated intent to kill, the intent to do great

bodily harm, or created a very high risk of death or great

bodily harm knowing that death or great bodily harm

was the probable result.” MCL 777.36(1)(b). “The sen-

tencing judge shall score this variable consistent with a

jury verdict unless the judge has information that was

not presented to the jury.” MCL 777.36(2)(a).

“Premeditation, which requires sufﬁcient time to

permit the defendant to take a second look, may be

inferred from the circumstances surrounding the kill-

ing.” People v Coy, 243 Mich App 283, 315; 620 NW2d

888 (2000). “To premeditate is to think about before-

hand; to deliberate is to measure and evaluate the

major facets of a choice or problem. . . . [P]remeditation

and deliberation characterize a thought process undis-

turbed by hot blood.” People v Plummer, 229 Mich App

293, 300; 581 NW2d 753 (1998) (quotation marks and

citation omitted). Nonexclusive “factors that may be

considered to establish premeditation include the fol-

lowing: (1) the previous relationship between the de-

The trial court erroneously considered defendant’s “intent to rob”

when it scored OV 6. A killing was not committed in this case, and

therefore, defendant’s purported attempt to commit robbery or larceny,

which are two of the offenses enumerated in MCL 777.36(1)(a), was not

relevant to the scoring of OV 6.

40 313 M

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1 [Oct

fendant and the victim; (2) the defendant’s actions

before and after the crime; and (3) the circumstances of

the killing itself, including the weapon used and the

location of the wounds inﬂicted.” Id. Additionally,

“[p]remeditation and deliberation may be inferred

from all the facts and circumstances, but the infer-

ences must have support in the record and cannot be

arrived at by mere speculation.” Id. at 301.

The trial court’s ﬁnding that defendant had a pre-

meditated intent to kill was not clearly erroneous and

was supported by a preponderance of record evidence.

Hardy, 494 Mich at 438. Anton testiﬁed that he went

upstairs to retrieve his marijuana and when he re-

turned to the basement, he was struck in the head,

apparently without warning, and his throat was slit.

When Anton woke up and realized that his throat had

been slit, he saw defendant staring at him, “[j]ust

wait[ing] for [him] to die.” Defendant made no effort to

assist Anton. There was no evidence of an altercation

or argument between defendant and Anton immedi-

ately before the assault to indicate that the attack was

provoked or instigated by hot blood. From these cir-

cumstances, one could reasonably infer that defendant

planned the attack before it occurred and was lying in

wait to attack Anton when he returned to the base-

ment, Plummer, 229 Mich App at 301, which justiﬁes

an assessment of 50 points under OV 6, MCL

777.36(1)(a); Hardy, 494 Mich at 438. Thus, we ﬁnd no

error in the trial court’s scoring of the OVs.

In addition, defendant raises an Apprendi/Alleyne

challenge, arguing that his Sixth and Fourteenth

Amendment rights were violated because the trial

court’s scoring of OV 3, OV 4, OV 5, and OV 6 was

based on impermissible judicial fact-ﬁnding, which

increased the ﬂoor of the minimum range recom-

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mended by the sentencing guidelines. Because “defen-

dant did not object to the scoring of the OVs at

sentencing on Apprendi/Alleyne grounds, . . . our re-

view is for plain error affecting substantial rights.”

Lockridge, 498 Mich at 392.

In this case, the trial court departed from the

minimum range recommended by the sentencing

guidelines. Therefore, even if we assume that the facts

necessary to score OV 3, OV 4, OV 5, and OV 6 were not

established by the jury’s verdict or admitted by defen-

dant, defendant cannot establish plain error. As in

Lockridge, because defendant

received an upward departure sentence that did not rely

the minimum sentence range from the . . . guidelines

(and indeed, the trial court necessarily had to state on the

record its reasons for departing from that range), . . .

defendant cannot show prejudice from any error in scoring

the OVs in violation of Alleyne. [Id. at 394.]

However, under Lockridge,

this Court must review

defendant’s sentence for reasonableness.

Id. at 365,

392, citing United States v Booker, 543 US 220, 264;

125 S Ct 738; 160 L Ed 2d 621 (2005). The appropriate

procedure for considering the reasonableness of a de-

parture sentence is not set forth in Lockridge. We

conclude that there are two approaches that Michigan

appellate courts could adopt in order to perform this

reasonableness inquiry.

The ﬁrst option is the standard of review currently

employed by the federal courts. After determining

whether the sentencing court committed a signiﬁcant

After Lockridge, a trial court is no longer required to provide a

substantial and compelling reason for a departure from the sentencing

guidelines. Therefore, we need not review defendant’s argument con-

cerning whether the reasons articulated by the trial court were substan-

tial and compelling.

42 313 M

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1 [Oct

procedural error, federal appellate courts review for an

abuse of discretion the substantive reasonableness of a

sentence. See, e.g., Gall v United States, 552 US 38, 56;

128 S Ct 586; 169 L Ed 2d 445 (2007); United States v

Pirosko, 787 F3d 358, 372 (CA 6, 2015); United States

v Feemster, 572 F3d 455, 462 (CA 8, 2009). Under

Booker, 543 US at 261, 264, federal courts are to be

guided by the factors listed in 18 USC 3553(a) in

determining whether a sentence is reasonable.

The

factors include: (1) the nature and circumstances of the

offense, (2) the history and characteristics of the defen-

dant, (3) the need for the sentence imposed to punish

the offender, protect the public from the defendant,

rehabilitate the defendant, and deter others, (4) the

types of sentences available, (5) the sentencing range

established by the sentencing guidelines, (6) pertinent

policy statements issued by the United States Sentenc-

ing Commission, (7) the need to avoid unwarranted

disparities in sentences imposed on defendants with

similar records for similar conduct, and (8) the need for

restitution. 18 USC 3553(a).

The United States Court of Appeals for the Eighth

Circuit, among others, has noted the situations that

would involve an abuse of discretion:

[A]n abuse of discretion may occur when (1) a court fails to

consider

a relevant factor that should have received sig-

niﬁcant weight; (2) a court gives signiﬁcant weight to an

improper or irrelevant factor; or (3) a court considers only

the appropriate factors but in weighing those factors

commits a “clear error of judgment.” A discretionary

sentencing ruling, similarly, may be unreasonable if a

sentencing court fails to consider a relevant factor that

Federal district courts are required to ﬁrst calculate the applicable

guidelines range, and subsequently, to “consider all of the § 3553(a)

factors to determine whether they support the sentence requested by a

party.” Gall, 552 US at 49-50.

2015] P

EOPLE V

TEANHOUSE

should have received signiﬁcant weight, gives signiﬁcant

weight to an improper or irrelevant factor, or considers

only appropriate factors but nevertheless commits a clear

error of judgment by arriving at a sentence that lies

outside the limited range of choice dictated by the facts of

the case. [United States v Haack, 403 F3d 997, 1004 (CA 8,

2005) (citation omitted).]

See also United States v Ressam, 679 F3d 1069, 1086-

1087 (CA 9, 2012). Federal appellate courts are permit-

ted to “apply a presumption of reasonableness to a

district court sentence that reﬂects a proper applica-

tion of the Sentencing Guidelines.” Rita v United

States, 551 US 338, 347; 127 S Ct 2456; 168 L Ed 2d

203 (2007).

The second option is the standard of review that was

place under People v Milbourn, 435 Mich 630; 461

NW2d 1 (1990), which is similar to the federal stan-

dard. When Milbourn was decided, the Legislature had

not enacted the statutory sentencing guidelines; the

guidelines in effect were those developed by the Michi-

gan Supreme Court and promulgated by administra-

tive order. People v Hegwood, 465 Mich 432, 438; 636

NW2d 127 (2001). Trial court judges were not required

to impose a sentence within the range recommended by

the sentencing guidelines; they were only required to

score the guidelines and articulate the reasons for a

departure from the recommended range. Id. That con-

text is strikingly similar to the role of the sentencing

guidelines after Lockridge. See Lockridge, 498 Mich at

391-392. In Milbourn, the Michigan Supreme Court

overruled the “shocks the conscience” test that was

previously employed under People v Coles, 417 Mich

For examples of the manner in which federal circuit courts have

reviewed sentences for reasonableness with regard to § 3553(a), see

Gall, 552 US at 46-60; Pirosko, 787 F3d at 372, 374-375; United States

v Rosales-Bruno, 789 F3d 1249, 1253-1263 (CA 11, 2015).

44 313 M

ICH

1 [Oct

523, 550-551; 339 NW2d 440 (1983), and adopted the

“principle of proportionality” test as the standard for

determining whether a trial court abused its discretion

in imposing a sentence. Milbourn, 435 Mich at 634-

636. Under the new test, “a given sentence [could] be

said to constitute an abuse of discretion if that sen-

tence violate[d] the principle of proportionality, which

require[d] sentences imposed by the trial court to be

proportionate to the seriousness of the circumstances

surrounding the offense and the offender.” Id. at 636.

Accordingly, trial courts were required to impose a

sentence that took “into account the nature of the

offense and the background of the offender.” Id. at 651.

With regard to the judicial sentencing guidelines,

the Court stated:

The guidelines represent the actual sentencing prac-

tices

of the judiciary, and we believe that the second

edition of the sentencing guidelines is the best “barom-

eter” of where on the continuum from the least to the most

threatening circumstances a given case falls.

. . . We note that departures [from the guidelines] are

appropriate where the guidelines do not adequately ac-

count for important factors legitimately considered at

sentencing. . . . To require strict adherence to the guide-

lines would effectively prevent their evolution, and, for

this reason, trial judges may continue to depart from the

guidelines when, in their judgment, the recommended

range under the guidelines is disproportionate, in either

direction, to the seriousness of the crime. [Id. at 656-657.]

The Court also provided the following guidance for

appellate

courts reviewing a departure from the guide-

lines:

Where there is a departure from the sentencing guide-

lines,

an appellate court’s ﬁrst inquiry should be whether

the case involves circumstances that are not adequately

embodied within the variables used to score the guide-

2015] P

EOPLE V

TEANHOUSE

lines. A departure from the recommended range in the

absence of factors not adequately reﬂected in the guide-

lines should alert the appellate court to the possibility

that the trial court has violated the principle of propor-

tionality and thus abused its sentencing discretion. Even

where some departure appears to be appropriate, the

extent of the departure (rather than the fact of the

departure itself) may embody a violation of the principle of

proportionality. [Id. at 659-660.]

Factors previously considered by Michigan courts

under the proportionality standard included, among

others, (1) the seriousness of the offense, People v

Houston, 448 Mich 312, 321; 532 NW2d 508 (1995); (2)

factors that were inadequately considered by the

guidelines, id. at 324; and (3) factors not considered by

the guidelines, such as the relationship between the

victim and the aggressor, id. at 323; Milbourn, 435

Mich at 660, the defendant’s misconduct while in

custody, Houston, 448 Mich at 323, the defendant’s

expressions of remorse, id., and the defendant’s poten-

tial for rehabilitation, id.

The “principle of proportionality” previously em-

ployed by Michigan appellate courts is consistent with

the standard of review employed by federal courts after

Booker.

We conclude that reinstating the previous

standard

of review in Michigan as the means of deter-

mining the reasonableness of a sentence, is preferable

to adopting the analysis utilized by the federal courts

Justice M

ARKMAN

noted in his Lockridge dissent that the post-

severability analysis standard utilized by the United States Supreme

Court under Booker, 543 US at 246, is consistent with Michigan’s

previous standard of review under Milbourn, 435 Mich at 636. Lock-

ridge, 498 Mich at 462 n 40 (M

ARKMAN

, J., dissenting). This conclusion is

further supported by the fact that the Sixth Circuit and other circuits

have “applied a proportionality principle based on at least two of the

§ 3553(a) factors . . . .” United States v Poynter, 495 F3d 349, 352 (CA 6,

2007); see also id. at 355-359.

46 313

ICH

1 [Oct

and is also most consistent with the Supreme Court’s

directives in Lockridge. Unlike the federal district

courts, Michigan trial courts are not procedurally re-

quired to expressly consider all of the factors listed in

18 USC 3553(a). For example, unlike federal courts,

Michigan courts are not expressly required to consider

sentences imposed in other cases in order to weigh “the

need to avoid unwarranted sentence disparities among

defendants with similar records who have been found

guilty of similar conduct[.]” 18 USC 3553(a)(6).

In-

stead,

under Lockridge, sentencing courts are only

required “to consult the applicable guidelines range

and take it into account when imposing a sentence”

and “justify” the sentence imposed in order to facilitate

appellate review.” Lockridge, 498 Mich at 392. It would

be unworkable to expect this Court to review a sen-

tence for an abuse of discretion based on the factors in

§ 3553(a) when the trial court was not required to

expressly consider those factors in determining the

sentence imposed. Moreover, unlike the United States

Sentencing Commission, the Legislature does not issue

policy statements under the statutory sentencing

scheme, MCL 777.1 et seq., so that it is effectively

impossible for a trial court or this Court to consider a

factor analogous to § 3553(a)(5) to determine whether

a sentence is reasonable. Furthermore, although the

majority opinion in Lockridge expressly cites Booker,

543 US at 261, the opinion includes no discussion of

§ 3553(a), and the signiﬁcant role of that statutory

provision, in the analysis employed by federal appel-

late courts to determine the reasonableness of a sen-

tence. See Lockridge, 498 Mich at 392. Therefore, we

hold that a sentence that fulﬁlls the principle of

See also United States v Begin, 696 F3d 405, 413-414 (CA 3, 2012)

(explaining that a federal district court erred by failing to consider the

defendant’s argument regarding § 3553(a)(6)).

2015] P

EOPLE V

TEANHOUSE

proportionality under Milbourn, and its progeny, con-

stitutes a reasonable sentence under Lockridge.

Lockridge overturned the substantial and compel-

ling reason standard for departures, id. at 392, which

was in place at the time of defendant’s sentencing.

Given our conclusion that the principle of proportion-

ality established under Milbourn, and its progeny, is

now the appropriate standard by which a defendant’s

sentence should be reviewed, we ﬁnd that the proce-

dure articulated in Lockridge, which is modeled on the

procedure adopted in United States v Crosby, 397 F3d

103, 117-118 (CA 2, 2005), should apply here. Lock-

ridge, 498 Mich at 395-399. As recently stated by this

Court in People v Stokes, 312 Mich App 181, 200-201;

877 NW2d 752 (2015), “the purpose of a Crosby 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.” While

the Lockridge Court did not explicitly hold that the

Crosby procedure applies under the circumstances of

this case, we conclude that this is the proper remedy

when, as in this case, the trial court was unaware of,

and not expressly bound by, a reasonableness standard

rooted in the Milbourn principle of proportionality at

the time of sentencing.

“[T]he Crosby procedure offers a measure of protec-

tion 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.’ ” Stokes, 312 Mich

App at 201, quoting Lockridge, 498 Mich at 398. Given

the possibility that defendant could receive a more

severe sentence, defendant should be provided the

opportunity to avoid resentencing if that is his desire.

Stokes, 312 Mich App at 202. Accordingly, we remand

48 313 M

ICH

1 [Oct

this matter to the trial court to follow the Crosby

procedure outlined in Lockridge. Defendant “may elect

to forgo resentencing by providing 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 ex-

plained in Lockridge.” Stokes, 312 Mich App at 203,

quoting Lockridge, 498 Mich at 398.

We afﬁrm defendant’s convictions, but remand for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

ILDER

, P.J., and O

WENS

and M. J. K

ELLY

, JJ.,

concurred.

2015] P

EOPLE V

TEANHOUSE

COVENANT MEDICAL CENTER, INC v STATE FARM

MUTUAL AUTOMOBILE INSURANCE COMPANY

Docket No. 322108. Submitted October 13, 2015, at Lansing. Decided

October 22, 2015, at 9:05 a.m. Leave to appeal granted 499 Mich

941.

Covenant Medical Center, Inc., brought an action in the Saginaw

Circuit Court against State Farm Mutual Automobile Insurance

Company, alleging that State Farm had unreasonably refused to

pay $43,484.80 for medical services rendered to State Farm’s

insured, Jack Stockford, after he was injured in a motor vehicle

accident in 2011. Covenant had billed State Farm for those

services, and State Farm responded to the bills in writing in

November 2012. On April 2, 2013, however, Stockford entered

into a written agreement with State Farm that in exchange for

the payment of $59,000 purported to release State Farm from

liability regarding all claims incurred through January 10, 2013,

as a result of the 2011 accident. Accordingly, State Farm moved

for summary disposition, arguing that Covenant’s claims were

barred by the settlement payments from State Farm to Stockford

and the release he signed as part of that settlement. The court,

Robert L. Kaczmarek, J., agreed and granted State Farm sum-

mary disposition. Covenant appealed.

The Court of Appeals held:

MCL 500.3112, part of the no-fault act, MCL 500.3101 et seq.,

provides generally that personal protection insurance beneﬁts

are payable to or for the beneﬁt of an injured person. An insurer’s

good-faith payment of personal protection insurance beneﬁts to or

for the beneﬁt of a person the insurer believes is entitled to the

beneﬁts discharges its liability to the extent of the payments

unless the insurer has been notiﬁed in writing of the claim of

some other person. Therefore, if the insurer has written notice of

a third party’s claim, the insurer cannot discharge its liability to

the third party simply by settling with its insured. Such a

payment would not be in good faith because the insurer was

aware of a third party’s right and sought to extinguish it without

providing notice to the affected third party. Instead, MCL

500.3112 requires that the insurer apply to the circuit court for an

appropriate order directing how the no-fault beneﬁts should be

50 313

ICH

50 [Oct

allocated, which did not happen in this case. Because State Farm

had written notice of Covenant’s claim, State Farm’s payment to

Stockford did not discharge its liability to Covenant.

Reversed and remanded.

Miller Johnson (by Thomas S. Baker and Christo-

pher J. Schneider) for plaintiff.

Smith Bovill, PC (by Andrew D. Concannon), for

defendant.

Before: M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

JJ.

URIAM

. Plaintiff, Covenant Medical Center,

Inc., appeals by right the circuit court’s order grant-

ing summary disposition to defendant, State Farm

Mutual Automobile Insurance Company, under MCR

2.116(C)(7) (claim barred by release). For the reasons

stated in this opinion, we reverse.

In 2011, State Farm’s insured, Jack Stockford, was

injured in a motor vehicle accident. In 2012, Covenant

Medical provided medical services to Stockford for the

injuries he sustained. Covenant Medical billed State

Farm $43,484.80 for those services, sending bills in

July, August, and October 2012. In November 2012,

State Farm responded to the bills in writing. Sub-

sequently, on April 2, 2013, in exchange for payment of

$59,000, Stockford entered into a written agreement

with State Farm that purported to release State Farm

from liability “regarding all past and present claims

incurred through January 10, 2013,” as a result of the

2011 accident.

Thereafter, Covenant Medical ﬁled the instant ac-

tion, alleging that State Farm had unreasonably

refused to pay $43,484.80 for the medical services

rendered to Stockford. State Farm moved for sum-

2015] C

OVENANT

TR V

TATE

ARM

mary disposition, arguing that Covenant Medical’s

claims were barred by the settlement payments from

State Farm to Stockford and the release signed by

him as part of that settlement. The trial court con-

cluded that the release barred Covenant Medical’s

claims and granted summary disposition in favor of

State Farm.

On appeal, Covenant Medical argues that because it

provided written notice to State Farm regarding the

medical services provided to Stockford, it is entitled to

pursue the $43,484.80, along with penalties, interests,

and costs.

We agree.

Resolution

of the issue involves the application of

MCL 500.3112. “The primary goal of statutory inter-

pretation is to ascertain the legislative intent that may

reasonably be inferred from the statutory language.”

Krohn v Home-Owners Ins Co, 490 Mich 145, 156; 802

NW2d 281 (2011) (quotation marks and citations omit-

ted). “Unless statutorily deﬁned, every word or phrase

of a statute should be accorded its plain and ordinary

meaning, taking into account the context in which the

words are used.” Id. (citations omitted). “If the plain

and ordinary meaning of the language of the statute is

clear, judicial construction is inappropriate.” Lakeland

Neurocare Ctrs v State Farm Mut Auto Ins Co, 250

Mich App 35, 37; 645 NW2d 59 (2002). “When constru-

ing a statute, a court must read it as a whole.” Klooster

v City of Charlexvoix, 488 Mich 289, 296; 795 NW2d

578 (2011).

MCL 500.3112 provides in pertinent part:

We review de novo a trial court’s decision on a motion for summary

disposition. Sholberg v Truman, 496 Mich 1, 6; 852 NW2d 89 (2014).

“Questions of statutory interpretation are also reviewed de novo.” Elba

Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 278; 831 NW2d 204

(2013).

52 313 M

ICH

50 [Oct

Personal protection insurance beneﬁts are payable to or

for the beneﬁt of an injured person or, in the case of his

death, to or for the beneﬁt of his dependents. Payment by an

insurer in good faith of personal protection insurance ben-

eﬁts, to or for the beneﬁt of a person who it believes is entitled

to the beneﬁts, discharges the insurer’s liability to the extent

of the payments unless the insurer has been notiﬁed in

writing of the claim of some other person. If there is doubt

about the proper person to receive the beneﬁts or the proper

apportionment among the persons entitled thereto, the

insurer, the claimant or any other interested person may

apply to the circuit court for an appropriate order. The court

may designate the payees and make an equitable appor-

tionment, taking into account the relationship of the payees

to the injured person and other factors as the court consid-

ers appropriate. [Emphasis added.]

MCL 500.3112 provides that if the insurer does not

have

notice in writing of any other claims to payment

for a particular covered service, then a good-faith

payment to its insured is a discharge of its liability for

that service. However, the plain text of the statute

provides that if the insurer has notice in writing of a

third party’s claim, then the insurer cannot discharge

its liability to the third party simply by settling with

its insured. Such a payment is not in good faith

because the insurer is aware of a third party’s right

and seeks to extinguish it without providing notice to

the affected third party. Instead, the statute requires

that the insurer apply to the circuit court for an

appropriate order directing how the no-fault beneﬁts

should be allocated. That was not done in this case.

Accordingly, under the plain language of the statute,

because State Farm had notice in writing of Covenant

Medical’s claim, State Farm’s payment to Stockford

did not discharge its liability to Covenant Medical.

State Farm relies on Mich Head & Spine Institute,

PC v State Farm Mut Auto Ins Co, 299 Mich App 442;

2015] C

OVENANT

TR V

TATE

ARM

830 NW2d 781 (2013). However, the rule applied in

that case does not apply here. The issue presented in

Mich Head & Spine was “whether an insured’s release

bars a healthcare provider’s claim for payment for

medical services rendered to the insured after the

release was executed.” Id. at 448 (emphasis added). The

circumstances presented in Mich Head & Spine did not

implicate MCL 500.3112, while the instant case does.

When the relevant services were rendered and the

insurer received notice of the provider’s claim before

the settlement occurred, the payment and release do

not extinguish the provider’s rights.

State Farm also relies on Moody v Home Owners Ins

Co, 304 Mich App 415; 849 NW2d 31 (2014). Moody

made it clear that a provider’s right to no-fault beneﬁts

is based on the insured’s right to beneﬁts. Id. at

442-443. However, it is also well settled that a medical

provider has independent standing to bring a claim

against an insurer for the payment of no-fault beneﬁts.

Wyoming Chiropractic Health Clinic, PC v Auto-

Owners Ins Co, 308 Mich App 389, 396-397; 864 NW2d

598 (2014); Moody, 304 Mich App at 440; Mich Head

& Spine, 299 Mich App at 448 n 1; Lakeland Neuro-

care, 250 Mich App at 42-43; Univ of Mich Regents v

State Farm Mut Ins Co, 250 Mich App 719, 733; 650

NW2d 129 (2002). And while a provider’s right to

payment from the insurer is created by the right of the

insured to beneﬁts, an insured’s agreement to release

the insurer in exchange for a settlement does not

release the insurer with respect to the provider’s

noticed claims unless the insurer complies with MCL

500.3112. This is implicitly recognized in the text of the

release itself, which provides that Stockford agreed to

“indemnify, defend and hold harmless” State Farm

“from any liens or demands made by any provider, . . .

including . . . Covenant Medical . . . , for payments

54 313 M

ICH

50 [Oct

made or services rendered . . . in connection with any

injuries resulting” from the accident.

Reversed and remanded for further proceedings. We

do not retain jurisdiction.

M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

, JJ.,

concurred.

2015] C

OVENANT

TR V

TATE

ARM

AUTO-OWNERS INSURANCE COMPANY v DEPARTMENT OF

TREASURY

Docket No. 321505. Submitted September 10, 2015, at Detroit. Decided

October 27, 2015, at 9:00 a.m.

Auto-Owners Insurance Company brought an action in the Court of

Claims against the Department of Treasury, seeking a refund of

tax levied under the Use Tax Act (UTA), MCL 205.91 et seq., in

connection with a series of contracts it had entered into with

various third-party companies. The main categories of the con-

tracts included (1) insurance-industry-speciﬁc contracts, (2) tech-

nology and communications contracts, (3) online research con-

tracts, (4) payment remittance and processing support contracts,

(5) equipment maintenance and software customer support con-

tracts, and (6) marketing and advertising contracts. The dispute

centered on whether the contracts involved the delivery of pre-

written computer software, which is tangible personal property

subject to the use tax under MCL 205.93(1). The court, M

ICHAEL

ALBOT

, J., granted plaintiff summary disposition after concluding

that the transactions were not subject to use tax because the

software involved had not been delivered. The court concluded (1)

that the software had remained on third-party servers and what

was transferred to plaintiff was instead information processed

using the third-party’s software, hardware, and infrastructure,

(2) that even if prewritten computer software had been delivered

to plaintiff, plaintiff did not exercise the requisite use to subject

that software to the use tax because plaintiff had no control over

the underlying software that the third-party companies used to

complete their tasks and was only able to input data in order to

control outcomes, and (3) that even if software had been delivered

to and used by plaintiff, that use was merely incidental to the

services rendered by the third-party companies and could not

render the overall transactions subject to the use tax. The court

ordered a refund of the taxes, and defendant appealed.

The Court of Appeals held:

1. Under MCL 205.93(1), the use tax is levied for the privilege

of using, storing, or consuming tangible personal property in

56 313

ICH

56 [Oct

Michigan. MCL 205.92(b) deﬁnes “use” as the exercise of a right

or power over tangible personal property incident to the owner-

ship of that property, including the transfer of the property in a

transaction in which possession is given. The key feature is

whether the party had some level of control over the tangible

personal property. MCL 205.92(k) deﬁnes “tangible personal

property” as personal property that can be seen, weighed, mea-

sured, felt, or touched or that is in any other manner perceptible

to the senses. It includes “prewritten computer software,” which

is deﬁned by MCL 205.92b(o) as computer software, including

prewritten upgrades, that is delivered by any means and is not

designed and developed by the author or other creator to the

speciﬁcations of a speciﬁc purchaser. Under MCL 205.92b(c),

“computer software” is a set of coded instructions designed to

cause a computer or automatic data processing equipment to

perform a task. For purposes of determining whether prewritten

computer software was delivered, the UTA requires that it be

conveyed or handed over by any means. Therefore, the transac-

tions at issue in this case were taxable under the UTA if plaintiff

exercised control over a set of coded instructions that was

conveyed or handed over by any means and was not designed and

developed by the author or other creator to the speciﬁcations of a

speciﬁc purchaser.

2. The Court of Claims incorrectly determined that all the

software involved remained on third-party servers. To the con-

trary, a desktop agent was installed on plaintiff’s computers with

regard to one contracting party, and in another instance plaintiff

used third-party software that ran locally on plaintiff’s comput-

ers. In addition, the Court of Claims improperly narrowed the

scope of the term “deliver” to preclude electronic delivery. How-

ever, the Court of Claims correctly determined that the mere

transfer of information and data that was processed using the

software of the third-party businesses did not constitute the

delivery of prewritten computer software by any means. In that

situation, no prewritten computer software was delivered; in-

stead, only data resulting from third-party use of software was

delivered.

3. The majority of the transactions in this case were not

taxable under the UTA because they did not involve the delivery

of prewritten computer software by any means. Generally, plain-

tiff accessed the code in such a limited manner that it did not

signify ownership or had no access to the code at all. Plaintiff

accessed websites that allowed it to submit requests. The code

remained on the third-party’s server, and the third party con-

2015] A

UTO

-O

WNERS V

’

T OF

REAS

trolled it, maintained it, and updated it as the third party saw ﬁt.

With respect to one company, no code of any sort was involved.

Some of plaintiff’s transactions involved software maintenance;

those transactions were not subject to taxation under the UTA

because they involved the provision of services, rather than the

delivery of prewritten computer software.

4. Plaintiff did have prewritten computer software, print

materials, and ﬂash and thumb drives delivered to it in connec-

tion with several of the transactions. Furthermore, plaintiff

exercised an ownership-type right or power over that tangible

personal property by taking possession of it, physically installing

the software on its computers, and using the software, print

materials, and drives as it wished. Those transfers of tangible

personal property occurred during the rendering of professional

services, however. The test for determining whether a business

relationship that involves both the transfer of personal property

and the provision of services constitutes a nontaxable service or a

taxable property transaction is the incidental-to-service test,

which objectively examines the entire transaction to determine

whether the transaction was principally a transfer of tangible

personal property or the provision of a service. To determine

whether the transfer of tangible personal property was incidental

to the rendering of professional services for purposes of the UTA,

the court should examine (1) what the buyer sought as the object

of the transaction, (2) what the seller or service provider was in

the business of doing, (3) whether the goods were provided as a

retail enterprise with a proﬁt-making motive, (4) whether the

tangible goods were available for sale without the service, (5) the

extent to which intangible services contributed to the value of the

physical item that was transferred, and (6) any other factors

relevant to the particular transaction. The ﬁrst ﬁve factors

encompassed the main features of each transaction in this case,

and no other factors were relevant. Considering all the factors

together, the transfer of tangible personal property was inciden-

tal to the services that plaintiff received. Therefore, the transac-

tions were not taxable under the UTA, and the trial court did not

err by granting plaintiff’s motion for summary disposition.

Afﬁrmed.

1. T

AXATION —

AX —

ANGIBLE

ERSONAL

ROPERTY —

REWRITTEN

OMPUTER

OFTWARE

The Use Tax Act, MCL 205.91 et seq., is designed to cover actions

that are not covered under the General Sales Tax Act, MCL

205.51 et seq.; under MCL 205.93(1), the use tax is levied for the

58 313 M

ICH

56 [Oct

privilege of using, storing, or consuming tangible personal prop-

erty in Michigan; MCL 205.92(b) deﬁnes “use” as the exercise of a

right or power over tangible personal property incident to the

ownership of that property, including the transfer of the property

in a transaction in which possession is given; the key feature is

whether the party had some level of control over the tangible

personal property; MCL 205.92(k) deﬁnes “tangible personal

property” as personal property that can be seen, weighed, mea-

sured, felt, or touched or that is in any other manner perceptible

to the senses; it includes “prewritten computer software,” which

is deﬁned by MCL 205.92b(o) as computer software, including

prewritten upgrades, that is delivered by any means and is not

designed and developed by the author or other creator to the

speciﬁcations of a speciﬁc purchaser; under MCL 205.92b(c),

“computer software” is a set of coded instructions designed to

cause a computer or automatic data processing equipment to

perform a task; for purposes of determining whether prewritten

computer software was delivered, the act requires that it be

conveyed or handed over by any means.

2. T

AXATION —

AX —

ANGIBLE

ERSONAL

ROPERTY —

ROVISION OF

ERVICES —

NCIDENTAL

-S

ERVICE

EST

Under MCL 205.93(1), part of the Use Tax Act, MCL 205.91 et seq.,

the use tax is levied for the privilege of using, storing, or

consuming tangible personal property in Michigan; MCL

205.92(b) deﬁnes “use” as the exercise of a right or power over

tangible personal property incident to the ownership of that

property, including the transfer of the property in a transaction in

which possession is given; if a business relationship involves both

the transfer of personal property and the provision of services, the

test for determining whether it constitutes a service that is not

taxable under the Use Tax Act or a taxable property transaction

is the incidental-to-service test, which objectively examines the

entire transaction to determine whether the transaction was

principally a transfer of tangible personal property or the provi-

sion of a service; to determine whether the transfer of tangible

personal property was incidental to the rendering of professional

services, the court should examine (1) what the buyer sought as

the object of the transaction, (2) what the seller or service

provider was in the business of doing, (3) whether the goods were

provided as a retail enterprise with a proﬁt-making motive, (4)

whether the tangible goods were available for sale without the

service, (5) the extent to which intangible services contributed to

the value of the physical item that was transferred, and (6) any

other factors relevant to the particular transaction.

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Honigman Miller Schwartz and Cohn LLP (by John

D. Pirich, June Summers Haas, and Brian T. Quinn)

for Auto-Owners Insurance Company.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, and Scott L. Damich, Assis-

tant Attorney General, for the Department of Treasury.

Before: G

ADOLA

, P.J., and J

ANSEN

and B

ECKERING

, JJ.

URIAM

. Defendant appeals as of right a ﬁnal

order for the refund of use taxes. We afﬁrm.

I. FACTS

Plaintiff is a Michigan corporation headquartered in

Lansing, Michigan. Plaintiff provides insurance ser-

vices and is represented by more than 35,000 indepen-

dent agents in 26 states. Plaintiff entered into a

variety of contracts between December 1, 2006, and

December 31, 2010. Many of these contracts used

complex and modern computing arrangements be-

tween plaintiff and the third-party companies, which

led to the instant controversy regarding whether these

contracts were subject to Michigan’s Use Tax Act

(UTA), MCL 205.91 et seq. The six main categories of

contracts include (1) insurance industry speciﬁc con-

tracts, (2) technology and communications contracts,

(3) online research contracts, (4) payment remittance

and processing support contracts, (5) equipment main-

tenance and software customer support contracts, and

(6) marketing and advertising contracts.

A. INSURANCE INDUSTRY SPECIFIC CONTRACTS

Plaintiff entered into six contracts in this category.

First,

plaintiff entered into a contract to use the

60 313 M

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services of Marshall & Swift/Boeckh (MSB). MSB pro-

vides building information to plaintiff. Plaintiff’s

agents submit building factors to MSB through the

Internet. MSB then analyzes the data and provides

plaintiff a valuation number to aid it in determining

the appropriate value for building insurance. There is

no indication in the record that plaintiff used MSB’s

software or had MSB software on its computers during

the years at issue. Plaintiff also entered into a contract

to use the services of Valen Technologies, Inc. Valen

provides services to help plaintiff evaluate risks and

underwrite insurance policies. Valen works with plain-

tiff to develop a model speciﬁcally tailored to plaintiff.

With regard to the model, an agent for plaintiff enters

information and data on the Internet through plain-

tiff’s custom interface. The data is submitted to Valen,

which runs the data through the model. The result is a

score from 1 to 20, with 1 representing the best account

to underwrite and 20 representing the worst account to

underwrite. Valen operates its own software to run the

model, and plaintiff did not receive, license, or have

access to Valen’s software.

Plaintiff also contracted with the Association for

Cooperative Operations Research and Development

(ACORD), which is a nonproﬁt organization that aids

in the development of open consensus data standards

and standard insurance forms. ACORD provides na-

tional insurance standards that create a common cod-

ing system for data ﬁelds in insurance data transmis-

sions. The ACORD standards create the ability to

employ a standard format for the ﬂow of information to

and from insurance agencies and to governmental

agencies. Plaintiff paid a membership fee to ACORD

during the tax years at issue and received ACORD’s

data standards. According to plaintiff, it did not pur-

chase, receive, or license software from ACORD.

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Plaintiff also contracted with CoreLogic’s Proxix

Solutions (Proxix) with regard to its business in Ken-

tucky. Proxix provides a geospacial system that iden-

tiﬁes and veriﬁes the municipality in which a speciﬁc

piece of property is located. In response to a database

query, plaintiff provides longitude and latitude infor-

mation to Proxix. Proxix veriﬁes and identiﬁes where

property is located. Plaintiff also contracted with

IVANS, Inc., which is an electronic communication

service that aids in managing the conﬁdentiality of

data. This system allows parties using different tech-

nology infrastructures to communicate. IVANS uses a

data exchange service to translate data from plaintiff

to an agent system while plaintiff and the agent

system use their own technology infrastructure. When

an agency writes a new automobile insurance policy,

the agency compiles information on its computers, and

then that information is sent via the IVANS data

exchange system to plaintiff. Plaintiff uses the same

secured data line to send back the information that

comprises the policy report. Plaintiff uses the IVANS

system by sending encrypted data to an IP (Internet

protocol) address. Plaintiff also uses the IVANS system

to report information to governmental agencies, in-

cluding delivering automobile policy information to

whichever department in a state is involved with

registering and licensing motor vehicles. Plaintiff did

not receive or download any software in regard to its

use of the IVANS system.

Plaintiff also used Lexis-Nexis Choicepoint, which

provides data on motor vehicle records and sends

electronic notices regarding motor vehicle coverage to

secured parties. With regard to the data program, an

independent agent inputs information over the Inter-

net or uses an electronic form to conduct a search.

Plaintiff’s computer system then sends data to Lexis-

62 313 M

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Nexis, which uses its in-house database to provide

more detailed information to plaintiff. Plaintiff then

forwards the results to the independent agent. Plain-

tiff cannot access the database. Only plaintiff sent data

to Lexis-Nexis, and Lexis-Nexis delivered information

on the basis of the input data. With regard to the

electronic notices, Lexis-Nexis provides a web-based

electronic mailing service. Plaintiff collects informa-

tion and sends the information through an FTP (ﬁle

transfer protocol) to Lexis-Nexis. Lexis-Nexis uses the

information to send notices to secured parties or lien-

holders.

B. TECHNOLOGY AND COMMUNICATIONS

Plaintiff entered into two contracts that fall under

this

category. The ﬁrst contract was with Cisco WebEx,

LLC (WebEx). WebEx provides videoconferencing ser-

vices, webinar services, and online-meeting services.

The services work through a link to WebEx’s website.

According to plaintiff, there was no licensing involved,

and only the meeting organizer was required to have a

license. WebEx also provides a support center, which

several members of plaintiff’s Automation Support

Unit downloaded. The support center is downloaded

through a click box, which opens a session on the user’s

computer and works with WebEx in ﬁxing any prob-

lems.

Plaintiff also contracted with LogMeIn, which pro-

vides remote access so that an employee can work on a

home computer as if the employee were sitting at his or

her desk at work. The employee accesses LogMeIn

through a website or a portal hosted by LogMeIn and

inputs a password. In order for the system to work, an

incidental local client, or desktop agent, must be in-

stalled locally on each personal computer using the

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system. LogMeIn also provides thumb and ﬂash

drives that can be used to access the system from a

third-party computer. According to plaintiff, it did not

receive any additional property or software from

LogMeIn.

C. ONLINE RESEARCH

Plaintiff also contracted with West, a Thomson Reu-

ters

business, to conduct legal research by using its

online database service. West provides its services

through the Internet, and plaintiff did not receive any

disks or software from West. Plaintiff also contracted

with Wolters Kluwer for an online subscription to

Insource Services (NILS). The subscription includes

insurance-speciﬁc laws, ﬁling guidelines, attorneys

general opinions, and bulletins. The online services are

housed with Wolters Kluwer, and not with plaintiff.

Although plaintiff received a portion of the NILS

materials (excluding insurance ﬁling guidelines) in

book and print materials, it argues that it subscribed

with the intention of obtaining online access, not the

printed materials.

D. PAYMENT REMITTANCE AND PROCESSING SUPPORT

Plaintiff contracted with RT Lawrence (RTL) for

payment-processing

services. RTL’s system uses scan-

ners to capture images of checks and stubs, and soft-

ware to validate data and compare amounts. RTL’s

software was loaded onto plaintiff’s computers. The

software uses plaintiff’s scanners to process informa-

tion. The scanners capture images of both the check

and the stub and use plaintiff’s internal codes to

minimize user veriﬁcation by comparing amounts and

validating data. Plaintiff also contracted for support

and maintenance of the scanners, training, and cus-

64 313 M

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56 [Oct

tomer support. According to plaintiff, the transaction

that was taxed was solely for software maintenance

and support.

E. EQUIPMENT MAINTENANCE AND SOFTWARE

CUSTOMER SUPPORT

Plaintiff also contracted with several companies

with regard to software it had already purchased,

including with Data Center Management Systems,

Duck Creek, GT Software, and Software AG USA.

Plaintiff contends that all the transactions that were

taxed involved support and maintenance of existing

software. The invoice that Data Center sent to plaintiff

states that plaintiff was billed for maintenance. The

invoice related to Duck Creek provides that plaintiff

was billed for maintenance. The invoice at issue with

regard to GT Software indicates that plaintiff was

billed a “Software Fee” in relation to a software up-

grade. However, the contract between plaintiff and GT

Software provides that 12% of the software licensing

fee is for maintenance and support. Plaintiff sought a

refund for the use tax paid on the amount that consti-

tuted maintenance and support. Software AG’s in-

voices do not clarify whether Software AG billed plain-

tiff for software or for maintenance. However, the

contract between Software AG and plaintiff provides

that $73,210 of the software price is for technical

services. Plaintiff sought a refund for the taxes paid on

this amount.

There were a number of other transactions in this category. How-

ever, neither party discusses on appeal the other transactions in this

category. Plaintiff argues that all the transactions in this category

involved support and maintenance of existing software. Defendant does

not challenge this assertion with regard to the transactions that the

parties do not mention on appeal. Therefore, to the extent that defen-

dant challenges any other transactions in this category, defendant has

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F. MARKETING AND ADVERTISING

Plaintiff also entered into several contracts with

marketing and advertising companies, including Third

Person Creative (TPC), Harvest Music and Soundde-

sign, and Main Media Marketing (MMM). TPC re-

viewed plaintiff’s marketing prices and provided ideas

related to branding. TPC also provided marketing

strategies, conducted investigations, and provided

ideas for advertisements. Harvest wrote and produced

commercials for plaintiff. Plaintiff received digital ﬁles

containing the commercials. MMM established web-

sites and developed search engine optimization queries

for plaintiff. MMM also hosted websites and imple-

mented a pilot program on the Internet for plaintiff.

II. PROCEDURAL HISTORY

Defendant conducted a use-tax audit of plaintiff

covering

December 1, 2006, to December 31, 2010. The

auditors determined two bases for use tax liability: (1)

ﬁxed-asset purchase and (2) expense items by looking

at purchases. The auditors reviewed the ﬁxed-asset

purchases for the entire audit period. In regard to

expense items, the auditors used a block sampling

method with 2010 as the sample year. On March 28,

2012, defendant issued a bill for taxes due and as-

sessed a use-tax deﬁciency and interest totaling

$871,625.24. Plaintiff paid the amount due, as well as

additional interest, under protest.

On June 29, 2012, plaintiff ﬁled a complaint in the

Court of Claims, seeking a refund of the use tax paid to

abandoned the argument on appeal. See Woods v SLB Prop Mgt, LLC,

277 Mich App 622, 626-627; 750 NW2d 228 (2008) (“ ‘[A]n appellant’s

failure to properly address the merits of his assertion of error consti-

tutes abandonment of the issue.’ ”) (citation omitted).

66 313 M

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56 [Oct

defendant. Plaintiff asserted (1) that the products were

not prewritten computer software, (2) that under

Catalina Mktg Sales Corp v Dep’t of Treasury, 470

Mich 13; 678 NW2d 619 (2004), any software involved

was incidental to the services the products provided,

(3) that defendant unlawfully assessed Michigan use

tax on transactions subject to Michigan sales tax, and

(4) that defendant used improper audit methods. After

discovery was conducted, plaintiff moved for summary

disposition under MCR 2.116(C)(10). Defendant ﬁled a

response, arguing that plaintiff was not entitled to

summary disposition and that summary disposition in

favor of defendant was proper under MCR 2.116(I)(2).

The Court of Claims granted plaintiff’s motion for

summary disposition under MCR 2.116(C)(10). The

Court of Claims ﬁrst determined that the transactions

were not subject to use tax because the software

involved in the case was not “delivered by any means.”

Focusing on the dictionary deﬁnition of the word

“deliver,” the Court of Claims held that the software

was not “handed over, left, or transferred” to plaintiff

because any software remained on the third-party’s

server and what was transferred to plaintiff was infor-

mation that had been processed using the third-party’s

software, hardware, and infrastructure. The Court of

Claims also noted that the Legislature could not have

contemplated the transactions involved because on the

effective date of the relevant statute, September 1,

2004, software was delivered electronically or physi-

cally and the court would have to extend the construc-

tion of the phrase “delivered by any means” in order to

include remote access technology. The Court of Claims

next held that even if “prewritten computer software”

was “delivered” to plaintiff, defendant’s assessment

would still be invalid because plaintiff did not exercise

the requisite “use” to subject the software to Michi-

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gan’s use tax. The court held that plaintiff had no

control over the underlying software used by the third-

party companies to complete the necessary tasks. In-

stead, plaintiff was only able to input data in order to

control outcomes.

The court next held that even if “prewritten com-

puter software” was “delivered” to and “used” by plain-

tiff, that use was merely incidental to the services

rendered by the third-party providers and would not

subject the overall transactions to use tax. The court

did not address plaintiff’s argument that it cannot be

held responsible for use tax simply because the sales

took place within Michigan or plaintiff’s argument

challenging defendant’s audit methods. The Court of

Claims also entered a ﬁnal order for the refund of

taxes.

III. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision

regarding

a motion for summary disposition. Williams

v Enjoi Transp Solutions, 307 Mich App 182, 185; 858

NW2d 530 (2014). “In reviewing a grant of summary

disposition under MCR 2.116(C)(10), this Court consid-

ers the pleadings, admissions, and other evidence

submitted by the parties in the light most favorable to

the nonmoving party.” Id. Summary disposition is

appropriate when there is no genuine issue of material

fact and the party moving for summary disposition is

entitled to judgment as a matter of law. Id.

The UTA is analyzed under the general rules of

statutory interpretation. Ameritech Publishing, Inc v

Dep’t of Treasury, 281 Mich App 132, 136; 761 NW2d

470 (2008). We review de novo issues of statutory

interpretation. Id. at 135-136. We construe a statute in

order to determine and give effect to the Legislature’s

68 313 M

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56 [Oct

intent. Id. at 136. “The goal of statutory interpretation

is to discern the intent of the Legislature by examining

the plain language of the statute.” Aroma Wines

& Equip, Inc v Columbian Distrib Servs, Inc, 303 Mich

App 441, 447; 844 NW2d 727 (2013), aff’d 497 Mich 337

(2015). “If the language 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-

lishing, 281 Mich App at 136. “Tax laws will not be

extended in scope by implication or forced construction.”

Id.An ambiguity in a tax law is construed in favor of the

taxpayer. Id.

IV. USE OF PREWRITTEN COMPUTER SOFTWARE

Defendant argues that the Court of Claims erred

when

it determined that the transactions were not

taxable under the UTA. We disagree.

The UTA is designed to cover transactions that are

not covered under the General Sales Tax Act (GSTA),

MCL 205.51 et seq. WPGP1, Inc v Dep’t of Treasury, 240

Mich App 414, 416; 612 NW2d 432 (2000). “A sales-use

tax scheme is designed to make all tangible personal

property, whether acquired in, or out of, the state

subject to a uniform tax burden. Sales and use taxes

are mutually exclusive but complementary, and are

designed to exact an equal tax based on a percentage of

the purchase price of the property in question.”

Catalina, 470 Mich at 19 n 3 (citation and quotation

marks omitted). The use tax is levied “for the privilege

of using, storing, or consuming tangible personal prop-

erty” in Michigan. MCL 205.93(1). The use tax is

assessed “at a total combined rate equal to 6% of the

price of the property or services . . . .” Id.

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“Use” is deﬁned in the UTA as “the exercise of a right

or power over tangible personal property incident to

the ownership of that property including transfer of

the property in a transaction where possession is

given.” MCL 205.92(b). The UTA does not explain what

a right or power incident to ownership of tangible

personal property entails. However, this Court has

held that the key feature in determining whether a

party exercised a right or power over tangible personal

property is whether the party had some level of control

over that property. See WPGP1, 240 Mich App at

417-419 (noting that the plaintiff did not “use” the

airplanes under the meaning of the term in the UTA

since the plaintiff did not have control over them).

“Tangible personal property” is deﬁned as “personal

property that can be seen, weighed, measured, felt, or

touched or that is in any other manner perceptible to

the senses and includes electricity, water, gas, steam,

and prewritten computer software.” MCL 205.92(k)

(emphasis added). The UTA deﬁnes “prewritten com-

puter software” as “computer software, including pre-

written upgrades, that is delivered by any means and

that is not designed and developed by the author or

other creator to the speciﬁcations of a speciﬁc pur-

chaser.” MCL 205.92b(o) (emphasis added). Finally, the

UTA deﬁnes “computer software” as “a set of coded

instructions designed to cause a computer or automatic

data processing equipment to perform a task.” MCL

205.92b(c).

The UTA does not deﬁne the term “deliver.” However,

this Court may consult a dictionary deﬁnition to deter-

mine the plain and ordinary meaning of a term. Aroma

Wines, 303 Mich App at 447.

Merriam-Webster’s Colle-

We disagree with defendant’s assertion that the meaning of the term

“deliver” is readily discernable from reading the statute itself. Plaintiff

70 313 M

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giate Dictionary (11th ed) deﬁnes the term “deliver,” in

relevant part, as “to take and hand over to or leave for

another :

CONVEY[.]

” The UTA, therefore, requires that

the prewritten computer software be conveyed or

handed over by any means. See MCL 205.92b(o).

Therefore, the transactions at issue in this case were

taxable under the UTA if plaintiff exercised control

over a set of coded instructions that was conveyed or

handed over by any means and was not designed and

developed by the author or other creator to the speci-

ﬁcations of a speciﬁc purchaser. See MCL 205.92(k);

MCL 205.92b(c) and (o).

We ﬁrst note that the Court of Claims incorrectly

determined that all the software remained on a third-

party server. The Court of Claims focused its analysis

on the phrase “that is delivered by any means” in the

deﬁnition of “prewritten computer software,” holding

that this phrase created a requirement that the soft-

ware be “delivered” (i.e., handed over, left, or trans-

ferred). The court held that no software was ever

delivered because all the software remained on the

third-party servers, and what was transferred to plain-

tiff was information that had been processed using the

third-party’s software, hardware, and infrastructure.

However, a desktop agent was installed on each com-

puter with regard to LogMeIn, and RTL used software

that ran locally on plaintiff’s computers. Therefore, the

Court of Claims erred to the extent that it found that

all the software was located on third-party servers.

In addition, the Court of Claims applied a narrow

deﬁnition of the term “deliver” without examining how

and defendant dispute whether the term “deliver” includes accessing the

functionality of prewritten computer software, and the statute does not

clarify this point. Therefore, the plain and ordinary meaning of the term

is unclear, and it is proper to consult a dictionary to determine the plain

and ordinary meaning. See Aroma Wines, 303 Mich App at 447.

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the term operates in the broader context in which it is

placed in the statute. The meaning of language cannot

be divorced from the context in which it is found.

Rental Props Owners Ass’n of Kent Co v Kent Co

Treasurer, 308 Mich App 498, 508; 866 NW2d 817

(2014) (“ ‘Unless statutorily deﬁned, every word or

phrase of a statute should be accorded its plain and

ordinary meaning, taking into account the context in

which the words are used.’ ”) (citation omitted). The

phrase “delivered by any means” indicates that the

Legislature was aware that software could be pur-

chased at a store and “delivered” by tangible storage

media or purchased online and “delivered” electroni-

cally. See MCL 205.92b(o). By using the word “any,” the

Legislature made plain that the means by which the

software is delivered is immaterial. Therefore, the

Court of Claims improperly narrowed the scope of the

term “deliver” to preclude electronic delivery. See MCL

205.92b(o); Rental Props, 308 Mich App at 508. How-

ever, the Court of Claims correctly determined that the

mere transfer of information and data that was pro-

cessed using the software of the third-party businesses

did not constitute delivery by any means of prewritten

computer software. See MCL 205.92b(o). In that situ-

ation, no prewritten computer software is delivered,

and only data resulting from third-party use of soft-

ware is delivered. See id.

The majority of the transactions in this case were

not taxable under the UTA because they did not

involve the delivery of prewritten computer software

by any means. With regard to West, plaintiff never

exercised an ownership-type right or power over any

West computer software. Instead, all the code re-

mained on West’s server. West controlled the code,

maintained it, and updated it as it saw ﬁt. Plaintiff

only accessed a website that allowed it to submit

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requests to the West system that controlled the code.

Accessing West’s code in such a limited manner is not

an exercise of a right or power over the code incident to

the ownership of that code because accessing the code

in such a limited manner does not signify ownership.

Therefore, plaintiff did not use tangible personal prop-

erty with regard to West. See MCL 205.92(b); MCL

205.92b(o); WPGP1, 240 Mich App at 417-419.

The same is true for the online services provided by

Wolters Kluwer. Plaintiff accessed the Wolters Kluwer

system via a web browser, and plaintiff never had

access to any of the code that enabled the Wolters

Kluwer website and its features. Therefore, plaintiff

never used prewritten computer software from Wolters

Kluwer under the meaning of the UTA. See MCL

205.92(b); MCL 205.92b(o).

However, plaintiff did re-

ceive print materials from Wolters Kluwer, which con-

stitutes tangible personal property. See MCL

205.92(k). Plaintiff exercised a right over the print

materials incident to ownership since plaintiff received

the print materials from Wolters Kluwer, had posses-

sion over them, and was able to use them at will.

Therefore, plaintiff used tangible personal property

under the meaning of the UTA in connection with the

print materials. See MCL 205.92(b); WPGP1, 240 Mich

App at 417-419.

In regard to MSB, plaintiff’s computer system sent

data electronically to MSB, MSB processed the data,

Defendant determined that the transactions involved prewritten

computer software on the basis of the contracts between plaintiff and

the third-party companies. However, the agreements do not establish

that prewritten computer software was delivered. Instead, to the extent

that the agreements provide for the delivery of prewritten computer

software, the agreements only contemplate the delivery on a future date

and do not indicate that prewritten computer software was delivered on

the dates that the agreements were signed. See MCL 205.92b(o).

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and then MSB sent back a number indicating the

appropriate value for the building insurance. Under

this arrangement, plaintiff never had access to any of

the code that enabled MSB’s system. The same is true

for Valen. Plaintiff’s computer system sent data elec-

tronically to Valen, Valen processed the data through

its econometric model, and Valen returned a numerical

score from 1 to 20 to plaintiff. Plaintiff never had

access to any of the code that enabled Valen’s system.

Likewise, with Proxix, plaintiff queried the Proxix

database for longitude and latitude information to

identify the Kentucky municipality in which a speciﬁc

Kentucky property was located. Plaintiff never had

access to any of the code that enabled Proxix’s system.

Thus, plaintiff never used prewritten computer soft-

ware with regard to these companies. See MCL

205.92(b); MCL 205.92b(o); WPGP1, 240 Mich App at

417-419.

Similarly, TPC reviewed plaintiff’s marketing prices

and provided ideas related to branding and advertis-

ing. Harvest wrote and produced commercials for

plaintiff. MMM established websites and developed

search engine optimization queries for plaintiff. MMM

also hosted websites and implemented a pilot program

on the Internet for plaintiff. None of the three market-

ing and advertising companies delivered prewritten

computer software to plaintiff. Plaintiff never had

access to any of the code that enabled the systems of

TPC, MMM, or Harvest. Therefore, these transactions

were not subject to taxation under the UTA. See MCL

205.92(b); MCL 205.92b(o).

With Lexis-Nexis, plaintiff’s computer system sent

data electronically to Lexis-Nexis, and Lexis-Nexis

processed the data and then returned more detailed

information to plaintiff. Plaintiff never had access to

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any of the code that enabled the Lexis-Nexis system.

As for sending notices to lienholders and secured

parties, plaintiff uploaded a ﬁle to the Lexis-Nexis

server, and then Lexis-Nexis processed that ﬁle and

sent out the necessary notices. Under this arrange-

ment, plaintiff likewise never had access to any of the

code that enabled the Lexis-Nexis system. Therefore,

plaintiff did not use tangible personal property under

the meaning of the UTA with regard to Lexis-Nexis.

See MCL 205.92(b); MCL 205.92b(o); WPGP1, 240

Mich App at 417-419.

Plaintiff never had access to any ACORD code be-

cause there is no ACORD code. The “data standards

information” that ACORD provides is not “computer

software” because it does not “cause a computer . . . to

perform a task.” MCL 205.92b(c). Rather, all plaintiff

has is access to a list of standards that help it and the

other ACORD members use a common coding system

for their data ﬁelds. Similarly, plaintiff contracted with

IVANS to use its secure communication infrastructure,

which IVANS built and maintains. Plaintiff never had

access to any code that enabled the IVANS system, and

plaintiff used its own code to access the IVANS system.

Therefore, plaintiff did not use tangible personal prop-

erty under the meaning of the UTA with regard to

IVANS and ACORD. See MCL 205.92(b); MCL

205.92b(o); WPGP1, 240 Mich App at 417-419.

Finally, plaintiff entered into a number of contracts

with software companies to provide maintenance and

support services. The transactions with Data Center

and Duck Creek involved software maintenance. De-

fendant failed to present evidence in the Court of

Claims showing that prewritten computer software

was delivered to plaintiff in connection with the trans-

actions with Data Center and Duck Creek. Instead,

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plaintiff presented evidence that it contracted with the

companies for software support and maintenance.

Therefore, the support and maintenance transactions

were not subject to taxation under the UTA since they

involved the provision of services, rather than the

delivery by any means of prewritten computer soft-

ware. See MCL 205.92(b); MCL 205.92b(o). As noted,

plaintiff conceded in its motion for summary disposi-

tion that the transactions involving GT Software and

Software AG included the purchase of software. How-

ever, plaintiff argued that the invoices included

amounts for maintenance and support, and plaintiff

requested a refund with regard to these amounts.

Plaintiff was entitled to a refund with regard to these

amounts because the cost for maintenance and support

was separately listed in the agreements between the

parties and no prewritten computer software was de-

livered to plaintiff in exchange for the amount taxed

for software maintenance and support. MCL 205.92(b);

MCL 205.92b(o).

However, plaintiff received prewritten computer

software that was delivered to it with regard to several

of the transactions at issue in this case. With regard to

WebEx, plaintiff purchased access to a network that is

designed and used for web-conferencing. Plaintiff ac-

cessed the WebEx system via the WebEx website and

never had access to any code that enabled the WebEx

system. See MCL 205.92(b); MCL 205.92b(o). However,

WebEx provided a support center, which was down-

loaded onto several computers and aided the user in

ﬁxing problems. The support center constituted com-

puter software because it was a set of coded instruc-

tions designed to cause a computer or automatic data-

processing equipment to perform a task. See MCL

205.92b(c). The prewritten computer software was

delivered to plaintiff since it was downloaded onto

76 313 M

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plaintiff’s computers at plaintiff’s request. See MCL

205.92b(o). Plaintiff had control over the control center

when it used the program. It did not merely access the

functionality of the software. See id. Therefore, plain-

tiff exercised an ownership-type right or power over

the support center because the software was installed

on plaintiff’s computers and plaintiff was able to con-

trol when and how the software was used. See MCL

205.92(b); WPGP1, 240 Mich App at 417-419.

Plaintiff also used prewritten computer software

provided by RTL. The software was delivered since

plaintiff had actual possession of the software. Plaintiff

ran the software on its own computers and used the

software at its own will. Under these circumstances,

plaintiff exercised an ownership-type right or power

over the software from RTL by taking possession of the

software, physically installing the software on its com-

puters, and using the software as it wished. See MCL

205.92(b); MCL 205.92b(o); WPGP1, 240 Mich App at

417-419. Plaintiff did not merely access the function-

ality of the software. See WPGP1, 240 Mich App at

417-419. Plaintiff argues that defendant taxed the

remaining balance on an invoice for maintenance of

the RTL software, rather than for the software itself.

RTL sent plaintiff an initial invoice with regard to the

transaction at issue, and RTL later sent plaintiff an

invoice for the remaining balance on the initial invoice.

The ﬁrst entry on the initial invoice was for software,

and the remaining entries were for support. The in-

voice for the remaining balance did not separately list

the amount owed for maintenance and support. Thus,

the transaction at issue involved the delivery by any

means of prewritten computer software since prewrit-

ten computer software was delivered to plaintiff, and

there is no indication that the transaction that was

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taxed only involved the provision of services. See MCL

205.92(b); MCL 205.92b(o); WPGP1, 240 Mich App at

417-419.

With regard to LogMeIn, plaintiff used a remote

access agent that LogMeIn supplied and that was

necessary to run locally on plaintiff’s machines in order

to access the network and its features. The local client,

or desktop agent, was installed on each computer. The

desktop agent constituted prewritten computer soft-

ware because it included a set of coded instructions

designed to cause the computer to perform a task. See

MCL 205.92b(c). The software was delivered because

plaintiff had actual possession of the desktop agent.

Plaintiff used the software since it ran the software on

its own computers and could control the software at its

own will. See MCL 205.92(b); WPGP1, 240 Mich App at

417-419. Plaintiff also received a number of ﬂash

drives and thumb drives from LogMeIn, which also

constitute tangible personal property. See MCL

205.92(k). Under these circumstances, plaintiff exer-

cised an ownership-type right or power over tangible

personal property by taking possession of the property,

physically installing the software on its computers,

and using the software and drives as it wished. See

MCL 205.92(b). Therefore, plaintiff used the tangible

personal property provided by LogMeIn under the

meaning of the term in the UTA. See id.

V. INCIDENTAL-TO-SERVICE TEST

Although plaintiff exercised a right or power over

tangible

personal property, the transfer of tangible

personal property occurred during the rendering of

professional services. The test for determining

whether a business relationship that involves both the

transfer of personal property and the provision of

78 313 M

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56 [Oct

services constitutes a nontaxable service or a taxable

property transaction is the incidental-to-service test.

Catalina, 470 Mich at 24. “The ‘incidental to service’

test looks objectively at the entire transaction to deter-

mine whether the transaction is principally a transfer

of tangible personal property or a provision of a ser-

vice.” Id. at 24-25. The Michigan Supreme Court in

Catalina adopted the following six-factor test for de-

termining whether the transfer of tangible personal

property is incidental to the rendering of professional

services:

In determining whether the transfer of tangible prop-

erty

was incidental to the rendering of personal or profes-

sional services, a court should examine what the buyer

sought as the object of the transaction, what the seller or

service provider is in the business of doing, whether the

goods were provided as a retail enterprise with a proﬁt-

making motive, whether the tangible goods were available

for sale without the service, the extent to which intangible

services have contributed to the value of the physical item

that is transferred, and any other factors relevant to the

particular transaction. [Id. at 26.]

[4]

The software and other tangible personal property

provided

to plaintiff were incidental to the services

that the companies provided to plaintiff. The ﬁrst

factor concerns what plaintiff sought as the object of

the transactions. From WebEx, plaintiff primarily

sought access to networking infrastructure. With re-

The Michigan Supreme Court articulated the incidental-to-service

test in the context of a challenge under the GSTA, rather than the UTA.

See Catalina, 470 Mich at 24-25. However, neither party challenges

whether the incidental-to-service test applies with regard to the UTA.

Furthermore, the test that the Michigan Supreme Court articulated

applies broadly to all business relationships that involve both the

provision of services and the transfer of personal property. See id. at 24.

The Court did not limit the standard to transactions under the GSTA.

See id. at 14, 24-26.

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gard to RTL, plaintiff sought a system that could

capture images of checks and stubs, validate the data

on the checks and stubs, and compare it to other data

to minimize the task of user veriﬁcation. For the

transactions with Wolters Kluwer, plaintiff sought

online information services. However, with regard to

LogMeIn, plaintiff sought the software and drives that

were designed to allow remote computer access, as well

as the web-based access. Thus, this factor weighs in

favor of plaintiff for every transaction except for the

transaction with LogMeIn. See Catalina, 470 Mich at

26.

The second factor concerns what the seller or service

provider is in the business of doing. WebEx provides

access to networking infrastructure that it maintains.

RTL is in the business of streamlining remittance

processing, reconciliation, and research. LogMeIn is in

the business of providing a system that is designed to

allow remote computer access. Wolters Kluwer is in the

business of providing information services. Thus, all of

the businesses provide services. Therefore, this factor

weighs in favor of plaintiff. See Catalina, 470 Mich at

26.

The third factor is whether the tangible personal

property was provided as part of a retail enterprise

with a proﬁt-making motive. All the transactions that

involved the transfer of personal property occurred

with for-proﬁt retail enterprises. However, each busi-

ness had a motive to proﬁt from providing a service to

plaintiff, rather than from providing tangible personal

property to plaintiff. With regard to RTL, the motive of

the company is to provide payment and remittances

services. The software that was downloaded on plain-

tiff’s computers was only an insigniﬁcant part of the

overall transaction. WebEx has a motive to provide

80 313 M

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56 [Oct

web-based conference services, and the support center

is a minor part of the larger enterprise. Wolters Kluwer

also has a motive to provide information services,

rather than tangible property. The issue is a closer call

with regard to LogMeIn. LogMeIn provides desktop

agents and thumb or ﬂash drives to users in order to

facilitate the remote access program. However, the

required software was minimal in light of the extensive

computing and networking infrastructure that Log-

MeIn maintains so that the software can operate

properly. Therefore, this factor weighs in plaintiff’s

favor as well. See id.

The fourth factor is whether the tangible goods were

available for sale without the service. For all the

transactions, there is no indication that plaintiff could

purchase any underlying tangible personal property

without purchasing the services. Instead, plaintiff ob-

tained the tangible personal property only when it

contracted for services. There is no indication that any

of the companies provided software or other tangible

personal property apart from the services it provided.

Thus, this factor weighs in favor of plaintiff. See

Catalina, 470 Mich at 26. The ﬁfth factor is the extent

to which intangible services contributed to the value of

the physical item that was transferred. The prewritten

computer software and other tangible personal prop-

erty provided had no value without the associated

services. The only tangible personal property that may

have had some value apart from the services was the

print materials provided by Wolters Kluwer. Therefore,

this factor weighs in favor of plaintiff for each trans-

action except the transaction with Wolters Kluwer. See

id.

We do not ﬁnd any other factor relevant in determining whether the

transfer of tangible personal property was incidental to the provision of

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Considering all the factors together, the transfer of

tangible personal property was incidental to the ser-

vices that plaintiff received. With regard to Wolters

Kluwer, RTL, LogMeIn, and WebEx, plaintiff con-

tracted with the businesses in order to receive services,

and the transfer of the tangible personal property was

merely incidental to the provision of services. There is

no indication that plaintiff could purchase the software

or other tangible personal property independently of

the services, and the services gave value to the soft-

ware and other tangible personal property. Therefore,

the transactions were not taxable under the UTA. See

id. Accordingly, the Court of Claims did not err by

granting plaintiff’s motion for summary disposition.

We need not address the other issues raised in defen-

dant’s brief on appeal since we conclude that the Court

of Claims properly determined that the transactions

were not subject to taxation under the UTA.

Afﬁrmed. No costs, a public question being involved.

See MCR 7.219(A).

ADOLA

, P.J., and J

ANSEN

and B

ECKERING

, JJ., con-

curred.

services as the ﬁrst ﬁve factors encompass the main features of each

transaction. See Catalina, 470 Mich at 26.

82 313

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56 [Oct

CHELIK v CAPITOL TRANSPORT, LLC

Docket No. 322349. Submitted October 6, 2015, at Lansing. Decided

October 27, 2015, at 9:05 a.m.

Michael Chelik brought an action in the Ingham Circuit Court

against Capitol Transport, LLC, and Sparrow Hospital. Chelik

fell, injuring his left arm, and was taken to Sparrow for treat-

ment. He was admitted to the hospital around midnight. Staff at

Sparrow advised Chelik that he would need to see an orthopedic

surgeon the next day, discharged Chelik, and called Capitol

Transport, a taxicab company, to pick Chelik up and take him to

the hotel where he was staying. As the taxicab driver attempted

to help Chelik into the taxicab, he fell again, injuring his right

arm. Chelik’s claim against Capitol Transport was settled, but his

claim against Sparrow—that Sparrow was negligent when it

failed to assist him into the taxicab—proceeded to a jury trial. At

the close of Chelik’s proofs, Sparrow moved for a directed verdict,

asserting that it had no duty to assist a discharged patient into a

waiting vehicle and that Chelik had failed to produce any

evidence of causation because his inability to work stemmed from

the original injury to his left arm. The court, Clinton Canady III,

J., granted Sparrow’s motion. Chelik moved for reconsideration,

which the court denied. Chelik appealed and Sparrow cross-

appealed.

The Court of Appeals held:

A negligence action may only be maintained if a legal duty

exists that requires the defendant to conform to a particular

standard of conduct in order to protect others against unreason-

able risks of harm. Before a duty may be imposed, there must be

a relationship between the parties and the harm must have been

foreseeable. Under Michigan common law, generally there is no

duty for one person to aid or protect another, absent a special

relationship based on control. In this case, Sparrow had no

control over Chelik. Sparrow had discharged Chelik before he fell

and injured his right arm. While Sparrow called for the taxicab at

Chelik’s request, this did not constitute control over Chelik. As a

result, at the time of the injury, there was no special relationship

between Sparrow and Chelik, and Chelik failed to establish that

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Sparrow had any duty to act on his behalf at the time he

sustained the injury to his right arm. In addition, before Chelik

was discharged, staff at Sparrow evaluated Chelik and deter-

mined that that his condition was stable, and he passed a fall-risk

assessment. Accordingly, it was not reasonably foreseeable that

Chelik would fall and injure himself while being assisted into the

taxicab. Consequently, for this reason too, Sparrow did not have a

duty to assist Chelik into the taxicab. The trial court correctly

granted Sparrow’s motion for a directed verdict.

Afﬁrmed.

OEKSTRA

, J., concurred in the result only.

CTIONS —

EGLIGENCE —

UTY —

SSISTING A

ISCHARGED

ATIENT WITH

RANSPORTATION

A hospital does not generally have a legal duty to assist a dis-

charged patient into a vehicle.

McCarthy Law Group PC (by Timothy H. McCarthy

Jr.) for Michael Chelik.

Kitch Drutchas Wagner Valitutti & Sherbrook (by

Susan Healy Zitterman and Richard J. Suhrheinrich)

for Sparrow Hospital.

Before: B

OONSTRA

, P.J., and S

AAD

and H

OEKSTRA

, JJ.

AAD

, J.

I. NATURE OF THE CASE

After plaintiff broke his arm in a fall and after

defendant Sparrow Hospital

administered medical

treatment, Sparrow advised plaintiff that it could do

no more for him, recommended that he see a specialist

the next day, and discharged plaintiff from the hospi-

tal. Though plaintiff preferred to stay the night at the

Because defendant Capitol Transport, L.L.C., was dismissed from

the suit before trial began, Sparrow Hospital is the only defendant at

issue in this appeal.

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hospital, a doctor advised him that the hospital facili-

ties could not be used for mere overnight rest and

therefore a cab was called to take him back to his hotel.

Hospital personnel took plaintiff by wheelchair to the

waiting room, where plaintiff waited for his cab, by

himself. Upon arrival at the hospital, the cab driver

assisted plaintiff out of the wheelchair and attempted

to help plaintiff into the cab whereupon plaintiff fell

once again and injured his other arm. Thereafter,

plaintiff saw doctors for his broken arms. Plaintiff sued

Sparrow for his injuries. Notably, however, plaintiff did

not sue Sparrow for medical malpractice either for

Sparrow’s treatment or discharge of him. Rather,

plaintiff claimed that Sparrow had breached a

common-law duty to assist plaintiff with his transpor-

tation after Sparrow discharged him from the hospital.

After the close of plaintiff’s proofs, the trial court

granted Sparrow’s motion for directed verdict on the

grounds that Sparrow had no common-law duty to

assist a discharged patient, such as plaintiff, with

transportation from the hospital and that, were the

court to ﬁnd such a duty, there was no evidence that

Sparrow’s alleged breach was the proximate cause of

plaintiff’s damages.

For reasons that we explain below, we hold that

Michigan law does not impose a duty on a hospital to

assist a discharged patient with transportation. And,

because there is no duty, we need not address the

causation issue, but we note that, were we to decide

this issue, we would hold that plaintiff failed to prove

that any of his damages were caused by Sparrow.

II. BASIC FACTS

In November 2010, plaintiff lived in New Jersey,

worked

for Disney in its Broadway musical touring

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division, and, as a member of the touring production,

performed at the Wharton Center on the campus of

Michigan State University in East Lansing. After an

evening performance, plaintiff, who weighed 345

pounds, fell while walking to his car. The fall broke

plaintiff’s left elbow and left forearm.

It was near midnight by the time plaintiff was

admitted into the emergency department at Sparrow.

Unable to do anything for plaintiff immediately, the

Sparrow staff molded a splint for his left arm and told

him to see an orthopedic surgeon the following day.

Plaintiff testiﬁed that he did not want to be discharged

because he was tired; he did not want to travel the 20

or 25 minutes to his hotel and preferred to sleep at the

hospital. The doctor responded that the hospital could

not use a bed as a place to spend the night and

ultimately discharged plaintiff at 5:55 a.m. The medi-

cal records show that the doctor’s decision to discharge

plaintiff was based on the following ﬁndings: plaintiff’s

condition had improved, plaintiff’s pain was controlled,

an exam of plaintiff showed him to be “stable,” and a

repeat exam also showed that plaintiff was “stable.”

Furthermore, the nurse in charge conducted a “fall risk

assessment” and, after watching plaintiff stand up by

himself and walk across the room, concluded that

plaintiff passed the assessment. When discharged,

plaintiff was offered a wheelchair, which he used.

A technician in the emergency department pushed

plaintiff in the wheelchair to the emergency room

waiting area and then left. Soon thereafter, the cab

driver arrived and pushed plaintiff to the vehicle.

Plaintiff was concerned with the driver’s ability to

effectively assist, but the driver reassured him that he

had done this before and “don’t worry about it.” After

clearing out room in the front passenger seat, plaintiff

86 313 M

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asked the driver if the wheelchair was locked, and the

driver replied that “Yeah, it’s locked” and “I got you.”

With the assistance of the driver, plaintiff pushed

himself to a standing position, but he immediately felt

wobbly and went back to sit down. But plaintiff felt

that the chair was no longer in place because the driver

had already moved it away, so instead of falling back,

plaintiff pushed himself into the front of the vehicle

and fell into the passenger compartment’s foot well on

his right side. This fall resulted in injuries to plaintiff’s

right elbow. X-rays taken later that day revealed that

plaintiff’s right elbow was now broken and his left arm

had the same injuries as before.

A few days later, plaintiff underwent surgery for his

left arm, and two days after that, surgery was per-

formed on his right elbow. These surgeries left plaintiff

in a precarious state because he could not use either of

his arms. After returning to his home in New Jersey,

plaintiff saw an orthopedic surgeon, who prescribed six

weeks of physical therapy for the right arm. After that

six-week session was complete, the plan was for

therapy to focus on the more severely injured left arm.

After the therapy on the right arm, plaintiff was able to

do “normal” things with it, but he nevertheless could

not work anymore because of his inability to use his

left arm.

In his suit, plaintiff alleged negligence on the part of

Sparrow in failing to assist him into the taxi cab.

Notably, he did not claim malpractice regarding his

treatment or discharge at Sparrow. At the close of

plaintiff’s proofs, Sparrow moved for directed verdict

on two grounds. First, Sparrow argued that it had no

duty to assist a discharged patient into a waiting

vehicle. Second, Sparrow argued that plaintiff failed to

present any evidence of causation. Speciﬁcally, the

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evidence indicated that plaintiff could no longer work

because he could no longer use his left arm and elbow.

But Sparrow claimed that plaintiff never produced

any medical testimony explaining how plaintiff’s

right elbow injury—the injury at issue from the cab

incident—contributed to his inability to work. After

hearing arguments from both sides, the trial court

granted Sparrow’s motion based on a lack of causa-

tion evidence.

Plaintiff moved for reconsideration. The trial court

denied plaintiff’s motion but stated that “[a]lthough

the Court did give a detailed rationale as to why a

directed verdict would have been appropriate regard-

ing causation and damages, the primary issue and

determining factor in this case was that Sparrow did

not owe Plaintiff a duty.” The court noted that the

evidence established that Sparrow did not have a

policy requiring employees to assist discharged pa-

tients into awaiting vehicles and there also was no

evidence that Sparrow assumed the responsibility of

assisting such patients into vehicles.

III. ANALYSIS

On appeal, plaintiff’s sole argument is that the trial

court

erred in its determination that Sparrow did not

have a duty to assist plaintiff into the taxi cab. We

disagree.

In a negligence analysis, the question of whether a

duty exists is a question of law that we review de novo.

Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489

Mich 157, 162; 809 NW2d 553 (2011). Additionally,

decisions on a motion for directed verdict are reviewed

de novo as well. Sniecinski v Blue Cross & Blue Shield

of Mich, 469 Mich 124, 131; 666 NW2d 186 (2003).

When deciding a motion for directed verdict, the evi-

88 313 M

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dence and all legitimate inferences are reviewed in the

light most favorable to the nonmoving party. Id. Such a

motion “should be granted only if the evidence viewed

in this light fails to establish a claim as a matter of

law.” Id.

To establish a prima facie case of negligence, a plaintiff

must

prove the following elements: (1) the defendant owed

the plaintiff a legal duty, (2) the defendant breached the

legal duty, (3) the plaintiff suffered damages, and (4) the

defendant’s breach was a proximate cause of the plaintiff’s

damages. [Loweke, 489 Mich at 162.]

Regarding the element of duty, “[a] negligence action

may

only be maintained if a legal duty exists which

requires the defendant to conform to a particular

standard of conduct in order to protect others against

unreasonable risks of harm.” Riddle v McLouth Steel

Prod Corp, 440 Mich 85, 96; 485 NW2d 676 (1992)

(emphasis added); see also Prosser & Keeton, Torts

(5th ed), § 53, p 356 (deﬁning “duty” as “an obligation,

to which the law will give recognition and effect, to

conform to a particular standard of conduct toward

another”) (emphasis added). Because the question of

whether the common law, as a matter of public policy,

ought to impose a duty on one for the beneﬁt of another

necessarily involves a balancing of interests and soci-

etal costs and prudence calls for consistency in appli-

cation, this is a question of law, which courts, not juries

decide. See In re Certiﬁed Question from Fourteenth

Dist Court of Appeals of Texas, 479 Mich 498, 505; 740

NW2d 206 (2007); Terrien v Zwit, 467 Mich 56, 66-67;

648 NW2d 602 (2002); Charles Reinhart Co v Wini-

emko, 444 Mich 579, 601; 513 NW2d 773 (1994) (opin-

ion by R

ILEY,

J.); Prosser & Keeton, § 37, p 236 (stating

that deciding on the existence of a duty requires

“reference to the body of statutes, rules, principles and

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precedents which make up the law; and it must be

determined only by the court”). As explained by our

Supreme Court:

Because the ultimate inquiry in determining whether a

duty should be imposed involves balancing the social

beneﬁts of imposing a duty with the social costs of impos-

ing that duty, we cannot decide whether a duty should be

imposed without assessing the competing policy consider-

ations. We must be concerned with whether it is appropri-

ate public policy to impose liability. In ﬁxing the bounds of

duty, not only logic and science, but policy play an impor-

tant role. There is a responsibility to consider the larger

social consequences of the notion of duty and to corre-

spondingly tailor that notion so that the illegal conse-

quences of wrongs are limited to a controllable degree. In

determining whether a duty exists, courts must be mind-

ful of the precedential effects of their rulings, and limit the

legal consequences of wrongs to a controllable degree.

Moreover, any extension of the scope of duty must be

tailored to reﬂect accurately the extent that its social

beneﬁts outweigh its costs. [In re Certiﬁed Question, 479

Mich at 518-519 (quotation marks, citations, brackets, and

ellipses omitted).]

Furthermore, leaving the question of duty to juries to

decide

would result in inconsistent outcomes even

when juries were confronted with factually indistin-

guishable circumstances. See Moning v Alfono, 400

Mich 425, 435; 254 NW2d 759 (1977). This would be an

untenable situation because people could never know

with any certainty if they had any particular legal

duty.

Factors for a court to consider when deciding

whether to impose a duty include the following: “the

relationship of the parties, the foreseeability of the

harm, the burden on the defendant, and the nature of

the risk presented.” Hill v Sears, Roebuck & Co, 492

Mich 651, 661; 822 NW2d 190 (2012) (citation and

90 313 M

ICH

83 [Oct

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quotation marks omitted). Although the relationship of

the parties has been described as the most important

factor, In re Certiﬁed Question, 479 Mich at 505, the

foreseeability of the harm is just as important. That is

because “ ‘[b]efore a duty can be imposed, there must

be a relationship between the parties and the harm

must have been foreseeable.’ ” Hill, 492 Mich at 661,

quoting In re Certiﬁed Question, 479 Mich at 509

(alteration in original; emphasis added). Consequently,

“[i]f either of these two factors is lacking, then it is

unnecessary to consider any of the remaining factors.”

Hill, 492 Mich at 661.

Here, plaintiff asserts that Sparrow was negligent

through nonfeasance, which is passive inaction or the

failure to actively protect others from harm, and not

misfeasance, which is active misconduct causing per-

sonal injury. Williams v Cunningham Drug Stores, Inc,

429 Mich 495, 498; 418 NW2d 381 (1988). That is,

plaintiff alleges that Sparrow had a duty to assist or

aid plaintiff but failed to do so. Under Michigan com-

mon law, generally there is no duty for one person to

aid or protect another, absent a special relationship

based on control. Id. at 498-499. “The rationale behind

imposing a duty to protect in these special relation-

ships is based on control. In each situation one person

entrusts himself to the control and protection of an-

other, with a consequent loss of control to protect

himself.” Id. Here, Sparrow had no control over plain-

tiff. Sparrow had already discharged plaintiff when

plaintiff attempted to get into a taxi cab parked outside

the hospital. While Sparrow called for the cab at

plaintiff’s request, this did not constitute control over

plaintiff. As a result, at the time of the injury, there

was no special relationship between Sparrow and

plaintiff, and clearly Sparrow had no control over

plaintiff. Therefore, we hold that plaintiff has failed to

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establish that Sparrow had any duty to act on behalf of

plaintiff at the time plaintiff sustained his injury when

he fell into the cab.

Furthermore, the analysis on the foreseeability fac-

tor is fatal to plaintiff’s claim as well. Again, plaintiff

was evaluated before being discharged, and it was

determined that his condition had improved, his pain

was controlled, and two exams showed that he was

“stable.” Additionally, plaintiff had passed a “fall risk

assessment” after being able to stand up and walk by

himself across the room. These facts reveal that plain-

tiff was in better condition than he was when he

arrived at the hospital and was capable of ambulating

from a seated position. In light of these facts, it was not

reasonably foreseeable that plaintiff would injure him-

self while being assisted into a cab. Consequently, we

hold that Sparrow did not have a legal duty to assist

plaintiff into an awaiting vehicle. Therefore, the trial

court properly held that Sparrow had no duty to

plaintiff and correctly granted a directed verdict.

A holding to the contrary would appear to be unprec-

edented. Plaintiff has failed to identify any caselaw in

Michigan, or any other state, that provides that a

hospital has a legal duty to assist its discharged

patients into vehicles, and our research has not uncov-

ered such precedent. In fact, what caselaw exists

directly supports the conclusion that no such duty

exists. See, e.g., Cameron v New York, 322 NYS2d 562,

566; 37 AD2d 46 (1971) (“[T]he law does not impose

upon a hospital the continuing duty to exercise a

parental role over discharged patients.”). The reason is

clear. It would be an unreasonable imposition upon

hospitals and health-care providers for the law to

require that they aid every properly discharged patient

with transportation. The legal obligations thus im-

92 313 M

ICH

83 [Oct

PINION OF THE

OURT

posed would be endless, unpredictable, and therefore

unreasonable. A health-care provider has no common-

law legal duty to assist a discharged patient with

transportation.

Afﬁrmed. Sparrow, as the prevailing party, may tax

costs

pursuant to MCR 7.219.

OONSTRA

, P.J., concurred with S

AAD

, J.

OEKSTRA

, J. (concurring in result). I concur in the

result only.

We also note that much of plaintiff’s testimony focused on the fact

that he thought he was not as capable as Sparrow had determined

before he was discharged. However, to the extent that Sparrow did

misevaluate plaintiff’s condition at discharge, that would be a medical

malpractice claim—not the ordinary negligence claim that is the issue in

the instant case. Accordingly, the fact that plaintiff avers that he was

not stable and not able to keep his balance after being discharged is not

relevant for the pertinent analysis.

Although we have decided this case on the dispositive issue of duty,

we note that even if a duty existed, reversal would not be required

because, as the trial court alternatively ruled, there was no evidence

that the injuries plaintiff suffered at Sparrow caused any of the

work-loss damages he sought. Those damages, instead, were solely

caused by plaintiff’s prior injury to his left arm.

Sparrow ﬁled a “cross-appeal” and in its raised issue claims that

plaintiff’s brief on appeal is inadequate to present his issue to this Court

because it simply incorporated by reference plaintiff’s prior submission

to this Court in Docket No. 319518, in which Sparrow was the appellant

and sought leave to appeal the trial court’s denial of its motion for

summary disposition. Notwithstanding Sparrow’s label to the contrary,

this issue is not a “cross-appeal.” It does not appeal or challenge

anything that happened at the trial court. As such, we simply have

treated it as an alternative argument for this Court to rule against

plaintiff in his appeal. However, we decline to deem plaintiff’s appeal

waived or abandoned on this basis, especially in light of the fact that

plaintiff did provide a thorough brieﬁng in his reply brief.

2015] C

HELIK V

APITOL

RANSPORT

PINION BY

OEKSTRA

, J.

MEEMIC INSURANCE CO v MICHIGAN MILLERS

MUTUAL INSURANCE

Docket No. 322072. Submitted October 14, 2015, at Lansing. Decided

October 27, 2015, at 9:10 a.m. Leave to appeal denied 499 Mich

935.

MEEMIC Insurance Company brought an action in the Wexford

Circuit Court against Rick Putvin, Kip Cergenul, and their

automobile no-fault insurers, Michigan Millers Mutual Insurance

Company and Auto-Owners Insurance Company, as a subrogee to

recover the losses that two of its insureds incurred from a ﬁre in

a commercial storage facility. The ﬁre occurred when Putvin and

Cergenul were in the storage facility ﬂushing the fuel lines of a

vehicle owned by Putvin’s father, John Putvin, and the fuel

vapors ignited. Plaintiff alleged that Rick Putvin and Cergenul

could be held liable for their negligence under Michigan’s no-fault

act, MCL 500.3101 et seq. After Rick Putvin and Cergenul

presented evidence that John Putvin had not driven the stored

vehicle in more than one year and had purchased comprehensive

coverage for it through State Farm Mutual Auto Insurance

Company, plaintiff stipulated to dismiss its claims against Rick

Putvin, Cergenul, and their no-fault insurers. Plaintiff then

amended its complaint to add a claim against Home-Owners

Insurance Company, which had issued a no-fault policy to John

Putvin for the vehicles that he drove, although it did not insure

the stored vehicle. Plaintiff alleged that, given that John Putvin

was the owner or registrant of the vehicle involved in the ﬁre,

Home-Owners was liable to pay property protection insurance

beneﬁts for the losses caused by the ﬁre under MCL 500.3121 and

MCL 500.3125. Home-Owners moved for summary disposition of

plaintiff’s claim against it under MCR 2.116(C)(10), arguing that

when coverage is not required under Michigan’s no-fault act, the

terms of the policy control, and because the stored vehicle was not

required to have property protection insurance under the no-fault

act and the Home-Owners policy unambiguously excluded the

vehicle from coverage, Home-Owners had no obligation to cover

the losses arising from the vehicle’s maintenance. The court,

William M. Fagerman, J., granted the motion, and plaintiff

appealed.

94 313

ICH

94 [Oct

The Court of Appeals held:

The trial court did not err when it determined that, as a

matter of law, Home-Owners had no obligation to cover the loss at

issue. Under MCL 500.3101(1), every owner or registrant of a

motor vehicle required to be registered in this state must main-

tain security for payment of beneﬁts under personal protection

insurance, property protection insurance, and residual liability

insurance. However, during a period in which the motor vehicle is

not driven or moved upon a highway, an insurer may allow the

insured owner or registrant of the motor vehicle to delete a

portion of the coverages under the policy and maintain the

comprehensive coverage portion of the policy in effect. Because

John Putvin did not drive or move the vehicle upon a highway

during the period at issue, he was not required to maintain

security for payment of beneﬁts under personal protection insur-

ance, property protection insurance, and residual liability insur-

ance, and he instead elected to insure his vehicle with a policy

that provided comprehensive coverage alone. Construing MCL

500.3101(1) in harmony with MCL 500.3125 led to the conclusion

that an insurer of an owner of a motor vehicle involved in an

accident was not statutorily required to pay property protection

insurance beneﬁts to a person suffering accidental property

damage if the motor vehicle involved in the accident was not

driven or moved upon a highway and the owner or registrant

elected to forgo that coverage in favor of comprehensive coverage.

Because the coverage was optional in such cases, whether the

policy provided coverage had to be determined from the policy

itself. Under the plain terms of the policy at issue, Home-Owners

was not liable to pay beneﬁts for accidental damage to tangible

property arising out of the ownership, operation, maintenance, or

use of the stored vehicle. Accordingly, the trial court did not err by

granting defendant’s motion for summary disposition.

Afﬁrmed.

NSURANCE —

-F

AULT —

ROPERTY

ROTECTION

NSURANCE —

EHICLES

RIVEN OR

OVED

PON A

IGHWAY

An insurer of an owner of a motor vehicle involved in an accident is

not statutorily required to pay property protection insurance

beneﬁts to a person suffering accidental property damage if the

owner of the vehicle was not required to maintain security for

payment of beneﬁts under personal protection insurance, prop-

erty protection insurance, and residual liability insurance be-

cause the vehicle was not being driven or moved upon a highway

2015] MEEMIC

ICH

ILLERS

during that period and the owner or registrant elected to forgo

such security in favor of comprehensive coverage (MCL

500.3101(1); MCL 500.3125).

Hewson & Van Hellemont, PC (by Andy

J. Van-

Bronkhorst and Nicholas S. Ayoub), for plaintiff.

Willingham & Coté, PC (by John A. Yeager and

Curtis R. Hadley), for defendant.

Before: M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

JJ.

URIAM

. In this insurance coverage dispute,

plaintiff, MEEMIC Insurance Company, appeals by

right the trial court’s opinion and order granting the

motion for summary disposition by defendant, Home-

Owners Insurance Company, and dismissing

MEEMIC’s claim under MCR 2.116(C)(10). We con-

clude that the trial court did not err when it deter-

mined that—as a matter of law—Home-Owners had

no obligation to cover the loss at issue. Accordingly,

we afﬁrm.

I. BASIC FACTS

The facts of this case are undisputed. John Putvin

owned

several cars, including a 1966 Corvette, which

he stored in a commercial storage facility. As a result of

his declining health, John Putvin had not driven the

Corvette in 2012 or 2013. Catherine Eppard and Kevin

Byrnes stored personal property at this same storage

facility.

In April 2013, Rick Putvin (John Putvin’s son) and

Kip James Cergenul went to the storage facility to

perform maintenance on John Putvin’s automobiles

and prepare them for eventual sale. Rick Putvin and

96 313 M

ICH

94 [Oct

Cergenul were ﬂushing the Corvette’s fuel lines when

gasoline vapors ignited and caused a ﬁre. The ﬁre

destroyed more than $125,000 in personal property

that Eppard and Byrnes stored at the facility.

MEEMIC insured Eppard and Byrnes against ﬁre

losses and compensated them.

In October 2013, MEEMIC, as the subrogee of Ep-

pard and Byrnes, sued Rick Putvin and Cergenul,

along with their automobile no-fault insurers, Michi-

gan Millers Mutual Insurance Company and Auto-

Owners Insurance Company, to recover its losses.

MEEMIC alleged, in relevant part, that Rick Putvin

and Cergenul could be held liable for their negligence

under Michigan’s no-fault act. See MCL 500.3101;

MCL 500.3135(3). After Rick Putvin and Cergenul

presented evidence that John Putvin had not driven

the Corvette in more than one year and had purchased

comprehensive coverage for it through State Farm

Mutual Auto Insurance Company, which was permit-

ted under MCL 500.3101(1), MEEMIC stipulated to

dismiss its claims against Rick Putvin, Cergenul, and

their no-fault insurers in January 2014. However, the

trial court gave MEEMIC permission to amend its

complaint to add a claim against Home-Owners Insur-

ance Company.

In January 2014, MEEMIC ﬁled its ﬁrst amended

complaint. It alleged that Home-Owners issued an

automobile no-fault policy to John Putvin, which cov-

ered the automobiles that he continued to drive.

MEEMIC also alleged that, given that John Putvin

was the owner or registrant of the Corvette involved in

the ﬁre, Home-Owners was liable to pay property

protection insurance beneﬁts for the losses caused by

the ﬁre under MCL 500.3121 and MCL 500.3125, even

though it did not insure the Corvette.

2015] MEEMIC

ICH

ILLERS

In February 2014, Home-Owners moved for sum-

mary disposition of MEEMIC’s claim against it under

MCR 2.116(C)(10). Home-Owners argued that, when

coverage is not required under Michigan’s no-fault act,

the terms of the policy control. Inasmuch as it was

undisputed that the Corvette did not have to have

property protection insurance under Michigan’s no-

fault act and the policy that Home-Owners issued to

John Putvin unambiguously excluded the Corvette

from coverage, Home-Owners maintained that it had

no obligation to cover the losses arising from the

Corvette’s maintenance.

The trial court determined that the priority provi-

sion stated under MCL 500.3125 did not compel Home-

Owners to pay for the loss at issue. The court reasoned

that Home-Owners had no statutory obligation to pay

for losses involving the Corvette because the Legisla-

ture authorized insurers to allow owners or registrants

of a motor vehicle that is not driven or moved upon a

highway to delete the coverage required under the

no-fault act and maintain comprehensive coverage.

See MCL 500.3101(1). The trial court granted Home-

Owners’ motion for summary disposition and dis-

missed MEEMIC’s claim on that basis.

MEEMIC now appeals in this Court.

II. MANDATORY NO-FAULT INSURANCE BENEFITS

STANDARDS OF REVIEW

On appeal, MEEMIC argues that the trial court erred

when it determined that Home-Owners could lawfully

exclude coverage for unlisted motor vehicles such as the

Corvette and granted Home-Owners’ motion for sum-

mary disposition on that basis. Because MCL 500.3125

unambiguously obligated Home-Owners to cover the

98 313 M

ICH

94 [Oct

loss at issue as an insurer of an owner or registrant of a

vehicle involved in the accident, MEEMIC maintains,

the trial court should have determined that Home-

Owners could not exclude coverage for an unlisted

motor vehicle and granted judgment in MEEMIC’s

favor. This Court reviews de novo a trial court’s decision

on a motion for summary disposition. Huntington Nat’l

Bank v Daniel J Aronoff Living Trust, 305 Mich App

496, 507; 853 NW2d 481 (2014). This Court also reviews

de novo whether the trial court properly interpreted and

applied the statutory provisions to the facts. See John-

son v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012).

B. ANALYSIS

Every “owner or registrant of a motor vehicle re-

quired

to be registered in this state” must “maintain

security for payment of beneﬁts under personal protec-

tion insurance, property protection insurance, and

residual liability insurance.” MCL 500.3101(1). How-

ever, the applicable version of MCL 500.3101(1) pro-

vided that the security “shall only be required to be in

effect during the period the motor vehicle is driven or

moved upon a highway.”

And, for a motor vehicle that

not driven or moved upon a highway, an insurer

“may allow the insured owner or registrant of the

motor vehicle to delete a portion of the coverages under

the policy and maintain the comprehensive coverage

portion of the policy in effect.” Id.

It was undisputed that John Putvin did not drive or

move the Corvette upon a highway during the period at

issue. Therefore, he was not required to maintain

The language of this provision has changed slightly as a result of

2014 PA 492; however, the changes were not substantive and do not

affect our analysis.

2015] MEEMIC

ICH

ILLERS

“security for payment of beneﬁts under personal pro-

tection insurance, property protection insurance, and

residual liability insurance” in effect for that period.

MCL 500.3101(1). Instead, he permissibly elected to

insure his Corvette with a policy that provided com-

prehensive coverage alone. See id. In addition, consis-

tently with the requirements of MCL 500.3101(1),

John Putvin purchased a no-fault policy that included

property protection insurance for the motor vehicles

that he continued to drive upon a highway.

An insurer who issues a no-fault insurance policy

that includes property protection insurance “is liable to

pay beneﬁts for accidental damage to tangible property

arising out of the ownership, operation, maintenance, or

use of a motor vehicle as a motor vehicle subject to the

provisions of this section and . . . [MCL 500.3125] . . . .”

MCL 500.3121(1). Under MCL 500.3125, a person who

suffers accidental property damage “shall claim prop-

erty protection insurance beneﬁts” ﬁrst from “insurers

of owners or registrants of vehicles involved in the

accident . . . .” MCL 500.3125. This Court has construed

other priority provisions within the no-fault act and

concluded that language similar to that used in MCL

500.3125 requires an insurer to pay beneﬁts whenever

it has issued a no-fault policy to an owner of a vehicle

involved in the accident, even if the policy did not

speciﬁcally include coverage for that vehicle. See Titan

Ins Co v American Country Ins Co, 312 Mich App 291;

876 NW2d 853 (2015) (examining priority under MCL

500.3114); Farmers Ins Exch v Farm Bureau Gen Ins

Co, 272 Mich App 106, 113-114; 724 NW2d 485 (2006)

(interpreting MCL 500.3114(5)(a)); Pioneer State Mut

Ins Co v Titan Ins Co, 252 Mich App 330, 335-336; 652

NW2d 469 (2002) (construing MCL 500.3115(1)(a)). For

that reason, if we were to construe MCL 500.3125 in the

same way, Home-Owners would be an insurer of an

100 313 M

ICH

94 [Oct

owner of a motor vehicle involved in the ﬁre loss.

Moreover, assuming that the ﬁre loss arose “out of the

ownership, operation, maintenance or use” of the

Corvette as “a motor vehicle,” MCL 500.3121,

MEEMIC—as the subrogee of Eppard and Byrnes—

would be entitled to claim property protection insur-

ance beneﬁts from Home-Owners because Home-

Owners issued an insurance policy to John Putvin

and he was the owner of the Corvette, which was

involved in the accident. Nevertheless, even accepting

that Home-Owners is the insurer of an owner of a

motor vehicle involved in the accident under MCL

500.3125 and would be liable to pay property protec-

tion beneﬁts under MCL 500.3121, if the Corvette

were required to be insured under MCL 500.3101(1),

we conclude that the trial court did not err when it

concluded that Home-Owners was not obligated to

pay property protection beneﬁts under the speciﬁc

facts of this case.

Although the Legislature generally required the

“owner or registrant of a motor vehicle required to be

registered in this state” to maintain security for the

payment of property protection insurance beneﬁts, it

stated that the security “shall only be required to be in

effect during the period the motor vehicle is driven or

moved upon a highway.” Former MCL 500.3101(1)

(emphasis added). Because the security is only re-

quired to be in effect during those periods, the Legis-

lature authorized insurers to allow their insureds to

delete property protection insurance from their no-

fault coverage for the period when a motor vehicle is

not driven or moved upon a highway:

Notwithstanding any other provision in this act, an in-

surer

that has issued an automobile insurance policy on a

motor vehicle that is not driven or moved on a highway

may allow the insured owner or registrant of the motor

2015] MEEMIC

ICH

ILLERS

101

vehicle to delete a portion of the coverages under the

policy and maintain the comprehensive coverage portion

of the policy in effect. [MCL 500.3101(1).]

When construing the no-fault act, this Court must

be careful to interpret the words used in the statute in

“light of their ordinary meaning and their context

within the statute” and must read the various provi-

sions “harmoniously to give effect to the statute as a

whole.” Johnson, 492 Mich at 177 (quotation marks

and citation omitted). By authorizing insurers under

MCL 500.3101(1) to allow their insureds to “delete” the

speciﬁed “coverages” and maintain only the “compre-

hensive coverage portion” of the policy, the Legislature

unambiguously expressed its intent to make the speci-

ﬁed types of coverage optional for motor vehicles that

the insured owns or has registered, but that are not

driven or moved upon a highway. Thus, construing

MCL 500.3125 in harmony with MCL 500.3101(1), we

conclude that an insurer of an owner of a motor vehicle

involved in an accident is not statutorily required to

pay property protection insurance beneﬁts to a person

suffering accidental property damage if the motor

vehicle involved in the accident was not driven or

moved upon a highway and the owner or registrant

elected to forgo that coverage in favor of comprehen-

sive coverage, as permitted under MCL 500.3101(1).

Because the coverage is optional in such cases,

whether

the policy provides coverage must be deter-

mined from the policy itself.

See Husted

v Auto-

Owners Ins Co, 459 Mich 500, 511-512; 591 NW2d 642

Because this case only involves property protection insurance, we

express no opinion as to whether the same would be true for claims

involving personal protection insurance or residual liability insurance.

If Rick Putvin and Cergenul had driven the Corvette to a different

location in order to perform the maintenance that led to the ﬁre, the

coverage would no longer have been optional under MCL 500.3101(1). If

102 313 M

ICH

94 [Oct

(1999) (stating that, when coverage is not mandatory

under the no-fault act, the terms of the insurance

agreement control whether there is coverage).

In this case, it is undisputed that the Corvette had

not been driven or moved upon a highway during the

relevant period. Consequently, John Putvin was not

required to maintain security for the payment of ben-

eﬁts under MCL 500.3101(1), and, because he pur-

chased a policy from State Farm insuring the Corvette

with comprehensive coverage, Home-Owners could

lawfully exclude the Corvette from coverage under the

no-fault policy that it issued to him. See Husted, 459

Mich at 516-517.

In its policy, Home-Owners stated that it would pay

property protection insurance beneﬁts for accidental

damage to tangible personal property that arose out of

the ownership, operation, maintenance, or use of an

“insured motor vehicle as a motor vehicle[.]” It further

deﬁned an insured motor vehicle to mean a motor

vehicle with respect to which the policy applies and for

which a speciﬁc premium is charged, or with respect to

which John Putvin was “required to maintain security”

under MCL 500.3101(1). John Putvin did not pay a

premium for coverage of the Corvette and, as already

discussed, he was not required to maintain security for

the Corvette under MCL 500.3101(1). Consequently,

under the plain terms of the policy at issue, Home-

Owners was not “liable to pay beneﬁts for accidental

damage to tangible property” arising out of the owner-

ship, operation, maintenance, or use of John Putvin’s

Corvette. MCL 500.3121(1).

The trial court did not err when it granted Home-

Owners’ motion for summary disposition.

that were the case, we would agree that Home-Owners would have had

an obligation to pay property protection beneﬁts under MCL 500.3125.

2015] MEEMIC

ICH

ILLERS

103

Afﬁrmed. As the prevailing party, Home-Owners

may tax its costs. MCR 7.219(A).

M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

, JJ.,

concurred.

104 313 M

ICH

94 [Oct

DOE v RACETTE

Docket No. 322150. Submitted October 14, 2015, at Lansing. Decided

October 27, 2015, at 9:15 a.m.

John Doe brought a tort action in the Ingham Circuit Court in 2012

that included claims of assault and battery, intentional inﬂiction of

emotional distress, and false imprisonment against Wendall A.

Racette, alleging that Racette had sexually abused him while

serving as his childhood dentist. Plaintiff claimed that the abuse

had occurred over ﬁve years, beginning in 1995 when he was ﬁve

years old, and that defendant had threatened to kill him and rape

his sisters if he disclosed the abuse. The court, James S. Jamo, J.,

granted defendant’s motion for summary disposition under MCR

2.116(C)(7), ruling that the applicable limitations periods had

elapsed and that equitable estoppel did not apply. Plaintiff ap-

pealed.

The Court of Appeals held:

The trial court did not err by declining to apply the doctrine of

equitable estoppel and granting defendant’s motion for summary

disposition under MCR 2.116(C)(7), although it erred in its reason-

ing. Equitable estoppel is a judicially created exception to the

general rule that statutes of limitation run without interruption.

In order to invoke the equitable estoppel doctrine, a plaintiff must

generally establish that (1) the defendant’s acts or representations

induced plaintiff to believe that the limitations period clause would

not be enforced, (2) the plaintiff justiﬁably relied on this belief, and

(3) the plaintiff was prejudiced as a result of relying on the belief

that the clause would not be enforced. In this case, the trial court

erred by ruling that equitable estoppel did not apply because the

purpose of defendant’s alleged threats were not clearly designed to

induce plaintiff from bringing his claim within the limitations

period. If a defendant threatens to murder a victim should he or

she disclose instances of sexual abuse, that conduct is clearly

intentionally designed to induce the plaintiff to refrain from taking

any action against the defendant, including bringing an action

within the period ﬁxed by statute. Accordingly, a threat to murder

a plaintiff and harm his family should he or she disclose instances

of sexual abuse can establish the ﬁrst element of equitable estop-

2015] D

OE V

ACETTE

105

pel. However, plaintiff was also required to show that he acted

within a reasonable time to bring suit after the coercive effect of

the threat had ended. In this case, plaintiff disclosed the abuse to

the police in December of 2010 and testiﬁed at defendant’s criminal

proceedings in 2011, which demonstrated that his fears no longer

constrained him to remain silent; however, he did not bring this

action until December of 2012. Following his public disclosure,

plaintiff had a primary obligation to secure prompt resolution of

his claim in the courts, and his failure to do so precluded applica-

tion of the doctrine of equitable estoppel.

Afﬁrmed.

URRAY

, J., concurring, agreed that defendant could not be

equitably estopped from asserting the statute of limitations

because plaintiff did not bring suit within a reasonable amount of

time after the coercive effect of defendant’s alleged threat had

ended. However, because that conclusion alone was sufﬁcient to

reject plaintiff’s invocation of equitable estoppel, Judge M

URRAY

would not have engaged in any discussion of whether a threat of

murder could be sufﬁcient. He further noted that it was unclear

whether plaintiff had established the ﬁrst element of equitable

estoppel.

IMITATION OF

CTIONS —

QUITABLE

STOPPEL —

HREATS

In order to invoke the equitable estoppel doctrine to avoid the

application of a statutory limitation period, a plaintiff generally

must establish that (1) the defendant’s acts or representations

induced plaintiff to believe that the limitations period clause

would not be enforced, (2) the plaintiff justiﬁably relied on this

belief, and (3) the plaintiff was prejudiced as a result of relying on

the belief that the clause would not be enforced; a threat to

murder a plaintiff and harm the plaintiff’s family if the plaintiff

discloses instances of sexual abuse can establish the ﬁrst element

of equitable estoppel if the plaintiff brought suit within a reason-

able time after the coercive effect of the threat ended.

Levine Benjamin, PC (by Greg

M. Liepshutz), and

Daryl Royal for plaintiff.

Farhat & Story, PC (by Linda L. Widener), for

defendant.

Before: M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

JJ.

106 313 M

ICH

105 [Oct

URIAM

. Plaintiff appeals as of right the trial

court’s ruling granting defendant’s motion for sum-

mary disposition under MCR 2.116(C)(7) (claim barred

by the statute of limitations) in this action involving

various torts stemming from alleged incidents of

sexual abuse. We afﬁrm.

In December 2012, plaintiff ﬁled a complaint against

defendant, claiming assault and battery, intentional

inﬂiction of emotional distress (IIED), and false im-

prisonment. He alleged that, starting in 1995 when he

was just ﬁve years old, his parents brought him to

defendant’s dentistry practice for dental services. He

alleged that, during the next ﬁve years, defendant

subjected him to various forms of sexual abuse, which

he did not disclose because defendant threatened to

kill him and rape his sisters if he told anyone about the

abuse.

In response, defendant ﬁled a motion for summary

disposition

under MCR 2.116(C)(7), arguing that plain-

tiff’s claims were time-barred because plaintiff waited

more than 12 years after the alleged abuse to ﬁle a

lawsuit. Plaintiff conceded that the applicable limita-

tions periods had expired. See MCL 600.5805(2)

(claims for false imprisonment and assault and battery

are governed by a two-year limitations period), MCL

600.5805(10) (claims for IIED are governed by a three-

year limitations period), and MCL 600.5851(1) (if a

claim accrues when a plaintiff is a minor the limita-

tions period is extended for one year after the disability

Plaintiff disclosed the abuse to the police in December 2010. In 2012,

defendant was convicted of 5 counts of criminal sexual conduct in the

ﬁrst degree, MCL 750.520b(1)(a), and 10 counts of criminal sexual

conduct in the second degree, MCL 750.520c(1)(a). On appeal, this Court

reversed his convictions and remanded for a new trial. People v Racette,

unpublished opinion per curiam of the Court of Appeals, issued Septem-

ber 1, 2015 (Docket No. 314895).

2015] D

OE V

ACETTE

107

PINION OF THE

OURT

is removed). Nevertheless, plaintiff argued that defen-

dant should be equitably estopped from raising the

statute of limitations as a defense because his threats

to kill plaintiff and harm his sisters prevented plaintiff

from bringing his claim within the limitations periods.

The trial court, however, ruled that the applicable

limitations periods had elapsed and that equitable

estoppel did not apply. This appeal followed.

A trial court’s ruling on a motion for summary

disposition brought under MCR 2.116(C)(7) is reviewed

de novo to determine if the moving party is entitled to

judgment as a matter of law. Doe v Roman Catholic

Archbishop of the Archdiocese of Detroit, 264 Mich App

632, 638; 692 NW2d 398 (2004). “If a party supports a

motion under MCR 2.116(C)(7) by submitting afﬁda-

vits, depositions, admissions, or other documentary

evidence, those materials must be considered” unless

their substance and content is inadmissible as evi-

dence. Pusakulich v City of Ironwood, 247 Mich App 80,

82; 635 NW2d 323 (2001), citing MCR 2.116(G)(5).

“[T]he contents of the complaint are accepted as true

unless contradicted by documentation submitted by

the movant.” Pusakulich, 247 Mich App at 82.

Equitable estoppel is a judicially created “exception

to the general rule which provides that statutes of

limitation run without interruption[.]” Lothian v De-

troit, 414 Mich 160, 176; 324 NW2d 9 (1982). “It is

essentially a doctrine of waiver that extends the appli-

cable period for ﬁling a lawsuit by precluding the

defendant from raising the statute of limitations as a

bar.” Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263,

270; 562 NW2d 648 (1997). “[A]bsent intentional or

negligent conduct designed to induce a plaintiff to

refrain from bringing a timely action,” Michigan courts

have been “reluctant to recognize an estoppel[.]” Id.

108 313 M

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105 [Oct

PINION OF THE

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(emphasis omitted). Such equitable power “has tradi-

tionally been reserved for ‘unusual circumstances’

such as fraud or mutual mistake” because a “court’s

equitable power is not an unrestricted license for the

court to engage in wholesale policymaking[.]” Devillers

v Auto Club Ins Ass’n, 473 Mich 562, 590; 702 NW2d

539 (2005). In the past, we have typically applied

equitable estoppel in cases in which the defendant

induced the plaintiff to believe the limitations period

would not be enforced. See McDonald v Farm Bureau

Ins Co, 480 Mich 191, 204-205; 747 NW2d 811 (2008)

(holding that in order to invoke the equitable estoppel

doctrine, the plaintiff must generally establish that

“(1) defendant’s acts or representations induced plain-

tiff to believe that the limitations period clause would

not be enforced, (2) plaintiff justiﬁably relied on this

belief, and (3) she was prejudiced as a result of her

reliance on her belief that the clause would not be

enforced”). In this case, defendant correctly points out

that there is nothing on the record indicating that his

alleged threat to kill plaintiff and harm his sisters

induced plaintiff to believe the limitations periods

would not be enforced. However, there are no Michigan

cases addressing whether a threat of murder can be

grounds for invoking the equitable estoppel doctrine.

Therefore, it is an issue of ﬁrst impression whether a

defendant can be equitably estopped from raising the

statute of limitations as a bar when the plaintiff failed

to ﬁle suit within the limitations periods because of the

defendant’s threats to kill the plaintiff and harm his

family if he disclosed instances of sexual abuse.

In this case, the trial court ruled that equitable

estoppel could not be extended to this situation be-

cause the purpose of defendant’s alleged threats was

not clearly to induce plaintiff from bringing his claim

within the limitations periods. We disagree. If a defen-

2015] D

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PINION OF THE

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dant threatens to murder a victim should he or she

disclose instances of sexual abuse, the threat necessar-

ily encompasses all forms of disclosure, including dis-

closure in the form of a timely ﬁled lawsuit. In such

circumstances, the defendant’s conduct is clearly inten-

tionally designed to induce the plaintiff to refrain from

taking any action against the defendant, including

“bringing action within the period ﬁxed by statute.”

Lothian, 414 Mich at 177 (quotation marks and cita-

tion omitted); see also Cincinnati Ins Co, 454 Mich at

270. Accordingly, a threat to murder a plaintiff and

harm his family should he or she disclose instances of

sexual abuse can establish the ﬁrst element of equi-

table estoppel.

However, in addition to showing the existence of a

threat, plaintiff must show that he or she acted

within a reasonable time to bring suit after the

coercive effect of the threat had ended. See McDonald,

480 Mich at 205 (holding that equitable estoppel did

not apply when there was “no evidence that plaintiff

relied on anything defendant did or said” when she

delayed bringing suit within the limitations period);

see also Lothian, 414 Mich at 178-179 (holding that

equitable estoppel did not apply when the plaintiff’s

failure to bring suit within the limitations period was

not because of the defendant’s actions). In this case, it

is undisputed that plaintiff disclosed the abuse to the

police in December 2010, when he was almost 21

years old. In February 2011, he testiﬁed at the pre-

liminary examination in defendant’s criminal case.

In November 2011, he testiﬁed at defendant’s ﬁrst

trial, which ended in a hung jury. In August 2012,

he testiﬁed at defendant’s second trial, which ended

with his conviction on multiple counts of criminal

sexual conduct. However, it was not until Decem-

110 313 M

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105 [Oct

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ber 2012—about two years after he ﬁrst disclosed the

abuse to the police—that defendant opted to ﬁle the

present suit.

While plaintiff’s failure to bring suit during the

predisclosure period may have been the result of the

fear engendered by defendant’s threats, the undis-

puted evidence shows that plaintiff continued to delay

ﬁling suit well after the grounds for such fear had

ended with the disclosure to the police. Alternatively

put, plaintiff’s disclosure to the police in December

2010 demonstrates that his fears no longer constrained

him to remain silent and so estoppel based upon that

fear cannot have remained effective until December

2012. Following his public disclosure, plaintiff “had a

primary obligation to secure prompt resolution of his

claim in the courts.” Lothian, 414 Mich at 179. His

failure to do so precludes application of the doctrine of

equitable estoppel.

Afﬁrmed.

M. J. K

ELLY

, P.J., and S

HAPIRO

, J., concurred.

URRAY

, J. (concurring). I concur in the majority

opinion’s decision to afﬁrm the trial court’s order

granting defendant’s motion for summary disposition

on the basis of the statute of limitations. MCR

2.116(C)(7). More speciﬁcally, I concur in the majority

opinion’s holding that defendant cannot be equitably

estopped from asserting the statute of limitations

because under the undisputed facts, plaintiff did not

bring suit within a reasonable amount of time after the

coercive effect of defendant’s alleged threat ended.

Because that conclusion is alone sufﬁcient to reject

plaintiff’s attempt to invoke equitable estoppel, it is

unnecessary to engage in any discussion as to whether

2015] D

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ONCURRING

PINION BY

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, J.

a threat of murder can alone be sufﬁcient to meet the

ﬁrst prong of the test for equitable estoppel as articu-

lated in McDonald v Farm Bureau Ins Co, 480 Mich

191, 204-205; 747 NW2d 811 (2008).

In addition, even if it were a proper subject of

inquiry, it is not clear that plaintiff has established the

ﬁrst prong of equitable estoppel. As defendant argues

and the majority opinion recognizes, there is nothing in

the record indicating that defendant’s alleged threat to

kill plaintiff or harm his sisters while they were

patients of defendant, induced plaintiff to believe that

the limitations periods would not be enforced. Accord-

ing to McDonald, that is one of the necessary proofs.

Id. And outside the insurance context of McDonald, our

Court has recently stated that the ﬁrst element re-

quires proof of “ ‘a false representation or concealment

of a material fact[.]’ ” Genesee Co Drain Comm’r v

Genesee Co, 309 Mich App 317, 333; 869 NW2d 635

(2015), quoting Cincinnati Ins Co v Citizens Ins Co, 454

Mich 263, 270; 562 NW2d 648 (1997). A threat, even a

threat of murder, is not a false representation, nor does

it involve the concealment of a material fact. See, e.g.,

Hollander v Brown, 457 F3d 688, 694-695 (CA 7, 2006)

(holding under a broader Illinois equitable estoppel

doctrine that a threat of murder is neither a misrep-

resentation nor a concealment of evidence).

For these reasons, plaintiff’s failure to ﬁle suit

within a reasonable time after the coercive effect of the

alleged threat was made requires us to reject plaintiff’s

attempted invocation of equitable estoppel and to af-

ﬁrm the trial court’s order of dismissal.

112 313 M

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105 [Oct

ONCURRING

PINION BY

URRAY

, J.

CHIROPRACTORS REHABILITATION GROUP, PC v STATE

FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

ELITE HEALTH CENTERS, INC v STATE FARM MUTUAL

AUTOMOBILE INSURANCE COMPANY

Docket Nos. 320288 and 322317. Submitted July 14, 2015, at Detroit.

Decided October 29, 2015, at 9:00 a.m. Leave to appeal sought.

Chiropractors Rehabilitation Group, PC, brought an action

against State Farm Mutual Automobile Insurance Company in

the 46th District Court, seeking payment for services it ren-

dered to Raynard Jackson for injuries he allegedly sustained in

a motor vehicle accident. As permitted by MCL 500.3151, State

Farm had requested that Jackson submit to a medical exami-

nation (ME). State Farm had also previously requested that

Jackson submit to an examination under oath (EUO) in accor-

dance with its insured’s no-fault policy. Jackson failed to attend

the scheduled examinations, and State Farm notiﬁed Jackson

that it was suspending his claim for beneﬁts. When State Farm

refused to pay Chiropractors Rehabilitation, Chiropractors Re-

habilitation brought suit. State Farm moved for summary

disposition. The court, William J. Richards, J., denied the

motion. State Farm appealed. The Oakland Circuit Court,

Daniel P. O’Brien, J., afﬁrmed. State Farm sought leave to

appeal that decision. The Court of Appeals granted the applica-

tion in Docket No. 320288.

Elite Health Centers, Inc., Elite Chiropractic, PC, and Horizon

Imaging, LLC, brought an action against State Farm in the 46th

District Court, seeking payment for services they rendered to

Ricky Johnson for injuries he allegedly sustained in a motor

vehicle accident. State Farm had requested that Johnson appear

for an EUO, which he failed to do. When State Farm refused to pay

the healthcare providers, the providers brought suit. State Farm

moved for summary disposition and to amend its afﬁrmative

defenses. The court, Debra Nance, J., denied the motions. State

Farm sought leave to appeal. The Oakland Circuit Court, Colleen

A. O’Brien, J., denied the application. State Farm then sought

leave to appeal in the Court of Appeals. The Court of Appeals

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granted the application in Docket No. 322317 and consolidated

that appeal with State Farm’s appeal in Docket No. 320288.

The Court of Appeals held:

1. Under the no-fault act, MCL 500.3101 et seq., medical

service providers have the right to be paid for an injured person’s

no-fault medical expenses, and MCL 500.3112 speciﬁcally con-

templates the payment of beneﬁts to someone other than the

injured person. Therefore, the Legislature intended to confer

standing on a healthcare provider to bring a claim against an

insurer in order to enforce the provider’s right to be reimbursed

for medical services rendered to an injured person. Accordingly,

healthcare providers may bring a direct action to recover personal

protection insurance (PIP) beneﬁts under the no-fault act.

2. A healthcare provider’s eligibility to recover medical ex-

penses is dependent on the injured party’s eligibility for no-fault

beneﬁts. In these cases, State Farm argued that the injured

parties’ failure to cooperate with the requested ME and EUOs

established that they were not entitled to no-fault coverage.

Under Roberts v Farmers Ins Exch 275 Mich App 58 (2007), a

suspension of beneﬁts is proper if a claimant repeatedly fails to

comply with his or her statutory duty to submit to an ME, but a

suspension of beneﬁts does not constitute an irrevocable denial of

beneﬁts and does not mean that the claimant is not entitled to

beneﬁts. Similarly, using compliance with EUO provisions as a

condition precedent to the recovery of no-fault beneﬁts is not

permissible because doing so would vitiate the insurer’s statutory

duty to pay beneﬁts in a timely manner. Accordingly, the failure to

submit to an EUO does not establish as a matter of law that an

injured person is not entitled to beneﬁts. The failure of the

injured parties to submit to the ME and EUOs requested by State

Farm in these cases, therefore, did not demonstrate that there is

no genuine issue of material fact with regard to whether plain-

tiffs, as the injured parties’ healthcare providers, were entitled to

no-fault beneﬁts as a matter of law, because the injured parties’

failure to comply did not conclusively establish the ineligibility of

the injured parties to PIP beneﬁts. State Farm remained statu-

torily obligated to pay beneﬁts in a timely manner if the injured

parties complied with the requirements of the no-fault act, which

included submitting to an ME if requested, demonstrating that

they were eligible for beneﬁts under a no-fault policy, and

providing reasonable proof of the fact and of the amount of loss

sustained. The injured parties’ failure to comply with the ME and

EUOs did not establish that State Farm was entitled to summary

disposition as a matter of law.

114 313

ICH

113 [Oct

3. Under MCR 2.118(A)(2), leave to amend pleadings must be

given freely when justice so requires. While futility may warrant

an order denying a motion to amend a pleading, in Johnson’s

case, the proposed amendment was not necessarily futile. A

healthcare provider’s ability to recover medical expenses under

the no-fault act depends on whether the injured party is eligible

for such no-fault beneﬁts. Thus, if it were established that

Johnson is not eligible for no-fault beneﬁts, the provider’s cause of

action would be precluded. In its brief in support of its motion to

amend its afﬁrmative defenses and for summary disposition,

State Farm cited authority in support of its position that the

healthcare providers stand in the shoes of Johnson, such that the

healthcare providers are no more entitled to recover beneﬁts than

Johnson. Therefore, to the extent that State Farm’s proposed

amendment included an allegation that Johnson’s ineligibility for

no-fault beneﬁts barred plaintiff’s claims, State Farm should

have been given leave to amend its answer. The afﬁrmative

defense, if proven, would have defeated the healthcare providers’

claims. Therefore, the court abused its discretion when it failed to

permit the proposed amendment to State Farm’s afﬁrmative

defenses.

District court orders denying State Farm’s motions for sum-

mary disposition in Docket Nos. 320288 and 322317 afﬁrmed;

district court order denying State Farm’s motion to amend its

afﬁrmative defenses in Docket No. 322317 reversed; cases re-

manded for further proceedings.

NSURANCE —

-F

AULT

UTOMOBILE

NSURANCE —

AILURE TO

UBMIT TO A

EDICAL

XAMINATION —

USPENSION OF

ENEFITS —

FFECT ON A

EALTHCARE

ROVIDER

’

LIGIBILITY TO

ECOVER

EDICAL

XPENSES

A healthcare provider’s eligibility to recover medical expenses

under the no-fault act is dependent on the injured party’s eligi-

bility for no-fault beneﬁts; a suspension of beneﬁts is proper if an

injured party repeatedly fails to comply with his or her statutory

duty to submit to a medical examination under MCL 500.3151,

but a suspension of beneﬁts does not constitute an irrevocable

denial of beneﬁts and does not mean that the claimant is not

entitled to beneﬁts; the failure to submit to an examination under

oath in accordance with a no-fault policy also does not establish as

a matter of law that an injured person is not entitled to beneﬁts;

the insurer remains statutorily obligated to pay beneﬁts in a

timely manner if the injured party complies with the require-

ments of the no-fault act, including submitting to a medical

examination if requested, demonstrating that he or she is eligible

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for beneﬁts under a no-fault policy, and providing reasonable

proof of the fact and of the amount of loss sustained (MCL

500.3101 et seq.).

Docket No. 320288:

Andreopoulos & Hill, PLLC (by L. Louie Andreopou-

los and David T. Hill), for Chiropractors Rehabilitation

Group, PC.

E. Smith & Associates, PC (by Eric D. Smith and

Scott W. Malott), for State Farm Mutual Automobile

Insurance Company.

Docket No. 322317:

Bauer & Hunter PLLC (by Christopher C. Hunter

and Richard A. Moore) for Elite Health Centers, Inc.,

Elite Chiropractic, PC, and Horizon Imaging, LLC.

Scarfone & Geen, PC (by Robert J. Scarfone and

Keisha L. Glenn), and James G. Gross, PLC (by James

G. Gross), for State Farm Mutual Automobile Insur-

ance Company.

Before: W

ILDER

, P.J., and S

HAPIRO

and R

ONAYNE

RAUSE

, JJ.

ILDER

, P.J. These consolidated appeals are before

this Court by leave granted.

In each case, defendant,

State Farm Mutual Automobile Insurance Company

(State Farm), appeals a circuit court order afﬁrming a

district court order denying a motion for summary

disposition. In Docket No. 322317, State Farm also

Chiropractors Rehab Group, PC v State Farm Mut Auto Ins Co,

unpublished order of the Court of Appeals, entered June 25, 2014

(Docket No. 320288); Elite Health Ctrs, Inc v State Farm Mut Auto Ins

Co, unpublished order of the Court of Appeals, entered July 11, 2014

(Docket No. 322317).

116 313 M

ICH

113 [Oct

challenges the district court’s order denying leave to

amend its afﬁrmative defenses. We afﬁrm in part and

reverse in part.

Plaintiffs in both cases are healthcare providers that

rendered medical treatment to individuals allegedly

injured in motor vehicle accidents. The medical provid-

ers brought actions in the district court, under the

no-fault act, MCL 500.3101 et seq., seeking reimburse-

ment for medical expenses related to the treatment

rendered. State Farm, the no-fault insurer allegedly

responsible for payment of personal protection insur-

ance (PIP) beneﬁts under the no-fault act, ﬁled motions

for summary disposition in which it argued, among

other things, that the injured parties were not eligible

for the payment of PIP beneﬁts and, therefore, the

healthcare providers were similarly precluded from

seeking such beneﬁts. The district courts denied State

Farm’s motion for summary disposition in each case.

In Docket No. 320288, Raynard Jackson allegedly

sustained

injuries on or about September 4, 2011,

while a passenger in a motor vehicle owned and

operated by Mohammed Abdullah. At the time, Abdul-

lah’s vehicle was insured under a no-fault policy issued

by State Farm. Because of incomplete and conﬂicting

police reports and medical records, there were ques-

tions regarding whether Jackson was injured in the

accident. Consequently, in response to Jackson’s claim

for PIP beneﬁts, State Farm requested that Jackson

submit to a medical examination (ME) as permitted

under MCL 500.3151 and an examination under oath

(EUO). Jackson failed to appear for two ME appoint-

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ments scheduled in February and March 2012. He

similarly failed to attend the EUO. In April 2012, State

Farm advised Jackson, through his legal counsel, that

because of Jackson’s failure to cooperate with its in-

vestigation of the claim, State Farm was suspending

his claim for beneﬁts.

Sometime after the accident, Jackson sought treat-

ment from plaintiff, Chiropractors Rehabilitation

Group, PC. When State Farm failed to reimburse plain-

tiff for the charges associated with its treatment of

Jackson, plaintiff ﬁled a complaint alleging that, under

the no-fault act, it was entitled to reimbursement from

State Farm for the services it provided to Jackson. On

May 10, 2013, State Farm moved for summary disposi-

tion under MCR 2.116(C)(10), arguing that it was not

responsible for charges associated with plaintiff’s treat-

ment of Jackson. State Farm asserted that because

Jackson had failed to cooperate in its investigation of

the claims, he was not eligible for coverage under the

policy. State Farm then reasoned that Jackson’s ineligi-

bility for coverage barred the claims of any healthcare

provider seeking coverage on Jackson’s behalf.

The district court denied State Farm’s motion for

summary disposition. The court held that questions of

fact existed regarding whether Jackson was eligible for

coverage under the no-fault act and whether Jackson’s

ineligibility would bar the provider’s claims. The dis-

trict court also denied State Farm’s motion for recon-

sideration. On appeal, the circuit court afﬁrmed the

district court’s order.

In Docket No. 322317, Ricky Johnson was purport-

edly

a passenger in a vehicle involved in an accident on

June 28, 2012, but the trafﬁc report identiﬁed only

118 313 M

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113 [Oct

“Qutrel Monteque” as a passenger. Johnson purport-

edly gave the police a false name at the time of the

accident. On August 23, 2012, Johnson sought treat-

ment from plaintiff Elite Health Centers, Inc. Johnson

complained of neck and back pain that he attributed to

injuries sustained in the accident. Johnson also sought

treatment from plaintiff Horizon Imaging, LLC, in

September 2012, where he underwent three MRIs.

On September 19, 2012, Johnson ﬁled a claim for PIP

beneﬁts with State Farm, which had issued a policy of

no-fault insurance to Veretta Robinson, the owner of the

vehicle in which Johnson was allegedly a passenger. On

January 22, 2013, State Farm requested that Johnson

appear for an EUO on February 4, 2013. Johnson failed

to appear for this scheduled EUO and later failed to

appear at EUOs rescheduled for March 20, 2013 and

March 22, 2013.

On September 6, 2013, plaintiffs ﬁled a ﬁrst

amended complaint seeking PIP beneﬁts from State

Farm. Plaintiffs sought reimbursement of nearly

$20,000 in outstanding medical expenses related to

plaintiffs’ treatment of Johnson. On November 19,

2013, State Farm ﬁled a motion to amend its afﬁrma-

tive defenses and for summary disposition. Through

this motion, State Farm sought to include as an

afﬁrmative defense that plaintiffs’ suit was barred

because Johnson had failed to cooperate with State

Farm’s investigation of the claim. State Farm also

argued that summary disposition of plaintiffs’ claims

was appropriate because Johnson’s ineligibility for PIP

beneﬁts precluded plaintiffs from seeking such ben-

eﬁts. Additionally, State Farm asserted that the policy

language at issue required Johnson to submit to an

EUO as a condition precedent to the recovery of ben-

eﬁts. State Farm argued that Johnson’s failure to

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cooperate made it impossible to establish whether a

loss occurred or whether it was ﬁrst in priority to

provide no-fault coverage to Johnson. State Farm,

therefore, reasoned that summary disposition was ap-

propriate under MCR 2.116(C)(10). In response, plain-

tiffs argued that because EUO provisions in insurance

contracts may not act as a condition precedent to the

recovery of PIP beneﬁts, State Farm was not entitled to

summary disposition.

The district court denied State Farm’s motion to

amend its afﬁrmative defenses and for summary dis-

position. The court ruled that State Farm had provided

no legal authority to warrant an amendment to the

afﬁrmative defenses. With respect to the summary

disposition motion, the court held that Johnson’s ac-

tions did not preclude a healthcare provider’s claim

because a healthcare provider has a right to a separate

cause of action.

On January 30, 2014, State Farm moved for recon-

sideration of the district court’s order denying leave to

amend its afﬁrmative defenses. In this motion, State

Farm argued that healthcare providers lacked stand-

ing to pursue a claim for PIP beneﬁts, asserting that

only the injured party could pursue such a claim. On

February 4, 2014, the district court denied State

Farm’s motion for reconsideration.

The circuit court denied State Farm’s application for

leave to appeal, ﬁnding that State Farm had failed to

show that it would suffer substantial harm by awaiting

ﬁnal judgment. This Court thereafter granted leave to

appeal.

In both appeals, State Farm argues that the lower

courts

erred by denying its motions for summary

120 313 M

ICH

113 [Oct

disposition. We review de novo a trial court’s decision

on a motion for summary disposition, Gorman v Ameri-

can Honda Motor Co, Inc, 302 Mich App 113, 115; 839

NW2d 223 (2013), as well as a circuit court’s afﬁr-

mance of a district court’s decision on a motion for

summary disposition, First of America Bank v Thomp-

son, 217 Mich App 581, 583; 552 NW2d 516 (1996).

When reviewing a motion for summary disposition

brought under MCR 2.116(C)(10), this Court must

consider, in the light most favorable to the party

opposing the motion, “the ‘afﬁdavits, together with the

pleadings, depositions, admissions, and documentary

evidence then ﬁled in the action or submitted by the

parties’ . . . .” Calhoun Co v Blue Cross Blue Shield

Mich, 297 Mich App 1, 11; 824 NW2d 202 (2012),

quoting MCR 2.116(G)(5). “Summary disposition is

appropriate under MCR 2.116(C)(10) if there is no

genuine issue regarding any material fact and the

moving party is entitled to judgment as a matter of

law.” Dillard v Schlussel, 308 Mich App 429, 444-445;

865 NW2d 648 (2014) (quotation marks and citation

omitted). “There is a genuine issue of material fact

when reasonable minds could differ on an issue after

viewing the record in the light most favorable to the

nonmoving party,” Allison v AEW Capital Mgt, LLP,

481 Mich 419, 425; 751 NW2d 8 (2008), or “when the

evidence submitted ‘might permit inferences contrary

to the facts as asserted by the movant,’ ” Dillard, 308

Mich App at 445, quoting Opdyke Investment Co v

Norris Grain Co, 413 Mich 354, 360; 320 NW2d 836

(1982).

State Farm ﬁrst argues in Docket No. 322317 that

healthcare

providers do not have standing under the

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no-fault act to bring an action against an insurer to

obtain no-fault PIP beneﬁts. We disagree.

This issue is not properly preserved because State

Farm raised this argument for the ﬁrst time in a

motion for reconsideration. Vushaj v Farm Bureau Gen

Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758

(2009). However, we will review this issue because it is

an issue of law and all of the relevant facts are

available. Id.

Whether a party has standing to bring an action is a

question of law reviewed de novo on appeal. Gyarmati

v Bielﬁeld, 245 Mich App 602, 604; 629 NW2d 93

(2001).

[A] litigant has standing whenever there is a legal cause of

action.

. . . Where a cause of action is not provided at law,

then a court should, in its discretion, determine whether a

litigant has standing. A litigant may have standing in this

context 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. [Lansing Sch Ed Ass’n v

Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686

(2010) (emphasis added).]

This Court has frequently restated the following prin-

ciples

of statutory construction:

The primary goal of statutory interpretation is to

ascertain and give effect to the intent of the Legislature in

enacting a provision. Statutory language should be con-

strued reasonably, keeping in mind the purpose of the

statute. The ﬁrst criterion in determining intent is the

speciﬁc language of the statute. If the statutory language

is clear and unambiguous, judicial construction is neither

required nor permitted, and courts must apply the statute

as written. However, if reasonable minds can differ re-

garding the meaning of a statute, judicial construction is

122 313

ICH

113 [Oct

appropriate. [CG Automation & Fixture, Inc v Autoform,

Inc, 291 Mich App 333, 338; 804 NW2d 781 (2011) (quota-

tion marks and citation omitted).]

Courts should give effect to every word and phrase in a

statute and avoid an interpretation that renders any

part of a statute surplusage or nugatory. Dep’t of

Environmental Quality v Worth Twp, 491 Mich 227,

238; 814 NW2d 646 (2012).

In Munson Med Ctr v Auto Club Ins Ass’n, 218 Mich

App 375, 381-381; 554 NW2d 49 (1996), this Court

previously recognized that medical service providers

have the “right to be paid for the injureds’ no-fault

medical expenses . . . pursuant to MCL 500.3105,

500.3107, and 500.3157 . . . .” (Emphasis added.)

Simi-

arly, a healthcare provider’s right to reimbursement for

medical expenses in a ﬁrst-party no-fault action is

evident in the statutory language of MCL 500.3112,

MCL 500.3105(1) provides, “Under personal protection insurance an

insurer is liable to pay beneﬁts for 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.” In relevant part,

MCL 500.3107 states:

(1) Except as provided in subsection (2), personal protection

insurance beneﬁts are payable for the following:

(a) Allowable expenses consisting of all reasonable charges

incurred for reasonably necessary products, services and accom-

modations for an injured person’s care, recovery, or rehabilitation.

Finally, MCL 500.3157 provides:

A physician, hospital, clinic or other person or institution

lawfully rendering treatment to an injured person for an acciden-

tal bodily injury covered by personal protection insurance, and a

person or institution providing rehabilitative occupational train-

ing following the injury, may charge a reasonable amount for the

products, services and accommodations rendered. The charge

shall not exceed the amount the person or institution customarily

charges for like products, services and accommodations in cases

not involving insurance.

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especially when the language is considered in context

with MCL 500.3105, MCL 500.3107, and MCL

500.3157. MCL 500.3112 states, in pertinent part, that

“[p]ersonal protection insurance beneﬁts are payable to

or for the beneﬁt of an injured person or, in the case of

his death, to or for the beneﬁt of his dependents.” MCL

500.3112 (emphasis added). “The word ‘or’ is a disjunc-

tive term indicating a choice between alternatives.”

Jesperson v Auto Club Ins Ass’n, 306 MichApp 632, 643;

858 NW2d 105 (2014). Accordingly, the plain language

of the statute reveals a Legislative intent to allow either

the injured person or a party that provided beneﬁts to

an injured person to recover the payment of beneﬁts

from an insurer; the injured person is not the only party

who has this right. Consistently with this construction,

this Court has held that MCL 500.3112 “speciﬁcally

contemplates the payment of beneﬁts to someone other

than the injured person,” and has recognized that “it is

common practice for insurers to directly reimburse

health care providers for services rendered to their

insureds.” Lakeland Neurocare Ctrs v State Farm Mut

Auto Ins Co, 250 Mich App 35, 39; 645 NW2d 59 (2002).

Therefore, given the text of MCL 500.3112, especially

when read in conjunction with MCL 500.3105, MCL

500.3107, MCL 500.3157, and this Court’s previous

interpretations of the language, we conclude that the

statutory scheme of the no-fault act indicates that the

Legislature intended to confer standing on a healthcare

provider to bring a claim against an insurer in order to

enforce the provider’s right to be reimbursed for medical

services rendered to an injured party covered under a

no-fault policy. See Lansing Sch Ed Ass’n, 487 Mich at

372.

This conclusion is consistent with other opinions

issued by this Court that have acknowledged the

viability of ﬁrst-party claims brought by healthcare

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providers.

Most recently, after quoting MCL

500.3105(1) and 500.3112 and summarizing the devel-

opment of the caselaw concerning this issue, this

Court, in Wyoming Chiropractic Health Clinic, PC v

Auto-Owners Ins Co, 308 Mich App 389, 396-398; 864

NW2d 598 (2014), expressly stated that healthcare

providers may bring a direct action to recover PIP

beneﬁts. This Court stated, “the fact that a healthcare

provider is entitled to payment, as well as the fact that

a healthcare provider can sue to enforce the penalty

provision of the no-fault act,

[4]

indicates that a health-

care

provider may bring a cause of action to recover the

PIP beneﬁts under the no-fault act.” Id. at 398.

Ac-

See, e.g., Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 313

Mich App 50, 54; 880 NW2d 294 (2015) (“[I]t is . . . well settled that a

medical provider has independent standing to bring a claim against an

insurer for the payment of no-fault beneﬁts.”); Moody v Home Owners Ins

Co, 304 Mich App 415, 440; 849 NW2d 31 (2014) (“[Healthcare] providers

may bring an independent cause of action against a no-fault in-

surer . . . .”); Mich Head & Spine Institute, PC v State Farm Mut Auto Ins

Co, 299 Mich App 442, 447-449 and 448 n 1; 830 NW2d 781 (2013) (“We

note that the language “or on behalf of” in the release is similar to the

phrase ‘or for the beneﬁt of’ in MCL 500.3112, which this Court has

recognized creates an independent cause of action for healthcare provid-

ers.”); Lakeland, 250 Mich App at 42 (“Plaintiff was a health care provider

that had the right to, and did, submit claims for medical beneﬁts for the

beneﬁt of defendant’s insured. Plaintiff’s claims were repeatedly denied,

forcing plaintiff to commence legal action against defendant that led to full

recovery of the beneﬁts . . . .”) (emphasis added); id. at 42-43 (“The no-fault

act does not, however, accomplish its purpose or goal by sanctioning

actions of no-fault insurers that include unreasonable payment delays

and denials of no-fault beneﬁts that force the commencement of legal

action by the injured person’s health care provider.”) (emphasis added);

Univ of Mich Regents v State Farm Mut Ins Co, 250 Mich App 719, 733;

650 NW2d 129 (2002) (“Although [healthcare providers] may have deriva-

tive claims, they also have direct claims for personal protection insurance

beneﬁts.”) (emphasis added).

See Lakeland, 250 Mich App at 37-40.

In Wyoming Chiropractic, this Court relied on the following prior

opinions of this Court: Lakeland, 250 Mich App at 36-39; Univ of Mich

Regents, 250 Mich App at 731-734; and Munson, 218 Mich App at 381.

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cordingly, in light of the statutory framework and

applicable caselaw, State Farm’s argument that the

healthcare providers do not have standing to bring

causes of action to recover PIP beneﬁts is without

merit.

Next, State Farm argues in both appeals that the

healthcare

providers’ ability to seek no-fault PIP ben-

eﬁts is dependent on whether the injured party would

be eligible to receive those PIP beneﬁts. Accordingly,

State Farm contends that the trial courts erred by

denying its motions for summary disposition because

the medical providers’ claims were barred because

Jackson and Johnson were ineligible for beneﬁts given

that they had failed to submit to the MEs and EUOs

that State Farm had requested and, consequently,

failed to provide reasonable proof of a compensable

loss. We agree with State Farm’s general statement of

the law, but disagree that the medical providers’ claims

are barred as a matter of law at this stage of the

proceedings.

A review of relevant Michigan caselaw indicates

that a healthcare provider’s eligibility to recover medi-

cal expenses is dependent on the injured party’s eligi-

bility for no-fault beneﬁts under the insurance policy.

Our decision in TBCI, PC v State Farm Mut Auto Ins

Co, 289 Mich App 39; 795 NW2d 229 (2010), is instruc-

tive. In that case, the healthcare provider brought suit

seeking payment of PIP beneﬁts under the no-fault act.

Id. at 40. The plaintiff had provided medical treatment

to Eric Afful, who was allegedly injured in a motor

vehicle accident. Id. at 40-41. State Farm, however,

had refused to pay Afful’s claim, contending that the

claims were fraudulent. Id. at 40. Afful ﬁled suit

126 313 M

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against State Farm, and the jury found that Afful was

not entitled to no-fault beneﬁts on account of his

fraudulent conduct. Id. In the provider’s suit, this

Court found that the provider was similarly barred

from claiming no-fault beneﬁts:

Here, there is no serious dispute whether the judgment

the ﬁrst case was a ﬁnal judgment on the merits. The

jury determined that Afful had submitted a fraudulent

claim for beneﬁts, and a judgment pursuant to the verdict

was entered on June 3, 2008. Further, there is no question

whether plaintiff’s claims were, or could have been, re-

solved in the ﬁrst lawsuit. This is because the essential

evidence presented in the ﬁrst case sustained dismissal of

both actions. See Eaton Co Rd Comm’rs [v Schultz, 205

Mich App 371, 375; 521 NW2d 847 (1994)]. Plaintiff, by

seeking coverage under the policy, is now essentially

standing in the shoes of Afful. Being in such a position,

there is also no question that plaintiff, although not a

party to the ﬁrst case, was a “privy” of Afful. “A privy of a

party includes a person so identiﬁed in interest with

another that he represents the same legal right . . . .”

Begin [v Mich Bell Tel Co, 284 Mich App 581, 599; 773

NW2d 271 (2009)].

[6]

As noted, the jury determined that

Afful submitted a fraudulent claim. The result under the

plain language of the exclusion provision interpreted in

the ﬁrst action is that Afful and his privies were not

entitled to coverage under the policy. Plaintiff is simply

attempting to relitigate precisely the same issue in order

to obtain coverage under the policy. The trial court prop-

erly dismissed plaintiff’s suit to the extent that it found its

claim was barred by res judicata. For this reason, plain-

tiff’s claim of appeal fails. [TBCI, 289 Mich App at 43-44.]

Similarly, in Bahri

v IDS Prop Cas Ins Co, 308 Mich

App 420, 424-425; 864 NW2d 609 (2014), this Court

held that the healthcare providers’ claims for PIP

Begin was overruled on other grounds in Admire v Auto-Owners Ins

Co, 494 Mich 10 (2013).

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beneﬁts were barred by the fraudulent conduct of the

named insured. Citing TBCI, 289 Mich App at 44, this

Court stated, “Because [the healthcare providers]

stood in the shoes of the named insured, if [the named

insured] cannot recover beneﬁts, neither can [the

healthcare providers].” Id. at 424. Accordingly, this

Court concluded that “[b]ecause [the insured’s] claim

for PIP beneﬁts is precluded, [the providers’] claim for

PIP beneﬁts is similarly barred . . . .” Id. at 426.

In Mich Head & Spine Institute v State Farm Mut

Auto Ins Co, 299 Mich App 442; 830 NW2d 781 (2013),

this Court also acknowledged the interdependence

between the claims of a healthcare provider and an

injured party. In that case, the healthcare provider

rendered services and accommodations to Pellumb-

esha Biba and brought an action against Biba’s no-

fault insurer, State Farm, seeking to recover payment

for those services. Id. at 445-446. In exchange for

$35,000 and in settlement of ongoing litigation with

State Farm, Biba executed a contract that released

State Farm from liability for no-fault beneﬁts incurred

to date or which might be incurred in the future. Id. at

444-445. Six months after signing the release, Biba

began treatment with the plaintiff, Michigan Head

& Spine. Id. at 445. In reliance on the release, State

Farm refused to pay Michigan Head & Spine for its

treatment of Biba. Id. at 445. State Farm appealed an

order granting summary disposition in favor of Michi-

gan Head & Spine, and this Court had to determine

“whether an insured’s release bars a healthcare pro-

vider’s claim for payment for medical services rendered

to the insured after the release was executed.” Id. at

448. Applying contract principles, this Court held that

the plain language of the release “demonstrate[d] that,

in exchange for defendant’s payment of $35,000, the

parties intended to discharge [State Farm’s] liability

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113 [Oct

altogether, including its liability for future medical

services.” Id. Therefore, this Court held that summary

disposition should have been granted in State Farm’s

favor. Id. at 450.

Additionally, in Detroit

Med Ctr v Progressive Mich

Ins Co, 302 Mich App 392; 838 NW2d 910 (2013), this

Court implicitly recognized that a healthcare provid-

er’s claim is dependent on the injured party’s entitle-

ment to beneﬁts under a no-fault insurance policy,

although it did not directly rule on the issue. The case

was initiated by the plaintiff healthcare provider that

treated the injuries of a motorcyclist who was insured

by the defendant insurance company. Id. at 394. The

trial court entered judgment in favor of the healthcare

provider based on its conclusion that the motor vehicle

associated with the incident was sufﬁciently involved

in the accident for the plaintiff healthcare provider to

recover no-fault beneﬁts. Id. at 394. This Court held

that summary disposition should have been granted in

favor of the defendant insurance company because the

motorcyclist was not entitled to personal protection

insurance beneﬁts pursuant to the no-fault act under

the facts of the case. Id. at 399.

Notably, the services and billings at issue in Mich Head & Spine

were incurred and submitted after the insured entered into a release

with the insurer. That case did not address the situation in which an

insured receives medical services and the medical provider notiﬁes the

insurer of its right to payment before the execution of a release by the

insured, a situation that raises particular issues under the text of MCL

500.3112. See Covenant Med Ctr, 313 Mich App at 53 (holding that when

the insurer has written notice of a medical provider’s claim, the insurer

cannot discharge its liability to the provider by settling with its

insured).

This Court’s decision in Moody, 304 Mich App at 440, stating that

the providers’ claims were “completely derivative of and dependent on

Moody’s having a valid claim of no-fault beneﬁts against [the insurer],”

is also consistent with the other cases discussed in this opinion.

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In light of this caselaw, we conclude that a health-

care provider’s ability to recover an injured party’s

medical expenses under the no-fault act is dependent

on the injured party’s eligibility for no-fault beneﬁts.

Accordingly, resolution of the ultimate issue in these

cases

turns on whether the injured persons, Jackson

and Johnson, would have been entitled to recover

ﬁrst-party PIP beneﬁts under the insurance policies.

For the reasons stated later in this opinion, we con-

clude that the district courts did not err by ﬁnding that

genuine issues of material fact precluded summary

disposition.

State Farm argues that the district courts’ focus on

whether Jackson and Johnson were involved in the

accidents or sustained injures related thereto was

misplaced. Instead, according to State Farm, the

courts should have focused on the undisputed fact that

the injured parties failed to submit to the requested

MEs and EUOs. State Farm contends that this failure

Although the speciﬁc issue is not before us for decision, in our view,

whether an injured party is eligible for beneﬁts is a different question

than whether an injured party may recover beneﬁts when that injured

party fails to timely ﬁle a cause of action to recover beneﬁts that the

injured party is eligible to receive. Were the question before us, we

would conclude that an injured party’s failure to timely bring suit would

not, in and of itself, bar a provider’s timely action against the insurer. An

injured party may be eligible for beneﬁts under MCL 500.3105(1) even

though his or her claim is barred by the one-year statute of limitations

under MCL 500.3145(1). In such a case, a provider’s claim, which is

dependent on the injured party’s eligibility, would be unaffected. See

Moody, 304 Mich App at 440. It is well settled that each claim in an

action is subject to its own applicable statute of limitations and the

untimeliness of one claim does not, without more, bar another timely

ﬁled claim. Moreover, if the provider’s claim is timely ﬁled, the purposes

of statutes of limitations—to encourage plaintiffs to diligently pursue

claims and to protect defendants from having to defend against stale

and fraudulent claims—are satisﬁed. See Wright v Rinaldo, 279 Mich

App 526, 533; 761 NW2d 114 (2008).

130 313

ICH

113 [Oct

to cooperate conclusively established that the injured

parties were prohibited from seeking no-fault cover-

age. We disagree.

In order to resolve this issue, a brief review of the

statutes and caselaw addressing MEs and EUOs is

warranted. Beginning with MEs, MCL 500.3151 pro-

vides that “[w]hen the mental or physical condition of

a person is material to a claim that has been or may be

made for past or future personal protection insurance

beneﬁts, the person shall submit to mental or physical

examination by physicians.” MCL 500.3153 addresses

the repercussions that may result if a claimant refuses

to comply with a request to submit to an examination.

The statute permits a court to enter orders regarding

the refusal that include, but are not limited to:

(a) An order that the mental or physical condition of the

disobedient

person shall be taken to be established for the

purposes of the claim in accordance with the contention of

the party obtaining the order.

(b) An order refusing to allow the disobedient person to

support or oppose designated claims or defenses, or pro-

hibiting him from introducing evidence of mental or physi-

cal condition.

disobedient person as to his entire claim or a designated

part of it.

(d) An order requiring the disobedient person to reim-

burse the insurer for reasonable attorneys’ fees and ex-

penses incurred in defense against the claim.

(e) An order requiring delivery of a report, in confor-

mity with section 3152, on such terms as are just, and if a

physician fails or refuses to make the report a court may

exclude his testimony if offered at trial. [MCL 500.3153.]

Thus, under MCL 500.3153, a court is authorized to

dismiss

an injured person’s claim for failure to submit

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to an examination. Muci v State Farm Mut Auto Ins

Co, 478 Mich 178, 188-189; 732 NW2d 88 (2007).

However, no such order was entered in either case.

This Court’s decision in Roberts v Farmers Ins Exch,

275 Mich App 58; 737 NW2d 332 (2007), is instructive.

Roberts indicates that a suspension of beneﬁts is

proper if a claimant repeatedly fails to comply with his

or her statutory duty to submit to MEs. Id. at 69. In

Roberts, after the insured, Brittany Underwood, re-

peatedly missed scheduled MEs and failed to pay

cancellation fees, the insurer discontinued ﬁrst-party

no-fault beneﬁts. Id. at 61. This Court, in reviewing the

propriety of the insurer’s actions, held:

Underwood repeatedly failed or refused to attend the

physical

and psychological [MEs]. Underwood therefore

breached her statutory duty to “submit to mental or

physical examination by physicians.” MCL 500.3151.

Farmers did not conclude that because of Underwood’s

breach, beneﬁts were irrevocably denied; rather, it merely

suspended those beneﬁts until Underwood (1) paid the

$1,000 cancellation fee and (2) submitted to a psychologi-

cal [ME]. Because Underwood had breached her statutory

duty to submit to [MEs], Farmers had a legitimate statu-

tory question, namely, whether a claimant, upon breach of

her statutory duty to submit to [MEs], remains entitled to

continuing PIP beneﬁts. The statute provides no penalty

for a claimant’s breach of his or her duty to submit to

[MEs]; therefore, Farmers raises a legitimate statutory

question regarding the appropriate consequence of Under-

wood’s breach of her statutory duty. Because Farmers had

a legitimate question of statutory construction, its suspen-

sion of beneﬁts to Underwood was reasonable. McCarthy

[v Auto Club Ins Ass’n, 208 Mich App 97, 103; 527 NW2d

524 (1994)]. We hold that where a claimant repeatedly

breaches his or her statutory duty to submit to [MEs], an

insurer may properly suspend beneﬁts pending completion

of any requisite [ME]. Otherwise, an insured could breach

with impunity his or her duty to submit to [MEs], and the

132 313

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113 [Oct

insurer would have no way of investigating whether the

injury claims were legitimate.

In addition to the statutory duty to submit to [MEs],

Farmers’ no-fault policy imposes on a person claiming

coverage under the policy a duty to “[s]ubmit to physical

examinations at our expense by doctors we select as often

as we may reasonably require.” The policy does not

articulate the remedy for breach of this duty. The general

rule is that a remedy for breach of contract should make

the nonbreaching party whole or “place the nonbreaching

party in as good a position as if the contract had been fully

performed.” Corl v Huron Castings, Inc, 450 Mich 620,

625-626; 544 NW2d 278 (1996). Allowing Farmers to

suspend beneﬁts places Farmers in as good a position as if

Underwood had submitted to a neuropsychological [ME]

because it puts Farmers in the same position as it would

be had the [ME] shown that Underwood lacked a brain

injury caused by the accident. Whether viewed as a

remedy for breach of the statutory duty to submit to [MEs]

or as a remedy for breach of a contractual duty to submit

to [MEs], the proper remedy is for the insurer to suspend

performance of its duties. [Id. at 68-70 (emphasis added).]

Therefore, under Roberts,

State Farm may reason-

ably suspend claims by the injured parties due to a

failure to submit to MEs, and a suspension of beneﬁts

is not an irrevocable denial of beneﬁts; the eligibility

for PIP beneﬁts is simply suspended until compliance

with the ME. Likewise, we conclude that evidence that

an injured party failed to submit to an ME that later

results in a suspension of the claim is not tantamount

to dispositive evidence that the injured person is not

entitled to PIP beneﬁts.

With regard to the effect of an injured party’s failure

to submit to an EUO, the Supreme Court’s decision in

Cruz v State Farm Mut Auto Ins Co, 466 Mich 588; 648

NW2d 591 (2002), is instructive. In Cruz, the Court

held that EUO provisions may be included in no-fault

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polices, but they are only enforceable to the extent that

they do not conﬂict with the statutory requirements of

the no-fault act. Id. at 590. Accordingly, a policy provi-

sion requiring a claimant to submit to an EUO that is

“designed only to ensure that the insurer is provided

with the information relating to proof of the fact and of

the amount of the loss sustained . . . would not run

afoul of the statute.” Id. at 598. However, “a no-fault

policy that would allow the insurer to avoid its obliga-

tion to make prompt payment upon the mere failure to

comply with an EUO would run afoul of the statute

and accordingly be invalid.” Id.

State Farm contends, inter alia, that the injured

parties are ineligible for PIP beneﬁts because they

failed to submit to EUOs. However, taken to its logical

extension, State Farm’s argument, that the failure to

submit to an EUO is alone sufﬁcient to render the

injured person ineligible for PIP beneﬁts, would cause

compliance with EUO provisions to effectively operate

as a condition precedent to State Farm’s duty to pay

no-fault beneﬁts.

However, using compliance with

EUO

provisions as a condition precedent to the recov-

ery of no-fault beneﬁts is precluded by Cruz, which

held that an insurance company and its insured are

not permitted to contract in a manner that vitiates the

insurance company’s “duty to pay beneﬁts in a timely

fashion as required by the statute. Once ‘reasonable

As State Farm argues in Docket No. 322317, it does appear that the

purpose of invoking the EUO provision was to ensure that it was

provided with information regarding Johnson’s eligibility for PIP ben-

eﬁts under the insurance policy. However, as we explain in this opinion,

we hold that the injured party’s failure to submit to an EUO or provide

other documentation does not establish, as a matter of law, that the

injured party is not entitled to PIP beneﬁts, such that a healthcare

provider is not entitled to receive payment for medical services as a

matter of law.

134 313

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113 [Oct

proof of the fact and of the amount of loss sustained’

[is] received by [the insurer], it [must] pay beneﬁts or

be subject to the penalties.” Id. at 600. Accordingly, we

hold that the failure to submit to an EUO does not

establish, as a matter of law, that an injured party is

not entitled to no-fault beneﬁts.

In these cases, it is apparent that an irrevocable

denial

of beneﬁts had not been issued by State Farm

either case: State Farm had only suspended Jack-

son’s claim for beneﬁts because of its inability to

determine whether Jackson was eligible for outstand-

ing or future beneﬁts, and there is no indication that

State Farm took any action following Johnson’s failure

to appear at the EUOs. Therefore, we conclude that the

injured parties’ failure to submit to the MEs and EUOs

requested by State Farm did not demonstrate that

there is no genuine issue of material fact as to whether

plaintiffs, as the injured parties’ healthcare providers,

were entitled to no-fault beneﬁts as a matter of law,

because the injured parties’ failure to comply does not

conclusively establish the ineligibility of the injured

parties to PIP beneﬁts and plaintiffs’ related inability

to recover payment for services from State Farm. State

Farm remained statutorily obligated to pay beneﬁts in

a timely manner if the injured parties complied with

the requirements of the no-fault act, which includes

submitting to an ME if requested,

demonstrating

that

they are eligible for beneﬁts under the policy,

and providing “reasonable proof of the fact and of the

See Roberts, 275 Mich App at 69.

MCL 500.3151.

See Douglas v Allstate Ins Co, 492 Mich 241, 257; 821 NW2d 472

(2012) (stating that MCL 500.3105(1) includes two threshold require-

ments that a plaintiff must establish in order to show entitlement to PIP

beneﬁts: (1) “the claimed beneﬁts are causally connected to the acciden-

tal bodily injury arising out of an automobile accident” and (2) the

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amount of loss sustained.”

Viewing the evidence in

the light most favorable to the parties opposing the

motions for summary disposition, see Calhoun Co, 297

Mich App at 11-12, the medical records proffered by

plaintiffs in the district courts established that there

were genuine issues of material fact regarding whether

the injured parties’ claims were causally connected to

accidental bodily injuries arising out of an automobile

accident, which involved the use of a motor vehicle.

Likewise, the medical records provided by plaintiffs

established a genuine issue of material fact regarding

whether plaintiffs had proffered reasonable proof of

the fact and of the amount of loss sustained, such that

State Farm was required to pay PIP beneﬁts to plain-

tiffs. Therefore, because “reasonable minds could differ

on an issue after viewing the record in the light most

favorable to the nonmoving party,” Allison, 481 Mich at

425, and “the evidence submitted ‘might permit infer-

ences contrary to the facts asserted by the movant,’ ”

Dillard, 308 Mich App at 445 (citation omitted), the

district courts did not err by denying State Farm’s

motions for summary disposition under MCR

2.116(C)(10).

Our conclusion here is consistent with the public

policy goals of the no-fault act. As discussed by this

Court in Wyoming Chiropractic, 308 Mich App at 401:

[t]he goal of the no-fault act is “ ‘to provide victims of

motor

vehicle accidents with assured, adequate, and

prompt reparation for certain economic losses.’ ” The no-

“injuries [arose] out of or [were] caused by the ownership, operation,

maintenance or use of a motor vehicle”) (citation and quotation marks

omitted).

MCL 500.3142 (“Personal protection insurance beneﬁts are overdue

if not paid within 30 days after an insurer receives reasonable proof of the

fact and of the amount of loss sustained.”) (emphasis added); see also

Cruz, 466 Mich at 600.

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113 [Oct

fault act was designed to remedy “ ‘long delays, inequi-

table payment structure, and high legal costs’ ” in the tort

system. Allowing a healthcare provider to bring a cause of

action expedites the payment process to the healthcare

provider when payment is in dispute. [Emphasis added;

citations omitted.]

See also Shavers v Attorney General, 402 Mich 554,

621-623; 267 NW2d 72 (1978) (describing operational

deﬁciencies in the previous tort system and the corre-

sponding changes enacted under the no-fault personal

injury protection system). However, “[i]t is clear that

the Legislature did not intend for no-fault insurers to

pay all claims submitted without reviewing the claims

for lack of coverage, excessiveness, or fraud.” Advocacy

Org for Patients & Providers v Auto Club Ins Ass’n, 257

Mich App 365, 378; 670 NW2d 569 (2003) (quotation

marks, citation, and emphasis omitted). Although it is

evident that the no-fault act balances injured parties’

interests in assured payment with insurance provid-

ers’ interests in ensuring that they do not pay ineli-

gible, excessive, or fraudulent claims, the statutory

scheme and public policy goals of the act demonstrate

a signiﬁcant emphasis on assured, adequate, and

prompt reparation for the victims of motor vehicle

accidents and, correspondingly, those who may claim

beneﬁts “for the beneﬁt of an injured person,” i.e.,

healthcare providers. MCL 500.3112. As recognized in

Wyoming Chiropractic, a healthcare provider’s suit for

the payment of PIP beneﬁts when payment is in

dispute, even when an injured party has failed to

comply with MEs or EUOs, expedites the payment

process, and increases the probability of assured pay-

ment, for the healthcare provider. Likewise, given that

plaintiffs are still required to establish the injured

parties’ eligibility for beneﬁts in order to receive pay-

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ment,

State Farm’s interest in preventing payment

for claims barred by lack of coverage, excessiveness, or

fraud is still preserved. See Advocacy Org, 257 Mich

App at 377-379. Therefore, for the reasons stated in

this opinion, we hold that the injured parties’ failure to

comply with the MEs and EUOs did not establish that

State Farm was entitled to summary disposition as a

matter of law.

III

Finally, State Farm argues in Docket No. 322317

that

the district court abused its discretion when it

failed to grant State Farm’s request for leave to amend

its afﬁrmative defenses to include an allegation that

Johnson’s ineligibility for no-fault beneﬁts barred

plaintiffs’ claims. We agree.

This Court reviews for an abuse of discretion a trial

court’s ruling on a motion for leave to amend a plead-

ing. Titan Ins Co v North Pointe Ins Co, 270 Mich App

339, 346; 715 NW2d 324 (2006). “An abuse of discretion

occurs when the trial court’s decision is outside the

range of reasonable and principled outcomes.” Brown v

Home-Owners Ins Co, 298 Mich App 678, 690; 828

NW2d 400 (2012) (quotation marks and citation omit-

ted).

MCR 2.111(F)(3) requires that a party state its afﬁr-

mative defenses in the party’s responsive pleading,

either as originally ﬁled or as amended under MCR

2.118. Speciﬁcally, pursuant to MCR 2.111(F)(3)(b), a

party must state the facts constituting “a defense that

Given that State Farm properly suspended beneﬁts in Docket No.

320288 because Jackson failed to submit to an ME, Chiropractors

Rehabilitation Group, whose claim is derivative and dependent on

Jackson’s eligibility for beneﬁts, would still be subject to the suspension

of beneﬁts until Jackson complied with the investigation. See Moody,

304 Mich App at 440.

138 313

ICH

113 [Oct

by reason of other afﬁrmative matter seeks to avoid

the legal effect of or defeat the claim of the opposing

party, in whole or in part[.]” Under MCR 2.118(A)(2),

leave to amend pleadings “shall be freely given when

justice so requires.”

A motion to amend ordinarily should be granted, and

should

be denied only for the following particularized

reasons:

[1] undue delay, [2] bad faith or dilatory motive

on the part of the movant, [3] repeated failure to

cure deﬁciencies by amendments previously al-

lowed, [4] undue prejudice to the opposing party by

virtue of allowance of the amendment, [and 5] futil-

ity . . . . [Weymers v Khera, 454 Mich 639, 658; 563

NW2d 647 (1997) (quotation marks and citation

omitted; alterations in original).]

In Johnson’s case, the trial court denied State

Farm’s

motion to amend on the basis that it failed to

make a legal argument or cite any caselaw indicating

that justice required an amendment of State Farm’s

afﬁrmative defenses. The trial court’s reasoning was

equivalent to a ﬁnding that the amendment would be

futile. “An amendment is futile where, ignoring the

substantive merits of the claim, it is legally insufﬁcient

on its face.” Gonyea v Motor Parts Fed Credit Union,

192 Mich App 74, 78; 480 NW2d 297 (1991). While

futility may warrant denying a motion to amend a

pleading, Weymers, 454 Mich at 658, in Johnson’s case,

the proposed amendment was not necessarily futile. As

we explained in Part II(B), a healthcare provider’s

ability to recover medical expenses under the no-fault

act depends on whether the injured party is eligible for

no-fault beneﬁts. Accordingly, if it were established

that Johnson is not eligible for no-fault beneﬁts, the

providers’ cause of action would be precluded. In its

brief in support of its motion to amend its afﬁrmative

2015] C

HIRO

EHAB

ROUP V

TATE

ARM

139

defenses and for summary disposition, State Farm

cited authority in support of its position that the

healthcare providers stand in the shoes of Johnson,

such that the healthcare providers are no more entitled

to recover beneﬁts than Johnson. Therefore, to the

extent that State Farm’s proposed amendment in-

cluded an allegation that Johnson’s ineligibility for

no-fault beneﬁts barred plaintiffs’ claims, State Farm

should have been given leave to amend its afﬁrmative

defenses. Such an afﬁrmative defense, if proven,

would, in fact, defeat plaintiffs’ claims. Therefore, the

court abused its discretion when it failed to permit the

proposed amendment to State Farm’s afﬁrmative de-

fenses.

We afﬁrm the district court orders denying State

Farm’s motions for summary disposition in Docket

Nos. 320288 and 322317, reverse the order denying

State Farm’s motion to amend its afﬁrmative defenses

in Docket No. 322317, and remand for further proceed-

ings consistent with this opinion in both appeals. As

the prevailing party in Docket No. 320288, Chiroprac-

tors Rehabilitation Group may tax costs pursuant to

MCR 7.219. No taxable costs in Docket No. 322317,

none of the parties having prevailed in full. We do not

retain jurisdiction.

HAPIRO

and R

ONAYNE

RAUSE

, JJ., concurred with

ILDER

, P.J.

140 313 M

ICH

113

SMITH v CITY OF FLINT

Docket No. 320437. Submitted July 8, 2015, at Detroit. Decided Novem-

ber 5, 2015, at 9:00 a.m. Leave to appeal sought.

Kevin Smith ﬁled a complaint in the Genesee Circuit Court against

the city of Flint, in which he alleged a violation of the Whistle-

blowers’ Protection Act (WPA), MCL 15.361 et seq., arising from

defendant’s assignment of plaintiff to third-shift road patrol in

the north end of Flint, following the elimination of his day-shift

position as union president. Plaintiff claimed that the job assign-

ment was in retaliation for his publicly expressed disapproval of

defendant’s use of $5.3 million raised after voters approved a

six-mill millage to collect funds for public safety. Plaintiff com-

plained publicly that defendant was not using the funds raised by

the millage increase to hire as many police ofﬁcers as possible.

Defendant ﬁled a motion under MCR 2.116(C)(8) for summary

disposition of plaintiff’s WPA claim, which the court, Joseph J.

Farah, J., granted. Plaintiff ﬁled an application for leave to

appeal in the Court of Appeals. It was denied. Plaintiff then ﬁled

an application for leave to appeal in the Supreme Court. The

Supreme Court remanded the case to the Court of Appeals for

consideration as on leave granted. 497 Mich 920 (2014).

The Court of Appeals held:

1. The trial court properly granted summary disposition in

favor of defendant on plaintiff’s WPA claim because plaintiff failed

to satisfy the second element of a prima facie case under the WPA.

A prima facie case under the WPA requires a plaintiff to show that

(1) the plaintiff was engaged in a protected activity deﬁned by the

WPA, (2) the defendant took an adverse employment action

against the plaintiff, and (3) there is a causal connection between

the protected activity and the adverse employment action. In this

case, plaintiff failed to show that defendant took an adverse

employment action against him; that is, plaintiff failed to show

that defendant discharged, threatened, or otherwise discriminated

against him in a manner that affected his compensation, terms,

conditions, location, or privileges of employment. Plaintiff claimed

that his assignment to patrol duty was a retaliatory action because

he publicly complained about defendant’s use of the millage funds.

However, an adverse employment action is a decision that is

MITH V

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141

materially adverse to a reasonable person; it is more than a mere

inconvenience or alteration of job responsibilities. There must be

objective evidence that the decision constituted an adverse employ-

ment action; a plaintiff’s subjective impressions are not controlling.

Plaintiff failed to show either that he was retaliated against within

90 days of ﬁling his complaint or that his assignment to patrol duty

in the north end of Flint was an adverse employment action. The

elimination of plaintiff’s job as union president occurred long

before he was assigned to patrol duty and before plaintiff publicly

complained about the millage funds. The Court of Appeals con-

cluded that the change in the location of plaintiff’s job was an

employment decision squarely within defendant’s exercise of dis-

cretion, and that a move from one location to another location in

the same city plaintiff was sworn to protect, did not constitute a

signiﬁcant or an objective change in location for purposes of the

WPA.

2. The Court of Appeals also determined that even if it were to

hold that plaintiff suffered an adverse employment action under

the WPA, plaintiff could not establish that he was engaged in a

protected activity before he was assigned to patrol duty. Plaintiff

did not participate in an investigation by a public body, and

therefore, he was required to allege facts to establish that he

reported or was about to report a violation of the law to a public

body. In this case, plaintiff did not assert what rule or law was

violated by defendant’s use of the millage fund. In fact, plaintiff

merely disagreed with defendant’s policy decisions with regard to

the millage fund. Defendant’s expenditures did not violate any rule

or law.

Afﬁrmed.

ORT

OOD

, P. J., dissenting, would have reversed the trial

court’s decision and remanded the matter to the trial court for

further proceedings. Plaintiff created a question of fact about

whether defendant discriminated against him regarding the

terms, conditions, location, or privileges of his employment. In this

case, plaintiff worked the day shift as the union president before

that position was eliminated. He was later assigned to the night

shift to patrol a dangerous part of the city. In between the

elimination of his position as union president and his patrol

assignment, plaintiff publicly criticized the way defendant was

using the money collected from the millage increase. The patrol

assignment changed the location of plaintiff’s “workplace,” and the

change from day shift to night shift represented a change in the

terms of plaintiff’s employment. Viewing the complaint in the light

most favorable to plaintiff, plaintiff established a question of fact

about whether a reasonable person would consider defendant’s

142 313

ICH

141 [Nov

actions to be objectively and materially adverse to the terms and

location of plaintiff’s employment.

HISTLEBLOWERS

’ P

ROTECTION

CT —

DVERSE

MPLOYMENT

CTIONS —

HANGE IN

OCATION OF

MPLOYMENT —

UBLIC

AFETY

An adverse employment action is a decision that is objectively and

materially adverse to a reasonable person; a mere inconvenience or

alteration of job responsibilities is not an adverse employment

action; a change in the location of employment must be a signiﬁ-

cant and objective one to qualify as an adverse employment action;

an employee’s assignment from one city to another, or when an

employer has multiple locations, from one location to another, is

the sort of signiﬁcant and objective change contemplated by the

Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq.; a police

ofﬁcer’s change of assignment and location within the same city he

or she was sworn to protect does not constitute a signiﬁcant change

of location under the WPA; the decision about an ofﬁcer’s patrol

area falls squarely within the discretion exercised by a police

department in its fundamental role of securing public safety.

Tom R. Pabst for plaintiff.

Anthony Chubb for defendant.

Before: F

ORT

OOD

, P.J., and S

AAD

and R

IORDAN

, JJ.

AAD

, J. Plaintiff appeals from the order that

granted partial summary disposition to defendant.

Speciﬁcally, plaintiff challenges the trial court’s grant

of summary disposition to defendant under MCR

2.116(C)(8) on plaintiff’s claim under the Whistleblow-

ers’ Protection Act (WPA), MCL 15.361 et seq. For the

reasons provided below, we afﬁrm.

I. BASIC FACTS

Plaintiff, a police ofﬁcer with the Flint Police Depart-

ent, had been president of the City of Flint Police

This Court initially declined to grant leave, but our Supreme Court

remanded for consideration as on leave granted. Smith v City of Flint,

497 Mich 920 (2014).

2015] S

MITH V

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Ofﬁcers Union since approximately February 2011. As

the union president, he worked from 8:00 a.m. until 4:00

p.m., handling all work-related grievances ﬁled against

defendant by Flint police ofﬁcers. On April 24, 2012,

Michael Brown, Flint’s emergency manager, issued Or-

der 18, which eliminated the position of full-time union

president. However, plaintiff continued to act as union

president for the remainder of 2012.

In November 2012, Flint voters passed a ﬁve-year,

six-mill millage to collect funds for public safety. The

total amount of funds for the ﬁrst year was projected to

be $5.3 million. After the millage increase was passed,

plaintiff publicly complained that the revenue from the

millage was not being used to hire as many new police

ofﬁcers as possible. On March 8, 2013, defendant’s

police chief informed plaintiff in writing that he was to

be placed on road patrol beginning March 11, 2013.

Plaintiff asserted that defendant retaliated against him

for publicly criticizing the misuse of the millage revenue

by assigning him to patrol Flint’s north end, which he

claimed was the most dangerous part of the city.

Plaintiff thereafter ﬁled a complaint against defen-

dant that included, among other claims, a claim for

retaliation in violation of the WPA. Defendant moved

for summary disposition under MCR 2.116(C)(8) of

plaintiff’s WPA claim, arguing that plaintiff’s assign-

ment to the north end of Flint did not constitute an

adverse employment action under the WPA. The trial

court agreed and granted defendant’s motion for sum-

mary disposition of plaintiff’s WPA claim.

II. STANDARDS OF REVIEW

We review a trial court’s decision on a motion for

ummary disposition de novo. Maiden v Rozwood, 461

Mich 109, 118; 597 NW2d 817 (1999).

144 313 M

ICH

141 [Nov

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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

deciding a motion brought under this section, a court

considers only the pleadings. [Id. at 119-120 (quotation

marks and citations omitted).]

Further, we review questions of statutory interpre-

tation

de novo. Whitman v City of Burton, 493 Mich

303, 311; 831 NW2d 223 (2013). “When interpreting a

statute, we follow the established rules of statutory

construction, the foremost of which is to discern and

give effect to the intent of the Legislature.” Id. “If the

language of a statute is clear and unambiguous, the

statute must be enforced as written and no further

judicial construction is permitted.” Id.

III. ANALYSIS

“The underlying purpose of the [WPA] is protection of

he public.” Dolan v Continental Airlines/Continental

Express, 454 Mich 373, 378; 563 NW2d 23 (1997). “The

WPA provides a remedy for an employee who suffers

retaliation for reporting or planning to report a sus-

pected violation of a law, regulation, or rule to a public

body.” Anzaldua v Neogen Corp, 292 Mich App 626, 630;

808 NW2d 804 (2011). “The statute meets this objective

by protecting the whistleblowing employee and by re-

moving barriers that may interdict employee efforts to

report violations or suspected violations of the law.” Id.

at 631 (quotation marks and citation omitted). Addition-

ally, “[t]he WPA is a remedial statute and must be

liberally construed to favor the persons that the Legis-

lature intended to beneﬁt.” Id.

2015] S

MITH V

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145

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The relevant portion of the WPA provides the follow-

ing:

An employer shall not discharge, threaten, or otherwise

discriminate against an employee regarding the employ-

ee’s compensation, terms, conditions, location, or privi-

leges of employment because the employee, or a person

acting on behalf of the employee, reports or is about to

report, verbally or in writing, a violation or a suspected

violation of a law or regulation or rule promulgated

pursuant to law of this state, a political subdivision of this

state, or the United States to a public body, unless the

employee knows that the report is false, or because an

employee is requested by a public body to participate in an

investigation, hearing, or inquiry held by that public body,

or a court action. [MCL 15.362.]

Thus, in order to establish a prima facie case under

the WPA, a plaintiff must show that “(1) the plaintiff

was engaged in protected activity as deﬁned by the

[WPA], (2) the defendant took an adverse employment

action against the plaintiff, and (3) ‘a causal connection

exists between the protected activity’ and the adverse

employment action.” Debano-Grifﬁn v Lake Co, 493

Mich 167, 175; 828 NW2d 634 (2013), quoting Chan-

dler v Dowell Schlumberger Inc, 456 Mich 395, 399;

572 NW2d 210 (1998).

A. ADVERSE EMPLOYMENT ACTION

In its order, our Supreme Court directed us to speciﬁ-

ally address whether plaintiff established a prima facie

case with respect to the second element, i.e., “whether

the plaintiff has stated a claim that he suffered dis-

crimination regarding his terms, conditions, location, or

privileges of employment.” Smith, 497 Mich 920.

In interpreting this element, Michigan courts have

routinely characterized the retaliatory actions that are

146 313 M

ICH

141 [Nov

PINION OF THE

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prohibited under MCL 15.362 as “adverse employment

actions.” See Wurtz v Beecher Metro Dist, 495 Mich 242,

251 n 14; 848 NW2d 121 (2014). And consistent with

that interpretation, Michigan courts typically state

that a plaintiff must plead and be able to prove that he

or she suffered an adverse employment action in order

to establish a WPA claim. See, e.g., Whitman, 493 Mich

at 313. “The term ‘adverse employment action’ was

originally developed and deﬁned in the context of

federal antidiscrimination statutes to encompass the

various ways that an employer might retaliate or

discriminate against an employee on the basis of age,

sex, or race.” Wurtz, 495 Mich at 251 n 14.

The trial court relied on Peña v Ingham Co Rd

Comm, 255 Mich App 299, 311; 660 NW2d 351 (2003),

which “deﬁned an adverse employment action as an

employment decision that is materially adverse in

that it is more than a mere inconvenience or an

alteration of job responsibilities.” (Quotation marks

and citations omitted.) The Peña Court explained that

“there must be some objective basis for demonstrating

that the change is adverse because a plaintiff’s sub-

jective impressions . . . are not controlling.” Id. (quo-

tation marks and citations omitted). The Court stated

that a “typical” adverse employment action “takes the

form of an ultimate employment decision, such as ‘a

termination in employment, a demotion evidenced by

a decrease in wage or salary, a less distinguished title,

a material loss of beneﬁts, signiﬁcantly diminished

material responsibilities, or other indices that might

be unique to a particular situation.’ ” Id. at 312,

quoting White v Burlington N & S F R Co, 310 F3d

443, 450 (CA 6, 2002), vacated for en banc rehearing 321

F3d 1203 (CA 6, 2003). “In determining the existence of

an adverse employment action, courts must keep in

mind the fact that ‘[w]ork places are rarely idyllic

2015] S

MITH V

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PINION OF THE

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retreats, and the mere fact that an employee is dis-

pleased by an employer’s act or omission does not

elevate that act or omission to the level of a materially

adverse employment action.’ ” Peña, 255 Mich App at

312, quoting Blackie v Maine, 75 F3d 716, 725 (CA 1,

1996) (alteration in original). Although Peña involved a

retaliation claim pursuant to the Michigan Civil Rights

Act, this Court has applied the reasoning in that context

to the context of the WPA. See Heckmann v Detroit Chief

of Police, 267 Mich App 480, 492; 705 NW2d 689 (2005),

overruled in part on other grounds Brown v Mayor of

Detroit, 478 Mich 589; 734 NW2d 514 (2007).

Plaintiff asserts that the federal law on which Peña

relied has been overruled. We note that federal courts

have rejected the interpretation that an adverse em-

ployment action must take the form of an “ultimate

employment decision.” In White v Burlington N

& S F R Co, 364 F3d 789, 801-802 (CA 6, 2004), the

United States Court of Appeals for the Sixth Circuit,

sitting en banc, rejected the “ultimate employment

decision” limitation imposed on retaliation claims.

The United States Supreme Court afﬁrmed that de-

cision and explained that actionable retaliation was

not properly limited to “ultimate employment deci-

sions.” Burlington N & S F R Co v White, 548 US 53,

67; 126 S Ct 2405; 165 L Ed 2d 345 (2006). The

Supreme Court explained that the anti-retaliation

provision of Title VII claims may include actions and

harms occurring both in and out of the workplace, but

any actions must be materially adverse to a reason-

able employee or job applicant. Id. at 67-68.

“While Michigan courts are not bound by federal title VII precedent

in interpreting Michigan Civil Rights Act cases, such precedent is highly

persuasive.” Cole v Gen Motors Corp, 236 Mich App 452, 456; 600 NW2d

421 (1999).

148 313 M

ICH

141 [Nov

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Consistent with the federal courts, our Supreme

Court has also expressed an intention to move away

from language that interprets the construct of a retal-

iatory action in a way not prescribed by statute. In

Wurtz, our Supreme Court rejected the assertion that a

plaintiff may establish a WPA claim by showing that he

or she suffered some “abstract” adverse employment

action. Wurtz, 495 Mich at 251 n 14. The Court ex-

plained:

While the term “adverse employment action” may be

helpful

shorthand for the different ways that an employer

could retaliate or discriminate against an employee, this

case illustrates how such haphazard, telephone-game ju-

risprudence can lead courts far aﬁeld of the statutory

language. That is, despite courts’ freewheeling transfer-

ence of the term from one statute to another, the WPA

actually prohibits different “adverse employment actions”

than the federal and state antidiscrimination statutes. So

we take this opportunity to return to the express language

of the WPA when it comes to the necessary showing for a

prima facie case under that statute. Put another way, a

plaintiff’s demonstration of some abstract “adverse em-

ployment action” as that term has developed in other lines

of caselaw will not be sufﬁcient. Rather, the plaintiff must

demonstrate one of the speciﬁc adverse employment ac-

tions listed in the WPA. [Id.]

Accordingly, in order to establish an adverse employ-

ment

action under the WPA, a plaintiff has to show

that he was discharged, threatened, or otherwise dis-

criminated against, in a manner that affected his

compensation, terms, conditions, location, or privileges

of employment. Id. at 251. Moreover, in determining

whether a retaliatory action listed in the statute oc-

curred, we hold that the objective and material stan-

dard provided by Peña continues to apply. Namely, an

adverse employment action (regarding an employee’s

compensation, terms, conditions, location, or privileges

2015] S

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of employment) must be more than a mere inconve-

nience or an alteration of job responsibilities. There

must be some objective basis for concluding that the

change is adverse. A plaintiff’s subjective impressions

as to the desirability of one position over another are

not controlling. See Peña, 255 Mich App at 314.

Here, plaintiff has not alleged sufﬁcient facts to

show that he suffered an actual adverse employment

action within 90 days of ﬁling his complaint.

Plaintiff’s

removal as full-time union president and his return to

work as a patrol ofﬁcer was accomplished by the

emergency ﬁnancial manager’s order in April 2012,

which was well over 90 days before plaintiff ﬁled his

complaint on May 31, 2013. In fact, the decision to

return plaintiff to work as a police ofﬁcer was made

before plaintiff complained about the use of the millage

revenue.

Further, plaintiff’s subsequent assignment to patrol

duty in the north end of Flint does not constitute an

adverse employment action. While retaliation related

to an employee’s “location” is expressly covered by the

WPA, we do not construe “location” under the statute

to encompass the action here. Plaintiff’s assignment to

patrol an area of the city is better characterized as a

“job duty” that falls squarely within the discretion

exercised by a police department in its fundamental

role of securing public safety. We discern the statute’s

reference to a change in location to be a signiﬁcant,

objective one, such as a move from one city to another

or, when an employer has multiple locations, from one

location to another. Here, the area where ofﬁcers patrol

within the same city they were sworn to protect con-

cerns job assignments; patrol areas are not a matter of

MCL 15.363(1) requires a plaintiff to bring a WPA claim “within 90

days after the occurrence of the alleged violation of th[e] act.”

150 313 M

ICH

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“location” for purposes of the WPA. As a result, plain-

tiff’s assignment to a particular patrol duty within the

city of Flint is, objectively, simply not covered by the

WPA.

In sum, under the facts pleaded by plaintiff, defen-

dant’s alleged acts of retaliation do not constitute an

adverse employment action under the WPA. Accord-

ingly, summary disposition in defendant’s favor is

proper under MCR 2.116(C)(8). Although the trial

court erroneously equated an “adverse employment

action” with an “ultimate employment decision,” we

will not reverse when the court reaches the right

result, albeit for the wrong reason. Gleason v Dep’t of

Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003).

B. PROTECTED ACTIVITY

We also note that even if we were to hold that

plaintiff

pleaded sufﬁcient facts to show that he suf-

fered an adverse employment action under the WPA,

summary disposition would nonetheless be appropri-

ate because plaintiff failed to establish that he partici-

pated in any protected activity under the statute.

The WPA protects two types of whistleblowers. A

“type 1 whistleblower” is “one who, on his own initia-

tive, takes it upon himself to communicate the employ-

er’s wrongful conduct to a public body in an attempt to

bring the, as yet hidden, violation to light to remedy

the situation or harm done by the violation.” Henry v

Detroit, 234 Mich App 405, 410; 594 NW2d 107 (1999).

A “type 2 whistleblower” is “[one] who participate[s] in

a previously initiated investigation or hearing at the

behest of a public body.” Id.

Initially, we note that plaintiff does not allege any

facts that would indicate that he was a type 2 whistle-

blower. While he merely reproduced in his complaint

2015] S

MITH V

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the keywords of the WPA—that he “participated in an

investigation and/or inquiry and/or hearing by a public

body”—plaintiff alleged zero facts in support of this

conclusory assertion. Consequently, this unsupported

assertion that he was a type 2 whistleblower is not

sufﬁcient to survive a motion for summary disposition.

See Ypsilanti Fire Marshal v Kircher (On Reconsidera-

tion), 273 Mich App 496, 544; 730 NW2d 481 (2007) (“It

is axiomatic that conclusory statements unsupported

by factual allegations are insufﬁcient to state a cause

of action.”).

Accordingly, if plaintiff is to prevail, he must allege

facts to show that he qualiﬁed as a type 1 whistle-

blower, i.e., that he reported or was about to report a

violation of the law to a public body. Here, plaintiff did

not demonstrate that he engaged in any protected

activity. First and foremost, plaintiff has not alleged

what law or rule was violated when defendant chose to

use the $5.3 million from the millage in the manner it

did. At the heart of any protected activity is a violation

or a suspected violation of an established law or rule.

See MCL 15.362. What is clear is that plaintiff simply

disagreed with the policy decisions that defendant

made with respect to the funds. A person’s mere

disagreement with a governmental body’s decisions

does not mean that the governmental body violated the

law. Certainly, there are countless examples of how

government has made illogical or highly questionable

decisions, but the lack of logic or wisdom in those

decisions does not make the government’s actions

illegal. Moreover, we take judicial notice that the

millage proposal in question sought the funds “for the

sole purpose of providing police and ﬁre protection.”

(Emphasis added.) Nowhere did the proposal state that

all of the funds raised were to be dedicated to the police

department, and the proposal also did not state that all

152 313 M

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141 [Nov

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of the funds would be used to hire new people. Clearly,

there are other nonpersonnel expenses that are neces-

sary for both the police and ﬁre departments, so that

the entirety of the funds could not be used for new

hires.

Consequently, plaintiff not only failed to allege sufﬁ-

cient facts to show that he suffered an adverse employ-

ment action under the WPA, plaintiff also failed to

allege sufﬁcient facts to show that he was engaged in

any protected activity.

Thus, dismissal of his WPA

laim was appropriate under MCR 2.116(C)(8), and the

fact that this element of a prima facie WPA claim was

not speciﬁcally challenged in the trial court is of no

consequence. See MCR 2.116(I)(1) (“If the pleadings

show that a party is entitled to judgment as a matter of

law, . . . the court shall render judgment without de-

lay.”).

Afﬁrmed. Defendant, as the prevailing party, may

tax costs pursuant to MCR 7.219.

IORDAN

, J., concurred with S

AAD,

ORT

OOD

, P.J. (dissenting). I respectfully dissent

from the majority opinion. I agree with the majority’s

determinations regarding the applicable law, but I dis-

agree with the analysis. I would conclude that a ques-

tion of fact exists with regard to whether defendant

discriminated against plaintiff regarding the terms,

To be clear, our holding is limited to plaintiff’s WPA claim. While

objecting to a government’s policy decisions does not implicate the WPA

because the complained-of conduct is ordinarily not illegal, such objec-

tion may implicate an employee’s right to be protected from retaliation

on First Amendment grounds. See Pickering v Bd of Ed, 391 US 563; 88

S Ct 1731; 20 L Ed 2d 811 (1968). However, plaintiff never made a First

Amendment claim, and the issue is not before us.

2015] S

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ISSENTING

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ORT

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, P.J.

conditions, location, or privileges of his employment,

and I would reverse and remand for further proceed-

ings.

Concerning plaintiff’s change from full-time union

president to road patrol, I agree that plaintiff has not

established a question of fact about whether the

change constituted discrimination under MCL 15.362.

Defendant’s emergency manager eliminated the posi-

tion of full-time union president in April 2012, months

before plaintiff initiated any public criticism of defen-

dant. While acting as union president may have been a

privilege of plaintiff’s employment, there is no question

that eliminating the position was not retaliatory given

the timing of the events.

However, plaintiff’s assignment to the night shift in

Flint’s north end presents a closer question. Plaintiff,

who had worked from 8:00 a.m. until 4:00 p.m. in his

capacity as union president, was informed in writing

that he was being assigned to road patrol. The letter

stated that plaintiff’s hours would be 8:00 a.m. to 4:00

p.m. However, plaintiff was actually assigned the

night shift in the north end of Flint. Plaintiff asserts

that the north end was “considered crime ridden and

a much more dangerous area of assignment for police

ofﬁcers” and that the south end was “a more safe

area” compared to the north end. Plaintiff indicated

that he did not know of any other patrol ofﬁcers that

were assigned to work the north end (or any other

area) exclusively. Plaintiff also alleged that he was

told that he would not be allowed to work in the south

end. In addition, plaintiff claimed that his assignment

to night shift prevented him from conducting his

union duties, which must be performed during day-

light hours. According to plaintiff, his assignment to

the night shift was deliberately designed to thwart

154 313 M

ICH

141 [Nov

ISSENTING

PINION BY

ORT

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, P.J.

his union duties. In response, defendant claimed that

plaintiff’s concerns regarding his hours and shift were

only his subjective complaints, and that plaintiff did

not produce any objective evidence that his transfer

affected the terms, conditions, location, or privileges

of his employment.

I would hold that there is a question of fact regard-

ing whether defendant’s conduct constitutes discrimi-

nation. I believe that the change in plaintiff’s hours

and location relates to the terms and location of his

employment. In particular, plaintiff was informed in

writing that his hours on road patrol would be 8:00

a.m. until 4:00 p.m., which was consistent with his

former schedule. Plaintiff’s work hours relate to a

term of his employment. Moreover, accepting plain-

tiff’s claims as true, it does appear as though he would

be unable to perform his union duties during his shift,

even if he was able to obtain a supervisor’s permission

to do so, as required by Order 18. In addition, plaintiff

was assigned to patrol the north end exclusively,

which relates to the terms and location of his employ-

ment. Plaintiff alleged that this area was more dan-

gerous than other areas of the city and that no other

ofﬁcers were assigned to that area exclusively. View-

ing the complaint in a light most favorable to plain-

tiff, Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d

817 (1999), I believe that plaintiff has established a

question of fact about whether defendant’s actions

could be objectively and materially adverse to a

reasonable person. Peña v Ingham Co Rd Comm, 255

Mich App 299, 312; 660 NW2d 351 (2003). Accord-

ingly, I would hold that there is a question about

whether defendant’s actions constituted discrimina-

tion under MCL 15.362 with regard to the terms and

2015] S

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, P.J.

location of defendant’s employment.

For the reasons stated, I would reverse and remand

to the trial court for further proceedings.

I limit my dissent to the issue that our Supreme Court directed this

Court to consider, and thus, do not address the majority’s discussion of

whether plaintiff pleaded sufﬁcient facts to establish a protected activ-

ity. Smith v City of Flint, 497 Mich 920 (2014).

156 313 M

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, P.J.

TRANTHAM v STATE DISBURSEMENT UNIT

Docket No. 322289. Submitted November 3, 2015, at Lansing. Decided

November 10, 2015, at 9:00 a.m. Vacated in part 500 Mich 872.

Jeffrey Trantham, on behalf of himself and all others similarly

situated, brought an action in the Court of Claims against the

State Disbursement Unit, the Department of Health and Human

Services, and the Ofﬁce of Child Support. Plaintiff challenged the

$3.50 monthly charge collected, in accordance with MCL

600.2538, by the Friend of the Court (FOC) from child and

spousal support payments. The court, M

ICHAEL

J. T

ALBOT

, J.,

granted defendants’ motion for summary disposition brought

under MCR 2.116(C)(8). Plaintiff appealed.

The Court of Appeals held:

1. Under Title IV, Part D (Title IV-D) of the Social Security

Act, 42 USC 651 through 42 USC 669b, the federal government

appropriates funds to states to assist with child support enforce-

ment. In turn, states must establish certain programs and

procedures related to the provision of child support services.

Under MCL 600.2538, persons who make support payments

through the FOC system pay a monthly charge of $3.50 for

services that are not reimburseable under Title IV-D. Speciﬁcally,

of the $3.50 charge, $2.25 is sent to the county treasurer to be

used to fund FOC services that are not required or reimburseable

under Title IV-D, MCL 600.2538(1)(a); $.25 is sent to the State

Treasurer for deposit into the Attorney General’s Operations

Fund, MCL 600.2538(1)(b); and $1 is sent to the State Treasurer

for deposit into the State Court Fund, MCL 600.2538(1)(c). The

Court of Claims did not clearly err by concluding that the $2.25

portion of the monthly charge that is sent to local counties to fund

FOC services that are not reimbursable under Title IV-D and the

$1 that is sent to the State Treasurer for deposit into the State

Court Fund are valid user fees associated with use of the circuit

court and the FOC system to collect child support payments.

Plaintiff paid this amount because he had an open FOC case in

one of the circuit courts of this state and, therefore, he imposed

costs on this system. It was reasonable for him to bear those costs

rather than the public at large. It was not dispositive that

2015] T

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plaintiff did not use every service offered by the FOC because he

received a beneﬁt in that the services were available for his use

and the portion of the charge disbursed under MCL

600.2538(1)(a) and (c) was not unreasonable or disproportionate

to the direct and indirect costs of the government services that

plaintiff and others with open FOC cases received. On the other

hand, it was evident from the face of MCL 600.2538 that the 25

cents charged to plaintiff and others similarly situated and

disbursed to the Attorney General’s Operating Fund was de-

signed to raise revenue for the general operating expenses of the

Attorney General’s ofﬁce. To the extent the Attorney General’s

ofﬁce claimed that the funds distributed to it were valid user fees

because it enforces support orders, those services were reimburs-

able under Title IV-D, 42 USC 654, and were, therefore, explicitly

excluded from providing a basis for the charge under MCL

600.2538(1). In light of its predominant revenue raising function,

the 25-cent charge disbursed under MCL 600.2538(1)(b) was a

tax. Contrary to plaintiff’s claim, however, the $3.50 did not

constitute an unconstitutional taking because neither taxes nor

user fees are takings, and the Court of Claims correctly rejected

that argument. Nonetheless, the case had to be remanded for the

Court of Claims to address whether the 25-cent tax was uncon-

stitutional because it violated the Title-Object or Direct-

Statement Clauses of the Michigan Constitution.

2. The Due Process Clauses of the United States and Michi-

gan Constitutions, US Const, Am XIV; Const 1963, art 1, § 17,

provide that no one may be deprived of property without due

process of law. The general test for deciding a substantive due

process claim challenging legislation is whether the legislation

bears a reasonable relation to a permissible legislative objective.

The Court of Claims did not clearly err by concluding that the

$3.50 monthly charge satisﬁed substantive due process stan-

dards. MCL 600.2538 imposes a charge for a legitimate govern-

ment purpose: to fund the FOC and court systems and raise

revenue for the attorney general’s operations. The class of per-

sons subject to the charge consists of every person who is required

to make payments of support or maintenance through the FOC or

the State Disbursement Unit. It is reasonable for FOC service

participants, who impose speciﬁc costs on government and soci-

ety, to pay for the available services from the FOC, the trial court,

and the attorney general.

Court of Claims judgment afﬁrmed to the extent it granted

summary disposition with regard to plaintiff’s due process claim

and to the extent it rejected plaintiff’s argument that the $3.50

158 313

ICH

157 [Nov

charge constituted an unconstitutional taking; Court of Claims

judgment reversed to the extent it upheld the charge in its

entirety; case remanded to the Court of Claims for further

proceedings concerning the constitutionality of the 25-cent dis-

bursement to the Attorney General’s Operating Fund.

Kickham Hanley PLLC (by Gregory

D. Hanley and

Jamie Warrow) for plaintiff.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, and Joshua S. Smith and Kelley

McLean, Assistant Attorneys General, for defendants.

Amici Curiae:

The Law Ofﬁces of Carson J. Tucker (by Carson J.

Tucker) for Macomb, Oakland, and Wayne Counties.

Before: G

ADOLA

, P.J., and H

OEKSTRA

and M. J. K

ELLY

JJ.

ADOLA

, P.J. Plaintiff, Jeffrey Trantham, individu-

ally and on behalf of other individuals similarly

situated, ﬁled an action in the Court of Claims

against defendants, State Disbursement Unit (SDU),

Department of Health and Human Services (DHHS),

and Ofﬁce of Child Support (OCS), claiming that the

$3.50 monthly charge collected by the Friend of the

Court (FOC) from child and spousal support pay-

ments pursuant to MCL 600.2538(1) constitutes an

unconstitutional taking and violates substantive due

process. Plaintiff appeals as of right the May 30, 2014

opinion and order of the Court of Claims, granting

defendants’ motion for summary disposition under

MCR 2.116(C)(8) (failure to state a claim). We afﬁrm

in part, reverse in part, and remand for further

proceedings.

2015] T

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I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff has paid child support through the Oak-

land County FOC since September 2005. The DHHS,

through the OCS, oversees and administers Michigan’s

child support program. In accordance with the require-

ment of 42 USC 654b, which mandates that each state

create a centralized state disbursement unit to collect

and distribute child support payments, the SDU col-

lects and distributes child support and spousal support

payments in Michigan. Plaintiff asserted that 74% of

the support payments are made through income with-

holding from a payer’s paycheck, similar to the way in

which taxes and insurance premiums are deducted

from an employee’s paycheck.

Plaintiff ﬁled this class action complaint under

MCR 3.501 on behalf of all persons who (1) “were

subject to an income withholding order for child or

spousal support” and (2) “had or will have the Fees

imposed under [MCL 600.2538(1)] withdrawn from

their salaries, wages or other source of income in the

year proceeding [sic] the ﬁling of this suit and/or

during the pendency of this suit.” Speciﬁcally, plain-

tiff challenged the $3.50 monthly charge collected by

the FOC from all persons who make payments of child

and spousal support through the FOC system. Plain-

tiff asserted that the monthly fee was not a fair

approximation of the costs incurred by defendants in

providing services to the payers. Thus, plaintiff al-

leged that the monthly fees constituted an unconsti-

tutional taking of private property without just com-

pensation (Count I) and violated substantive due

process (Count II). Plaintiff sought in part to stop

collection of the fees, to have MCL 600.2538 declared

unconstitutional, and to have the purportedly im-

160 313 M

ICH

157 [Nov

proper fees placed in a common fund for the beneﬁt of

plaintiff and those similarly situated.

Defendants ﬁled a motion for summary disposition

under MCR 2.116(C)(8), arguing that the fees charged

under MCL 600.2538 were not an unconstitutional

taking because they were user fees and did not violate

due process. Plaintiff ﬁled a brief in opposition. The

Court of Claims granted defendants’ motion for sum-

mary disposition, concluding that the fee did not vio-

late the Takings Clause or substantive due process.

With regard to the Takings Clause, the Court of Claims

reasoned that (1) “there is no factual development that

would lead to the conclusion that the $3.50 monthly fee

at issue . . . is so excessive that it is not a user fee,” (2)

it was not material whether payers were forced to use

the system, (3) even if plaintiff does not use the

available services that a portion of the fees fund, he

“beneﬁts from the existence of the Friend of the Court

system and the availability of services it provides

should he need them,” and (4) the distinction between

a user fee versus a taking does not depend on where

the money is applied. Accordingly, the Court of Claims

concluded that the Legislature’s decision in MCL

600.2538 to disburse part of the monthly fee to the

Attorney General and the State Treasurer for the state

court fund did not warrant judicial intervention. In

rejecting plaintiff’s substantive-due-process claim, the

Court of Claims reasoned:

The Legislature has determined that it is appropriate

collect fees from individuals who are part of the Friend

of the Court system to provide ﬁnancial support for

services that are not reimbursable under Title IV-D. As

previously explained, individuals, such as plaintiff, beneﬁt

from the existence of the system and the availability of its

services should they be needed. The legislation is ratio-

nally related to a legitimate government interest in sup-

2015] T

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161

porting the services. There is no factual development that

could possibly result in a determination that [the] Legis-

lature’s judgment to collect the $3.50 a month fee is so

arbitrary that it fails the rational basis test.

II. ANALYSIS

A. STANDARD OF REVIEW

This Court reviews de novo a trial court’s grant of

summary

disposition. Jimkoski v Shupe, 282 Mich App

1, 4; 763 NW2d 1 (2008). “A motion under MCR

2.116(C)(8) tests the legal sufﬁciency of the complaint

by the pleadings alone.” Wilson v King, 298 Mich App

378, 381; 827 NW2d 203 (2012). The motion should be

granted if the party opposing the motion failed to state

a claim on which relief can be granted. Wyoming

Chiropractic Health Clinic, PC v Auto-Owners Ins Co,

308 Mich App 389, 391; 864 NW2d 598 (2014). “All

well-pleaded factual allegations are accepted as true

and construed in a light most favorable to the plain-

tiff.” Wilson, 298 Mich App at 381. A motion under

MCR 2.116(C)(8) may only be granted if “the claims

alleged are so clearly unenforceable as a matter of law

that no factual development could possibly justify

recovery.” Id. (quotation marks and citation omitted).

“This Court reviews de novo a challenge to the

constitutionality of a statute.” IME v DBS, 306 Mich

App 426, 433; 857 NW2d 667 (2014). “Statutes are

presumed to be constitutional, and we have a duty to

construe a statute as constitutional unless its uncon-

stitutionality is clearly apparent.” Mayor of Cadillac v

Blackburn, 306 Mich App 512, 516; 857 NW2d 529

(2014) (quotation marks and citation omitted). “The

party challenging the constitutionality of legislation

bears the burden of proof.” Mich Soft Drink Ass’n v

Dep’t of Treasury, 206 Mich App 392, 401; 522 NW2d

643 (1994).

162 313 M

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157 [Nov

B. FRIEND OF THE COURT SERVICES AND FUNDING

The federal government appropriates money “[f]or

the purpose of enforcing the support obligations owed

by noncustodial parents to their children and the

spouse (or former spouse) with whom such children are

living, locating noncustodial parents, establishing pa-

ternity, obtaining child and spousal support, and as-

suring that assistance in obtaining support will be

available under this part to all children . . . for whom

such assistance is requested . . . .” 42 USC 651. In turn,

the federal government requires state governments to

establish state programs and reporting procedures

related to child support and the establishment of

paternity. 42 USC 651 to 42 USC 669b (Title IV-D).

Once a state fulﬁlls these requirements, the federal

government

will reimburse the state for 66% of the

expenses related to child support enforcement services

required under Title IV-D. 42 USC 655(a)(1) and

(a)(2)(C).

In Michigan, the OCS is the state agency authorized

to administer Title IV-D services. MCL 400.232; MCL

400.233. The OCS coordinates the provision of Title

IV-D services through the FOC. MCL 400.233(o). Child

support services provided in Michigan as required by

Title IV-D include (1) establishing paternity, (2) estab-

lishing, modifying, or enforcing child support obliga-

tions, (3) locating parents, and (4) cooperating with

other states to enforce support orders when one parent

lives outside the state. 42 USC 654. See also MCL

400.233 (listing the duties of the OCS).

Although the relevant statutes, 42 USC 651 to 42 USC 669b, also

known as the Child Support Enforcement Act, are located in Title 42 of

the United States Code, they are also in Title IV, Part D of the Social

Security Act and are commonly referred to as Title IV-D. See MCL

400.231(m). We use that shorthand in this opinion.

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The Friend of the Court Act, MCL 552.501 et seq.,

“describe[s] the powers and duties of the [FOC] . . . .”

MCL 552.501(2). The FOC also provides services that

are not required or reimbursable under Title IV-D. For

instance, the FOC provides services related to parent-

ing time and custody in domestic relations matters,

including investigating and issuing reports regarding

child custody or parenting time, MCL 552.505(1)(g),

and enforcing domestic relations orders when a written

complaint is received regarding the violation of an

order, MCL 552.511b.

Under MCL 600.2538(1), persons who are required

to make support payments through the FOC system

pay a monthly charge of $3.50 for child support collec-

tion. MCL 600.2538 states as follows:

(1) For

services provided that are not reimbursable

under the provisions of part D of title IV of the social

security act, 42 USC 651 to 669b, every person required to

make payments of support or maintenance to be collected

by the friend of the court or the state disbursement unit

shall pay a fee of $3.50 per month for every month or

portion of a month that support or maintenance is re-

quired to be paid. The fee shall be paid monthly, quarterly,

or semiannually as required by the friend of the court. The

friend of the court shall provide notice of the fee required

by this section to the person ordered to pay the support

and that the fee shall be paid monthly or as otherwise

determined by the friend of the court. The friend of the

court or SDU shall transmit each fee collected under this

section as follows:

(a) Two dollars and twenty-ﬁve cents to the appropriate

county treasurer for deposit into the general fund of the

county to be used to fund the provision of services by the

friend of the court that are not reimbursable under part D

of title IV of the social security act, 42 USC 651 to 669b.

(b) For fees assessed on or after October 1, 2003, 25

cents to the state treasurer for deposit in the fund created

in subsection (4).

164 313

ICH

157 [Nov

state court fund created in [MCL 600.151a].

[2]

(2) A court may hold a person who fails or refuses to pay

a service fee ordered under subsection (1) in contempt.

(3) The SDU is responsible for the centralized receipt

and disbursement of support. An ofﬁce of the friend of the

court may continue to receive support and fees.

(4) An attorney general’s operations fund is created

within the state treasury. The state treasurer may receive

money or other assets from any source for deposit into the

fund. The state treasurer shall direct the investment of

the fund. The state treasurer shall credit to the fund

interest and earnings from fund investments. Money in

the fund at the close of the ﬁscal year shall remain in the

fund and shall not lapse to the general fund. The depart-

ment of attorney general shall expend money from the

fund, upon appropriation, for operational purposes.

(5) As used in this section, “state disbursement unit” or

“SDU” means the entity established in section 6 of the

ofﬁce of child support act, 1971 PA 174, MCL 400.236.

[Emphasis added.]

The State Court Fund exists to fund trial court operations across the

state. The $1 charge imposed under MCL 600.2538(1)(c) is one of several

sources of revenue for the fund. See MCL 600.151a(2). MCL 600.151a(7)

provides that money deposited into the State Court Fund shall be

distributed as follows:

(a) To the state court administrator for the operational ex-

penses of trial courts as provided in [MCL 600.151b],

$1,600,000.00 with the balance of the fund being distributed

according to subdivisions (b) to (d).

(b) To the state court administrator for the operational ex-

penses of trial courts as provided in [MCL 600.151b], 76% of the

balance of the fund.

[MCL 600.1485], 23% of the balance of the fund.

(d) To the state court administrator for oversight, data collec-

tion, and court management assistance by the state court admin-

istrative ofﬁce, 1% of the balance of the fund.

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Thus, under MCL 600.2538(1), the $3.50 monthly

charge is designed to fund only services that are not

reimbursable under Title IV-D.

Of the $3.50 collected

by the FOC, $2.25 is sent to local counties to fund FOC

services that are not reimbursable under Title IV-D,

MCL 600.2538(1)(a); $.25 is sent to the State Treasurer

for deposit into the Attorney General’s Operations

Fund, MCL 600.2538(1)(b) and (4); and $1 is sent to the

State Treasurer for deposit into the State Court Fund,

MCL 600.2538(1)(c).

Generally, the FOC must “open and maintain a

friend of the court case for a domestic relations mat-

ter.” MCL 552.505a(1). In limited circumstances when

the statutory provisions of MCL 552.505a(2) are met,

the parties to a domestic relations matter may request

that the FOC not open a ﬁle on their case. Speciﬁcally,

MCL 552.505a(2) provides the following:

The parties to a domestic relations matter are not

required

to have a friend of the court case opened or

maintained for their domestic relations matter. With their

initial pleadings, the parties to a domestic relations mat-

ter may ﬁle a motion for the court to order the ofﬁce of the

friend of the court not to open a friend of the court case for

the domestic relations matter. If the parties to a domestic

relations matter ﬁle a motion under this subsection, the

court shall issue that order unless the court determines 1

or more of the following:

The Attorney General contends that the funds raised by the

monthly fee can be used to defray the state’s share of Title IV-D

services. This position is at odds with the language of MCL

600.2538(1), which provides that the fee is to cover services “that are

not reimbursable” under Title IV-D. If a service is reimbursable (i.e.,

capable of being reimbursed), regardless of the rate of reimbursement

from the federal government, the fee is not available to pay for that

service. Rather, under the plain language of the statute, the fee may be

used only for services that are not reimbursable under Title IV-D.

166 313 M

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157 [Nov

(a) A party to the domestic relations matter is eligible

for title IV-D services because of the party’s current or

past receipt of public assistance.

(b) A party to the domestic relations matter applies for

title IV-D services.

that the ofﬁce of the friend of the court open and maintain

a friend of the court case for the domestic relations matter,

even though the party may not be eligible for title IV-D

services because the domestic relations matter involves,

by way of example and not limitation, only spousal sup-

port, child custody, parenting time, or child custody and

parenting time.

(d) There exists in the domestic relations matter evi-

dence of domestic violence or uneven bargaining positions

and evidence that a party to the domestic relations matter

has chosen not to apply for title IV-D services against the

best interest of either the party or the party’s child.

(e) The parties have not ﬁled with the court a docu-

ment, signed by each party, that includes a list of the

friend of the court services and an acknowledgment that

the parties are choosing to do without those services.

Similar requirements govern a party’s request to close

FOC case after it is opened. MCL 552.505a(4)(a)

through (g). If an FOC case is not open on a domestic

relations matter, the payer is not subject to the

monthly charge set forth in MCL 600.2538(1).

C. USER FEES

Plaintiff ﬁrst argues that the monthly $3.50 charge

under

MCL 600.2538(1) is not a valid user fee, and so

constitutes an unconstitutional taking of private prop-

erty for public use. The United States Constitution, US

Const, Am V, and the Michigan Constitution, Const

1963, art 10, § 2, both “prohibit the taking of private

property for public use without just compensation.”

2015] T

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Chelsea Investment Group LLC v Chelsea, 288 Mich

App 239, 261; 792 NW2d 781 (2010). “The term ‘taking’

can encompass governmental interference with rights

to both tangible and intangible property.” AFT Mich v

Michigan, 497 Mich 197, 218; 866 NW2d 782 (2015).

However, “[i]t is beyond dispute that taxes and user

fees . . . are not takings.” Koontz v St Johns River

Water Mgt Dist, 570 US ___, ___; 133 S Ct 2586, 2600;

186 L Ed 2d 697 (2013) (quotation marks and citation

omitted).

In United States v Sperry Corp, 493 US 52, 54; 110 S

Ct 387; 107 L Ed 2d 290 (1989), the Supreme Court

addressed a federal statute that required “the Federal

Reserve Bank of New York to deduct and pay into the

United States Treasury a percentage of any award

made by the Iran-United States Claims Tribunal in

favor of an American claimant before remitting the

award to the claimant.” Sperry and the Iranian gov-

ernment reached a settlement without the tribunal’s

involvement, but they ﬁled an application to have the

$2.8 million settlement entered as an award of the

tribunal because it allowed Sperry to get paid from

Iranian assets held at the Federal Reserve Bank. Id. at

56-57. The federal statute required a deduction from

tribunal awards of 1.5% of the ﬁrst $5 million and 1%

of any awarded amount over $1 million, paid to the

United States Treasury. Id. at 57-58. Sperry argued

that the charge constituted an unconstitutional taking.

Id.at 58.

The Supreme Court held that the charge was a valid

user fee and therefore did not violate the Takings

Clause. Id. at 63-64. The Court noted that a user fee

must be a “fair approximation of the cost of beneﬁts

supplied,” but it need not be “precisely calibrated to the

use that a party makes of Government services.” Id. at

168 313 M

ICH

157 [Nov

60 (quotation marks and citation omitted). In reaching

its conclusion, the Court recognized that when the

government “applies user charges to a large number of

parties, it probably will charge a user more or less than

it would under a perfect user-fee system . . . .” Id. at 61.

Yet, as long as the fee was not “clearly excessive,” no

constitutional violation occurred. Id. at 62.

Sperry complained that the statute forced it to pay

for procedures that it would have preferred to avoid,

but the Court concluded that “a reasonable user fee is

not a taking if it is imposed for the reimbursement of

the cost of government services.” Id. at 63. Despite the

fact that Sperry’s award was more the result of private

negotiations than tribunal procedures, the Court held

that Sperry could be “required to pay a charge for the

availability of the Tribunal even if it never actually

used the Tribunal” because Sperry received a beneﬁt in

the sense that the tribunal’s services were available for

its use. Id.

Michigan courts have applied similar reasoning

when identifying the nature of monetary exactions by

government authorities, particularly when drawing

distinctions between fees and taxes. “Generally, a ‘fee’

is ‘exchanged for a service rendered or a beneﬁt con-

ferred, and some reasonable relationship exists be-

tween the amount of the fee and the value of the

service or beneﬁt.’ ” Bolt v Lansing, 459 Mich 152, 161;

587 NW2d 264 (1998), quoting Saginaw Co v John

Sexton Corp of Mich, 232 Mich App 202, 210; 591

NW2d 52 (1998). “A ‘tax,’ on the other hand, is de-

signed to raise revenue.” Wheeler v Shelby Charter

Twp, 265 Mich App 657, 665; 697 NW2d 180 (2005)

(quotation marks and citation omitted). Fees charged

by a government entity must be reasonably proportion-

ate to the direct and indirect costs of providing the

2015] T

RANTHAM V

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services for which the fee is charged. Kircher v Ypsi-

lanti, 269 Mich App 224, 231-232; 712 NW2d 738

(2005). A fee is presumed reasonable unless it is

facially or evidently so “ ‘wholly out of proportion to the

expense involved’ ” that it “ ‘must be held to be a mere

guise or subterfuge to obtain the increased revenue.’ ”

Merrelli v St Clair Shores, 355 Mich 575, 584; 96

NW2d 144 (1959), quoting Vernor v Secretary of State,

179 Mich 157, 168, 170; 146 NW 338 (1914).

A fee confers a beneﬁt on the particular persons who

pay the fee, while a “tax is designed to raise revenue for

general public purposes.” Graham v Kochville Twp,

236 Mich App 141, 151; 599 NW2d 793 (1999). To prove

a monetary exaction is a tax, it is insufﬁcient to show

that the charge is larger than the costs it would defray.

Dearborn v State Tax Comm, 368 Mich 460, 472; 118

NW2d 296 (1962). Rather,

what is a reasonable fee must depend largely upon the

sound

discretion of the legislature, having reference to all

the circumstances and necessities of the case. It will be

presumed that the amount of the fee is reasonable, unless

the contrary appears upon the face of the law itself, or is

established by proper evidence. [Id. (quotation marks and

citation omitted).]

The Court of Claims did not clearly err by conclud-

ing

that the $2.25 portion of the monthly charge sent to

local counties to fund FOC services that are not reim-

bursable under Title IV-D, MCL 600.2538(1)(a), and

the $1 sent to the State Treasurer for deposit into the

State Court Fund, MCL 600.2538(1)(c), are valid user

fees associated with plaintiff’s use of the circuit court

and the FOC system to collect child support payments.

Plaintiff cannot plausibly deny that he beneﬁts di-

rectly from the existence of the FOC and its associated

services. Moreover, the FOC is an integral part of the

170 313 M

ICH

157 [Nov

circuit court in the judicial circuit it serves. MCL

552.503; see also Morrison v Richerson, 198 Mich App

202, 212; 497 NW2d 506 (1993). It is simply not the

case that the government arbitrarily and without

warning found plaintiff and began to exact $3.50 from

his monthly wages. Rather, he pays this amount solely

because he has an open FOC case in one of the circuit

courts of this state. Plaintiff imposes costs on this

system that he should reasonably bear, rather than the

public at large, in return for the services that the court

and the FOC provide to the users of that system,

including plaintiff. Plaintiff and his dependents beneﬁt

from the existence, and his use of, this carefully crafted

system.

The fact that plaintiff does not use every service

offered by the FOC is not dispositive, Sperry Corp,

493 US at 63, and we are not convinced that the

portion of the $3.50 charge disbursed under MCL

600.2538(1)(a) and (c) is unreasonable or dispropor-

tionate to the direct and indirect costs of the govern-

ment services plaintiff and others with open FOC

cases receive.

In contrast, we fail to see any relationship between

the beneﬁts plaintiff receives through his participa-

tion in the FOC system and the 25-cent portion of the

monthly charge going toward the Attorney General’s

Operations Fund. MCL 600.2538(1)(b) and (4).

Rather, it is evident from the face of MCL 600.2538

that the 25-cent charge is designed to raise revenue

for the general operating expenses of an unrelated

government ofﬁce. To the extent the Attorney Gener-

al’s ofﬁce claims afﬁliation through its enforcement of

support orders, those services are reimbursable under

Title IV-D, 42 USC 654, and are therefore explicitly

excluded from the purpose of the monetary exaction

2015] T

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in MCL 600.2538.

See MCL 600.2538(1) (stating that

the $3.50 charge is designed to pay for services “that

are not reimbursable under the provisions of part D of

title IV of the social security act, 42 USC 651 to 669b”).

In any event, the portion of the fee paid to the Attorney

General is not restricted to use in the child support

arena, but can be used for general operating expenses

of the Attorney General’s ofﬁce as the Legislature may

see ﬁt in the annual appropriations process.

It is therefore facially apparent from MCL 600.2538

that the 25-cent charge going to the attorney general’s

operations fund is a revenue raising measure that

bears no relationship to plaintiff’s use of the FOC

system. In light of its predominant revenue raising

function, we conclude that the 25-cent charge under

MCL 600.2538(1)(b) and (4) is a tax. See Wheeler, 265

Mich App at 665; see also Merrelli, 355 Mich at 584.

Although plaintiff argues that imposition of the $3.50

charge constitutes an unconstitutional taking, “[i]t is

beyond dispute that taxes and user fees . . . are not

takings.” Koontz, 570 US at___; 133 S Ct at 2600

(quotation marks and citation omitted).

On appeal, plaintiff suggests that a conclusion that

any portion of the fee under MCL 600.2538 is actually

a tax would raise problems under the Title-Object

Clause, Const 1963, art 4, § 24, and the Distinct-

Statement Clause, Const 1963, art 4, § 32, of the

Michigan Constitution. Neither the parties nor the

Court of Claims addressed these issues below. There-

fore, we believe a remand is necessary to provide the

Indeed, accompanying his response to defendants’ motion for sum-

mary disposition, plaintiff attached an excerpt of the Michigan IV-D

Child Support Manual from DHHS stating that the 25-cent charge “is

considered a IV-D expense,” which “is used to reimburse the Michigan

Attorney General for services provided that are reimbursable under

Part D of Title IV of the Social Security Act, [42 USC 651 to 669b].”

172 313

ICH

157 [Nov

parties with a sufﬁcient opportunity to develop a

record on the constitutionality of the 25-cent tax im-

posed under MCL 600.2538(1)(b).

D. DUE PROCESS

Plaintiff also argues that the $3.50 charge provided

under MCL 600.2538 violates substantive due process.

The Due Process Clauses of the United States and

Michigan Constitutions provide that no one may be

deprived of property without due process of law. US

Const, Am XIV, § 1; Const 1963, art 1, § 17. The party

challenging the facial constitutionality of an act “must

establish that no set of circumstances exists under

which the act would be valid.” Bonner v Brighton, 495

Mich 209, 223 n 26; 848 NW2d 380 (2014) (quotation

marks and citation omitted). “[T]he substantive com-

ponent [of due process] protects against the arbitrary

exercise of governmental power . . . .” Id. at 224. The

general test for determining a substantive due process

claim challenging legislation is whether the legislation

bears a reasonable relation to a permissible legislative

objective. Wells Fargo Bank, NA v Cherryland Mall Ltd

Partnership (On Remand), 300 Mich App 361, 380; 835

NW2d 593 (2013). “[I]f a statute can be upheld under

any plausible justiﬁcation offered by the state, or even

hypothesized by the court, it survives rational-basis

scrutiny.” Id. at 381 (quotation marks and citation

omitted). In addition, “a rational basis review does not

test the wisdom, need, or appropriateness of the stat-

ute.” Cadle Co v Kentwood, 285 Mich App 240, 257; 776

NW2d 145 (2009).

The Court of Claims did not clearly err by conclud-

ing that the $3.50 monthly charge satisﬁed substan-

tive due process standards. MCL 600.2538 imposes a

charge for a legitimate government purpose: to fund

2015] T

RANTHAM V

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the FOC and court systems and raise revenue for the

attorney general’s operations. The class of persons

subject to the charge consists of every person who is

required to make payments of support or maintenance

through the FOC or the SDU. MCL 600.2538(1). It is

reasonable for the FOC service participants, who im-

pose speciﬁc costs on the government and society, to

pay for the availability of services from the FOC, the

trial court, and the attorney general. See Dawson v

Secretary of State, 274 Mich App 723, 739; 739 NW2d

339 (2007) (opinion by W

ILDER

, P.J.) (concluding that a

classiﬁcation scheme for assessing driver responsibil-

ity fees on persons convicted of certain offenses was

“rationally related to the legitimate governmental pur-

pose of generating revenue from individuals who im-

pose costs on the government and society”). Therefore,

we conclude that imposition of the user fees and tax

under MCL 600.2538 was not so arbitrary as to violate

substantive due process.

Afﬁrmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion.

OEKSTRA

and M. J. K

ELLY

, JJ., concurred with

ADOLA

, P.J.

174 313 M

ICH

157 [Nov

In re APPLICATION OF CONSUMERS ENERGY COMPANY

FOR APPROVAL OF A GAS COST RECOVERY PLAN

In re APPLICATION OF MICHIGAN GAS UTILITIES CORPORATION

FOR APPROVAL OF A GAS COST RECOVERY PLAN

In re APPLICATION OF DTE GAS COMPANY FOR APPROVAL

OF A GAS COST RECOVERY PLAN

Docket Nos. 322031, 322571, and 324321. Submitted November 3, 2015,

at Lansing. Decided November 17, 2015, at 9:00 a.m.

Consumers Energy Company applied to the Public Service Commis-

sion (PSC) in December 2013 for approval of its 2014-2015 gas

cost recovery (GCR) plan and authorization of its proposed GCR

factors (PSC Case No. U-17334). It sought approval of a base GCR

factor per thousand cubic feet of gas for recovery of costs associ-

ated with providing gas to customers and the authority to adjust

that factor on the basis of a contingency mechanism. The admin-

istrative law judge (ALJ) granted the petitions for intervention of

the Attorney General and the Residential Ratepayers Consortium

(RRC). In February 2014, Consumers amended its application to

seek approval of a higher base GCR factor for its 2014-2015 plan,

asserting that it needed the higher factor because of increases in

the demand for natural gas caused in part by colder-than-normal

temperatures in Michigan and other parts of the United States.

Consumers and the PSC’s staff jointly moved for a temporary

order approving the requested factor, noting that Consumers had

calculated an underrecovery of $98 million in gas costs for the

period covered by its 2013-2014 plan, that if the factor originally

requested in this case became effective for the period covered by

the 2014-2015 plan, Consumers’ cumulative underrecovery of gas

costs would be approximately $185 million, and that a delay in

implementing the increased factor would economically burden

Consumers’ customers by moving additional costs to later in the

2014-2015 plan year. The Attorney General argued that the PSC

did not have the authority to approve the increased GCR factor on

a temporary basis and should not approve Consumers’ request to

roll the projected underrecovery from the period covered by the

2013-2014 plan into the GCR plan for the 2014-2015 plan year.

The RRC joined the Attorney General’s opposition to the motion.

2015] In

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ONSUMERS

NERGY

PPLICATION

175

The PSC granted Consumers’ request in May 2014 and issued a

temporary order approving an increased GCR factor, concluding

that to leave the factor at the rate originally proposed would

result in a signiﬁcant underrecovery of costs and that it was in

the public interest to match market prices to the GCR factor as

closely as possible during a plan period so that market ﬂuctua-

tions would generally be reﬂected in the gas price charged to

customers. The PSC did not, however, address the Attorney

General’s argument that it was improper to roll in an underre-

covery from one plan to the next. The Attorney General appealed

in Docket No. 322031.

Michigan Gas Utilities Corporation applied separately to the PSC

in December 2013 for approval of its 2014-2015 GCR plan and

authorization of its proposed GCR factors (PSC Case No.

U-17331), and the Attorney General and the RRC intervened. In

March 2014, Michigan Gas amended its application to request a

higher base GCR factor, similarly arguing that the market price

for natural gas had signiﬁcantly increased and resulted in a

signiﬁcant underrecovery for the 2013-2014 plan year. It further

moved for entry of a temporary order approving the higher factor.

The PSC entered an order in June 2014 approving Michigan

Gas’s request, noting that the utility was currently self-

implementing the GCR factors sought in its original application

and that those factors would likely result in a signiﬁcant under-

recovery. The PSC again declined to address the argument that it

could not properly roll in an underrecovery from one plan period

to the next, and the Attorney General appealed in Docket No.

322571.

DTE Gas Company applied separately to the PSC in December 2013

for approval of its 2014-2015 GCR plan and authorization of its

proposed GCR factors (PSC Case No. U-17332). The Attorney

General and the RRC intervened. DTE ﬁled amended applica-

tions in February and April 2014, requesting a higher base GCR

factor in anticipation of an underrecovery for its 2013-2014 plan

year. DTE indicated that it intended to self-implement the higher

factor under MCL 460.6h(9). The RRC sought an order requiring

DTE to cease self-implementing the increased GCR factor, argu-

ing that MCL 460.6h(9) did not authorize the utility to self-

implement a factor that had been ﬁled less than three months

before the commencement of the plan year. The ALJ agreed with

the RRC’s interpretation of MCL 460.6h(9), but concluded that

she did not have the authority to enter the order. The PSC

granted the Attorney General and the RRC leave to appeal the

ALJ’s decision, but declined to order DTE to cease self-

implementing the GCR factor, ruling that DTE had the authority

176 313

ICH

175 [Nov

to amend a prior estimated GCR factor and self-implement the

resulting increase. The PSC noted that while MCL 460.6h(3)

required a utility to ﬁle a complete GCR plan three months before

the commencement of the period covered by the plan, nothing in

the statute required that the plan remain unaltered throughout

the course of the GCR plan review process. The PSC further

stated that MCL 460.6h(9) did not prohibit a utility from amend-

ing its GCR plan. Finally, the PSC determined that DTE did not

have to seek a temporary order under MCL 460.6h(8) because

MCL 460.6h(9) authorized DTE to act as it had. The Attorney

General appealed, and the Court of Appeals consolidated all three

appeals.

The Court of Appeals held:

1. MCL 460.6h(2) authorizes the PSC to incorporate a gas cost

recovery clause in the rates or rate schedules of a gas utility and

provides speciﬁc procedures for implementing that GCR clause.

MCL 460.6h(3) requires a utility to ﬁle a complete GCR plan no

later than three months before the beginning of the plan year, and

the utility must request a speciﬁc GCR factor for each month.

Under MCL 460.6h(1)(c), a GCR factor is the element of the rates

charged for gas service to reﬂect gas costs incurred by the utility.

MCL 460.6h(5) requires the PSC to subsequently conduct a gas

supply and cost recovery review to evaluate the reasonableness

and prudence of the utility’s plan and establish the GCR factors

necessary to implement the GCR clause. The review is conducted

as a contested case under the Administrative Procedures Act,

MCL 24.201 et seq. After the conclusion of the contested-case

proceeding, MCL 460.6h(6) requires the PSC to enter a ﬁnal order

approving, disapproving, or amending the GCR plan, and it must

speciﬁcally approve, reject, or amend the 12 monthly GCR factors

requested by the utility. When evaluating a plan, the PSC must

consider the volume, cost, and reliability of the major alternative

gas supplies available to the utility; the cost of alternative fuels

available to some or all of the utility’s customers; the availability

of gas in storage; the ability of the utility to reduce or to eliminate

any sales to out-of-state customers; whether the utility has taken

all appropriate legal and regulatory actions to minimize the cost

of purchased gas; and other relevant factors. Accordingly, the PSC

has broad authority to both evaluate the reasonableness of a

proposed GCR plan and amend the plan as warranted by the

underlying circumstances.

2. The Attorney General did not establish that the PSC’s

temporary orders were unlawful or unreasonable to the extent

that the orders authorized the utilities to include revised or

2015] In

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ONSUMERS

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PPLICATION

177

amended GCR factors in their rates pending resolution of the

reviews and subject to future reconciliation proceedings. The

Attorney General argued that the PSC could only exercise its

authority to amend a utility’s proposed GCR plan or factors in a

ﬁnal order or in a proceeding to revise a plan after it entered a

ﬁnal order under MCL 460.6h(10). While MCL 460.6h(10) allows

a utility to ﬁle a revised GCR plan after the PSC entered a ﬁnal

order, however, the statute does not require the utility to wait

until the PSC enters a ﬁnal order before submitting a revised

plan or proposing changes to a plan that is under review. It only

requires that the utility ﬁle the revised plan not less than 3

months before the beginning of the third quarter of the 12-month

period covered by the plan. Additionally, the reference to a revised

plan does not require the utility to begin anew. A revised plan can

be a previously submitted plan with speciﬁc proposed revisions.

Therefore, a utility can propose changes or revisions to an

application before the PSC approves, disapproves, or amends the

plan in a ﬁnal order. As long as the initial plan was a complete

GCR plan within the meaning of MCL 460.6h(3) when the utility

ﬁrst applied for approval, the plan is properly before the PSC for

review even though the utility subsequently requested revisions

to or amendments of the plan. Under MCL 460.6h(8), the PSC

may enter a temporary order granting approval or partial ap-

proval of a GCR plan in a gas supply and cost recovery review on

its own motion or the motion of any party if it affords the parties

a reasonable opportunity for a full and complete hearing. There-

fore, the PSC may allow a utility to implement a GCR plan in

whole or in part at any point in the contested-case proceeding. It

may enter a temporary order before entry of a ﬁnal order, and it

may enter a temporary order after a proposed revision to the plan.

The PSC had the power to authorize revised GCR factors in the

temporary orders to the same extent that it could ultimately

choose to amend the factors in its ﬁnal order.

3. MCL 460.6h(9) provides that if the PSC has not made a

ﬁnal or temporary order within three months of the submission of

a complete GCR plan or by the beginning of the period covered in

the plan, whichever comes later, or if a temporary order has

expired without being extended or replaced, then pending the

ﬁnal order that determines the GCR factors, a gas utility may

adjust its rates each month to incorporate all or a part of the GCR

factors requested in its plan. Any amounts collected under a

self-implemented plan before entry of the ﬁnal order are subject

to prompt refund with interest if the PSC later determines that

the GCR factors were not reasonable and prudent. The statute

does not expressly limit the utility’s authority to self-implement

178 313

ICH

175 [Nov

the GCR factors to those factors speciﬁcally requested in the

original application. Because a utility can amend or revise its

plan before the conclusion of the PSC’s review, the utility can also

self-implement a revised GCR factor.

4. The PSC is not precluded from considering whether the

utility has incurred an underrecovery or will incur an underre-

covery when determining the appropriate GCR factors. The PSC

has broad authority to set rates and is not required to use any

particular method when setting them. MCL 460.6h(6) allows the

PSC to consider other relevant factors when determining whether

a proposed GCR plan and GCR factors are reasonable and

prudent. Nor does the fact that MCL 460.6h(12) requires the PSC

to conduct a gas cost reconciliation proceeding to reconcile the

utility’s revenues using the authorized GCR factors against its

actual expenses preclude the PSC from considering the potential

for over- or underrecoveries during the review proceeding.

5. The PSC’s roll-in method was lawful. MCL 460.6h(13) and

(14) give the PSC discretion in establishing how a refund for an

overrecovery is to be distributed or a surcharge for an underre-

covery is to be collected in gas-cost-reconciliation proceedings.

Afﬁrmed.

1. P

UBLIC

TILITIES —

OST

ECOVERY

LAN AND

ACTORS —

UBLIC

ERVICE

OMMISSION —

EMPORARY

RDERS

MCL 460.6h(2) authorizes the Public Service Commission (PSC) to

incorporate a gas cost recovery (GCR) clause in the rates or rate

schedules of a gas utility; MCL 460.6h(3) requires a gas utility to

ﬁle a complete GCR plan no later than three months before the

beginning of the plan year, and the utility must request a speciﬁc

GCR factor for each month; under MCL 460.6h(1)(c), a GCR factor

is the element of the rates charged for gas service to reﬂect gas

costs incurred by the utility; MCL 460.6h(5) requires the PSC to

subsequently conduct a gas supply and cost review to evaluate

the reasonableness and prudence of the utility’s plan and estab-

lish those GCR factors necessary to implement the GCR clause;

ﬁnally, MCL 460.6h(6) requires the PSC to enter a ﬁnal order

approving, disapproving, or amending the GCR plan, and it must

speciﬁcally approve, reject, or amend the 12 monthly GCR factors

requested by the utility; the utility need not wait until the PSC

enters a ﬁnal order before submitting a revised plan or proposing

changes to a plan that is under review, however; the utility can

propose changes or revisions to its application before the PSC

approves, disapproves, or amends the plan in a ﬁnal order; under

MCL 460.6h(8), the PSC may enter a temporary order granting

2015] In

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ONSUMERS

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PPLICATION

179

approval or partial approval of a GCR plan in a gas supply and

cost recovery review on its own motion or the motion of any party

if it affords the parties a reasonable opportunity for a full and

complete hearing; the PSC may allow the utility to implement a

GCR plan in whole or in part at any point in the contested-case

proceeding and may enter a temporary order before entry of a

ﬁnal order or after a proposed revision to the plan.

2. P

UBLIC

TILITIES —

OST

ECOVERY

LAN AND

ACTORS —

UBLIC

ERVICE

OMMISSION —

OLL

-I

ETHOD FOR

OST

ECOVERY

ROCEEDINGS

MCL 460.6h(5) and (6) require the Public Service Commission to

conduct a gas supply and cost recovery review to evaluate the

reasonableness and prudence of a gas utility’s gas cost recovery

(GCR) plan and establish the GCR factors necessary to imple-

ment the gas cost recovery clause in the utility’s rates; the

commission must enter a ﬁnal order approving, disapproving, or

amending the utility’s GCR plan and speciﬁcally approve, reject,

or amend the 12 monthly GCR factors requested; during the

proceeding, the commission and utility may use a method that

rolls a projected underrecovery of gas costs from the period

covered by one GCR plan into the GCR plan for the next year;

MCL 460.6h(13) and (14) give the commission discretion in

establishing how a refund for an overrecovery of gas costs is to be

distributed or a surcharge for an underrecovery is to be collected

in gas-cost-reconciliation proceedings.

H. Richard Chambers, Bret

A. Totoraitis, and Kelly

M. Hall for Consumers Energy Company.

Miller, Canﬁeld, Paddock and Stone, PLC (by Sherri

A. Wellman and Paul M. Collins), for Michigan Gas

Utilities Corporation.

Richard P. Middleton, David S. Maquera, and Fahey

Schultz Burzych Rhodes PLC (by William K. Fahey and

Stephen J. Rhodes) for DTE Gas Company.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, John A. Janiszewski, Assis-

tant Attorney General, and Donald E. Erickson, Spe-

180 313 M

ICH

175 [Nov

cial Assistant Attorney General, for the Attorney

General in Docket Nos. 322031 and 322571.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Michael E. Moody, Assistant

Attorney General, and Donald E. Erickson, Special

Assistant Attorney General, for the Attorney General

in Docket No. 324321.

Bill Schuette, Attorney General, B. Eric Restuccia,

Deputy Solicitor General, and Steven D. Hughey and

Bryan A Brandenburg, Assistant Attorneys General,

for the Public Service Commission in Docket Nos.

322031 and 322571.

Bill Schuette, Attorney General, B. Eric Restuccia,

Deputy Solicitor General, and Steven D. Hughey and

Spencer A. Sattler, Assistant Attorneys General, for

the Public Service Commission in Docket No. 324321.

Before: G

ADOLA

, P.J., and H

OEKSTRA

and M. J. K

ELLY

JJ.

URIAM

. In these consolidated appeals involving

the setting of rates for gas utilities, the Attorney

General appeals by right three orders issued by the

Michigan Public Service Commission (the Commis-

sion) in three separate contested cases. In Docket No.

322031, the Attorney General appeals the Commis-

sion’s order granting the application by petitioner,

Consumers Energy Company, for a temporary order

approving a gas cost recovery plan (recovery plan) and

gas cost recovery factors (recovery factors) for the

12-month period ending in March 2015. In Docket No.

322571, the Attorney General appeals the Commis-

sion’s order granting the application by petitioner,

Michigan Gas Utilities Corporation, for a temporary

2015] In re C

ONSUMERS

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PPLICATION

181

order approving a recovery plan and recovery factors

for the same 12-month period. And in Docket No.

324321, the Attorney General appeals the Commis-

sion’s order denying his request for an order compel-

ling petitioner, DTE Gas Company, to cease self-

implementing the recovery factors requested in its

amended application. Because we conclude that the

Attorney General failed to show by clear and satisfac-

tory evidence that the orders were unlawful or unrea-

sonable, we afﬁrm.

I. BASIC FACTS

CONSUMERS ENERGY

In December 2013, Consumers Energy applied to

the Commission for approval of its recovery plan and

the authorization of its proposed recovery factors for

the 12-month period ending in March 2015. It sought

approval of a base recovery factor of $4.3962 per

thousand cubic feet of gas, with authority to adjust the

recovery factor on the basis of a contingency mecha-

nism.

The administrative law judge held a prehearing

conference in February 2014, and granted the petitions

for intervention by the Attorney General and the

Residential Ratepayers Consortium (Ratepayers Con-

sortium). The Commission’s staff also participated in

the case. Later that same month, Consumers Energy

ﬁled an amended application for approval of a base

recovery factor of $5.575 per thousand cubic feet.

Consumers Energy asserted that it needed the higher

recovery factor as a result of increases in the demand

for natural gas, which were caused in part by colder-

than-normal temperatures in Michigan and other

parts of the United States.

182 313 M

ICH

175 [Nov

In March 2014, Consumers Energy and the Commis-

sion’s staff jointly moved for a temporary order approv-

ing Consumers Energy’s requested recovery factor.

They noted that Consumers Energy had calculated

that its underrecovery for the period covered by the

2013-2014 plan would be approximately $98 million

and, if the recovery factor of $4.3962 became effective

for the period covered by the 2014-2015 plan, Consum-

ers Energy’s cumulative underrecovery would be ap-

proximately $185 million. A delay in the implementa-

tion of the increased recovery factor would, they

maintained, “economically burden Consumers Ener-

gy’s customers by moving additional costs . . . until

later in the 2014-2015 [recovery] year.”

In response, the Attorney General argued that the

Commission did not have the authority to approve the

increased recovery factor on a temporary basis, and

should not approve Consumers Energy’s request to roll

the projected underrecovery from the period covered by

the 2013-2014 plan into the recovery plan for the

2014-2015 plan year. Ratepayers Consortium joined

the Attorney General’s opposition to the motion.

In May 2014, the Commission granted Consumers

Energy’s request and issued a temporary order approv-

ing an increased recovery factor. The Commission

stated that the record supported a ﬁnding that natural

gas prices had risen signiﬁcantly since Consumers

Energy ﬁled its initial application and that to leave the

recovery factor at the rate proposed in the initial

application would result in a signiﬁcant underrecovery

for Consumers Energy. Because it “is in the public

interest to match market prices to the [recovery] factor

as closely as possible during a [recovery] plan period

such that market ﬂuctuations are generally reﬂected

in the gas price charged to . . . customers,” the Com-

2015] In re C

ONSUMERS

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mission authorized Consumers Energy to raise its

recovery factor to $5.575 per thousand cubic feet start-

ing the ﬁrst full billing month following the order and

continuing until entry of a ﬁnal order. The Commis-

sion, however, declined to address the Attorney Gener-

al’s argument that it was improper to roll in an

underrecovery from one plan to the next.

B. MICHIGAN GAS

Michigan Gas also ﬁled an application in December

2013

for approval of its recovery plan and factors for

the 12-month period ending in March 2015. It re-

quested approval of a base recovery factor of $4.7776

per thousand cubic feet of gas, with authority to adjust

on the basis of a contingency mechanism. The Attorney

General and Ratepayers Consortium also intervened

in this case.

In March 2014, Michigan Gas amended its applica-

tion to request a proposed recovery factor of $5.9122

per thousand cubic feet. Michigan Gas argued that the

increased recovery factor was necessary because the

market price for natural gas had signiﬁcantly in-

creased as a result of unanticipated and prolonged cold

weather. It noted that the increased price of natural

gas had caused it to have an underrecovery of $6.6

million for the 2013-2014 year. It further moved for

entry of a temporary order approving the higher recov-

ery factor.

In June 2014, the Commission issued an order

approving Michigan Gas’s request. The Commission

recognized that Michigan Gas was currently self-

implementing the recovery factors stated in the origi-

nal application. Because the recovery factors proposed

in the initial application would likely result in a

signiﬁcant underrecovery, the Commission authorized

184 313 M

ICH

175 [Nov

Michigan Gas to raise its base recovery factor to

$5.7471 per thousand cubic feet beginning with the

ﬁrst full billing month following the issuance of the

order and continuing until entry of a ﬁnal order. The

Commission again declined to address the argument

that it could not properly roll in an underrecovery from

one plan period to the next.

C. DTE

In December 2013, DTE applied for approval of its

recovery

plan for the period ending in March 2015. It

sought approval for a base recovery factor of $4.42 per

thousand cubic feet of gas. In February 2014, it

amended its application to request a base recovery

factor of $4.47 per thousand cubic feet. The Attorney

General and Ratepayers Consortium again intervened.

DTE ﬁled a second amended application in April

2014. In this application, it requested a base recovery

factor of $4.97 per thousand cubic feet. As with the

other utilities, DTE argued that the colder-than-

normal temperatures had signiﬁcantly affected the

market price of natural gas and it anticipated that it

would have an underrecovery for the 2013-2014 plan

year. DTE stated that it intended to self-implement the

proposed recovery factor under MCL 460.6h(9).

In July 2014, Ratepayers Consortium asked the

Commission to order DTE to cease self-implementing

the increased recovery factor. It argued that MCL

460.6h(9) did not authorize DTE to self-implement a

recovery factor that was ﬁled less than three months

before the commencement of the plan year. The admin-

istrative law judge held a hearing on the motion later

that same month. The judge agreed with Ratepayers

Consortium’s interpretation of MCL 460.6h(9), but

2015] In re C

ONSUMERS

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185

stated that she did not have the authority to issue the

requested order.

The Attorney General and the Ratepayers Consor-

tium sought leave from the Commission to appeal the

administrative law judge’s decision. The Commission

granted the appeal, but declined to issue an order

compelling DTE to cease self-implementing the recovery

factor. The Commission explained that DTE had the

authority “to amend a prior estimated [recovery] factor

and self-implement the resulting increase.” The Com-

mission noted that MCL 460.6h(3) required a utility to

ﬁle a complete recovery plan three months before the

commencement of the period covered by the plan, but

stated that nothing in the statute required that the plan

“remain unaltered throughout the course of the [recov-

ery] plan review process.” The Commission further

stated that MCL 460.6h(9) did not prohibit a utility

from amending its recovery plan, and in fact anticipated

that such amendments would be ﬁled. Finally, the

Commission determined that DTE also did not have to

seek a temporary order under MCL 460.6h(8), because

MCL 460.6h(9) authorized DTE to act as it had.

The Attorney General then appealed the Commis-

sion’s decisions in each case to this Court. This Court

ordered the consolidation of the appeals in August

2015.

II.

THE TEMPORARY ORDERS

A. STANDARDS OF REVIEW

The Attorney General argues that the Commission

erred when it determined that it could approve an

See In re Application of Consumers Energy for Approval of Gas Cost,

unpublished order of the Court of Appeals, entered August 26, 2015

(Docket Nos. 322031, 322571, and 324321).

186 313 M

ICH

175 [Nov

amended recovery plan or recovery factor through a

temporary order. He maintains that a utility may ﬁle a

revised recovery plan during the period covered by the

plan, but, if it does so, it must follow the procedures

applicable to a request to amend the recovery plan

before implementing the revised recovery plan. He

similarly contends that underrecoveries from a previ-

ous plan year must be handled in a reconciliation

proceeding and cannot be rolled into a current recovery

plan.

This Court reviews the Commission’s orders to de-

termine whether the appellant has shown “by clear

and satisfactory evidence” that the Commission’s order

was “unlawful or unreasonable.” MCL 462.26(8); see

also Great Lakes Steel Div of Nat’l Steel Corp v Pub

Serv Comm, 416 Mich 166, 182-183; 330 NW2d 380

(1982). An order is unlawful if the Commission failed to

follow some mandatory provision of the statute or

abused its discretion in the exercise of its judgment. In

re MCI Telecom Complaint, 460 Mich 396, 427; 596

NW2d 164 (1999). This Court reviews de novo whether

the Commission properly selected, interpreted, and

applied the relevant statutes. See New Prod Corp v

Harbor Shores BHBT Land Dev, LLC, 308 Mich App

638, 644; 866 NW2d 850 (2014).

B. ANALYSIS

The Commission possesses only that authority that

the

Legislature has granted to it in clear and unmis-

takable language. Mich Electric Coop Ass’n v Pub Serv

Comm, 267 Mich App 608, 616; 705 NW2d 709 (2005).

Further, an administrative agency, such as the Com-

mission, cannot expand its authority beyond that pro-

vided by statute under the guise of its rulemaking

authority. York v Detroit (After Remand), 438 Mich 744,

2015] In re C

ONSUMERS

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187

767; 475 NW2d 346 (1991). With MCL 460.6h(2), the

Legislature authorized the Commission to incorporate

a gas cost recovery clause in the rates or rate schedules

of a gas utility. It then provided speciﬁc procedures for

implementing a gas cost recovery clause.

A gas utility must ﬁrst ﬁle a “complete gas cost

recovery plan” no later than three months before the

beginning of the plan year, and it must request “a

speciﬁc gas cost recovery factor” for each month in the

plan year. MCL 460.6h(3). A recovery factor is “that

element of the rates to be charged for gas service to

reﬂect gas costs incurred by a gas utility and made

pursuant to a gas cost recovery clause incorporated in

the rates or rate schedules of a gas utility.” MCL

460.6h(1)(c). The Commission thereafter must conduct

“a proceeding, to be known as a gas supply and cost

review, for the purpose of evaluating the reasonable-

ness and prudence of the plan, and establishing the gas

cost recovery factors to implement” the gas cost recov-

ery clause stated in the utility’s plan. MCL 460.6h(5).

This review is to be conducted as a contested case

under the Administrative Procedures Act, MCL 24.201

et seq. Id.

After the conclusion of the contested-case proceed-

ing, the Commission must enter a ﬁnal order in which

it approves, disapproves, or amends the recovery plan.

MCL 460.6h(6). In evaluating the utility’s recovery

plan, the Commission may consider a variety of fac-

tors:

[T]he commission shall consider the volume, cost, and

reliability

of the major alternative gas supplies available

to the utility; the cost of alternative fuels available to some

or all of the utility’s customers; the availability of gas in

storage; the ability of the utility to reduce or to eliminate

any sales to out-of-state customers; whether the utility

188 313

ICH

175 [Nov

has taken all appropriate legal and regulatory actions to

minimize the cost of purchased gas; and other relevant

factors. [Id.]

The Legislature also provided that the Commission

must speciﬁcally “approve, reject, or amend the 12

monthly gas cost recovery factors requested by the

utility in its gas cost recovery plan.” Id. When these

provisions are read together, it is plain that the Legis-

lature gave the Commission broad authority both to

evaluate the reasonableness of a proposed plan and to

amend the plan as warranted by the underlying circum-

stances.

1. TEMPORARY ORDERS

On appeal, the Attorney General essentially argues

hat the Commission’s authority to amend a utility’s

proposed recovery plan or recovery factor can only be

exercised in a ﬁnal order or in a proceeding under MCL

460.6h(10) to revise a plan after a ﬁnal order. Although

the Legislature apparently contemplated the possibility

that a utility might ﬁle a “revised gas cost recovery

plan” after the Commission entered a ﬁnal order in the

contested case, it did not require the utility to wait until

the Commission enters a ﬁnal order before submitting a

revised plan or proposing changes to a plan that is

under review; it only required the utility to ﬁle the

revised plan “[n]ot less than 3 months before the begin-

ning of the third quarter of the 12-month period” cov-

ered by the plan. MCL 460.6h(10). In addition, the

reference to a revised plan does not require the utility to

begin anew; a revised plan can be a previously submit-

ted plan with speciﬁc proposed revisions. Therefore, a

utility can propose changes or revisions to an applica-

tion before the Commission approves, disapproves, or

amends the plan in a ﬁnal order. As long as the initial

2015] In re C

ONSUMERS

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189

plan was “a complete gas cost recovery plan” when the

utility ﬁrst applied for approval, the plan is properly

before the Commission for review even though the

utility has since requested revisions or amendments to

the plan. MCL 460.6h(3).

Under MCL 460.6h(8), the Legislature authorized

the Commission to “make a ﬁnding and enter a tem-

porary order granting approval or partial approval of a

gas cost recovery plan in a gas supply and cost recovery

review” on its own motion or the motion of any party if

it affords the parties a reasonable opportunity for a full

and complete hearing. By speciﬁcally authorizing a

“temporary order granting approval or partial ap-

proval” of a recovery plan in a “gas supply and cost

recovery review,” id., the Legislature empowered the

Commission to allow a utility to implement a recovery

plan, in whole or in part, at any point in the contested-

case proceeding; it may enter a temporary order before

entry of a ﬁnal order, and it may enter a temporary

order after a proposed revision to the plan.

The Attorney General makes much of the fact that, in

MCL 460.6h(8), the Legislature did not authorize the

Commission to enter a temporary order approving or

partially approving an “amended” recovery plan, but

instead only authorized the Commission to approve or

partially approve a recovery plan; more speciﬁcally, the

Attorney General maintains that the reference to a “gas

cost recovery plan in a gas supply and cost recovery

review” must be understood to limit the Commission’s

authority to approving the recovery factors originally

proposed in the recovery plan. A commonsense reading

of the statutory language demonstrates that the Legis-

lature intended to identify the plan under review as the

one that the Commission may approve or partially

approve on a temporary basis. That is, the reference

merely clariﬁes that the Commission’s authority to

190 313 M

ICH

175 [Nov

issue temporary orders extends only to cases involving

plans that are under review (as opposed to cases subject

to a ﬁnal order). It does not follow, however, that the

Legislature also intended to limit the Commission’s

authority to approve a plan on a temporary basis to

include only those provisions that were stated in the

original plan; if it had intended to do so, it would have

expressly referred to the original recovery factors. See

Bradley v Saranac Community Sch Bd of Ed, 455 Mich

285, 298-299; 565 NW2d 650 (1997). This is also consis-

tent with the Commission’s authority to amend the plan

in its ﬁnal order. See MCL 460.6h(6).

Moreover, when

MCL

460.6h(8) is read in conjunction with MCL

460.6h(9), it is beyond reasonable dispute that the

Legislature contemplated that the Commission would

routinely use temporary orders to authorize a utility to

collect a recovery factor before the entry of a ﬁnal order

in the gas supply and cost recovery review and that it

had the power to authorize revised recovery factors in

the temporary orders to the same extent that it could

ultimately choose to amend the recovery factors in its

ﬁnal order.

MCL 460.6h(9) provides that for any period covered

by a temporary order, a gas utility may “incorporate”

the recovery factors permitted by the order into “its

rates.” In the event that the Commission has not

timely entered a ﬁnal or temporary order permitting

the utility to implement its plan, the Legislature

determined that a utility should be allowed to self-

implement its plan:

Contrary to the Attorney General’s argument on appeal, the Com-

mission does not “amend” a plan when it issues a temporary order under

MCL 460.6h(8), even when it approves or partially approves a proposed

recovery factor that the utility has revised. The temporary order merely

permits the utility to include the proposed recovery factor in its rates, as

revised, until the Commission issues its ﬁnal order; it is the ﬁnal order

that actually implements any amendments of the original plan.

2015] In

re C

ONSUMERS

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191

If the commission has not made a ﬁnal or temporary order

within 3 months of the submission of a complete gas cost

recovery plan, or by the beginning of the period covered in

the plan, whichever comes later, or if a temporary order

has expired without being extended or replaced, then

pending an order which determines the gas cost recovery

factors, a gas utility may each month adjust its rates to

incorporate all or a part of the gas cost recovery factors

requested in its plan. [Id.]

Of course, “[a]ny amounts collected” under a self-

implemented plan before the Commission makes its

ﬁnal order are subject to “prompt refund with interest”

if the Commission later determines that the recovery

factors were not reasonable and prudent. Id.

The Legislature plainly recognized that a gas supply

and cost recovery review might proceed into the period

covered by the plan under review. To address that

issue, the Legislature ﬁrst empowered the Commission

to issue temporary orders implementing the proposed

plan in whole or in part. MCL 460.6h(8). It then

provided that, in the event that the Commission fails

to issue a temporary order for the relevant period, the

utility may include its proposed recovery factors in its

rates. Notably, the Legislature did not expressly limit

the utility’s authority to self-implement the recovery

factors to those speciﬁcally requested in the original

application, but instead referred generally to the “re-

covery factors requested in its plan.” See MCL

460.6h(9). Because a utility can amend or revise its

plan before the conclusion of the review, it follows that

the utility can self-implement a revised recovery factor

as being a recovery factor “requested in its plan.” Id.

The provisions for self-implementation also strongly

suggest that the Legislature wanted to encourage the

Commission to issue timely temporary orders govern-

ing the implementation of recovery factors during the

192 313 M

ICH

175 [Nov

pendency of the review, which would include the au-

thority to issue temporary orders governing a utility’s

plan as revised or amended.

Finally, nothing within the statutory provisions can

be read to preclude the Commission from considering

whether the utility has incurred an underrecovery or

will incur an underrecovery when determining the

appropriate recovery factors. The Commission has

broad authority to set rates, Attorney General v Pub

Serv Comm, 231 Mich App 76, 79; 585 NW2d 310

(1998), and is not required to use any particular

method when setting rates, Attorney General v Pub

Serv Comm, 189 Mich App 138, 147-148; 472 NW2d 53

(1991) (rejecting the contention that the Commission is

bound to consider any single formula or combination of

formulas when setting rates and holding instead that

the Commission may make pragmatic adjustments

warranted under the circumstances). Moreover, the

Legislature has speciﬁcally stated that the Commis-

sion has the authority to consider “other relevant

factors” when determining whether a proposed recov-

ery plan and recovery factors are reasonable and

prudent. MCL 460.6h(6). And the fact that the Com-

mission must conduct a “gas cost reconciliation” pro-

ceeding to reconcile the utility’s revenues using the

authorized recovery factors against its actual expenses

does not preclude the Commission from considering

the potential for over- or underrecoveries during the

review proceeding. MCL 460.6h(12). The various sec-

tions of MCL 460.6h do not directly conﬂict and, as

construed by the Commission, are a harmonious

whole. See House Speaker v State Admin Bd, 441 Mich

547, 568-569; 495 NW2d 539 (1993). Consequently, the

Attorney General has not established that the Com-

mission’s temporary orders were unlawful or unrea-

sonable to the extent that the orders authorized the

2015] In re C

ONSUMERS

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193

utilities to include revised or amended recovery factors

in their rates pending resolution of the reviews and

subject to future reconciliation proceedings.

2. ROLL-IN SYSTEM

Before it developed its roll-in system, the Commis-

sion used a system “under which it refunded or sur-

charged customers on the basis of their actual histori-

cal consumption.” See Attorney General v Pub Serv

Comm, 215 Mich App 356, 361; 546 NW2d 266 (1996).

Subsequently, the Commission approved the use of the

roll-in method for collecting projected underrecoveries

from prior plan periods. Id. at 361-363. And this Court

has recognized that the Commission’s roll-in method is

a lawful alternative to the prior practice:

The [Commission’s] decision is not unlawful because MCL

460.6h(13)

and (14) give the [Commission] discretion in

fashioning refund and surcharge procedures. These provi-

sions authorize, but do not require, the historical system

that distinguished between classes of ratepayers. For

example, subsection 13 provides that the [Commission]

“may, in appropriate circumstances, order refunds or

credits in proportion to the excess amounts actually col-

lected from each such customer during the period cov-

ered.” This language clearly gives the [Commission] power

to order a refund procedure that operates in the manner of

the historical refund procedure, but, just as clearly, does

not require the [Commission] to do so. [Id. at 369 (citation

omitted).]

In A

ttorney General v Pub Serv Comm, 235 Mich App

308, 315; 597 NW2d 264 (1999) (opinion by S

AWYER,

J.),

this Court similarly rejected the Attorney General’s

argument that the Commission’s decision to authorize

use of the roll-in method was “inconsistent with the

language and purposes of [MCL 460.6h].” This Court

noted that the inclusion of a projected underre-

194 313 M

ICH

175 [Nov

covery in a recovery factor for a future plan year would

still be subject to review in the later annual reconcili-

ation proceeding. Id. This Court further concluded that

the Legislature had explicitly authorized the Commis-

sion to include a surcharge for an underrecovery:

Furthermore, we note that subsections 6h(13) and (14)

f the statute grant broad discretion to the [Commission] in

establishing how a refund for an overrecovery is to be

distributed or a surcharge for an underrecovery is to be

collected. In both cases, subsections 6h(13) and (14) direct

that it shall be by “utilizing procedures that the commission

determines to be reasonable.” The [Commission] deter-

mined the procedure employed here to be reasonable.

Therefore, it is explicitly authorized by statute. [Id. at 316.]

In Docket No. 322031, the Commission explained

that

its approval of a temporary factor would not

“affect the review required in the reconciliation pro-

ceeding, which will control the amount of any under-

recovery ultimately collected by the utility.” Similarly,

in Docket No. 322571, the Commission stated that

neither the case plan nor the temporary order would

“result in the adoption of an actual over- or underre-

covery amount or a decision that that amount must be

rolled-in to a particular [recovery] year, because these

decisions are made in the ﬁnal order of a reconciliation

case.” The Commission correctly recognized that its

decision to authorize a recovery factor that included

charges for prior underrecoveries did not impair either

the consumers’ or the utilities’ right to a full reconcili-

ation proceeding, which would ultimately determine

whether there should be a refund or surcharge to

reﬂect actual costs.

This Court is not at liberty to ignore binding pub-

lished authority. See MCR 7.215(J)(1). Therefore, we

must conclude that the Commission’s roll-in method is

lawful.

2015] In re C

ONSUMERS

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195

III. CONCLUSION

The Attorney General has not shown by clear and

satisfactory evidence that the Commission’s orders

were unlawful or unreasonable. Accordingly, we afﬁrm

in each docket number.

Afﬁrmed.

ADOLA

, P.J., and H

OEKSTRA

and M. J. K

ELLY

, JJ.,

concurred.

196 313 M

ICH

175 [Nov

TERAN v RITTLEY

Docket No. 322016. Submitted October 8, 2015, at Petoskey. Decided

November 17, 2015, at 9:05 a.m. Leave to appeal denied 500 Mich

877.

Plaintiff Susana E. Narvaez Teran gave birth to a child in Ecuador

in 2006. Defendant Michael R. Rittley is the child’s father. Shortly

after the child’s birth, defendant left Ecuador and did not leave

plaintiff any contact information. In July 2007, in Virginia,

plaintiff sued defendant for child support. Defendant submitted a

Michigan driver’s license to the Virginia court and asserted that

his ofﬁcial residence was in Johannesburg, Michigan, in Otsego

County. The Virginia court dismissed the case in 2008 for lack of

jurisdiction. In September 2010, plaintiff ﬁled the instant pater-

nity action in the Otsego Circuit Court to determine custody,

parental responsibility, and child support. Defendant, through

counsel, ﬁled an appearance. In April 2011, paternity testing

conﬁrmed that defendant was the child’s father, the parties

stipulated to entry of an order of ﬁliation, and the matter was

referred to the Friend of the Court (FOC) for child support. The

FOC recommended setting defendant’s child support obligation at

$1,211 a month. In March 2012, defendant moved to dismiss the

case on the basis that the circuit court did not have subject-

matter jurisdiction, and the court, Michael K. Cooper, J., denied

defendant’s motion. In September 2013, four months after a

two-day trial, the court issued a written opinion and order setting

defendant’s child support obligation at the amount recommended

by the FOC—$1,211 a month. Plaintiff ﬁled motions to make the

child support retroactive and require defendant to pay plaintiff’s

attorney fees. The court ruled from the bench that child support

was to be retroactive to February 7, 2008, the date the case was

dismissed in Virginia. The court also ordered defendant to pay

directly to plaintiff’s attorney a sum of $23,000 for plaintiff’s

attorney fees. Defendant appealed.

The Court of Appeals held:

1. The circuit court properly exercised jurisdiction in this case.

The circuit court has subject-matter jurisdiction over paternity

actions, child custody, and child support. Defendant argued that

under MCL 722.714(1), the circuit court lacked subject-matter

2015] T

ERAN V

ITTLEY

197

jurisdiction because none of the parties lived in Michigan. How-

ever, the statute defendant relied on governs venue, not jurisdic-

tion, and it instructs a party on the proper place to ﬁle a lawsuit

concerning paternity, custody, and child support. According to

MCL 722.714(1), whenever neither the child nor the mother live

in Michigan, the lawsuit is to be ﬁled in the county where the

putative father is “found.” Even if the statute were jurisdictional,

defendant produced no evidence that he was not “found” in

Otsego County despite that he was not living there. Defendant

received notice of the proceedings, and he voluntarily entered his

appearance in the action. Moreover, defendant waived any issue

regarding personal jurisdiction when he failed to raise it in his

ﬁrst responsive pleading.

2. The circuit court did not abuse its discretion when it

awarded plaintiff $23,000 in attorney fees, payable directly to

plaintiff’s Michigan attorney, part of which was to pay for

plaintiff’s attorney in Florida. Plaintiff ﬁrst hired Florida attor-

ney Paul Finizio, who did not ﬁle an appearance in the case.

Finizio found Michigan attorney Jodi Doak to represent plaintiff

in the proceedings in Michigan. In general, attorney fees are not

recoverable. However, there are exceptions. MCR 3.206(C)(2)

permits a court to award attorney fees in domestic relations

actions when the party requesting the fees alleges facts sufﬁcient

to show that he or she is unable to bear the cost of an attorney,

and that the other party is able to pay. In this case, $23,000 was

proper, as was the requirement that Doak pay a portion of the fees

to Finizio because Finizio was necessary to the case. Attorney fees

should compensate an attorney for the expenses he or she

incurred, including overhead and the cost of other staff. Attorney

fees should not be withheld from an out-of-state attorney who did

not ﬁle an appearance in the matter, when the attorney was

necessary to the case.

3. The circuit court did not abuse its discretion when it

ordered that the child support begin in 2008, the time at which

the case in Virginia was dismissed. A child support obligation may

be retroactive to the date the complaint was ﬁled when a

defendant avoids service of process or otherwise delays the

imposition of process. In this case, defendant appeared in the

Virginia court and successfully obtained dismissal of the case,

and defendant attempted to do the same here in Michigan. The

circuit court properly ordered that child support should begin at

the time plaintiff ﬁrst sought it.

4. The circuit court did not clearly err or abuse its discretion

by refusing to deviate from the amount of child support recom-

198 313

ICH

197 [Nov

mended by the FOC. Differences between the costs of living in the

areas in which the parties reside are not to be considered when

establishing the appropriate amount of child support. That is, the

fact that the cost of living in the area where the child resides is

lower than the cost of living in the area where the payer parent

resides does not mean that the payer parent’s obligation should

be reduced. Deviation is permissible when the amount of child

support is unjust or inappropriate under the circumstances.

Afﬁrmed.

1. D

OMESTIC

ELATIONS —

HILD

UPPORT —

ALCULATING

MOUNT —

IFFER-

ENT

OSTS OF

IVING

As long as a child support amount is not unjust or inappropriate, a

trial court must order child support as recommended under

Michigan’s child support formula (MCSF); a trial court generally

may not deviate, on the basis of any differences between the costs

of living in the area where the child resides and the area where

the payer parent resides, from the amount of child support

recommended; that is, the payer parent’s child support obligation

should not be reduced when the cost of living in the area where

the child resides is lower than the cost of living in the area where

the payer parent resides; the MCSF is founded on the needs of the

child and the actual resources of each parent.

2. D

OMESTIC

ELATIONS —

ATERNITY AND

HILD

UPPORT —

URISDICTION —

IRCUIT

OURT

A circuit court has subject-matter jurisdiction over paternity pro-

ceedings and proceedings involving child custody and child sup-

port; when the mother or the child does not live within the state,

venue is proper in the county where the putative father may be

found; venue may be proper in Michigan even when none of the

parties live in Michigan; in the absence of evidence to the

contrary; a putative father who receives notice of an action and

who enters an appearance in the matter has been “found,” for

purposes of MCL 722.714(1).

Jodi J. Doak, PC (by Jodi

J. Doak), for plaintiff.

Bailey Smith & Bailey, PC (by John J. Smith), for

defendant.

Before: M

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ.

2015] T

ERAN V

ITTLEY

199

URIAM

. In this paternity case, defendant ap-

peals by right the trial court’s September 24, 2013

order setting defendant’s child support obligation at

$1,211 a month. Defendant also appeals by right the

trial court’s May 14, 2014 order awarding attorney fees

to plaintiff. We conclude that the trial court possessed

subject-matter jurisdiction, and that it did not abuse

its discretion by establishing the amount of child

support, by making it retroactive, or by awarding

attorney fees. Accordingly, we afﬁrm.

I. SUMMARY OF FACTS AND PROCEEDINGS

In 2006, while defendant was in the military and

stationed

abroad in Ecuador, he fathered a child with

plaintiff. The child was born on November 18, 2006, in

Quito, Ecuador. Defendant left Ecuador shortly after

the child was born and did not leave plaintiff any

contact information.

In July 2007, plaintiff sued defendant for child

support in the commonwealth of Virginia. Defendant,

represented by counsel, submitted to the Virginia court

a Michigan driver’s license and asserted that his ofﬁ-

cial residence was in Johannesburg, Michigan, in Ot-

sego County, where he had paid taxes since 1982. The

Virginia court dismissed the complaint for lack of

jurisdiction on February 7, 2008.

On September 30, 2010, plaintiff ﬁled the instant

paternity action to determine custody, parental respon-

sibility, and child support. Defendant, through counsel,

ﬁled an appearance on December 23, 2010. The trial

court permitted both parties to appear telephonically

at scheduled hearings. A stipulated order for paternity

testing was entered on April 25, 2011. DNA testing was

performed on samples from the parties and the child.

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The results of the DNA testing were that defendant

could not be excluded as the child’s father. The prob-

ability that defendant was, in fact, the child’s father

was 99.99%. On August 26, 2011, the parties stipulated

to the entry of an order of ﬁliation, and the matter was

referred to the Friend of the Court (FOC) for an

investigation regarding child support. Using $22,892

for plaintiff’s gross income, and $109,774 for defen-

dant’s gross income, the FOC recommended setting

defendant’s child support obligation at $1,211 a month.

On March 29, 2012, defendant ﬁled a motion to

dismiss, asserting that the trial court lacked subject-

matter jurisdiction pursuant to MCL 722.714 because

neither of the parties nor the child resided in Michigan.

In an afﬁdavit, defendant asserted that he had resided

in Washington, D.C., from May to September 2007; in

Bolivia, from September 2007 to July 2009; in Wash-

ington, D.C., from July to September 2009; in Frank-

fort, Germany, from September 2009 to June 2011; in

Virginia, from June 2011 to present; and that he never

intended to reside in Michigan after 2007. The trial

court held a hearing on the motion on April 16, 2012.

On May 22, 2012, the trial court issued an opinion

and order denying defendant’s motion to dismiss. The

trial court ruled that it possessed subject-matter juris-

diction over an action to identify the father of a child

born out of wedlock, reasoning that the language in

MCL 722.714(1) (governing paternity actions) was

similar to the language in MCL 722.26(2) (governing

child custody actions), and that because MCL 722.26

concerns venue, not jurisdiction, MCL 722.714 likewise

concerns venue, not jurisdiction. Speciﬁcally, the court

noted that MCL 722.714 “provides that an action for

paternity shall be ﬁled in the county where the mother

or child resides. If both the mother and child reside

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201

outside of this state, then the complaint shall be ﬁled

in the county where the putative father resides or is

found.” Id. The court further observed that “[t]he fact

that the child was conceived or born outside of this

state is not a bar to entering a complaint against the

putative father.” MCL 722.714(1). The trial court,

citing Altman v Nelson, 197 Mich App 467; 495 NW2d

826 (1992), ruled that the Paternity Act conferred

subject-matter jurisdiction on the circuit court to iden-

tify the father of a child born out of wedlock. See id. at

473-474. Citing Morrison v Richerson, 198 Mich App

202, 208; 497 NW2d 506 (1993), the court also ruled

that even if venue were improper, it would not defeat

the court’s subject-matter jurisdiction.

In May 2013, the court conducted a two-day trial

regarding child support at which both plaintiff and

defendant testiﬁed via telephone. The main issues

were the amount of child support and whether the

court should deviate from the child support formula

because plaintiff and the child lived in Ecuador. Defen-

dant presented the testimony of Stan Smith, Ph.D.

(University of Chicago), whom the trial court recog-

nized as an expert in economics. Dr. Smith testiﬁed

that he examined the cost of living in Quito, Ecuador,

and Washington, D.C., and converted the costs of living

in those cities to the cost of living in Detroit, Michigan.

According to Dr. Smith, plaintiff’s income of $22,900 in

Quito equated to $36,914 of purchasing power in

Michigan, and defendant’s income of $127,000 in

Washington, D.C., equated to $89,557 of purchasing

power in Michigan. Using this determination of the

parties’ respective purchasing power in Michigan dol-

lars ($36,914 and $89,557), Dr. Smith calculated that

the amount of child support should be $1,021 per

month. Dr. Smith further testiﬁed that in order to

achieve the equivalent of $1,021 purchasing power in

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197 [Nov

Michigan, a person in Ecuador would need only

$634.00 (as of January 2012) or $567.00 (as of May

2013).

On September 24, 2013, the trial court issued a

written opinion and order setting the amount of child

support at $1,211 a month, as the FOC had recom-

mended. The trial court rejected defendant’s argument

that it would not be a deviation to reduce the formula-

recommended child support to an amount consistent

with Dr. Smith’s testimony regarding the relative

purchasing power in the different locales. The trial

court also rejected defendant’s substantive arguments

that a deviation from the child support formula was

warranted. The court found that defendant’s argu-

ments partially failed for lack of proof because defen-

dant had not presented any evidence of the difference

between the costs of living in Ecuador and El Salvador,

where defendant then resided. The trial court next

discussed whether it would deviate from the child

support formula for the time period between July 2011

and July 2012, when defendant was living in Washing-

ton, D.C. The court reviewed caselaw from other juris-

dictions, ﬁnding the reasoning of a Maryland decision,

Gladis v Gladisova, 382 Md 654; 856 A2d 703 (2004),

the most persuasive. The court also noted that our

Supreme Court in Verbeke v Verbeke, 352 Mich 632; 90

NW2d 489 (1958), which was decided before the cur-

rent statutory scheme of the child support formula,

had rejected international variations in the costs of

living as reasons for modifying child support.

The trial court ﬁrst reasoned that defendant’s pro-

posal would be administratively unworkable, require

expert testimony in many cases, place undue burdens

on litigants and the judicial system, and delay entry of

support orders. Second, the court reasoned that child

2015] T

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203

support should not depend on the parents’ choice of

residences, but on the economic ability of the child’s

parents to provide support. The court also noted that

the cost of living corresponding to a speciﬁc geographic

location had not been made an explicit factor that could

justify a deviation from the child support formula. The

trial court therefore ruled that it would not consider

the variation in the costs of living at different locales as

a factor in establishing child support.

Subsequently, plaintiff moved the court to make the

upport order retroactive and for an order requiring

defendant to pay plaintiff’s attorney fees. The trial court

held a hearing on the motions on March 7, 2014. As to

retroactivity, the court ruled from the bench that it was

appropriate under MCL 722.717(2)(a) or (c) to start

payment of child support from the time of the Virginia

case. The trial court’s order of May 14, 2014, made child

support retroactive to February 7, 2008, the day the

Virginia case was dismissed. The trial court also

awarded to plaintiff $23,000 in attorney fees, payable to

plaintiff’s Michigan attorney, which included part of the

expense of a Florida attorney who assisted in prosecut-

ing the case. The trial court’s May 14, 2014 order

requires defendant to pay plaintiff’s Michigan lawyer

$23,000, less whatever defendant had already paid

under earlier orders of the court.

As noted, defendant appeals by right, contending

that the trial court lacked subject-matter jurisdiction,

and if it did have subject-matter jurisdiction, that it

abused its discretion by ordering the amount of child

In a footnote, the court also indicated that “[i]n the event that the

Court did consider the geographical cost of living as a factor . . . , the

Court would not ﬁnd it necessary to stray from the child support

formula because the amount of support is neither unjust nor inappro-

priate.”

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197 [Nov

support recommended by the FOC, by making the child

support retroactive, and by awarding $23,000 in attor-

ney fees.

II. SUBJECT-MATTER JURISDICTION

A. STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a

question of law that this Court reviews de novo.

Polkton Charter Twp v Pellegrom, 265 Mich App 88, 98;

693 NW2d 170 (2005). A jurisdictional defect may be

raised at any time. Id. at 97.

B. DISCUSSION

We ﬁnd defendant’s argument that the circuit court

lacked

subject-matter jurisdiction over plaintiff’s pa-

ternity action to be without merit. Nothing in MCL

722.714 expressly limits the circuit court’s subject-

matter jurisdiction. Indeed, the Paternity Act patently

grants the circuit court subject-matter jurisdiction to

determine the paternity of a child born out of wedlock

and to order child support. LME v ARS, 261 Mich App

273, 278-279; 680 NW2d 902 (2004); see also Altman,

197 Mich App at 473-474, and Morrison, 198 Mich App

at 206.

Subject-matter jurisdiction “is the right of the court

to exercise judicial power over a class of cases, not the

particular case before it.” Grebner v Oakland Co Clerk,

220 Mich App 513, 516; 560 NW2d 351 (1996). “It is the

abstract power to try a case of the kind or character of

the one pending, but not to determine 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.” Id. The Legislature has conferred

subject-matter jurisdiction on circuit courts as follows:

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Circuit courts have original jurisdiction to hear and

determine all civil claims and remedies, except where

exclusive jurisdiction is given in the constitution or by

statute to some other court or where the circuit courts are

denied jurisdiction by the constitution or statutes of this

state. [MCL 600.605.]

Thus, the circuit court is presumed to have subject-

matter

jurisdiction over a civil action unless Michi-

gan’s Constitution or a statute expressly prohibits it

from exercising jurisdiction or gives to another court

exclusive jurisdiction over the subject matter of the

suit. Id.; In re Petition by Wayne Co Treasurer, 265

Mich App 285, 291; 698 NW2d 879 (2005).

Nevertheless, defendant argues that the circuit

court does not have subject-matter jurisdiction to iden-

tify the father of a child born out of wedlock and to

award child support when the father, mother, and child

all reside outside of Michigan. In support of his argu-

ment, defendant asserts that MCL 722.714(1) sets

jurisdictional requirements that are not met when

neither the father, nor the mother, nor the child reside

in Michigan. Defendant relies on the part of MCL

722.714(1) that states: “A complaint shall be ﬁled in

the county where the mother or child resides. If both

the mother and child reside outside of this state, then

the complaint shall be ﬁled in the county where the

putative father resides or is found.” Like the trial

court, we ﬁnd this argument unavailing.

MCL 722.714(1) does not expressly limit the circuit

court’s subject-matter jurisdiction. Rather, MCL

722.714(1) concerns venue and indicates where a pa-

ternity action should be ﬁled. As the trial court noted,

the language in MCL 722.714(1) is very similar to that

in MCL 722.26(2) concerning child custody, which

states:

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197 [Nov

Except as otherwise provided in section 6b or 6e, if the

circuit court of this state does not have prior continuing

jurisdiction over a child, the action shall be submitted to

the circuit court of the county where the child resides or

may be found by complaint or complaint and motion for

order to show cause.

This Court has held that MCL 722.26(2) addresses

venue,

not jurisdiction. See McDonald v McDonald, 74

Mich App 119, 123 n 1; 253 NW2d 678 (1977), and

Kubiak v Steen, 51 Mich App 408, 411; 215 NW2d 195

(1974).

Defendant asserts that MCL 722.714(1) is analogous

to MCL 552.9(1), which is jurisdictional with respect to

an action for divorce. In Stamadianos v Stamadianos,

425 Mich 1, 7-8; 385 NW2d 604 (1986), our Supreme

Court held that the 180- and 10-day residency require-

ments of MCL 552.9(1) were jurisdictional.

Defendant’s argument is without merit. The lan-

guage

used in MCL 552.9(1) is very different from the

language used in MCL 722.714(1). MCL 552.9(1) uses

restrictive language, informing a trial court that it

shall not grant a judgment of divorce unless the

residency requirements are met. This is an express

prohibition. In contrast, MCL 722.714(1) contains no

such express prohibition on the circuit court. Rather, it

merely instructs the plaintiff where to properly ﬁle a

complaint depending on where the parties live.

Moreover, defendant’s argument is premised on his

not residing in Michigan, but the statute on which he

MCL 552.9(1) states in pertinent part that “[a] judgment of divorce

shall not be granted by a court in this state in an action for divorce

unless the complainant or defendant has resided in this state for 180

days immediately preceding the ﬁling of the complaint and . . . the

complainant or defendant has resided in the county in which the

complaint is ﬁled for 10 days immediately preceding the ﬁling of the

complaint.”

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relies also states that a paternity complaint is properly

ﬁled “in the county where the putative father resides or

is found.” MCL 722.714(1). Thus, even if defendant

were correct that the statute was jurisdictional, and

even if defendant did not “reside” in Otsego County, his

argument would still fail because he has not presented

any argument that he was not “found” in Otsego

County. Indeed, defendant was, in fact, “found” in

Otsego County, and he voluntarily entered his appear-

ance in this action, thereby submitting to the personal

jurisdiction of the circuit court, which possessed

subject-matter jurisdiction over the issues raised in the

lawsuit. LME, 261 Mich App at 278-279. Defendant

waived any challenge to the court’s personal jurisdic-

tion over him when he failed to raise it in his ﬁrst

responsive pleading. MCR 2.116(D)(1).

III. ATTORNEY FEES

STANDARD OF REVIEW

We review a trial court’s “decision whether to award

ttorney fees and the determination of the reasonable-

ness of the fees for an abuse of discretion.” In re Temple

Marital Trust, 278 Mich App 122, 128; 748 NW2d 265

(2008). We review a trial court’s ﬁndings of fact under-

lying the award of attorney fees for clear error, and we

review any underlying issues of law de novo. Id. A trial

court abuses its discretion when it selects “an outcome

outside the range of reasonable and principled out-

comes.” Id.

B. DISCUSSION

Plaintiff initially hired Paul Finizio, a Spanish-

speaking

attorney with an ofﬁce in Ft. Lauderdale,

Florida, to help her obtain child support from defen-

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197 [Nov

dant. Finizio found Jodi Doak, the attorney of record in

the instant case, to represent plaintiff in Michigan.

Finizio did not ﬁle an appearance in the case. On

August 16, 2011, plaintiff moved for a temporary

award of attorney fees, attaching statements for ser-

vices from Finizio and Doak. On January 3, 2012, the

trial court ordered defendant to pay $13,800 in plain-

tiff’s attorney fees and costs, less $2,500 defendant had

already paid, with the balance payable at a rate of $750

a month. This order also required defendant to pay

$4,000 for an expert witness.

Following trial, Doak again moved the court for

payment of attorney fees. Doak asserted the total

amount due for her and Finizio’s services was $35,000,

of which $14,000 had been paid. Plaintiff provided the

court with detailed billing statements for Doak and

Finizio. According to Finizio’s statement, he had billed

approximately $19,500 and was owed approximately

$11,500.

According to Doak’s statement, she had billed

approximately

$15,300 and was owed approximately

$9,600.

The trial court ordered defendant to pay

plaintiff

$23,000 in attorney fees less any payments

defendant had already made.

Defendant’s primary argument is that the court

abused its discretion when it ordered defendant to pay

attorney fees of $23,000 because Doak’s fee was only

$15,326, Finizio was not entitled to attorney fees

because he never appeared in this case, and there is no

evidence that Finizio was necessary. Additionally, de-

Plaintiff herself had paid Finizio approximately $8,000.

At the time of the hearing, defendant had paid Doak at least $2,500.

Additionally, plaintiff’s expert witness fee was only $2,000, but defen-

dant had been ordered to pay $4,000 to help plaintiff hire an expert.

Doak applied the $2,000 unspent expert witness fee to the balance of her

fees. Thus, defendant had paid at least $4,500 of Doak’s fees at the time

of the hearing.

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209

fendant argues that an individual with plaintiff’s in-

come is not entitled to 100% reimbursement for all of

her attorney fees. We disagree.

Generally, under the “American rule,” attorney fees

are not recoverable in the absence of a statute, court

rule, or common-law exception that provides to the

contrary. Dessart v Burak, 470 Mich 37, 42; 678 NW2d

615 (2004). MCR 3.206(C)(2) permits a court to award

attorney fees in a domestic relations action when the

party requesting the fees alleges “facts sufﬁcient to

show that . . . the party is unable to bear the expense of

the action, and that the other party is able to pay[.]”

“The party requesting the attorney fees has the burden

of showing facts sufﬁcient to justify the award.”

Borowsky v Borowsky, 273 Mich App 666, 687; 733

NW2d 71 (2007).

In this case, plaintiff testiﬁed that she earned

$23,000 a year ($1,916 a month) and that her monthly

expenses included $400 for her daughter’s school, $400

for rent, $600 for food, and $450 for child care. In

contrast, defendant testiﬁed that he made approxi-

mately $127,000 a year, and that he owned a house in

Washington, D.C., that he rented out. The government

paid defendant’s housing and other expenses in El

Salvador. Under these circumstances, we conclude that

the trial court did not clearly err by ﬁnding that plaintiff

was unable to bear the expense of the action and that

defendant had the ability to pay. MCR 3.206(C)(2).

We also conclude that the trial court did not abuse

its discretion by including in a reasonable attorney fee

payable to Doak the partial reimbursement of ex-

penses plaintiff incurred using Finizio’s services. We

note that “there exists no precise formula by which a

court may assess the reasonableness of an attorney

fee,” and that the court must consider “the expense[s]

incurred” when establishing a reasonable attorney fee.

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197 [Nov

Temple Marital Trust, 278 Mich App at 138. Thus, the

expenses of staff and other overhead are included in

the determination of what constitutes a reasonable

attorney fee, as this Court has observed:

“Clearly, attorney fees are not meant to compensate

only

work performed personally by members of the bar.

Rather, the term must refer to a reasonable fee for the

work product of an attorney that necessarily includes

support staff. The rule allowing an award of attorney fees

has traditionally anticipated the allowance of a fee sufﬁ-

cient to cover the ofﬁce overhead of an attorney together

with a reasonable proﬁt. The inclusion of factor 5, the

expenses incurred, reﬂects the traditional understanding

that attorney fees should be sufﬁcient to recoup at least a

portion of overhead costs. . . . Thus, until a statute or a

court rule speciﬁes otherwise, the attorney fees must take

into account the work not only of attorneys, but also of

secretaries, messengers, paralegals, and others whose

labor contributes to the work product for which an attor-

ney bills a client, and it must also take account of other

expenses and proﬁt.” [Allard v State Farm Ins Co, 271

Mich App 394, 404-405; 722 NW2d 268 (2006), quoting

Joerger v Gordon Food Service, Inc, 224 Mich App 167,

181-182; 568 NW2d 365 (1997) (citation omitted).]

We conclude that the trial court did not clearly err by

ﬁ

nding that plaintiff’s retention of Finizio was a neces-

sary expense. Indeed, it appears highly probable, given

the complexity of a case involving both international

and language barriers, that this action might never

have come to fruition without Finizio’s involvement.

Finizio successfully found an attorney to represent

plaintiff in Michigan, and the record supports that a

Spanish-speaking attorney was necessary in order to

successfully communicate legal issues to plaintiff. Ac-

cordingly, the trial court did not abuse its discretion by

awarding attorney fees in an amount that at least

partially included the expense of utilizing Finizio’s

services.

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211

We speciﬁcally reject defendant’s argument that the

trial court erred because Finizio did not enter an

appearance in this case. As already noted, the trial

court did not order defendant to pay Finizio’s fee

directly to him. The court only used the expenses

plaintiff incurred by retaining Finizio as part of its

determination of a reasonable attorney fee award pay-

able to Doak. Moreover, in Escanaba & L S R Co v

Keweenaw Land Ass’n, Ltd, 156 Mich App 804, 815-

816; 402 NW2d 505 (1986), this Court rejected a per se

rule prohibiting an award of fees to an out-of-state

attorney who does not ﬁle an appearance in a case,

explaining as follows:

The question is not whether the law ﬁrm retained is

in-state

or out-of-state; the question is whether retention

of the ﬁrm is necessary. It is the trial court’s duty to

determine whether retention of the ﬁrm was necessary.

Absent an abuse of discretion, the decision of the trial

court should not be reversed. Just because the ﬁrm

employed is out-of-state does not make retention unnec-

essary. Accordingly, we decline to rule that it is prima facie

unreasonable to award attorney fees to out-of-state coun-

sel.

In sum, we conclude that the trial court did not

clearly

err by ﬁnding that plaintiff’s retention of

Finizio was a necessary expense, and it did not abuse

its discretion in awarding Doak attorney fees in an

amount that at least partially included the cost of

Finizio’s services.

IV. RETROACTIVE CHILD SUPPORT

STANDARD OF REVIEW

We review child support orders to determine

whether the trial court abused its discretion. Holmes v

Holmes, 281 Mich App 575, 586; 760 NW2d 300 (2008).

212 313 M

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197 [Nov

The trial court abuses its discretion when it “selects an

outcome that is outside the range of reasonable and

principled outcomes.” Ewald v Ewald, 292 Mich App

706, 715; 810 NW2d 396 (2011). While we review any of

the trial court’s ﬁndings of fact for clear error, id. at

714, we review de novo the trial court’s ruling to the

extent that it involves statutory construction. Holmes,

281 Mich App at 587.

B. DISCUSSION

The trial court did not abuse its discretion by com-

mencing

defendant’s child support obligation as of the

date the Virginia support action was dismissed—

February 7, 2008. The retroactive child support order

was permitted by MCL 722.717(2), which states, in

pertinent part:

A child support obligation is only retroactive to the date

that

the paternity complaint was ﬁled unless any of the

following circumstances exist:

(a) The defendant was avoiding service of process.

(b) The defendant threatened or coerced through do-

mestic violence or other means the complainant not to ﬁle

a proceeding under this act.

support obligation.

In this case, the trial court determined that both

Subsection

(a) and Subsection (c) applied. We ﬁnd it

unnecessary to determine whether the trial court

clearly erred by ﬁnding that defendant was avoiding

service of process because the record supports the trial

court’s conclusion that “defendant otherwise delayed

the imposition of a support obligation,” MCL

722.717(2)(c), by seeking and obtaining dismissal of

the Virginia child support action. Accordingly, the trial

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213

court did not abuse its discretion by ordering that

defendant’s child support obligation commenced as of

February 7, 2008, the date the Virginia child support

action was dismissed.

V. DEVIATION FROM THE CHILD SUPPORT FORMULA

STANDARD OF REVIEW

“A trial court must presumptively follow the MCSF

[Michigan Child Support Formula] when determining

the child support obligation of parents.” Ewald, 292

Mich App at 714. “This Court reviews de novo as a

question of law whether the trial court has properly

applied the MCSF.” Id. Any factual ﬁndings of the

trial court underlying its determination regarding

child support are reviewed for clear error, and any

discretionary rulings that a statute or the MCSF

permits are reviewed for an abuse of that discretion.

Id. at 714-715.

B. DISCUSSION

Defendant asserts that the trial court erred by not

deviating

from the MCSF-recommended child support

on the basis of the costs of living relative to where the

child resides and where defendant, the support payer,

resides. As an issue of ﬁrst impression, we hold that

the trial court may not, as a general rule, deviate from

the MCSF-recommended child support on the basis of

any differences between the general costs of living

where the parents and the child reside. We also con-

clude that the trial court did not abuse its discretion by

ﬁnding that the MCSF-recommended child support

was not “unjust or inappropriate” as required by MCL

552.605(2) to support a deviation.

214 313 M

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197 [Nov

In setting the amount of child support, the Legisla-

ture has required that a trial court must generally

follow the formula developed by the state Friend of the

Court Bureau:

Except as otherwise provided in this section, the court

hall order child support in an amount determined by

application of the child support formula developed by the

state friend of the court bureau as required in section 19 of

the friend of the court act, MCL 552.519. The court may

enter an order that deviates from the formula if the court

determines from the facts of the case that application of the

child support formula would be unjust or inappropriate and

sets forth in writing or on the record all of the following:

(a) The child support amount determined by applica-

tion of the child support formula.

(b) How the child support order deviates from the child

support formula.

instead of the payment of child support, if applicable.

(d) The reasons why application of the child support

formula would be unjust or inappropriate in the case.

[MCL 552.605(2) (emphasis added).]

As the trial court recognized, other jurisdictions are

split

on the issue whether differences in costs of living

based on geographic location should factor into deter-

mining child support. In Gladis, 382 Md at 657, the

father lived in the United States, and the mother and

child lived in the Slovak Republic. The trial court

concluded that applying the Maryland child support

guidelines was “inappropriate when there is a wide

disparity in the cost of living,” and therefore reduced

the amount of the monthly award from $497 to $225.

Id. at 660.

The mother ﬁled a motion to amend that

In Maryland, as in Michigan, the amount of child support resulting

from the application of the child support guidelines is presumed to be

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215

decision, and a different judge ordered the father to

pay $497 per month in accordance with the guidelines.

Id. at 661. Maryland’s highest appellate court, the

Maryland Court of Appeals, issued a writ of certiorari

before any action was taken by the Court of Special

Appeals, Maryland’s intermediate appellate court. Id.

In Gladis, 382 Md at 665-668, after recognizing the

conﬂicting views among state courts that have ad-

dressed the issue, the Maryland Court of Appeals held

“that the better position is to prohibit courts from

deviating from the Guidelines based on the standards

of living in different areas.” Id. at 668.

The court

reasoned

that the Maryland legislature did not explic-

itly make the standards of living in relevant geo-

graphic areas part of the child support formula, that

the child should enjoy the standard of living that he or

she would have enjoyed if the child’s parents had

stayed together, and that there is nothing wrong with

a child support award that would allow a child to enjoy

an above-average standard of living that corresponds

correct, but may be rebutted by evidence demonstrating that the result

under the guidelines would “be unjust or inappropriate in a particular

case.” Gladis, 382 Md at 664 (quotation marks and citations omitted). If

the guidelines establish an unjust or inappropriate child support

amount and the trial court awards an amount of child support that

departs from the guidelines, the court is required to “make a written

ﬁnding or speciﬁc ﬁnding on the record stating the reasons for departing

from the guidelines.” (Quotation marks and citation omitted.) At a

minimum, “the ﬁndings must state what the award would have been

under the [g]uidelines, how the award varies from the guidelines, and

how the ﬁnding serves the best interest of the child.” Id. at 664-665.

The Maryland court sometimes used the phrase, “standards of

living,” when it discussed the variation in the “costs of living” in

different geographic locations. The court stated early in its opinion that

the lower court did not abuse its discretion by ordering the guidelines-

recommended amount of child support because “a lower cost of living in

the child’s locality is not a proper basis for deviating” from Maryland’s

child support guidelines. Gladis, 382 Md at 662.

216 313

ICH

197 [Nov

with the economic circumstances of the child’s parent.

Id. at 668-670. The court also recognized that permit-

ting the trial court to consider the costs of living on a

case-by-case basis would create more frequent devia-

tions from the child support guidelines and would

frustrate the purposes of requiring courts to use the

guidelines—to ensure that child support awards meet

the needs of children, to improve the consistency and

equity of awards, and to improve the efﬁciency of

adjudicating child support issues. Id.

In contrast, other jurisdictions have allowed differ-

ences in costs of living to be a proper factor in deter-

mining whether to deviate from child support guide-

lines. In People ex rel AK, 72 P3d 402, 404 (Colo App,

2003), the court found that the trial court erred by not

considering whether the difference between living ex-

penses in Colorado and Russia would render applying

the guidelines “inequitable, unjust, or inappropriate.”

Id. at 405 (quotation marks and citation omitted).

Similarly, in Booth v Booth, 44 Ohio St 3d 142, 144; 541

NE2d 1028 (1989), the Supreme Court of Ohio ad-

dressed whether the trial court erred by deviating from

the child support guidelines because of the “substan-

tial difference” between the parents’ costs of living in

New York and Ohio. The court found that the trial

court did not abuse its discretion in deviating from the

guidelines. Id. According to the court, after “a careful

review of the facts and circumstances of this cause, we

ﬁnd that the child support order herein was proper in

all respects, and was neither unreasonable, arbitrary

nor unconscionable.” Id.

Like the trial court, we agree that the reasoning of

the Maryland Court of Appeals in Gladis is persuasive.

But, more importantly, principles of statutory con-

struction dictate that we afﬁrm the trial court. This

2015] T

ERAN V

ITTLEY

217

Court has summarized the pertinent principles of

statutory construction:

The primary goal of judicial interpretation of statutes is to

ascertain and give effect to the intent of the Legislature.

The ﬁrst criterion in determining intent is the speciﬁc

language of the statute. The Legislature is presumed to

have intended the meaning it plainly expressed. Nothing

will be read into a clear statute that is not within the

manifest intention of the Legislature as derived from the

language of the statute itself. [Polkton Twp, 265 Mich App

at 101-102 (citations omitted).]

Neither the Legislature, in MCL 552.605(2), nor the

Friend

of the Court Bureau, which is tasked with

developing the MCSF “based upon the needs of the

child and the actual resources of each parent,” MCL

552.519(3)(a)(vi), has speciﬁcally included geographic

variations in the costs of living as a factor that may

justify deviation from the MCSF-recommended child

support amount. See 2013 MCSF 1.04(D); Ewald, 292

Mich App at 715-718. The statute is clear: “Except as

otherwise provided in this section, the court shall order

child support in an amount determined by application

of the child support formula developed by the state

friend of the court bureau as required in section 19 of

the friend of the court act, MCL 552.519.” MCL

552.605(2) (emphasis added). Nothing in the plain

language of the statute or the MCSF manifests an

intent to permit geographic variations in the costs of

living to justify deviating from the MCSF-

recommended child support amount. See Polkton Twp,

265 Mich App at 102.

Both our Supreme Court and this Court have re-

peatedly held that the provisions of the MCSF are

mandatory and that any deviation must be justiﬁed by

strict compliance with the procedures of MCL

552.605(2). See, e.g., Diez v Davey, 307 Mich App 366,

218 313 M

ICH

197 [Nov

376; 861 NW2d 323 (2014) (“[E]xcepting those factual

instances in which application of the MCSF would be

unjust or inappropriate, a parent’s child support con-

tribution is determined by use of the MCSF.”); Ewald,

292 Mich App at 715-716 (“[T]he [statutory] criteria for

deviating from the MCSF are mandatory.”); Ghidotti v

Barber, 459 Mich 189, 200; 586 NW2d 883 (1998) (“In

the absence of circumstances that make a determina-

tion ‘unjust or inappropriate,’ the court may not devi-

ate from the formula.”); Burba v Burba (After Re-

mand), 461 Mich 637, 644; 610 NW2d 873 (2000)

(“[T]he criteria for deviating from the formula are

mandatory.”). In this case, the trial court, after con-

ducting an evidentiary hearing, determined that the

MCSF-recommended child support was not “unjust or

inappropriate.” MCL 552.605(2). We are not left with a

deﬁnite and ﬁrm conviction that the trial court made a

mistake, and thus, we cannot conclude that the trial

court clearly erred. Stallworth v Stallworth, 275 Mich

App 282, 284; 738 NW2d 264 (2007).

Our conclusion is also consistent with caselaw pre-

dating the MCSF-enabling legislation.

In V

erbeke, the

trial court ordered the defendant to pay the plaintiff

$40 a week in child support. Verbeke, 352 Mich at 633.

The plaintiff then moved to Germany, and the trial

court modiﬁed the support order by reducing the

payments from $40 a week to $10 a week. Id. at

633-634. On appeal, our Supreme Court set aside the

modiﬁed support order, reasoning that the defendant

“did not contend that his ﬁnancial condition had

changed, but called attention to the fact that plaintiff

could purchase more per dollar in Europe than she

See Ghidotti, 459 Mich at 194-197, and Burba, 461 Mich at 642-644,

for a historical perspective on legislation authorizing the MCSF.

2015] T

ERAN V

ITTLEY

219

could purchase per dollar in the United States. This

fact did not justify the court’s order of modiﬁcation.” Id.

at 635.

Accordingly, because a difference between the cost of

living at the payer parent’s location and the cost of

living at the child’s location is not a proper basis for

deviating from the child support formula, the trial

court’s application of the child support formula was not

“unjust or inappropriate” under these circumstances,

MCL 552.605(2), and therefore, the trial court did not

abuse its discretion by establishing child support in the

amount recommended by the MCSF.

We afﬁrm. Plaintiff, as the prevailing party, may tax

costs under MCR 7.219.

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ., con-

curred.

220 313 M

ICH

197 [Nov

PEOPLE v SHANK

Docket No. 321534. Submitted September 2, 2015, at Lansing. Decided

November 17, 2015, at 9:10 a.m. Leave to appeal sought.

Allan Wayne Shank pleaded guilty in the Presque Isle Circuit Court

to being a felon in possession of a ﬁrearm (felon-in-possession),

MCL 750.224f, and possession of a ﬁrearm during the commission

of a felony (felony-ﬁrearm), MCL 750.227b. The court, Scott L.

Pavlich, J., sentenced defendant as a fourth-offense habitual

offender, MCL 769.12, to 12 to 25 years in prison for the

felon-in-possession conviction and to a consecutive two years in

prison for the felony-ﬁrearm conviction. Defendant’s minimum

sentence exceeded the applicable sentencing guidelines range.

Defendant ﬁled a delayed application for leave to appeal, which

the Court of Appeals granted.

The Court of Appeals held:

In accordance with People v Lockridge, 498 Mich 358 (2015),

and People v Steanhouse, 313 Mich App 1 (2015), departure

sentences must be reviewed for reasonableness. When determin-

ing the reasonableness of a sentence, an appellate court must

determine whether the sentence violates the principle of propor-

tionality, under which the sentence imposed must be proportion-

ate to the seriousness of the circumstances surrounding the

offense and the offender. If there is a departure from the

sentencing guidelines, an appellate court’s ﬁrst inquiry should

be whether the case involves circumstances that are not ad-

equately embodied within the variables used to score the guide-

lines. A departure from the recommended range in the absence

of factors not adequately reﬂected in the guidelines should alert

the appellate court to the possibility that the trial court has

violated the principle of proportionality and thus abused its

sentencing discretion. Even when some departure appears to be

appropriate, the extent of the departure, rather than the fact of

the departure itself, may embody a violation of the principle of

proportionality. In this case, the trial court’s sentencing depar-

ture centered on the substantial-and-compelling-reason stan-

dard that was later overturned by Lockridge. Accordingly, in

conformity with Steanhouse, the case had to be remanded to the

2015] P

EOPLE V

HANK

221

trial court for a hearing to determine what effect Lockridge

would have had on defendant’s sentence so that it could be

determined whether any prejudice resulted from the erroneous

use of the substantial-and-compelling-reason standard. Because

defendant could be sentenced to a more severe sentence on

remand, he could elect to forgo resentencing by providing the

trial court with prompt notice of his intention to do so.

Remanded for further proceedings.

O’C

ONNELL

, J., dissenting, would have afﬁrmed. Defendant

was not entitled to resentencing under Lockridge. If, as in this

case, a defendant does not challenge the scoring of his or her

offense variables at sentencing on the basis of Alleyne v United

States, 570 US ___; 133 S Ct 2151 (2013), review is for plain error

affecting the defendant’s substantial rights. To be entitled to

relief under plain-error review, a defendant must show that the

error affected the outcome of the lower court proceedings. Under

Lockridge, when a defendant does not preserve an Alleyne chal-

lenge and the trial court departs upward, the defendant cannot

show prejudice from any error in scoring the offense variables in

violation of Alleyne. It would defy logic to conclude that the trial

court would have imposed a lesser sentence had it been aware

that the guidelines were merely advisory when the court, in fact,

departed from the guidelines to impose a higher sentence. The

decision in Steanhouse was contrary to the precepts of stare

decisis, and this Court must follow the decision in Lockridge even

though Steanhouse decided the issue differently. The Lockridge

court stated that no prejudice could result from the type of error

involved in this case. Defendant could not show plain error;

therefore, he was not entitled to relief. Defendant’s due process

and proportionality claims were also unavailing.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, Richard K. Steiger, Prosecuting Attor-

ney, and Anica Letica and Linus Banghart-Linn, Assis-

tant Attorneys General, for the people.

Laurel Kelly Young for defendant.

Before: B

ORRELLO

, P.J., and H

OEKSTRA

and

O’C

ONNELL

, JJ.

222 313 M

ICH

221 [Nov

ORRELLO

, P.J. Defendant, Allan Wayne Shank, ap-

peals by delayed leave granted

his sentence following

his guilty pleas to being a felon in possession of a

ﬁrearm (felon-in-possession), MCL 750.224f, and pos-

session of a ﬁrearm during the commission of a felony

(felony-ﬁrearm) MCL 750.227b. The trial court sen-

tenced him as a fourth-offense habitual offender,

MCL

769.12,

to 12 to 25 years’ imprisonment for his felon in

possession conviction and a consecutive term of two

years’ imprisonment for his felony-ﬁrearm conviction.

In consideration of our recent ruling in People v Stean-

house, 313 Mich App 1; 880 NW2d 297 (2015), we

remand the matter to the trial court.

I. FACTS

Police ofﬁcers received disturbing information that

Jerry

Hilliard, a prison inmate, had sent an eight-year-

old child a gift and card through Shank, who had been

in prison with Hilliard and who has previous convic-

tions of accosting minors for immoral purposes. During

the investigation, ofﬁcers discovered that Hilliard had

requested that Shank take a photograph of the child

posing in only a necklace. While executing a warrant,

ofﬁcers found a Winchester pump .22 caliber riﬂe in

Shank’s hall closet. Ofﬁcers also found evidence that

Shank had sent Hilliard a photograph of what ap-

peared to be a pregnant seven-year-old child and

discovered in Shank’s photo album a photograph of a

5-year-old girl exposing her vaginal area. Shank de-

nied that the photograph belonged to him.

Shank pleaded guilty to felon-in-possession and

felony-ﬁrearm, and the prosecution dropped a charge

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

June 12, 2014 (Docket No. 321534).

This status increased Shank’s possible maximum term of imprison-

ment to life imprisonment. MCL 769.12(1)(b); MCL 750.227b(1).

2015] P

EOPLE V

HANK

223

PINION OF THE

OURT

of possession of child sexually abusive material, MCL

750.145c(4). The sentencing guidelines recommended a

minimum sentence of 7 to 46 months’ imprisonment for

Shank’s felon in possession conviction. The trial court

decided to depart upward, instead sentencing Shank to

12 to 25 years’ imprisonment. It gave several reasons

for its departure, including that Shank did not have

much rehabilitative potential given that he had been

frequently incarcerated for reoffending, had violated

probation and parole, and had received misconduct

citations in prison. The trial court also relied on the

concerning nature of Shank’s noncriminal behavior.

The trial court explained that Shank was “assisting his

prison mates in making contact with young children

outside the prison system. He’s starting to groom

children in spite of having served these long sen-

tences . . . . There’s been just no rehabilitation at all.”

II. STANDARDS OF REVIEW

This Court, in Steanhouse,

considered the effect of

People v Lockridge, 498 Mich 358; 870 NW2d 502

(2015), on departure sentences. Steanhouse holds that

under Lockridge, this Court must review a defendant’s

sentence for reasonableness. Steanhouse, 313 Mich

App at 42, citing Lockridge, 498 Mich at 365, 392,

which cited United States v Booker, 543 US 220, 261,

264; 125 S Ct 738; 160 L Ed 2d 621 (2005). Hence,

when the trial court departs from the applicable sen-

tencing guidelines range, this Court will review that

sentence for reasonableness. Lockridge, 498 Mich at

392. However, as stated in Steanhouse, “The appropri-

ate procedure for considering the reasonableness of a

departure sentence is not set forth in Lockridge.”

Steanhouse, 313 Mich App at 42. After discussion of the

approaches Michigan appellate courts should employ

224 313 M

ICH

221 [Nov

PINION OF THE

OURT

when determining the reasonableness of a sentence,

this Court adopted the standard set forth by our

Supreme Court in People v Milbourn, 435 Mich 630;

461 NW2d 1 (1990). Steanhouse, 313 Mich App at

42-48.

III. PRINCIPLE OF PROPORTIONALITY

Under Milbourn, “a given sentence [could] be said to

constitute an abuse of discretion if that sentence vio-

late[d] the principle of proportionality, which re-

quire[d] sentences imposed by the trial court to be

proportionate to the seriousness of the circumstances

surrounding the offense and the offender.” Milbourn,

435 Mich at 636; see also Steanhouse, 313 Mich App at

44-45. In accordance with this principle of proportion-

ality, trial courts were required to impose a sentence

that took “into account the nature of the offense and

the background of the offender.” Milbourn, 435 Mich at

651. As stated in Milbourn:

Where there is a departure from the sentencing guide-

lines,

an appellate court’s ﬁrst inquiry should be whether

the case involves circumstances that are not adequately

embodied within the variables used to score the guide-

lines. A departure from the recommended range in the

absence of factors not adequately reﬂected in the guide-

lines should alert the appellate court to the possibility

that the trial court has violated the principle of propor-

tionality and thus abused its sentencing discretion. Even

where some departure appears to be appropriate, the

extent of the departure (rather than the fact of the

departure itself) may embody a violation of the principle of

proportionality. [Id. at 659-660.]

As set forth in Steanhouse,

“[f]actors previously

considered by Michigan courts under the proportional-

ity standard included, among others, (1) the serious-

ness of the offense; (2) factors that were inadequately

2015] P

EOPLE V

HANK

225

PINION OF THE

OURT

considered by the guidelines; and (3) factors not con-

sidered by the guidelines . . . .” Steanhouse, 313 Mich

App at 46 (citations omitted).

In this case, the trial court did not have the beneﬁt

of our Supreme Court’s decision in Lockridge or this

Court’s decision in Steanhouse. Rather, the trial court’s

sentencing departure centered on the substantial-and-

compelling-reason standard that was later overturned

by Lockridge. Accordingly, in conformity with this

Court’s decision in Steanhouse, we must remand this

matter to the trial court for a Crosby

hearing. “[T]he

purpose

of a Crosby 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.” People v Stokes, 312 Mich App

181, 200-201; 877 NW2d 752 (2015). Also, under

Stokes, the defendant is provided with an opportunity

to avoid resentencing by promptly notifying the trial

judge that resentencing will not be sought. Id. at 201,

quoting Lockridge, 498 Mich at 398.

We remand this case to the trial court to follow the

Crosby procedure outlined in Lockridge. Because de-

fendant may be sentenced to a more severe sentence,

defendant “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” and Steanhouse.

Stokes, 312 Mich App at 203 (citations and quotation

marks omitted).

We remand the matter for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

See Lockridge, 498 Mich at 395-399, citing United States v Crosby,

397 F3d 103 (CA 2, 2005).

226 313 M

ICH

221 [Nov

PINION OF THE

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OEKSTRA

, J., concurred with B

ORRELLO

, P.J.

O’C

ONNELL

, J. (dissenting). Defendant, Allan Wayne

Shank, is a serial sexual offender with eight felony

convictions. After Shank engaged in a disturbing pho-

tograph exchange with an inmate, police searched his

home and found ﬁrearms. His most recent convictions

are felon in possession of a ﬁrearm, MCL 750.224f, and

possession of a ﬁrearm during the commission of a

felony, MCL 750.227b. The sentencing guidelines rec-

ommended a minimum sentence of 7 to 46 months’

imprisonment. The trial court departed upward from

this recommendation, sentencing Shank to 12 to 25

years’ imprisonment for his felon in possession convic-

tion and a consecutive term of two years’ imprisonment

for his felony-ﬁrearm conviction. Because I conclude

that this Court need look no further than People v

Lockridge, 498 Mich 358; 870 NW2d 502 (2015), to

resolve this case, I would afﬁrm.

I. STANDARD OF REVIEW

In Lockridge,

the Michigan Supreme Court stated

that this Court should review a trial court’s sentence

for reasonableness. Id. at 392.

The “reasonableness”

review

“merely asks whether the trial court abused its

discretion . . . .” Rita v United States, 551 US 338, 351;

127 S Ct 2456; 168 L Ed 2d 203 (2007); see also People

v Steanhouse, 313 Mich App 1, 44-48; 880 NW2d 297

(stating that a sentence may constitute an abuse of

discretion if it violates principles of proportionality). A

trial court abuses its discretion when its decision falls

outside the range of reasonable and principled out-

The Lockridge Court adopted the reasonableness standard from

United States v Booker, 543 US 220, 261; 125 S Ct 738; 160 L Ed 2d 621

(2005). Lockridge, 498 Mich at 392.

2015] P

EOPLE V

HANK

227

ISSENTING

PINION BY

O’C

ONNELL

, J.

comes. Maldonado v Ford Motor Co, 476 Mich 372,

388; 719 NW2d 809 (2006).

II. APPLICATION OF LOCKRIDGE

The Lockridge question in this case is whether

Shank is entitled to resentencing. Shank contends on

appeal that the trial court engaged in improper judicial

fact-ﬁnding under Alleyne v United States, 570 US ___;

133 S Ct 2151; 186 L Ed 2d 314 (2013).

The answer to

this

question hinges on whether Shank, who failed to

preserve an Alleyne claim in the trial court, has shown

plain error. I conclude that Lockridge addresses the

question in this case perfectly and answers it in the

negative. Shank is not entitled to resentencing.

If a defendant does not challenge the scoring of his

or her offense variables (OVs) at sentencing on Alleyne

grounds, our review is for plain error affecting that

defendant’s substantial rights. Lockridge, 498 Mich at

392. In this case, Shank did not challenge the scoring

of his OV scores on Alleyne grounds. Our review is for

plain error.

To be entitled to relief under plain-error review, a

defendant must show that the error affected the out-

come of the lower court proceedings. Id. at 393. The

Lockridge court aptly stated the application of the

plain error doctrine in cases—like Shank’s—in which

the defendant did not preserve an Alleyne challenge

below and the trial court departed upward:

Because [the defendant] received an upward departure

sentence

that did not rely on the minimum sentence range

from the improperly scored guidelines (and indeed, the

In Alleyne, the United States Supreme Court held that “any fact that

increases the mandatory minimum is an ‘element’ that must be submit-

ted to the jury.” Alleyne, 570 US at ___; 133 S Ct at 2155.

228 313 M

ICH

221 [Nov

ISSENTING

PINION BY

O’C

ONNELL

, J.

trial court necessarily had to state on the record its

reasons for departing from that range), the defendant

cannot show prejudice from any error in scoring the OVs in

violation of Alleyne. [Id. at 394 (emphasis altered).]

If a defendant’s minimum sentence involved an up-

ward

departure, that defendant “necessarily cannot

show plain error . . . .” Id. at 395 n 31. “It deﬁes logic

that the court in those circumstances would impose a

lesser sentence had it been aware that the guidelines

were merely advisory.” Id.

In this regard, the Steanhouse Court’s decision to

remand in that case was contrary to the precepts of

stare decisis. As in Lockridge, the trial court in Stean-

house departed upward from the recommended sen-

tencing range. Steanhouse, 313 Mich App at 42. The

defendant in Steanhouse, like the defendant in Lock-

ridge, did not challenge the scoring of his OVs on

Alleyne grounds. Id. The Court of Appeals in Stean-

house recognized that the defendant could not estab-

lish a plain error under Lockridge. However, the Court

proceeded to review the defendant’s sentence and re-

mand for resentencing anyway, directly contrary to the

language of Lockridge providing that the Lockridge

defendant was not entitled to resentencing under the

exact same circumstances.

I would follow Lockridge without declaring a conﬂict

panel. The reason is simple—this Court need not con-

vene a conﬂict panel to follow a rule articulated by the

Supreme Court, even if a decision of this Court conﬂicts

with the Supreme Court’s decision. Charles A Murray

Trust v Futrell, 303 Mich App 28, 49; 840 NW2d 775

(2013). Until the Supreme Court’s decision is overruled

by the Supreme Court itself, the rules of stare decisis

require this Court to follow the Supreme Court’s

decision. Paige v Sterling Hts, 476 Mich 495, 524; 720

2015] P

EOPLE V

HANK

229

ISSENTING

PINION BY

O’C

ONNELL

, J.

NW2d 219 (2006). This Court simply “does not have the

authority to recant the Supreme Court’s positions.”

Murray Trust, 303 Mich App at 49. Under the rule of

stare decisis, this Court must follow a decision of the

Supreme Court even if another panel of this Court

decided the same issue in a contrary fashion. Id. Be-

cause Steanhouse ignored the clear directives of the

Michigan Supreme Court, it is against the rules of stare

decisis to follow the procedures in that case. I cannot in

good conscience violate the rules articulated in Lock-

ridge.

A remand under United States v Crosby, 397 F3d

103 (CA 2, 2005), is used to determine whether preju-

dice resulted from an error. People v Stokes, 312 Mich

App 181, 200-201; 877 NW2d 752 (2015). The Lock-

ridge court stated that no prejudice could result from

the type of “error” involved in this case.

Shank cannot

show

plain error; therefore, he is not entitled to relief.

I conclude that a Crosby remand is not appropriate or

necessary in this case.

III. DUE PROCESS

Shank also raises a due process issue, contending

that

the trial court may not consider his conduct of

sending photographs of a young child to Jerry Hilliard,

an inmate and sex offender, because the prosecution

dropped the charge for possession of child sexually

abusive material (child pornography).

The majority

does

not reach this issue because it concludes that

remand is appropriate. Because I would not remand, I

will address this issue.

I am concerned about questions of judicial economy implicit in

blindly affording Crosby remands to every sentencing question that is

raised before this Court post-Lockridge, particularly when challenges to

those sentences are unpreserved.

See MCL 750.145c(4).

230 313

ICH

221 [Nov

ISSENTING

PINION BY

O’C

ONNELL

, J.

It is fundamentally unfair for the prosecution to

drop a charge while engaging in plea negotiations, only

to “resurrect it at sentencing in another form.” People v

McGraw, 484 Mich 120, 134; 771 NW2d 655 (2009).

That is not what happened in this case.

In this case, the prosecution dropped a charge for

possessing child sexually abusive material. In sentenc-

ing defendant, the trial court did not rely on defen-

dant’s possession of the sexually abusive photograph,

but instead focused on how Shank’s conduct—

grooming an acquaintance’s child and sending photo-

graphs of that child and an ostensibly pregnant seven-

year-old to Hilliard, who was incarcerated for

molesting children—showed that he had very little

rehabilitative potential and posed a danger to the

community. I conclude that the trial court did not

violate Shank’s due process rights.

IV. PROPORTIONALITY

Shank also raises a proportionality question unre-

lated

to the application of Lockridge and Alleyne—he

contends that the trial court’s lengthy sentence was

not proportional because it was not justiﬁed by the

circumstances of his crime. Again, I disagree.

Even when the sentencing guidelines were manda-

tory, the “key test” of a sentence was whether it was

proportionate to the seriousness of the matter, rather

than whether it strictly adhered to a guidelines range.

People v Milbourn, 435 Mich 630, 661; 461 NW2d 1

(1990). “[P]unishment should be made to ﬁt the crime

and the criminal.” People v Babcock, 469 Mich 247,

262; 666 NW2d 231 (2003). One purpose of the sentenc-

ing guidelines is to facilitate proportional sentences.

See People v Smith, 482 Mich 292, 320-321; 754 NW2d

284 (2008) (M

ARKMAN

, J., concurring).

2015] P

EOPLE V

HANK

231

ISSENTING

PINION BY

O’C

ONNELL

, J.

The trial court stated extensive reasons for why

Shank’s sentence was proportional. It gave these rea-

sons under the now-defunct label of “substantial and

compelling reasons,”

but the fact that the sentencing

guidelines

are no longer mandatory does not negate

that the trial court in this case did in fact consider the

proportionality of its sentence. The trial court consid-

ered Shank’s criminal history, his conduct leading to

the charges in this case, and his failure to rehabilitate.

Speciﬁcally, it found that Shank lacked rehabilitative

potential. He was previously incarcerated for accosting

minors, but his uncharged conduct raised serious con-

cerns that he would continue to engage in that behav-

ior. Shank violated his probation and parole, including

by possessing ﬁrearms, and while he was imprisoned

he engaged in poor behavior. And Shank continued to

pose a danger to children and the community because

he could not or would not be rehabilitated. Under these

facts, I conclude that the trial court’s sentence fell

within the range of principled outcomes.

I would afﬁrm.

The trial court need no longer articulate substantial and compelling

reasons to justify a departure from the sentencing guidelines. Lockridge,

498 Mich at 364-365. However, the trial court should still articulate

reasons for why its sentence is more proportionate than a sentence

within the guidelines range, even though these reasons need not be

substantial and compelling. See Rita, 551 US at 356-357 (stating that

when determining the reasonableness of a sentence, courts should

consider the sentencing court’s reasons for departing from the guide-

lines); Gall v United States, 552 US 38, 50; 128 S Ct 586; 169 L Ed 2d

445 (2007) (stating that a more signiﬁcant departure will require more

justiﬁcation to be upheld as proportional than a minor departure).

232 313 M

ICH

221 [Nov

ISSENTING

PINION BY

O’C

ONNELL

, J.

STANKEVICH v MILLIRON (ON REMAND)

Docket No. 310710. Submitted October 5, 2015, at Lansing. Decided

November 19, 2015, at 9:00 a.m.

Jennifer Stankevich brought an action in the Dickinson Circuit

Court, seeking to dissolve her Canadian marriage to Leanne

Milliron, to afﬁrm that plaintiff was the legal parent of defen-

dant’s biological child, and to establish custody, parenting time,

and child support. Defendant moved for summary disposition

under MCR 2.116(C)(8) on the ground that plaintiff did not have

standing to petition for custody of the child, who was allegedly

born during the parties’ marriage. The court, Richard J. Celello,

J., granted defendant’s motion, and plaintiff appealed. The Court

of Appeals, R

IORDAN

, P.J., and M

ARKEY

and K. F. K

ELLY

, JJ.,

afﬁrmed in an unpublished opinion per curiam issued October 17,

2013 (Docket No. 310710), holding that plaintiff was not a

“parent” as that term was deﬁned in the Child Custody Act, MCL

722.21 et seq., and declining to apply the equitable-parent doc-

trine on the ground that recognizing the parties’ same-sex union

as a marriage would have been contrary to Michigan law. Plaintiff

sought leave to appeal in the Michigan Supreme Court, which

entered an order holding the application in abeyance in light of

DeBoer v Snyder, 973 F Supp 2d 757 (ED Mich, 2014), an appeal

of which was then pending in the United States Court of Appeals

for the Sixth Circuit. After the Sixth Circuit decision reversing

DeBoer was itself reversed by the United States Supreme Court

under the name Obergefell v Hodges, 576 US ___; 135 S Ct 2584;

192 L Ed 2d 609 (2015), requiring the states to recognize

same-sex marriages, the Michigan Supreme Court vacated the

Court of Appeals judgment in this case and remanded the case to

the Court of Appeals for reconsideration. 498 Mich 877 (2015).

On remand, the Court of Appeals held:

Under the United States Supreme Court’s opinion in Oberge-

fell, plaintiff had standing to bring this action under the

equitable-parent doctrine because Michigan was required to

recognize the parties’ same-sex marriage and plaintiff’s com-

plaint alleged facts that, if proved, were sufﬁcient to establish

equitable parenthood. The equitable-parent doctrine holds that a

2015] S

TANKEVICH V

ILLIRON

EMAND

) 233

spouse who is not the biological parent of a child born or conceived

during the marriage may be considered the natural parent of that

child if (1) the spouse and the child mutually acknowledge a

relationship as parent and child, or the mother of the child has

cooperated in the development of such a relationship over a

period of time prior to the ﬁling of the complaint for divorce, (2)

the spouse desires to have the rights afforded to a parent, and (3)

the spouse is willing to take on the responsibility of paying child

support. In this case, if the parties’ marriage was valid under

Canadian, or applicable provincial, domestic relations law and

other legal and contractual requirements, plaintiff alleged facts

that would afford her standing to seek the status of an equitable

parent. Therefore, the matter was remanded for an evidentiary

hearing to determine whether plaintiff was entitled to be deemed

an equitable parent.

Reversed and remanded for further proceedings.

ARENT AND

HILD —

QUITABLE

-P

ARENT

OCTRINE —

AME

-S

ARRIAGES —

ARRIAGES

ERFORMED

UT OF

TATE

Under the equitable-parent doctrine, a spouse who is not the

biological parent of a child born or conceived during the marriage

may be considered the natural parent of that child if (1) the

spouse and the child mutually acknowledge a relationship as

parent and child, or the mother of the child has cooperated in the

development of such a relationship over a period of time prior to

the ﬁling of the complaint for divorce, (2) the spouse desires to

have the rights afforded to a parent, and (3) the spouse is willing

to take on the responsibility of paying child support; a person who

entered into a same-sex marriage and alleges facts that meet

these requirements has standing to seek the status of an equi-

table parent if the marriage was valid under the laws of the

nation, state, or province in which the marriage was performed

and satisﬁed the applicable legal and contractual requirements.

Finch & Finch, PC (by Nancy

B. Finch and Andrea

Mashak), for plaintiff.

Michele Hebner, PC (by Michele Hebner), for defen-

dant.

ON REMAND

Before: R

IORDAN

, P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

234 313 M

ICH

233 [Nov

URIAM

. Plaintiff appeals as of right the trial

court order granting defendant’s motion for summary

disposition for failing to state a claim under MCR

2.116(C)(8). Pursuant to the dictates of the United

States Supreme Court in Obergefell v Hodges, 576 US

___; 135 S Ct 2584; 192 L Ed 2d 609 (2015), we remand

this matter for proceedings consistent with this opin-

ion.

I. BACKGROUND

In our October 17, 2013 opinion in this matter, we

summarized

the factual background of the case:

The parties entered into a same-sex marriage in

Canada in July 2007. Before that date, defendant had

been artiﬁcially inseminated, and later gave birth to a

child. Defendant is the biological mother of the child.

The parties’ [sic] separated in March 2009. While they

initially agreed to a visitation schedule, they subsequently

found that they could not agree. Thus, plaintiff ﬁled a

veriﬁed complaint, asserting that she fully participated in

the care and rearing of the minor child. She requested

relief from the trial court, which included an order dis-

solving the marriage, an order afﬁrming that she is the

parent of the child, and orders regarding custody, parent-

ing time, and child support.

Defendant, however, ﬁled a motion for summary dispo-

sition pursuant to MCR 2.116(C)(8). She asserted that

plaintiff did not have standing to petition for custody of the

child. The trial court granted defendant’s motion. Plaintiff

now appeals. [Stankevich v Milliron, unpublished opinion

per curiam of the Court of Appeals, issued October 17, 2013

(Docket No. 310710), p 1, vacated and remanded 498 Mich

877 (2015).]

In our previous opinion, we upheld the grant of

summary

disposition to defendant because plaintiff

lacked standing to bring this action. Stankevich, un-

2015] S

TANKEVICH V

ILLIRON

EMAND

) 235

pub op at 5. We noted that the Child Custody Act (CCA)

deﬁnes “parent” as the “ ‘natural or adoptive parent of

a child.’ ” Id. at 2, quoting MCL 722.22(h).

Plaintiff is

not a parent under this deﬁnition because she is not an

adoptive parent and because she is not related to the

child by blood. Id., citing Random House Webster’s

College Dictionary (2005) (deﬁning “natural” as, in

part, “related by blood rather than by adoption: one’s

natural parents.”). Likewise, we rejected plaintiff’s

request to apply the equitable-parent doctrine that

was adopted in Atkinson v Atkinson, 160 Mich App 601,

608-609; 408 NW2d 516 (1987). Stankevich, unpub op

at 3-5. The basis of our conclusion was that applying

the doctrine in this case would be contrary to Van v

Zahorik, 460 Mich 320, 330-331; 597 NW2d 15 (1999),

in which the Michigan Supreme Court declined to

extend the equitable-parent doctrine outside the con-

text of marriage, because recognizing plaintiff’s same-

sex union as a marriage under the equitable-parent

doctrine would have violated the constitutional and

statutory provisions deﬁning marriage. Stankevich,

unpub op at 3-5.

On November 25, 2013, plaintiff ﬁled an application

for leave to appeal in the Michigan Supreme Court. In

light of the pending appeals from the decision in

DeBoer v Snyder, 973 F Supp 2d 757 (ED Mich, 2014),

rev’d 772 F3d 388 (CA 6, 2014), rev’d sub nom Oberge-

fell, 576 US ___; 135 S Ct 2584; 192 L Ed 2d 609 (2015),

on April 25, 2014, our Supreme Court entered an order

holding the application in the instant matter in abey-

ance. Stankevich v Milliron, 844 NW2d 724 (Mich,

2014).

MCL 722.22(h) was subsequently amended by 2015 PA 51, effective

September 7, 2015. The deﬁnition of “parent” remains the same,

although it is now codiﬁed under MCL 722.22(i).

236 313 M

ICH

233 [Nov

After the United States Supreme Court’s decision in

Obergefell, the Michigan Supreme Court vacated our

judgment in this case and remanded it to us for

reconsideration. Stankevich v Milliron, 498 Mich 877

(2015).

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

We review the grant of summary disposition de

novo. Maiden v Rozwood, 461 Mich 109, 118; 597

NW2d 817 (1999). “A motion under MCR 2.116(C)(8)

tests the legal sufﬁciency of the complaint,” and “[a]ll

well-pleaded factual allegations are accepted as true

and construed in a light most favorable to the nonmo-

vant.” Id. at 119. Furthermore, the motion only should

be granted when the claims are “so clearly unenforce-

able as a matter of law that no factual development

could possibly justify recovery.” Id. (quotation marks

and citation omitted).

“Whether a party has legal standing to assert a

claim constitutes a question of law that we review de

novo.” Heltzel v Heltzel, 248 Mich App 1, 28; 638 NW2d

123 (2001).

B. ANALYSIS

As a result of the United States Supreme Court’s

opinion

in Obergefell, plaintiff has standing under the

equitable-parent doctrine because Michigan now is

required to recognize the parties’ same-sex marriage,

and plaintiff’s complaint alleges facts that, if proven,

are sufﬁcient to establish equitable parenthood.

The remaining aspects of our previous opinion are unaffected by

Obergefell because the opinion only affected our analysis of the

2015] S

TANKEVICH V

ILLIRON

EMAND

) 237

“Generally, a party has standing if it has some real

interest in the cause of action, . . . or interest in the

subject matter of the controversy.” In re Anjoski, 283

Mich App 41, 50; 770 NW2d 1 (2009) (quotation marks

and citation omitted; alteration in original). But “this

concept is not given such a broad application in the

context of child custody disputes involving third par-

ties, or any individual other than a parent[.]” Id.

(quotation marks and citation omitted; alteration in

original).

However, this Court adopted the equitable-parent

doctrine in Atkinson, 160 Mich App at 608-609, hold-

ing:

[W]e adopt the do[c]trine of equitable parent and ﬁnd

that a husband who is not the biological father of a child

born or conceived during the marriage may be considered

the natural father of that child where (1) the husband and

the child mutually acknowledge a relationship as father

and child, or the mother of the child has cooperated in the

development of such a relationship over a period of time

prior to the ﬁling of the complaint for divorce, (2) the

husband desires to have the rights afforded to a parent,

and (3) the husband is willing to take on the responsibility

of paying child support.

This Court stated that, given its recognition that “a

person

who is not the biological father of a child may be

considered a parent against his will, and consequently

burdened with the responsibility of the support for the

child,” such a person, in being treated as a parent, may

also seek the rights of custody or parenting time. Id. at

610. This Court also has applied the equitable-parent

doctrine in later cases. See, e.g., York v Morofsky, 225

equitable-parent doctrine. Our application of the deﬁnition of “parent”

under the CCA does not run afoul of Obergefell because now that

deﬁnition applies equally to same-sex and opposite-sex married couples.

See MCL 722.22(i) (previously MCL 722.22(h)).

238 313 M

ICH

233 [Nov

Mich App 333, 335, 337; 571 NW2d 524 (1997); Soumis

v Soumis, 218 Mich App 27, 34; 553 NW2d 619 (1996).

However, as mentioned earlier, our Supreme Court

declined to extend the equitable-parent doctrine out-

side the context of marriage in Van, 460 Mich at 337.

In our previous opinion, we concluded that the

equitable-parent doctrine should not be expanded to

include same-sex couples, such as the parties in this

case, because Michigan statutory and constitutional

provisions precluded recognition of the parties’ same-

sex marriage, and Van limited the application of the

equitable-parent doctrine to the conﬁnes of marriage.

Stankevich, unpub op at 3-5. However, under Oberge-

fell, Michigan now is required to recognize the parties’

same-sex marriage.

In Obergefell, 576 US at ___; 135 S Ct at 2604-2605,

the United States Supreme Court held:

[T]he right to marry is a fundamental right inherent in

the

liberty of the person, and under the Due Process and

Equal Protection Clauses of the Fourteenth Amendment

couples of the same-sex [sic] may not be deprived of that

right and that liberty. The Court now holds that same-sex

couples may exercise the fundamental right to marry. No

longer may this liberty be denied to them.

The Supreme Court therefore held invalid state laws—

including

Michigan’s constitutional provision deﬁning

marriage as a union between one man and one woman,

Const 1963, art 1, § 25, Obergefell, 576 US at ___; 135

S Ct at 2593—“to the extent they exclude same-sex

couples from civil marriage on the same terms and

conditions as opposite-sex couples,” id. at ___; 135 S Ct

at 2605.

The Court also addressed “whether the Constitution

requires States to recognize same-sex marriages val-

idly performed out of State” and concluded that “the

2015] S

TANKEVICH V

ILLIRON

EMAND

) 239

recognition bans inﬂict substantial and continuing

harm on same-sex couples.” Id. at ___; 135 S Ct at

2607. Accordingly, the Court held that “same-sex

couples may exercise the fundamental right to marry

in all States. It follows that the Court also must

hold—and it now does hold—that there is no lawful

basis for a State to refuse to recognize a lawful same-

sex marriage performed in another State on the ground

of its same-sex character.” Id. at ___; 135 S Ct at

2607-2608. Thus, under Obergefell, the holding in Van

limiting the equitable-parent doctrine to the conﬁnes

of marriage is no longer a barrier to the application of

that doctrine in this case, Van, 460 Mich at 337, and we

are required to conclude that plaintiff is not barred

from asserting the applicability of the equitable-parent

doctrine.

Plaintiff’s complaint alleges that the parties in the

instant matter were married in Canada in 2007 and

that defendant’s biological child was born during the

course of that marriage. As Obergefell requires that

same-sex couples be permitted to exercise the funda-

mental right to marry on the same terms and condi-

tions as opposite-sex couples, an application of a legal

doctrine excluding same-sex married couples from the

doctrine of equitable parenthood goes against the dic-

tates of Obergefell, which we are bound to follow.

Should it be determined by the trial court that the

parties’ proffered marriage was valid under Canadian,

or applicable provincial, domestic relations law and

other legal and contractual requirements,

plaintiff

Unlike marriages solemnized in sister states, which are generally

recognized as valid in this state, Michigan has no statute requiring the

recognition of marriages celebrated in foreign nations. Nonetheless,

Michigan courts recognize marriages solemnized in foreign nations as a

matter of comity. It is well settled that Michigan’s law and public policy

favor the institution of marriage, Van, 460 Mich at 332; Boyce v

240 313

ICH

233 [Nov

alleges facts that afford her standing to seek the status

of an equitable parent. As previously discussed, the

parties claim that the child was born during the course

of their Canadian marriage. Plaintiff alleges that the

parties entered into an agreement to conceive and

raise the child with the attendant parental rights and

responsibilities. Plaintiff also claims that she assisted

with the artiﬁcial insemination process through which

the child was conceived, that she was present at the

child’s birth, and that she fully participated in the care

and rearing of the child until defendant prevented her

from doing so. Further, plaintiff alleges that, during

the parties’ relationship, they shared parental respon-

sibilities and duties equally. She asserts that she

always has maintained a strong parental role that

included bonding with the child, providing for the child

ﬁnancially, attending the child’s healthcare appoint-

ments, making medical decisions with defendant con-

cerning the child’s care, and providing a home for the

child. Further, after going their separate ways in

March 2009, the parties had a parenting-time schedule

for a signiﬁcant period of time. Plaintiff’s complaint

requests an order that afﬁrms her parental status, an

McKenna, 211 Mich 204, 214; 178 NW 701 (1920), and Michigan courts

have long recognized the validity of marriages celebrated in foreign

countries, provided that those marriages are valid in the nation of

celebration, see, e.g., Boyce, 211 Mich at 215; People v Imes, 110 Mich

250, 251; 68 NW 157 (1896); Hutchins v Kimmell, 31 Mich 126, 130-131

(1875), and that they are not antithetical to Michigan’s public policy.

The rule in Michigan is that the validity of a foreign marriage must be

determined by reference to the domestic relations law of the country of

celebration. Hutchins, 31 Mich at 131; see also Noble v Noble, 299 Mich

565, 568; 300 NW 885 (1941); In re Osborn Estate, 273 Mich 589, 591;

263 NW 880 (1935); 16 Michigan Civil Jurisprudence, Marriage, § 4, p

561.

On remand, the trial court must determine the validity of the parties’

Canadian marriage by applying the domestic relations law of the place

in which the plaintiff alleges that she was married to the defendant.

2015] S

TANKEVICH V

ILLIRON

EMAND

) 241

order making custody and parenting-time determina-

tions, and an order of child support.

As set forth, plaintiff’s allegations would establish

factually her standing to ﬁle this action seeking equi-

table parenthood. The facts alleged in the complaint, if

proved, would support the elements of the equitable-

parent doctrine as set forth in Atkinson, 160 Mich App

at 608-609. Therefore, we remand this matter for an

evidentiary hearing to determine whether plaintiff is

entitled to be deemed an equitable parent.

III. CONCLUSION

The United States Supreme Court’s decision in

Obergefell requires

Michigan to recognize same-sex

marriages. Accordingly, we reverse the order granting

summary disposition in favor of defendant and remand

for an evidentiary hearing concerning the validity of

the parties’ alleged Canadian marriage and the appli-

cability of the equitable-parent doctrine. We do not

retain jurisdiction.

IORDAN

, P.J., and M

ARKEY

and K. F. K

ELLY

, JJ.,

concurred.

242 313 M

ICH

233 [Nov

CONLIN v UPTON

Docket No. 322458. Submitted October 13, 2015, at Lansing. Decided

November 24, 2015, at 9:00 a.m.

Philip F. Conlin and other developers of the Dixboro Farms resi-

dential subdivision brought an action in the Washtenaw Circuit

Court against Tom Upton and other ofﬁcers and directors of the

Dixboro Farms Property Owners Association, as well as the

association itself, seeking a declaration that the bylaws adopted

by defendants—which required lot owners to submit plans for

new construction or renovation to an architectural review

committee—were not binding and amounted to slander of title.

The parties all own or owned real property in Dixboro Farms,

which was initially governed by a set of deed restrictions and

protective covenants that were recorded in 2001. These docu-

ments gave Conlin the right to approve proposed plans for

construction. In 2010, Conlin approved the construction of two

homes that some owners did not believe were in harmony with

the quality of the existing homes, and a majority of the home-

owners voted to adopt the contested bylaws as a result. Plaintiffs

moved for partial summary disposition under MCR 2.116(C)(10),

which the court, Carol A. Kuhnke, J., denied after determining

that there was a question of fact as to whether Conlin had

assigned to the association his right to review proposed plans for

development. Defendants also moved for partial summary dispo-

sition, arguing that plaintiffs’ slander-of-title claim was untimely.

Defendants individually moved for summary disposition of plain-

tiffs’ claims on the grounds that plaintiffs had not validly stated

claims against them as individuals and had not pleaded in

avoidance of their immunity. The court entered orders dismissing

plaintiffs’ slander-of-title claim and their claims against the

individual ofﬁcers, and the remaining claim proceeded to trial.

After the close of proofs, plaintiffs moved for a directed verdict,

which the court, Archie C. Brown, J., denied. The parties submit-

ted a special verdict form to the jury, asking the jury to decide

whether the bylaws constituted restrictive covenants that ran

with the land and whether the bylaws impaired the developers’

rights by violating the 2001 covenants and restrictions. The jury

answered “no” to both questions. Because they were told to skip

2015] C

ONLIN V

PTON

243

the next two questions if they answered “no” to the ﬁrst two

questions, the jury did not determine whether Conlin had as-

signed to the association his right to determine whether new

developments were harmonious. The court entered a judgment of

no cause of action and ordered plaintiffs to pay more than $58,000

in attorney fees to the association. Plaintiffs appealed by delayed

leave granted.

The Court of Appeals held:

1. The trial court erred by entering a judgment against

plaintiffs. The association’s members had a common-law right to

try to enhance the value of their property through contractual

agreements concerning the use and development of their real

property, and the association’s articles of incorporation gave it the

authority to promulgate bylaws. However, under Michigan’s

common law, any rules that imposed additional burdens on the

members’ properties had to be adopted unanimously. Because it

was undisputed that the bylaws were not unanimously adopted,

and because the 2001 covenants and restrictions did not expressly

permit the association to burden the lots with new restrictions on

its own initiative or allow the owners to alter or adopt restrictions

with less than unanimous consent, the new restrictions were

invalid. Consequently, the trial court should have determined

that Article XII of the bylaws, which established the architectural

review committee, was invalid under Michigan law, but only to

the extent that it burdened the lots in Dixboro Farms with

restrictions and covenants beyond those provided in the 2001

covenants and restrictions. Because the extent to which Article

XII of the bylaws imposed additional burdens on the lots de-

pended in part on the resolution of a question of fact, the case was

remanded to the trial court.

2. The evidence indicated that there was a question of fact

regarding whether Conlin had assigned to the association his

right to approve new construction. Paragraph 11 of the covenants

gave Conlin, as the developer, the right to assign his responsibili-

ties and authority under the covenants to a third party with no

limitations or conditions. Therefore, he could assign his right to

the association expressly by oral or written agreement or im-

pliedly through his representations and course of conduct. At

trial, there was evidence that Conlin had signed and dated a

letter from the homeowners asking him to indicate his acceptance

and acknowledgment of the new bylaws and approval process,

and there was evidence that Conlin later submitted proposed

plans for development to the architectural review committee.

Viewed in the light most favorable to the association, there was

244 313

ICH

243 [Nov

evidence from which a reasonable jury could ﬁnd that Conlin had

assigned his right of approval to the association. Consequently,

the trial court did not err when it denied the developers’ motion

for a directed verdict on that limited issue. Because the special

verdict form instructed the jury to skip the question whether

Conlin had assigned his rights if it found that the bylaws did not

amount to restrictive covenants and did not violate the 2001

covenants and restrictions, this factual question was not resolved

below. Although Article XII of the bylaws was invalid to the extent

that it imposed new burdens on the lots at issue without the

proper consent or authority, the full extent that Article XII would

be invalid could not be determined without resolving this factual

question. Consequently, the case was remanded to the trial court.

Reversed; judgment vacated and case remanded for further

proceedings.

Bredell & Bredell (by John

H. Bredell) for plaintiffs.

Soble Rowe Krichbaum LLP (by Matthew E. Krich-

baum) for defendants.

Before: M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

JJ.

URIAM

. In this real property dispute, plaintiffs,

Philip F. Conlin, Jerry L. Helmer, Ruthann Helmer,

John D. McCullough, and David G. Helmer (collec-

tively, the Developers), appeal by leave granted the

trial court’s ﬁnal judgment and order, which the trial

court entered after the jury returned a verdict in favor

of defendants, Dixboro Farms Property Owners Asso-

ciation (the Association) and the Association’s ofﬁcers

and directors, Tom Upton, Tim Haller, Chris Conlin,

Barbara Haller, and David Baker (collectively, the

Ofﬁcers). The Developers and the Ofﬁcers each own or

owned real property in a residential development

known as Dixboro Farms. Dixboro Farms had 34 total

lots. During the events at issue, the Developers owned

11 undeveloped lots, which they hoped to sell to third

2015] C

ONLIN V

PTON

245

parties. The present dispute arose after the Association

adopted bylaws that required the lot owners to submit

plans to the Association’s architectural review commit-

tee for approval before any new construction or reno-

vation. The Developers sued, in part, to prevent the

Ofﬁcers and the Association from enforcing the bylaws

in a way that restricts their right to develop their lots.

For the reasons explained below, we reverse the jury’s

verdict, vacate the judgment, and remand for further

proceedings.

I. BASIC FACTS

Philip Conlin testiﬁed that he and others purchased

“just

over ninety” acres of land in 1998 or 1999 and

split the land into lots for development as Dixboro

Farms. The land gently sloped down from north to

south. The north end of the property had nicer

features—it was hilly, wooded, and has a seasonal

creek. The south end, however, abutted an easement

with 200-foot-high towers for power lines. Accordingly,

the northern lots were more expensive than those on

the south end of the development.

Philip Conlin stated that he and his codevelopers

established a set of restrictions and protective cov-

enants for the development and recorded them in

January 2001. The restrictions and covenants served

as a “roadmap to any prospective purchaser” and

helped deﬁne the “future use” of the land. He placed a

restriction in the covenants that required a prospective

purchaser to obtain his permission—in his role as the

developer—before building on any parcel. He required

the purchaser to provide him with plans, and had the

right to determine whether the proposed home was

harmonious with the development as a whole. Philip

Conlin rejected more proposals with this development

246 313 M

ICH

243 [Nov

than he had rejected in any of his previous develop-

ments; he was surprised by the number of people who

wanted to buy a $200,000 lot and then build a $100,000

home. “I mean, I had more people that were just so off

base with what they thought that I would allow there

but still knew the high quality of the development and

thought that paying for the land would raise up their

value of the inferior structure that I wouldn’t allow to

be built.”

The covenants included a provision for the formation

of a property owners association, which Philip Conlin

incorporated in 2007. The covenants provided that

Philip Conlin would appoint the board of directors for

the association after the sale and development of 50%

of the lots. The members had the right to elect the

board of directors after the sale of 90% of the lots.

William Farley testiﬁed at his deposition, which was

read into the record at trial, that he was one of the ﬁrst

purchasers in Dixboro Farms. As one of the ﬁrst to

build, he felt he was setting “the standard for the

development” and was “very concerned” about building

a house that might not be “compatible with what was

going to be built in the remaining lots.” He did not

want to build a high-end home only to have “mid-level

tract homes” follow. The lots were priced at the high

end—around $150,000 to $200,000—which suggested

to him that the whole development would be high-end.

Farley spoke with Philip Conlin about his concerns. He

submitted plans to Philip Conlin for a home that was

between 3400 and 3800 square feet in size, had a

four-stall garage, and was four-sided brick. Philip

Conlin told him that the plans reﬂected “ ‘precisely

what we want the Dixboro Farms subdivision to be.’ ”

Philip Conlin conﬁrmed on cross-examination that

there were no new homes built in Dixboro Farms from

2015] C

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2006 through 2009 because the real estate market had

taken a turn for the worse. However, he approved two

new homes—referred to as the Guenther homes—for

construction in 2010. After the completion of the homes

later that year, Philip Conlin learned that many of the

existing homeowners were upset about the new homes.

They were dissatisﬁed with the homes and felt that

they were not in harmony with the quality of the

existing homes.

There was, according to Farley, “a lot of discussion

among the neighbors” about the new homes; they had

invested several hundred thousand dollars in their

own homes and were worried that if the remaining lots

were built with similar housing to the Guenther

homes, it would dramatically alter the character of

Dixboro Farms. Timothy Haller, who also owned a

home in Dixboro Farms, explained that there was “a

groundswell of dissatisfaction that these homes had

been erected . . . .” Farley said the neighbors all

thought the new homes were not in harmony with the

previous 11 homes: they “were typical low-end, middle,

medium-type tract homes, no brick and mortar, no

architectural deﬁnition, lots of shingles, exposed roof

lines, vinyl-sided.” Farley felt that Philip Conlin had

backed away from his earlier representation about the

character of Dixboro Farms when he approved those

homes. Haller similarly testiﬁed that the Guenther

homes were “not even close” to the homes that were

built over the “prior ten years.” Because the neighbors

now had “trust issues” with Philip Conlin, Farley

stated that they met to consider how they might

exercise some inﬂuence over future development.

In December 2010, Chris Conlin, who is Philip

Conlin’s cousin and a homeowner in Dixboro Farms,

sent an e-mail to Philip Conlin requesting that he

248 313 M

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243 [Nov

appoint the board of directors for the Association and

call a meeting of the homeowners. Chris Conlin wrote

that it was “understood” that the new board would

form an architectural committee at this ﬁrst meeting

and that the residents would “move to amend” the

covenants to include “ ‘preferred three sides brick’ in

the language.” Philip Conlin appointed the Associa-

tion’s ﬁrst board of directors later that month.

The homeowners met in January 2011. All the

homeowners in attendance at the meeting signed a

letter with a summary of their position, which was sent

to Philip Conlin. In the letter, which is misdated

January 2010, they expressed their gratitude to Philip

Conlin for establishing and developing Dixboro Farms.

They noted that they had reached a consensus on “a

number of issues” and were sending him the letter to

“inform” him about their decisions and seek his “con-

currence in the progress and basis of continuing coop-

eration.” They wanted to elect their own board for the

Association and they expected him to “concur” with

this decision. The homeowners also “acted to appoint”

an architectural control committee to “cooperate and

assist in maintaining architectural harmony of the

subdivision.” They wrote that the committee’s duties

would be deﬁned in cooperation with him. Finally, the

homeowners stated that they intended to develop by-

laws for the Association. The homeowners closed the

letter with a request that he sign the letter to indicate

his “acceptance and acknowledgement” of the newly

formed Association.

Philip Conlin signed the letter and dated it Janu-

ary 14, 2011. He conceded at trial that he had signed

the letter and acquiesced to the homeowners’ decision

to elect their own board of directors for the Associa-

tion, notwithstanding his continued right to appoint

the board.

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249

Haller testiﬁed that the Association hired a lawyer,

Walter Hamilton, to advise it on the adoption of by-

laws. In June 2011, Haller hosted a meeting of the

property owners to consider a proposed set of bylaws.

Haller stated that the debate centered on the “purpose

of the bylaws and protecting our property values mov-

ing forward . . . .” Philip Conlin and Jerry Helmer

attended the meeting and actively opposed the adop-

tion of the bylaws, but a majority approved them.

The Association’s bylaws established an architec-

tural review committee and, in relevant part, prohib-

ited the Association’s members from commencing,

erecting, or maintaining on “any Lot” a “building,

fence, wall, deck, swimming pool, out-building or

other structure, original landscaping on new con-

struction or exterior improvement” without ﬁrst ob-

taining the committee’s approval. Under § 3 of that

same article, a lot owner had to submit a $2,000 fee

with a set of required plans. Although the committee

had the authority to deny a plan that violated the

original covenants or restrictions, it could also deny

the plan on the basis of “dissatisfaction with the effect

of the proposed construction on the harmonious de-

velopment” of Dixboro Farms. The bylaws included

guidelines that the committee was to enforce “to

insure that all construction in the subdivision is in

harmony with the character of the subdivision” as it

develops. The Association’s lawyer recorded the by-

laws in December 2011.

In December 2011, Philip Conlin submitted a pro-

posed plan of development for a lot to the Association.

In his cover letter, he stated that he was submitting

the plans as part of the review that he was required to

perform as the developer, but he invited the Associa-

tion’s comments and suggestions on the plan.

250 313 M

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243 [Nov

Haller responded to the letter by e-mail. He related

that the committee had met about the proposed plan

and offered some “preliminary feedback.” The commit-

tee, he wrote, felt that the proposed home should have

a 100-foot setback rather than a 60-foot setback and

should be 100% stone or brick or a combination, but in

any event “must” be brick or stone on the ﬁrst ﬂoor.

The committee also reminded him that his client would

have to submit plans along with $2,000 for a compre-

hensive review, as required under the bylaws.

InAugust 2011, the Developers sued the Association’s

Ofﬁcers. They alleged that the Ofﬁcers caused the

Association’s bylaws to be recorded and that the bylaws

contained invalid restrictions on the development of lots

within Dixboro Farms. The recording of these restric-

tions, the Developers further stated, made it more

difﬁcult to sell their remaining lots. In their ﬁrst count,

the Developers asked the trial court to declare that the

additional restrictions did not bind, and were not appli-

cable to, the Developers’ lots. They also alleged, in a

second count, that the recording of the bylaws

amounted to slander of title. In December 2012, the trial

court entered an order allowing the Developers to

amend their complaint to include the Association.

In April 2013, the Developers moved for partial

summary disposition under MCR 2.116(C)(10). They

maintained that the undisputed evidence showed that

Philip Conlin did not assign to the Association his right

to approve proposed plans for the development of lots.

Because he did not assign that right, and it was

undisputed that the original covenants and restric-

tions did not give the Association the right to add new

restrictions, the Association could not—under the

guise of enforcing the harmony of the development—

establish new restrictions through the adoption of

2015] C

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251

bylaws. The Developers argued that they were entitled

to a declaration that the new restrictions contained in

the Association’s bylaws did not apply to their lots.

The trial court held a hearing on the motion in June

2013. After hearing arguments, the trial court deter-

mined that there was a question of fact as to whether

Philip Conlin assigned to the Association his right to

review any proposed plans for development. For that

reason, it denied the Developers’ motion.

In October 2013, the Association moved for partial

summary disposition. It argued that the Developers’

slander-of-title claim was untimely and must be dis-

missed. The Ofﬁcers also each individually moved for

summary disposition of the Developers’ claims against

them on the grounds that the Developers did not

validly state claims against them as individuals and

did not plead in avoidance of their immunity. The trial

court entered orders dismissing the Developers’

slander-of-title claim and their claims against the

individual Ofﬁcers.

The case proceeded to trial in March 2014. After the

close of proofs, the Developers moved for a directed

verdict. They argued that the undisputed evidence

showed that the bylaws burdened their properties with

new or expanded restrictions, which were not permitted

by the original covenants. They further argued that the

evidence did not establish that Philip Conlin assigned to

the Association his authority to approve proposed plans

for development or that the Developers were estopped

from challenging the new restrictions in the bylaws. The

trial court determined that it was for the jury to decide

whether the bylaws imposed restrictions beyond those

permitted by the original covenants and whether Philip

Conlin assigned to the Association his right to preap-

prove. Consequently, it denied the motion.

252 313 M

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243 [Nov

The parties submitted a special verdict form to the

jury. They asked the jury to answer whether the

bylaws constituted “restrictive covenants” that ran

with the land and whether the bylaws impaired the

Developers’ rights by violating the 2001 covenants and

restrictions. The jury answered “no” to both questions.

Because they were told to skip the next two questions

if they answered “no” to the ﬁrst two questions, the

jury did not ﬁnd whether Philip Conlin assigned to the

Association his right to determine whether new devel-

opments were harmonious.

In April 2014, the trial court entered a judgment of

no cause of action against the Developers and ordered

them to pay more than $58,000 in attorney fees to the

Association.

The Developers now appeal in this Court.

II. DIRECTED VERDICT

STANDARD OF REVIEW

The Developers argue on appeal that the Association

adopted bylaws that plainly imposed new building and

use restrictions on the real property in Dixboro Farms.

Because the covenants did not—as a matter of law—

give the lot owners or the Association the authority to

adopt new restrictions with less than majority consent,

the new restrictions had to have been adopted by

unanimous consent of the lot owners, which it is

undisputed did not occur. Consequently, the Develop-

ers state, the trial court erred when it determined that

there was a question of fact for the jury about the

proper construction of the covenants and bylaws; in-

stead, the trial court should have granted them judg-

ment as a matter of law, a directed verdict in their

favor, or judgment notwithstanding the verdict.

2015] C

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253

This Court reviews de novo a trial court’s decision on

a motion for a directed verdict. Taylor v Kent Radiol-

ogy, PC, 286 Mich App 490, 499; 780 NW2d 900 (2009).

This Court also reviews de novo the proper construc-

tion of restrictive covenants involving real property.

Johnson Family Ltd Partnership v White Pine Wireless,

LLC, 281 Mich App 364, 389; 761 NW2d 353 (2008).

The proper construction of a contractual agreement is

likewise a question of law that this Court reviews de

novo. Miller-Davis Co v Ahrens Constr, Inc, 495 Mich

161, 172; 848 NW2d 95 (2014). Finally, this Court

reviews de novo whether the trial court properly ap-

plied this state’s common law. Roberts v Salmi, 308

Mich App 605, 612; 866 NW2d 460 (2014).

B. ANALYSIS

In this case, there is no dispute that the deed

restrictions

and protective covenants for Dixboro

Farms, which were recorded in January 2001, are valid

and enforceable against the lots in Dixboro Farms. The

dispute concerns whether the Association’s bylaws

include additional restrictions on the use and develop-

ment of the lots within Dixboro Farms and, if so,

whether the Association can validly enforce those re-

strictions against the lots owned by the Developers

even though the Developers did not consent to the

adoption of the bylaws.

1. ARTICLE XII UNAMBIGUOUSLY IMPOSES RESTRICTIONS

THE LOTS

Operating agreements, such as a corporation’s by-

laws, are intended to govern the future conduct of the

entity and its members. People ex rel Pulford v Detroit

Fire Dep’t, 31 Mich 458, 465 (1875). Generally, an

entity’s bylaws or membership agreement may provide

254 313 M

ICH

243 [Nov

for the regulation and management of its affairs as

long as the provision is not inconsistent with law or the

articles authorizing the entity. See MCL 450.1231;

MCL 450.4210. When validly promulgated, an entity’s

bylaws or similar governing instrument will constitute

a binding contractual agreement between the entity

and its members. See Mayo v Great Lakes Greyhound

Lines, 333 Mich 205, 214; 52 NW2d 665 (1952) (pro-

viding that the members of a voluntary association are

bound by the association’s constitution and general

laws); Kauffman v Chicago Corp, 187 Mich App 284,

287; 466 NW2d 726 (1991) (stating that the constitu-

tions, rules, and bylaws of the entity at issue “consti-

tute[d] a contract by all members” of the entity “with

each other and with the [entity] itself”); Allied Super-

markets, Inc v Grocer’s Dairy Co, 45 Mich App 310, 315;

206 NW2d 490 (1973) (“The bylaws of a corporation, so

long as adopted in conformity with state law, constitute

a binding contract between the corporation and its

shareholders.”). In this case, the parties do not dispute

that the Association had the authority to adopt bylaws

and that the bylaws were adopted by a majority of the

Association’s members. Thus, to the extent that they

do not conﬂict with the Association’s articles of incor-

poration or this state’s law, the bylaws would consti-

tute a binding contractual agreement between the

Association and its various members.

The Association’s members have a common-law

right to try to enhance the value of their property

through contractual agreements concerning the use

and development of their real property. It is “well-

grounded” in Michigan’s common law “that property

owners are free to attempt to enhance the value of

their property in any lawful way, by physical improve-

ment, psychological inducement, contract, or other-

2015] C

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255

wise.” Terrien v Zwit, 467 Mich 56, 71; 648 NW2d 602

(2002) (quotation marks, emphasis, and citation omit-

ted). “A covenant is a contract created with the inten-

tion of enhancing the value of property, and, as such, it

is a ‘valuable property right.’ ” Id., quoting City of

Livonia v Dep’t of Social Servs, 423 Mich 466, 525; 378

NW2d 402 (1985). However, although Michigan courts

recognize that restrictions are a valuable property

right, this right must be balanced against the equally

well-settled principle that courts will not lightly re-

strict the free use of property. See O’Connor v Resort

Custom Builders, Inc, 459 Mich 335, 341; 591 NW2d

216 (1999) (characterizing the protection of the free use

of property as a fundamental principle). Courts sitting

in equity “do not aid one man to restrict another in the

use to which he may put his property unless the right

to such aid is clear.” Eveleth v Best, 322 Mich 637, 642;

34 NW2d 504 (1948) (quotation marks and citation

omitted). Similarly, the provisions of a covenant “are to

be strictly construed against the would-be enforcer . . .

and doubts resolved in favor of the free use of prop-

erty.” Stuart v Chawney, 454 Mich 200, 210; 560 NW2d

336 (1997). When construing a restrictive covenant,

courts may only give it a fair construction; courts may

not broaden or limit the restriction. Kelly v Carpenter,

245 Mich 406, 409; 222 NW 714 (1929). To that end,

courts will not infer the existence of a restriction—the

restriction must be expressly provided in the control-

ling documents. O’Connor, 459 Mich at 341, citing

Margolis v Wilson Oil Corp, 342 Mich 600, 603; 70

NW2d 811 (1955) (“The restrictions contain no express

prohibition against a side entrance to defendant’s lots

from Robson avenue. None will be implied.”). Courts

will not enlarge or extend a restriction through inter-

pretation, even to accomplish what it may be thought

the parties would have desired had a situation that

256 313 M

ICH

243 [Nov

later developed been foreseen by them at the time the

restriction was written. Sampson v Kaufman, 345

Mich 48, 53; 75 NW2d 64 (1956).

The Association’s members were not required to

establish their covenants and restrictions through any

particular type of instrument. See Erichsen v Tapert,

172 Mich 457, 463; 138 NW 330 (1912) (“The fact that

the restriction is created in an instrument independent

of the deed conveying title is of no consequence, as long

as there is a valuable consideration moving to and from

the signers.”). Accordingly, they could adopt covenants

concerning their real property through the adoption of

bylaws, which would then be contractually binding on

the members to the same extent that any other prop-

erly adopted covenant would be binding.

The Association’s bylaws contain numerous provi-

sions governing the Association’s affairs that are not in

dispute. The parties do not dispute the provisions

establishing the Association’s membership, governing

meetings and voting, stating the qualiﬁcations and

duties of ofﬁcers and directors, or regulating ﬁnance

and assessments. The dispute, rather, centers on Ar-

ticle XII of the bylaws, which establishes an architec-

tural review committee.

The ﬁrst section of that article prohibits the mem-

bers from commencing, erecting, or maintaining any

“building, fence, wall, deck, swimming pool, out-

building or other structure, original landscaping on

new construction or exterior improvement” or making

an addition, change, or alteration to such an improve-

ment without ﬁrst submitting plans for the improve-

ment to the committee and obtaining its approval. A

member who submits his or her plans to the committee

must pay $2,000 for the review and must deposit

$5,000 to cover possible damages from the develop-

2015] C

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257

ment. The committee has broad authority to deny a

proposed plan: it may disapprove the plan because the

plan does not comply with the restrictions and cov-

enants for the development, but it also may disapprove

the proposed improvement because it is dissatisﬁed

“with the effect of the proposed construction on the

harmonious development” of Dixboro Farms. The lat-

ter ground for disapproval may be founded on the

proposed “location of the structure . . . , the materials

used, the color scheme, the ﬁnish, design, proportion,

shape, height, style or appropriateness of the proposed

improvement or alteration or because of any matter or

thing which . . . would render the proposed improve-

ment or alteration inharmonious . . . .”

The bylaws also provide rules—labelled

“guidelines”—that regulate the committee’s ability to

exercise its discretion to approve proposed plans. The

guidelines, for example, provide that no building or

structure can exceed 35 feet in height and that all

ﬁrst-ﬂoor walls must be “stone or brick, or a combi-

nation of both.” The guidelines also speciﬁcally pro-

hibit the use of plywood siding, aluminum siding, or

vinyl siding on any home. Although the bylaws refer

to these requirements as guidelines, it is evident that

the committee has a responsibility to reject as unhar-

monious a proposed development or alteration that

does not meet these criteria.

Article XII is not reasonably susceptible to more

than one construction and clearly imposes limits on the

members’ ability to develop and use their lots through

the committee’s review process—that is, the bylaws

unambiguously establish rules governing the use and

development of the land within Dixboro Farms. Farm

Bureau Mut Ins Co of Mich v Nikkel, 460 Mich 558,

566; 596 NW2d 915 (1999). Accordingly, we must

258 313 M

ICH

243 [Nov

determine whether the Association had the authority

to regulate its members’ use and development of their

lots and, if the Association had that authority, whether

it exceeded its scope.

2. THE ORIGINAL PROPERTY OWNERS DID NOT GIVE

THE

ASSOCIATION THE AUTHORITY TO REGULATE

THE PROPERTIES THROUGH BYLAWS

The Association’s articles of incorporation provide

that the Association was formed to “manage and admin-

ister the affairs of and to maintain Dixboro Farms . . . .”

It was also formed to “levy and collect assessments

against and from the members,” “to make reasonable

rules and regulations governing the use and enjoyment”

of the subdivision, and to “enforce the provisions” of the

covenants, restrictions, articles of incorporation, by-

laws, and rules and regulations that may be adopted.

These provisions are also not ambiguous and give the

Association broad authority to promulgate bylaws regu-

lating the members’ conduct within the Association

itself and also as property owners in Dixboro Farms.

Consequently, if the bylaws do not conﬂict with this

State’s law, they must—as with any other type of

contract—be enforced as written. Rory v Continental Ins

Co, 473 Mich 457, 468; 703 NW2d 23 (2005).

Under Michigan’s common law, a property owner

normally cannot be contractually bound by a covenant

regulating the use of his or her real property without his

or her agreement to the covenant. Therefore, a group of

property owners cannot impose building and use restric-

tions on a neighboring property owner without his or

her consent. See Eveleth, 322 Mich at 641-642 (holding

that the restrictions did not apply to the lot at issue

because the restrictions were not imposed by a common

owner and were not agreed to by the current lot owners

or by their grantors in the chain of title); Hart v

2015] C

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259

Kuhlman, 298 Mich 265, 267; 298 NW 527 (1941) (“The

rights of defendant cannot be made to rest upon a mere

neighborhood plan to which he was not a consenting

party.”); Doxtator-Nash Civic Ass’n v Cherry Hill Prof

Bldg, Inc, 12 Mich App 468, 472; 163 NW2d 262 (1968)

(“The fact that other lot owners in the subdivision who

were strangers to the title to defendants’ property may

have agreed on a plan of restrictions governing their

property could not result in restrictions binding upon

defendants or their predecessors in title.”). However, a

party may be bound by a covenant to which he or she did

not personally agree if that party’s predecessor in inter-

est established the restrictive covenant and the cov-

enant appears in the owner’s record title. See Sanborn v

McLean, 233 Mich 227, 230; 206 NW 496 (1925).

A covenant affecting the use of real property may be

personal or may run with the land, as determined by

the parties’ intent. See Greenspan v Rehberg, 56 Mich

App 310, 320-321; 224 NW2d 67 (1974), citing, among

other authorities, Mueller v Bankers Trust Co, 262

Mich 53, 56; 247 NW 103 (1933). A covenant affecting

the use of real property runs with the land if, in

relevant part, the parties express their intent to bind

their successors and assigns. Greenspan, 56 Mich App

at 320-321. If the covenants are structured to run with

the land, a subsequent purchaser will be bound by the

covenants if he or she purchases the land with actual

or constructive notice of the covenants. Phillips v Naff,

332 Mich 389, 393; 52 NW2d 158 (1952). A subsequent

purchaser is on constructive notice that his or her use

of the property will be subject to the covenants when

the covenants appear in the purchaser’s chain of title.

Sanborn, 233 Mich at 231-232.

There is no language within the bylaws to suggest

that the members intended the provisions dealing with

260 313 M

ICH

243 [Nov

the architectural committee to constitute a new set of

covenants that would run with the land. In any event,

the record evidence shows that the Developers did not

agree to the adoption of the bylaws with the property

restrictions contained under Article XII; accordingly,

even if the drafter of the bylaws intended to establish

new covenants or restrictions with the adoption of the

bylaws, those covenants and restrictions would not be

binding on the Developers or their successors or assigns.

Eveleth, 322 Mich at 641-642. Moreover, Philip Conlin

ﬁled the Association’s articles of incorporation in June

2007, which was after the ﬁrst lots within Dixboro

Farms had been sold. Because some lots had already

been sold to third parties subject only to the covenants

recorded in 2001, Philip Conlin could not use his role as

the developer to impose new covenants or alter the

existing covenants unilaterally by incorporating the

Association and purporting to give it the power to

establish new covenants or alter the existing covenants

for the subdivision with less than unanimous approval.

See McQuade v Wilcox, 215 Mich 302, 305-306; 183 NW

771 (1921) (stating that the original owner could not

unilaterally alter the restrictive covenants applicable to

the lots at issue because others had purchased the lots

in reliance on the restrictions). If the Association had

the authority to alter the existing covenants or adopt

new covenants with less than unanimous consent, its

authority must derive from the covenants and restric-

tions recorded in 2001.

3. THE COVENANTS DID NOT AUTHORIZE THE IMPOSITION

NEW OR EXPANDED RESTRICTIONS WITH LESS THAN

UNANIMOUS CONSENT

The parties to covenants that run with the land may

agree that they or their successors or assigns can

amend the covenants with less than unanimous agree-

2015] C

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261

ment. See Ardmore Park Subdivision Ass’n, Inc v

Simon, 117 Mich App 57, 62; 323 NW2d 591 (1982). If

the owners subsequently alter the covenants in com-

pliance with the terms of the original covenants, the

change will bind the owners of all the properties

subject to the original covenants, even those owners

who opposed the change. Id. Therefore, if the owners of

the lots in Dixboro Farms or their predecessors in

interest gave the Association the power to amend or

establish restrictions on the use and development of

the lots within Dixboro Farms with less than unani-

mous approval, and the bylaws were adopted in com-

pliance with that grant of power, the restrictions

contained in the bylaws would be valid and enforceable

against the Developers and their successors even

though they differ in nature and extent from those

contained in the original covenants and even though

the Developers did not agree to the adoption of the

bylaws.

The original owners of Dixboro Farms recorded a

series of deed restrictions and protective covenants in

January 2001. Paragraph 1 of the covenants, for ex-

ample, placed limits on the use of the lots and on the

types of buildings that could be constructed on the lots;

Paragraph 2 required the lot owners to maintain

easements for utilities; Paragraph 3 required all utili-

ties to be below ground; Paragraph 6 subjected the lots

to an annual maintenance charge; Paragraph 10 im-

posed additional requirements and limitations on the

development of lots; and Paragraph 14 limited the use

of signs and billboards. The covenants also included

Paragraph 5, which established the Association.

In Paragraph 5, the original landowners gave the

Association the power to sue: “The Association shall

have the right and power in its own name to take and

262 313 M

ICH

243 [Nov

prosecute all suits, legal, equitable or otherwise which

may be, in the opinion of the Association, necessary or

advisable for any purpose deemed for the beneﬁt of the

Association members.” The original landowners also

expressly granted the Association certain other powers

at various points in the covenants: under Paragraph 6,

it has the power to adjust the amount of the annual

maintenance fee, including the power to raise the fee

beyond the maximum with the approval of a majority

of the members; it has the power to spend the mainte-

nance fund on various things under Paragraphs 6 and

8; it has the power to enforce a provision requiring

property owners to repair damage that the owner

might have caused to certain common areas under

Paragraph 10; Paragraph 26 granted the Association

the power to hire contractors to perform maintenance

on neglected property and charge the owner; and it has

the power to abate violations of the restrictions and

covenants with notice to the property owner and

charge the expense to the owner under Paragraph 29.

Conspicuously absent from these provisions is any

reference to the Association’s power to amend the

covenants, or to establish new restrictions or cov-

enants. Indeed, the only reference to such a power in

the covenants is in Paragraph 30, which expressly

provides that two-thirds of the owners of the lots have

the power to release certain “restrictions, conditions,

covenants, charges and agreements” and then only

after the passage of 15 years.

By reserving the power to amend the covenants by

less than unanimous consent to the owners, and then

limiting that power in extent (release of certain speci-

ﬁed restrictions) and time (after 15 years), the original

landowners plainly expressed their intent that the

covenants and restrictions could not be altered by the

Association acting on its own initiative, could not be

2015] C

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263

altered until 15 years after the recording of the cov-

enants in January 2001, and could only be altered to

“release” certain speciﬁed restrictions. The covenants

are unambiguous and did not expressly provide the

Association with the authority to alter the original

covenants and restrictions on its own initiative and did

not authorize the owners to add new restrictions or

increase the burden of existing restrictions with less

than unanimous consent. Accordingly, this Court must

enforce the covenants as written. Rory, 473 Mich at

468. We conclude that the bylaws violate this state’s

common-law requirement that covenants and restric-

tions be unanimously approved by all the affected

property owners to the extent that the bylaws impose

burdens on the individual members’ real property

beyond those expressly provided in the covenants re-

corded in 2001.

4. ARTICLE XII IMPOSES NEW OR EXPANDED BURDENS

THE LOTS

The original covenants granted certain powers to

the Association. Because the Association’s articles au-

thorize it to “make reasonable rules and regulations

governing the use and enjoyment” of the subdivision

and to “enforce the provisions” of the covenants and

restrictions, the Association could validly promulgate

rules governing the manner of its exercise of the

powers expressly granted to it. And, as long as the

rules did not impose additional burdens on the mem-

bers’ properties, the adoption of the rules by less than

all members would not violate this state’s common-law

unanimity requirement.

The covenants expressly granted the Association the

authority to abate violations “of any condition or re-

striction or breach of any covenant” in Paragraph 29.

264 313 M

ICH

243 [Nov

Because homeowners associations generally have

standing to enforce restrictions on behalf of their

members, Civic Ass’n of Hammond Lake v Hammond

Lake Estates, 271 Mich App 130, 135; 721 NW2d 801

(2006), and the covenants expressly gave the Associa-

tion the authority to abate violations, the Association

could promulgate rules interpreting the covenants and

restrictions and setting the procedures governing its

own enforcement of those covenants and restrictions.

For instance, Paragraph 20 of the covenants and

restrictions provides that the lot owners may keep

“common household pets” unless “they become an

annoyance or nuisance to the neighborhood.” The re-

striction does not deﬁne “common household pet” and

does not deﬁne the conditions under which a common

household pet will be deemed to be a nuisance. The

Association could for that reason promulgate rules

expressing its understanding of those terms and gov-

erning its procedure for enforcing that particular re-

striction. The Association could not, however, expand

that restriction or impose a new burden on the lot

owners with less than unanimous consent under the

guise of interpreting the restriction. See Golf View

Improvement Ass’n v Uznis, 342 Mich 128, 130-131; 68

NW2d 785 (1955) (“We do not accept this round-about

interpretation of the restrictions to ﬁx a minimum area

when it could have been expressed directly in so many

words. We conclude that it would have been so ex-

pressed had that been the intent of the subscribers.”).

It could not—by way of example—deﬁne “an annoy-

ance or nuisance to the neighborhood” to mean the

keeping of any animal over 5 pounds in weight because

that requirement would categorically exclude numer-

ous common household pets without a ﬁnding of actual

nuisance—that is, the interpretive bylaw would in

effect amount to an additional burden on the land; and

2015] C

ONLIN V

PTON

265

courts will not enforce restrictions that were not ex-

pressly stated in the covenants or permit the expan-

sion of a restriction under the guise of interpretation.

O’Connor, 459 Mich at 341; Golf View, 342 Mich at

130-131; Kelly, 245 Mich at 409.

On appeal, the Association and Ofﬁcers argue that

Article XII of the bylaws does not amount to a new set

of restrictions on the properties; rather, in Article XII,

the Association merely interpreted the existing restric-

tions and provided guidance for the Association’s en-

forcement of the restrictions. In particular, the Asso-

ciation and ofﬁcers maintain that the architectural

review committee is just enforcing Paragraph 11 of the

covenants and restrictions.

Paragraph 11 of the covenants and restrictions re-

quires a property owner to obtain advance permission

before constructing various improvements and states

that permission may be denied if the proposed im-

provement is not in harmony with the development:

11. BUILDING

APPROVAL. No dwelling, structure,

swimming pool, fence, TV disc, permanent sports type

outdoor court or facility, out building, or other develop-

ment shall be permitted upon any parcel in the develop-

ment, nor shall any grade in the development be changed

or other construction work done, unless Developer’s writ-

ten approval is obtained in advance as follows: The pro-

posed plot plan, construction plans and speciﬁcations

shall be submitted in duplicate to the Developer, for

approval and said written approval received prior to

submission to Salem Township for a Zoning Compliance

Permit or Building Permit. The plot plans shall show the

ﬁnished grade, the plot, the location of the dwelling,

mailbox post and all other buildings and structures. The

construction plan and speciﬁcations shall show the size,

square footage, type and materials of exterior construction

together with the grade and elevation of all buildings and

structures and shall provide other pertinent construction

266 313

ICH

243 [Nov

details. One copy of these plans and speciﬁcations shall be

permanently retained by the Developer. Developer shall

not give its approval to the proposal unless in its sole and

absolute opinion such construction and development will

comply in all respects with the building and use restric-

tions set forth in this document; nor shall Developer give

its approval unless the external design, materials and

location of the construction proposal shall be in harmony

with the character of the development as it develops and

with the topography and grade elevations both of the

parcel upon which the proposed construction is to take

place, and the neighboring parcels in the development.

Developer shall have the right to assign his responsibili-

ties and authority hereunder to a third party. If anyone

begins any such construction without the above stated

approval, he hereby agrees to forthwith completely re-

move such construction upon being informed by the De-

veloper, regardless of the stage of completeness of such

construction. If it is not appropriately removed, the De-

veloper has the full right to enter upon such property and

cause such construction to be removed; the cost of removal

plus all appropriate legal expenses etc. shall be chargeable

to the parcel owner and the Developer may place a lien

upon the subject parcel for such charges plus applicable

interest.

This restriction is poorly drafted and cluttered with

legalese,

but it does not give the Association the

authority to require its members to seek the architec-

tural review committee’s approval before improving

their lots or making changes to existing improvements

on their lots. The ﬁrst sentence awkwardly prohibits

the “permitt[ing]” of certain structures and prohibits

changes to the grade of a parcel or construction with-

out written approval from the developer. The ﬁrst

sentence further provides that the developer’s ap-

proval must be obtained in “advance as follows” and

ends with a colon. By introducing the remaining por-

tion of the paragraph in this way, the drafter indicated

2015] C

ONLIN V

PTON

267

that the remainder of the paragraph clariﬁes the

procedures applicable to the developer’s approval pro-

cess. Moreover, the speciﬁc provisions in the remainder

of the paragraph consistently state that the obligation

and authority to review a proposed plan belongs to the

developer. A person seeking approval must submit his

or her plans to the developer and the developer must

retain a copy. The developer must not give his approval

if the proposal does not comply with the building and

use restrictions or is not “in harmony with the charac-

ter of the development as it develops . . . .” The devel-

oper has the right to assign his “responsibilities and

authority” to approve proposed plans to a third party

and it is the developer who has the right to remove any

construction commenced without his approval.

Paragraph 11 is not reasonably susceptible to more

than one meaning. Farm Bureau Mut Ins, 460 Mich at

566. Rather, it unambiguously states that the indi-

vidual lot owners have an obligation to get their

proposed improvements approved by the developer

before commencing construction; the paragraph does

not establish an obligation to submit a proposal to any

other person, the Association, or a committee of the

Association. And the covenants deﬁne the developer to

be Philip Conlin. To the extent that the Association had

the authority to enforce Paragraph 11, it had to enforce

it by compelling property owners to submit their plans

to the developer for approval and by requiring him to

comply with the requirements imposed on his review of

the proposed plans—speciﬁcally, by requiring him to

review the plans for compliance with the restrictions

and for harmony with the development as it has

developed. Thus, the Association had the authority to

enforce this restriction by ensuring that the developer

acted reasonably and in good faith when reviewing

whether the proposed plan was in harmony with the

268 313 M

ICH

243 [Nov

development. See Burkhardt v City Nat’l Bank of

Detroit, 57 Mich App 649, 652; 226 NW2d 678 (1975).

But it could not unilaterally usurp that role for itself.

Therefore, to the extent that Philip Conlin had not

assigned his rights and duties as the developer, the

trial court should have enforced this provision as

written and concluded that—as a matter of law—the

Association did not have the authority to establish its

own independent approval process and require lot

owners to submit to that process.

The Association and Ofﬁcers, however, argue that

the Association’s power to abate a violation of the

covenants and restrictions necessarily gives rise to a

right to approve construction beforehand; speciﬁcally,

they maintain that the Association “need not wait

inefﬁciently for construction to occur and then seek to

abate it. Rather, it can proactively approve of potential

construction.” The Association’s argument is inapt; its

bylaws do not provide that individual lot owners may

submit their proposed plans to the architectural com-

mittee for approval so as to avoid any potential future

dispute or abatement action. The bylaws require the lot

owners to submit their plans to the architectural

committee rather than the developer. The bylaws fur-

ther require the lot owners to pay a $2,000 fee and

make a $5,000 deposit, which were not required in the

original covenants. The bylaws also deprive the lot

owners of a case-by-case determination concerning

whether their proposed plan is in harmony with the

development as it has developed (and in light of any

change in the character of the development over the

years) by requiring the proposed plan to conform to a

detailed set of criteria not contemplated in the original

covenants. That is, the bylaws effectively circumscribe

the discretion of the developer or his assign to fairly

and reasonably determine whether a proposed plan

2015] C

ONLIN V

PTON

269

would be in harmony with the development as a whole.

See Ardmore Ass’n v Bankle, 329 Mich 573, 578; 46

NW2d 378 (1951) (stating that a requirement that

construction be preapproved is valid, but must be

enforced in a fair and reasonable manner). These

limits on the developer’s discretion constitute an addi-

tional burden not contemplated by the original cov-

enants and restrictions.

Relying on Meadow Bridge Condo Ass’n v Bosca, 187

Mich App 280; 466 NW2d 303 (1991), the Association

argues that Article XII merely implements existing

restrictions. The Association’s reliance is, however,

misplaced. In Bosca, the existing restrictions prohib-

ited the maintenance of animals without the condo

association’s permission and broadly authorized the

condo association to adopt any additional rules and

regulations respecting animals that it may deem

proper. Id. at 281. The condo association’s authority to

promulgate the new rule was, therefore, permitted by

the existing rules. Id. at 282-283. In this case, the

original covenants and restrictions did not authorize

the Association to adopt new rules or regulations, and

the provisions in Article XII plainly impose restrictions

that are inconsistent with the original recorded restric-

tions.

The bylaws unambiguously impose new burdens on

the lot owners through the architectural committee’s

review process. Because the lot owners did not unani-

mously approve the creation of these new burdens and

the original covenants did not authorize the Associa-

tion to establish these new burdens with less than

unanimous consent, they are contrary to law and

invalid. Eveleth, 322 Mich at 641-642; Ardmore Park

Subdivision Ass’n, 117 Mich App at 62. If the Associa-

tion, through its architectural review committee, has

270 313 M

ICH

243 [Nov

any authority to require lot owners to submit their

proposed plans to the committee for preapproval, that

power must be derived from the assignment of the

developer’s authority to it. But, even if Philip Conlin

assigned his right to preapprove proposed plans to the

Association, the committee’s power of approval would

be subject to the same criteria and limits that were

applicable to the developer under Paragraph 11; thus,

the additional burdens stated in Article XII are still

invalid.

The Association also cannot derive its authority to

require property owners to submit their plans for

preapproval from any other covenant. None of the

other paragraphs expressly require an owner to submit

a proposed change to his or her property to the other

owners, the developer, or any entity. For example,

Paragraph 1 of the covenants requires each lot to be

used as a “single family residence” and further limits

the types of improvements that may be made on the

lot:

No building or other structure shall be permitted on any

lot

other than a single family dwelling with an attached

garage of not less than three car capacity; except that a

swimming pool, tennis court, or similar facility, walls or

other accessory buildings may be built in such manner

and location deemed to be in harmony with the character

of the development, and in conformance with these build-

ing and use restrictions . . . .

The harmony provision in this restriction applies to

“a

swimming pool, tennis court, or similar facility,

walls or other accessory buildings” and not to the

single family dwelling and its attached garage.

Similarly, the abatement provision stated under

Paragraph 29 grants the Association (along with the

developer) the authority to take action to redress a

2015] C

ONLIN V

PTON

271

purported violation of the covenants and restrictions,

but that paragraph does not expressly grant the Asso-

ciation the authority to require preapproval for every

improvement that might be the subject of an action to

abate. It provides that the Association has, “in addition

to all other remedies, the right to enter upon the land

as to which such violation or breach exists, and sum-

marily to abate and remove [the violation], at the

expense of the owner . . . .” Nevertheless, the land-

owner may proceed at his or her own risk, and the

Association’s only recourse is to take legal action or

abate the perceived noncompliance. The Association

does not have the authority to compel the owner to

submit a proposed change to the Association, does not

have the authority to order the owner to pay a review

fee, and does not have the authority to order the owner

to pay a deposit. Rather, the Association must proceed

to abate at its own expense (and risk), and, if the owner

was in fact violating the covenants or restrictions, the

Association may seek compensation for its expenses.

Paragraph 29 expressly permits nothing more.

The instruments at issue in this appeal—the 2001

covenants and restrictions, along with the Associa-

tion’s articles of incorporation and bylaws—are not

ambiguous. Further, with one exception to be dis-

cussed below, the application of the law to the provi-

sions at issue did not involve a question of fact.

Therefore, the jury should not have been asked to

“ﬁnd” whether the bylaws amounted to new restric-

tions and should not have been asked to “ﬁnd” whether

the bylaws conﬂicted with the covenants and restric-

tions recorded in 2001.

The bylaws imposed additional burdens on the lots

in Dixboro Farms. Because it was undisputed that the

bylaws were not unanimously adopted, and the 2001

272 313 M

ICH

243 [Nov

covenants and restrictions did not expressly permit the

Association to burden the lots with new restrictions on

its own initiative or allow the owners to alter or adopt

restrictions with less than unanimous consent, the

new restrictions were invalid. Eveleth, 322 Mich at

641-642; Ardmore Park Subdivision Ass’n, 117 Mich

App at 62. Consequently, the trial court should have

determined that Article XII of the bylaws was invalid

under Michigan law, but only to the extent that it

burdened the lots in Dixboro Farms with restrictions

and covenants beyond those provided in the 2001

covenants and restrictions. The extent to which Article

XII of the bylaws imposed additional burdens on the

lots, however, depended in part on the resolution of a

question of fact.

C. ASSIGNMENT OF RIGHT TO APPROVE

Paragraph 11 of the covenants gave Philip

Conlin—as

the developer—the “right to assign his

responsibilities and authority hereunder to a third

party.” The covenants do not include any limitations or

conditions on his right to assign. Therefore, he could

assign his right to the Association expressly by oral or

written agreement or impliedly through his represen-

tations and course of conduct. Burkhardt v Bailey, 260

Mich App 636, 654-656; 680 NW2d 453 (2004) (discuss-

ing the elements necessary to establish an assignment

and stating that the assignor must manifest a present

intent to transfer and must not retain any control or

any power of revocation); Featherston v Steinhoff, 226

Mich App 584, 589; 575 NW2d 6 (1997) (“Where the

parties do not explicitly manifest their intent to con-

tract by words, their intent may be gathered by impli-

cation from their conduct, language, and other circum-

stances attending the transaction.”); see also, e.g.,

2015] C

ONLIN V

PTON

273

Hooton v Hooton, 230 Mich 689, 692; 203 NW 475

(1925) (discussing whether the facts established that

the husband made a parol assignment of the insurance

policy at issue to his wife).

At trial, there was testimony that the owners of the

lots in Dixboro Farms were upset by the quality of the

Guenther homes and felt betrayed by Philip Conlin’s

approval of those homes. Philip Conlin testiﬁed that he

became aware of the other owners’ discontent shortly

after the homes were completed. As a result of the

owners’ concern, Chris Conlin sent an e-mail to Philip

Conlin in December 2010 requesting that he appoint

the board of directors for the Association and call a

meeting of the residents. Chris Conlin further wrote

that it was “understood” that the new board would

form an architectural committee at this ﬁrst meeting.

Thereafter, Philip Conlin appointed the Association’s

ﬁrst board of directors.

There was testimony and documentary evidence

that the homeowners met in January 2011 and signed

a written summary of their position on the recent

events, which they sent to Philip Conlin. In the letter,

they stated that they had reached a consensus on “a

number of issues” and were sending him the letter to

“inform” him about their decisions and seek his “con-

currence in the progress and basis of continuing coop-

eration.” They told Philip Conlin that they wanted to

elect their own board for the Association, notwith-

standing that he had that right under the covenants,

and wrote that they expected him to “concur” with this

decision. The homeowners also “acted to appoint” an

architectural control committee to “cooperate and as-

sist in maintaining architectural harmony of the sub-

division.” Finally, the homeowners stated that they

intended to develop bylaws for the Association and

274 313 M

ICH

243 [Nov

asked him to indicate his “acceptance and acknowl-

edgement” of the newly formed Association. The evi-

dence showed that Philip Conlin signed and dated the

letter. There was evidence that Philip Conlin later

submitted proposed plans for development to the As-

sociation’s newly formed architectural review commit-

tee, albeit for its comments and suggestions.

Although it was by no means overwhelming, when

the totality of the evidence is viewed in the light most

favorable to the Association, there is evidence from

which a reasonable jury could ﬁnd that Philip Conlin

assigned his rights under Paragraph 11 of the cov-

enants to the Association. See Taylor, 286 Mich App at

500. If the jury had found that Philip Conlin assigned

his rights under that paragraph to the Association, the

Association could properly form an architectural re-

view committee to handle the approval process and

could promulgate rules in its bylaws governing that

process, as long as the rules did not impose burdens

beyond those provided under Paragraph 11 of the

covenants. Consequently, the trial court did not err

when it denied the Developers’ motion for a directed

verdict on that limited issue.

Unfortunately, the special verdict form instructed

the jury to skip that issue if it found that the bylaws

did not amount to restrictive covenants and did not

violate the 2001 covenants and restrictions, which it

did. For that reason, this factual question was not

resolved below. Although we conclude that Article XII

of the bylaws was invalid to the extent that it imposed

new burdens on the lots at issue without the proper

consent or authority, we cannot determine the full

extent that Article XII would be invalid without resolv-

ing this factual question. Consequently, we must re-

mand this case for possible retrial of that question of

fact.

2015] C

ONLIN V

PTON

275

III. CONCLUSION

We reverse the jury’s verdict, vacate the judgment,

and remand for further proceedings. On remand, the

trial court shall enter an order granting partial sum-

mary disposition in favor of the Developers. Speciﬁ-

cally, the trial court shall enter an order declaring that

the 2001 covenants and restrictions did not give the

Association the authority to burden the lots with

additional restrictions and did not give it the authority

to add restrictions with less than unanimous approval.

The order should further declare that Article XII of the

bylaws is invalid and does not apply to the Associa-

tion’s members to the extent that it includes burdens

on their lots beyond those stated under the 2001

covenants and restrictions, as explained in this opin-

ion. Finally, if necessary, the trial court shall hold a

new trial to resolve whether Philip Conlin assigned his

rights under Paragraph 11 of the covenants to the

Association.

Reversed, vacated, and remanded for further pro-

ceedings consistent with this opinion. Because this

appeal involved issues of importance to the general

public, we order that none of the parties may tax their

costs. MCR 7.219(A). We do not retain jurisdiction.

M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

, JJ.,

concurred.

276 313 M

ICH

243 [Nov

KENNEDY v ROBERT LEE AUTO SALES

Docket No. 322523. Submitted November 9, 2015, at Lansing. Decided

November 24, 2015, at 9:05 a.m.

Jennifer Jane Kennedy (plaintiff) ﬁled a third-party complaint

against Robert Lee Auto Sales (defendant) in the 54-A District

Court. Plaintiff’s complaint, in part, alleged violations of the

Magnuson-Moss Warranty Act (MMWA), 15 USC 2301 et seq., and

the Michigan Consumer Protection Act (MCPA), MCL 445.901 et

seq., related to a used vehicle plaintiff had purchased from

defendant. The parties stipulated removal of the case to the

Ingham Circuit Court. Plaintiff’s third-party complaint arose

after Consumer Portfolio Services, Inc. (CPSI) sued her for

defaulting on a retail installment contract it had purchased from

defendant. Plaintiff and CPSI reached a settlement agreement,

the trial court dismissed CPSI’s complaint against plaintiff, and

the third-party action between plaintiff and defendant continued.

Defendant ﬁled a motion for summary disposition, and at the

hearing on the motion, the trial court, William E. Collette, J.,

suggested that the parties attempt to settle the dispute. Defen-

dant agreed to pay plaintiff the total amount of her down

payment on the vehicle and the two installment payments she

made before defaulting. The parties could not reach an agreement

on the amount of attorney fees to award plaintiff’s counsel, and

the parties submitted the issue to the trial court’s discretion. At

the hearing on the matter, the trial court indicated that it

believed the amount of attorney fees requested exceeded what

was warranted by the “nickel and dime” case. The trial court

refused to entertain further argument from plaintiff’s counsel

and ultimately ordered that defendant pay plaintiff $1,000 in

costs and attorney fees. Plaintiff appealed.

The Court of Appeals held:

1. The trial court abused its discretion by failing to consider

the factors outlined in Smith v Khouri, 481 Mich 519 (2008), when

determining the proper amount of attorney fees to award plain-

tiff. The Smith factors apply to attorney fees awarded under

fee-shifting statutes like the MCPA and the MMWA. The MCPA

and the MMWA are remedial statutes aimed at affording a

2015] K

ENNEDY V

OBERT

UTO

ALES

277

consumer access to the legal redress of disputes involving meager

monetary value when the consumer’s ﬁnancial status would

otherwise prevent such a lawsuit. Application of the Smith factors

to the award of attorney fees in fee-shifting statutes will increase

the consistency among attorney-fee awards. In this case, the trial

court awarded plaintiff a ﬂat $1,000 in costs and attorney fees,

indicating its disapproval of the amount of attorney fees being

requested in light of the small amount of money recovered by

plaintiff. Factors relevant to an award of reasonable attorney fees

in a case without a large monetary return require the trial court

to do more than consider the ﬁnancial implications or ultimate

result of the case.

2. The Smith framework requires the trial court to multiply a

reasonable number of hours spent on the matter by the custom-

ary fee charged in the area for similar legal services to arrive at

an amount representing the starting point for calculating a

reasonable attorney fee. The trial court, by considering the Smith

factors, had the discretion to make adjustments, downward or

upward, to the amount reﬂected by the starting point value. The

Smith framework consists of six factors, each of which may

impact the amount calculated as the starting point. The factors

are: (1) the professional standing and experience of the attorney;

(2) the skill, time, and labor involved; (3) the amount in question

and the results achieved; (4) the difﬁculty of the case; (5) the

expenses incurred; and (6) the nature and length of the profes-

sional relationship with the client. Additional factors a trial court

may consider to determine the proper amount of attorney fees to

award are found in Michigan Rule of Professional Conduct

(MRPC) 1.5(a).

Vacated and remanded.

1. S

TATUTORY

TTORNEY

EES —

-S

HIFTING

TATUTES —

MITH

ACTORS

A trial court must apply the factors outlined in Smith v Khouri, 481

Mich 519 (2008), to determine a reasonable attorney fee in cases

involving fee-shifting statutes such as the Michigan Consumer

Protection Act, MCL 445.901 et seq., and the Magnuson-Moss

Warranty Act, 15 USC 2301 et seq.

2. A

TTORNEY

EES —

ALCULATING THE

TARTING

OINT —

DJUSTING THE

MOUNT —

MITH

ACTORS

Under Smith v Khouri, 481 Mich 519 (2008), calculating the

proper amount of attorney fees to award a party begins with

calculation of the starting point; the starting point requires the

court to multiply the reasonable number of hours spent on the

278 313 M

ICH

277 [Nov

case by the fee customarily charged in the locality for similar

legal services; a trial court has the discretion to make downward

or upward adjustments to the starting point amount after review-

ing the amount in light of the Smith factors.

The Liblang Law Firm, PC (by Dani

Liblang and

Michael L. Rowady), for plaintiff.

Frank J. Nerat, Jr., for defendant.

Before: M

ETER

, P.J., and B

ORRELLO

and B

ECKERING

, JJ.

ECKERING

, J. This case arises out of the sale of a car.

Plaintiff Jennifer Jane Kennedy alleged, among other

things, that defendant Robert Lee Auto Sales violated

the Magnuson-Moss Warranty Act (MMWA), 15 USC

2301 et seq., and the Michigan Consumer Protection

Act (MCPA), MCL 445.901 et seq.

The parties reached

settlement agreement under which plaintiff received

all of her money back and defendant agreed to pay

plaintiff’s statutory attorney fees and costs, which

were ultimately determined by the trial court. Plaintiff

appeals as of right the trial court’s order awarding her

$1,000 in attorney fees and costs. Plaintiff contends

that the trial court abused its discretion by arbitrarily

awarding $1,000 without considering the remedial

purpose of the fee-shifting provisions of the MMWA

and the MCPA, as well as other factors set forth by the

Michigan Supreme Court in Smith v Khouri, 481 Mich

519; 751 NW2d 472 (2008) (opinion by T

AYLOR

, C.J.),

when it calculated a reasonable attorney fee. We agree,

and thus, we vacate and remand for further proceed-

ings.

Robert Lee Auto Sales assigned its retail installment contract and

security agreement with plaintiff to Consumer Portfolio Services, Inc.

(CPSI). CPSI sued plaintiff in district court, after which plaintiff ﬁled a

counterclaim against CPSI and a third-party complaint against defen-

dant. The case was eventually removed to the Ingham Circuit Court.

2015] K

ENNEDY V

OBERT

UTO

ALES

279

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On August 31, 2012, plaintiff purchased a 2003

Chevrolet Impala from defendant. Plaintiff made a

down payment of $2,200 and entered into a retail

installment contract for the remaining balance. She

also granted defendant a security interest in the car.

Defendant subsequently assigned the retail install-

ment contract and security agreement to Consumer

Portfolio Services, Inc. (CPSI).

Plaintiff made only two payments on the retail

installment contract before defaulting. On August 9,

2013, CPSI ﬁled suit against plaintiff in district court,

alleging breach of contract and seeking possession of

the car. Plaintiff

responded to the complaint by ﬁling

answer, a counterclaim, a third-party complaint,

and a motion for removal to the Ingham Circuit Court.

Plaintiff’s third-party complaint raised several claims

against defendant, including that defendant violated

the MMWA and the MCPA.

In November 2013, the

case

was removed to the Ingham Circuit Court by

stipulation of the parties.

CPSI and plaintiff reached a settlement agreement

in which CPSI cancelled plaintiff’s debt and deleted the

matter from her credit history, and plaintiff promised

to return the vehicle to CPSI after her claims against

defendant were resolved. The trial court dismissed the

For the sake of consistency, we will refer to plaintiff in this case as

“plaintiff,” regardless of her designation in the district court action. We

will also apply the same protocol to defendant.

In addition to other allegations of wrongdoing, plaintiff claimed that

contrary to defendant’s speciﬁc representations to her about who had

previously owned the vehicle and the condition it was in when she

purchased it, defendant knew or should have known that the vehicle

had been involved in a serious collision resulting in damage so extensive

that the vehicle was unsafe to operate on the public highways.

280 313 M

ICH

277 [Nov

claims against CPSI, and the case continued between

defendant and plaintiff.

On January 30, 2014, defendant moved for summary

disposition under MCR 2.116(C)(8) and (10). Noting

that one of the counts in plaintiff’s complaint sought

rescission of the sales contract, defendant offered to

refund plaintiff’s down payment of $2,200 in exchange

for the return of the vehicle.

Defendant also argued

that

plaintiff’s remaining claims were meritless.

At a hearing on the motion for summary disposition,

plaintiff’s counsel stated that among other relief, plain-

tiff was seeking a refund of the down payment and the

payments she made on the contract before defaulting.

The trial court suggested that the parties attempt to

reach a settlement in the case. After a short break in

the proceedings, the parties agreed to settle the case

for $2,675.18, which was the amount of plaintiff’s down

payment plus the two monthly installment payments

she had made. In addition, with respect to the “statu-

tory attorney fees” plaintiff sought under the MMWA

and MCPA, the parties agreed to “allow the Court to

make that decision.” The trial court expressly asked

Robert Lee, the owner of defendant company, whether

he understood and agreed to the settlement, which

would allow the court to decide the amount of fees to be

awarded. Lee answered, “I think you can do a fair job,

yes, sir.” With regard to attorney fees, the parties

stated that they would attempt to work out the amount

of fees owed without the court’s involvement, but if

they could not, plaintiff would petition the court to

determine the fee award. The trial court entered a

It is unclear which party will end up with possession of the vehicle.

CPSI is entitled to possession of the vehicle under the terms of plaintiff’s

settlement with CPSI. Defendant could ultimately take possession of

the vehicle if CPSI relinquishes its possession of the vehicle.

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written order memorializing the settlement and stat-

ing, with regard to attorney fees, that “in the event

that the parties are unable to resolve the amount of

statutory attorney fees and costs on their own, Plain-

tiff’s counsel shall notify the Court so that a brieﬁng

and hearing schedule may issue[.]”

In the months that followed, the parties were unable

to resolve the amount of attorney fees, causing plaintiff

to ﬁle a “Petition for Assessment of Statutory Costs

and Attorney Fees Pursuant to Settlement Agree-

ment.” Citing the factors set forth in Smith, plaintiff

requested a total of $14,943.04—$14,267.50 in attor-

ney fees and $675.54 in costs. Attached to the petition

were several documents, including billing records for

this case, the 2010 Economics of Law Practice Survey

published by the State Bar of Michigan, and caselaw

applying the MMWA.

Defendant responded that plaintiff’s costs and fees

should be limited to $891.72, which was

of plaintiff’s

recovery against defendant. Any other amount, accord-

ing to defendant, “would be unfair and inequitable[.]”

Defendant claimed that this is the amount that plain-

tiff “would have actually been charged” to defend

defendant’s motion for summary disposition. Implicit

in this argument was the idea that defendant should

not be liable for paying attorney fees plaintiff incurred

in the proceedings involving CPSI.

After hearing brief arguments from the parties at a

June 4, 2014 hearing, the trial court stated that it was

awarding plaintiff $1,000 in costs and attorney fees:

Okay. Let me just say, this kind of an attorney fee

billing

on a case as nickel and dime as this is far beyond

what I would ever allow in a lawsuit, nor do I feel it’s a fair

amount at all. You are awarded a thousand dollars.

282 313

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277 [Nov

I might also add, there is nothing in this settlement or

agreement here that there was any violation of the Con-

sumer Protection Act. The mere fact that you sue under an

act is no determination by this Court [that] there was a

violation, with all due respect. You get a thousand dollar

attorney fee. Thank you.

The trial court subsequently entered a written order

awarding

plaintiff $1,000 in costs and attorney fees.

Plaintiff now appeals the order as of right.

II. ANALYSIS

We review the trial court’s award of attorney fees for

an abuse of discretion. Moore v Secura Ins, 482 Mich

507, 516; 759 NW2d 833 (2008). “An abuse of discretion

occurs when the trial court’s decision is outside the

range of reasonable and principled outcomes.” Id.

Plaintiff argues that the trial court’s award of attorney

fees was an abuse of discretion because (1) the trial

court failed to apply the framework set forth by our

Supreme Court in Smith and (2) the trial court failed to

consider the remedial purpose of the fee-shifting pro-

visions of the MMWA and the MCPA.

A. PLAINTIFF’S ENTITLEMENT TO ATTORNEY FEES

We begin our analysis by brieﬂy touching on plain-

iff’s entitlement to attorney fees. Although the trial

court awarded attorney fees to plaintiff, it appeared to

doubt plaintiff’s entitlement to such fees, noting that

nothing in the settlement agreement established a vio-

lation of the MCPA, and that “[t]he mere fact that you

sue under an act is no determination by this Court

We note that the trial court’s $1,000 award was for both costs and

attorney fees. Plaintiff’s petition stated that her costs in the action were

$675.54. If true, this left an attorney-fee award of only $324.46.

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[that] there was a violation . . . .” On appeal, defendant

also appears to contest plaintiff’s entitlement to attor-

ney fees.

On this point, we agree with plaintiff that the facts

of this case are substantially similar to the facts of

LaVene v Winnebago Indus, 266 Mich App 470; 702

NW2d 652 (2005). In LaVene, the plaintiffs sued the

defendants under the MCPA and the MMWA, both of

which provide for an award of attorney fees and costs.

Id. at 472, 477-478. See MCL 445.911(2) (“Except in a

class action, a person who suffers loss as a result of a

violation of [the MCPA] may bring an action to

recover actual damages or $250.00, whichever is

greater, together with reasonable attorneys’ fees.”)

(emphasis added); 15 USC 2310(d)(2) (allowing the

recovery of costs, expenses, and attorney fees in an

action under the MMWA). The parties reached a

settlement agreement in which the defendants agreed

to pay the attorney fees and costs owed to the plain-

tiffs under statute or court rule. LaVene, 266 Mich

App at 472. The settlement provided that if the

parties could not agree on the amount of fees and

costs, the trial court would decide the matter. Id. The

parties could not agree on the appropriate amount of

fees and costs. Id. The defendants argued that the

court could not award attorney fees or costs because

the plaintiffs were not a “prevailing party,” given that

there was a settlement between the parties, but no

judgment against the defendants. Id. at 473. In re-

jecting that argument, this Court noted that MCR

2.625(H) recognized that taxation of costs could be

reserved in a settlement. LaVene, 266 Mich App at

474. This Court also concluded that the defendants’

argument was “a moot point, if not disingenuous”

because the defendants agreed to pay the plaintiffs

whatever costs to which they were entitled. Id.

284 313 M

ICH

277 [Nov

The facts of the case at bar are essentially the same.

Plaintiff sued defendant under the MCPA and the

MMWA, and the parties reached a settlement in which

they agreed that if they could not determine the

amount of “statutory attorney fees and costs on their

own,” the trial court would decide the matter. Thus,

any argument that plaintiff was not entitled to statu-

tory attorney fees because there was no judgment

against defendant is without merit. See id.

B. DETERMINING WHETHER S

MITH v KHOURI

APPLIES TO THIS CASE

We next turn our attention to whether the framework

established by our Supreme Court in Smith applies to

the award of attorney fees in this case. For the reasons

discussed below, we hold that it does, and that the trial

court’s award of attorney fees, rendered with virtually

no explanation or examination of the relevant factors,

was an abuse of discretion. In doing so, we note our

belief that the Smith framework applies to all fee-

shifting statutes, even though other panels of this Court

have disagreed with that position. However, given our

conclusion that there is no binding authority to prevent

Smith from applying in this particular case, we ﬁnd it

unnecessary to declare a conﬂict with those prior deci-

sions.

Furthermore, even if the Smith framework

did

not apply, we would hold that the trial court’s cursory

explanation for the award of attorney fees in this case

was an abuse of discretion.

1. OUR SUPREME COURT’S DECISION IN SMITH

v KHOURI

In general, a party is not entitled to an award of

Moreover, declaring a conﬂict is unnecessary because we are bound to

follow our Supreme Court’s decision in Smith rather than the conﬂicting

decisions from this Court. See Charles A Murray Trust v Futrell, 303 Mich

App 28, 48-49; 840 NW2d 775 (2013).

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attorney fees and costs unless such an award is ex-

pressly authorized by statute or court rule. Haliw v

Sterling Hts, 471 Mich 700, 707; 691 NW2d 753 (2005).

At issue in Smith, 481 Mich at 522 (opinion by T

AYLOR

C.J.), was an award of attorney fees under MCR 2.403

as case-evaluation sanctions, and the factors to be

applied in calculating such an award. The lead opinion

in Smith noted

that the party seeking fees has the

burden of establishing the reasonableness of the re-

quested fees. Id. at 528-529. Next, the lead opinion

explained that in assessing reasonableness, our courts

traditionally considered the following six factors set

forth in Wood v DAIIE, 413 Mich 573; 321 NW2d 653

(1982):

“(1) the professional standing and experience of the attor-

ney;

(2) the skill, time and labor involved; (3) the amount

in question and the results achieved; (4) the difﬁculty of

the case; (5) the expenses incurred; and (6) the nature and

length of the professional relationship with the client.”

[Smith, 481 Mich at 529 (opinion by T

AYLOR

, C.J.), quoting

Wood, 413 Mich at 588.]

In addition, explained Smith, courts have traditionally

considered the following eight factors found in Michi-

gan Rule of Professional Conduct (MRPC) 1.5(a), some

of which overlap the Wood factors:

“(1) the time and labor required, the novelty and

difﬁculty

of the questions involved, and the skill requisite

to perform the legal service properly;

Chief Justice T

AYLOR

authored the lead opinion in Smith and was

joined by now Chief Justice Y

OUNG

. Justice C

ORRIGAN

, joined by Justice

ARKMAN

, ﬁled a concurring opinion which “concur[red] with the reason-

ing and result of the lead opinion, with one exception.” Smith, 481 Mich

at 538 (C

ORRIGAN

, J., concurring). The “one exception” concerned the

elimination of certain factors to consider when determining a reasonable

attorney fee for case-evaluation sanctions; the exception is not pertinent

to our discussion of the issues in this case. Justice C

AVANAGH

, joined by

Justices W

EAVER

and K

ELLY

, dissented in Smith.

286 313 M

ICH

277 [Nov

(2) the likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude

other employment by the lawyer;

(3) the fee customarily charged in the locality for

similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the

circumstances;

(6) the nature and length of the professional relation-

ship with the client;

(7) the experience, reputation, and ability of the lawyer

or lawyers performing the services; and

(8) whether the fee is ﬁxed or contingent.” [Smith, 481

Mich at 530 (opinion by T

AYLOR

, C.J.), quoting MRPC

1.5(a).]

Citing Wood, 413 Mich at 588, the lead opinion in

Smith also noted that “[t]he above factors have not

been exclusive, and the trial courts should consider

any additional relevant factors.” Smith 530 (opinion by

AYLOR

, C.J.).

After setting forth the factors in Wood and in MRPC

1.5(a), the lead opinion in Smith announced that “our

current multifactor approach needs some ﬁne-tuning.”

Id. As the initial step in determining the reasonable-

ness of an attorney-fee award, the lead opinion con-

cluded, “a trial court should begin its analysis by

determining the fee customarily charged in the locality

for similar legal services, i.e., factor 3 under MRPC

1.5(a).” Id. Next, the court should multiply the custom-

ary fee “by the reasonable number of hours expended

in the case (factor 1 under MRPC 1.5[a] and factor 2

under Wood).” Id. at 531 (alteration in original). The

product of these numbers “serve[s] as the starting

2015] K

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point for calculating a reasonable attorney fee.” Id.

This starting point, explained the lead opinion, was

designed to “lead to greater consistency in [fee]

awards.” Id. After determining the appropriate start-

ing point, the court “should consider the remaining

Wood/MRPC factors to determine whether an up or

down adjustment is appropriate.” Id.

2. THE REACH OF SMITH’S

FRAMEWORK AND THE

“STARTING POINT” FOR ASSESSING REASONABLENESS

As noted, the Court in Smith, 481 Mich at 522

(opinion by T

AYLOR

, C.J.), framed the issue to be

decided in that case as one involving an award of

case-evaluation sanctions under MCR 2.403(O). The

opinion also noted that MCR 2.403(O)(6) deﬁned “ac-

tual costs” as including “ ‘a reasonable attorney fee

based on a reasonable hourly or daily rate as deter-

mined by the trial judge for services necessitated by

the rejection of the case evaluation . . . .’ ” Smith, 481

Mich at 527 (opinion by T

AYLOR

, C.J.), quoting MCR

2.403(O)(6).

In addition, the opinion discussed the

purpose of imposing case-evaluation sanctions. Smith,

481 Mich at 527-528 (opinion by T

AYLOR

, C.J.). In

particular, the opinion explained that MCR 2.403(O)(6)

is a fee-shifting provision designed “to encourage the

parties to seriously consider the evaluation and pro-

vide ﬁnancial penalties to the party that, as it devel-

ops, ‘should’ have accepted [the case-evaluation award]

but did not.” Id. This type of “encouragement” helped

to not only foster settlements, but “also [to] shift[] the

ﬁnancial burden of trial onto the party who impru-

dently rejected the case evaluation.” Id. at 128.

This “hours times rate” focus bears an unmistakable resemblance to

the “starting point” created in Smith.

288 313 M

ICH

277 [Nov

However, not all of the language in Smith was so

limited to case-evaluation sanctions. For instance, the

Court began its analysis in Smith by describing the

multifactor approach commonly used by courts to de-

termine the reasonableness of an attorney-fee

award—an approach that applied to all attorney-fee

awards—and admitted that the “current multifactor

approach need[ed] some ﬁne-tuning.” Id. at 530. In

announcing that such “ﬁne-tuning” was needed, the

opinion made virtually no mention of case-evaluation

sanctions again, and it did not specify that this new

approach was limited to cases involving attorney fees

awarded as case-evaluation sanctions. In fact, after

stating that this “ﬁne-tuning” was expected to provide

“greater consistency in awards,” Smith did not specify

that this “greater consistency” was only meant for

attorney fees awarded as case-evaluation sanctions.

And when the Court later summarized the new rule it

had established, the lead opinion simply announced a

rule that “a trial court” should use for “determining a

reasonable attorney fee”; the lead opinion did not men-

tion case-evaluation sanctions or state in any way that

the new framework should only be applied to cases

involving case-evaluation sanctions. Id. at 537 (empha-

sis added).

Moreover, in response to criticisms levied by the

dissent in Smith, the lead opinion stated that it sought

to provide a framework that could apply to Michigan’s

other fee-shifting statutes. Id. at 535-536. For in-

stance, the lead opinion acknowledged that selecting a

reasonable hourly rate to use in calculating an

attorney-fee award was “not an exact science . . . .” Id.

at 535. The lead opinion stated that it “merely aim[ed]

to provide a workable, objective methodology for as-

sessing reasonable attorney fees that Michigan courts

can apply consistently to our various fee-shifting rules

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and statutes.” Id. (emphasis added). The lead opinion

further stated that its discussion was intended as

guidance on fee-shifting statutes in general. The lead

opinion criticized the dissenting justices for offering

“no rubric to guide Michigan courts,” and it empha-

sized that “[u]nlike the dissent, we choose to provide

the guidance that has been, and the dissent would

allow to remain, sorely lacking for the many Michigan

courts that are asked to impose ‘reasonable attorney

fees’ under our fee-shifting rules and statutes.” Id. at

536 (emphasis added).

Yet not all of the justices were convinced that the

lead opinion was clear with regard to when the new

framework set forth in Smith should apply. Among

other concerns expressed in his dissenting opinion,

Justice C

AVANAGH

took issue with the lead opinion for

its lack of clarity in this regard:

Does this now mean that the third factor of MRPC 1.5(a)

the starting point for all proceedings under that provi-

sion of our ethical code? Further, does this new rule apply

to other fee-shifting provisions? For example, does the

majority’s test apply to the fee-shifting provisions of the

Uniform Condemnation Procedures Act, MCL 213.66, and

the Michigan Civil Rights Act, MCL 37.2802, each of

which involves reasonable attorney fees? And if today’s

rule only applies to MCR 2.403, what is the basis for such

a limited application of the new rule? [Smith, 481 Mich at

555 (C

AVANAGH

, J., dissenting).]

3. POST-SMITH DEVELOPMENTS

In two post-Smith orders, our Supreme Court ap-

plied the Smith framework to cases involving attorney

fees awarded in Freedom of Information Act (FOIA)

cases and Headlee Amendment cases. Coblentz v Novi,

485 Mich 961 (2009); Adair v Michigan, 494 Mich 852

(2013). The Smith analysis begins with multiplying a

290 313 M

ICH

277 [Nov

reasonable number of hours by a reasonable hourly

rate, and then making adjustments to that amount

based on the Wood/MRPC factors. Notably, a few of the

justices were critical of their colleagues in Juarez v

Holbrook, 483 Mich 970 (2009), for failing to remand

the case for reconsideration in light of Smith. In

Juarez, the Supreme Court denied leave in a case

involving an appeal from this Court’s decision—issued

one day before the Supreme Court issued its decision in

Smith—afﬁrming an award of case-evaluation sanc-

tions. See Juarez v Holbrook, unpublished opinion per

curiam of the Court of Appeals, issued July 1, 2008

(Docket Nos. 275040 and 276312). In separate dis-

sents, Justice C

ORRIGAN

and Justice M

ARKMAN

would

have vacated this Court’s opinion afﬁrming the fee

award and remanded the case for reconsideration in

light of the recently established Smith framework. See

Juarez, 483 Mich at 970 (C

ORRIGAN

, J., dissenting); id.

ARKMAN

, J., dissenting).

This Court’s application of the Smith framework to

fee-shifting statutes and court rules other than MCR

2.403 has been a source of dissension. For instance, in

Adair v Michigan (On Third Remand), 298 Mich App

383, 390; 827 NW2d 740 (2012), overruled in part on

other grounds 494 Mich 852 (2013), a panel of this

Court applied the Smith framework to a Headlee

Amendment case. In doing so, the panel noted that the

“aim” of the Smith framework was “ ‘to provide a

workable, objective methodology for assessing reason-

able attorney fees that Michigan courts can apply

consistently to our various fee-shifting rules and stat-

utes.’ ” Adair (On Third Remand), 298 Mich App at

390, quoting Smith, 481 Mich at 535. At issue in Adair

was Const 1963, art 9, § 32, which governed the costs

to be awarded to plaintiffs who brought actions to

enforce provisions of the Headlee Amendment. Adair

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(On Third Remand), 298 Mich App at 388. Recognizing

that a fee-shifting provision was at issue in that case,

the panel applied the Smith framework to assess the

reasonableness of the attorney-fee award. Id. at 390.

Although our Supreme Court later reversed the Adair

panel’s decision in part, the Court did not overrule the

application of Smith, and in fact, cited Smith in its

order. See Adair, 494 Mich 852.

In addition to Adair, other panels of this Court have

applied the Smith framework to various fee-shifting

statutes. For instance, in Prins v Mich State Police, 299

Mich App 634, 645; 831 NW2d 867 (2013), the panel

applied the Smith framework to an award of attorney

fees in a FOIA case. In addition, in Silich v Rongers,

302 Mich App 137, 149-150; 840 NW2d 1 (2013), the

panel cited to Smith in a case involving an award of

attorney fees under MCR 3.403(C), a court rule that

pertains to the sale of premises and the division of

proceeds as a substitute for partition. And, although it

did so in dicta, the panel in Augustine v Allstate Ins Co,

292 Mich App 408, 429, 434-436; 807 NW2d 77 (2011),

stated that the Smith framework applied to an award

of attorney fees under MCL 500.3148(1) of the no-fault

act when a plaintiff seeks recovery for attorney fees on

an hourly (as compared to a contingent fee) basis.

Further, in several unpublished decisions, this Court

has

applied the Smith framework to other fee-shifting

statutes and in other situations. See, e.g., Demopolis v

Jones, unpublished opinion per curiam of the Court of

Appeals, issued April 16, 2015 (Docket No. 320099)

(applying the Smith framework when awarding attor-

As will be discussed later in this opinion, another panel of this Court

reached a contrary ruling in a published decision involving a contingent

fee. See Univ Rehab Alliance, Inc v Farm Bureau Gen Ins Co of Mich,

279 Mich App 691, 700; 760 NW2d 574 (2008).

292 313 M

ICH

277 [Nov

ney fees on a quantum meruit theory); Annis v Annis,

unpublished opinion per curiam of the Court of Ap-

peals, issued April 16, 2015 (Docket No. 319577) (ap-

plying the Smith framework to an award of attorney

fees as sanctions under MCR 2.114); Barker v Mar-

shall, unpublished opinion per curiam of the Court of

Appeals, issued July 24, 2014 (Docket Nos. 308990 and

311843) (applying Smith to an award of attorney fees

under MCL 600.2919a(1)); Dep’t of Natural Resources

& Environment v Rexair, Inc, unpublished opinion per

curiam of the Court of Appeals, issued November 26,

2013 (Docket No. 297663) (applying Smith to the

assessment of attorney fees associated with the plain-

tiff’s postjudgment motion following a consent judg-

ment); C & D Capital, LLC v Colonial Title Co, unpub-

lished opinion per curiam of the Court of Appeals,

issued May 23, 2013 (Docket Nos. 306927 and 308262)

(applying the Smith framework to an award of attor-

ney fees under MCR 2.114 and MCL 600.2591).

However, other panels have declined to apply the

Smith framework to an award of attorney fees under

fee-shifting statutes or under court rules beyond the

fee-shifting rule that was at issue in Smith, i.e., an

award of fees under MCR 2.403. For instance, in Univ

Rehab Alliance, Inc v Farm Bureau Gen Ins Co of Mich,

279 Mich App 691, 700, 700 n 3; 760 NW2d 574 (2008),

the panel held that the Smith framework applied to an

award of attorney fees under MCR 2.403(O), the fee-

shifting provision at issue in Smith, but not to an

award of attorney fees under MCL 500.3148(1) of the

no-fault act. More recently, in Riemer v Johnson, 311

Mich App 632, 656-657; 876 NW2d 279 (2015), this

Court declined to apply Smith to an award of attorney

fees under MCR 3.206(C)(2)(a), which concerns domes-

tic relations actions. The panel explained that the

Smith framework was limited to an award of attorney

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fees under MCR 2.403(O), emphasizing that the issue in

Smith concerned “ ‘a trial court’s award of “reasonable”

attorney fees as part of case-evaluation sanctions under

MCR 2.403(O) . . . .’ ” Id. at 657, quoting Smith, 481

Mich at 522 (opinion by T

AYLOR

, C.J.). In addition,

several unpublished cases, including unpublished cases

dealing with an award of attorney fees under the

MCPA—one of the statutes at issue in this case—have

declined to apply the Smith framework. See, e.g., Mc-

Neal v Blue Bird Corp, unpublished opinion per curiam

of the Court of Appeals, issued June 12, 2014 (Docket

No. 308763) (declining to apply the Smith framework to

an award of attorney fees under the MCPA); Stariha v

Chrysler Group, LLC, unpublished opinion per curiam

of the Court of Appeals, issued June 28, 2012 (Docket

No. 301238) (declining to apply the Smith framework to

an award of attorney fees under the MCPA and the

MMWA).

4. SMITH SHOULD

APPLY TO THIS CASE

After considering all of the foregoing authorities, we

hold that it is appropriate to apply the Smith frame-

work to the award of attorney fees at issue in this

case.

The Court’s opinion in S

mith indicated that the

rule established there was to be applied to “our

various fee-shifting rules and statutes” and was in-

We note that plaintiff’s entitlement to attorney fees in this case

arises from the settlement’s reference to “statutory attorney fees”—

attorney fees authorized by the MCPA (state law) and the MMWA

(federal law). In Jordan v Transnational Motors, Inc, 212 Mich App 94,

97-98; 537 NW2d 471 (1995), this Court remanded the case to determine

the reasonableness of attorney fees under the MCPA and the MMWA

using the factors in MRPC 1.5(a). See also King v Taylor Chrysler-

Plymouth, Inc, 184 Mich App 204, 221; 457 NW2d 42 (1990) (applying

state law—the Wood factors—to determine the reasonableness of attor-

ney fees awarded under the MMWA). Thus, we see ﬁt to apply state law

to determine the reasonableness of attorney fees in this instance.

294 313

ICH

277 [Nov

tended to provide guidance for “Michigan courts that

are asked to impose ‘reasonable attorney fees’ under

our fee-shifting rules and statutes.” Smith, 481 Mich

at 535-536 (opinion by T

AYLOR

, C.J.). In this regard,

we ﬁnd instructive the reasoning employed in Adair

(On Third Remand), 298 Mich App at 390, when

applying the Smith framework to FOIA’s fee-shifting

provision. Notably, the panel in Adair recognized that

in Smith, our Supreme Court stated that the “aim” of

the new framework was “ ‘to provide a workable,

objective methodology for assessing reasonable attor-

ney fees that Michigan courts can apply consistently

to our various fee-shifting rules and statutes.’ ” Id.,

quoting Smith, 481 Mich at 535 (opinion by T

AYLOR

C.J.). Likewise, in this case, because both the MCPA

and the MMWA contain fee-shifting provisions, we

deem it appropriate to apply the Smith framework.

See Smith, 481 Mich at 535 (opinion by T

AYLOR

, C.J.);

Adair (On Third Remand), 298 Mich App at 390.

In reaching the conclusion that the Smith frame-

work should apply to this and other fee-shifting

statutes and court rules, we are also swayed by the

pronouncement of the lead opinion in Smith, 481

Mich at 530 (opinion by T

AYLOR

, C.J.), that “our

current multi[]factor analysis”—that is, the multifac-

tor analysis of the Wood factors and the factors in

MRPC 1.5(a) used to evaluate reasonableness in

attorney-fee cases—“needs some ﬁne-tuning.” The

lead opinion did not cite anything pertaining to an

award of attorney fees under MCR 2.403—the court

rule under which fees were authorized in Smith—

when making this proclamation; rather, the opinion

simply stated that the analysis currently used to

evaluate the reasonableness of attorney fees “needs

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some ﬁne-tuning.”

Given that no one disputes that

the multifactor analysis applies to an award of attor-

ney fees under the MCPA and the MMWA, we see ﬁt to

apply Smith’s “ﬁne-tuning” to the instant case.

More importantly, we have found no binding au-

hority that would act as an impediment to applying

Smith in the context of MCPA and MMWA actions.

Although defendant directs our attention to this

ourt’s decision in Smolen v Dahlmann Apartments,

Ltd, 186 Mich App 292; 463 NW2d 261 (1990), a case

that precedes Smith by 18 years, we do not agree that

the decision in Smolen prevents us from applying the

Smith framework to this case. In Smolen, the plain-

tiffs were awarded attorney fees under the fee-

In this regard, we also note that the lead opinion proclaimed that

this “ﬁne-tuning” would lead to “greater consistency in awards.” Smith,

481 Mich at 531 (opinion by T

AYLOR

, C.J.). If greater consistency were

truly the goal, it would be reasonable to assume that the consistency

sought was with regard to all attorney-fee awards, not just attorney fees

awarded as case-evaluation sanctions. Indeed, what would be the point

of announcing a rule that would lead to greater consistency in only one

type of attorney-fee award, but would provide no guidance with regard

to other attorney-fee awards?

While we are of the opinion that the framework established in

Smith should apply to our various fee-shifting statutes and court rules,

we need not expressly decide this broader issue and we are careful not

to wade too far into these murky waters, given that this Court has

reached a contrary result in two published decisions. See Riemer, 311

Mich App at 657; Univ Rehab Alliance, 279 Mich App at 700. Instead,

our holding in this regard is simply that the Smith framework applies in

this particular type of case. In other words, regardless whether the

Smith opinion was unambiguous about its application of the Smith

framework and regardless of the analysis in Adair (On Third Remand),

we would still apply the Smith framework to the fee- shifting provisions

in the MCPA and the MMWA.

As noted, there exist two unpublished decisions in which this Court

found that the Smith framework did not apply to an award of attorney

fees under the MCPA. See McNeal, unpub op at 14-15; Stariha, unpub

op at 6. However, we are not bound by these unpublished decisions.

MCR 7.215(C)(1).

296 313

ICH

277 [Nov

shifting provisions of the MCPA. Id. at 293-294. On

appeal, the plaintiffs asked this Court to “set forth

speciﬁc additional items which should be considered

in determining attorney fees.” Id. at 296. Among those

“speciﬁc additional items,” for which they advocated,

the plaintiffs asked this Court to endorse a “starting

point” for the award, which was to consist of a

reasonable number of hours multiplied by a reason-

able rate, and for this starting point to be “presumed

to provide a reasonable fee.” Id. at 296-297. The

plaintiffs also asked this Court to hold that they were

entitled to an upward adjustment in this amount “to

reﬂect exceptional success.” Id. at 297.

The panel in Smolen declined to adopt the plaintiffs’

suggestions. As to the proposed starting point, the

panel declined to adopt “any rigid formula . . . that fails

to take into account the totality of the special circum-

stances applicable to the case at hand.” Id. The panel

also declined to ﬁnd that a reasonable number of hours

multiplied by a reasonable rate was a presumptively

reasonable fee. Id. Further, the panel declined to ﬁnd

that the plaintiffs were entitled to certain upward

adjustments; instead, the panel deferred to the discre-

tion of the trial court. Id.

For several reasons, we decline to read Smolen as

foreclosing our ability to use the Smith framework in

this case. As an initial matter, even if Smolen could be

read to prevent the application of the Smith framework

in MCPA cases, we note that the attorney fees awarded

in this case were awarded, from our review of the

record, under both the MCPA and the MMWA. Indeed,

the settlement in this case refers to “statutory attorney

fees,” and we can no sooner conclude that the fees were

awarded under the MCPA, than we can conclude that

they were awarded under the MMWA. Given the

2015] K

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differences in factual scenarios between this case and

Smolen, and what the plaintiffs in Smolen were asking

this Court to do, we ﬁnd Smolen inapplicable. More-

over, as noted above, Smolen was decided almost 18

years before Smith was decided. We decline to ﬁnd that

the reasoning employed in Smolen could have some-

how preempted the application of a case that was

released nearly two decades later.

In addition, we read Smolen as

being compatible

with the Smith framework. While Smolen purported to

reject a “starting point” of reasonable hours multiplied

by a reasonable hourly rate, it appears that the plain-

tiffs in Smolen wanted this starting point to be a much

less ﬂexible starting point than the starting point set

forth in Smith. To that end, this Court rejected the

proposed starting point as advocated by the plaintiffs

in Smolen, because the plaintiffs pushed for a “rigid

formula” that would have established a presumptively

reasonable fee that “fail[ed] to take into account the

totality of the special circumstances applicable to the

case at hand.” See Smolen, 186 Mich App at 297.

Notably, in Smith, our Supreme Court emphasized

that an attorney-fee award must take into account the

particular circumstances of a case. In fact, Smith even

cited Smolen for this very proposition. See Smith, 481

Mich at 529 (opinion by T

AYLOR

, C.J.), citing Smolen,

186 Mich App at 297. And Smith stands for the

proposition that the trial court has discretion to adjust

the starting point amount depending on pertinent

factors; this is in stark contrast to the starting point at

issue in Smolen, in which the plaintiffs asked this

And to the extent that the holdings of the cases conﬂict, we would be

bound to follow Smith rather than Smolen. See Charles A Murray Trust

v Futrell, 303 Mich App 28, 48-49; 840 NW2d 775 (2013) (this Court is

bound by the decisions of our Supreme Court).

298 313 M

ICH

277 [Nov

Court to adopt a relatively inﬂexible and presump-

tively reasonable starting point, and to declare that

they were entitled to certain adjustments, rather than

leaving adjustments to the discretion of the trial court.

In other words, we ﬁnd that the starting point rejected

in Smolen was much different than the starting point

adopted in Smith. For this reason, we decline to read

Smolen as prohibiting application of the Smith frame-

work to cases involving an award of attorney fees

under the MCPA.

In addition to ﬁnding no authority that would pre-

vent the application of Smith to the instant case, we

conclude that the purposes of the fee-shifting provi-

sions in the MCPA and the MMWA are best served by

applying the Smith framework to an award of attorney

fees under those statutes. “One of the purposes behind

both the [MMWA] and the MCPA is to provide, via an

award of attorney fees, a means for consumers to

protect their rights and obtain judgments where oth-

erwise prohibited by monetary constraints.” Jordan v

Transnational Motors, Inc, 212 Mich App 94, 97-98;

537 NW2d 471 (1995). The MMWA and the MCPA are

remedial in nature and must be liberally construed in

order to achieve their intended goals. See Price v Long

Realty, Inc, 199 Mich App 461, 471; 502 NW2d 337

(1993). We have recognized that fee-shifting provisions

“are essential to legal redress in public interest or

consumer cases in which the monetary value of the

case is often meager.” LaVene, 266 Mich App at 476. As

explained in Jordan, 212 Mich App at 98-99:

In consumer protection as this, the monetary value of

the

case is typically low. If courts focus only on the dollar

value and the result of the case when awarding attorney

fees, the remedial purposes of the statutes in question will

be thwarted. Simply put, if attorney fee awards in these

cases do not provide a reasonable return, it will be

2015] K

ENNEDY V

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299

economically impossible for attorneys to represent their

clients. Thus, practically speaking, the door to the court-

room will be closed to all but those with either potentially

substantial damages, or those with sufﬁcient economic

resources to afford the litigation expenses involved. Such

a situation would indeed be ironic: it is precisely those

with ordinary consumer complaints and those who cannot

afford their attorney fees for whom these remedial acts are

intended.

Still, that is not to say that in MCPA or MMWA cases,

a court should award the full amount of requested fees.

Id. at 99. Rather, a court is to consider “the usual

factors,” and “must also consider the special circum-

stances presented in this type of case.” Id. In Jordan,

this Court concluded that the trial court abused its

discretion when it failed to consider the goals of the

MCPA and the MMWA and limited the plaintiff’s

attorney fees based solely on “the result obtained and

the low value of the case.” Id. at 98.

The remedial nature of the MCPA and the MMWA,

and the policy choices behind awarding attorney fees

under those statutes, support our decision to impose

the Smith framework in this case. As recognized by

this Court in Jordan, 212 Mich App at 98, consumer

protection cases require a “reasonable return” in order

to assure that consumers can retain competent counsel

to pursue claims that promise meager monetary re-

turns. Failing to provide this reasonable return to

“ordinary consumer complaints” effectively closes the

courtroom door on the class of persons to whom the

Legislature and Congress expressly sought to provide

protection. See id. at 98-99. In order to honor the intent

of the fee-shifting provisions found in the MCPA and

the MMWA to assure a “reasonable return,” we ﬁnd it

prudent to operate under the Smith framework, which

begins with the product of a reasonable hourly fee and

300 313 M

ICH

277 [Nov

a reasonable number of hours expended, and makes

adjustments based on a number of factors. We believe

this starting point helps frame the attorney-fee award

in the proper context and helps avoid focusing too

heavily on the results obtained or the low value of the

case. This approach uses a reasonable number of

hours—not the actual number of hours or a number

that encourages a plaintiff’s counsel to bill excessively

based on the promise of an attorney-fee award—as the

starting point for the fee analysis and helps shift the

focus away from an attorney-fee award that is overly

dependent on the outcome achieved. In other words, we

believe that this approach best comports with the

legislatively sanctioned goal of incentivizing compe-

tent counsel to litigate consumer protection cases. At

the same time, this approach ensures that trial courts

have appropriate control over the ultimate award of

fees. And just as in Smith, we believe that using this

approach will lead to more consistency in awards

under the MCPA and the MMWA. See Smith, 481 Mich

at 531 (opinion by T

AYLOR

, C.J.) (having the trial court

consider the amount of money calculated by multiply-

ing a reasonable number of hours by the customary fee

charged in the same area for similar legal services, will

result in greater consistency in awards.). This is not to

say, however, that a trial court should simply award

the amount of fees requested by a party, without any

critical examination. Jordan, 212 Mich App at 99.

Rather, we ﬁnd that the framework set forth in Smith

is the most appropriate framework for honoring the

remedial purpose of the MCPA and the MMWA, and for

achieving the goal of awarding a reasonable fee in

these types of cases.

In this regard, we note that as is the case with most fee-shifting

statutes, there is a punitive nature to the award of attorney fees under

2015] K

ENNEDY V

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301

C. THE TRIAL COURT ABUSED ITS DISCRETION

Having determined that the Smith framework ap-

plies, we next turn our attention to the trial court’s

award of attorney fees in this case. After reviewing the

trial court’s award, we ﬁnd that the court abused its

discretion when it awarded $1,000 in costs and attor-

ney fees to plaintiff’s counsel. The court gave no

consideration to the vast majority of the pertinent

factors, and instead, appeared to focus myopically on

the amount obtained by plaintiff, describing the case

as a “nickel and dime” case.

This was inconsistent

with

the remedial goals of the MCPA and the MMWA.

See Jordan, 212 Mich App at 98 (reversing and re-

manding for further proceedings when the trial court’s

only justiﬁcations for limiting the plaintiff’s attorney

fees were the result obtained and the low value of the

case). See also Smolen, 186 Mich App at 296 (reversing

the trial court’s award of attorney fees because the

trial court did not consider any of the Wood factors). In

addition, the court chastised plaintiff’s counsel at the

end of the hearing for attempting to clarify the record

the MCPA and the MMWA. Indeed, although the statutes are designed

to protect consumers, the award of attorney fees acts, in some ways, as

a penalty against those who have violated the respective acts. In Smith,

481 Mich at 527-528 (opinion by T

AYLOR

, C.J.), our Supreme Court noted

that the “purpose” of the fee-shifting provision of MCR 2.403(O)(6) was

to penalize parties who should have accepted a case-evaluation award,

but did not. Therefore, to the extent that the punitive nature of

case-evaluation sanctions was pertinent to our Supreme Court’s impo-

sition of the Smith framework, the attorney fees awarded in this case

reﬂect the same punitive nature, drawing additional parallels to Smith

and providing further support for our decision to apply Smith in this

case.

Because the court focused solely on the amount of the recovery, our

decision—that the trial court abused its discretion—would be the same

regardless whether we applied the Smith framework or the traditional

multifactor analysis.

302 313

ICH

277 [Nov

and for ﬁling what it termed “pages and pages of

stuff.”

Further, as noted, the trial court appeared to

express doubt about whether plaintiff was even en-

titled to attorney fees, which was incorrect. Accord-

ingly, we are compelled to vacate the trial court’s

award of attorney fees and to remand the case to the

trial court so that it may employ the proper procedures

to its determination of the attorney-fee award.

III. CONCLUSION

In conclusion, we vacate the trial court’s order

awarding

$1,000 in attorney fees and costs to plaintiff,

and we direct the trial court, on remand, to follow the

framework established in Smith. In this regard, the

court

should ﬁrst determine the fee customarily charged in the

locality

for similar legal services. In general, the court

shall make this determination using reliable surveys or

other credible evidence. Then, the court should multiply

that amount by the reasonable number of hours expended

in the case. The court may consider making adjustments

up or down to this base number in light of the other factors

listed in Wood and MRPC 1.5(a). In order to aid appellate

review, the court should brieﬂy indicate its view of each of

the factors. [Smith, 481 Mich at 537 (opinion by T

AYLOR

C.J.).]

While we make no comment on the reasonableness of the requested

fees, we note that plaintiff, as the party requesting attorney fees, bore

the burden of establishing that the requested fees were reasonable, i.e.,

she bore the burden of producing “pages and pages of stuff” to support

the requested fees. See Smith, 481 Mich at 531 (opinion by T

AYLOR

, C.J.).

And our review of the “pages and pages of stuff” reveals that plaintiff

ﬁled documents relating to the pertinent factors to be considered to

determine a reasonable attorney fee, such as billing records, the

Economics of the Law Practice Survey published by the State Bar of

Michigan, as well as documents noting the experience and reputation of

plaintiff’s counsel.

2015] K

ENNEDY V

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303

Vacated and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

ETER

, P.J., and B

ORRELLO

, J., concurred with

ECKERING,

304 313 M

ICH

277 [Nov

SYLVAN TOWNSHIP v CITY OF CHELSEA

Docket No. 323663. Submitted November 4, 2015, at Lansing. Decided

November 24, 2015, at 9:10 a.m.

Sylvan Township brought an action against the city of Chelsea and

Washtenaw County in the Washtenaw Circuit Court, seeking

declaratory relief. Sylvan had entered into development agree-

ments in which it agreed to create a special assessment district

for the construction of water and sewerage systems and later

entered into agreements with Washtenaw County for the issu-

ance of bonds covering the cost of the systems. The bonds were

to be repaid through the special assessments, connection fees,

and user charges. Around the same time, several qualiﬁed

electors petitioned the State Boundary Commission for consid-

eration of the incorporation of Chelsea, a village at the time, as

a home rule city. Sylvan opposed the petition before the com-

mission and in the Ingham Circuit Court. In October 2001,

Chelsea, Sylvan, Lima Township, and a representative of the

petitioners for incorporation entered into a joint settlement

agreement, under which Chelsea agreed to annex less territory

from Sylvan and Sylvan agreed to no longer oppose Chelsea’s

incorporation as a home rule city. The commission recommended

approval of the petition, and, in March 2004, an election was

held at which the new city charter was approved. The village of

Chelsea and the speciﬁed areas from the adjacent townships

became the city of Chelsea at that time. The developers with

whom Sylvan had agreed to establish the special assessment

districts subsequently sued Sylvan for breach of contract, and

the court enjoined Sylvan from collecting the special assess-

ments. Sylvan later brought this action, arguing that Chelsea

assumed a portion of Sylvan’s liabilities when it became a city,

including a share of Sylvan’s liability for repayment of the bond

debt. Sylvan asked the court to declare that Chelsea must

reimburse Sylvan for Chelsea’s share of the debt already paid by

Sylvan and to pay Chelsea’s share of all future payments on the

bonds as they come due. Chelsea moved for summary disposi-

tion. The court, Donald E. Shelton, J., granted the motion.

Sylvan appealed.

2015] S

YLVAN

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305

The Court of Appeals held:

1. A second action will be barred under the doctrine of res

judicata when (1) the ﬁrst action was decided on the merits, (2)

the matter contested in the second action was or could have been

resolved in the ﬁrst, and (3) both actions involve the same parties

or their privies. In this case, the trial court determined that the

doctrine of res judicata barred Sylvan’s claim because the claim

was or could have been resolved in the Ingham Circuit Court

litigation involving the boundary dispute. The Legislature did not

give the State Boundary Commission the general authority to

resolve disputes concerning the succession to property or liabili-

ties that might be occasioned by the incorporation of a new city.

Because the parties could not have resolved the issues involved in

this suit before the commission or in the related litigation

concerning the commission’s actions, the trial court erred as a

matter of law when it applied res judicata to bar Sylvan’s claim.

2. The trial court also determined that Sylvan’s acts and

representations equitably estopped it from claiming that Chelsea

was partially liable on the bonds. In order to establish that

Sylvan’s claim was barred under the doctrine of equitable estop-

pel, Chelsea had to present evidence that Sylvan’s acts or

representations induced Chelsea to believe that Sylvan would not

enforce its rights under MCL 117.14, that Chelsea relied on this

belief, and that Chelsea was prejudiced as a result of its reliance.

Chelsea, however, failed to present any evidence that Sylvan—

either by representations or acts—induced Chelsea to believe

that it would not assert its rights under MCL 117.14. Chelsea also

did not present any evidence that it relied to its detriment on a

belief that Sylvan would not assert its right to have Chelsea pay

its share of the liabilities Sylvan incurred before Chelsea incor-

porated as a home rule city. Although a party may induce reliance

through silence, equitable estoppel will only arise from silence in

circumstances in which the party to be estopped ought to speak

out in order to prevent prejudice to the party relying on the

silence. Chelsea presented no evidence that Sylvan stood by and

neglected its rights under MCL 117.14 while Chelsea changed its

position in reliance on Sylvan’s silence. In the absence of such

evidence, the trial court should have denied Chelsea’s motion for

summary disposition to the extent that it argued that Sylvan’s

claim was barred by equitable estoppel.

3. In the boundary dispute settlement agreement, Sylvan and

Chelsea stated that the agreement related to the boundaries of

the area proposed to be incorporated as a home rule city by

Chelsea. In consideration for the agreement, Sylvan waived its

306 313

ICH

305 [Nov

objections to the legal sufﬁciency of the petition and agreed that

it would not reassert any of the claims originally set forth in the

complaint that Sylvan had ﬁled in Ingham Circuit Court. Chelsea

and Sylvan also agreed that neither party waived any claims,

arguments, positions, or rights except with regard to the matters

before the commission and the sufﬁciency of the petition and

petition process. Sylvan did not voluntarily and intentionally

abandon its right to enforce MCL 117.14 in this agreement.

Because Sylvan did not waive its right to enforce MCL 117.14 in

the settlement agreement, the trial court should have granted

Sylvan’s request for summary disposition with regard to Chel-

sea’s assertion of waiver as a defense.

4. The Legislature did not provide any speciﬁc procedure for

effecting the assumption of liabilities when a newly incorporated

city annexes part of a township under MCL 117.14. The statute

merely provides that, for a new city, the liabilities shall be

assumed by the new city effective as of the date of ﬁling the

certiﬁed copy of the new city’s charter and using the same ratio

provided for cases in which a city annexes a portion of a township.

Because the new city assumes its share of the township’s liabili-

ties by operation of law, the township has no obligation to take

steps to formalize the assumption of liability by the newly formed

city; the township may rely on MCL 117.14 and require the new

city to meet its share of the township’s obligations as those

obligations come due. Chelsea ﬁled its charter in March 2004, and

it assumed by operation of law a proportional share of Sylvan’s

liabilities, as those liabilities existed on that date. Because no

speciﬁc period of limitations encompasses an action to enforce

MCL 117.14, the six-year period of limitations provided under

MCL 600.5813 applied. Any claim that Sylvan had against

Chelsea for an accounting of the debts and liabilities accrued

when Chelsea ﬁrst failed to pay its share of the assumed liability,

without regard to whether Sylvan itself paid Chelsea’s share. To

the extent that Sylvan incurred new or additional liabilities

related to the bonds after the date of Chelsea’s incorporation

(such as by increasing the obligations through misconduct),

Chelsea did not assume any portion of the new or additional debt.

In this case, the trial court did not grant Chelsea’s motion for

summary disposition on the ground that Sylvan’s claim was

time-barred, and the parties did not develop the record sufﬁ-

ciently to identify the applicable accrual date as a matter of law.

It is unclear whether and when Chelsea might have become

obligated to make a payment on the shared liability (assuming

there to be a shared liability). It was also unclear whether laches

might apply to bar Sylvan’s claim. The primary inquiry when

2015] S

YLVAN

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307

applying the doctrine of laches is whether the plaintiff’s failure to

earlier assert his or her claim prejudiced the defendant. On this

record, the Court of Appeals could not determine when it was

practicable for Sylvan to assert its rights or whether Chelsea

suffered prejudice warranting the application of laches. Accord-

ingly, the trial court did not err to the extent that it refused to

dismiss Chelsea’s defenses premised on the period of limitations

and the doctrine of laches.

5. Sylvan relied on MCL 117.14, which is part of the Home

Rule City Act, MCL 117.1 et seq., for the proposition that

Chelsea assumed a portion of its liability on the bonds at issue

when it incorporated as a city. MCL 117.14 addresses the

different ways in which territory might be transferred from one

municipal entity to another and prescribes rules for the dispo-

sition of real property, personal property, and liabilities affected

by the transfer. For purposes of calculating the division of

personal property and liabilities between a village and a town-

ship when the village incorporates as a home rule city, the home

rule city has effectively taken from the township that portion of

the village’s territory that was subject to taxation by the

township. For purposes of dividing liabilities, however, the

proportionate share of the liabilities must be determined sepa-

rately for each liability and must be determined by calculating

the assessed valuation of the property that could lawfully be

taxed to pay the liability. That is, for purposes of calculating the

proportion of a particular liability that a new city must assume

when it incorporates, a township may not include the assessed

valuation of taxable property from any village that was incor-

porated into the city if the township could not have lawfully

levied a tax on that land to pay the liability at issue. Applying

the law to the facts of this case, in accordance with MCL

123.742(2), under which a township cannot levy taxes on the

taxable property in a village that it otherwise has the authority

to tax in order to meet its obligations under a contract with a

county for the acquisition, improvement, enlargement, or exten-

sion of a sewage disposal system, Sylvan could not lawfully levy

a tax on the real property in the former village of Chelsea to pay

its liabilities under the bonds at issue. Consequently, it could not

include any part of the former village of Chelsea’s territory in

calculating the proportion of the liability on that debt, which

Chelsea assumed when it incorporated.

Trial court decision reversed in part, order granting sum-

mary disposition vacated, and case remanded for further pro-

ceedings.

308 313 M

ICH

305 [Nov

1. S

TATUTES —

OME

ULE

ITY

CT —

SSUMPTION OF

IABILITIES

The Legislature did not provide any speciﬁc procedure for effect-

ing the assumption of liabilities when a newly incorporated city

annexes part of a township under MCL 117.14; because the new

city assumes its share of the township’s liabilities by operation

of law, the township has no obligation to take steps to formalize

the assumption of liability by the newly formed city; the town-

ship may rely on MCL 117.14 and require the new city to meet

its share of the township’s obligations as those obligations come

due.

2. S

TATUTES —

OME

ULE

ITY

CT —

SSUMPTION OF

IABILITIES —

ERIOD OF

IMITATIONS —

CCRUAL OF

LAIM

The six-year period of limitations provided under MCL 600.5813

applies to an action seeking a declaration that a newly incorpo-

rated city has failed to pay its share of any liabilities assumed

under MCL 117.14; the claim accrues when the newly incorpo-

rated city ﬁrst fails to pay its share of the assumed liability.

3. S

TATUTES —

OME

ULE

ITY

CT —

SSUMPTION OF

IABILITIES —

ALCULA-

TION OF

ROPORTIONATE

HARE

For purposes of dividing liabilities between a village and a town-

ship when the village incorporates as a home rule city under MCL

117.14, the proportionate share of the liabilities must be deter-

mined separately for each liability and must be determined by

calculating the assessed valuation of the property that could

lawfully be taxed to pay the liability; thus, when calculating the

proportion of a particular liability that a new city must assume

when it incorporates, a township may not include the assessed

valuation of taxable property from any village that was incorpo-

rated into the city if the township could not have lawfully levied

a tax on that land to pay the liability at issue.

Warner Norcross & Judd LLP (by Gaëtan

Gerville-

Réache) for Sylvan Township.

Johnson, Rosati, Schultz & Joppich, PC (by Steven

P. Joppich and Lisa A. Anderson), for the city of

Chelsea.

Before: G

ADOLA

, P.J., and H

OEKSTRA

and M. J. K

ELLY

JJ.

2015] S

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WP V

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309

URIAM

. In this dispute over the obligation to

repay debt on municipal bonds, plaintiff, Sylvan Town-

ship (Sylvan), appeals by right the trial court’s order

granting the motion for summary disposition ﬁled by

defendant, city of Chelsea (Chelsea). On appeal, Syl-

van argues that the trial court erred when it applied

the doctrines of res judicata and equitable estoppel to

bar its claim that Chelsea was obligated to pay a share

of the municipal debt incurred by Sylvan before Chel-

sea incorporated as a home rule city. Because we agree

that the trial court erred when it dismissed Sylvan’s

claim on the grounds that it was barred by res judicata

and equitable estoppel, we reverse and remand.

I. BASIC FACTS

In September 2000, several qualiﬁed electors peti-

tioned

the State Boundary Commission (the Commis-

sion) to consider the incorporation of Chelsea as a

home rule city. Chelsea was a village at the time. The

petitioners’ proposed boundaries for the city included

all the territory of the village and some territory from

Sylvan and Lima Townships. Beginning in March

2001, Sylvan opposed Chelsea’s petition to incorporate

before the Commission and in Ingham Circuit Court.

In accordance with certain development agree-

ments, Sylvan decided to create a special assessment

district for the construction of water and sewerage

systems. It originally proposed the creation of a modest

sewerage system that would serve only the develop-

ments covered by the agreements. The special assess-

ment district was speciﬁcally created to pay for a

wastewater treatment plant in the township. However,

at some point, Sylvan abandoned its plan to construct

its own wastewater treatment plant and instead en-

tered into an agreement to connect with a neighboring

310 313 M

ICH

305 [Nov

township’s system using an interceptor line. The new

project was more expensive than originally proposed.

Sylvan did not pursue a new or revised special assess-

ment to pay for the altered project.

In July 2001, Sylvan entered into agreements with

Washtenaw County for the issuance of $12.5 million in

bonds to cover the construction of the water and

sewerage systems for the township. In the agreements,

the parties noted that Sylvan had created special

assessments that would become due in December 2002

and be collected through December 2021. In the Ofﬁ-

cial Statement on the proposed bonds issued in Sep-

tember 2001 and prepared by a ﬁnancial advisor re-

tained by Washtenaw County, it was stated that

Sylvan intended to “defray” its payments to the county

“through a combination of special assessments, connec-

tion fees and user charges.” The interest payments on

the bonds were to be made in May and November of

each year and were to commence in November 2001.

In October 2001, representatives from Chelsea, Syl-

van, Lima Township, and a representative of the peti-

tioners for incorporation entered into a joint settle-

ment agreement. As part of the settlement, Chelsea

agreed that it would annex less territory from Sylvan

and Sylvan agreed to no longer oppose the incorpora-

tion of Chelsea as a home rule city.

In May 2002, after holding adjudicative hearings,

the Commission recommended approval of the peti-

tion, which would allow a vote on whether Chelsea

should be incorporated as a city through the adoption

of a charter. The Director of the Department of Con-

sumer and Industry Services adopted the Commis-

sion’s recommendation and ﬁndings in June 2002.

Chelsea held an election on the adoption of a charter

for the proposed city in March 2004, and a majority of

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the voters voted for the charter. Accordingly, the village

and the speciﬁed areas from the adjacent townships

became the city of Chelsea at that time.

Sylvan’s water and sewerage systems were operat-

ing on some level by November 2002. See NDC of

Sylvan, Ltd v Sylvan Twp, unpublished opinion per

curiam of the Court of Appeals, issued May 19, 2011

(Docket Nos. 301397 and 301410). In 2003 and 2004,

Sylvan began to have disputes with the developers

with whom it had agreed to establish special assess-

ment districts to cover in part the costs of the water

and wastewater systems. Id. The developers sued

Sylvan on various grounds in 2007 and, in April 2010,

the trial court issued an opinion and order in which it

determined that the special assessments for the sew-

erage system were invalid. Id. The trial court enjoined

Sylvan from collecting the unlawful special assess-

ments against the developers. On appeal, this Court

afﬁrmed the trial court’s decision in relevant part. Id.

In 2010, Sylvan asked Washtenaw County to ap-

prove refunding bonds as a way of reﬁnancing Sylvan’s

obligations to the county. The county agreed and issued

the refunding bonds in March 2010. The statement

concerning the refunding bonds showed that the

county was refunding $9.4 million of the original

bonds. Sylvan tried to get the electors to approve a

property tax increase to cover the payments on the

refunding bonds, but the measure failed. In May 2012,

Sylvan defaulted on its payment of the refunded bonds.

In July 2012, Sylvan entered into a new agreement

with Washtenaw County. In the new agreement, the

parties acknowledged that the special assessments

had been invalidated and that Sylvan had been unable

to get its electors to approve a millage to cover the

refunded bonds. The parties agreed that the county

312 313 M

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305 [Nov

would continue to advance funds to cover Sylvan’s

obligations, but made that agreement contingent on

Sylvan’s electors’ approval of a proposed millage in-

crease. They further agreed that, if the millage passed,

Sylvan would use any taxes collected from the new

millage to repay the funds advanced by the county and

service the debt on the refunded bonds.

In October 2012, Sylvan’s lawyer sent a letter to

Chelsea’s City Manager concerning Sylvan’s bond ob-

ligations. In the letter, Sylvan asserted that, because

Chelsea “took” approximately 41% of Sylvan’s assessed

value when it incorporated as a city, under the Home

Rule City Act, MCL 117.1 et seq., Chelsea assumed 41%

of Sylvan’s liability under the bonds. Sylvan invited

Chelsea to engage in “further dialogue” on the matter

to reach a “consensus as to the amount of [Chelsea’s]

contribution” to the shared obligation. Chelsea dis-

agreed that it had assumed any liability under the

bonds.

In March 2014, Sylvan sued Chelsea for declaratory

relief. It alleged that, under MCL 117.14, Chelsea

assumed a proportionate share of Sylvan’s liabilities

when it became a city, which included a share of

Sylvan’s liability for the repayment of the bond debt

incurred to construct improvements for the treatment

of wastewater. Sylvan asked the trial court to declare

that Chelsea is liable for a proportionate share of

Sylvan’s liabilities under the bond contracts, must

reimburse Sylvan for Chelsea’s share of the debt al-

ready paid by Sylvan, and is obligated to pay its share

of all future payments on the bonds as they come due.

Sylvan amended its complaint in April 2014 to include

Washtenaw County as a defendant.

In August 2014, Chelsea moved for summary dispo-

sition under MCR 2.116(C)(7) and (8). Chelsea argued,

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in relevant part, that Sylvan speciﬁcally waived any

right to contribution that it might have had when it

settled its dispute over Chelsea’s petition to incorpo-

rate. Chelsea further maintained that Sylvan’s claim

was barred under the doctrine of res judicata because

Sylvan raised the issue with the Commission and the

Commission did not require Chelsea to assume any

portion of Sylvan’s liabilities as part of its decision.

Chelsea also argued that Sylvan had to assert its right

to a division of liabilities under MCL 117.14 at the time

of the city’s incorporation and failed to do so. For that

reason, Chelsea asserted, Sylvan’s complaint for de-

claratory relief was untimely. Chelsea similarly argued

that Sylvan unduly delayed asserting its claim, which

prejudiced Chelsea, and engaged in inequitable con-

duct that warranted barring the claim under the

doctrines of laches and equitable estoppel.

The trial court held a hearing on the motion in

August 2014. After the parties presented their argu-

ments, the trial court granted Chelsea’s motion. Citing

the decision by the Commission arising from the dis-

pute over incorporation, the court stated that Sylvan’s

claim was barred by the doctrine of res judicata. The

court also determined that Sylvan’s claim was barred

on equitable grounds:

[T]he Township knew of the existence of this potential

liability

to the County . . . and chose not to assert that

[claim] at the time of . . . the incorporation issue being

before the Boundary Commission and the public. Subse-

quently the Township Board and not the City made

intentional and unlawful decisions that caused the default

on these bonds. . . . [I]t was never intended by anyone that

the City residents would receive any beneﬁt from . . . the

proposed construction that was to [take] place on these

bonds. Nor did . . . the City residents receive any ben-

eﬁt . . . . Subsequently, the Township represented to its

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305 [Nov

own citizens at a millage election that the Township, not

the City and the Township, that the Township was respon-

sible for the entire 12 plus million dollars owed on the

default of these bonds to the County and convinced the

electorate to pass a millage not voted on by the people of

Chelsea but voted on by the people of Sylvan Township to

assume that debt and entered into an agreement with the

County so that that debt could be paid off over a period of

time rather than immediately . . . . Under all . . . those

circumstances I do ﬁnd that the Township is equitably

estopped from making a claim against the City residents

now . . . .

Later that same month, the trial court entered an

order granting Chelsea’s motion for summary disposi-

tion for the reasons stated on the record and dismiss-

ing Sylvan’s claim with prejudice. Sylvan now appeals

in this Court.

II. SUMMARY DISPOSITION

STANDARDS OF REVIEW

Sylvan argues on appeal that the trial court erred

when

it granted Chelsea’s motion for summary dispo-

sition; speciﬁcally, it maintains that the trial court

erred when it applied res judicata and equitable estop-

pel to bar its claim. In considering Chelsea’s motion for

summary disposition, it appears that the trial court

relied on evidence outside the pleadings—including its

own familiarity with the case. Accordingly, we shall

treat the trial court’s decision as though made under

MCR 2.116(C)(10). See Kefgen v Davidson, 241 Mich

App 611, 616; 617 NW2d 351 (2000).

This Court reviews de novo a trial court’s decision on

a motion for summary disposition. Barnard Mfg Co,

Inc v Gates Performance Engineering, Inc, 285 Mich

App 362, 369; 775 NW2d 618 (2009). This Court

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reviews de novo the trial court’s application of legal

and equitable doctrines, including the doctrines of res

judicata and equitable estoppel. Washington v Sinai

Hosp of Greater Detroit, 478 Mich 412, 417; 733 NW2d

755 (2007); McDonald v Farm Bureau Ins Co, 480 Mich

191, 197; 747 NW2d 811 (2008). “This Court also

reviews de novo whether the trial court properly se-

lected, interpreted, and applied the relevant statutes.”

Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d

122 (2013). Finally, this Court reviews de novo the

proper construction of contractual agreements. Rory v

Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23

(2005).

B. RES JUDICATA

The trial court determined that the doctrine of res

judicata

barred Sylvan’s claim because the claim was

or could have been resolved in the litigation involving

the boundary dispute.

The judiciary created the doctrine of res judicata to

“relieve

parties of the cost and vexation of multiple law-

suits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on adjudica-

tion.” Pierson Sand & Gravel, Inc v Keeler Brass Co, 460

Mich 372, 380; 596 NW2d 153 (1999) (quotation marks

and citations omitted). To that end, a second action will be

barred under res judicata “when (1) the ﬁrst action was

decided on the merits, (2) the matter contested in the

second action was or could have been resolved in the ﬁrst,

and (3) both actions involve the same parties or their

privies.” Dart v Dart, 460 Mich 573, 586; 597 NW2d 82

(1999). [Green v Ziegelman, 310 Mich App 436, 444; 873

NW2d 794 (2015).]

The Legislature established the state boundary com-

mission

and delegated to it the authority to approve

incorporations and annexations. See Shelby Charter

316 313 M

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305 [Nov

Twp v State Boundary Comm, 425 Mich 50, 58; 387

NW2d 792 (1986). The Legislature required the Com-

mission to review all petitions and resolutions for the

incorporation of cities or the annexation of territory.

See MCL 123.1007(3); MCL 117.9(2). To that end, the

Commission must determine whether the petition con-

forms to the requirements of the Home Rule City Act.

See MCL 123.1008(2); MCL 117.9(2). The Commission

is also required to conduct a hearing to review whether

the proposed incorporation is reasonable. MCL

123.1008(1) and (3). After the hearing, the Commission

may deny or approve the petition, or approve the

petition with revisions. MCL 123.1010(1). If the Com-

mission denies the petition, the order is ﬁnal. MCL

123.1010(2). If the Commission approves the petition

and the petition becomes ﬁnal, as described by statute,

the electors must then follow the procedures for the

creation of a charter commission. See MCL 123.1010(3)

to (6); MCL 117.15. The proposed city becomes incor-

porated when the electors adopt a charter for the city.

MCL 117.17. If the electors do not adopt a charter

within three years of the Commission’s ﬁnal order of

approval, the incorporation proceedings end. MCL

123.1010(6).

The Commission has broad authority to reject or

approve a proposed incorporation. See Casco Twp v

State Boundary Comm, 243 Mich App 392, 397-398;

622 NW2d 332 (2000). And, when determining whether

a proposed incorporation is reasonable, the Commis-

sion may plainly consider the effect that the proposed

incorporation will have on the ﬁnancial obligations of

the communities affected by the proposal. See MCL

123.1009. But it is equally clear that the Legislature

did not give the Commission the general authority to

resolve disputes concerning the succession to property

or liabilities that might be occasioned by the incorpo-

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ration of a new city; indeed, it provided that the

“[s]uccession to property and liabilities, division of

properties, sharing in revenue from various taxes and

state funds distributable among local units and assess-

ment and collection of taxes in newly incorporated

municipalities shall be governed by the existing provi-

sions of law.” MCL 123.1011. The reference to existing

provisions of law encompasses MCL 117.14. It is also

noteworthy that the Legislature made MCL 117.14

inapplicable when a city annexes a part of a village or

township, except in limited circumstances, and when it

does apply to annexations, the Legislature empowered

the Commission to determine an equitable division of

assets and liabilities. See MCL 117.9(9). By giving the

Commission the authority to make an equitable divi-

sion under a limited set of circumstances and providing

that the division of assets and liabilities is otherwise

governed by existing law, the Legislature impliedly

limited the Commission’s authority to resolve disputes

arising from the incorporation of a new city. As Sylvan

states on appeal, it would also be impractical for the

Commission to address the division of assets and

assumption of liabilities for newly incorporated cities

because the electors could adopt a charter up to three

years after the Commission’s ﬁnal decision. MCL

123.1010(6). During that time, there may be new

liabilities or changes in circumstances that would alter

the equities applicable to the division of property or the

assumption of liabilities.

The Commission had no authority to make an equi-

table division of the assets or determine liabilities

arising from Chelsea’s incorporation as a city. Because

the parties could not have resolved the issues involved

in this suit before the Commission or in the related

litigation concerning the Commission’s actions, the

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305 [Nov

trial court erred as a matter of law when it applied res

judicata to bar Sylvan’s claim. Dart, 460 Mich at 586.

C. EQUITABLE ESTOPPEL

The trial court also determined that Sylvan’s acts

and representations equitably estopped it from now

claiming that Chelsea is partially liable on the bonds.

The doctrine of equitable estoppel has its origins in the

prevention of fraud:

It has its origin in moral duty and public policy; and its

chief

purpose is the promotion of common honesty, and the

prevention of fraud. Where a fact has been asserted, or an

admission made, through which an advantage has been

derived from another, or upon the faith of which another

has been induced to act to his prejudice, so that a denial of

such assertion or admission would be a breach of good

faith, the law precludes the party from repudiating such

representation, or afterwards denying the truth of such

admission. [Hassberger v Gen Builders’ Supply Co, 213

Mich 489, 492-493; 182 NW 27 (1921) (quotation marks

and citation omitted).]

In order to establish that Sylvan’s claim should be

barred

under the doctrine of equitable estoppel, Chel-

sea had to present evidence that Sylvan’s acts or

representations induced Chelsea to believe that Sylvan

would not enforce its rights under MCL 117.14, that

Chelsea relied on this belief, and that Chelsea was

prejudiced as a result of its reliance. See McDonald,

480 Mich at 204-205.

As Sylvan correctly points out on appeal, Chelsea

did not present any evidence to support an inference

that Sylvan—either by representations or acts—

induced Chelsea to believe that it would not assert its

rights under MCL 117.14. Chelsea also did not present

any evidence that it relied to its detriment on a belief

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that Sylvan would not assert its right to have Chelsea

pay its share of the liabilities Sylvan incurred before

Chelsea incorporated as a home rule city. Indeed,

Chelsea’s argument for equitable estoppel centered on

its belief that Sylvan afﬁrmatively waived its rights

under MCL 117.14 when it entered into the agreement

settling the dispute before the Commission and the

related lawsuit, and on the fact that Sylvan did not

earlier assert its rights. As will be discussed later in

this opinion, Sylvan did not afﬁrmatively waive its

rights under MCL 117.14 in the settlement agreement

and, for that reason, the agreement could not have

induced Chelsea to believe that Sylvan would not

assert its rights. In addition, although a party may

induce reliance through silence, equitable estoppel will

only arise from silence under circumstances in which

the party to be estopped ought to speak out in order to

prevent prejudice to the party relying on the silence.

See Lichon v American Universal Ins Co, 435 Mich 408,

415; 459 NW2d 288 (1990) (stating that equitable

estoppel might arise from silence when the party to be

estopped ought to have spoken out); Prout v Wiley, 28

Mich 164, 167 (1873) (stating that equitable estoppel

by silence may apply to a case involving a deed when

the party stands by and watches the other party

improve the property, or expend money, or sell the

property to another without asserting the claim). Here,

there was no evidence that Sylvan stood by and ne-

glected its rights under MCL 117.14 while Chelsea

changed its position in reliance on Sylvan’s silence. In

the absence of such evidence, the trial court should

have denied Chelsea’s motion to the extent that it

argued that Sylvan’s claim was barred by equitable

estoppel.

The trial court also erred to the extent that it

applied equitable estoppel on the basis of evidence that

320 313 M

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305 [Nov

was not in the record. It appears from the trial court’s

statements after oral arguments that it applied equi-

table estoppel in part because it felt that Sylvan

engaged in misconduct that created the problems giv-

ing rise to Sylvan’s inability to meet its bond obliga-

tions. That is, it appears that the trial court found that

it would be inequitable to require Chelsea to assume a

portion of a debt when Sylvan’s misconduct created the

circumstances that made it necessary for Sylvan to pay

the liabilities from its general fund and raise taxes.

The trial court’s belief that Sylvan should alone bear

the burdens of its misconduct does not implicate equi-

table estoppel absent evidence that the purported

misconduct led Chelsea to believe that Sylvan would

not assert its rights and that Chelsea reasonably relied

on the belief to its detriment. McDonald, 480 Mich at

204-205. There is no evidence that Sylvan’s handling of

the dispute with the developers caused Chelsea to

believe that Sylvan would not assert its rights under

MCL 117.14 or that Chelsea relied on such a belief to

its prejudice. Therefore, on this record, we conclude

that the trial court erred when it applied equitable

estoppel to bar Sylvan’s claim.

D. WAIVER

On appeal, Sylvan argues that a plain reading of the

settlement

agreement demonstrates that it did not

waive its rights under MCL 117.14 in that agreement.

It further argues that the trial court should have

granted its request for summary disposition in its favor

on that defense.

In the settlement agreement, Sylvan and Chelsea

(along with the other parties) stated that the agree-

ment related to “the proposed boundaries of the area

proposed to be incorporated as a Home Rule City” by

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Chelsea. They then agreed that the proposed city

would include boundaries with “the limited area” de-

picted in an attached exhibit. In consideration of the

agreement, Sylvan waived its “objections to the legal

sufﬁciency of the Petition in this matter” and agreed

that it would not “reassert any of the claims originally

set forth” in the complaint that Sylvan ﬁled in Ingham

Circuit Court concerning the Commission’s approval of

the petition. Chelsea and Sylvan also agreed that

neither party waived “any claims[,] arguments, posi-

tions or rights,” “except as to this Commission Docket

and except as set forth in paragraph 3 . . . .”

Sylvan did not voluntarily and intentionally aban-

don its right to enforce MCL 117.14 in this agreement.

See Quality Prod & Concepts Co v Nagel Precision, Inc,

469 Mich 362, 374; 666 NW2d 251 (2003). The waiver

provision stated in Paragraph 3 applied to Sylvan’s

right to object to the sufﬁciency of the petition and

petition process. Even reading the waiver in Para-

graph 3 together with Paragraph 6, which referred to

the claims or arguments raised in “this Commission

Docket,” Sylvan cannot be said to have waived its right

to raise a claim that Chelsea assumed a portion of its

liabilities. Although Sylvan informed the Commission

about the debt that Sylvan incurred in constructing its

water and sewerage improvements, it did not raise

that issue in the context of a division of assets or the

assumption of liabilities under MCL 117.14. Instead, it

raised that issue as a factor for consideration by the

Commission when exercising its discretion to approve

the petition. See MCL 123.1009. Therefore, to the

extent that Sylvan waived anything as a result of

bringing that issue up in the “Commission Docket,” it

waived the right to challenge the petition on the

grounds that Chelsea’s incorporation would adversely

affect Sylvan’s ability to meet its bond obligations.

322 313 M

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305 [Nov

Similarly, a review of Sylvan’s complaint in Ingham

Circuit Court shows that Sylvan challenged the valid-

ity of the petition to incorporate Chelsea as a home rule

city. At no point in its petition for interlocutory review

did Sylvan raise a claim or dispute concerning the

division of assets or assumption of liabilities that

might be occasioned by the incorporation.

Because Sylvan did not waive its right to enforce

MCL 117.14 in the settlement agreement, the trial

court should have granted Sylvan’s request for sum-

mary disposition on this defense.

E. LACHES AND THE PERIOD OF LIMITATIONS

Sylvan also argues on appeal that the trial court

erred

when it refused to dismiss Chelsea’s defenses

premised on the period of limitations and laches. More

to the point, Sylvan argues that its claim is plainly

timely because it sued within months after it ﬁrst had

to make a payment from its general fund. Chelsea

counters that Sylvan’s claim is plainly untimely be-

cause it comes years after Chelsea incorporated as a

city.

Sylvan’s claim for declaratory relief depends on the

nature of the claim underlying its request for relief.

See New Prod Corp v Harbor Shores BHBT Land Dev,

LLC, 308 Mich App 638, 646; 866 NW2d 850 (2014).

The Legislature did not provide any speciﬁc procedure

for effecting the assumption of liabilities under MCL

117.14. The statute merely provides that, for a new

city, the liabilities “shall be . . . assumed” by the new

city effective “as of the date of ﬁling the certiﬁed copy

of the charter” and using “the same ratio” provided for

cases in which a city annexes a portion of a township.

MCL 117.14. Because the new city apparently assumes

its share of the township’s liabilities by operation of

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law, the township has no obligation to take steps to

formalize the assumption of liability by the newly

formed city; the township may rely on MCL 117.14 and

require the new city to meet its share of the township’s

obligations as those obligations come due. See Dear-

born Twp v City of Dearborn, 308 Mich 284, 289,

293-294; 13 NW2d 821 (1944).

Chelsea ﬁled its charter in March 2004, and it

assumed

by operation of law a proportional share of

Sylvan’s liabilities, as those liabilities existed on that

date. Sylvan now seeks to compel Chelsea to meet its

obligation to pay its share of Sylvan’s liability on the

bonds at issue. In particular, Sylvan asked the trial

court to order Chelsea to compensate Sylvan for that

portion of the debt on the bonds at issue that should

have been paid by Chelsea, which Sylvan had already

paid, and to apportion liability for the remaining debt

on the bonds. Chelsea responded, in relevant part, by

arguing that Sylvan engaged in conduct that makes it

inequitable for the trial court to apportion any of

Sylvan’s liabilities to Chelsea.

Sylvan’s claim is in the nature of an equitable action

for an accounting or contribution, which requires the

consideration and adjustment of rights among various

parties. See Tkachik v Mandeville, 487 Mich 38, 47;

790 NW2d 260 (2010) (discussing the nature of the

equitable doctrine of contribution); Haylor v Grigg-

Hanna Lumber & Box Co, 287 Mich 127, 133; 283 NW

It should be noted that Sylvan’s creditors may not rely on the

statutory assumption of liability to compel payment directly from

Chelsea. See Turnbull v Alpena Twp Bd of Ed, 45 Mich 496, 499; 8 NW

65 (1881) (“A debt once existing must remain a debt against the

corporation that created it, and its obligation is not destroyed by a

change in corporate limits. If contribution is required, it must be

obtained by the corporation and not by its creditors, unless otherwise

provided by law.”).

324 313

ICH

305 [Nov

1 (1938) (“A resort to equity is necessary whenever

complete and adequate relief requires an adjustment of

diverse rights among the parties, as in adjusting liens,

distributing funds and in matters of account.”). Never-

theless, a claim for contribution under MCL 117.14

does not ﬁt within the traditional framework applied to

an action for contribution by joint tortfeasors; the

traditional claim involves two or more tortfeasors who

caused an injury that resulted in an enforceable judg-

ment. See MCL 600.2925c. Consequently, MCL

600.2925c does not on its face apply to a claim for

contribution under MCL 117.14; because no speciﬁc

period of limitations encompasses an action to enforce

MCL 117.14, we conclude that the six-year period of

limitations provided under MCL 600.5813 applies.

On appeal, Sylvan argues that the accrual date for

its claim should be the same as the accrual for a claim

of contribution by a joint tortfeasor, citing Sziber v

Stout, 419 Mich 514, 533-534; 358 NW2d 330 (1984)

(stating that a claim of contribution accrues when a

judgment has been rendered and the plaintiff has paid

more than his or her share). Given that Chelsea

assumed the liabilities by operation of law, it seems

inapt to require a judgment and an overpayment on

the judgment. Rather, any claim that Sylvan had

against Chelsea for an accounting of the debts and

liabilities accrued when Chelsea ﬁrst failed to pay its

share of the assumed liability, without regard to

whether Sylvan itself paid Chelsea’s share. See MCL

600.5827. To the extent that Sylvan incurred new or

additional liabilities related to the bonds after the date

of Chelsea’s incorporation (such as by increasing the

obligations through misconduct), Chelsea did not as-

sume any portion of the new or additional debt. See

Dearborn Twp, 308 Mich at 290.

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As this Court has recognized, there may be fact

questions that must be resolved in order to determine

when a claim accrued. See Kincaid, 300 Mich App at

523. In this case, the trial court did not grant Chelsea’s

motion for summary disposition on the ground that

Sylvan’s claim was time-barred, and the parties did not

develop the record sufﬁciently to identify the appli-

cable accrual date as a matter of law. It is unclear

whether and when Chelsea might have become obli-

gated to make a payment on the shared liability

(assuming there to be a shared liability). For example,

Sylvan’s agreement with the county provides that the

township will pay principal and interest on the bonds

without regard to the source of the funds used to make

the payments. Stated another way, the obligation ap-

pears to be absolute—it does not apparently depend on

whether there are special assessments. Thus, Chelsea

might have been obligated to pay its share of the

payments immediately after it incorporated, notwith-

standing that there were special assessments available

to Sylvan to make the payments. For that reason,

Sylvan’s failure to assert its rights under MCL 117.14

might be time-barred with respect to the earlier pay-

ments. But see Dearborn Twp, 308 Mich at 295-296

(noting that the right to have contribution does not

arise until a contingent liability becomes a ﬁxed liabil-

ity). It is also unclear how the refunding of the bonds

might have affected the nature and extent of the

liability at issue. Because the parties did not ad-

equately address these issues and did not have occa-

sion to develop the record concerning the timing and

nature of the required payments, we decline to further

address whether and to what extent Sylvan’s claim

might be barred under the applicable period of limita-

tions.

326 313 M

ICH

305 [Nov

For similar reasons, we decline to consider whether

laches might properly apply to bar Sylvan’s claim in

whole or in part; as we have explained, the primary

inquiry when applying the doctrine of laches is

whether the plaintiff’s failure to earlier assert his or

her claim prejudiced the defendant:

Although considerations of timing are important when

determining

whether laches applies to the facts, laches is

not triggered by the passage of time alone. Laches is an

equitable tool used to provide a remedy for the inconve-

nience resulting from the plaintiff’s delay in asserting a

legal right that was practicable to assert. As such, when

considering whether a plaintiff is chargeable with laches,

we must afford attention to prejudice occasioned by the

delay. It is the prejudice occasioned by the delay that

justiﬁes the application of laches. [Knight v Northpointe

Bank, 300 Mich App 109, 114-115; 832 NW2d 439 (2013)

(quotation marks and citations omitted).]

In order to determine whether Chelsea suffered

prejudice

as a result of Sylvan’s delay, it is essential to

determine when it was practicable for Sylvan to assert

its claim. Sylvan argues that it was not practicable

until it became necessary for Sylvan to reﬁnance the

bonds and raise taxes to cover the expenses. But that

assertion may be incorrect. If Chelsea had an obliga-

tion to pay its share earlier—perhaps years earlier—

and Sylvan failed to assert its rights, the trial court

might reasonably conclude that Sylvan should be

charged with laches if the delay prejudiced Chelsea’s

rights. For example, had Sylvan earlier asserted its

rights under MCL 117.14, Chelsea might have been

able to intervene in a way that prevented Sylvan from

jeopardizing the special assessments or might have

been able to otherwise take actions to limit its expo-

sure to liability. On this record, we cannot determine

when it was practicable for Sylvan to assert its rights

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or determine whether Chelsea suffered prejudice war-

ranting the application of laches.

The trial court did not err to the extent that it

refused to dismiss Chelsea’s defenses premised on the

period of limitations or the doctrine of laches.

F. ALTERNATIVE RELIEF

Chelsea argues on appeal that, by referring to terri-

tory that is “taken” from a township, MCL 117.14, the

Legislature intended the division of assets and liabili-

ties to apply only to the annexation of territory from a

township, which necessarily does not include territory

within a neighboring village; namely, Chelsea asks this

Court to distinguish between territory held by a par-

ticular municipality and land subject to taxation by

multiple municipalities. Accordingly, Chelsea asks this

Court to dismiss Sylvan’s claim “for a declaration that

Chelsea owes a share of liability for any territory that

once comprised the Village of Chelsea” under MCR

2.116(C)(8). In its reply, Sylvan argues that this Court

should not consider the issue because Chelsea did not

raise it in a cross-appeal and the issue involves the

extent of Chelsea’s share of the liability rather than

whether it has any liability at all.

Although Chelsea raised this issue in its motion for

summary disposition, the trial court did not address it,

and it does not provide an independent basis for

afﬁrming the trial court’s decision; therefore, Sylvan is

probably correct when it argues that this issue should

have been raised by cross-appeal. See In re Herbach

Estate, 230 Mich App 276, 283-284; 583 NW2d 541

(1998). Nevertheless, there is nothing to prevent Chel-

sea from raising this issue on remand and nothing to

prevent the parties from challenging the trial court’s

resolution of the issue in a subsequent appeal. Because

328 313 M

ICH

305 [Nov

the parties have addressed this issue on appeal and it

is one of law that this Court can decide on the existing

record, in the interests of efﬁciency, we elect to exercise

our discretion to provide further or different relief, as

the case may require, and consider this issue. See MCR

7.216(A)(7).

1. THE GOVERNING MUNICIPAL LAW

In addition to the provisions for counties, Michigan’s

Constitution

recognizes three types of local govern-

ment: townships, villages, and cities. See Const 1963,

art 7, § 14 (giving counties the power to organize and

consolidate townships); Const 1963, art 7, § 17 (provid-

ing that townships are a body corporate); Const 1963,

art 7, § 21 (stating that the Legislature must provide

by general laws for the incorporation of cities and

villages). These entities are often referred to as mu-

nicipal corporations. See City of Roosevelt Park v

Norton Twp, 330 Mich 270, 273; 47 NW2d 605 (1951)

(noting that a township is a municipal corporation);

Maple Grove Twp v Misteguay Creek Intercounty Drain

Bd, 298 Mich App 200, 210-213; 828 NW2d 459 (2012)

(interpreting statutory provisions that refer to cities,

villages, and townships as municipalities). The Consti-

tution gives the Legislature the authority to establish

laws governing the creation, annexation, dissolution,

and interaction of local units of government. See Const

1963, art 7, § 21. The issues in this case involve all

three types of municipalities.

Chelsea was established as a village in the nine-

teenth century. See Wilkinson v Conaty, 65 Mich 614,

615; 32 NW 841 (1887) (noting that the real property at

issue was part of the original plat of the village of

Chelsea and that its owner mortgaged the land in

1867). In 1909, Michigan’s Legislature enacted parallel

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acts governing home rule villages, see 1909 PA 278,

and home rule cities, see 1909 PA 279. The Home Rule

Village Act, MCL 78.1 et seq., and the Home Rule City

Act, MCL 117.1 et seq., as they have been amended

over time, generally govern villages and cities char-

tered after 1909. However, because Chelsea existed as

a village before 1909, Chelsea continued its corporate

character as a village under the General Law Village

Act, MCL 61.1 et seq., which remains in force. See MCL

78.1(2); see also MCL 74.7 (stating that villages incor-

porated before February 1895 are reincorporated au-

tomatically under, and made subject to, the General

Law Village Act). When Chelsea became a city, it did so

under the Home Rule City Act.

2. THE DIVISION OF ASSETS AND LIABILITIES

The adjustment of property and liabilities arising

from

the alteration of municipal boundaries histori-

cally involved only townships and cities. See MCL

123.1. This was because the Legislature treated vil-

lages as component parts of townships. See MCL 123.9

(stating that the act will apply to a village when “it

shall not be a part of any township”). However, after

the enactment of the Home Rule City Act and the

Home Rule Village Act, the Legislature speciﬁcally

addressed the adjustment of rights and liabilities in-

volving the alteration of territorial boundaries for all

three types of municipalities. See MCL 78.10 (provid-

ing for the division of property and the assumption of

liabilities involving the annexation of territory by a

village from a township, village, or city); MCL 117.14

(regulating the division of property and the assump-

tion of liabilities involving the annexation of territory

by a city from a township, village, or city). And, when

either the Home Rule City Act or the Home Rule

330 313 M

ICH

305 [Nov

Village Act applies, it is error for a trial court to adjust

the rights and liabilities of the affected municipalities

using MCL 123.1. See Dearborn Twp, 308 Mich at

289-290.

Sylvan relies on MCL 117.14, which is part of the

Home Rule City Act, for the proposition that Chelsea

assumed a portion of its liability on the bonds at issue

when it incorporated as a city. MCL 117.14 addresses

the different ways in which territory might be trans-

ferred from one municipal entity to another and

prescribes rules for the disposition of real property,

personal property, and liabilities affected by the

transfer.

The Legislature ﬁrst addresses those territorial

transfers to a city from another municipality when the

city acquires ownership of all of the municipality’s

property and assumes all of the municipality’s liabili-

ties:

Whenever an incorporated village is incorporated as a

ity, without change of boundaries, such city shall suc-

ceed to the ownership of all the property of such village

and shall assume all of its debts and liabilities. When-

ever a city, village or township is annexed to a city, the

city to which it is annexed shall succeed to the ownership

of all the property of the city, village or township an-

nexed, and shall assume all of its debts and liabilities.

[MCL 117.14.]

Thus, the statute contemplates that a city will succeed

all of an existing municipality’s property and liabili-

ties in two situations: when a new city is formed from

a village and the boundaries remain the same, and

when an existing city annexes an entire municipality.

The statutory scheme then turns to situations in

which an existing city annexes part—but not all—of

another municipality. When the annexed territory in-

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331

cludes real property, which is owned by the municipal-

ity that is losing the territory, the municipality that

owns the property must sell it and divide the proceeds

with the city annexing the territory:

Whenever a part of a city, village or township is annexed

a city, the real property in the territory annexed which

belongs to the city, village or township from which it is

taken shall be sold by the authorities of the city, village or

township in which said land was located before such

annexation, and that portion of the proceeds of such sale

shall be paid to the city acquiring such territory which

shall be in the same ratio to the whole amount received as

the assessed valuation of the taxable property in the

territory annexed bears to the assessed valuation of the

taxable property in the entire city, village or township

from which said territory is taken. [Id.]

The Legislature provided a similar scheme for the

division of personal property, except that the division

of personal property applies to all of the personal

property owned by the municipality that is losing the

territory without regard to the location of the personal

property:

Whenever a part of a city, village or township is annexed

a city, all of the personal property belonging to any such

city, village or township from which territory is detached

shall be divided between the township, city or village from

which said territory is detached and the city to which the

territory is annexed, in the same ratio as the assessed

valuation of the taxable property in the territory annexed

bears to the assessed valuation of the taxable property in

the entire city, village or township from which said terri-

tory is taken. [Id.]

Likewise, the Legislature provided that the city

annexing

territory from another municipality must

assume a portion of the liabilities of the municipality

losing the territory:

332 313 M

ICH

305 [Nov

The indebtedness and liabilities of every city, village and

township, a part of which shall be annexed to a city shall

be assumed by the city to which the same is annexed in the

same proportion which the assessed valuation of the

taxable property in the territory annexed bears to the

assessed valuation of the taxable property in the entire

city, village or township from which such territory is

taken. Assessed valuation shall be determined in every

division pursuant to this section from the last assessment

roll of the city, village or township which has been con-

ﬁrmed by the board of review. [Id.]

The Legislature also addressed a situation involving

the creation of a new city from a township:

Whenever a new city shall be incorporated, the personal

property of the township from which it is taken shall be

divided and its liabilities assumed between such city and

the portion of the township remaining after such incorpo-

ration, which incorporation shall be effective as of the date

of ﬁling the certiﬁed copy of the charter as hereinafter

provided, in the same ratio as herein provided in case of

the annexation of a part of a township to a city . . . . [Id.]

Because Chelsea incorporated as a new city and the

new

city included territory beyond the village’s exist-

ing boundaries, Sylvan argues that the last quoted

sentence governs the division of assets and liabilities

for this case. In making this argument in the trial

court, Sylvan maintained that Chelsea assumed a

proportion of Sylvan’s indebtedness and liabilities

equal to the proportion of the assessed value of that

portion of the township annexed by the new city as well

as that portion of the village of Chelsea that was in

Sylvan. Using this area to determine the valuation of

the taxable property, Sylvan maintains that Chelsea

assumed approximately 41% of Sylvan’s debts and

liabilities on the day that the electors adopted Chel-

sea’s city charter.

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333

3. SHARE OF LIABILITY

The Legislature provided that, when a village incor-

porates into a city without changing its boundaries, the

new city succeeds to the ownership “of all the property

of such village” and assumes “all of its debts and

liabilities.” MCL 117.14. Notably, the Legislature did

not speciﬁcally address whether the new city would

also assume a portion of the liabilities of any township

that has the authority to levy taxes on property within

the village. Rather, throughout MCL 117.14, the Leg-

islature apparently distinguished between territory

within a particular municipal boundary—a township,

village, or city—and territory subject to assessment;

the Legislature essentially placed villages on the same

footing as any other type of municipality. The Legisla-

ture used the term “territory” in the same way in the

analogous provisions in the Home Rule Village Act,

which the Legislature adopted contemporaneously

with the Home Rule City Act. A village may annex

territory in much the same manner as a city. See MCL

78.2. And, when a village annexes territory from a

township, the village acquires property and assumes

liabilities from the township in the same way that a

city does when it annexes territory from a township.

See MCL 78.10. Because a village that annexes terri-

tory from a township assumes the liabilities of the

township in “the same proportion which the assessed

valuation of the taxable property in the territory an-

nexed bears to the assessed valuation of the taxable

property in the entire city, village or township from

which such territory is taken,” MCL 78.10, it stands to

reason that the Legislature understood that the vil-

lage’s territory is distinct from the territory held by the

township, even if the township has the authority to

levy taxes on land within the village.

334 313 M

ICH

305 [Nov

Notwithstanding the plain language of the statutory

schemes, in an early case, our Supreme Court deter-

mined that a township does not lose territory as a

result of the incorporation of a village. Dearborn Twp,

308 Mich at 296. The Court relied in signiﬁcant part on

the fact that the village’s property could still be taxed

by the township:

The organization of the village of Dearborn prior to the

date

of issuing any of the bonds in suit did not result in

detaching any of the township’s territory, nor relieve the

area within the village boundaries from its proportion of

contingent liability on the special assessment bonds. In

the sense which is controlling in the instant case, none of

the township’s territory was annexed by any municipality

concerned in this litigation until the ﬁrst incorporation of

the city of Dearborn. Prior to that event the village area

continued to be a part of the township and subject to

assessment to meet township obligations. [Id.]

The Court noted that the city of Dearborn incorpo-

ated in 1927 using the territory constituting the

village of Dearborn. Id. at 289. By holding that none

of the township’s territory was annexed by any mu-

nicipality until the city of Dearborn incorporated in

1927, the Court impliedly held that the incorporation

of a village as a city constitutes the taking of territory

from the township that has the authority to tax the

village—even when the boundaries have not changed.

Id. at 296.

Unfortunately, our Supreme Court did not construe

MCL 117.14 in its decision, and did not address the fact

that the Legislature appeared to treat these munici-

palities as distinct territories in the statutory scheme;

the Court simply assumed that a township’s territory

included any territory that it could tax, notwithstand-

ing that the territory fell within a village’s boundaries.

In making the assumption, the Court relied on earlier

2015] S

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335

decisions that did not involve the same statutory

provision. See id. at 296-297, citing Bray v Stewart,

239 Mich 340, 344; 214 NW 193 (1927) (discussing

which electors may vote on a proposed annexation),

and Village of DeWitt v DeWitt Twp, 248 Mich 483-484;

227 NW 787 (1929) (noting that the statute under

consideration made no provision for the division of

assets and liabilities as between a township and a

village arising from the incorporation of a village

within a township). This Court has similarly assumed

that a village’s territory is also the territory of the

township within which it is located. See City of Saug-

atuck v Saugatuck Twp, 157 Mich App 52, 56-58; 403

NW2d 100 (1987); Petersburg v Summerﬁeld Twp, 41

Mich App 639, 641; 200 NW2d 788 (1972).

As Chelsea correctly notes, a township cannot levy

taxes on the taxable property in a village that it

otherwise has the authority to tax in order to meet its

obligations under a contract with a county for the

acquisition, improvement, enlargement, or extension

of a sewage disposal system. See MCL 123.742(1) and

(2). Accordingly, if this Court were to interpret MCL

117.14 to require Chelsea to assume Sylvan’s liabilities

in a proportion that includes that part of the former

village of Chelsea that was subject to taxation by

Sylvan, it would in effect allow Sylvan to do indirectly

under MCL 117.14 what it was directly prohibited from

doing under MCL 123.742(2). Although we believe that

the Legislature intended to treat the territory of a

village as distinct from the township or townships in

which the village lies for purposes of dividing assets

and liabilities under MCL 117.14, we must construe

that statute consistently with our Supreme Court’s

decision in Dearborn Twp. Even applying that decision,

however, we agree that Sylvan cannot include the

territory that was within Chelsea’s village boundaries

336 313 M

ICH

305 [Nov

when determining the proportion of the liability for the

bonds, if any, which Chelsea assumed when it incorpo-

rated as a home rule city.

Because our Supreme Court impliedly determined

that the Legislature used the term “territory” in MCL

117.14 as essentially synonymous with land subject to

taxation, we must give effect to that interpretation.

Accordingly, for purposes of calculating the division of

personal property and liabilities between a village and

a township when the village incorporates as a home

rule city, we hold that the home rule city has effectively

“taken,” MCL 117.14, from the township that portion of

the village’s territory that was subject to taxation by

the township. Dearborn Twp, 308 Mich at 296. For

purposes of dividing liabilities, however, we conclude

that the proportionate share of the liabilities must be

determined separately for each liability and must be

determined by calculating the assessed valuation of

the property that could lawfully be taxed to pay the

liability. That is, applying the reasoning from Dear-

born Twp, we hold that—for purposes of calculating the

proportion of a particular liability that a new city must

assume when it incorporates—a township may not

include the assessed valuation of taxable property from

any village that was incorporated into the city if the

township could not have lawfully levied a tax on that

land to pay the liability at issue.

Applying the law to the facts of this case, Sylvan

could not lawfully levy a tax on the real property in the

former village of Chelsea to pay its liabilities under the

bonds at issue. See MCL 123.742(2). Consequently, it

could not include any part of the former village of

Chelsea’s territory in calculating the proportion of the

liability on that debt, which Chelsea assumed when it

incorporated.

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337

III. CONCLUSION

The trial court erred when it applied the doctrines of

res judicata and equitable estoppel to bar Sylvan’s

claim. Consequently, it erred when it granted Chelsea’s

motion for summary disposition on those grounds. It

also erred when it denied Sylvan’s motion for summary

disposition of Chelsea’s res judicata, equitable estop-

pel, and waiver defenses. The trial court did not,

however, err when it denied Sylvan’s motion for sum-

mary disposition of Chelsea’s defenses premised on the

period of limitations and laches. For these reasons, we

reverse in part the trial court’s decision, vacate its

order granting summary disposition, and remand for

further proceedings. On remand, the trial court shall

enter an order dismissing Chelsea’s res judicata, equi-

table estoppel, and waiver defenses and providing that

the proportion of the liability at issue that Chelsea

must assume, if any, must be calculated without in-

cluding any portion of the assessed taxable value of the

land formerly encompassed by the village of Chelsea.

Trial court decision reversed in part, order granting

summary disposition vacated, and case remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction. None of the parties having

prevailed in full, we order that none may tax costs.

MCR 7.219(A).

ADOLA

, P.J., and H

OEKSTRA

and M. J. K

ELLY

, JJ.,

concurred.

338 313 M

ICH

305 [Nov

PEOPLE v CARLTON

Docket No. 321630. Submitted October 14, 2015, at Lansing. Decided

November 24, 2015, at 9:15 a.m.

Robert M. Carlton was charged in the Isabella County Trial Court,

Criminal District Division, with possession of marijuana, MCL

333.7403(2)(d). Security personnel at Soaring Eagle Casino had

viewed defendant, a registered patient under the Michigan Medi-

cal Marihuana Act, MCL 333.26421 et seq., smoking what ap-

peared to be marijuana in his vehicle in the casino’s parking lot

and called the police. Defendant admitted to the responding

police ofﬁcers that he had been smoking marijuana, and the

ofﬁcers found marijuana in his vehicle. Defendant moved to

dismiss the possession charge, arguing that he was immune from

prosecution under § 4 of the Michigan Medical Marihuana Act,

MCL 333.26424. The court, Thomas Brookover, J., agreed and

granted defendant’s motion to dismiss. The court denied the

prosecution’s motion to amend the complaint to add a charge of

improperly transporting medical marijuana, MCL 750.474(1).

The prosecution appealed in the Isabella County Trial Court,

Criminal Circuit Division, Paul H. Chamberlain, J. The circuit

division afﬁrmed the district division’s denial of the prosecution’s

motion to amend the complaint and the dismissal of the posses-

sion charge. The prosecution ﬁled a delayed application for leave

to appeal in the Court of Appeals. The Court of Appeals entered

an order granting the application with regard to the denial of the

prosecution’s motion to amend. The prosecution sought leave to

appeal that order in the Michigan Supreme Court. In lieu of

granting the application, the Supreme Court remanded the case

to the Court of Appeals for consideration, as on leave granted, of

the additional issue of whether the circuit division correctly

afﬁrmed the dismissal of the possession charge. 497 Mich 957

(2015).

The Court of Appeals held:

1. A qualifying patient who has been issued and possesses a

registry identiﬁcation card is generally immune from prosecution

for possession of medical marijuana under § 4 of the act. The

medical use of marijuana, however, is allowed only to the extent

2015] P

EOPLE V

ARLTON

339

the medical use is carried out in accordance with the act. Section

7(b) of the act, MCL 333.26427(b)(3)(B), speciﬁcally states that

the act does not permit any person to smoke marijuana in any

public place. Accordingly, any person who smokes marijuana in

any public place is not entitled to the immunity provided under

§ 4. Similarly, although a patient may assert, under § 8 of the act,

MCL 333.26428, the medical purpose for using marijuana as a

defense to any prosecution involving marijuana, the § 8 defense is

only available if the defendant was in compliance with

§ 7(b)(3)(B) of the act. Consequently, if defendant was smoking

marijuana in a public place, he was not entitled to assert either

the immunity provided under § 4 or the defense provided under

§ 8. The term “public place” must be given its plain and ordinary

sense, as it would have been understood by the electors. A public

place is generally understood to be any place that is open to or

may be used by the members of the community, or that is

otherwise not restricted to the private use of a deﬁned group of

persons. The relevant inquiry, therefore, is whether the place at

issue is generally open to use by the public. A person’s car is

private property, and, in that sense, one might characterize the

interior space of a car as a place that is private. However, a

parking lot, which is open to the general public, is open for the

speciﬁc purpose of allowing the members of the public to park

their vehicles. The fact that a person in a vehicle in such a

parking lot occupies a place that can be characterized as private

in some limited sense does not alter the fact that the person is at

the same time located in a public place. Accordingly, the exception

to the protections of the Michigan Medical Marihuana Act stated

under MCL 333.26427(b)(3)(B) applies to persons who smoke

medical marijuana in a parking lot that is open to use by the

general public, even when the smoking occurs inside a privately

owned vehicle. This construction of the phrase “any public place”

is consistent with the fact that MCL 333.26427(b)(3)(A) sepa-

rately excludes smoking marijuana on any form of public trans-

portation from the protections afforded under the act. If the

electors understood the term “place,” as used in the phrase “any

public place,” to include the interior of vehicles, there would have

been no need to separately exclude smoking on any form of public

transportation from the protections afforded by the act. In this

case, the undisputed evidence showed that defendant was smok-

ing marijuana in a car that was parked in a parking lot that was

open to the general public. Consequently, under MCL

333.26427(b)(3)(B), defendant was not entitled to assert the

immunity provided under § 4 of the act or the defense provided

under § 8 of the act, and the circuit division erred when it

determined otherwise; the circuit division should have reversed

340 313

ICH

339 [Nov

the district division’s decision to dismiss the possession charge

and remanded the matter to the district division for further

proceedings.

2. A trial court may allow the prosecution to amend a com-

plaint to include a new charge if amendment would not cause

unacceptable prejudice to the defendant because of unfair sur-

prise, inadequate notice, or insufﬁcient opportunity to defend. In

this case, the district division did not state a rationale in support

of its decision to deny the prosecution’s motion for leave to amend.

Given that remand was required because of the resolution of the

ﬁrst issue, rather than deciding this issue on the undeveloped

record, it was appropriate to vacate the district division’s opinion

and order denying the prosecution’s request for leave to amend.

On remand, if the prosecution elects to again move to amend the

complaint, the district division should consider the motion and

articulate a sufﬁcient basis for deciding it to permit meaningful

appellate review of its decision.

Reversed and remanded for further proceedings.

HAPIRO

, J., concurring in part and dissenting in part, agreed

that the district division erred by ﬁnding as a matter of law that

defendant was not in a public place, but concluded that the

majority also erred by ﬁnding as a matter of law that defendant

was in a public place. The question whether a defendant was in a

public place for purposes of the Michigan Medical Marihuana Act

is one that should be determined by the ﬁnder of fact. The

statutory language leaves open the possibility that in some

circumstances a private vehicle can constitute a private place

even though it is located in an area to which the public has access.

MCL 333.26427(b)(3) provides that the medical marijuana pro-

tections do not permit a patient to smoke marijuana on any form

of public transportation or in any public place. The nature of

public transportation is that it is open to the public. It is, by

deﬁnition, a public place. Accordingly, there would be no reason to

separately list public transportation unless the drafters and

electors believed that it was possible for vehicles to be private

places. Defendant asserted a statutory defense to the crime. The

factual validity of the defense was a question for the jury, not for

judges. The judicial role was limited to determining whether

defendant established a prima facie case for his defense, not

whether it ultimately succeeded. Defendant presented prima

facie evidence of his entitlement to immunity. Defendant, there-

fore, should have been permitted to introduce evidence that he

was a lawful marijuana patient, and the trial court should have

instructed the jury to determine whether he was in a public or

private place. If it found the latter, defendant should have been

2015] P

EOPLE V

ARLTON

341

acquitted. Judge S

HAPIRO

concurred in the majority’s decision to

vacate the district division’s ruling denying the prosecution’s

motion to amend the complaint.

TATUTES —

ICHIGAN

EDICAL

ARIHUANA

CT —

MOKING

ARIJUANA IN A

UBLIC

LACE —

UBLIC

LACE

EFINED

Under MCL 333.26427(b)(3)(B), a person who was smoking mari-

juana in a public place is not entitled to assert either the

immunity provided under § 4 or the defense provided under § 8 of

the Michigan Medical Marihuana Act, MCL 333.26424 and MCL

333.26428; the relevant inquiry is whether the place at issue was

generally open to use by the public; a person smoking marijuana

in a privately owned car in a parking lot that is open for use by

the general public is in a public place and is not entitled to assert

either the immunity provided under § 4 or the defense provided

under § 8 of the Michigan Medical Marihuana Act (MCL

333.26421 et seq.).

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, and Risa N. Hunt-Scully,

Prosecuting Attorney, for the people.

Alane & Chartier, PLC (by Mary Chartier), for

defendant.

Before: M. J. K

ELLY

, P.J., and M

URRAY

and S

HAPIRO

JJ.

M. J. K

ELLY

, P.J. In this dispute over the proper

interpretation of the Michigan Medical Marihuana Act,

see MCL 333.26421 et seq., the prosecution appeals by

leave granted the circuit court’s order afﬁrming the

district court’s decision to dismiss the charges against

defendant, Robert Michael Carlton, and denying the

prosecution’s request to amend the complaint. On ap-

peal, we must determine whether the immunity and

defenses provided under the Michigan Medical Mari-

huana Act apply to a person who smokes marijuana in

Although the Legislature used the spelling “marihuana” in the act,

this Court uses the more common spelling, “marijuana,” in its opinions.

342 313 M

ICH

339 [Nov

PINION OF THE

OURT

his or her own car while that car is parked in the

parking lot of a private business that is open to the

general public. We conclude that the protections do not

apply under those circumstances. We also conclude

that the circuit court erred when it afﬁrmed the

district court’s denial of the prosecution’s motion to

amend the complaint. Accordingly, for the reasons

more fully explained later in this opinion, we reverse

and remand for further proceedings.

I. BASIC FACTS

The parties do not dispute the basic facts. In August

2013,

Carlton went to Soaring Eagle Casino and

parked his car in the casino’s parking lot. At around

11:30 at night, security personnel, who were monitor-

ing the casino’s live-feed cameras, saw Carlton smok-

ing what they believed to be marijuana inside his car.

The security personnel called police ofﬁcers and the

ofﬁcers went to the parking lot to investigate. Carlton

admitted to the ofﬁcers that he had been smoking

marijuana and the ofﬁcers saw a marijuana roach on

the car’s dashboard. The ofﬁcers searched the car and

found four bags of marijuana in a Styrofoam cooler

that was on the ﬂoor board of the front passenger’s

seat. Carlton was the only person in the car at the

time.

The prosecutor charged Carlton with misdemeanor

possession of marijuana premised on the evidence that

Carlton was smoking marijuana in a public place. MCL

333.7403(2)(d). Carlton’s trial lawyer moved to dismiss

the charge before the district court.

The district court held a hearing on the motion in

October 2013. Carlton’s lawyer stated that the evidence

showed that Carlton was validly registered as a patient

under the Michigan Medical Marihuana Act and was

2015] P

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smoking in his car. Because his car was not a place

open to the public, she argued that Carlton was im-

mune from prosecution under § 4 of the act. See MCL

333.26424(a). The prosecutor disagreed and argued

that the fact that Carlton was in his car was irrelevant;

the car was located in the casino’s parking lot, which is

a public place. The prosecutor noted that the act

speciﬁcally provides that it does not permit registered

patients to smoke marijuana in a public place. See

MCL 333.26427(b)(3)(B). Accordingly, he maintained,

Carlton was not entitled to immunity under the act.

The prosecutor also requested leave to amend the

complaint to add a charge of improperly transporting

medical marijuana. See MCL 750.474(1).

The district court issued an opinion and order in

November 2013. The district court determined that a

person is not in a public place when he or she is in his

or her car, even if the car is parked in a parking lot that

is open to the public. The district court granted Carl-

ton’s motion for that reason. The district court denied

the prosecutor’s request for leave to amend the com-

plaint.

The prosecution appealed the district court’s deci-

sion in the circuit court. The prosecution argued that

the district court erred when it determined that a car is

not a public place even when parked in a public

parking lot. The prosecution also argued that the

district court abused its discretion when it denied leave

to amend the complaint.

The circuit court held a hearing on the appeal in

February 2014 and issued its opinion and order in

March 2014. The circuit court agreed with the district

court’s ruling that a privately owned automobile is not

a public place within the meaning of MCL

333.26427(b)(3)(B). For that reason, the circuit court

344 313 M

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339 [Nov

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afﬁrmed the district court’s decision to dismiss the

charge and deny leave to amend.

The prosecution then appealed in this Court and

this Court granted leave in September 2014, but only

to consider whether the circuit court erred when it

afﬁrmed the district court’s denial of the prosecution’s

motion for leave to amend.

The prosecution appealed

this

Court’s order to our Supreme Court in October

2014. The prosecution asked the Supreme Court to

remand the matter to this Court for consideration of

both issues. In February 2015, the Supreme Court

granted the prosecution’s request for a remand to this

Court for consideration of both issues. See People v

Carlton, 497 Mich 957 (2015).

II. MOTION TO DISMISS

STANDARD OF REVIEW

The prosecution ﬁrst argues that the lower court

erred

when it interpreted the phrase “any public

place,” as used in MCL 333.26427(b)(3)(B), to exclude

privately owned cars that are parked in parking lots

that are open to the general public. This Court reviews

de novo whether the trial court properly interpreted

and applied the Michigan Medical Marihuana Act.

People v Anderson (On Remand), 298 Mich App 10,

14-15; 825 NW2d 641 (2012).

B. THE PUBLIC-PLACE EXCEPTION

A “qualifying patient who has been issued and

possesses

a registry identiﬁcation card” is generally

immune from prosecution for possession of medical

See People v Carlton, unpublished order of the Court of Appeals,

entered September 18, 2014 (Docket No. 321630).

2015] P

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marijuana under § 4 of the act. MCL 333.26424(a). For

purposes of this appeal, we assume that Carlton is a

qualifying patient and had in his possession a valid

registry identiﬁcation card when he smoked the mari-

juana underlying the charge at issue. See MCL

333.26423(i) and (j). Accordingly, Carlton could qualify

for immunity from prosecution under § 4. Carlton

might also be able to assert “the medical purpose for

using” marijuana as a defense, under § 8 of the act, to

the prosecution for possessing marijuana. See MCL

333.26428(a).

Although the act provides immunity under § 4 and a

defense under § 8, both the immunity and defense

provisions are subject to limitation. When the electors

approved the Michigan Medical Marihuana Act, they

provided that the “medical use of marihuana is allowed”

only to the extent that the medical use was “carried out

in accordance” with the act. MCL 333.26427(a). They

also speciﬁcally stated that the act does not “permit any

person” to smoke marijuana “in any public place.” MCL

333.26427(b)(3)(B). Because the act cannot be inter-

preted to “permit” a person to smoke marijuana in any

public place and the medical use of marijuana is allowed

—that is, permitted—only to the extent that it is carried

out in accordance with the act, it necessarily follows

that any person who smokes marijuana in “any public

place” is not entitled to the immunity provided under

§ 4. Similarly, the electors stated that the defense de-

scribed under § 8 applied to every prosecution involving

marijuana “[e]xcept as provided” under MCL

333.26427(b). MCL 333.26428(a). These provisions in

effect create an exception to the protections afforded

under § 4 and § 8 of the act for situations in which the

patient engages in the conduct listed under MCL

333.26427(b). Consequently, if Carlton was smoking

marijuana in a public place, he would not—as a matter

346 313 M

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339 [Nov

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of law—be entitled to assert either the immunity

provided under § 4, or the defense provided under § 8,

as a challenge to his prosecution for possession of

marijuana in violation of MCL 333.7403(2)(d).

It is undisputed that Carlton was smoking mari-

juana in plain sight while seated in his own car and

that his car was parked in a parking lot that was open

to the public. On appeal, the parties ask this Court to

interpret the phrase “public place,” as used MCL

333.26427(b)(3)(B), by referring to cases involving

other crimes, such as gross indecency, see People v

Lino, 447 Mich 567; 527 NW2d 434 (1994), or disor-

derly conduct, see People v Favreau, 255 Mich App 32;

661 NW2d 584 (2003), which involve acts done in

public or in a public place, or by examining the privacy

expectations informing search and seizure cases, see

United States v Jones, 565 US ___; 132 S Ct 945; 181 L

Ed 2d 911 (2012). We do not agree that the phrase

“public place” has acquired a technical or peculiar

meaning in the law. See People v Bylsma, 493 Mich 17,

31; 825 NW2d 543 (2012). Rather, this phrase must be

given its plain and ordinary sense, as it would have

been understood by the electors. See People v Mazur,

497 Mich 302, 308; 872 NW2d 201 (2015).

In adopting the Michigan Medical Marihuana Act,

the electors balanced the needs of persons suffering

from medical conditions, who might beneﬁt from the

medical use of marijuana, against the public’s contin-

ued interest in restraining the harmful effects of rec-

reational marijuana use. See MCL 333.26422; see also

People v Redden, 290 Mich App 65, 93; 799 NW2d 184

(2010) (O’C

ONNELL

, P.J., concurring) (“[T]he [Michigan

Medical Marihuana Act] reﬂects the practical determi-

nation of the people of Michigan that, while marijuana

is classiﬁed as a harmful substance and its use and

2015] P

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347

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manufacture should generally be prohibited, law en-

forcement resources should not be used to arrest and

prosecute those with serious medical conditions who

use marijuana for its palliative effects.”). The electors

chose to exclude patients who smoke medical mari-

juana in any public place from the protections of the

act as part of the balancing of these interests, and,

presumably, to assure the public and voters that the

smoking of marijuana—even for medical purposes—

would not intrude into the public sphere. MCL

333.26427(b)(3)(B). A “public place” is generally under-

stood to be any place that is open to or may be used by

the members of the community, or that is otherwise not

restricted to the private use of a deﬁned group of

persons. See, e.g., The Oxford English Dictionary (2d

ed, 1991) (deﬁning the adjective “public” to mean “open

to, may be used by, or may or must be shared by, all

members of the community; not restricted to the pri-

vate use of any person or persons; generally acces-

sible”). As Michigan courts have recognized, in common

usage, when persons refer to a public place, the refer-

ence typically applies to a location on real property or a

building. See, e.g., People ex rel Allegan Prosecuting

Attorney v Harding, 343 Mich 41, 47; 72 NW2d 33

(1955) (stating that, as applied to an “inclosure, room, or

building,” a public place is one where, by general invi-

tation, members of the public attend for reasons of

business, entertainment, instruction, or the like, and

are welcome as long as they conform to what is custom-

arily done there) (citation and quotation marks omit-

ted); People v DeVine, 271 Mich 635, 640; 261 NW 101

(1935) (holding that an act of indecent exposure occur-

ring on the front porch of a private dwelling that was

frequented by neighbor children was done in a public

place); Fuller v Hessler, 226 Mich 311, 313; 197 NW 524

(1924) (stating that a privately owned vacant lot is not a

348 313 M

ICH

339 [Nov

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public place within the meaning of an ordinance refer-

ring to streets, alleys, or public places); Westland v

Okopski, 208 Mich App 66, 75-77; 527 NW2d 780

(1994) (holding that the Knights of Columbus Hall was

a public place); People v Adams, 150 Mich App 181,

184; 388 NW2d 254 (1986) (recognizing that the front

steps leading into an apartment are a public place).

The parking lot of a business that is open for the

general public’s use—even if it is intended for the use

of the business’s customers alone—is a public place in

this ordinary sense. See Harding, 343 Mich at 46-47

(holding that the building, which the defendants char-

acterized as a hotel, was a public place because it was

open for use by the general public). The question on

appeal is whether a person ceases to be in the public

place (a parking lot that is open for use by the general

public) while he or she is in a privately owned vehicle.

For purposes of MCL 333.26427(b)(3)(B), we conclude

that a person does not cease to be in a public place

when the person is in a car in a parking lot open for use

by the general public.

It is important to note that, even though smoking

medical marijuana in a public place might or might not

be done “in public,” i.e., in front of others, the electors

did not except the smoking of medical marijuana in

public from the protections afforded under the act;

rather, they provided that a person who smokes medi-

cal marijuana in “any public place” would not be

entitled to the immunity provided under § 4 or the

defense provided under § 8.

MCL 333.26427(b)(3)(B).

We ﬁnd it noteworthy that the electors speciﬁcally excepted smoking

medical marijuana—as opposed to other forms of marijuana delivery—

from the protections afforded under the act when done in “any public

place.” MCL 333.26427(b)(3)(B). By allowing other forms of medical

marijuana use in public places, but removing the protections for

smoking marijuana in public places, the electors expressed a clear policy

2015] P

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349

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Because the electors chose to deﬁne the exception by

reference to the character of the place rather than by

the speciﬁcs attending the act, whether members of the

general public might stumble upon the patient smok-

ing the medical marijuana, or otherwise detect the

patient’s smoking, is not relevant to determining

whether the exception applies. For similar reasons, the

fact that a public place was intended to be used in

private does not alter the public character of that

place. A person who goes into a restroom that is

generally open to the public, enters a stall, and closes

the door, does not thereby transform the stall from a

public place to a private place. Stated another way,

even if a patient successfully conceals his or her

smoking of medical marijuana from detection, the

patient will not be entitled to the protections of the act

if he or she smoked the marijuana in a public place.

The relevant inquiry is whether the place at issue is

generally open to use by the public without reference to

a patient’s efforts or ability to conceal his or her

smoking of marijuana.

A person’s car is private property, and, in that sense,

one

might characterize the interior space of a car as a

“place” that is private, or at least privately owned.

However, a parking lot, which is open to the general

public, is open for the speciﬁc purpose of allowing the

members of the public to park their vehicles.

Never-

theless,

we do not agree that permitting the general

choice: smoking marijuana in a public place should continue to be

criminally prosecuted, even when done for a medical purpose.

Conversely, it follows that, if a patient smokes his or her medical

marijuana in a private place, such as his or her home, the fact that his

or her smoking might be visible to members of the public through a

window would not transform his or her home into a public place.

Because it is not now before us, we do not consider whether the lease

or license of a parking spot or space, such as a space for a recreational

350 313

ICH

339 [Nov

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public to use the lot to park private vehicles transforms

the public character of the lot such that a patient who

smokes marijuana while seated in a vehicle parked in

the parking lot ceases to be in the public lot. The lot

remains a public place and the fact that a person in a

vehicle occupies a place that can be characterized as

private in some limited sense does not alter the fact

that the person is at the same time located in a public

place. See Lansing v Johnson, 12 Mich App 139,

143-144; 162 NW2d 667 (1968) (characterizing the

caselaw discussing unreasonable searches and sei-

zures as “inapposite” in a case involving whether a

defendant who was passed out in his car, which was

parked on a public street, was disorderly in a public

place: “But the point is that this defendant, though in

his car, was in a ‘public place’ and the authorities are

ample in support of that proposition.”). And, as with

the bathroom stall, whether the members of the gen-

eral public are able to see the person smoking medical

marijuana does not alter the public character of the

place. Therefore, we hold that the exception stated

under MCL 333.26427(b)(3)(B) applies to persons who

smoke medical marijuana in a parking lot that is open

to use by the general public, even when smoking inside

a privately owned vehicle, and even if the person’s

smoking is not directly detectable by the members of

the general public who might be using the lot.

This construction of the phrase “any public place” is

also consistent with the electors’ decision to separately

exclude smoking marijuana on “any form of public

transportation” from the protections afforded under

the act. MCL 333.26427(b)(3)(A). If the electors under-

stood the term “place,” as used in the phrase “any

vehicle at a campsite, might transform the public character of the spot

or space for the term of the lease or license.

2015] P

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public place,” to include the interior of vehicles, there

would have been no need to separately exclude smok-

ing on “any form of public transportation” from the

protections afforded by the act, because smoking mari-

juana on public transportation would necessarily con-

stitute smoking marijuana in a public place. See People

v Miller, 498 Mich 13, 25; 869 NW2d 204 (2015)

(stating that courts must give effect to every word,

phrase, and clause and avoid an interpretation that

would render any part of the statute surplusage or

nugatory).

Here, the undisputed evidence showed that Carlton

was smoking marijuana in a car that was parked in a

parking lot that was open to the general public. Con-

sequently, under MCL 333.26427(b)(3)(B), Carlton was

not entitled to assert the immunity provided under § 4

of the act or the defense provided under § 8 of the act,

and the circuit court erred when it determined other-

wise; the circuit court should have reversed the district

court’s decision to dismiss the possession charge and

remanded the matter to the district court for further

proceedings.

III. LEAVE TO AMEND

The prosecution next argues that the circuit court

erred

when it determined that the district court did not

abuse its discretion when it denied leave to amend the

complaint to include a charge that Carlton improperly

transported medical marijuana in violation of MCL

750.474(1). A trial court has the discretion to “amend

an information at any time before, during, or after

trial.” People v Goecke, 457 Mich 442, 459; 579 NW2d

868 (1998), citing MCL 767.76; see also People v

Hutchinson, 35 Mich App 128, 132-134; 192 NW2d 395

(1971) (discussing the nature of a complaint and treat-

352 313 M

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339 [Nov

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ing a motion to amend the complaint in the same

manner as a motion to amend the information). The

trial court may allow the prosecution to amend the

complaint to include a new charge if amendment would

not cause “unacceptable prejudice to the defendant

because of unfair surprise, inadequate notice, or insuf-

ﬁcient opportunity to defend.” People v Hunt, 442 Mich

359, 364; 501 NW2d 151 (1993); see also MCR

6.112(H).

In this case, the district court did not state a

rationale in support of its decision to deny the pros-

ecutor’s motion for leave to amend. Therefore, this

Court—as was true of the circuit court before us—is

left to speculate about the reasoning that led the

district court to conclude that the request for amend-

ment would unacceptably prejudice Carlton. The fact

that the new charge might carry a more severe

penalty is not a sufﬁcient basis to conclude that

Carlton would be unacceptably prejudiced. See Hunt,

442 Mich at 365. Similarly, the fact that Carlton may

not have immunity or a defense under the Michigan

Medical Marihuana Act is not a basis for concluding

that he would be prejudiced; the relevant inquiry is

whether he would have a fair opportunity to meet the

charges against him. Id. at 364. At this stage in the

prosecution, it is also difﬁcult to see how Carlton might

be unduly prejudiced by granting leave to amend. See

People v Munn, 25 Mich App 165, 167; 181 NW2d 28

(1970) (stating that, at such an early stage in the

process, the prosecutor could permissibly have dis-

missed the complaint and warrant and then immedi-

ately issued a new complaint). Moreover, this does not

appear to be a case involving prosecutorial vindictive-

ness. See People v Jones, 252 Mich App 1, 7-8; 650

NW2d 717 (2002). Nevertheless, given our resolution of

the ﬁrst issue, rather than deciding this issue on

2015] P

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353

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the undeveloped record, we elect to exercise our

discretion to grant further or different relief. MCR

7.216(A)(7).

Because we have already determined that it is

necessary to remand this matter to the district court

for further proceedings, we vacate the district court’s

opinion and order denying the prosecutor’s request for

leave to amend. On remand, if the prosecutor elects to

again move to amend the complaint, the trial court

should consider the motion and articulate a sufﬁcient

basis to permit meaningful appellate review of its

decision.

IV. CONCLUSION

The circuit court erred when it afﬁrmed the district

court’s

dismissal of the possession of marijuana charge

against Carlton on the ground that Carlton had immu-

nity under § 4 or a defense under § 8 of the Michigan

Medical Marihuana Act. Because Carlton was smoking

marijuana in a “public place,” MCL 333.26427(b)(3)(B),

he could not assert the immunity or defense provided

under that act. Consequently, the circuit court should

have reversed the district court’s decision and ordered

further proceedings.

For the reasons stated, we reverse the circuit court’s

opinion and order afﬁrming the district court’s opinion

and order. We vacate both opinions and orders in full

and remand this matter to the district court for further

proceedings consistent with this opinion.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

URRAY

, J., concurred with M. J. K

ELLY

, P.J.

354 313 M

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339 [Nov

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HAPIRO

, J. (concurring in part and dissenting in

part). I agree with my colleagues that the district

court erred by ﬁnding as a matter of law that defen-

dant was not in a public place. However, I believe my

colleagues similarly err by ﬁnding as a matter of law

that defendant was in a public place. In my view, the

question whether defendant was in a public place is

one that must ultimately be determined by the ﬁnder

of fact.

My conclusion is grounded in the statutory lan-

guage. MCL 333.26427(b)(3) provides that medical

marijuana protections do not permit a patient to:

(3) Smoke marihuana:

(A)

on any form of public transportation; or

(B) in any public place. [Emphasis added.]

The nature of “public transportation” is that it is open

to the public. It is, by deﬁnition, a “public place.”

Accordingly, there would be no reason to separately list

“public transportation” unless the drafters and electors

believed that it was possible for vehicles to be private

places.

For this reason, I think the majority is too quick to

ignore the commonsense privacy component of a per-

sonal vehicle. The majority examines only whether

the vehicle itself is in a place deﬁned as public. But

the statutory language leaves open the possibility

that in some circumstances a private vehicle can

constitute a private place even though it is located in

an area to which the public has access. While this is

not always the case, I do not think that the drafters

and electors intended to wholly foreclose it as a

matter of law.

Defendant has asserted a statutory defense to the

crime. The factual validity of such defenses is a ques-

2015] P

EOPLE V

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355

PINION BY

HAPIRO

, J.

tion for the jury, not for judges. Our role must be

limited to determining whether defendant can estab-

lish a prima facie case for the defense, not whether it

ultimately succeeds. In my view, defendant has pre-

sented prima facie evidence. Although the parking lot

was available to the public, the record also shows that

defendant was in his closed and private vehicle, that he

was not on public property, that there were no other

people in the relevant area of the parking lot, and that

he was only observed by private security ofﬁcers who

were monitoring the parking lot from some distance by

means of a closed circuit camera. Under these circum-

stances, I see no reason why we are better suited to

deciding the issue than a jury.

Accordingly, although we are reinstating the charge,

defendant should be permitted to introduce evidence

that he is a lawful marijuana patient, and the trial

court should instruct the jury to determine whether he

was in a public or private place. If they ﬁnd the latter,

defendant should be acquitted.

Defendant also claims that the amendment of the

charges against him constituted prosecutorial vindic-

tiveness. I am less sanguine than the majority is with

regard to whether the amendment of the information

was intended to punish defendant for raising grounds

for dismissal. The timing of the additional, and more

serious, charge suggests that it was added to punish

defendant for pursuing dismissal of the initial charges,

which is a violation of due process. See People v Ryan,

451 Mich 30, 35-36; 545 NW2d 612 (1996) (stating that

punishing a person for doing “what the law plainly

allows him to do is a due process violation of the most

basic sort”) (citation and quotation marks omitted);

accord People v Jones, 252 Mich App 1, 7; 650 NW2d

356 313 M

ICH

339 [Nov

PINION BY

HAPIRO

, J.

717 (2002). However, I must agree with the majority

that, without a further record, we cannot properly

review the issue.

Accordingly, I concur in their decision to vacate the

lower court ruling without determining how it should

thereafter rule.

2015] P

EOPLE V

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357

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HAPIRO

, J.

PEOPLE v MASROOR

Docket Nos. 322280, 322281, and 322282. Submitted October 1, 2015, at

Detroit. Decided November 24, 2015, at 9:25 a.m. Convening of

special panel declined 313 Mich App 801. Leave to appeal granted

499 Mich 934.

Mohammad Masroor was convicted by jury in the Wayne Circuit

Court of 10 counts of ﬁrst-degree criminal sexual conduct and

ﬁve counts of second-degree criminal sexual conduct, for sexu-

ally assaulting his three nieces over a period of several years,

beginning in 2000. The court, Michael M. Hathaway, J., sen-

tenced defendant to 35 to 50 years of imprisonment for each of

his 10 convictions of ﬁrst-degree criminal sexual conduct, and to

10 to 15 years of imprisonment for each of his ﬁve convictions of

second-degree sexual conduct. Defendant lived in the same

home with his nieces and was involved in their homeschooling;

he also instructed the girls on the Koran. After moving his

family to Canada, defendant became an imam for a mosque in

Toronto. Defendant’s nieces reported the abuse in 2011. Defen-

dant’s convictions resulted from three separate cases, each

charging defendant with a number of the total of 15 offenses

charged. Defendant appealed his convictions in all three cases.

The cases were consolidated for hearing by the Court of Appeals.

People v Masroor, unpublished order of the Court of Appeals,

issued July 2, 2014 (Docket Nos. 322280, 322281, and 322282).

The Court of Appeals held:

1. The trial court did not abuse its discretion by admitting

evidence that defendant had also sexually assaulted his own

children. Although the trial court erred by admitting the evi-

dence without conducting a balancing test under MRE 403,

there was no error requiring reversal. Even though MCL

768.27a permits the admission of some evidence otherwise

excluded by MRE 404(b), the evidence at issue must still satisfy

the balancing test between probative value and unfair prejudice

as required by MRE 403. In this case, the evidence that

defendant similarly assaulted his own children was highly

probative of defendant’s propensity to sexually abuse children,

and his plan, scheme, or system of committing such acts.

358 313

ICH

358 [Nov

Defendant did not produce any evidence indicating that use of

the other-acts evidence would have created a danger of unfair

prejudice sufﬁcient to outweigh the evidence’s probative value.

2. Defendant’s counsel was not ineffective. Although defense

counsel failed to offer any focused or cogent argument against

the admission of the other-acts evidence, and the failure to do so

may have fallen below objectively reasonable professional stan-

dards, the other-acts evidence would still have been admitted. In

addition, defense counsel was not ineffective for having engaged

in cross-examinations of the witnesses that revealed evidence

more damaging than had been elicited on direct examinations of

the witnesses. Defense counsel was tasked with discrediting the

extraordinarily damaging testimonies of the witnesses. Even

though defense counsel’s cross-examinations revealed a few

additional sexual acts or threats not included in the witnesses’

direct examinations, it was highly unlikely that defense coun-

sel’s strategic decision to impeach the witnesses would have had

any effect on the jury’s verdicts.

3. The Court of Appeals’ decision in People v Steanhouse, 313

Mich App 1 (2015), requires that the instant case be remanded

for evaluation of defendant’s sentences for reasonableness,

which, according to Steanhouse, may be determined by referring

to Michigan’s former standard of review, “the principle of

proportionality.” The principle of proportionality requires that

sentences be proportionate to the seriousness of the circum-

stances surrounding the offense and the offender. The panel

emphasized its disagreement with Steanhouse’s outcome, which

requires pre-Lockridge cases to be remanded for resentencing

according to the procedure in United States v Crosby, 397 F3d

103 (CA 2, 2005) and stated that were it not required to follow

Steanhouse, it would have afﬁrmed defendant’s sentences. The

panel declared a conﬂict with Steanhouse under MCR

7.215(J)(2).

4. Defendant failed to show that his sentences were cruel or

unusual. That is, defendant failed to compare his sentences with

the penalties imposed on other offenders in Michigan for other

crimes or with the penalties imposed for the same crime in other

states. Because he failed to introduce evidence that his sentences

were unreasonable, defendant’s appeal for less-severe sentences

was unavailing.

Convictions afﬁrmed and remanded for sentencing purposes.

AWYER

, J., concurred in the result only.

2015] P

EOPLE V

ASROOR

359

1. E

VIDENCE —

EXUAL

ONDUCT

NVOLVING

INORS —

TATUTORY

UTHORITY TO

DMIT

THER

-A

CTS

VIDENCE —

ROBATIVE

ALUE

ERSUS

NFAIR

REJUDICE

Even when other-acts evidence is admissible under MCL 768.27a, a

trial court must conduct the balancing test found in MRE 403 to

determine whether the danger of unfair prejudice outweighs the

probative value of the evidence.

2. S

ENTENCING —

UIDELINES —

EPARTURE —

EVIEW FOR

EASONABLENESS

A sentence departure under the advisory sentencing guidelines is

reviewed for reasonableness; the principle of proportionality

applies to determining whether a sentence is reasonable.

3. S

ENTENCING —

ONSTITUTIONAL

HALLENGES —

RUEL OR

NUSUAL

UNISH-

MENT —

ACTORS TO

ONSIDER

Showing that a sentence is cruel or unusual requires a defendant to

compare his or her sentence with penalties imposed on other

offenders in Michigan and with penalties imposed for the same

crime in other states.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Kym L. Worthy, Prosecuting

Attorney, Jason W. Williams, Chief of Research, Train-

ing, and Appeals, and Timothy A. Baughman, Special

Assistant Prosecuting Attorney, for the people.

Michael J. McCarthy, PC (by Michael J. McCarthy),

for defendant.

Before: G

LEICHER

, P.J., and S

AWYER

and M

URPHY

, JJ.

URIAM

. A jury convicted defendant of multiple

counts of criminal sexual conduct in these three con-

solidated cases. The complainants were defendant’s

young nieces. Defendant lived in their Detroit home for

several years when the girls were under age 13. They

revealed the abuse many years later.

Defendant challenges the admission of other-acts

evidence, asserts that his counsel performed ineffec-

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tively, and claims that the trial court improperly im-

posed a substantial departure sentence for each con-

viction of ﬁrst-degree criminal sexual conduct.

Although the trial court should have evaluated the

other-acts evidence under MRE 403, this error was

harmless as the evidence qualiﬁed as admissible. Nor

do we discern a ground for reversal regarding counsel’s

performance.

Defendant’s departure sentences present a more

nuanced issue. Because we are bound by this Court’s

recent decision in People v Steanhouse, 313 Mich App

1; 880 NW2d 297 (2015), pursuant to MCR 7.215(J)(1),

we must remand this matter to the trial court for

reconsideration of defendant’s sentences at a hearing

modeled on the procedure set forth in United States v

Crosby, 397 F3d 103 (CA 2, 2005). Were we not obli-

gated to follow Steanhouse, we would afﬁrm defen-

dant’s sentences by applying the federal “reasonable-

ness” standard described in Gall v United States, 552

US 38, 46; 128 S Ct 586; 169 L Ed 2d 445 (2007), which

was speciﬁcally rejected by our colleagues in Stean-

house. Pursuant to MCR 7.215(J)(2), we declare a

conﬂict with Steanhouse so that the procedure estab-

lished by that panel may be more carefully considered

by a larger number of the judges of this Court. In the

meantime, we afﬁrm defendant’s convictions and re-

mand for resentencing pursuant to Steanhouse.

Defendant emigrated from Bangladesh to Detroit in

2000

and moved into his brother’s family home. The

complainants, defendant’s nieces, were then aged 12,

11 and 9. The eldest, RSS, testiﬁed that defendant

began touching her breasts and vagina within days of

his arrival, and penetrated her with his penis a week

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later. The sexual abuse continued even after defen-

dant’s wife and ﬁve children arrived and he had moved

with them to a nearby home in Hamtramck.

Toward the end of 2001, defendant’s second-eldest

niece, MK, questioned RSS in a manner suggesting

that defendant had also abused MK. RSS warned

defendant “to stay away from my sister.” Defendant

“disagreed he was doing anything” with MK. Later,

RSS and defendant forged an agreement that she

would have a “relationship” with defendant if he left

MK alone. Defendant ensured RSS’s silence by threat-

ening that “in our culture if a girl, if she’s not a

virgin . . . then the parents, . . . this is how they can . . .

get her killed.”

MK recalled that defendant persuaded her parents

that she and her younger sister should be homeschooled

when they reached puberty. Defendant offered to tutor

the girls, as he was well-versed in the Koran. He began

sexually abusing MK when the homeschooling com-

menced. The abuse continued even after defendant and

his family moved to their new residence. MK explained

that she cooperated with defendant because he manipu-

lated her by invoking the Koran and insisting that

“[w]e’re the ones . . . making him do this.And it’s not his

fault, so it’s our fault.” Because defendant had studied

theology, MK believed him.

MAB was nine years old when defendant ﬁrst put

her hand on his penis. He penetrated MAB with his

ﬁnger on numerous occasions thereafter. Defendant

guaranteed MAB’s silence by forcing her to take an

“oath” that she would “let him do whatever he want[s]

and I cannot tell him no” in exchange for defendant’s

agreement to ﬁx a computer that MAB incorrectly

believed she had broken. At the end of 2002, defendant

violated her with his penis.

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In 2008, defendant and his family moved to Canada,

where defendant became the imam at a Toronto

mosque. Defendant’s crimes came to light in 2011,

when one of his daughters revealed to her sister and

her mother that defendant had engaged in sexual

intercourse with her. Shortly thereafter, defendant’s

nieces reported defendant’s sexual acts to the police.

The Wayne County prosecutor charged defendant with

multiple counts of criminal sexual conduct involving

the three complainants, and the trial court consoli-

dated the cases for trial. During the trial, the prosecu-

tor presented the testimony of defendant’s ﬁve children

who related that defendant had perpetrated sexual

assaults against them similar to those described by

defendant’s nieces.

The jury convicted defendant of 10 counts of ﬁrst-

degree criminal sexual conduct—4 counts under MCL

750.520b(1)(a) (victim under 13 years of age) and 6

counts based on multiple variables, including MCL

750.520b(1)(b)(ii) (victim at least 13 but less than 16

years of age and a relative). The jury also convicted

defendant of 5 counts of second-degree criminal sexual

conduct, MCL 750.520c(1)(a) (victim under 13 years of

age). The trial court sentenced defendant to 35 to 50

years’ imprisonment for each of his 10 ﬁrst-degree

criminal sexual conduct convictions and 10 to 15 years’

imprisonment for each of his 5 second-degree criminal

sexual conduct convictions. We consolidated defendant’s

three appeals. People v Masroor, unpublished order of

the Court of Appeals, entered July 2, 2014 (Docket Nos.

322280, 322281, and 322282).

Defendant ﬁrst contends that the trial court erred

admitting the other-acts evidence provided by his

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children. During a pretrial motion hearing, the trial

court indicated that it was inclined to allow the evi-

dence based on “a statute . . . that kind of trumps or

transcends” MRE 404(b). The court expressed that

when applying “the statute” to other-acts evidence, it

was “not even required to indulge in the balancing of

prejudicial versus probative. It’s, it’s just in.” Defense

counsel objected to the admission of this evidence by

asserting, “I think there should be some sort of balanc-

ing test.” The trial court ruled the evidence admissible

without engaging in a balancing analysis. On the

fourth day of the trial, the prosecutor directed the trial

court’s attention to People v Watkins, 491 Mich 450,

467; 818 NW2d 296 (2012), which, as we will discuss in

greater detail, most assuredly requires the application

of a “balancing test” for evidence offered under MCL

768.27a, the “statute” referenced by the court.

The trial court repeatedly characterized the testi-

mony at issue as “404(b)” evidence. MRE 404(b)(1)

provides:

Evidence of other crimes, wrongs, or acts is not admis-

sible

to prove the character of a person in order to show

action in conformity therewith. It may, however, be admis-

sible for other purposes, such as proof of motive, opportu-

nity, intent, preparation, scheme, plan, or system in doing

an act, knowledge, identity, or absence of mistake or

accident when the same is material, whether such other

crimes, wrongs, or acts are contemporaneous with, or

prior or subsequent to the conduct at issue in the case.

The prosecutor actually premised his request to admit

the

other-acts evidence on MCL 768.27a rather than

MRE 404(b). MCL 768.27a states:

(1) Notwithstanding section 27 [MCL 768.27, the statu-

tory

analog of MRE 404(b)], in a criminal case in which the

defendant is accused of committing a listed offense against

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a minor, evidence that the defendant committed another

listed offense against a minor is admissible and may be

considered for its bearing on any matter to which it is

relevant. If the prosecuting attorney intends to offer

evidence under this section, the prosecuting attorney shall

disclose the evidence to the defendant at least 15 days

before the scheduled date of trial or at a later time as

allowed by the court for good cause shown, including the

statements of witnesses or a summary of the substance of

any testimony that is expected to be offered.

(2) As used in this section:

(a) “Listed offense” means that term as deﬁned in

section 2 of the sex offenders registration act, 1994 PA295,

MCL 28.722.

(b) “Minor” means an individual less than 18 years of

age.

In W

atkins, 491 Mich at 468, our Supreme Court

concluded that MRE 404(b) and MCL 768.27a irrecon-

cilably conﬂict. While “MRE 404(b) requires the exclu-

sion of other-acts evidence if its only relevance is to

show the defendant’s character or propensity to com-

mit the charged offense,” Watkins, 491 Mich at 468,

MCL 768.27a allows “the admission of evidence that

defendant committed another listed offense ‘for its

bearing on any matter to which it is relevant,’ ” includ-

ing the defendant’s character and propensity to com-

mit the charged offense, Watkins, 491 Mich at 469-470.

Thus, “MCL 768.27a permits the admission of evidence

that MRE 404(b) precludes.” Watkins, 491 Mich at 470.

Parsed out, MCL 768.27a can be rephrased as follows: In

spite

of the statute [MCL 768.27, which codiﬁed what

became the substance of MRE 404(b)] limiting the admis-

sibility of other-acts evidence to consideration for nonchar-

acter purposes, other-acts evidence in a case charging the

defendant with sexual misconduct against a minor is

admissible and may be considered for its bearing on any

matter to which it is relevant. Thus, the statute estab-

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lishes an exception to MRE 404(b) in cases involving a

charge of sexual misconduct against a minor. [Watkins,

491 Mich at 471.]

The Watkins Court further held “that MCL 768.27a is

a valid enactment of substantive law to which MRE

404(b) must yield.” Id. at 475.

Nonetheless, evidence admissible under MCL

768.27a may “be excluded under MRE 403 if ‘its

probative value is substantially outweighed by the

danger of unfair prejudice . . . .’ ” Watkins, 491 Mich at

481, quoting MRE 403. However, “when applying MRE

403 to evidence admissible under MCL 768.27a, courts

must weigh the propensity inference in favor of the

evidence’s probative value rather than its prejudicial

effect. That is, other-acts evidence admissible under

MCL 768.27a may not be excluded under MRE 403 as

overly prejudicial merely because it allows a jury to

draw a propensity inference.” Watkins, 491 Mich at

487.

This does not mean, however, that other-acts evidence

admissible

under MCL 768.27a may never be excluded

under MRE 403 as overly prejudicial. There are several

considerations that may lead a court to exclude such

evidence. These considerations include (1) the dissimilar-

ity between the other acts and the charged crime, (2) the

temporal proximity of the other acts to the charged crime,

(3) the infrequency of the other acts, (4) the presence of

intervening acts, (5) the lack of reliability of the evidence

supporting the occurrence of the other acts, and (6) the

lack of need for evidence beyond the complainant’s and the

defendant’s testimony. This list of considerations is meant

to be illustrative rather than exhaustive. [Watkins, 491

Mich at 487-488 (citations omitted).]

The Supreme Court instructed trial courts to engage in

he MRE 403 balancing analysis with respect “to each

separate piece of evidence offered under MCL 768.27a.”

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Watkins, 491 Mich at 489. If a trial court determines

that MRE 403 does not bar the introduction of other-

acts evidence admissible under MCL 768.27a, a limiting

instruction may be given to ensure that the jury prop-

erly uses the evidence. Watkins, 491 Mich at 490.

Despite the trial court’s lack of familiarity with

Watkins and its failure to perform the requisite balanc-

ing, we discern no error requiring reversal. Defense

counsel sought application of a balancing test, but

never articulated any manner in which an unfairly

prejudicial aspect of the other-acts evidence surpassed

its probity. And on appeal, counsel has failed to shed

any additional light on how or why a danger of unfair

prejudice should have precluded the introduction of the

indisputably probative evidence. In other words, defen-

dant has put nothing on the “prejudice” side of the

scale that might outweigh the evidence’s probative

force. Defendant now insists that the evidence por-

trayed him as a “monster preying on children,” but this

argument falls far short of addressing the relevancy

considerations set forth in Watkins. The evidence was

highly probative of defendant’s propensity to sexually

abuse children and his plan, scheme, or system for

committing such acts, MRE 404(b)(1). The trial court

did not abuse its discretion by admitting it.

III

Defendant next contends that his attorney fur-

nished

constitutionally ineffective assistance by failing

to offer any cogent argument against the admission of

the other-acts evidence, and by conducting cross-

examinations that revealed more damaging evidence

than had been elicited on direct exam. Because defen-

dant did not move for a new trial or an evidentiary

hearing, our review is limited to mistakes apparent on

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the existing record. People v Petri, 279 Mich App 407,

410; 760 NW2d 882 (2008). We review “the ultimate

constitutional question arising from an ineffective as-

sistance of counsel claim de novo.” Id.

In evaluating counsel’s performance we must begin

by assuming that counsel served effectively. People v

Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010).

“To prove a claim of ineffective assistance of counsel, a

defendant must establish that counsel’s performance

fell below objective standards of reasonableness and

that, but for counsel’s error, there is a reasonable

probability that the result of the proceedings would

have been different.” Id. The defendant must overcome

the presumption that counsel’s decisions were sound

trial strategy. People v Hoag, 460 Mich 1, 6; 594 NW2d

57 (1999). Counsel enjoys great latitude in matters of

trial strategy and tactics. People v Pickens, 446 Mich

298, 330; 521 NW2d 797 (1994). That a defense strat-

egy ultimately fails does not establish ineffective as-

sistance of counsel. People v Kevorkian, 248 Mich App

373, 414-415; 639 NW2d 291 (2001).

Trial counsel’s failure to offer a more salient balanc-

ing argument pursuant to Watkins may have fallen

below objectively reasonable professional standards,

but this omission did not affect the outcome of defen-

dant’s trial. Even had counsel advanced a proper

argument, we are conﬁdent that the other-acts evi-

dence would have been admitted. Appellate counsel

has presented no reason to think the evidence was

unfairly prejudicial for the possible reasons listed in

Watkins, or subject to exclusion on any other ground.

Accordingly, no reasonable probability exists that a

timely citation to Watkins or more focused legal rea-

soning would have yielded a different verdict.

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Defendant’s remaining ineffective assistance argu-

ments arise from counsel’s cross-examination of the

complainants. During the three cross-examinations,

counsel attempted to undermine the witnesses’ cred-

ibility by confronting them with excerpts of their

preliminary examination testimony and perceived in-

consistencies in their courtroom statements. While

questioning the three women, counsel referenced sev-

eral sexual acts committed and threats made by defen-

dant that had not been exposed during the complain-

ants’ direct examination.

We disagree that the tactical choices made by de-

fense counsel during cross-examination constitute per-

formance falling below an objective standard of reason-

ableness. “A fair assessment of attorney performance

requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the cir-

cumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time.” Strickland v Washington, 466 US 668, 689; 104

S Ct 2052; 80 L Ed 2d 674 (1984). Given the complain-

ants’ extraordinarily damaging direct testimonies,

counsel was faced with a need to discredit these

witnesses through impeachment. Counsel used the tool

he had available—testimonial inconsistency. His vigor-

ous cross-examinations reﬂected an informed trial

strategy intended to provide the jury with some basis

for disbelieving the complainants, and this approach

fell within the wide range of professionally competent

assistance. Furthermore, the few additional sexual

acts or threats mentioned during the cross-

examinations were highly unlikely to have played any

role in the jury’s verdict. Accordingly, we conclude that

defendant has failed to establish either deﬁcient per-

formance or prejudice.

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We turn to defendant’s sentences. Under the now

advisory sentencing guidelines, the probation depart-

ment calculated defendant’s minimum sentence range

as 108 to 180 months. The trial court recalculated this

range by adding and subtracting points under the prior

record and offense variables, but the range remained

the same. Reasoning that this case “crie[d] out” for a

departure sentence, the court adopted the prosecutor’s

suggestion that defendant serve a term of 35 to 50

years’ imprisonment for each of the 10 counts of

ﬁrst-degree criminal sexual conduct. Defendant’s mini-

mum sentences exceed the maximum minimum sen-

tences calculated under the guidelines by 20 years, or

133%.

Trial counsel objected to the scoring of defendant’s

guidelines pursuant to Alleyne v United States, 570 US

___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013), in

which the United States Supreme Court held that any

fact that increases a defendant’s statutory mandatory

minimum sentence is an “element” of the crime that

must be submitted to a jury. Appellate counsel raises

the same argument. Recently, our Supreme Court

relied on Alleyne in holding that Michigan’s sentencing

scheme, which permits judicial fact-ﬁnding in scoring

the offense and prior record variables, violates the

Sixth Amendment. People v Lockridge, 498 Mich 358,

364; 870 NW2d 502 (2015). The Michigan Supreme

Court remedied that defect by rendering Michigan’s

sentencing guidelines advisory, just as the United

States Supreme Court had done with regard to the

federal sentencing guidelines in United States v

Booker, 543 US 220, 227, 233; 125 S Ct 738; 160 L Ed

2d 621 (2005). Lockridge, 498 Mich at 365.

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Although Michigan’s sentencing guidelines are “con-

stitutionally deﬁcient,” our Supreme Court decreed in

Lockridge that trial courts must still score the offense

and prior record variables and assess the “highest

number of points possible” for each one. Id. at 392 n 28.

A sentencing court is obligated to “consult the appli-

cable guidelines range and take it into account when

imposing a sentence.” Id. at 392. Directly pertinent to

this case, the Supreme Court further held that when a

court has calculated a mandatory minimum sentence

range based on facts not found by a jury, “the sentenc-

ing court may exercise its discretion to depart from

that guidelines range without articulating substantial

and compelling reasons for doing so. A sentence that

departs from the applicable guidelines range will be

reviewed by an appellate court for reasonableness.”

Id., citing Booker, 543 US at 261.

Neither trial nor appellate counsel had the beneﬁt of

Lockridge when they formulated their objections to

defendant’s departure sentences. On appeal, counsel

contends that the trial court lacked substantial and

compelling reasons for the departure sentences, and

that the sentences qualify as disproportionate under

the Eighth Amendment. We construe these legal chal-

lenges as preserved objections to the reasonableness of

defendant’s sentences. In Lockridge, the Supreme

Court did not elaborate on how the reasonableness

standard is to be applied, despite that the sentence in

that case also represented an upward departure from

the guidelines.

The Supreme Court described the departure sen-

tence imposed on Mr. Lockridge as a “minimal (10-

month) departure above the top of the guidelines

minimum sentence range.” Lockridge, 498 Mich at 365

n 2. In imposing this sentence, the trial court offered

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several “substantial and compelling reasons justifying

the departure,” including that

defendant had violated probation orders that forbade him

from being where he was when he killed his wife, that he

killed his wife in front of their three children as they

struggled to stop him from doing so, and that he left the

children at home with their mother dead on the ﬂoor

without concern for their physical or emotional well-being,

which were not factors already accounted for in scoring

the guidelines. [Id. at 366.]

The Supreme Court afﬁrmed the defendant’s sentence

without

further analysis, implicitly ﬁnding it reason-

able but offering no insight as to the proper execution

of the evaluative task.

Although defendants receiving departure sentences

cannot

demonstrate prejudicial error arising from the

calculation of their guidelines, Lockridge clearly in-

structs us to review departure sentences for “reason-

ableness,” id. at 365, 392, and speciﬁcally directs

sentencing courts to “justify the sentence imposed in

order to facilitate appellate review.” Id. at 392. Because

our Supreme Court relied on Booker in erecting a

“reasonableness” standard of review for departure sen-

The Court determined that judicially found facts were used to

increase Lockridge’s mandatory minimum sentence, contravening the

Sixth Amendment. Lockridge, 498 Mich at 399. However, the Supreme

Court did not order a remand for resentencing, explaining: “Because he

received an upward departure sentence that did not rely on the

minimum sentence range from the improperly scored guidelines (and

indeed, the trial court necessarily had to state on the record its reasons

for departing from that range), the defendant cannot show prejudice

from any error in scoring the [offense variables] in violation of Alleyne.”

Id. at 394. Furthermore, the Court indicated in a footnote that “the

reasons articulated by the trial court adequately justiﬁed” the departure

sentence imposed. Id. at 365 n 2. We presume that although the

Supreme Court elected to refrain from conducting a detailed reasonable-

ness analysis in Lockridge, it nevertheless intended that in future cases,

a reasonableness standard would be applied by this Court.

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tences, logic dictates that federal caselaw should in-

form the contours of that standard. In Lockridge, the

Supreme Court traced the evolution of the United

States Supreme Court’s sentencing jurisprudence in

considerable detail, beginning with that Court’s deci-

sion in McMillan v Pennsylvania, 477 US 79; 106 S Ct

2411; 91 L Ed 2d 67 (1986), and culminating in Alleyne.

We would follow a similar tack in elucidating a frame-

work for “reasonableness” review but for this Court’s

opinion in Steanhouse, which commands us to submit

defendant’s sentences to a “proportionality” review

under People v Milbourn, 435 Mich 630; 461 NW2d 1

(1990), by remanding to the trial court for a new

sentencing hearing conducted as prescribed by the

United States Court of Appeals for the Second Circuit

in Crosby.

In the next part of this opinion, we apply Steanhouse

the facts of this case. In Part VI, we set forth the

federal reasonableness standard that we would apply

but for Steanhouse, and in Part VII we explain why the

federal reasonableness standard should be adopted by

a conﬂict panel of this Court and by the Michigan

Supreme Court.

According to Steanhouse,

313 Mich App at 42-48,

this Court reviews a departure sentence for “reason-

ableness” under an abuse-of-discretion standard gov-

erned by whether the sentence fulﬁlls the “principle of

proportionality” set forth in Milbourn “and its prog-

Crosby does not dictate automatic resentencing. Rather, in a Crosby

remand, the court may “ ‘determine whether to resentence, now fully

informed of the new sentencing regime, and if so, to resentence.’ ”

Lockridge, 498 Mich at 396, quoting Crosby, 397 F3d at 117 (emphasis

omitted).

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eny.” In a nutshell, Milbourn’s “principle of proportion-

ality” requires a sentence “to be proportionate to the

seriousness of the circumstances surrounding the of-

fense and the offender.” Milbourn, 435 Mich at 636.

Milbourn instructs that departure sentences “are ap-

propriate where the guidelines do not adequately ac-

count for important factors legitimately considered at

sentencing” so that the sentence range calculated un-

der the guidelines “is disproportionate, in either direc-

tion, to the seriousness of the crime.” Id. at 657. The

extent of the departure must also satisfy the principle

of proportionality. Id. at 660.

We now apply these principles to defendant’s depar-

ture sentences.

After announcing that defendant’s crimes merited

departure sentences, the trial court continued that

although all criminal sexual conduct cases against a

child under 13 years of age are horrible, this case stood

out as “uniquely vile and horrible for many reasons.”

The court noted that there were three complainants

who were family members and who trusted defendant.

The court also mentioned the “vile nature of . . . defen-

dant’s conduct” in using his position as a religious

leader in the family and as the complainants’ teacher

to perpetrate the abuse.

And so the, the violation, the sexual violations that

they

experienced, their own sort of superstition about how

that would be consequential in their lives and what would

happen to them if anybody found out, and that they had to

respect their, their uncle, the imam, even while he [was]

sexually assaulting them really makes this case especially

uniquely horrible in terms of their -- of the psychological

impact that these crimes had on them, and, and the great

trauma that they obviously were experiencing just in

testifying in this case many years after the fact.

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The court observed that defendant was convicted of

15 different acts of criminal sexual conduct, including

10 counts of ﬁrst-degree criminal sexual conduct and 5

counts of second-degree criminal sexual conduct. The

court noted that there was a maximum of 20 points

assessed under Prior Record Variable (PRV) 7 (subse-

quent or concurrent felony convictions) when the of-

fender has two or more subsequent or concurrent

felony convictions. See MCL 777.57(1)(a). The court

observed that the variables may be used “as a spring-

board for articulating reasons for a departure[.]” Here,

the court stated, there were 14 contemporaneous

felony convictions.

So just on the basis of the verdict alone we can easily

score

140 [points] on PRV 7 which would just all by itself

push the defendant way over into the top grid on his PRV

points.

So [the prosecutor] was not just blowing these numbers

out of his ear when he suggested that an appropriate

sentence would be 35 to 50 years. There is a basis in the

sentencing guidelines themselves if one ﬁnds, as I do, that

PRV 7, the score on PRV 7 has [been] given inadequate

impact given the crimes that the defendant committed.

The court next noted that Offense Variable (OV) 4

(psychological

injury to the victim) requires the assess-

ment of 10 points for psychological injury to a victim

requiring professional treatment. See MCL

777.34(1)(a). The court stated that because there were

three victims, “[W]e could, you know, theoretically give

him, say, 30 points if we were using OV 4 as a

springboard for a proportionality description of a de-

parture reason. And that’s objective and veriﬁable.

There were three victims.”

The court then addressed OV 13 (continuing pattern

of criminal behavior), which requires the assessment of

50 points if the offense was part of a pattern of felonious

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criminal activity involving three or more sexual pen-

etrations against a person or persons less than 13

years of age. See MCL 777.43(1)(a). The court noted

that “the trial evidence was, and, and consistent with

the jury’s verdict, that there were vastly more of those

acts that they found. And that’s objective and veriﬁ-

able.”

The trial court then elaborated further regarding its

departure decision, using the terminology applicable in

pre-Lockridge sentencing:

And is it compelling and substantial? Well, I don’t know

how

it isn’t in this case.

This is, you know, as I said at the beginning of this

dissertation, I mean one of the most horriﬁc and horrible

sexual abuse crimes I’ve seen on so many levels. Not just

because of the, the relationship between the complainants

and the defendant because it wasn’t just uncle and niece,

it was uncle slash religious leader and cultural leader and

nieces who were victims of his religious orthodoxy as well

as his sexual predatory conduct. And it’s just a terrible

tragedy that this occurred and that the girls were put

through this and that they waited as they did as long as

they did until they had the comfort of each other’s knowl-

edge that, that they had all been through this together

before the, the defendant’s acts were ﬁnally revealed.

If we were to give the defendant just 25 more points on

the offense variables which can easily be calculated with

30 points on OV 4, more points on OV 13, that pushes him

solidly into the bottom right-hand cell range of 270 to 450.

I couldn’t help but notice that [the prosecutor] sug-

gested [that the] number of a 35 year minimum doesn’t

quite approach the maximum cell length in the lower

right-hand corner. But, but it’s close, and as I think an

appropriate minimum sentence recognizing that it is a

departure, a substantial departure from the guideline

range in this case.

But the guidelines here for a variety of reasons that I’ve

already said don’t even begin to adequately address the

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heinous nature of the crimes the defendant was convicted

of. And I’m adopting the People’s suggestion of a 35 to 50

year sentence for each of the ten counts of criminal sexual

conduct in the ﬁrst degree.

The court calculated the minimum period of incar-

ceration for its departure sentences by essentially

tripling the applicable guidelines scores to reﬂect that

there were three complainants in this case. This math-

ematical reasoning does not necessarily comport with

the individualized weighing of an offender’s personal

characteristics, including those that would mitigate a

defendant’s sentence, and the circumstances of the

offense as required by Milbourn. But even were we to

ﬁnd that the trial judge’s allocution inadvertently

satisﬁed Milbourn, we understand Steanhouse to nev-

ertheless require remand for a Crosby hearing. The

Court’s language in Steanhouse leaves little room for

deferential review:

While the Lockridge Court

did not explicitly hold that the

Crosby procedure applies under the circumstances of this

case, we conclude that this is the proper remedy when, as

in this case, the trial court was unaware of, and not

expressly bound by, a reasonableness standard rooted in

the Milbourn principle of proportionality at the time of

sentencing. [Steanhouse, 313 Mich App at 48.]

[

]

In accordance with Steanhouse, we remand to the

trial court for resentencing. We instruct the trial court

to speciﬁcally justify the extent of any departure sen-

tences the court may elect to impose, and to explain

why the sentences imposed are proportionate to the

seriousness of defendant’s convictions, taking into ac-

It bears repeating that defendant preserved an objection to his

departure sentences in the trial court. In People v Stokes, 312 Mich App

181, 201; 877 NW2d 752 (2015), this Court held that the Crosby

procedure applies to both preserved and unpreserved errors.

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count defendant’s background and any mitigating fac-

tors brought forward by counsel. Consistent with the

Crosby procedure, defendant may elect against resen-

tencing if he chooses. See id. at 40-41.

The proportionality review dictated by Steanhouse is

odds with the review applied to departure sentences

by the federal courts. In this section of our opinion we

discuss the federal standard and the reasons advanced

by the United States Supreme Court for its adoption.

In Booker, the United States Supreme Court held

that “appellate review of sentencing decisions is lim-

ited to determining whether they are ‘reasonable.’ ”

Gall v United States, 552 US 38, 46; 128 S Ct 586; 169

L Ed 2d 445 (2007). The Supreme Court later ex-

pounded, “Our explanation of ‘reasonableness’ review

in the Booker opinion made it pellucidly clear that the

familiar abuse-of-discretion standard of review now

applies to appellate review of sentencing decisions.” Id.

The Supreme Court ﬁrst applied the reasonableness

standard and abuse-of-discretion review in Rita v

United States, 551 US 338; 127 S Ct 2456; 168 L Ed 2d

203 (2007).

The defendant in Rita argued in the trial court for a

sentence below the federal guidelines range, resting

his claim on his “[p]hysical condition, vulnerability in

prison and . . . military service.” Id. at 345. The judge

imposed a sentence at the bottom of the federal guide-

lines range, and Rita appealed. Id. The ﬁrst question

presented to the United States Supreme Court was

“whether a court of appeals may apply a presumption

of reasonableness to a district court sentence that

reﬂects a proper application of the Sentencing Guide-

lines.” Id. at 347. The Supreme Court answered in the

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afﬁrmative, but added an important caveat: “The fact

that we permit courts of appeals to adopt a presump-

tion of reasonableness does not mean that courts may

adopt a presumption of unreasonableness” for sen-

tences at variance with the advisory guidelines. Id. at

354-355.

Several months after issuing Rita,

the Supreme

Court addressed appellate review of departure sen-

tences in Gall, 552 US 38, and Kimbrough v United

States, 552 US 85; 128 S Ct 558; 169 L Ed 2d 481

(2007). The defendants in both Gall and Kimbrough

received downward departure sentences. In both cases,

federal courts of appeal reversed and remanded for

resentencing. In Gall, the United States Court of

Appeals for the Eighth Circuit held that a sentence

outside the guidelines range must rest on a justiﬁca-

Although the Court’s holding in Rita is relatively straightforward,

Justices Stevens and Scalia debated in concurring opinions whether

reasonableness review is limited to examining whether a sentencing

court has correctly adhered to sentencing procedures, or extends to

consideration of the substantive reasonableness of a defendant’s sen-

tence. Justice Scalia opined, “I would hold that reasonableness review

cannot contain a substantive component at all. I believe, however, that

appellate courts can nevertheless secure some amount of sentencing

uniformity through the procedural reasonableness review made possible

by the Booker remedial opinion.” Rita, 551 US at 370 (Scalia, J.,

concurring). Justice Stevens retorted:

I do not join J

USTICE

CALIA

’s opinion because I believe that the

purely procedural review he advocates is inconsistent with our

remedial opinion in Booker, which plainly contemplated that

reasonableness review would contain a substantive component.

After all, a district judge who gives harsh sentences to Yankees

fans and lenient sentences to Red Sox fans would not be acting

reasonably even if her procedural rulings were impeccable. [Id. at

365 (Stevens, J., concurring) (citation omitted).]

The Supreme Court has since settled this question, speciﬁcally holding

in Gall, 552 US at 51, that departure sentences are to be reviewed by

federal appellate courts for substantive reasonableness.

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tion that is proportional to the extent of the departure.

Gall, 552 US at 45. As discussed later in this opinion,

the Eighth Circuit’s approach mirrors that adopted in

Milbourn and now required under Steanhouse. In

Kimbrough, the United States Court of Appeals for the

Fourth Circuit held the defendant’s sentence unrea-

sonable per se because it was based on the sentencing

judge’s disagreement with the guidelines’ sentencing

disparity between crack and powder cocaine offenses.

Kimbrough, 552 US at 93.

The Supreme Court reversed in both cases, holding

that both sentences were substantively reasonable. In

Gall, the Court began its analysis by sketching the

following procedural roadmap for sentencing in the

federal courts:

[A] district court should begin all sentencing proceedings

y correctly calculating the applicable Guidelines range. As

a matter of administration and to secure nationwide con-

sistency, the Guidelines should be the starting point and

the initial benchmark. The Guidelines are not the only

consideration, however. Accordingly, after giving both par-

ties an opportunity to argue for whatever sentence they

deem appropriate, the district judge should then consider

all of the § 3553(a) factors to determine whether they

support the sentence requested by a party. In so doing, he

may not presume that the Guidelines range is reasonable.

He must make an individualized assessment based on the

facts presented. [Id. at 49-50 (citations omitted).]

Like Michigan’s sentencing scheme, federal sentencing

involves

the review and application of guidelines scor-

ing. Unlike Michigan’s sentencing procedure, federal

law requires district courts to consider all of the

sentencing policy factors set forth in 18 USC 3553(a),

in addition to the guidelines. Broadly speaking, those

factors encompass: (1) the nature and circumstances of

the offense and the personal history and characteris-

380 313 M

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tics of the offender, (2) the need to deter criminal

conduct and to protect the public, (3) the need to

provide the defendant with educational or vocational

training or other forms of treatment, (4) the alterna-

tive types of sentences available, (5) the need to avoid

unwarranted disparity among defendants with similar

criminal records who have been convicted of similar

crimes, and (6) the need for restitution to victims of the

crime.

We acknowledge that mandatory application of

18 USC 3553(a) provides:

(a) Factors to be considered in imposing a sentence.--

The court shall impose a sentence sufﬁcient, but not greater than

necessary, to comply with the purposes set forth in paragraph (2)

of this subsection. The court, in determining the particular

sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reﬂect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment

in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established

for--

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines--

(i) issued by the Sentencing Commission pursuant to [28 USC

994(a)(1)], subject to any amendments made to such guidelines by

act of Congress (regardless of whether such amendments have yet

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the § 3553(a) factors sets federal sentencing apart from

Michigan’s sentencing process. We return to this im-

portant distinction later in this opinion.

After detailing the procedure to be followed by

federal district courts when imposing sentence, the

Supreme Court in Gall addressed the substantive

considerations that must inhere in a sentence falling

outside the guidelines. If a sentencing court intends to

impose a departure sentence, the court “must consider

the extent of the deviation and ensure that the justiﬁ-

cation is sufﬁciently compelling to support the degree

of the variance.” Gall, 552 US at 50. The Court char-

to be incorporated by the Sentencing Commission into amend-

ments issued under [28 USC 994(p)]); and

(ii) that, except as provided in [18 USC 3742(g)], are in effect

on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements issued by

the Sentencing Commission pursuant to [28 USC 994(a)(3)],

taking into account any amendments made to such guidelines or

policy statements by act of Congress (regardless of whether such

amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under [28 USC 994(p)]);

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission pursuant to [28

USC 994(a)(2)], subject to any amendments made to such policy

statement by act of Congress (regardless of whether such

amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under [28 USC 994(p)]);

and

(B) that, except as provided in [18 USC 3742(g)], is in effect on

the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and

(7) the need to provide restitution to any victims of the offense.

382 313

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acterized as “uncontroversial” the notion that “a ma-

jor departure should be supported by a more signiﬁ-

cant justiﬁcation than a minor one.” Id. When

imposing sentence, a court “must adequately explain

the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentenc-

ing.” Id. The Supreme Court speciﬁcally rejected the

notion that a sentence outside the guidelines range

could be justiﬁed only by “extraordinary circum-

stances.” Id. at 47. Similarly, the Court eschewed the

use of “a rigid mathematical formula that uses the

percentage of a departure” as a yardstick for deter-

mining the strength of justiﬁcations required for a

particular sentence. Id.

On appeal in the federal courts, the abuse-of-

discretion standard applies to the review of all sen-

tences, including departures. Id. at 51. A reviewing

court must ﬁrst ascertain whether a district court

committed procedural error, such as improperly calcu-

lating the guidelines. Id. If the sentence “is procedur-

ally sound, the appellate court should then consider

the substantive reasonableness of the sentence im-

posed under an abuse-of-discretion standard.” Id. For

sentences outside the guidelines, “the court may not

apply a presumption of unreasonableness. It may con-

sider the extent of the deviation,” but must also defer

to the district court’s weighing of the § 3553(a) factors.

Id.

In Kimbrough, the Supreme Court reiterated these

precepts, emphasizing that a sentencing court must

treat the guidelines as “the starting point and the

initial benchmark[.]” Kimbrough, 552 US at 108 (quo-

tation marks and citation omitted). A departure sen-

tence premised on a judge’s view that the guidelines

fail to properly reﬂect the considerations set forth in

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§ 3553(a) may merit “closer review” by an appellate

court. Id. at 109. In Kimbrough, the district court

found that the applicable sentencing guidelines for a

federal cocaine distribution offense created an “unwar-

ranted disparity” between sentences involving crack

versus powder forms of the drug. Id. at 111. The federal

sentencing commission had reached the same conclu-

sion and recommended that Congress “substantially”

reduce the inequity. Id. at 97-99. This crack/powder

disparity, the district court concluded, “[drove] the

offense level to a point higher than is necessary to do

justice in this case[.]” Id. at 111 (quotation marks

omitted). The Supreme Court found this reasoning

adequate to support a sentence 4

years below the

bottom of the guidelines range, and elucidated: “the

District Court properly homed in on the particular

circumstances of Kimbrough’s case and accorded

weight to the Sentencing Commission’s consistent and

emphatic position that the crack/powder disparity is at

odds with § 3553(a).” Id.

We distill from this trilogy of Supreme Court cases

the following preliminary precepts governing appellate

review of departure sentences in a federal forum:

(1) An abuse-of-discretion standard applies;

(2) A departure sentence is not presumptively un-

reasonable; and

(3) Close scrutiny must be applied when a sentenc-

ing judge bases a departure on a policy disagreement

with the guidelines, but a sentence fashioned in part

on a policy disagreement does not automatically fall

outside the realm of substantive reasonableness.

A review of federal caselaw since Rita, Gall, and

Kimbrough is also instructive. We focus here on two

cases in which the United States Court of Appeals for

384 313 M

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the Sixth Circuit analyzed upward departure sen-

tences for substantive reasonableness.

Walter Franklin Vowell pleaded guilty to coercing a

minor to engage in sexually explicit conduct for the

purpose of producing a visual depiction of that conduct,

and possession of child pornography in violation of 18

USC 2251(a) and 18 USC 2252(a)(4)(B). United States

v Vowell, 516 F3d 503, 507 (CA 6, 2008). The district

court sentenced Vowell to consecutive sentences of 45

years’ imprisonment on Count 1 and 20 years’ impris-

onment on Count 2, followed by a lifetime of supervised

release. Id. Vowell challenged the substantive reason-

ableness of his sentence, and the Sixth Circuit af-

ﬁrmed. Id.

The Sixth Circuit began by reviewing in detail the

heinous nature of the defendant’s crimes. Vowell and

his girlfriend recorded graphic pornographic video-

tapes of Vowell sexually abusing the girlfriend’s then

eight-year-old daughter. Id. The child was apparently

drugged in two of the videos. Id. The sexual abuse

included attempted genital and anal penetration, and

oral sex. Id. The calculated guidelines range for the

two charged offenses was 188 to 235 months’ impris-

onment. Id. at 508. Notwithstanding that range, a

federal statute required a minimum sentence of 300

months for one of the offenses. Id. The district court

imposed a sentence 242% beyond the top of the guide-

lines range and 160% above the applicable 25-year

statutory minimum sentence. Id. at 511.

Defendant has not raised an appellate claim consistent with proce-

dural unreasonableness.

Technically, under federal law the Sixth Circuit dealt with a “vari-

ance” and not a “departure.” Id. at 511.

“A ‘departure’ is typically a change from the ﬁnal sentencing

range computed by examining the provisions of the Guidelines

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The Sixth Circuit explained that when reviewing a

sentence for substantive reasonableness, it considers

more than the sentence’s length:

That is, we will also look to the factors the district court

evaluated

in determining its sentence. A sentence may be

substantively unreasonable if the district court “ ‘select[s]

the sentence arbitrarily, bas[es] the sentence on impermis-

sible factors, fail[s] to consider pertinent § 3553(a) factors

or giv[es] an unreasonable amount of weight to any

pertinent factor.’ ” We do not require a mechanical recita-

tion of the § 3553(a) factors, but “an explanation of why

the district court chose the sentence that it did.” And we

have declared that the district court is entitled to defer-

ence in its sentencing decisions because of its “ringside

perspective on the sentencing hearing and its experience

over time in sentencing other individuals.” [Id. at 510

(citations omitted; alterations in original).]

A substantively reasonable sentence is proportionate

o the seriousness of the offense and the circumstances

of the offender, and sufﬁcient, but not greater than

necessary, to comport with the purposes of 18 USC

3553(a). Id. at 512. In Vowell’s case, the Sixth Circuit

determined, the district court properly “focused primar-

ily on the seriousness of the offense, the need to protect

the community, Vowell’s need for treatment, and the

impact on the victim.” Id. at 512. The district court

“emphasized that Vowell’s pattern of abuse against [the

themselves. It is frequently triggered by a prosecution request to

reward cooperation . . . or by other facts that take the case

‘outside the heartland’ contemplated by the Sentencing Commis-

sion when it drafted the Guidelines for a typical offense. A

‘variance,’ by contrast, occurs when a judge imposes a sentence

above or below the otherwise properly calculated ﬁnal sentencing

range based on application of the other statutory factors in 18

U.S.C. § 3553(a).” [United States v Rangel, 697 F3d 795, 801 (CA

9, 2012), quoting United States v Cruz-Perez, 567 F3d 1142, 1146

(CA 9, 2009) (citations omitted).]

This distinction is not relevant to the purposes for which we cite Vowell.

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child] and the heinous nature of his crimes demon-

strated the seriousness of the offense. That Vowell was

in a position to care for [the child] makes his crimes

signiﬁcantly worse.” Id. The Sixth Circuit recounted the

district court’s conclusion that Vowell “basically [took

the child’s] life from her” and that “[h]er life is effec-

tively over for all we know.” Id. (quotation marks omit-

ted). “Certainly,” the Sixth Circuit summarized, “the

impact on [the child] played a substantial role in the

district court’s determination.” Id.

The Sixth Circuit noted that the record created by

the district court included the court’s conclusion that

Vowell “warranted a signiﬁcant term of incarceration

in order to protect the community, to ensure that he

never had the opportunity to be around children again,

and that he be afforded the extensive treatment that

he clearly needs.” Id. Moreover, the district court

articulated that “it needed to assess a signiﬁcant

punishment in order to combat child pornography.” Id.

These facts led the court to conclude that “for Vowell,

the statutory minimum is simply not appropriate.” Id.

The Sixth Circuit commended the district court’s

reasoning:

We cannot ask more of a district court, in terms of

weighing

the § 3553(a) factors and explaining the reasons

for its sentence, than the district court did in this case.

Clearly, the district court did not arbitrarily choose a

sentence, but chose a sentence it considered sufﬁcient but

not greater than necessary to comply with the purposes of

§ 3553(a). That is, the district court selected a punishment

that it believed ﬁt Vowell’s crimes, and provided sufﬁcient

reasons to justify it. [Id.]

On review for an abuse of discretion, the Sixth Circuit

eferred to the district court’s “reasoned . . . decision,”

declaring the sentence “substantively reasonable.” Id. at

512-513.

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A more recent case provides further guidance. The

defendant in United States v Aleo, 681 F3d 290, 293

(CA 6, 2012), pleaded guilty to producing child pornog-

raphy, 18 USC 2251(a), possession of child pornogra-

phy, 18 USC 2252A(a)(5)(B), and transporting and

shipping child pornography, 18 USC 2252A(a)(1). He

was sentenced to 60 years’ imprisonment, which

equated to a sentence almost 2

times longer than the

top of the guidelines range. Id. at 300. The Sixth

Circuit found Aleo’s sentence substantively unreason-

able and remanded for resentencing. Id. at 302.

Like Vowell, Aleo participated in the production of

child pornography. Id. at 294-295. Also like Vowell,

Aleo sexually penetrated a child (in Aleo’s case, his

granddaughter) who appeared in the ﬁlms. Id. The

district court characterized the matter as “ ‘perhaps

one of the most despicable cases that I have ever been

involved in, in 28 years on the bench.’ ” Id. at 297. The

sentencing court observed that Aleo had shown no

remorse and that his statements at allocution omitted

any reference to the fact that his granddaughter and

the other victims would be “emotionally scarred for the

rest of their lives.” Id. The district court explicitly

rejected the notion that the sentencing guidelines

possessed any relevance, as the sentencing guidelines

committee had never

anticipated that a granddaughter would be involved in

this

kind of—a victim, in this kind of activity and certainly

not a grandfather doing it. There’s no way they would

have been able to even foresee that. So the guidelines . . .

certainly is not a guideline for this kind of case . . . . [Id.

(quotation marks omitted).]

The Sixth Circuit carefully reviewed the sentencing

principles

set forth in Gall and reiterated the applica-

bility of the abuse-of-discretion standard. Id. at 299-

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300. The Court continued: “Our role is not to usurp the

sentencing judge’s position as the best interpreter of

the facts. However, we must ensure that when there is

a variance, the greater the variance from the range set

by the Sentencing Guidelines,” the more compelling

the necessary justiﬁcation must be. Id. The Court then

turned its attention to the speciﬁc reasons advanced by

the district court for the departure sentence, beginning

with the district court’s “belief that the sentencing

guidelines could not have envisioned a crime such as

Aleo’s. In fact,” the Sixth Circuit elaborated, “the

Sentencing Guidelines do envision a crime such as

Aleo’s[.]” Id. (emphasis added). Under the federal

guidelines, Aleo’s calculated sentence

included several enhancements that speciﬁcally ad-

dressed

the unique characteristics of his offense. Four

levels were added because Aleo produced child pornogra-

phy with a minor under the age of twelve. Two levels were

added because the offense involved the commission of a

sexual act or sexual contact. Two levels were added

because Aleo was a relative of the minor and the minor

was in his custody, care, or supervisory control. Therefore,

the guidelines expressly take into account a defendant

who creates child pornography using a relative, when the

relative was under the age of twelve, under the individu-

al’s supervision, and who the defendant sexually touched

during the creation of the pornography. [Id. at 300.]

Accordingly, the Sixth Circuit concluded, the district

court’s

belief that the guidelines did not contemplate

Aleo’s crime was incorrect, and did not serve as a

“compelling justiﬁcation” for the sentence imposed. Id.

at 301.

The Sixth Circuit then considered the district court’s

“deterrence” explanation for the sentence, ﬁnding it

lacking as the sentence imposed “threatens to cause

disparities in sentencing, because it provides a top-of-

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the-range sentence for what is not a top-of-the-range

offense.” Id. The Court proceeded to review other cases

involving defendants convicted of child pornography

offenses involving their grandchildren. Id. In those

cases, the defendants received far lighter sentences.

Id. The Court observed, “There is no compelling justi-

ﬁcation for differentiating his offense so dramatically

from theirs.” Id. Aleo’s crimes differed meaningfully

from Vowell’s, the Sixth Circuit elucidated, as Vowell

had made three videotapes involving sexual contact

with his girlfriend’s child (two while she was drugged),

engaged in oral-to-genital contact with the child, and

attempted anal and genital penetration. Id. This was a

“signiﬁcantly worse crime[],” meriting the harsh pun-

ishment imposed. Id.

Aleo’s sentence could not stand, the Sixth Circuit

reasoned, because the district court failed to “reason-

ably distinguish Aleo from other sex offenders who

molested young relatives,” and neglected to

take into account why Aleo should receive the harshest

possible

sentence, even though he had not committed the

worst possible variation of the crime. He had, for example,

cooperated with authorities, admitted responsibility for

his actions, and only committed one known offense involv-

ing sexual contact with a minor. There was no evidence

that he drugged the child or committed more than brief

sexual contact. While we share the district court’s outrage

at Aleo’s acts, the justiﬁcations offered by the district court

do not support the enormous variance beyond the guide-

lines range and the disparity with sentences of other,

similar offenders. The sentence was substantively unrea-

sonable. [Id. at 302.]

We draw from these two cases several helpful ana-

lytical

guideposts. First, a sentence above or below the

guidelines likely does not constitute an abuse of dis-

cretion if it is commensurate with the individualized,

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highly case-speciﬁc reasons supplied by the sentencing

court as justiﬁcations for the departure. Sentencing

courts are not precluded from imposing an above- or

below-guidelines sentence based on a disagreement

with the guidelines, or by ﬁnding that the guidelines

range is too severe or too lenient. However, if the

sentencing court relies on such a disagreement when

imposing sentence, the court must offer reasons “suf-

ﬁciently compelling” to satisfy an appellate court that

application of the guidelines would result in a sentence

longer or shorter in length than would be just under

the circumstances. Gall, 552 US at 50.

We envision that a federal-law-inspired approach to

Michigan sentence departures would operate under

the following principles. Procedurally, a sentencing

court would make underlying factual ﬁndings carefully

drawn from the record to properly calculate the guide-

lines, treating the guidelines as advisory only and not

mandatory. The court would then consider the funda-

mental principles that have historically animated sen-

tencing decisions in Michigan and that roughly corre-

spond to the factors listed in 18 USC 3553(a). Drawn

from Michigan caselaw, those principles include pro-

portionality, the potential for reformation or rehabili-

tation of the defendant, deterrence, the protection of

society from further crimes by the defendant, and the

need to appropriately punish the defendant for the

crimes of which the defendant was convicted, while

avoiding sentence disparities between similarly situ-

ated defendants. This procedure equates with a federal

trial court’s consideration of 18 USC 3553(a) and the

reasonableness principles and requirements articu-

lated in Gall. A court’s explanation of the reasons for

departure must include detail sufﬁcient to facilitate

meaningful appellate review. A sentence fulﬁlling

these criteria is procedurally reasonable.

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Substantively, we believe that a sentencing court

should be governed by the following principles and

requirements: (1) the guidelines themselves supply the

starting point or initial benchmark of the analysis, (2)

extraordinary or exceptional circumstances are not re-

quired to justify a sentence outside of the guidelines, (3)

no presumption of unreasonableness attends a depar-

ture sentence, (4) a rigid mathematical formula is not to

be applied, (5) the sentencing court must engage in an

individualized assessment on the basis of the facts

presented, taking into consideration mitigating or ag-

gravating factors and the totality of the circumstances,

(6) the extent of a departure must be considered and

ufﬁciently justiﬁed, with a major departure supported

by a more signiﬁcant justiﬁcation than a minor depar-

ture, (7) substantive ﬁndings regarding reformation or

rehabilitation, society’s protection, punishment, and de-

terrence can potentially support a departure, and (8) if

sufﬁcient and sound justiﬁcation is presented, a court

may depart from the guidelines on the basis of a

disagreement with the guidelines, or by ﬁnding that a

guidelines variable is given inadequate or dispropor-

tionate weight.

Ultimately, the touchstone of the depar-

ure analysis is reasonableness.

As in the federal courts, we would anticipate that

Michigan’s guidelines encompass the vast majority of

The Gall Court observed that because the federal sentencing guide-

lines are no longer mandatory, the range of sentencing choices is

signiﬁcantly broadened as dictated by the facts of the case. Gall, 552 US

at 59.

With respect to reformation or rehabilitation, society’s protection,

punishment, and deterrence, “there is no requirement that the trial

court expressly mention each . . . of [them] . . . when imposing sen-

tence.” People v Rice (On Remand), 235 Mich App 429, 446; 597 NW2d

843 (1999). That said, it may be beneﬁcial for a sentencing court to

explore these areas on the record in order to facilitate appellate review

of a sentencing departure.

392 313 M

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358 [Nov

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typical cases, or the territory referred to by the

federal courts as the “heartland.” While a court is not

precluded from justifying a departure by relying on a

fact already taken into account by the guidelines, the

court must offer a sound and reasoned explanation for

doing so. Such reasons may include, but are not

limited to, that the guidelines afford inadequate or

disproportionately harsh weight to a fact, or that the

Legislature’s assessment of the weight given to a

factor is ﬂawed for other reasons. A court may not

haphazardly disregard or ignore the guidelines, espe-

cially given that they represent the benchmark of

every sentence. See Gall, 552 US at 49. But because

the guidelines are now solely advisory, the inherent

uniqueness of a case may guide a court seeking to

depart. We further note that in Aleo, the Sixth Circuit

took pains to point out that the district court ne-

glected to consider any of the mitigating facts brought

to its attention. See Aleo, 681 F3d at 302. A reason-

able departure sentence—whether upward or

downward—would reﬂect consideration of both aggra-

vating and mitigating facts.

Finally, we reiterate that under the regime we

propose, a trial court’s careful and detailed articulation

of its reasoning when imposing a departure sentence

remains important. In this regard, we echo our Su-

preme Court’s admonitions in People v Smith, 482

Mich 292, 304; 754 NW2d 284 (2008):

[T]he trial court’s justiﬁcation “must be sufﬁcient to allow

for

effective appellate review.” . . . [I]f it is unclear why the

trial court made a particular departure, an appellate court

cannot substitute its own judgment about why the depar-

ture was justiﬁed. A sentence cannot be upheld when the

connection between the reasons given for departure and

the extent of the departure is unclear.

2015] P

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393

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Were we free to apply the analysis we have just

sketched to the facts of this case, our opinion would

read as follows:

Pursuant to Lockridge, we review these departure

sentences for reasonableness. Lockridge, 498 Mich at

392. Informed by Gall, 552 US at 46, we apply an

abuse-of-discretion standard. 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). A trial court that selects a principled outcome

has not abused its discretion. Id.

Measured against the standards erected in Gall and

Kimbrough, the trial court’s explanation for defen-

dant’s departure sentences is more than adequate. The

court considered the sentence called for under the

guidelines and explained in considerable detail why a

harsher sentence was needed for someone who had

committed the number of serious sex crimes as had

defendant. The court highlighted the highly unusual

circumstances presented in this case, particularly that

defendant had abused three sisters, threatened all of

them in different and terrifying ways, and used the

complainants’ deeply held religious beliefs to both

conceal and further his illicit behavior.

The trial court’s observation that this was not an

ordinary criminal sexual conduct case is well sup-

ported by the record, as is the continuing emotional toll

of defendant’s misconduct endured by the three com-

plainants. The guidelines do not take into account the

seriousness of a longstanding pattern of sex crimes

committed against three minors living together in the

same home, or a defendant who uses his position as a

religious and cultural leader and simultaneously, as an

instructor in the complainants’ family, to perpetrate

394 313 M

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358 [Nov

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his abuse. The record is rife with evidence that defen-

dant’s sexual abuse of all three complainants devas-

tated their teenage years and triggered tragic emo-

tional repercussions that have continued into their

adulthood. It is obvious to us that in selecting its

sentence, the trial court was motivated by the need to

impose sentences that truly ﬁt defendant’s crimes,

rather than to sensationalize the surrounding circum-

stances or to appease community sentiments. Taking

into account the totality of the circumstances, defen-

dant’s sentences are reasonable.

One further aspect of defendant’s sentences requires

discussion. Before Lockridge, trial courts were encour-

aged to justify the extent of a departure sentence by

comparing the guidelines score of the defendant

against “a hypothetical defendant whose recommended

sentence is comparable to the departure sentence[.]”

Smith, 482 Mich at 310. This exercise could be accom-

plished by judicial fact-ﬁnding to produce heightened

offense or prior record variable scores when a court has

concluded that the variables inadequately account for

the factual circumstances presented. The trial judge in

this case followed this path, but then traveled beyond

mere recalculation and offered a thoughtful explana-

tion premised on noncontroversial aggravating factors

that fully explained why the above-guidelines sen-

tences were reasonable. As such, remand in this case is

unnecessary.

In the future, we would caution courts that exclusive

reliance on a guidelines recalculation approach risks

compounding the very problem identiﬁed in Lockridge:

judicial fact-ﬁnding that increases a defendant’s mini-

mum sentence range violates the Sixth Amendment.

The guidelines are simply that—guidelines. And under

Lockridge, they are purely advisory. Lockridge, 498

2015] P

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Mich at 364-365. Rather than relying on judicially

found facts to increase offense variable scores, we

encourage judges to detail the speciﬁc reasons that a

case falls outside the mainstream, and that explain

why the sentence imposed is more just than a within-

guidelines sentence. Moreover, because Michigan’s

sentencing guidelines omit any provisions for mitiga-

tion, a reasonable downward departure sentence need

not be rooted in a guidelines recalculation.

As we are bound by Steanhouse, however, we may

not resolve the issue in this manner.

VII

We respectfully disagree with the analysis set forth

in Steanhouse for

several reasons.

Generally speaking, the “principle of proportional-

ity” plays a role in a reasonableness analysis con-

ducted pursuant to Gall. We have no quarrel with the

notion that sentencing courts should also consider

proportionality before determining the extent of a

departure sentence. In our view, however, the prin-

ciple of proportionality described in Milbourn is but

one concept that should ﬁgure into departure sentenc-

ing. Furthermore, applying the principle of propor-

tionality to the exclusion of other concepts erodes a

court’s sentencing discretion. Finally, we believe that

remand for a Crosby hearing in cases like that now

before us unnecessarily complicates and prolongs the

sentencing process.

Before the United States Supreme Court decided

Gall, a number of federal courts had held that “[a]n

extraordinary reduction [from the guidelines range]

must be supported by extraordinary circumstances.”

United States v Burns, 500 F3d 756, 761 (CA 8, 2007),

396 313 M

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358 [Nov

PINION OF THE

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vacated and remanded 552 US 1137 (2008).

See also

United States v Johnson, 427 F3d 423, 426-427 (CA 7,

2005). As articulated in Burns: “[O]ur extraordinary

reduction/extraordinary circumstances formulation re-

quires circumstances of a strength proportional to the

extent of the deviation from reductions envisioned by

the guidelines’s [sic] structure.” Burns, 500 F3d at

761-762. “Extraordinary circumstances are infre-

quently found . . . .’ ” Id. at 763.

The Eighth Circuit’s now-discredited approach in

Burns corresponds to our Supreme Court’s opinion in

Milbourn, in which the Court decreed, “Where a given

case does not present a combination of circumstances

placing the offender in either the most serious or least

threatening class with respect to the particular crime,

then the trial court is not justiﬁed in imposing the

maximum or minimum penalty, respectively.” Mil-

bourn, 435 Mich at 654. In Milbourn, the Supreme

Court applied proportionality review in a manner

strikingly similar to that utilized in Burns:

In our discussion of proportionality, we observed that

the

Legislature has determined to visit the stiffest pun-

ishment against persons who have demonstrated an un-

willingness to obey the law after prior encounters with the

criminal justice system. Mr. Milbourn was a young man

and, at the time the instant offense was committed, he had

no criminal record. [Id. at 668.]

Respectfully, we observe that in Milbourn,

the Su-

preme Court appeared to have weighed the facts de

novo, despite having espoused an abuse-of-discretion

After remand from the United States Supreme Court, the United

States Court of Appeals for the Eighth Circuit afﬁrmed the district

court’s use of the presumptive life sentence under the guidelines as its

departure point in determining the reduction in the defendant’s sen-

tence. United States v Burns, 577 F3d 887, 896 (CA 8, 2009).

2015] P

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397

PINION OF THE

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standard of review. Referring to the appellate applica-

tion of proportionality analysis, the Supreme Court in

Gall noted that it “reﬂect[s] a practice . . . of applying a

heightened standard of review to sentences outside the

Guidelines range[, which] is inconsistent with the rule

that the abuse-of-discretion standard of review applies

to appellate review of all sentencing decisions—

whether inside or outside the Guidelines range.” Gall,

552 US at 49.

In Gall, the Supreme Court rejected proportionality

review because it inhibited a sentencing court’s discre-

tion while simultaneously tethering the range of sen-

tencing choices to the guidelines:

[A]ppellate courts may . . . take the degree of variance into

account

and consider the extent of a deviation from the

Guidelines[, but it may not require] “extraordinary” cir-

cumstances [or employ] a rigid mathematical formula that

uses the percentage of a departure as the standard for

determining the strength of the justiﬁcations required for

a speciﬁc sentence.

[Such] approaches . . . come too close to creating an

impermissible presumption of unreasonableness for sen-

tences outside the Guidelines range. [Gall, 552 US at 47

(emphasis added).]

Indeed, proportionality review as applied in Milbourn

undercuts

our Supreme Court’s holding in Lockridge

that the guidelines are now truly advisory and not

mandatory. In Milbourn, the Supreme Court cabined a

sentencing judge’s discretion to depart by urging that

the guidelines should almost always control:

The guidelines represent the actual sentencing prac-

tices

of the judiciary, and we believe that the second

edition of the sentencing guidelines is the best “barom-

eter” of where on the continuum from the least to the most

threatening circumstances a given case falls.

* * *

398 313

ICH

358 [Nov

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We believe that the gradation of recommended sentenc-

ing ranges within the guidelines indicates not only that

the full statutory range of possible sentences is being

used, but also that the recommended ranges increase as

the factors that are adequately represented in the guide-

lines become more serious. For this reason, we believe that

it is safe to assume that in the eyes of the vast majority of

trial judges who have chosen to impose sentences within

the guidelines ranges, the guidelines reﬂect the relative

seriousness of different combinations of offense and of-

fender characteristics. [Milbourn, 435 Mich at 656, 658.]

By contrast, the Lockridge Court

repeatedly high-

lighted that its decision was rooted in the right to a

jury trial enshrined in the Sixth Amendment, Lock-

ridge, 498 Mich at 368, 373-374, 378, and that the

imposition of a mandatory minimum sentence predi-

cated on judicial fact-ﬁnding violates the Sixth Amend-

ment, id. at 373-374. Because judge-found facts usu-

ally control guidelines scoring, we question whether

Steanhouse and Lockridge can be reconciled.

Additionally, we respectfully disagree with the Ste-

anhouse Court’s mandate that, pursuant to Crosby,

this Court must remand cases involving sentencing

decisions made pre-Lockridge. In our view, this proce-

dure unnecessarily complicates appellate review while

unduly burdening trial courts. Given that the guide-

lines are now merely advisory and that even under

Steanhouse, an abuse-of-discretion standard applies to

appellate review, we suggest that the application of a

reasonableness standard as outlined by the federal

courts better comports with Lockridge and the Sixth

Amendment.

VIII

Lastly, we consider defendant’s claim that his 35-

year

minimum sentences constitute unconstitutionally

2015] P

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399

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cruel or unusual punishment, because he will be 86

years old when his minimum sentences are completed.

The United States Constitution prohibits cruel and

unusual punishment, see US Const, Am VIII, and the

Michigan Constitution prohibits cruel or unusual pun-

ishment, see Const 1963, art 1, § 16. “In deciding if

punishment is cruel or unusual, this Court looks to the

gravity of the offense and the harshness of the penalty,

comparing the punishment to the penalty imposed for

other crimes in this state, as well as the penalty

imposed for the same crime in other states.” People v

Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011).

Defendant fails to demonstrate that his sentences are

cruel or unusual by comparing them to the penalties

imposed for other crimes in this state and the same

crime in other states.

We afﬁrm defendant’s convictions, but remand for

further sentencing proceedings, as we are bound to do

by Steanhouse. We do not retain jurisdiction.

LEICHER

, P.J., and M

URPHY

, J., concurred.

AWYER

, J. (concurring in result). I concur in the

result only.

400 313 M

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358

ONCURRING

PINION BY

AWYER

, J.

EMPLOYERS MUTUAL CASUALTY COMPANY v

HELICON ASSOCIATES, INC

Docket No. 322215. Submitted October 14, 2015, at Detroit. Decided

December 1, 2015, at 9:00 a.m. Leave to appeal sought.

Employers Mutual Casualty Company (EMC) brought a declaratory

judgment action in the Wayne Circuit Court against Helicon

Associates, Inc., the estate of Michael J. Witucki, and others,

including Wells Fargo Advantage National Tax Free Fund, Wells

Fargo Advantage Municipal Bond Fund, Lord Abbett Municipal

Income Fund, Inc., and Pioneer Municipal High Income Advan-

tage (collectively, the Funds). The Funds had purchased approxi-

mately $7 million in bonds issued by a charter school operated by

Helicon, which in turn was managed by Witucki. The charter

school, however, was not legally authorized to issue its own debt.

To avoid having its charter revoked, the school unwound the bond

issue, and the Funds accepted $3.2 million in newly issued bonds

in lieu of their original $7 million investment. The Funds then

brought a federal action against Helicon, Witucki, and others and

obtained a consent judgment that acknowledged a violation of

Conn Gen Stat 36b-29(a)(2) (part of the Connecticut Uniform

Securities Act) and awarded the Funds more than $4 million.

EMC had provided a defense for Helicon and Witucki in the

federal action, under a reservation of rights. In the present

lawsuit, EMC sought a declaratory judgment that indemnity

coverage was not available for that defense. While EMC did not

dispute that Helicon and Witucki were its insureds, it argued that

four separate exclusions in the policies (a return-of-remuneration

exclusion, an exclusion for personal proﬁt or advantage, a

guarantee-on-bonds exclusion, and a fraud-or-dishonesty exclu-

sion) applied, each of which would independently have precluded

coverage. Helicon and Witucki counterclaimed for breach of

contract and bad faith. The court, Brian R. Sullivan, J., found

that three of the four exclusions applied and granted summary

disposition in favor of EMC. The Funds appealed.

The Court of Appeals held:

The fraud-or-dishonesty provision in the policy excluded cov-

erage for any action brought against an insured if by judgment or

MPLOYERS

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401

adjudication that action was based on a determination that the

insured committed acts of fraud or dishonesty. The Funds con-

tended that the provision did not apply because the underlying

federal securities action had not adjudicated the issue of fraud or

dishonesty. However, the consent judgment that concluded the

federal action, which became a court judgment when the trial

court sanctioned it, was premised on a violation of the Connecti-

cut Uniform Securities Act. Conn Gen Stat 36b-29(a)(2) provides

generally that any person who offers or sells, or materially assists

in offering or selling, a security by means of any untrue statement

of a material fact or any omission to state a material fact and

knew or in the exercise of reasonable care should have known of

the untruth or omission is liable to the person buying the security.

Witucki and Helicon assisted in the offering and sale of bonds to

the Funds without the proper authority, resulting in a substantial

loss in the value of the investment when the bonds were required

to be reissued. The consent judgment, by ﬁnding a violation of the

Connecticut statute, necessarily found that Witucki and Helicon

made untrue statements of a material fact or omitted to state a

material fact. Because Helicon’s and Witucki’s statements and

representations were untrue and resulted in the statutory viola-

tion, they committed acts of fraud or dishonesty within the

meaning of the policy exclusion. Moreover, contrary to the Funds

argument, application of the exclusion did not render coverage

under the policy illusory. Because the trial court correctly deter-

mined that the fraud-and-dishonesty exclusion applied, it was not

necessary to consider the remaining policy exclusions.

Afﬁrmed.

Garan Lucow Miller, PC (by Megan

K. Cavanagh),

for Employers Mutual Casualty Company.

Davis & Ceriani, PC (by Scott W. Wilkinson and

George R. Lyons), and Kitch Drutchas Wagner Valitutti

& Sherbrook (by Christina A. Ginter and Michael J.

Watza) for Wells Fargo Advantage National Tax Free

Fund, Wells Fargo Advantage Municipal Bond Fund,

Lord Abbett Municipal Income Fund, Inc., and Pioneer

Municipal High Income Advantage.

Before: M

ETER

, P.J., and W

ILDER

and R

ONAYNE

RAUSE

, JJ.

402 313 M

ICH

401 [Dec

URIAM

. Defendants Wells Fargo Advantage

National Tax Free Fund, Wells Fargo Advantage Mu-

nicipal Bond Fund, Lord Abbett Municipal Income

Fund, Inc., and Pioneer Municipal High Income Ad-

vantage (hereinafter, the Funds) appeal as of right the

order granting summary disposition in favor of

plaintiff/counterdefendant, Employers Mutual Casu-

alty Company (hereinafter, EMC), in this declaratory

judgment action. We afﬁrm.

This case arises out of the outcome of a prior federal

suit initiated by the Funds against parties who, in

relevant part, were insured by EMC. Brieﬂy, the Funds

had purchased approximately $7 million in bonds

issued by a charter school operated by Helicon Associ-

ates, Inc., which in turn was managed by Michael J.

Witucki.

The charter school was, however, not legally

authorized

to issue its own debt. Facing the threat of

having its charter revoked, the school “had to ‘unwind’

the bond issue, and [the Funds] accepted $3.2 million

in newly issued bonds in lieu of their original $7

million investment.” In the ensuing federal court secu-

rities action, the Funds pursued claims pertaining to

the bond issuance, including violations of various se-

curities and blue-sky laws, in addition to tort claims.

The federal action resulted in a consent judgment

acknowledging violation of Conn Gen Stat 36b-

29(a)(2), part of the Connecticut Uniform Securities

Act (CUSA), and awarding the Funds more than $4

million, including costs and attorney fees.

EMC provided a defense for Helicon and Witucki in

the federal action under a reservation of rights, but

commenced the instant declaratory judgment action,

seeking to establish that indemnity coverage was not

Witucki died in November 2009 and his estate was substituted as a

defendant in the federal court action.

2015] E

MPLOYERS

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403

available, under its linebacker

or umbrella policies

with Helicon and Witucki, for the claims asserted in

the federal action. EMC did not dispute that Helicon

and Witucki are insureds, but argued that four sepa-

rate exclusions (return of remuneration, personal

proﬁt or advantage, guarantee on bonds, and fraud or

dishonesty) applied, each of which would indepen-

dently preclude coverage. Helicon and Witucki coun-

terclaimed for breach of contract and “bad faith.” The

trial court found that three of the four cited exclusions

applied, and it therefore granted summary disposition

in favor of EMC.

A grant or denial of summary disposition is reviewed

de novo on the basis of the entire record to determine if

the moving party is entitled to judgment as a matter of

law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d

817 (1999). When reviewing a motion under MCR

2.116(C)(10), which tests the factual sufﬁciency of the

complaint, this Court considers all evidence submitted

by the parties in the light most favorable to the

nonmoving party. A grant of summary disposition is

proper only when the evidence fails to establish a

genuine issue regarding any material fact. Id. at 120.

In addition, questions of contract interpretation are

reviewed de novo. Burkhardt v Bailey, 260 Mich App

636, 646; 680 NW2d 453 (2004). Courts enforce con-

tracts in accordance with their terms, giving the con-

tractual words their plain and ordinary meanings.

Reicher v SET Enterprises, Inc, 283 Mich App 657, 664;

770 NW2d 902 (2009). “An unambiguous contractual

provision reﬂects the parties[’] intent as a matter of

law, and ‘[i]f the language of the contract is unambigu-

According to an EMC brochure, “Linebacker is a public ofﬁcials

policy for the wrongful acts rendered in the performance of organiza-

tional duties on behalf of the insured.”

404 313 M

ICH

401 [Dec

ous, we construe and enforce the contract as writ-

ten.’ ” Id. (citation omitted) (second alteration in

original). “ ‘The primary goal in the construction or

interpretation of any contract is to honor the intent of

the parties’ . . . .” Stone v Auto-Owners Ins Co, 307

Mich App 169, 174; 858 NW2d 765 (2014) (citation

omitted). Insurance contracts are generally treated

the same as any other contract, but it is incumbent on

an insured to show coverage and incumbent on the

insurer to show that an exclusion applies. Pioneer

State Mut Ins Co v Dells, 301 Mich App 368, 377-378;

836 NW2d 257 (2013).

As noted, EMC asserted that four exclusions in its

Linebacker policy preclude coverage: “personal proﬁt

or advantage,” “return of remuneration,” “fraud or dis-

honesty,” and “guarantees on bond issues.” The trial

court did not speciﬁcally address the return-of-

remuneration exclusion, but it found the other three to

apply. The Funds do not dispute that if any of the

exclusions apply, coverage is precluded.

The fraud-or-dishonesty provision excludes coverage

for

[a]ny action brought against an “insured” if by judgment

adjudication such action was based on a determination

that acts of fraud or dishonesty were committed by the

“insured.”

The Funds contend that this provision is not applicable

because

the underlying securities action did not adju-

dicate the issue of fraud or dishonesty. Speciﬁcally, the

Funds argue that the securities action was based on

negligence and that fraud was not a necessary compo-

nent for liability. The Funds further assert that the

trial court ignored the language of the provision, which

required a judgment or adjudication to effectuate the

2015] E

MPLOYERS

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405

exclusion, and that the trial court’s ruling rendered the

policy illusory. We disagree.

The consent judgment that concluded the federal

action was premised on a violation of the CUSA,

speciﬁcally Conn Gen Stat 36b-29(a)(2). First, al-

though a consent judgment in the abstract is more in

the nature of a contract or settlement, it becomes a

court judgment when the court “sanctions” it. Acorn

Investment Co v Mich Basic Prop Ins Ass’n, 495 Mich

338, 354; 852 NW2d 22 (2014). Consequently, a consent

judgment may have an exceptional genesis, but “once

entered, consent judgments are treated the same as

litigated judgments in terms of their force and effect.”

Clohset v No Name Corp (On Remand), 302 Mich App

550, 572; 840 NW2d 375 (2013). The Federal Rules of

Civil Procedure deﬁne a “judgment” as “a decree and

any order from which an appeal lies.” FR Civ P 54(a).

Consequently, the consent judgment here is, for all

conceivably relevant purposes, just another judgment.

Second, the speciﬁc statute provides, in relevant

part:

Any person who .

. . (2) offers or sells or materially

assists any person who offers or sells a security by means of

any untrue statement of a material fact or any omission to

state a material fact necessary in order to make the

statements made, in the light of the circumstances under

which they are made, not misleading, who knew or in the

exercise of reasonable care should have known of the

untruth or omission, the buyer not knowing of the untruth

or omission, and who does not sustain the burden of proof

that he did not know, and in the exercise of reasonable care

could not have known, of the untruth or omission, is liable

to the person buying the security, who may sue either at

law or in equity to recover the consideration paid for the

security, together with interest at eight per cent per year

from the date of payment, costs and reasonable attorneys’

fees, less the amount of any income received on the

406 313

ICH

401 [Dec

security, upon the tender of the security, or for damages if

he no longer owns the security. [Conn Gen Stat 36b-

29(a)(2) (emphasis added).]

Witucki and Helicon assisted in the offering and sale of

bonds to the Funds without the proper authority,

resulting in a substantial loss in the value of the

investment when the bonds were required to be reis-

sued. Under the plain language of the Connecticut

statute, the consent judgment, by ﬁnding a violation of

that statute, necessarily found that Witucki and Heli-

con made “untrue statement[s] of a material fact” or

“omi[tted] to state a material fact.” Id. The word

“dishonesty” is deﬁned in Black’s Law Dictionary (10th

ed) as “[d]eceitfulness as a character trait; behavior

that deceives or cheats people; untruthfulness; un-

trustworthiness.” (Emphasis added.) Because state-

ments and representations made by Helicon and Wi-

tucki were “untrue,” and those statements and

representations resulted in the statutory violation,

they committed acts of fraud or dishonesty within the

meaning of the policy exclusion.

The Funds further suggest that application of the

exclusion renders coverage illusory. As discussed in Ile

v Foremost Ins Co, 293 Mich App 309, 315-316; 809

NW2d 617 (2011), rev’d on other grounds 493 Mich 915

(2012):

An “illusory contract” is deﬁned as “[a]n agreement in

which

one party gives as consideration a promise that is so

insubstantial as to impose no obligation. The insubstan-

tial promise renders the agreement unenforceable.” A

similar, more speciﬁc concept exists in the realm of insur-

ance. The “doctrine of illusory coverage” encompasses “[a]

rule requiring an insurance policy to be interpreted so

that it is not merely a delusion to the insured. Courts

avoid interpreting insurance policies in such a way that an

2015] E

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407

insured’s coverage is never triggered and the insurer

bears no risk.” [Citations omitted; alterations in original.]

“[T]he doctrine of illusory coverage is applicable ‘where

part of the [insurance] premium is speciﬁcally allo-

cated to a particular type or period of coverage and that

coverage turns out to be functionally nonexistent.’ ” Ile,

293 Mich App at 320-321 (citation omitted) (second

alteration in original). Simply put, we are at a loss to

comprehend how an exclusion based on “acts of fraud

or dishonesty” renders the policy or coverage illusory

absent an argument that fraud or dishonesty is intrin-

sically necessary to Helicon’s and Witucki’s operations,

which we do not accept. Mere negligence will not

trigger the exclusion. Hence, the coverage cannot be

construed to be illusory because situations exist or

could occur that will permit recovery.

Given our ﬁnding that the trial court correctly

determined the applicability of the fraud-and-

dishonesty exclusion, we need not consider the remain-

ing policy exclusions.

Afﬁrmed.

ETER

, P.J., and W

ILDER

and R

ONAYNE

RAUSE

, JJ.,

concurred.

408 313 M

ICH

401 [Dec

PEOPLE v JACKSON (ON RECONSIDERATION)

Docket No. 322350. Submitted October 7, 2015, at Lansing. Decided

December 3, 2015, at 9:00 a.m. Leave to appeal denied 499 Mich

916.

Kevin Raynard Jackson was convicted following a jury trial in the

Eaton Circuit Court, Janice K. Cunningham, J., of second-degree

home invasion, MCL 750.110a(3). The court sentenced defendant

as a second-offense habitual offender, MCL 769.10, to 88 months

to 22 years in prison with credit for 259 days served. The case

arose out of the invasion of, and theft of household items and

money from, a home in Charlotte, Michigan. Defendant appealed

and later moved the Court of Appeals to remand the case for

resentencing. The Court of Appeals denied the motion without

prejudice to the panel’s consideration of the issue in the context of

the pending appeal. The Court of Appeals initially issued an

opinion for publication on October 13, 2015. The prosecution

moved for reconsideration. The Court of Appeals granted the

motion, vacated its initial opinion, and issued a new opinion on

reconsideration.

On reconsideration, the Court of Appeals held:

1. MCL 768.32(1) permits the trier of fact to ﬁnd a defendant

guilty of a lesser offense if the lesser offense is necessarily

included in the greater offense. A lesser offense is necessarily

included in the greater offense when the elements necessary for

the commission of the lesser offense are subsumed within the

elements necessary for the commission of the greater offense. A

trial court should give a requested instruction on a lesser in-

cluded offense if the charged greater offense requires the jury to

ﬁnd a disputed factual element that is not part of the lesser

included offense and a rational view of the evidence would

support it. In this case, defendant was charged with second-

degree home invasion, and defense counsel requested, and the

jury was additionally instructed on, the lesser offense of third-

degree home invasion, MCL 750.110a(4). On appeal, defendant

argued that the trial court erred by instructing the jury on

third-degree home invasion, suggesting that the instruction al-

lowed him to be convicted of a higher offense than that which the

2015] P

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) 409

evidence supported. By requesting the instruction and approving

it as read to the jury, defendant waived his right to challenge any

error, and, in any event, giving the instruction did not affect

defendant’s substantial rights. The second element of third-

degree home invasion—commission of a misdemeanor while pres-

ent in the dwelling—is subsumed within the second element of

second-degree home invasion—commission of a larceny while

present in the dwelling—because every felony larceny necessarily

includes within it a misdemeanor larceny. Accordingly, either a

misdemeanor or felony larceny may serve as the predicate offense

for second-degree home invasion. Consequently, where, as here,

the predicate offense for a home invasion charge is a larceny,

third-degree home invasion is a lesser included offense of second-

degree home invasion. Nonetheless, under the facts of this case, a

rational view of the evidence did not support the giving of an

instruction on third-degree home invasion. Because either felony

or misdemeanor larceny may serve as the predicate offense

underlying second-degree home invasion and there was no evi-

dence of any predicate act other than larceny supporting the

second-degree home invasion charge, the evidence in this case did

not allow for a distinction between second-degree home invasion

and third-degree home invasion and, therefore, did not support

an instruction on third-degree home invasion. The trial court

erred by giving that instruction, but the error did not harm

defendant because the instruction allowed defendant the chance

to be convicted of a lesser offense than that which the evidence

supported.

2. A prosecutor cannot vouch for the credibility of a witness to

the effect that he or she has some special knowledge concerning

the witness’s truthfulness. A prosecutor may, however, make

reference to a plea agreement containing a promise of truthful-

ness, provided that the agreement is not used by the prosecutor to

suggest that the government had some special knowledge, not

known to the jury, that the witness was testifying truthfully. In

this case, defendant argued that the prosecutor improperly

vouched for the credibility of two witnesses during closing argu-

ments when the prosecutor stated that the witnesses had testiﬁed

pursuant to a plea agreement and that the plea agreement was

still intact and the witnesses had to testify truthfully. In context,

the prosecutor’s statements were a permissible response to de-

fense counsel’s theory of the case—that the witnesses were not

credible because of their drug use. Although the prosecutor

referred to the plea agreement, the prosecutor did not suggest

that the government had some special knowledge, not known to

the jury, that the witnesses were testifying truthfully. There was

410 313

ICH

409 [Dec

no error requiring reversal in the prosecutor’s statements con-

cerning the witnesses’ credibility.

3. Unresponsive answers from witnesses are generally not

prosecutorial error. Accordingly, the references, made by a wit-

ness, to the content of a text message after the prosecutor told the

witness not to refer to the content of the message could not be

attributed to prosecutorial error.

4. A defendant has the right to be tried by an impartial jury

drawn from a fair cross section of the community. To establish a

prima facie case of a violation of the fair-cross-section require-

ment, a defendant must show (1) that the group alleged to be

excluded is a distinctive group in the community, (2) that the

representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of

such persons in the community, and (3) that this underrepresen-

tation is due to systematic exclusion of the group in the jury-

selection process. Defendant failed to provide any evidence sup-

porting his assertion that the jury was not drawn from a fair cross

section of the community and, therefore, failed to establish his

prima facie case.

5. When reviewing defense counsel’s performance, the re-

viewing court must ﬁrst objectively determine whether, in light of

all the circumstances, the identiﬁed acts or omissions were

outside the wide range of professionally competent assistance.

Next, the defendant must show that trial counsel’s deﬁcient

performance prejudiced his defense—in other words, that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

With regard to jury composition and alleged prosecutorial error,

defendant failed to establish a factual predicate for the claims

that his counsel was ineffective. With regard to defense counsel’s

alleged failure to adequately investigate the text message, deci-

sions regarding what evidence to present, whether to call wit-

nesses, and how to question witnesses are presumed to be

matters of trial strategy. Further, the record indicated that

neither the prosecution nor the police were aware of the text

message before a prosecution witness mentioned it during cross-

examination by defense counsel. Trial counsel was not ineffective

for failing to request purported evidence of which not even the

police, let alone the prosecution, was aware.

6. In People v Lockridge, 498 Mich 358 (2015), the Supreme

Court held that in order to avoid any Sixth Amendment viola-

tions, Michigan’s sentencing guidelines scheme was to be deemed

advisory instead of mandatory. But sentencing judges must still

2015] P

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) 411

consult the guidelines and take them into account when sentenc-

ing. In determining whether there is any plain error under this

new scheme, the ﬁrst inquiry is whether the facts admitted by the

defendant and the facts necessarily found by the jury were

sufﬁcient to assess the minimum number of offense variable (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 this

case, defendant objected to the scoring of OV 16 (value of the

stolen property), MCL 777.46. Because the jury was only required

to ﬁnd that defendant intended or did commit a larceny, not a

larceny of a speciﬁc value, facts supporting this score were not

necessarily found by a jury. They also were not admitted by

defendant. Accordingly, in considering whether defendant could

make a threshold showing of plain error, the 5 points scored for

OV 16 had to ﬁrst be subtracted from defendant’s total OV score.

Defendant also objected to the scoring of OV 13 (pattern of

felonious activity), MCL 777.43. Defendant had pleaded guilty in

2012 to two charges of home invasion related to offenses commit-

ted earlier in 2010 and 2011. Defense counsel stipulated the

existence of these convictions at sentencing in this case. More

signiﬁcantly, by pleading guilty to those crimes, defendant admit-

ted his commission of those crimes and admitted the factual basis

for his guilty pleas to those crimes in proceedings with substan-

tial procedural safeguards. Therefore, the facts underlying the

scoring of OV 13 were admitted by defendant, and the points

scored for OV 13 did not have to be subtracted in considering

defendant’s total OV score under Lockridge. Reducing defen-

dant’s OV score by 5 points (by subtracting the score for OV 16)

did not alter defendant’s guidelines minimum sentence range.

Therefore, remand was not required under Lockridge.

Afﬁrmed.

RIMINAL

AW —

OME

NVASION —

URY

NSTRUCTIONS —

ESSER

NCLUDED

FFENSES

A trial court should give a requested instruction on a lesser

included offense if the charged greater offense requires the jury to

ﬁnd a disputed factual element that is not part of the lesser

included offense and a rational view of the evidence would

support it; when the predicate offense for a home invasion charge

is a larceny, third-degree home invasion is a lesser-included

offense of second-degree home invasion, but if there is no evidence

of any predicate act other than larceny supporting the second-

degree home invasion charge and the evidence does not allow for

a distinction between second-degree home invasion and third-

412 313

ICH

409 [Dec

degree home invasion, the evidence does not support an instruc-

tion on third-degree home invasion (MCL 750.110a; MCL 768.32).

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Douglas R. Lloyd, Prosecut-

ing Attorney, and Brent E. Morton, Assistant Prosecut-

ing Attorney, for the people.

Kevin Raynard Jackson, in propria persona, and

Mary A. Owens for defendant.

ON RECONSIDERATION

Before: B

OONSTRA

, P.J., and S

AAD

and H

OEKSTRA

, JJ.

OONSTRA

, P.J. Defendant appeals by right his con-

viction, following a jury trial, of second-degree home

invasion, MCL 750.110a(3). The trial court sentenced

defendant as a second-offense habitual offender, MCL

769.10, to 88 months to 22 years’ imprisonment, with

credit for 259 days served. We afﬁrm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

The case arises out of the invasion of, and theft of

household

items and money from, Traci Brown’s home

in Charlotte, Michigan on July 4, 2012. On that day,

Brown and her three children left the home to visit her

mother. According to Brown, her windows and doors

were all locked when she left, and she did not leave her

front door open. Brown testiﬁed that, other than her-

self and her children, only her mother and the father of

her children knew that she and the children would be

away.

Alyson Michelle Hotchkiss, who lived in the house

next door to Brown, testiﬁed that she was on vacation

on July 4 with her husband Randy, three of her

2015] P

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) 413

daughters, and her grandson. She had given permis-

sion to her oldest daughter, Tashena Waycaster (who

does not reside with her), and Dan Pion, to stay at her

house while she was away; Hotchkiss testiﬁed that she

allowed them to stay at her house while she was away

because they were heroin addicts and basically home-

less. Hotchkiss took her valuables with her when she

left for vacation because she did not want the items

stolen by Waycaster and Pion (presumably to be sold

for drugs).

The backyard of LaVern and Theresa Bailey’s house

borders both the Brown and Hotchkiss backyards.

LaVern said that he was working on his computer

around 10:00 a.m. on the morning of July 4, 2012,

when he saw a man carrying something and walking

from the area of Brown’s house to the Hotchkiss house.

LaVern was not positive that the man had come from

Brown’s house, “but [the man] was so close to the

house” that “it kind of surprised [him].” While LaVern

did not see the man come directly out of Brown’s house,

he did see him go into the Hotchkiss house. He de-

scribed the man, who was approximately 40 yards

away, as “[a] black man, medium build, short hair,

about ﬁve eight, ﬁve ten.” LaVern and his wife saw the

same man 15 minutes later walking from the side area

of Brown’s house toward the Hotchkiss house, carrying

a laundry basket ﬁlled with “all kinds of stuff,” as well

as a brown jug or jar. The man put the basket on the

deck of the Hotchkiss house, noticed that he was being

watched by LaVern and his wife, and walked into the

house. The Baileys thought it looked a little suspicious

but did not call the police at that time.

Pion and Waycaster admitted that in July 2012 they

used heroin, cocaine, crack cocaine, and marijuana;

Pion would sometimes steal things to pay for the drugs

414 313 M

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409 [Dec

and Waycaster would prostitute herself for money to

pay for the drugs. Pion and Waycaster testiﬁed that

defendant was staying with them at the Hotchkiss

house while her parents were on vacation around the

Fourth of July in 2012. According to Pion and Way-

caster, they ran into defendant at the Dairy Queen in

town during the daytime and returned to Hotchkiss’s

home to smoke marijuana and crack cocaine. They

testiﬁed that after doing drugs with defendant, defen-

dant said that he was going to leave and “hit a lick,”

which is a slang term meaning that defendant was

going to steal something. Pion said that defendant left

and returned with a storage tote containing a couple of

game systems, movies, and games; he placed the items

in the basement of 813 West Lawrence (the address of

the Hotchkiss home) and then left and returned with

what Pion thought was a 32-inch ﬂat-screen television;

according to Waycaster, defendant had socks on his

hands. Pion claimed that defendant left the house

again and Pion went to bed. Pion testiﬁed that Way-

caster was with him at her mother’s house while

defendant was coming and going from the house.

Waycaster testiﬁed that defendant went in and out of

the Hotchkiss house at least four separate times; she

saw him carry in a ﬂat-screen television, video game

systems, DVDs, and games. Waycaster denied ever

entering Brown’s house. Waycaster said that she told

defendant that she “wanted something out of it,” i.e., a

cut of the proﬁts from selling the stolen goods, and

that, when asked, defendant told her that he had

stolen the items and pointed to the next door neigh-

bor’s house. According to Waycaster, defendant showed

her money in his pocket. Pion thought defendant was

going to sell the stolen items so that they could buy

drugs. Defendant was sleeping on the couch when

Waycaster went to bed; when Pion and Waycaster woke

2015] P

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) 415

up the next morning, most of the items defendant had

brought into the house were gone, as was defendant.

They found some small miscellaneous items taken by

defendant still in the house, and hid them under a bed.

Pion also discovered that $20 was missing from his car.

Matthew Andrews, a friend of defendant, testiﬁed

that defendant was with him around noon on July 4,

2012, at a baseball game. According to Andrews, defen-

dant went to Lake Michigan for the day with An-

drews’s family and defendant’s girlfriend. They stayed

in Saugatuck for a few hours and purchased ﬁreworks

on the way home, returning to Andrews’s house in

Charlotte around 11:00 p.m. on July 4. Andrews testi-

ﬁed that defendant spent the night at Andrews’s home.

Mindy Dassance, who has a child with defendant,

testiﬁed that defendant called her on July 5, 2012,

asking her to pick him up at Andrews’s home; she said

that she did so and drove him back to her home.

According to Dassance, defendant did not own a ve-

hicle.

The Baileys called the police on July 5, 2012, after

Theresa drove by Brown’s house and noticed that the

front door was open. Charlotte Police Sergeant James

Falk arrived at Brown’s house around 6:00 p.m. Ac-

cording to Falk, it was clear that the house had been

broken into because items appeared to be missing and

the rooms had been ransacked. Falk contacted Brown

on the telephone at her mother’s home and informed

her that her house had been broken into and that

property had been stolen. Falk testiﬁed that after

speaking with the Baileys he knocked on the door of

the Hotchkiss house. No one answered the door but

through a window he could see a green laundry basket

lying on the ﬂoor in the basement.

416 313 M

ICH

409 [Dec

Brown drove home after receiving the telephone call

from Falk. Brown noted numerous items missing from

her home: a 55-inch ﬂat-screen television, an Xbox 360,

a Wii, two blue-ray DVD players, over 600 DVDs, 50

Xbox games, 100 Wii games, portable DVD players, a

round glass jar partially full of coins, a 32-inch ﬂat-

screen television that had been in her bedroom, a

candleholder from the kitchen, food items from the

refrigerator and freezer, alcohol, a brand new digital

camera with a manual, a new computer printer still in

the box, prescription medications, handheld personal

gaming devices, 100 Game Boy DS games, a Dell

laptop computer, a window air conditioner, a GPS

device, and a full-size cooler. Brown testiﬁed that the

dresser drawers had been emptied in her and one of

her son’s bedrooms, with the clothes strewn every-

where, and that a green laundry basket and $5,500 in

cash had also been taken. In addition, she said that a

television in another son’s bedroom was tipped over

and on the ﬂoor and a Wii ﬁgurine was missing. The

original insurance estimate to replace the stolen items,

excluding the $5,500, was $24,000.

Falk returned to the Hotchkiss home later that

night after the Baileys informed him that someone was

home at that house. When questioned, Waycaster in-

dicated that in the preceding ﬁve days a woman named

“Jamie” had been at the home with them. Waycaster

informed Falk that the green laundry basket found in

the Hotchkiss house belonged to her mother. According

to Pion, he and Waycaster realized during Falk’s ques-

tioning that the items defendant had brought into the

Hotchkiss house had been stolen from Brown’s house.

Pion and Waycaster testiﬁed that they did not tell the

police about defendant staying with them because they

did not want to get anyone in trouble; Waycaster also

testiﬁed that she was afraid of getting into trouble

2015] P

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) 417

because she felt somewhat responsible for holding

stolen items. Pion testiﬁed that he did not know who

lived at the Brown house or that they would be on

vacation on July 4.

Hotchkiss returned with her family to their house on

July 6, 2012. When she got home, her landlord told her

about the break-in at Brown’s house. Hotchkiss found

items later identiﬁed as stolen from Brown’s house

under her grandson’s bed and in other areas around

her house. Hotchkiss said that she called the Charlotte

Police Department as soon as she found the items.

Hotchkiss spoke to Waycaster on the telephone before

the police arrived and told her that she and Pion

needed to speak to the police or they would not be

allowed to stay in her home. Pion and Waycaster again

spoke with police on July 8, 2012. At ﬁrst, both Pion

and Waycaster minimized their knowledge of the rob-

bery, but both identiﬁed defendant and described his

conduct on July 4. Pion testiﬁed that he did not feel

pressured by the police to “give up a name” and denied

that he named defendant because he was a black male

he knew.

Hotchkiss testiﬁed that additional items were taken

from her home four days after she returned from

vacation; Pion and Waycaster were not at the house

when it happened. Pion and Waycaster came over to

her house and she told them what happened. Pion

showed Hotchkiss a text message that he said he had

received from defendant; Hotchkiss testiﬁed that the

content of the text was vindictive and threatening, and

that the message

was pertaining to the fact that he had found out that

[Pion]

and [Waycaster] had went and talked to the police

and that he couldn’t believe that [Pion] basically would

choose [Waycaster] over him since they were, they had

418 313 M

ICH

409 [Dec

grown up and been friends most of their lives. And that

since he couldn’t get to [Waycaster] then he would have to

then basically go after me and my three little ones.

Hotchkiss never reported the text message to the

police. Pion testiﬁed that he did not remember showing

a text message to anyone but knew from the text that

defendant was mad about something.

Brown later identiﬁed items found in the Hotchkiss

home, including a green laundry basket, a change jar,

jewelry, one of her son’s digital cameras, the Wii

ﬁgurine, and two fans, as belonging to her. At trial,

Brown also identiﬁed a missing jar, a Wii steering

wheel controller, a DVD, a digital camera with the

manual, and a Polaroid camera, all found in the

Hotchkiss home, as belonging to her.

During the trial, Pion testiﬁed that he had been

charged with the felony of receiving and concealing

stolen property and that in exchange for his testimony

against defendant, the prosecutor’s ofﬁce had agreed to

allow him to plead guilty to a misdemeanor charge of

receiving and concealing stolen property. Waycaster

testiﬁed that she had also been charged with felony

receiving and concealing stolen property, and that in

exchange for her truthful testimony, the charges were

reduced to misdemeanor receiving and concealing sto-

len property.

The jury convicted defendant of one count of second-

degree home invasion, MCL 750.110a(3). Defendant

was sentenced as stated earlier in this opinion. At

sentencing, defendant was assessed 25 points for Of-

fense Variable (OV) 13 (continuing pattern of felonious

activity), MCL 777.43, and 5 points for OV 16 (value of

stolen property), MCL 777.46.

This appeal followed. After defendant ﬁled his ap-

peal, he moved this Court to remand for resentencing

2015] P

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) 419

under People v Lockridge, 498 Mich 358; 870 NW2d

502 (2015). This Court denied his motion “without

prejudice to the panel’s consideration of the issue in

the context of the pending appeal.” People v Jackson,

unpublished order of the Court of Appeals, entered

September 4, 2015 (Docket No. 322350).

II. INSTRUCTION ON LESSER OFFENSE

Defendant argues that the trial court erred by

instructing

the jury on the lesser included offense of

third-degree home invasion. Defendant maintains

that, by providing essentially identical instructions on

second-degree and third-degree home invasion, the

instructions as a whole were confusing and allowed the

jury to convict defendant of the higher offense (second-

degree home invasion) on no greater proof than would

sustain a conviction for the lesser offense (third-degree

home invasion), thus lowering the prosecution’s bur-

den of proof on the former. The record indicates that

defendant’s counsel requested that the jury be so

instructed, and defendant’s counsel afﬁrmatively ap-

proved the jury instruction as read. Defendant has

thus waived his right to challenge any error in this

instruction. People v Chapo, 283 Mich App 360, 372-

373; 770 NW2d 68 (2009).

Further, even if defendant had not waived appellate

review

of this issue, we would ﬁnd that reversal was

not required. “A criminal defendant is entitled to have

a properly instructed jury consider the evidence

We reject defendant’s assertion that such an alleged instructional

error cannot be waived. See People v Carter, 462 Mich 206, 215-216; 612

NW2d 144 (2000). Further, for the reasons noted in this opinion, the

instructions did not result in manifest injustice or prejudice to defen-

dant. See People v Carines, 460 Mich 750, 775; 597 NW2d 130 (1999)

ELLY

, J., concurring in part).

420 313 M

ICH

409 [Dec

against him.” People Riddle, 467 Mich 116, 124; 649

NW2d 30 (2002). The jury instructions must include all

elements of the charged offenses and any material

issues, defenses, and theories if there is evidence to

support them. People v Reed, 393 Mich 342, 349-350;

224 NW2d 867 (1975). This Court reviews unpreserved

challenges to jury instructions for plain error affecting

a party’s substantial rights. People v Carines, 460 Mich

750, 763-764; 597 NW2d 130 (1999).

“MCL 768.32(1) permits the trier of fact to ﬁnd a

defendant guilty of a lesser offense if the lesser offense

is necessarily included in the greater offense. A lesser

offense is necessarily included in the greater offense

when the elements necessary for the commission of the

lesser offense are subsumed within the elements nec-

essary for the commission of the greater offense.”

People v Wilder, 485 Mich 35, 41; 780 NW2d 265

(2010). The trial court should give a “requested in-

struction on a necessarily included lesser offense . . . if

the charged greater offense requires the jury to ﬁnd a

disputed factual element that is not part of the lesser

included offense and a rational view of the evidence

would support it.” People v Cornell, 466 Mich 335, 357;

646 NW2d 127 (2002).

In this case, defendant was charged with second-

degree home invasion, and defense counsel requested,

and the jury was additionally instructed on, the lesser

offense of third-degree home invasion, MCL

750.110a(4). Second-degree home invasion is estab-

lished when

[a] person who breaks and enters a dwelling with

intent to

commit a felony, larceny, or assault in the dwelling, a

person who enters a dwelling without permission with

intent to commit a felony, larceny, or assault in the

dwelling, or a person who breaks and enters a dwelling or

enters a dwelling without permission and, at any time

2015] P

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) 421

while he or she is entering, present in, or exiting the

dwelling, commits a felony, larceny, or assault . . . . [MCL

750.110a(3) (emphasis added).]

In relevant part, third-degree home invasion is

established when a person

[b]reaks and enters a dwelling with intent to commit a

misdemeanor in the dwelling, enters a dwelling without

permission with intent to commit a misdemeanor in the

dwelling, or breaks and enters a dwelling or enters a

dwelling without permission and, at any time while he or

she is entering, present in, or exiting the dwelling, com-

mits a misdemeanor. [MCL 750.110a(4)(a) (emphasis

added).]

Our Supreme Court has held that “[t]he second

element of the lesser crime, commission of a misde-

meanor while present in the dwelling, is subsumed

within the second element of the greater crime

charged, commission of a larceny while present in the

dwelling, because every felony larceny necessarily in-

cludes within it a misdemeanor larceny.” See People v

Wilder, 485 Mich 35, 46; 780 NW2d 265 (2010). This

Court had earlier concluded, in People v Sands, 261

Mich App 158, 163; 680 NW2d 500 (2004), that the

language of MCL 750.110a(2) permits a misdemeanor

larceny or misdemeanor assault to serve as the predi-

cate offense for ﬁrst-degree home invasion, rather than

requiring felony larceny or assault. The Court rea-

soned that, “because felonies are speciﬁcally listed as

underlying crimes for ﬁrst-degree home invasion, it

would be redundant to list assault and larceny sepa-

rately if subsection 110a(2) was referring to only felony

assaults and larcenies.” Id. Although the Wilder and

Sands Courts were considering the ﬁrst-degree home

invasion statute, the relevant language of that statute

is the same as that of the second-degree home invasion

422 313 M

ICH

409 [Dec

statute. See MCL 750.110a(2) and (3).

The rationale of

those cases is therefore equally applicable to second-

degree home invasion, MCL 750.110a(3), and either a

misdemeanor or felony larceny thus may serve as the

predicate offense for second-degree home invasion.

Consequently, where, as here, the predicate offense for

the home invasion charge was a larceny, third-degree

home invasion is a lesser included offense of second-

degree home invasion.

Nonetheless, under the facts of this case, a rational

view of the evidence did not support the giving of an

instruction on third-degree home invasion. See Cor-

nell, 466 Mich at 357. In this case, there is no record

evidence that defendant entered Brown’s home to

commit any crime other than a larceny. Speciﬁcally,

Pion and Waycaster both testiﬁed that defendant said

he was going to “hit a lick,” which is a slang term

meaning that defendant was going to steal something,

and that he returned to the house later carrying items

in a basket. Because either felony or misdemeanor

larceny may serve as the predicate offense underlying

second-degree home invasion, Sands, 261 Mich App at

163, and because there was no evidence of any predi-

cate act other than larceny supporting the second-

degree home invasion charge, the evidence in this case

did not allow for a distinction between second-degree

home invasion and third-degree home invasion, and

therefore did not support an instruction on third-

degree home invasion. The trial court thus erred by

giving that instruction. See Cornell, 466 Mich 335, 357.

The trial court and counsel for the parties appeared

to struggle with how to instruct the jury that both

felony and misdemeanor larceny may serve as the

First-degree home invasion requires proof of additional elements not

at issue in this case. See MCL 750.110a(2)(a) and (b).

2015] P

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) 423

predicate offense underlying second-degree home inva-

sion. However, if anything, this confusion aided defen-

dant by allowing him a chance to be convicted of a

lesser offense based on a predicate offense that would

have supported a higher charge. Although defendant

argues that the instruction given allowed the jury to

convict him of a higher offense than that which the

evidence supported, it is the converse that is actually

true: the instruction allowed defendant the chance to

be convicted of a lesser offense than that which the

evidence supported. Thus, the jury was allowed to

consider a lesser charge that it should not have been

allowed to consider. Had the jury convicted defendant

of the lesser offense, he would have been subject to a

lesser sentence. However, the jury convicted defendant

of the higher charged offense, second-degree home

invasion. We therefore hold that the improper jury

instruction did not affect defendant’s substantial

rights. See Carines, 460 Mich at 763-764.

We further

hold

that a defendant may not request such an instruc-

Arguably, our analysis (based on existing caselaw) leads to a

somewhat counterintuitive result: while third-degree home invasion is a

necessarily included lesser offense of second-degree home invasion

involving larceny, cases in which the predicate offense alleged is larceny

(or assault, for that matter) will generally not require that an instruc-

tion on third-degree home invasion be given. But our analysis is

consistent with the oft-repeated mantra that our task is to give fair and

natural import to the language of statutes, and not to speculate

regarding the intent of the Legislature beyond the language expressed

in the statute. See Chico-Polo v Dep’t of Corrections, 299 Mich App 193,

198; 829 NW2d 314 (2013). Moreover, even if, in construing the home

invasion statutory scheme as a whole, we were to interpret the elements

of third-degree home invasion to require proof of an intended or

committed misdemeanor apart from larceny or assault, our conclusion

would not be altered. Rather, in that event, a jury instruction on

third-degree home invasion still would be improper in this case, because

it would be inconsistent with the charges and unsupported by the

evidence. And in either event, the instruction, though erroneous, inured

to defendant’s potential beneﬁt and is not grounds for reversal.

424 313

ICH

409 [Dec

tion, only to later claim resulting confusion in the jury

instructions, thus harboring error as an appellate

parachute. See People v Buie, 491 Mich 294, 299; 817

NW2d 33 (2012).

III. PROSECUTORIAL ERROR

Defendant next argues that the prosecution erred by

improperly

vouching for Pion and Waycaster’s credibil-

ity and bolstering their testimony during closing argu-

ments, and additionally in soliciting testimony from

Hotchkiss regarding a threatening text message that

was not reported to the police. We disagree. Defen-

dant’s trial counsel did not object to the prosecution’s

comments regarding Pion’s and Waycaster’s testimony,

to the speciﬁed closing argument comments related to

them, or to Hotchkiss’s statement regarding the text

message. This issue is thus unpreserved and reviewed

for plain error affecting substantial rights. Carines,

460 Mich at 763-764. “Reversal is warranted only when

plain error resulted in the conviction of an actually

innocent defendant or seriously affected the fairness,

integrity, or public reputation of judicial proceedings.”

People v Callon, 256 Mich App 312, 329; 662 NW2d 501

(2003). “Further, [this Court] cannot ﬁnd error requir-

ing reversal where a curative instruction could have

alleviated any prejudicial effect.” Id. at 329-330.

We review claims of prosecutorial error on a case-

by-case basis by examining the record and evaluating

As this Court recently noted in People v Cooper, 309 Mich App 74,

87-88; 867 NW2d 452 (2015), although the term “prosecutorial miscon-

duct” has become a term of art often used to describe any error

committed by the prosecution, claims of inadvertent error by the

prosecution are “better and more fairly presented as claims of ‘prosecu-

torial error,’ with only the most extreme cases rising to the level of

‘prosecutorial misconduct.’ ”

2015] P

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ACKSON

ECON

) 425

the prosecution’s remarks in context. People v Noble,

238 Mich App 647, 660; 608 NW2d 123 (1999). “[T]he

prosecutor is permitted to argue the evidence and all

reasonable inferences arising from it.” People v

Thomas, 260 Mich App 450, 454; 678 NW2d 631

(2004). However, the prosecution cannot vouch for the

credibility of a witness “to the effect that [the pros-

ecution] has some special knowledge concerning a

witness’ truthfulness.” People v Bahoda, 448 Mich

261, 276; 531 NW2d 659 (1995). The prosecution may,

however, make reference to a plea agreement contain-

ing a promise of truthfulness, provided that the

agreement is not “used by the prosecution to suggest

that the government had some special knowledge, not

known to the jury, that the witness was testifying

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

ted). Additionally, “a prosecutor may comment on his

own witnesses’ credibility during closing argument,

especially when there is conﬂicting evidence and the

question of the defendant’s guilt depends on which

witnesses the jury believes.” Thomas, 260 Mich App

at 455.

In this case, defendant claims that the prosecution

improperly vouched for Pion’s and Waycaster’s cred-

ibility during her closing argument by stating that

they were testifying truthfully. The prosecution stated

that Pion and Waycaster testiﬁed pursuant to a plea

agreement, and that the “ongoing plea agreement

[was] still intact and they ha[d] to testify truthfully.”

The prosecution further argued that, despite their

drug use, Pion and Waycaster had testiﬁed truthfully

to the best of their ability and that their testimony was

supported by other evidence, such as the testimony of

neighbors who had seen a black male going between

the Brown house and the Hotchkiss house.

426 313 M

ICH

409 [Dec

Defense counsel repeatedly attacked Pion’s and Way-

caster’s credibility because of their drug use and drug

addiction. In context, the prosecution’s comments were

made in response to defense counsel’s theory of the

case—that Pion and Waycaster were not credible wit-

nesses because of their drug use. See Thomas, 260 Mich

App at 454. Further, although the prosecution referred

to the plea agreement, it did not “suggest that the

government had some special knowledge, not known to

the jury, that the witness[es] [were] testifying truth-

fully.” Bahoda, 448 Mich at 276. We therefore ﬁnd no

error requiring reversal in the prosecution’s statements

concerning Pion’s and Waycaster’s credibility.

Defendant further argues that the prosecution and

the police did not have personal knowledge of the

“threatening” text allegedly sent by defendant, and

that the prosecution’s reference to it in closing argu-

ment denied him a fair trial. Hotchkiss ﬁrst referred to

the text message during her cross-examination by

defense counsel. On redirect, the prosecution ques-

tioned Hotchkiss regarding the timing of the text

message in relation to the break-in that occurred at her

home. In context, it is clear that Hotchkiss gave an

unresponsive answer to the prosecution’s questions

after the prosecution twice instructed her not to dis-

cuss the content of the message. Unresponsive answers

from witnesses are generally not prosecutorial error.

See People v Hackney, 183 Mich App 516, 531; 455

NW2d 358 (1990) (stating that “[a]s a general rule,

unresponsive testimony by a prosecution witness does

not justify a mistrial unless the prosecutor knew in

advance that the witness would give the unresponsive

testimony or the prosecutor conspired with or encour-

aged the witness to give that testimony”). Further, the

prosecution did not question Hotchkiss about the con-

tent of the text message, but did make it clear through

2015] P

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ACKSON

ECON

) 427

its examination that no one was charged for the

break-in and that Hotchkiss did not know for sure who

took the items; thus, the prosecution further inquired

into the incident, not the text message, to minimize the

effect of the nonresponsive reference to the content of

the text message. Finally, despite defendant’s asser-

tion to the contrary, the prosecution did not refer to the

text message during its closing argument and thus did

not argue facts not in evidence. See People v Stanaway,

446 Mich 643, 686; 521 NW2d 557 (1994).

IV. JURY COMPOSITION

Defendant argues that his Sixth Amendment right

a fair trial was violated by the jury empaneled to

decide his case, because it did not represent a fair

cross-section of the community. We disagree. Defen-

dant did not raise this issue in the trial court and we

review it for plain error affecting substantial rights.

Carines, 460 Mich at 763-764.

A defendant has the right to be tried by an impartial

jury drawn from a fair cross section of the community.

US Const, Am VI; Const 1963, art 1, § 20; People v

Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012). In

Bryant, our Supreme Court explained that to establish

a prima facie case of a violation of the Sixth Amend-

ment’s fair-cross-section requirement, a defendant

must show:

(1) that the group alleged to be excluded is a ‘distinctive’

roup in the community; (2) that the representation of this

group in venires from which juries are selected is not fair

and reasonable in relation to the number of such persons in

the community; and (3) that this underrepresentation is

due to systematic exclusion of the group in the jury-

selection process. [Id. at 581-582, quoting Duren v Mis-

souri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979).]

428 313

ICH

409 [Dec

“[W]hen applying the relevant statistical tests, a court

must examine the composition of jury pools and veni-

res over time using the most reliable data available to

determine whether representation is fair and reason-

able.” Bryant, 491 Mich at 599-600. “A systematic

exclusion is one that is inherent in the particular

jury-selection process utilized.” Id. at 615-616 (quota-

tion marks and citation omitted).

Defendant argues in this case that his jury was more

Caucasian, more educated, and had more ties to law

enforcement than a typical cross-section of the Eaton

County community. In support of this assertion, defen-

dant refers to the 2010-2011 United States Census of

Eaton County, which according to defendant indicates

that Eaton County is more than 90% Caucasian, about

6% African-American, and less than 4% Hispanic.

Defendant asserts that his jury was “either all White,

with no African-Americans present, or had only one

member that was not White[.]” However, there is no

evidence in the record of the racial makeup of defen-

dant’s jury. Further, defendant provides no evidence

indicating a “systematic” exclusion of African-

Americans from Eaton County jury pools. See Bryant,

491 Mich at 615. Defendant has thus failed to establish

a prima facie case for violation of the Sixth Amend-

ment’s fair-cross-section requirement with regard to

race. Id. at 597.

With regard to education level and ties to law

enforcement, defendant provides no evidence that per-

sons possessing a certain degree of education or ties to

law enforcement, or lacking the same, are members of

a “distinctive” group in the Eaton County community.

Id. Further, the record, although it does not reﬂect the

precise education levels of the selected jurors, indicates

that the jurors came from a wide variety of professions;

2015] P

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ACKSON

ECON

) 429

additionally, while four jurors acknowledged ties to law

enforcement, no evidence was presented that this was

disproportionate compared to the community at large.

We thus conclude that defendant has failed to establish

a prima facie case for violation of the Sixth Amend-

ment’s fair-cross-section requirement with regard to

education level or ties to law enforcement. Id.

Defendant also makes passing reference to the pros-

ecution’s use of preemptory challenges to allegedly

excuse one African-American juror. To the extent that

defendant seeks to raise a Batson

challenge to the

prosecution’s

use of preemptory challenges, this issue

is also unpreserved and reviewed for plain error. Car-

ines, 460 Mich at 763-764. Further, “unless it is clear

from the record that the prosecution is using its

peremptory challenges in a discriminatory fashion, a

defendant who fails to raise the issue or otherwise

develop an adequate record of objections forfeits appel-

late review of the issue.” People v Vaughn, 200 Mich

App 32, 40; 504 NW2d 2 (1993). Our review of the

record does not reveal that the challenged juror was, as

defendant claims, challenged because of his race. The

record is devoid of any evidence regarding the racial

makeup of any of the prospective jurors, let alone the

juror in question.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his trial counsel was ineffec-

tive

for failing to object to the jury composition and

selection, failing to object to prosecutorial error, and

failing to diligently inquire into the prosecution’s lack

of effort in attempting to obtain from the telephone or

telecommunication company information regarding

Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).

430 313 M

ICH

409 [Dec

the text message. We disagree. Defendant did not move

the trial court for a new trial or a Ginther

hearing. Our

review of defendant’s claim is thus limited to errors

apparent on the record. People v Matuszak, 263 Mich

App 42, 48; 687 NW2d 342 (2004).

It is strongly presumed that defense counsel “ren-

dered adequate assistance and made all signiﬁcant

decisions in the exercise of reasonable professional

judgment.” People v Vaughn, 491 Mich 642, 670; 821

NW2d 288 (2012) (quotation marks and citation omit-

ted). When reviewing defense counsel’s performance,

the reviewing court must ﬁrst objectively “determine

whether, in light of all the circumstances, the identiﬁed

acts or omissions were outside the wide range of profes-

sionally competent assistance.” Strickland v Washing-

ton, 466 US 668, 690; 104 S Ct 2052; 80 L Ed 2d 674

(1984). Next, the defendant must show that trial coun-

sel’s deﬁcient performance prejudiced his defense—in

other words, that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Vaughn, 491

Mich at 669 (quotation marks and citation omitted). The

defendant must establish both prongs of this test to

prevail on his claim of ineffective assistance of counsel.

People v Hoag, 460 Mich 1, 5-6; 594 NW2d 57 (1999). In

addition, “to persuade a reviewing court that counsel

was ineffective, a defendant must also overcome the

presumption that the challenged action was trial strat-

egy . . . .” Id. at 6.

With regard to the jury composition and alleged

prosecutorial error, defendant has failed to establish a

factual predicate for these claims, as discussed earlier

in Parts III and IV of this opinion. See id. With regard

to defense counsel’s alleged failure to adequately in-

People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973).

2015] P

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ECON

) 431

vestigate the text message, “[d]ecisions regarding what

evidence to present, whether to call witnesses, and how

to question witnesses are presumed to be matters of

trial strategy . . . .” People v Horn, 279 Mich App 31, 39;

755 NW2d 212 (2008). In addition, “[d]efense counsel’s

failure to present certain evidence will only constitute

ineffective assistance of counsel if it deprived defen-

dant of a substantial defense.” People v Dunigan, 299

Mich App 579, 589; 831 NW2d 243 (2013). “A substan-

tial defense is one that might have made a difference in

the outcome of the trial.” Chapo, 283 Mich App at 371

(quotation marks and citation omitted). “Because the

defendant bears the burden of demonstrating both

deﬁcient performance and prejudice, the defendant

necessarily bears the burden of establishing the fac-

tual predicate for his claim.” People v Carbin, 463 Mich

590, 600; 623 NW2d 884 (2001).

The record does not indicate that anyone ever in-

formed the police of the text message Hotchkiss testi-

ﬁed to viewing on Pion’s cellular telephone; Hotchkiss

testiﬁed that she did not inform the police of the text

after her house was robbed, and Pion testiﬁed that he

did not show the text to anyone. Moreover, Hotchkiss’s

original statement regarding the text was elicited by a

question by defendant’s trial counsel. Trial counsel was

not ineffective for failing to request purported evidence

of which not even the police, let alone the prosecution,

were aware. Therefore, defendant cannot establish

that trial counsel’s performance fell below an objective

standard of reasonableness. See Strickland, 466 US at

690. Further, even if trial counsel’s performance was

deﬁcient on this issue, in light of other testimony

incriminating defendant, defendant cannot demon-

strate that he was deprived of a substantial defense.

See Dunigan, 299 Mich App at 589.

432 313 M

ICH

409 [Dec

VI. SENTENCING

As noted earlier in this opinion, defendant moved

this Court to remand for resentencing in light of

Lockridge, 498 Mich at 358. Our review of the record

convinces us that remand is not required.

At the outset, we note that defendant does not argue

on appeal that the trial court erred in its scoring of any

OVs. That is, defendant does not argue that the court’s

factual ﬁndings in scoring OVs 13 and 16 were clearly

erroneous or not supported by a preponderance of the

evidence. A trial court’s factual determinations in scor-

ing the OVs must be supported by a preponderance of

the evidence; we review the trial court’s ﬁndings of fact

for clear error. People v Hardy, 494 Mich 430, 438; 835

NW2d 340 (2013). But in this case defendant merely

argues on appeal that the facts supporting the scoring

of OVs 13 and 16 were not found by the jury or

admitted by defendant, and that a remand is therefore

required by Lockridge.

We reiterate that judicial fact-ﬁnding remains an

important component of Michigan’s sentencing scheme

post-Lockridge. Although the sentencing guidelines are

no longer mandatory, “they remain a highly relevant

consideration in a trial court’s exercise of sentencing

discretion.” Lockridge, 498 Mich at 391. Lockridge sim-

ply requires that where, as here, a trial court was not

aware at the time of sentencing that the sentencing

guidelines were advisory, we consider whether OVs

were scored based on facts necessarily found by the jury

or admitted by defendant, and whether, applying Lock-

ridge, a remand is required.

Indeed, sentences imposed by trial courts post-Lockridge (knowing

of the advisory nature of the sentencing guidelines) will not require the

consideration we must give the instant case. See Lockridge, 498 Mich at

2015] P

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ACKSON

ECON

) 433

We conclude that a remand is not required in this

case. We do agree that the scoring for OV 16 was not

based on facts admitted by defendant or necessarily

found by the jury; however, the scoring of OV 13 was

based on facts admitted by defendant. Because, as

explained later in this opinion, removing the 5 points

scored for OV 16 from defendant’s OV score would not

alter his minimum guidelines range, defendant has not

made a threshold showing of plain error.

In Lockridge, the Supreme Court held that in order

to avoid any Sixth Amendment violations, Michigan’s

sentencing guidelines scheme was to be deemed advi-

sory, instead of being mandatory. Id. at 399. The

concern is that when a judge makes ﬁndings of fact

“beyond facts admitted by the defendant or found by

the jury” in a sentencing proceeding and those ﬁndings

increase the defendant’s minimum sentence, this runs

afoul of the defendant’s right to a jury trial. Id. at 364.

As a result, the guidelines no longer can be considered

mandatory, but sentencing judges must consult the

guidelines and “ ‘take them into account when sentenc-

ing.’ ” Id. at 391, quoting United States v Booker, 543

US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005).

In determining whether there is any plain error

under this new scheme, the ﬁrst inquiry is whether the

facts admitted by the defendant and the facts neces-

sarily 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.” Id. at 394.

If the answer is “yes,” then a defendant cannot estab-

392 (“Because sentencing courts will hereafter not be bound by the

applicable sentencing guidelines range, this remedy cures the Sixth

Amendment ﬂaw in our guidelines scheme . . . . Sentencing courts must,

however, continue to consult the applicable guidelines range and take it

into account when imposing a sentence.”)

434 313

ICH

409 [Dec

lish any plain error. Id. at 394-395. If the answer is

“no,” then a remand to the trial court is required to

allow it to determine whether, now aware of the

advisory nature of the guidelines, the court would have

imposed a materially different sentence. Id. at 397. If

the court determines that it would have imposed a

materially different sentence, then it shall order resen-

tencing. Id.

In this case, defendant objected to the scoring of OV

16 (value of stolen property) at sentencing; further,

because the jury was only required to ﬁnd that defen-

dant intended or did commit a larceny, not a larceny of

a speciﬁc value, facts supporting this score were not

necessarily found by a jury. See MCL 750.110a(3). They

also were not admitted by defendant. We thus agree

that, in considering whether defendant can make a

threshold showing of plain error,

the 5 points scored

for

OV 16 should ﬁrst be subtracted from defendant’s

total OV score.

However, we disagree with defendant’s contention

that the scoring of OV 13 was not based on facts

admitted by defendant. A score of 25 points for OV 13

must be supported by facts indicating that the sentenc-

ing offense was part of a pattern of felonious activity

involving three or more crimes against a person within

a ﬁve-year period. See MCL 777.43(1)(c). Home inva-

sion is a crime against a person. MCL 777.16f. The

United States Supreme Court has recognized that a

defendant’s admission of a prior conviction satisﬁes the

requirement that a sentencing enhancement be based

on facts admitted by a defendant or found by a jury. See

Our review of the record does not indicate, and defendant does not

argue on appeal, that the score for OV 16 was clearly erroneous or not

supported by a preponderance of the evidence. See Hardy, 494 Mich at

438.

2015] P

EOPLE V

ACKSON

ECON

) 435

Apprendi v New Jersey, 530 US 466, 488; 120 S Ct

2348; 147 L Ed 2d 435 (2000) (“Because Almendarez-

Torres had admitted the three earlier convictions for

aggravated felonies—all of which had been entered

pursuant to proceedings with substantial procedural

safeguards of their own—no question concerning the

right to a jury trial or the standard of proof that would

apply to a contested issue of fact was before the

Court.”), citing Almendarez-Torres v United States, 523

US 224; 118 S Ct 1219; 140 L Ed 2d 350 (1998). In this

case, defendant had pleaded guilty in 2012 to two

charges of home invasion related to offenses committed

earlier in 2010 and 2011. Defense counsel stipulated

the existence of these convictions at sentencing in this

case. More signiﬁcantly, in pleading guilty to those

crimes against a person, defendant admitted his com-

mission of those crimes, and admitted the factual basis

for his guilty pleas to those crimes, in “proceedings

with substantial procedural safeguards of their

own . . . .” Apprendi, 530 US at 488. Therefore, the

facts underlying the scoring of OV 13 were admitted by

defendant, and the points scored for OV 13 need not be

subtracted in considering defendant’s total OV score

under Lockridge.

Reducing defendant’s OV score by 5 points (by

subtracting the score for OV 16) would not alter

defendant’s guidelines minimum sentence range.

Therefore, remand is not required under Lockridge.

Lockridge, 498 Mich App at 395.

Afﬁrmed.

AAD

and H

OEKSTRA

, JJ., concurred with B

OONSTRA

P.J.

436 313 M

ICH

409 [Dec

KYOCERA CORPORATION v HEMLOCK SEMICONDUCTOR, LLC

Docket No. 327974. Submitted October 6, 2015, at Lansing. Decided

December 3, 2015, at 9:05 a.m. Leave to appeal denied 500 Mich

892.

Kyocera Corporation, which manufactures solar panels, brought an

action in the Saginaw Circuit Court against Hemlock Semicon-

ductor, LLC, which produces polycrystalline silicon. In November

2008, the parties entered into a long-term take-or-pay contract

(Agreement IV) that required plaintiff to purchase a certain

quantity of polycrystalline silicon annually over a period of years

for a ﬁxed price. The agreement contained a force-majeure clause.

That clause provided, in part, that neither buyer nor seller would

be liable for delays or failures in the performance of its obligations

arising out of “acts of the Government.” Plaintiff sought a

declaratory judgment that certain acts of the Chinese and United

States governments, which affected the prices of polycrystalline

silicon and solar panels, constituted a force-majeure event under

the agreement such that plaintiff was not liable for any delays or

failure to perform. Defendant moved for summary disposition.

The court, M. Randall Jurrens, J., granted the motion, holding

that even if acts of the Chinese or United States governments

constituted a force-majeure event, economic hardship caused by

market conditions was not sufﬁcient to invoke the clause. Plain-

tiff appealed.

The Court of Appeals held:

Force-majeure clauses are narrowly construed and will only

excuse a party’s nonperformance if the event that caused the

nonperformance is speciﬁcally identiﬁed. The conduct alleged in

this case did not constitute a force-majeure event under the

parties’ contract. Plaintiff argued that because of a trade war in

the solar industry, it could no longer pay defendant the prices

negotiated in the agreement. The risk of a deﬂation of market

prices—no matter the cause—was expressly assumed by plaintiff

in its take-or-pay contract with defendant. Plaintiff opted not to

protect itself with a contractual limitation on the degree of

market price risk that it would assume. It could not, through

judicial action, manufacture a contractual limitation by broadly

interpreting the force-majeure clause to say something that it did

2015] K

YOCERA V

EMLOCK

EMICONDUCTOR

437

not. Agreement IV stated that plaintiff was absolutely and

irrevocably required to pay the agreed price over the term of the

agreement. Therefore, applying the force-majeure clause to ex-

cuse plaintiff’s obligation to pay would nullify a central term of

the contract and relieve plaintiff from the very risk it contracted

to assume. The fact that plaintiff may not have foreseen the trade

war was not relevant to the interpretation of the force-majeure

clause in the parties’ contract. Certainly, the general notion that

markets are volatile and prices may rise and fall was known to

both parties and that risk was precisely allocated by the take-or-

pay nature of Agreement IV. Plaintiff failed to allege a cognizable

claim that a force-majeure event occurred, or that a force-majeure

event caused a delay or failure in performance under the contract.

The trial court correctly concluded that plaintiff failed to state a

claim on which relief could be granted.

Afﬁrmed.

Dykema Gossett PLLC (by Jill

M. Wheaton and

Krista L. Lenart) and Morrison & Foerster LLP (by

David C. Doyle, William V. O’Connor, Joseph R. Pal-

more, and Ellen N. Adler) for plaintiff.

Braun Kendrick Finkbeiner PLC (by Jamie Hecht

Nisidis and Craig W. Horn) and Orrick, Herrington

& Sutcliffe LLP (by John Ansbro, J. Peter Coll, Jr., and

Thomas Kidera) for defendant.

Before: B

OONSTRA

, P.J., and S

AAD

and H

OEKSTRA

, JJ.

OONSTRA

, P.J. Plaintiff appeals by right the trial

court’s order granting summary disposition in favor of

defendant under MCR 2.116(C)(8) (failure to state a

claim) and dismissing plaintiff’s declaratory-judgment

action. We afﬁrm.

I. NATURE OF THE CASE

This case involves the interpretation of a force-

majeure clause in a contract. Generally, the purpose of

a force-majeure clause is to relieve a party from pen-

438 313 M

ICH

437 [Dec

alties for breach of contract when circumstances be-

yond the party’s control render performance untenable

or impossible. See Erickson v Dart Oil & Gas Corp, 189

Mich App 679, 689; 474 NW2d 150 (1991). The contract

at issue is a take-or-pay contract. A take-or-pay con-

tract obligates a buyer to purchase a speciﬁc quantity

of product from the seller (usually also the manufac-

turer of the product) at a ﬁxed price; if the buyer

purchases less than that quantity, it is nonetheless

obligated to pay the seller for the full speciﬁed quantity

at the speciﬁed price. See, e.g., Mobil Oil Exploration

& Producing Southeast Inc v United Distrib Co, 498 US

211, 229; 111 S Ct 615, 112 L Ed 2d 636 (1991). The

very essence of a take-or-pay contract is to allocate to

the buyer the risk of falling market prices by virtue of

ﬁxed purchase obligations at a long-term ﬁxed price

and to thereby secure for the buyer a stable supply,

while allocating to the seller the risk of increased

market prices and, by virtue of the buyer’s obligation to

take or pay for a ﬁxed quantity of product, removing

from the seller the risk of producing product that may

go unpurchased. See generally Medina, The Take-or-

Pay Wars: A Cautionary Analysis for the Future, 27

Tulsa L J 283 (1991).

At stake in this case is plaintiff’s liability under its

take-or-pay contract for the purchase of polysilicon for

use in solar panels. If plaintiff is liable under the

contract for the full purchase price of all unordered

polysilicon for the duration of the contract, plaintiff

faces liability of up to $1.74 billion. Plaintiff asserts

that such a liability would force it to leave the solar

panel industry. Nonetheless, as developed later in this

opinion, we conclude that plaintiff contracted for pre-

cisely that liability, that plaintiff contractually as-

sumed the very market risks that give rise to that

liability, and that the plain language of the force-

2015] K

YOCERA V

EMLOCK

EMICONDUCTOR

439

majeure clause at issue does not permit relief to

plaintiff on the ground that the market for polysilicon

has shifted, regardless of the cause of that shift. We

therefore afﬁrm the trial court’s dismissal of plaintiff’s

complaint for declaratory relief under MCR

2.116(C)(8).

II. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff is a Japanese company that produces high-

quality

solar panels. Defendant is a Michigan company

and a large manufacturer of polycrystalline silicon

(also called polysilicon), which is used in the manufac-

ture of solar panels. Plaintiff alleges that in 2005 there

was a worldwide shortage of polysilicon and defendant

proposed partnering with plaintiff to provide it with a

stable supply of polysilicon. According to plaintiff,

defendant intended to signiﬁcantly expand its manu-

facturing capacity to meet the increased demand for its

product, funding this expansion with long-term con-

tracts for the sale of polysilicon.

Between 2005 and 2008, the parties entered into

four long-term contracts requiring plaintiff to purchase

a certain quantity of polysilicon annually over a period

of 10 years, and allowing defendant to bill plaintiff for

the difference between the quantities of polysilicon

plaintiff ordered in a year and the expected order for

that year. Plaintiff thus contracted to secure a long-

term, stable supply of polysilicon, by virtue of which it

protected itself from market disruptions that might

threaten that supply. The trade-off was a contracted-

for ﬁxed price, and an obligation to pay for quantities of

polysilicon for which plaintiff anticipated a need, even

if that need ultimately proved to be nonexistent. The

parties did not (although they could have) negotiate a

contractual limitation (e.g., a price ﬂoor or ceiling), and

440 313 M

ICH

437 [Dec

therefore plaintiff assumed all downside price risk (if

the market price fell) and defendant assumed all

upside price risk (if the market price rose). According

to plaintiff, the contracts provided for advance pay-

ments to be used by defendant in expanding its poly-

silicon manufacturing infrastructure. Plaintiff alleges

that by 2010, it had made $685 million in advance

payments on the contracts toward $2.6 billion in total

purchases of polysilicon from defendant. Plaintiff as-

serts that the advance payments allowed defendant to

open a new facility in Tennessee, costing approxi-

mately $1.2 billion. Each agreement also contained an

acceleration clause that rendered plaintiff liable for

the full purchase price of all unordered polysilicon for

the entire length of the contract in the event of a

default in payment.

At issue in this case is the November 13, 2008

long-term supply agreement between the parties

(Agreement IV), which plaintiff alleges is the “last, and

by far the largest,” agreement between the parties.

Pursuant to that agreement, plaintiff was to pay de-

fendant more than $514,848,000 in advance payments

for set amounts of polysilicon to be purchased through

2020. The deliveries were scheduled to begin in 2011

and end in 2020. Section 19 of Agreement IV is a

force-majeure provision, which states as follows:

Neither Buyer nor Seller shall be liable for delays or

failures

in performance of its obligations under this Agree-

ment that arise out of or result from causes beyond such

party’s control, including without limitation: acts of God;

acts of the Government or the public enemy; natural

disasters; ﬁre; ﬂood; epidemics; quarantine restrictions;

strikes; freight embargoes; war; acts of terrorism; equip-

ment breakage (which is beyond the affected Buyer’s or

Seller’s reasonable control and the affected Buyer or Seller

shall promptly use all commercially reasonable efforts to

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remedy) that prevents Seller’s ability to manufacture

Product or prevents Buyer’s ability to use such Product in

Buyer’s manufacturing operations for solar applications;

or, in the case of Seller only, a default of a Seller supplier

beyond Seller’s reasonable control (in each case, a “Force

Majeure Event”). In the event of any such delay or failure

of performance by Buyer or Seller, the other party shall

remain responsible for any obligations that have accrued

to it but have not been performed by it as of the date of the

Force Majeure Event. When the party suffering from the

Force Majeure Event is able to resume performance, the

other party shall resume its obligations hereunder. The

Term of this Agreement may be extended for a period not

to exceed three (3) years so as to complete the purchase

and delivery of Product affected by a Force Majeure Event.

The party suffering a Force Majeure Event shall provide

the other party with prompt written notice of (i) the

occurrence of the Force Majeure Event, (ii) the date such

party reasonably anticipates resuming performance under

this Agreement and, if applicable, (iii) such party’s request

to extend the Term of this Agreement.

In addition, if due to a Force Majeure Event or any

other cause, Seller is unable to supply sufﬁcient goods to

meet all demands from customers and internal uses,

Seller shall have the right to allocate supply among its

customers in any manner in which Seller, in its sole

discretion, may determine.

Plaintiff alleges that after Agreement IV was ex-

cuted, the Chinese government embarked on a plan to

become the world leader in the solar industry. To that

end, the Chinese government provided illegal subsidies

to Chinese companies, some of which are state owned.

Plaintiff further alleges that the Chinese companies

engaged in “large-scale dumping,” i.e., “when a foreign

producer, aided by state support, sells a product at a

price that is lower than its cost of production to inten-

tionally manipulate an industry and capture market

share.” As a result, plaintiff contends that China gained

442 313 M

ICH

437 [Dec

75% of the global solar-panel market, causing over 20

United States and European manufacturers to go out of

business and solar-panel prices to “decline[] precipi-

tously.” In 2012, plaintiff asserts, the United States

imposed antisubsidy and antidumping import tariffs on

Chinese-manufactured components of solar panels.

According to plaintiff, the president and chief execu-

tive ofﬁcer of defendant’s majority shareholder, Dow

Corning Corporation, issued a response to the tariffs,

hoping that the United States and Chinese govern-

ments would reach an acceptable compromise to stabi-

lize the industry. However, defendant announced lay-

offs in January 2013 and reduced production because

of the trade problems with China.

Plaintiff alleges that as a result of China’s market

interference, the price of polysilicon to which the

parties agreed in 2008 is signiﬁcantly higher than the

market price as of 2015. Consequently, plaintiff main-

tains, defendant has reduced its participation in the

solar market and focused on enforcing its long-term

contract, in many cases accepting cash settlements

without having to provide polysilicon, which has

caused defendant to remain proﬁtable despite the

United States and China’s lack of progress toward

resolution of the dispute.

In 2011 and 2012, the parties agreed to a series of

amendments to Agreement IV, lowering the gross price

and applying advance payments to shipments in 2011

and 2012. However, the gross prices from 2013 to 2020

were left unchanged. Plaintiff claims that defendant did

not follow through with its additional proposal to amend

the long-term pricing to a ﬁgure that would be based on

market conditions.

Plaintiff alleges that after the 2011

Plaintiff points to no authority that would obligate defendant to

amend the contracted-for long-term pricing, nor are we aware of any.

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and 2012 amendments were signed, defendant’s man-

agement team changed, and defendant began a strat-

egy of abandoning long-term contracts by refusing

amendments to the contracts and keeping its custom-

ers’ advance payments while charging them double the

market prices, resulting in defendant’s invocation of

the acceleration clauses in the long-term contracts,

lawsuits, and settlements. By 2014, defendant insisted

that there would be no further amendments to Agree-

ment IV. Plaintiff alleges that in December 2014, after

the United States imposed further “anti-dumping du-

ties” on Chinese solar panels and cells, defendant’s

Tennessee plant was permanently closed because of

the “market adversity.”

On February 2, 2015, plaintiff sent notice to defen-

dant that it would be exercising its right under the

force-majeure clause of Agreement IV to discontinue

its contractual obligations because of the actions of the

Chinese government. On February 13, 2015, plaintiff

ﬁled a complaint for declaratory judgment, seeking a

declaration that the acts of the Chinese and United

States governments constitute a force-majeure event

under Agreement IV, and that it is not liable for delays

or failures to perform for as long as the force-majeure

event continues. On March 6, 2015, defendant moved

for summary disposition under MCR 2.116(C)(8), alleg-

ing that plaintiff had failed to state a claim upon which

relief could be granted because the force-majeure

clause does not apply to changes in ﬁnancial conditions

and no governmental act prevented plaintiff from

performing under Agreement IV.

After lengthy oral arguments and supplemental

brieﬁng, the trial court granted defendant’s motion,

holding that the unambiguous language of the force-

majeure clause indicated that even if the acts of the

444 313 M

ICH

437 [Dec

Chinese or United States governments constituted a

force-majeure event under the contract, economic

hardship caused by market conditions “is simply not

sufﬁcient to invoke force majeure,” particularly in the

context of a take-or-pay contract, and that the force-

majeure clause in the parties’ contract “does not pro-

vide [plaintiff] any potential relief from its obligation

to pay merely because the contract price is no longer

ﬁnancially advantageous.”

This appeal followed.

III. STANDARD OF REVIEW

We review a trial court’s grant of summary disposi-

tion

de novo. Spiek v Dep’t of Transp, 456 Mich 331,

337; 572 NW2d 201 (1998). “MCR 2.116(C)(8) tests the

legal sufﬁciency of the claim on the pleadings alone to

determine whether the plaintiff has stated a claim on

which relief may be granted.” Spiek; 456 Mich at 337;

MCR 2.116(G)(5). “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.” Maiden v

Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999)

(citation and quotation marks omitted). “All well-

pleaded factual allegations are accepted as true and

construed in a light most favorable to the nonmovant.”

Id. However, unsupported statements of legal conclu-

sions are insufﬁcient to state a cause of action. ETT

Ambulance Serv Corp v Rockford Ambulance, Inc, 204

Mich App 392, 395; 516 NW2d 498 (1994).

The interpretation of contractual language, as well

as the determination of whether that contractual lan-

guage is ambiguous, is a question of law that we review

de novo. Rossow v Brentwood Farms Dev, Inc, 251 Mich

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App 652, 658; 651 NW2d 458 (2002); Mahnick v Bell

Co, 256 Mich App 154, 159; 662 NW2d 830 (2003).

IV. ANALYSIS

Plaintiff argues that the trial court erred when it

determined that the language of the force-majeure

clause was unambiguous and that plaintiff had failed

to state a claim under the clause. That is, plaintiff

contends that it adequately pleaded, in accordance

with the terms of the force-majeure clause, that its

“delays or failure in performance of its obligations

under [the] Agreement” (i.e., plaintiff’s inability to pay)

“ar[o]se out of or result[ed] from . . . acts of the [Chi-

nese] Government,” such that its performance should

have been excused. We disagree.

This Court’s “main goal in the interpretation of

contracts is to honor the intent of the parties.” Mah-

nick, 256 Mich App at 158-159. The words used in the

contract are the best evidence the parties’ intent. Id. at

159, citing UAW-GM Human Resource Ctr v KSL

Recreation Corp, 228 Mich App 486, 491; 579 NW2d

411 (1998). “When contract language is clear, unam-

biguous, and has a deﬁnite meaning, courts do not

have the ability to write a different contract for the

parties, or to consider extrinsic testimony to determine

the parties’ intent.” Mahnick, 256 Mich App at 159.

The relevant language of the force-majeure clause is

as follows: “Neither Buyer nor Seller shall be liable for

delays or failures in performance of its obligations

under this Agreement that arise out of or result from

causes beyond such party’s control, including without

limitation: . . . acts of the Government . . . .” This Court

has previously observed that there is a paucity of

Michigan cases interpreting force-majeure clauses, see

Erickson, 189 Mich App at 686, and that remains the

446 313 M

ICH

437 [Dec

case today. However, our general rules of contract

interpretation, such as the rule that terms used in a

contract are to be given their commonly used meanings

unless deﬁned in the contract, apply to the interpreta-

tion of force-majeure clauses. See Group Ins Co of Mich

v Czopek, 440 Mich 590, 596; 489 NW2d 444 (1992).

Further, contracts must be read as a whole. Hastings

Mut Ins Co v Safety King, Inc, 286 Mich App 287, 292;

778 NW2d 275 (2009). Force-majeure clauses are typi-

cally narrowly construed, such that the clause “will

generally only excuse a party’s nonperformance if the

event that caused the party’s nonperformance is spe-

ciﬁcally identiﬁed.” In re Cablevision Consumer Litiga-

tion, 864 F Supp 2d 258, 264 (ED NY, 2012), citing

Reade v Stoneybrook Realty, LLC, 63 AD3d 433, 434;

882 NYS2d 8 (2009); see also Great Lakes Gas Trans-

mission Ltd Partnership v Essar Steel Minnesota, LLC,

871 F Supp 2d 843, 854 (D Minn, 2012).

In this case, the trial court assumed

that plaintiff

had

adequately pleaded that the actions of China or

the United States in the solar industry market gener-

ally constituted “acts of the Government.”

Plaintiff

Cases from other jurisdictions, although not binding on this Court,

may be persuasive. Hiner v Mojica, 271 Mich App 604, 612; 722 NW2d

914 (2006). Michigan courts have turned to other jurisdictions for

guidance in the interpretation of force-majeure clauses. See Erickson,

189 Mich App at 688-689.

Plaintiff argues that the trial court “correctly found that [plaintiff]

had alleged force majeure events . . . .” That description is inaccurate.

The trial court merely assumed a force-majeure event, and instead

focused its analysis on “whether the alleged effect (i.e. ﬁnancial hard-

ship) of the assumed force majeure event (i.e., acts of the Government)

renders [plaintiff] unable to perform its obligations under the Agree-

ment.”

We note that the contractual force-majeure clause in this case used

the term “acts of the Government.” That is, it referred to “the” Govern-

ment, and it capitalized the word “Government” without deﬁning the

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argues, however, that the trial court erred by deter-

mining that plaintiff had not adequately pleaded that

its delays or failure in performance under the contract

had arisen out of or resulted from the “acts of the

Government.” We disagree.

At the outset, we note that the bulk of plaintiff’s

complaint for declaratory relief consists of allegations

of bad behavior on the part of defendant. Such conduct,

even if true, cannot form the basis for relief under the

force-majeure clause, because none of the alleged acts

are “acts of God; acts of the Government or the public

enemy; natural disasters; ﬁre; ﬂood; epidemics; quar-

antine restrictions; strikes; freight embargoes; war;

acts of terrorism; [or] equipment breakage . . . .” While

we appreciate the indulgence granted by the trial court

in assuming the occurrence of a force-majeure event,

we hold that the conduct alleged in this case did not

constitute a force-majeure event under the parties’

contract, and that the trial court should have, had it

considered the issue, granted summary disposition to

defendant on that additional ground. Regardless, how-

ever, of whether we analyze whether a force-majeure

term. This is in contrast to the force-majeure clauses at issue in some of

the cited cases, some of which use arguably broader terminology, such as

“ ‘acts or restraints of any government or governmental body or

authority, civil or military,’ ” ANR Pipeline Co v Devon Energy Corp,

unpublished opinion of the United States District Court for the Western

District of Michigan, issued February 1, 1989 (Case No. G86-1123 CA),

p 2, or “ ‘any action by governmental authority, including ecological

authorities,’ ” Sharon Steel Corp v Jewell Coal & Coke Co, 735 F2d 775,

777 n 2 (CA 3, 1984). Given our disposition of this appeal, however, we

need not decide the meaning of the undeﬁned yet capitalized term

“Government,” or whether the term “the Government” refers to the

United States government or the government of the state of Michigan

(Michigan law applies to the contract), whether it also includes the

government(s) of plaintiff’s location (Japan), or whether, though un-

speciﬁed, it potentially includes all governments at any level throughout

the world (including China’s).

448 313

ICH

437 [Dec

event occurred, or whether plaintiff’s alleged inability

to perform its contractual obligations arose out of or

resulted from an assumed force-majeure event, our

holding is the same: plaintiff failed to state a claim on

which relief could be granted, and the trial court

properly granted summary disposition to defendant.

We will afﬁrm a trial court’s decision on a motion for

summary disposition if it reached the correct result,

even if our reasoning differs. Washburn v Michailoff,

240 Mich App 669, 678 n 6; 613 NW2d 405 (2000).

Plaintiff argues that, because of the effect of the

“trade war” in the solar industry market, it can no

longer pay defendant the prices that the parties nego-

tiated in Agreement IV, and would be forced to leave

the solar panel industry if it remained liable under the

contract. But these allegations are conclusory and

unsupported by allegations of fact. See ETT Ambu-

lance Serv Corp, 204 Mich App at 395. Speciﬁcally,

even taking plaintiff’s factual allegations as true and

construing them in plaintiff’s favor, the allegations of

the complaint only indicate that the deﬂation of the

market price for polysilicon has rendered plaintiff’s

contract with defendant unproﬁtable. The risk of such

a deﬂation of market prices—no matter the cause—

was expressly assumed by plaintiff in its take-or-pay

contract with defendant. Plaintiff opted not to protect

itself with a contractual limitation on the degree of

market price risk that it would assume. It cannot now,

by judicial action, manufacture a contractual limita-

tion that it may in hindsight desire by broadly inter-

preting the force-majeure clause to say something that

it does not.

Rather, construing the force-majeure clause nar-

rowly, as we must, see In re Cablevision Consumer

Litigation, 864 F Supp 2d at 264, the conduct at issue

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simply does not constitute a force-majeure event.

Plaintiff does not allege any “act[] of the Government”

that directly prevented its performance under the

contract. It merely alleges that the depression of prices

in the solar panel market caused performance by

plaintiff to become unproﬁtable or unsustainable as a

business strategy. But plaintiff did not (although,

again, it could have) negotiate a contractual force-

majeure clause that by its terms would have excused

contractual performance resulting from unproﬁtability

due to governmental market manipulation. Having

failed to do so, plaintiff cannot now, through judicial

action, effectively reform the contract to include a

provision that was not negotiated for by the parties.

A similar argument to plaintiff’s was presented to,

and rejected by, the United States Court of Appeals for

the Fourth Circuit in Langham-Hill Petroleum Inc v

Southern Fuels Co, 813 F2d 1327 (CA 4, 1987). In

Langham-Hill Petroleum, the defendant argued that

action taken by Saudi Arabia, “which led to a dramatic

drop in world oil prices, falls within the scope of the

contract’s force majeure or Act of God clause,” excusing

the party’s failure to perform under the contract. Id.,

813 F2d at 1328. The court rejected that argument,

holding as a matter of law that summary disposition in

favor of the nonbreaching party was proper because a

“[s]hortage of cash or inability to buy at a remunera-

tive price cannot be regarded as a contingency beyond

the seller’s control.” Id. at 1330 (citation and quotation

marks omitted). The court further reasoned that “[i]f

ﬁxed-price contracts can be avoided due to ﬂuctuations

in price, then the entire purpose of ﬁxed-price con-

tracts, which is to protect both the buyer and the seller

from the risks of the market, is defeated.” Id.

450 313 M

ICH

437 [Dec

Further, allowing a force-majeure clause to provide

a party with relief from an unproﬁtable market down-

turn would defeat the purpose of a take-or-pay con-

tract, under which a party (in this case, plaintiff)

obligates itself to purchase a set amount of a product at

a set price per year, or pay the other party the

difference between the amount of product it purchases

and the contractual amount. “The very reason for

entering the take-or-pay contracts [is] to insure pay-

ment to the producer in the event of substantial change

in the marketplace.” Day v Tenneco, Inc, 696 F Supp

233, 236 (SD Miss, 1988). In this case, Agreement IV

states that “Buyer is absolutely and irrevocably re-

quired to pay the Net Price per kilogram for the

Contract Quantity per calendar year over the Term of

this Agreement.” Thus, reading the contract as a

whole, see Hastings Mut Ins, 286 Mich App at 292, we

conclude that applying the force-majeure clause to

excuse plaintiff’s obligation to pay pursuant to the

contract’s take-or-pay provision would “nullify a cen-

tral term of the contract,” Northern Indiana Pub Serv

Co v Carbon Co Coal Co, 799 F2d 265, 275 (CA 7, 1986),

and relieve plaintiff from the very risk it contracted to

assume.

More generally, although in the context of contracts

with ﬁxed prices rather than take-or-pay contracts

speciﬁcally, persuasive authority from other jurisdic-

tions indicates that ﬁnancial hardship and unproﬁt-

ability do not constitute the type of delay or failure in

performance sufﬁcient to warrant relief under a force-

majeure clause. See, e.g., Great Lakes Gas Transmis-

sion Ltd Partnership, 871 F Supp 2d at 855 (noting

that, reading the contract at issue as a whole, the

defendant “fail[ed] to connect its invocation of the force

majeure clause directly with the terms of the Contract”

when it alleged that it could not pay under the contract

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because of an economic downturn); Flathead-Mich I,

LLC v Peninsula Dev, LLC, unpublished order of the

United States District Court for the Eastern District of

Michigan, entered March 16, 2011 (Case No. 09-14043)

(“The state of the market is one of the things on which

the parties are gambling when the contract . . . is

made.”) (quotation marks and citation omitted); Sea-

board Lumber Co v United States, 308 F3d 1283, 1293

(CA Fed, 2002) (“Such acts have only an attenuated

effect on the contracts at issue, at most making perfor-

mance by the timber contractors unproﬁtable.”); In re

Millers Cove Energy Co, Inc, 62 F3d 155, 158 (CA 6,

1995) (stating that “[c]ourts and commentators gener-

ally refuse to excuse lack of compliance with contrac-

tual provisions due to economic hardship, unless such

a ground is speciﬁcally outlined in the contract”); Coker

Int’l, Inc v Burlington Indus, Inc, 747 F Supp 1168,

1170 (D SC, 1990) (“The force majeure clause applies to

objective events which directly affect the parties’ abil-

ity to perform the contract in question, not the ability

to make a proﬁt . . . .”) (emphasis added); Langham-

Hill Petroleum Inc, 813 F2d 1328.

Again, plaintiff does not allege any objective event

that directly affected its ability to perform under

Agreement IV. It merely alleged market events that

allegedly make the contract no longer proﬁtable.

Additionally, plaintiff’s reliance on ANR Pipeline Co

v Devon Energy Corp, unpublished opinion of the

United States District Court for the Western District of

Michigan, issued February 1, 1989 (Case No. G86-1123

CA), is misplaced. In ANR Pipeline, the take-or-pay

contract at issue contained two inconsistent clauses

addressing the force-majeure event at issue (the fail-

ure of the plaintiff’s customers to purchase gas given

the availability of cheaper gas from other sources). Id.

452 313 M

ICH

437 [Dec

at pp 1-12. The trial court thus found the contract

ambiguous and inappropriate for summary disposi-

tion. Id. at 12-13.

In this case, the parties did not argue below that the

force-majeure clause or any portion of Agreement IV is

ambiguous. “It is well settled that the meaning of an

ambiguous contract is a question of fact that must be

decided by the jury.” Klapp v United Ins Group Agency,

Inc, 468 Mich 459, 469; 663 NW2d 447 (2003). On

appeal, plaintiff does not articulate a sufﬁcient basis

for this Court to conclude that either a patent or latent

ambiguity exists in the contract so as to render sum-

mary disposition inappropriate. See Shay v Aldrich,

487 Mich 648, 667-668; 790 NW2d 629 (2010). ANR

Pipeline therefore does not aid plaintiff’s case. Further,

Sharon Steel Corp v Jewell Coal and Coke Co, 735 F2d

775, 779 (CA 3, 1984), while involving a force-majeure

clause, centered on a determination of whether the

plaintiff’s claim of commercial impracticability was

arbitrable in light of the strong federal policy favoring

arbitration. The Sharon Steel court’s decision that the

plaintiff’s claim was arbitrable despite the trial court’s

holding that a drop in market price would not trigger

the contract’s force-majeure clause does not aid plain-

tiff here in light of the substantially different analysis

undertaken in that case. See id. at 779. Our examina-

tion of caselaw from other jurisdictions supports our

conclusion that the trial court did not err by granting

summary disposition to defendant.

Notwithstanding this analysis, plaintiff argues that

the parties did not foresee the alleged illegality of the

Chinese government’s conduct. Plaintiff relies on

Chang v PaciﬁCorp, 212 Or App 14; 157 P3d 243

(2007), and Cartan Tours Inc v ESA Servs, Inc, 833 So

2d 873 (Fla Dist Ct App, 2003). Chang involved the

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common-law doctrine of frustration of purpose, not the

interpretation of a contract. Chang, 212 Or App at

40-41. Although plaintiff makes much of the trial

court’s statement in Chang that “ ‘intelligent and

informed executives of these corporations’ ” could not

reasonably be expected to anticipate “ ‘unlawful activ-

ity or activity that is so highly manipulative that it

totally distorts the market by the use of false or

misleading trading practices,’ ” that statement was

made in the context of the plaintiff’s assertion of the

defense of frustration of purpose, an essential element

of which is the occurrence of an unforeseeable event.

See id. at 22, 38-39, citing Restatement Contracts, 2d

(1981), § 265. Cartan Tours, 833 So 2d at 874, did

involve the interpretation of a force-majeure clause,

but did not discuss the foreseeability of illegal activity;

rather the Cartan Tours court was simply tasked with

determining whether an act of “terrorism” interfered

with “ ‘the ability of the Olympic Games to be

held . . . .’ ”

Plaintiff further distinguishes Langham-Hill Petro-

leum Inc, 813 F2d at 1328-1329, on foreseeability

grounds, arguing that it was foreseeable that Saudi

Arabia could affect the global oil market.

The

Langham-Hill court

did not base its conclusion on the

foreseeability of Saudi Arabia’s conduct, nor limit its

holding based on such foreseeability. Id. at 1330. Nor

has plaintiff provided this Court with any other au-

thority in which a court based the applicability of a

force-majeure clause on the foreseeability of a govern-

ment action. Plaintiff has thus not provided this Court

with any authority, and this Court has found none, to

Plaintiff also argues that a force-majeure event need not be foresee-

able, thereby undermining its own effort to distinguish Langham-Hill.

454 313 M

ICH

437 [Dec

support a conclusion that the foreseeability of a force-

majeure event is relevant to the interpretation of a

force-majeure clause.

More importantly, our decision does not rest on

foreseeability grounds, but on interpretation of the

contract and the risks assumed by both parties. Cer-

tainly, the general notion that markets are volatile and

prices may rise and fall was known to both parties and

such risk was precisely allocated by the take-or-pay

nature of Agreement IV. Agreement IV states, and

plaintiff does not challenge, that the parties to the

agreement were sophisticated business entities with

equal bargaining power; thus, if plaintiff had wished to

protect itself from artiﬁcial market deﬂation because of

government action (or, for that matter, excessive mar-

ket downturns of any kind), it could have done so.

Simply put, plaintiff has failed to allege a cognizable

claim that a force-majeure event occurred, or that a

force-majeure event caused a delay or failure in per-

formance under the contract.

Finally, plaintiff argues that at a minimum its case

should be allowed to proceed to discovery, so that the

issue of the foreseeability of China’s alleged illegal

actions in the solar market and the parties’ intent with

regard to allocation of risk can be explored. However,

as already stated, plaintiff did not argue below, and

does not support an argument before this Court, that

the contract was ambiguous. Absent ambiguity, inter-

pretation of a contract clause does not require parol or

extrinsic evidence to resolve. See Shay, 487 Mich at

667-668. Although plaintiff points out that several of

the cases from other jurisdictions were not resolved at

the pleading stage, we do not discern from the proce-

dural posture of the cases cited by plaintiff a rule that

cases involving the interpretation of force-majeure

2015] K

YOCERA V

EMLOCK

EMICONDUCTOR

455

clauses, even ones that involve allegedly illegal govern-

ment action, are immune from dismissal under MCR

2.116(C)(8). See Great Lakes Gas Transmission Ltd

Partnership, 871 F Supp 2d at 851-855, 862 (which

applied Michigan law and was decided on the plead-

ings).

Therefore, construing the force-majeure clause nar-

rowly, see In re Cablevision Consumer Litigation, 864 F

Supp 2d at 264, we conclude that plaintiff has failed to

allege a force-majeure event, or a cognizable delay or

failure to perform arising from a force-majeure event,

within the meaning of, and so as to trigger the protec-

tions of, the force-majeure clause contained in the

parties’ contract. Rather, plaintiff has merely pleaded

unproﬁtability given the deﬂation of market prices—a

risk plaintiff expressly assumed. Plaintiff has thus

failed to plead a claim on which relief can be granted.

MCR 2.116(C)(8); see also ETT Ambulance Serv Corp,

204 Mich App at 395-396.

Afﬁrmed.

AAD

and H

OEKSTRA

, JJ., concurred with B

OONSTRA

P.J.

456 313 M

ICH

437 [Dec

PEOPLE v FREDERICK

PEOPLE v VAN DOORNE

Docket Nos. 323642 and 323643. Submitted August 4, 2015, at Grand

Rapids. Decided December 8, 2015, at 9:00 a.m. Leave to appeal

sought.

Defendants Michael Christopher Frederick and Todd Randolph Van

Doorne were each charged in the Kent Circuit Court with various

controlled substance offenses arising after members of the Kent

Area Narcotics Enforcement Team (KANET) recovered mari-

juana butter during early-morning searches of each defendant’s

home. Before searching defendants’ homes, KANET ofﬁcers had

executed a search warrant at Timothy Scherzer’s home and

received information that defendants possessed marijuana but-

ter. KANET learned that Scherzer provided a large amount of

marijuana butter to a corrections ofﬁcer named Timothy Bern-

hardt, and Bernhardt delivered an unknown quantity of the

marijuana butter to each defendant. Both defendants possessed

medical marijuana cards and both identiﬁed Scherzer as their

caregiver. KANET ofﬁcers decided against obtaining search war-

rants for defendants’ homes. Instead, seven KANET ofﬁcers went

to Frederick’s home at approximately 4:00 a.m. and knocked on

his door. Frederick answered the door shortly after the ofﬁcers

knocked and invited the ofﬁcers into his home. The ofﬁcers asked

if they could see his marijuana butter, and Frederick agreed.

Frederick signed a form giving KANET ofﬁcers permission to

search his home, the ofﬁcers informed Frederick of his Miranda

rights, and Frederick signed a card waiving those rights. Then, at

approximately 5:30 a.m., KANET ofﬁcers went to Van Doorne’s

home, where the ofﬁcers similarly engaged Van Doorne in con-

versation, and Van Doorne invited the ofﬁcers in so he could

retrieve his medical marijuana card. Van Doorne and the ofﬁcers

ultimately spoke outside in a van because Van Doorne’s dog would

not stop barking. Van Doorne also signed forms waiving his

Miranda rights and consenting to a search of his home. Each

defendant ﬁled a motion to suppress the evidence found during

the search of his home, arguing that his consent to search was

involuntary, and that the knock-and-talk procedure

2015] P

EOPLE V

REDERICK

457

conducted at his home violated the Fourth Amendment according

to the United States Supreme Court’s decision in Florida v

Jardines, 569 US ___ (2013). After an extensive evidentiary

hearing, the trial court, Dennis B. Leiber, J., denied both motions.

The court concluded that each defendant voluntarily consented to

the search of his home, and that the knock-and-talk procedure

used at each defendant’s home did not offend the Fourth Amend-

ment. Frederick and Van Doorne ﬁled separate applications for

leave to appeal, which were denied. Defendants appealed in the

Supreme Court, which ordered that the cases be remanded to the

Court of Appeals for consideration as on leave granted. 497 Mich

933 (2015). The Court of Appeals consolidated the cases.

The Court of Appeals held:

1. The knock-and-talk procedures used in these consolidated

cases were not “searches” as contemplated by the Fourth Amend-

ment, or as “search” is deﬁned in Jardines. Therefore, unlike the

outcome in Jardines, the evidence recovered at each defendant’s

home was admissible against each defendant at trial. The ofﬁcers’

intent in these cases and in Jardines determined whether the

ofﬁcers conducted a permissible, and thus, a constitutional,

knock-and-talk. In Jardines, two police ofﬁcers approached on

foot a home suspected of housing a marijuana-grow operation.

The ofﬁcers were accompanied by a drug-snifﬁng dog, and the dog

alerted at the home’s front door. Because the ofﬁcers obtained

information by an unlawful physical intrusion on the defendant’s

property, a “search” within the meaning of the Fourth Amend-

ment occurred. In Jardines, the ofﬁcers’ intent was solely to

search for information, not to speak with the home’s occupants,

whereas the ofﬁcers in the cases at bar intended to speak with

Frederick and Van Doorne. That the ofﬁcers also anticipated

discovering and seizing marijuana butter does not establish a

violation of the Fourth Amendment as long as the ofﬁcers

operated with the intent to speak to Frederick and Van Doorne.

Even though the ofﬁcers in these cases intended to ask for

consent to search defendants’ homes, and even though the ofﬁcers

expected to ﬁnd inculpatory evidence at the homes, their purpose

was not solely to gather evidence or information without ﬁrst

obtaining a warrant.

2. Members of the general public have an implied license to

approach a home’s entrance—generally, the front door—by the

front path, knock, wait brieﬂy, and unless an express invitation to

linger is extended, leave the property. Police ofﬁcers have the

458 313

ICH

457 [Dec

same implicit license. They may approach a home and knock

because that is “no more than any private citizen might do.”

When the police comply with the scope of the implied license, no

“search” has occurred. However, the implied license is not an

invitation to bring a drug-snifﬁng dog within the protected area of

a person’s home in an effort to discover evidence of a controlled

substance offense. The police ofﬁcers in Jardines exceeded the

scope of the implied license. Their presence at the defendant’s

front door—with a drug-snifﬁng dog—transformed what was

otherwise a lawful entry onto the defendant’s property into an

unlawful, warrantless search that violated the defendant’s

Fourth Amendment protections.

3. Jardines established the line between permissible and

impermissible knock-and-talks. The line is deﬁned by a police

ofﬁcer’s intent at the time he or she approaches a home. An ofﬁcer

who has no intention of speaking to the occupant of the home but

is only at the home to gather evidence, has crossed the line and

engages in an unconstitutional search. An ofﬁcer who intends to

speak with the occupant of the home, even if the ofﬁcer intends to

seek permission to search the home, acts within the scope of the

implied license—that is, an ofﬁcer who intends to speak to the

occupant has not crossed the line.

Afﬁrmed.

ERVITTO

, J., dissenting, concluded that the knock-and-talks

that occurred in these cases violated Frederick’s and Van

Doorne’s Fourth Amendment rights and would have reversed

the trial court and remanded the cases to the trial court for

entry of an order suppressing the evidence against each defen-

dant. All the circumstances involved in the knock-and-talks at

Frederick’s and Van Doorne’s homes constituted police conduct

that offended the Fourth Amendment. Those circumstances

include the time of night KANET ofﬁcers conducted the knock-

and-talks, an objective view of the ofﬁcers’ conduct, the number

of ofﬁcers present at the time, and the ofﬁcers’ failure to advance

any objectively reasonable explanation why the interactions

with defendants could not have occurred in the daytime or why

the ofﬁcers did not obtain a search warrant. The instant case

presented an opportunity to address possible constitutional

limitations on the knock-and-talk procedure. That is, does a

knock-and-talk conducted at a private residence in the middle of

the night without evidence that the occupant of the residence

extended an explicit or implicit invitation to strangers to visit

during those hours constitute an unconstitutional search in

violation of the Fourth Amendment? Other jurisdictions have

2015] P

EOPLE V

REDERICK

459

answered the question, noting that (1) the time of day at which

a knock-and-talk is initiated is a signiﬁcant factor in determin-

ing whether the knock-and-talk is really an unreasonable search

and (2) the ofﬁcers’ purpose in approaching a person’s home is

also a signiﬁcant factor in making that determination. While the

time of a knock-and-talk is not the only deciding factor in

determining whether an unconstitutional search occurred, it is,

along with the totality of circumstances surrounding the knock-

and-talk, at least a signiﬁcant factor to consider.

1. C

ONSTITUTIONAL

AW —

OURTH

MENDMENT —

EARCHES AND

EIZURES —

NOCK

AND

-T

ALK

A police ofﬁcer’s intent distinguishes between permissible and

impermissible knock-and-talks; a police ofﬁcer who approaches a

person’s house with the belief that a controlled substance will be

found in the home does not violate the Fourth Amendment of the

United States Constitution as long as the ofﬁcer intended to

speak with the occupant of the home and was not there solely for

the purpose of gathering evidence or information without a

warrant; an ofﬁcer who knocks on the door to a person’s house

with no intention of speaking to the person but solely with the

intention of collecting information and evidence, violates the

Fourth Amendment’s prohibition against unreasonable searches

and seizures; provided that a police ofﬁcer intends to speak with

the occupant of a house, an ofﬁcer may approach a house with the

intention of asking the occupant for consent to search the house

and with the expectation that contraband will be found during

the search.

2. C

ONSTITUTIONAL

AW —

OURTH

MENDMENT —

OUSES —

MPLIED

ICENSE

PPROACH

Police ofﬁcers, like members of the general public, have an implied

license to approach a home’s entrance using the front path, knock

on the door, wait brieﬂy, and if not received or expressly invited to

linger there, leave the property; as long as a police ofﬁcer acts

within the scope of the implied license, there is no Fourth

Amendment violation.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, William A. Forsyth, Prosecut-

ing Attorney, and James K. Benison, Chief Appellate

Attorney, for the people.

460 313 M

ICH

457 [Dec

Shaw Law Group, PLC (by Jeffrey P. Arnson), for

Michael Christopher Frederick.

Bruce Alan Block, PLC (by Bruce Alan Block and

Bogomir Rajsic III), for Todd Randolph Van Doorne.

Before: T

ALBOT

, C.J., and K. F. K

ELLY

and S

ERVITTO

JJ.

ALBOT

, C. J. These consolidated cases are before us

on remand from our Supreme Court.

On remand, our

Supreme Court has directed us to consider “whether

the ‘knock and talk’ procedure[s] conducted in th[ese]

case[s are] consistent with US Const, Am IV, as articu-

lated in Florida v Jardines, [569 US ___;] 133 S Ct

1409[; 185 L Ed 2d 495] (2013).” For the reasons

discussed, we conclude that the knock-and-talk proce-

dures conducted with respect to both Frederick and

Van Doorne were consistent with the Fourth Amend-

ment. Accordingly, we afﬁrm the trial court’s decision.

I. FACTS

On March 17, 2014, at approximately 10:15 p.m., the

Kent

Area Narcotics Enforcement Team (KANET) ex-

ecuted a search warrant at the home of Timothy and

Alyssa Scherzer. While executing this warrant, the

KANET ofﬁcers learned that the Scherzers, acting as

caregivers, had been providing marijuana butter to

corrections ofﬁcers employed by the Kent County Sher-

iff Department (KCSD). Scherzer informed the

KANET ofﬁcers that he had given 14 pounds of mari-

juana butter to one corrections ofﬁcer, Timothy Bern-

hardt, who acted as a middleman and distributed the

People v Frederick, 497 Mich 993 (2015); People v Van Doorne, 497

Mich 993 (2015).

2015] P

EOPLE V

REDERICK

461

PINION OF THE

OURT

butter to other corrections ofﬁcers. Frederick and Van

Doorne were identiﬁed as two corrections ofﬁcers who

received marijuana butter through Bernhardt. Both

had been issued medical marijuana cards, and both

identiﬁed Timothy Scherzer as their caregiver.

Based on this information, the KANET ofﬁcers con-

templated whether to obtain search warrants for the

homes of the additional suspects, or alternatively, to

simply go to the home of each suspect, knock, and

request consent to conduct a search. The ofﬁcers chose

the latter approach. The team, composed that night of

seven ofﬁcers,

conducted four knock-and-talks in the

early

morning hours of March 18, 2014. The ofﬁcers

ﬁrst visited Bernhardt and another corrections ofﬁcer.

At approximately 4:00 a.m., the ofﬁcers, in four un-

marked vehicles, arrived at Frederick’s home. Each

ofﬁcer was wearing a tactical vest, and each had a

handgun holstered at his or her hip. Four ofﬁcers

approached the front door, knocked, and waited.

Within a few minutes, Frederick answered the door

and spoke to the ofﬁcers. The ofﬁcers informed Fred-

erick that his name had come up in a criminal inves-

tigation and asked if they could come inside and speak

with him. Frederick invited the ofﬁcers inside. The

ofﬁcers asked if they could see Frederick’s marijuana

butter, and he agreed. Frederick signed a form grant-

ing his consent to conduct a search. The ofﬁcers also

informed Frederick of his Miranda

rights, and Fred-

erick

signed a card waiving those rights. Ofﬁcers

recovered marijuana butter from Frederick’s home.

A total of eight ofﬁcers are members of KANET. However, one ofﬁcer

was unavailable on the night of March 17, 2014.

Neither Bernhardt nor this other ofﬁcer is a party to the instant

appeal.

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

462 313

ICH

457 [Dec

PINION OF THE

OURT

The team arrived at the home of Van Doorne at

approximately 5:30 a.m. Because ice made the front

door inaccessible, four ofﬁcers knocked at a side door.

Van Doorne awoke and looked outside. Recognizing

some of the ofﬁcers standing outside his home, Van

Doorne opened the door and spoke with them. As they

had with Frederick, the ofﬁcers explained the purpose

of their visit. Van Doorne, believing that the issue

could be resolved by showing the ofﬁcers his medical

marijuana card, invited the ofﬁcers inside. However,

because his dog continued to bark, Van Doorne and the

ofﬁcers decided to speak outside in a van. Once inside

the van, Van Doorne signed forms waiving his Miranda

rights and consenting to a search of his home. Ofﬁcers

recovered marijuana butter from Van Doorne’s home.

Frederick and Van Doorne were charged with vari-

ous controlled substance offenses.

Both men ﬁled

motions

to suppress the evidence obtained during the

searches. Each made two arguments: (1) his consent to

the search was involuntary, and (2) the knock-and-talk

procedure violated the Fourth Amendment under Jar-

dines. After an extensive evidentiary hearing, the trial

court denied the motions, concluding that the knock-

and-talk procedures were not searches or seizures

under the Fourth Amendment, and that both men

voluntarily consented to the searches. Frederick and

Van Doorne ﬁled separate applications for leave to

appeal in this Court, which this Court denied.

In lieu

granting leave to appeal, our Supreme Court re-

Frederick and Van Doorne were also placed on unpaid leave from

their positions with the corrections department.

People v Frederick, unpublished order of the Court of Appeals, issued

October 15, 2014 (Docket No. 323642); People v Van Doorne, unpub-

lished order of the Court of Appeals, issued October 15, 2014 (Docket No.

323643).

2015] P

EOPLE V

REDERICK

463

PINION OF THE

OURT

manded both cases to this Court to determine whether

the knock-and-talk procedures were constitutional in

light of Jardines.

II. DISCUSSION

A. STANDARD OF REVIEW

“We review for clear error a trial court’s ﬁndings of

fact in a suppression hearing, but we review de novo

its ultimate decision on a motion to suppress.”

Whether a violation of the Fourth Amendment has

occurred is an issue of constitutional law which we

review de novo.

B. THE SCOPE OF OUR INQUIRY

We ﬁrst address the limited scope of our review of

the cases before us. The Fourth Amendment of the

United States Constitution provides that “[t]he right of

the people to be secure in their persons, houses, pa-

pers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .”

Under the plain

language

of the amendment, “[t]he Fourth Amendment

is not a guarantee against all searches and seizures,

but only against those that are unreasonable.”

Thus,

any given Fourth Amendment case, there are two

general inquiries to be made: (1) whether a “search or

seizure” of a person, area, or object protected by the

Frederick, 497 Mich 993; Van Doorne, 497 Mich 993.

People v Hyde, 285 Mich App 428, 436; 775 NW2d 833 (2009).

Id.

US Const, Am IV.

People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985). See also

People v Dagwan, 269 Mich App 338, 342; 711 NW2d 386 (2005) (under

the Fourth Amendment, “not all searches are constitutionally prohib-

ited, only unreasonable searches”).

464 313 M

ICH

457 [Dec

PINION OF THE

OURT

amendment occurred, and (2) if so, whether that

search or seizure was unreasonable.

In this case, however, our inquiry is limited to the

question whether the knock-and-talk procedures used

in these cases amounted to a “search” within the

meaning of the Fourth Amendment. To understand the

scope of our inquiry, we reiterate that our Supreme

Court has directed us to consider only whether the

knock-and-talk procedures conducted in these cases

were consistent with the Fourth Amendment as articu-

lated in Jardines. In Jardines, the United States

Supreme Court’s inquiry was “limited to the question

of whether the ofﬁcers’ behavior was a search within

the meaning of the Fourth Amendment.”

The Court

did

not address whether, assuming a search occurred,

the search was reasonable, nor did it address whether

a seizure had occurred. Thus, we read our Supreme

Court’s order as directing us to consider a limited

question: whether the knock-and-talk procedures used

in these consolidated cases were “searches” within the

meaning of the Fourth Amendment, as a “search” is

deﬁned by Jardines.

We answer this question in the

negative.

C. FLORIDA

v JARDINES

The starting point of our analysis is the United

States Supreme Court’s opinion in Florida v Jardines.

In Jardines, two police ofﬁcers, acting on a tip that a

Jardines, 569 US at ___; 133 S Ct at 1414.

Thus, we do not address whether the trial court erred with respect

to Frederick’s and Van Doorne’s contentions that they did not volun-

tarily consent to the searches of their homes. Nor do we address whether

the knock-and-talk procedures became “seizures” under the Fourth

Amendment, another argument rejected by the trial court. Such inqui-

ries are outside the limited scope of our review on remand.

2015] P

EOPLE V

REDERICK

465

PINION OF THE

OURT

home was being used to grow marijuana, approached

the home on foot.

The ofﬁcers were accompanied by a

dog trained to detect the odor of speciﬁc controlled

substances.

The dog detected the odor of one of these

substances

and alerted at the base of the home’s front

door.

The ofﬁcers then used this information to obtain

a warrant to search the home.

Writing for the major-

ity, Justice Scalia used a property-rights framework to

determine whether the ofﬁcers had conducted a search

by approaching the home with the drug-snifﬁng dog.

First, Justice Scalia explained that “[w]hen ‘the

Government

obtains information by physically intrud-

ing’ on persons, houses, papers, or effects, ‘a “search”

within the original meaning of the Fourth Amendment’

has ‘undoubtedly occurred.’ ”

Justice Scalia explained

Jardines, 569 US at ___; 133 S Ct at 1413.

Id. at ___; 133 S Ct at 1413.

Id. at ___; 133 S Ct 1413. When the warrant was executed, the

ofﬁcers found marijuana plants, resulting in charges of marijuana

trafﬁcking against Jardines. Id. at ___; 133 S Ct 1413.

In a concurrence joined by two other justices, Justice Kagan ex-

plained that she “could just as happily have decided [the case] by looking

to Jardines’ privacy interests.” Id. at ___; 133 S Ct at 1418 (Kagan, J.,

concurring). Using a privacy-interests framework, Justice Kagan would

have simply held that because the ofﬁcers used a “ ‘device . . . not in

general public use’ ”—the drug-snifﬁng dog—“to explore details of the

home’ . . . that they would not otherwise have discovered without entering

the premises,” a search occurred. Id. at ___; 133 S Ct at 1419, quoting

Kyllo v United States, 533 US 27, 40; 121 S Ct 2038; 150 L Ed 2d 94 (2001)

(Kagan, J., concurring). Justice Scalia found it unnecessary to consider

Jardines’s privacy interests. Justice Scalia explained that the property-

rights framework was the Fourth Amendment’s baseline, and that the

privacy-interests framework merely added to that baseline. Id. at ___; 133

S Ct at 1417. Having concluded that a search occurred under the

property-rights framework, Justice Scalia found it unnecessary to con-

sider whether the same conclusion would be reached under a privacy-

interests framework. Id. at ___; 133 S Ct at 1417.

Id. at ___; 133 S Ct at 1414, quoting United States v Jones, 565 US

___, ___ n 3; 132 S Ct 945, 950-951 n 3; 181 L Ed 2d 911 (2012).

466 313 M

ICH

457 [Dec

PINION OF THE

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that a home’s front porch was a “classic exemplar of an

area adjacent to the home,” commonly known as the

“curtilage,” which is considered part of a home and,

thus, is protected by the Fourth Amendment.

Because

“the

ofﬁcers’ investigation took place in a constitution-

ally protected area,” the question became “whether it

was accomplished through an unlicensed physical in-

trusion.”

To answer this question, Justice Scalia

inquired into whether Jardines “had given his leave

(even implicitly) for” the ofﬁcers to set foot on his

property.

Justice Scalia then explained:

“A license may be implied from the habits of the

ountry,” notwithstanding the “strict rule of the English

common law as to entry upon a close.” McKee v. Gratz,

260 U. S. 127, 136 [43 S Ct 16; 67 L Ed 167] (1922)

(Holmes, J.). We have accordingly recognized that “the

knocker on the front door is treated as an invitation or

license to attempt an entry, justifying ingress to the

home by solicitors, hawkers and peddlers of all kinds.”

Breard v. Alexandria, 341 U. S. 622, 626 [71 S Ct 920; 95

L Ed 1233] (1951). This implicit license typically permits

the visitor to approach the home by the front path, knock

promptly, wait brieﬂy to be received, and then (absent

invitation to linger longer) leave. Complying with the

terms of that traditional invitation does not require

ﬁne-grained legal knowledge; it is generally managed

without incident by the Nation’s Girl Scouts and trick-

or-treaters. Thus, a police ofﬁcer not armed with a

warrant may approach a home and knock, precisely

because that is “no more than any private citizen might

do.” Kentucky v. King, 563 U. S. [452, 469; 131 S Ct 1849;

179 L Ed 2d 865 (2011)].

[23]

Jardines, 569 US at ___; 133 S Ct at 1414-1415.

Id. at ___; 133 S Ct at 1415.

Id at ___; 133 S Ct at 1415.

Id. at ___; 133 S Ct at 1415-1416.

2015] P

EOPLE V

REDERICK

467

PINION OF THE

OURT

In Jardines, the majority concluded that the ofﬁcers

exceeded the scope of this implied license and, thus,

conducted a search within the meaning of the Fourth

Amendment. This was because while any ordinary

citizen might walk up to the front door of a home and

knock, an ordinary citizen would not do so while

conducting a search of the premises using a specially

trained, drug-snifﬁng dog.

As explained by Justice

Scalia,

“[t]he scope of a license—express or implied—is

limited not only to a particular area but also to a

speciﬁc purpose. . . . [T]he background social norms

that invite a visitor to the front door do not invite him

there to conduct a search.”

Thus, Justice Scalia

concluded

that “[t]he government’s use of trained po-

lice dogs to investigate the home and its immediate

surroundings is a ‘search’ within the meaning of the

Fourth Amendment.”

D. JARDINES APPLIED

Justice Scalia’s implied-license framework has since

been

used by many courts to analyze the constitutional

validity of a knock-and-talk procedure.

Using this

framework,

we conclude that the knock-and-talks con-

ducted in these cases were not “searches” within the

meaning of the Fourth Amendment. We begin with the

observation that, as Jardines makes clear, an ordinary

knock-and-talk is well within the scope of the license

Id. at ___; 133 S Ct at 1416 (“But introducing a trained police dog to

explore the area around the home in hopes of discovering incriminating

evidence is something else. There is no customary invitation to do

that.”).

Id. at ___; 133 S Ct at 1416.

Id. at ___; 133 S Ct at 1417-1418.

See, e.g., United States v Walker, 799 F3d 1361, 1362-1363 (CA 11,

2015); Covey v Assessor of Ohio Co, 777 F3d 186, 192-193 (CA 4, 2015);

United States v Lundin, 47 F Supp 3d 1003, 1010-1011 (ND Cal, 2014);

JK v State, 8 NE3d 222, 231-236 (Ind App, 2014).

468 313 M

ICH

457 [Dec

PINION OF THE

OURT

that may be “ ‘implied from the habits of the coun-

try[]’ . . . .”

In general terms, Jardines explains that

there exists “an implicit license . . . to approach the

home by the front path, knock promptly, wait brieﬂy to

be received, and then (absent invitation to linger

longer) leave.”

And generally speaking, that is exactly

what

occurred in both cases now before us. In each

instance, ofﬁcers approached the home, knocked, and

waited to be received. And in each instance, the ofﬁcers

were received by the homeowners. Jardines plainly

condones such conduct.

Indeed, even “Jardines con-

ceded

. . . the unsurprising proposition that the ofﬁcers

could have lawfully approached his home to knock on

the front door in hopes of speaking with him.”

In order to ﬁnd a Fourth Amendment violation,

then,

there must be circumstances present that would

transform what was otherwise a lawful entrance onto

private property into an unlawful, warrantless search.

In Jardines, such circumstances existed because when

the ofﬁcers set foot on a protected area, they were

accompanied by a drug-snifﬁng dog.

Frederick and

an Doorne argue that the time of the knock-and-talks,

and the manner in which the ofﬁcers approached,

compel a conclusion that each knock-and-talk was a

Jardines, 569 US at ___; 133 S Ct at 1415, quoting McKee, 260 US

at 136 (Holmes, J.).

Jardines, 569 US at ___; 133 S Ct at 1415.

Id at ___; 133 S Ct at 1415.

Id. at ___; 133 S Ct at 1415 n 1.

Id. at ___; 133 S Ct at 1415-1416 (recognizing that the police may

enter private property to conduct a knock-and-talk, “[b]ut introducing a

trained police dog to explore the area around the home in hopes of

discovering incriminating evidence is something else. There is no

customary invitation to do that.”). See also id. at ___; 133 S Ct at 1416

n 4 (“[N]o one is impliedly invited to enter the protected premises of the

home in order to do nothing but conduct a search.”).

2015] P

EOPLE V

REDERICK

469

PINION OF THE

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search under the Fourth Amendment.

For the rea-

sons discussed, we disagree.

1. THE OFFICERS’ PURPOSE

Frederick and Van Doorne argue that based on an

objective

view of the manner in which the ofﬁcers

conducted the knock-and-talks, the KANET ofﬁcers’

purpose in conducting the knock-and-talks exceeded

the scope of the implied license discussed in Jardines.

Frederick and Van Doorne argue that the ofﬁcers did

not intend to speak with them, but rather, intended to

conduct a search. We disagree.

First, we clarify that even post-Jardines, an ofﬁcer

may conduct a knock-and-talk with the intent to gain

the occupant’s consent to a search or to otherwise

acquire information from the occupant. That an ofﬁcer

intends to obtain information from the occupant does

not transform a knock-and-talk into an unconstitu-

tional search. Before Jardines, this Court held that the

knock-and-talk procedure was constitutional.

Our

Court

explained that one entirely acceptable purpose

of a knock-and-talk is to do exactly what the ofﬁcers

did in these cases—obtain an occupant’s consent to

conduct a search:

Generally, the knock and talk procedure is a law

enforcement

tactic in which the police, who possess some

Relying on Justice Scalia’s description of the knock-and-talk proce-

dure in Jardines, Frederick and Van Doorne ask us to adopt a three-part

test to evaluate these consolidated cases. Under this proposed test,

ofﬁcers would be required to (1) approach a home by the front path, (2)

with only the intent to speak with the occupants of the home (and not to

conduct a search), and (3) knock promptly, wait brieﬂy, and absent an

invitation from the occupant to remain, leave the premises. We ﬁnd it

unnecessary to adopt such a test to decide the matters before us, and

thus, we decline to adopt this proposed test.

People v Frohriep, 247 Mich App 692; 637 NW2d 562 (2001).

470 313

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457 [Dec

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information that they believe warrants further investiga-

tion, but that is insufﬁcient to constitute probable cause

for a search warrant, approach the person suspected of

engaging in illegal activity at the person’s residence (even

knock on the front door), identify themselves as police

ofﬁcers, and request consent to search for the suspected

illegality or illicit items. . . .

We decline defendant’s request to hold that the knock

and talk procedure is unconstitutional because defendant

points to no binding precedent, nor have we found any,

prohibiting the police from going to a residence and

engaging in a conversation with a person. We conclude

that in the context of knock and talk the mere fact that the

ofﬁcers initiated contact with a citizen does not implicate

constitutional protections. It is unreasonable to think that

simply because one is at home that they are free from

having the police come to their house and initiate a

conversation. The fact that the motive for the contact is an

attempt to secure permission to conduct a search does not

change that reasoning. We ﬁnd nothing within a constitu-

tional framework that would preclude the police from

setting the process in motion by initiating contact and,

consequently, we hold that the knock and talk tactic

employed by the police in this case is constitutional.

[35]

Jardines does

not hold to the contrary. In his dis-

senting opinion in Jardines, Justice Alito wrote:

As the majority acknowledges, this implied license to

approach the front door extends to the police. See ante, at

Id. at 697-698 (citations omitted; emphasis added). See also People

v Galloway, 259 Mich App 634, 640; 675 NW2d 883 (2003) (“Knock and

talk, as accepted by this Court in Frohriep, does not implicate constitu-

tional protections against search and seizure because it uses an ordi-

nary citizen contact as a springboard to a consent search.”). Federal

courts have reached the same conclusion. Ewolski v City of Brunswick,

287 F3d 492, 504-505 (CA 6, 2002) (“ ‘Federal courts have recognized the

“knock and talk” strategy as a reasonable investigative tool when

ofﬁcers seek to gain an occupant’s consent to search or when ofﬁcers

reasonably suspect criminal activity.’ ”), quoting United States v Jones,

239 F3d 716, 720 (CA 5, 2001).

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[569 US at ___; 133 S Ct at 1415]. As we recognized in

Kentucky v. King, 563 U. S. [452; 131 S Ct 1849; 179 L Ed

2d 865 (2011)], police ofﬁcers do not engage in a search

when they approach the front door of a residence and seek

to engage in what is termed a “knock and talk,” i.e.,

knocking on the door and seeking to speak to an occupant

for the purpose of gathering evidence. . . . Even when the

objective of a “knock and talk” is to obtain evidence that

will lead to the homeowner’s arrest and prosecution, the

license to approach still applies. In other words, gathering

evidence—even damning evidence—is a lawful activity

that falls within the scope of the license to approach. . . .

* * *

The Court concludes that Detective Bartelt went too far

because he had the “objectiv[e] . . . purpose to conduct a

search.” Ante, at [569 US at ___; 133 S Ct at 1417]

(emphasis added). What this means, I take it, is that

anyone aware of what Detective Bartelt did would infer

that his subjective purpose was to gather evidence. But if

this is the Court’s point, then a standard “knock and talk”

and most other police visits would likewise constitute

searches. With the exception of visits to serve warrants or

civil process, police almost always approach homes with a

purpose of discovering information. That is certainly the

objective of a “knock and talk.” The Court offers no

meaningful way of distinguishing the “objective purpose”

of a “knock and talk” from the “objective purpose” of

Detective Bartelt’s conduct here.

[36]

In response to Justice Alito’s critique, Justice Scalia

explained:

The dissent argues, citing K

ing, that “gathering

evidence—even damning evidence—is a lawful activity

that falls within the scope of the license to approach.”

Post, at [569 US at ___; 133 S Ct at 1423]. That is a false

generalization. What King establishes is that it is not a

Fourth Amendment search to approach the home in order

Jardines, 569 US at ___; 133 S Ct at 1423-1424 (Alito, J., dissent-

ing) (third alteration in original).

472 313 M

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457 [Dec

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to speak with the occupant, because all are invited to do

that. The mere “purpose of discovering information,”

post, at [569 US at ___; 133 S Ct at 1424], in the course

of engaging in that permitted conduct does not cause it to

violate the Fourth Amendment. But no one is impliedly

invited to enter the protected premises of the home in

order to do nothing but conduct a search.

[37]

We read Justice Scalia’s response to the dissent as

rawing a line. The police do not violate the Fourth

Amendment by approaching a home and seeking to

speak with its occupant. Even if the police fully intend

to acquire information or evidence as a result of this

conversation, the line has not been crossed.

However,

f the police enter a protected area not intending to

speak with the occupant, but rather, solely to conduct a

search, the line has been crossed.

In that sense, the

nock-and-talk procedure cannot be used by the police

as a smokescreen. Yet even post-Jardines, ofﬁcers may

still approach a home, knock, and if an occupant an-

swers, speak to that occupant. The ofﬁcers may then ask

the occupant for information or for consent to conduct a

search.

Several cases help demonstrate when the police

have

crossed the line from a permissible knock-and-

talk to an unconstitutional search or seizure. Jardines

Id. at ___ n 4; 133 S Ct at 1416 n 4 (opinion of the Court).

Id. at ___ n 4; 133 S Ct at 1416 n 4 (“The mere purpose of discovering

information . . . in the course of engaging in that permitted conduct does

not cause it to violate the Fourth Amendment.”) (quotation marks

omitted).

Id. at ___ n 4; 133 S Ct at 1416 n 4 (“But no one is impliedly invited

to enter the protected premises of the home in order to do nothing but

conduct a search.”).

Id. at ___ n 4; 133 S Ct at 1416 n 4. See also United States v

Perea-Rey, 680 F3d 1179, 1187-1188 (CA 9, 2012) (“[I]t remains permis-

sible for ofﬁcers to approach a home to contact the inhabitants. The

constitutionality of such entries into the curtilage hinges on whether the

ofﬁcer’s actions are consistent with an attempt to initiate consensual

contact with the occupants of the home.”).

2015] P

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is one such example. As discussed, the ofﬁcers in

Jardines exceeded the scope of the license because they

never attempted to speak with anyone, and instead,

approached the home while conducting a warrantless

search using a drug-snifﬁng dog. United States v

Ferguson,

a case cited by Frederick and Van Doorne,

another such example. In Ferguson, two police

detectives traveled to a home to investigate a com-

plaint of an illegal marijuana grow operation.

The

detectives

had not obtained a search warrant for the

residence.

As soon as the detectives left their vehicle,

“they

could smell fresh marijuana and observed sur-

veillance cameras on the garage adjacent to the resi-

dence.”

The defendants appeared, and the detectives

introduced

themselves.

After the defendants claimed

to be operating an authorized medical marijuana op-

eration, one detective asked to see the required paper-

work.

Without asking for consent to search, the other

detective

asked one defendant “how many marijuana

plants he had in the garage . . . .”

The detectives then

spent

the next hour walking around the premises with

the defendants, investigating buildings and a recre-

ational vehicle.

At the end of this process, the detec-

tives

presented the defendants with a written consent-

to-search form, which the defendants signed.

The defendants ﬁled a motion to suppress the evi-

dence

viewed by the detectives, arguing that the detec-

United States v Ferguson, 43 F Supp 3d 787 (WD Mich, 2014).

Id. at 789.

Id.

Id. at 790.

Id.

474 313

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457 [Dec

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tives had conducted a warrantless search of their

home, and that the later-signed consent form did not

remedy this constitutional violation.

The prosecutor

argued, in part, that what transpired in the hour

before the detectives obtained the defendants’ written

consent “qualiﬁed as a permissible ‘knock and talk,’

claiming that the detectives were ‘not searching any-

thing’ during that ﬁrst hour.”

The trial court rejected

the

argument. Comparing the case to Jardines, the

trial court concluded that by spending an hour inves-

tigating the premises, the detectives’ conduct “objec-

tively reveal[ed] a purpose to conduct a search . . . .”

This was because during the hour in which the detec-

tives were ostensibly conducting a knock-and-talk,

they were unquestionably obtaining information while

in areas protected by the Fourth Amendment.

One federal district court has similarly concluded

that

the police violate the Fourth Amendment by

entering private property with the sole intent to con-

duct a warrantless arrest of the homeowner. In United

States v Lundin, another case relied on by Frederick

and Van Doorne, ofﬁcers sought to arrest a suspected

kidnapper, but had not obtained a warrant for his

arrest.

At approximately 4:00 a.m., ofﬁcers ap-

proached

the front door of Lundin’s home.

The ofﬁcers

knocked, and heard a series of crashes from the rear of

Id. at 792.

Id.

Id. at 792-793. The trial court also concluded that the hour-long

search was not conducted with either the express or implied consent of

the defendants. Id. at 793-794.

Lundin, 47 F Supp 3d at 1008.

Id.

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the home.

The ofﬁcers identiﬁed themselves and

ordered Lundin to put his hands in the air and slowly

leave the home.

Lundin exited the backyard of the

home

and was taken into custody.

In ﬁnding a Fourth Amendment violation, the district

court relied on Jardines for the rule that “the ofﬁcers’

purpose, as revealed by an objective examination of

their behavior, is clearly at least an important factor”

when evaluating whether the ofﬁcers exceeded the

scope of the implied license.

The court explained that

the behavior of the ofﬁcers here objectively reveals a

purpose

to locate [Lundin] so that the ofﬁcers could arrest

him. Deputy Aponte had put out a request that Lundin be

arrested; he believed that the ofﬁcers already had prob-

able cause for such an arrest; and the ofﬁcers who arrived

at the home were responding to Deputy Aponte’s BOLO

[“be on the lookout”].

[60]

The court explained that “[u]nder the circumstances of

this

case, it is very difﬁcult to imagine why the ofﬁcers

would have been seeking to initiate a consensual

conversation with Lundin to ask him questions at four

o’clock in the morning.”

Thus, “[j]ust as the ofﬁcers’

clear

purpose in Jardines—to search the curtilage for

evidence—could not be pursued without a warrant, so

too was the ofﬁcers’ clear purpose in this case—to

arrest a suspect within his home—a goal whose attain-

ment requires a warrant.”

The common thread in J

ardines, Ferguson, and Lun-

din is that in each case, the ofﬁcers’ conduct revealed

Id.

Id. at 1012.

Id.

Id. at 1012-1013.

476 313 M

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457 [Dec

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that their intentions went far beyond conducting the

type of consensual encounter that constitutes a knock-

and-talk. In Jardines, the ofﬁcers searched for evi-

dence without ever speaking to the occupants of the

home; in Ferguson, the detectives conducted an hour-

long investigation of the property before requesting

consent to do so; and in Lundin, the ofﬁcers had no

reason to set foot on the property other than to arrest

its occupant. Thus, in each case, the ofﬁcers crossed the

line, exceeding the scope of the implied license dis-

cussed in Jardines. But here, the circumstances are far

different. After discovering that contraband likely ex-

isted in the homes belonging to Frederick and Van

Doorne, the ofﬁcers made a conscious decision to ask

each individual for consent to conduct a search rather

than obtain a warrant. The ofﬁcers went to each house,

knocked, and made such a request. During the knock-

and-talks, the ofﬁcers did not attempt to conduct a

search, as occurred in Jardines and Ferguson; they

waited until obtaining the afﬁrmative consent of each

suspect. And unlike the circumstances in Lundin, the

ofﬁcers clearly had a legitimate reason to initiate a

conversation with both Frederick and Van Doorne.

Frederick and Van Doorne argue that because seven

armed ofﬁcers “in full tactical gear” approached each

house in the early morning hours to conduct the knock-

and-talks, this Court should conclude that the “ofﬁcers

did not come to talk, but rather, came to search the

home for marijuana butter they knew was present, and

they were not going to leave until they had accom-

plished their goal[.]” The record reveals no such inten-

tion of the ofﬁcers. First, it is true that seven ofﬁcers

went to each location. These seven ofﬁcers represented

all but one member of KANET, the absent member

being unavailable that night. Further, only four of the

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seven ofﬁcers approached the homes to conduct the

knock-and-talks. The record does not demonstrate that

the ofﬁcers used their numerosity to demand entrance

or to overcome the will of Frederick or Van Doorne.

Rather, the fact that seven ofﬁcers traveled to each

home demonstrates no more than that the entire team,

working together on the investigation, traveled together

as the investigation continued into the early morning

hours.

Contrary to the assertions made by Frederick and

Van Doorne, the KANET ofﬁcers were not wearing “full

tactical gear.” Rather, the extent of the “tactical gear”

worn by the ofﬁcers were vests which bore the ofﬁcers’

badges and, in some cases, the KANET symbol.

That

the

ofﬁcers wore these vests conveyed a message

similar to the message conveyed by the uniform tradi-

tionally worn by an ordinary ofﬁcer. In the same vein,

it is also true that the ofﬁcers were armed, but only in

that each had a handgun holstered at the hip—again,

the same as any ordinary police ofﬁcer. These facts do

not convey a purpose to do anything other than speak

with the occupants of the homes.

The time of the visits does not demonstrate that the

ofﬁcers intended to conduct a warrantless search with-

out ﬁrst speaking to, and obtaining the consent of,

Frederick and Van Doorne. The ofﬁcers explained that

they proceeded at this time of day because they had

only learned that Frederick and Van Doorne were

recipients of marijuana butter through a search con-

ducted a few hours before the knock-and-talks. They

feared that if they did not act quickly, Frederick and

Van Doorne might be informed of the investigation and

Speciﬁcally, one ofﬁcer testiﬁed that the vests were “[b]lack nylon

with [a] ‘Sheriff’ logo on one side, [a] badge on the other side and our

KANET patch.”

478 313 M

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457 [Dec

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destroy evidence. Nothing in the record indicates that

the ofﬁcers chose to proceed at this time of day in order

to frighten or intimidate either man, or otherwise use

the time of day to gain an advantage. That the ofﬁcers

proceeded in the early morning hours does not demon-

strate that the ofﬁcers intended to conduct a search

without ﬁrst obtaining consent.

Rather, the ofﬁcers’ intent is most clearly demon-

strated by their conduct at each home. As in any

ordinary knock-and-talk, the ofﬁcers approached each

home, knocked, and waited for a response. When Fred-

erick and Van Doorne responded, the ofﬁcers explained

the purpose of their visits. Both men were informed of

their Miranda rights and asked to voluntarily consent

to a search. The ofﬁcers made no attempt to search for

evidence until obtaining consent to do so. That the

ofﬁcers proceeded in this manner clearly demonstrates

that it was their intent to speak with each individual

and obtain his consent before proceeding any further.

Frederick’s and Van Doorne’s contention that the ofﬁ-

cers would have conducted a warrantless search with or

without their consent is purely speculation.

Thus, we

onclude that the ofﬁcers’ purpose did not exceed the

scope of the implied license as articulated in Jardines.

2. THE TIME OF THE VISITS

Frederick and Van Doorne next argue that the time

the visits exceeded the scope of the implied license to

Rather, from the record before us, it appears equally likely (if not

more so) that had Frederick and Van Doorne failed to respond, the ofﬁcers

would have retreated to their vehicles and considered other options. See

Perea-Rey, 680 F3d at 1188 (“[O]nce an attempt to initiate a consensual

encounter with the occupants of a home fails, the ofﬁcers should end the

knock and talk and change their strategy by retreating cautiously,

seeking a search warrant, or conducting further surveillance.”) (quotation

marks and citation omitted). However, because both Frederick and Van

Doorne responded, there was no need for the ofﬁcers to retreat.

2015] P

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enter their respective properties. They argue that the

habits of this country do not allow “uninvited visits” in

the early morning hours, “absent some indication that

the person accepts visitors at that hour or, where it is

clearly observed that someone is awake in the home.”

We disagree.

Frederick’s and Van Doorne’s argument stems from

Justice Alito’s opinion in Jardines. In his dissent,

Justice Alito opined that the implied license to enter

one’s property “has certain spatial and temporal lim-

its.”

As an example of these limits, Justice Alito

stated:

Nor, as a general matter, may a visitor come to the front

door

in the middle of the night without an express invita-

tion. See State v. Cada, 129 Idaho 224, 233, 923 P. 2d 469,

478 (App. 1996) (“Furtive intrusion late at night or in the

predawn hours is not conduct that is expected from

ordinary visitors. Indeed, if observed by a resident of the

premises, it could be a cause for great alarm[.]”).

[66]

The majority indicated some approval of this state-

ment

in a footnote, writing, “We think a typical person

would ﬁnd it a cause for great alarm (the kind of

reaction the dissent quite rightly relies upon to justify

its no-night-visits rule) to ﬁnd a stranger snooping

about his front porch with or without a dog.”

Based on Justice Scalia’s reference to Justice Alito’s

comment, the time of a visit by police ofﬁcers may be

relevant when evaluating the constitutional validity of

a knock-and-talk.

But we do not read Jardines as

adopting any sort of bright-line rule that prohibits

Jardines, 569 US at ___; 133 S Ct at 1422 (Alito, J., dissenting).

Id at ___; 133 S Ct 1422.

Id. at ___; 133 S Ct at 1416 n 3 (opinion of the Court) (quotation

marks and citation omitted).

See, e.g., Kelley, 347 P3d at 1014-1016. This, however, is not

necessarily a new requirement found in Jardines. Several cases predat-

480 313 M

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457 [Dec

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ofﬁcers from entering an area protected by the Fourth

Amendment at certain times of day. Rather, the basis

for ﬁnding that the time of a visit is relevant to the

scope of the implied license was articulated by the

Jardines majority when it stated, “a typical person

would ﬁnd it a cause for great alarm (the kind of

reaction the dissent quite rightly relies upon to justify

its no-night-visits rule) to ﬁnd a stranger snooping

about his front porch with or without a dog.”

Thus, it

not simply the presence of an individual at a par-

ticular time, but rather, the reaction that a typical

person would have to that individual’s presence, that

determines whether the scope of the implied license

has been exceeded. How a typical person would react

depends on more than the time of day. For example, the

implied license at issue here might not extend to a

midnight visitor looking through garbage bins

peeking

in windows. But it may well extend to a

midnight visitor seeking emergency assistance,

or to

predawn visitor delivering the newspaper. Similarly,

while a typical person may well ﬁnd the presence of

uniformed police ofﬁcers on his or her doorstep in the

early hours of the morning “unwelcome,” we cannot

conclude that it is, without more, the type of circum-

stance that would lead an average person “to—well,

call the police.”

ing Jardines have discussed the relevance of the time a knock-and-talk

is conducted when evaluating the circumstances of a particular case.

See id. at 1015, 1015 n 14.

Jardines, 569 US at ___; 133 S Ct at 1416 n 3 (quotation marks and

citation omitted; ﬁrst emphasis added).

See Commonwealth v Ousley, 393 SW3d 15 (Ky, 2013).

See id. at 19, 31 (“Absent an emergency, such as the need to use a

phone to dial 911, no reasonable person would expect the public at his

door” at the time an ofﬁcer searched the defendant’s trash cans on

private property, 11:30 p.m. and 12:30 a.m.).

Jardines, 569 US at ___; 133 S Ct at 1416.

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The case relied on by Justice Alito when stating his

“no-night-visits” rule provides an example of when

ofﬁcers conducting an early-morning visit to private

property did exceed the scope of the implied license. In

Cada:

At about 1 a.m. on June 10, 1993, Agent Thornton

returned

to the Cada property with Agent Landers. The

two walked from the county road up Cada’s driveway.

While on the driveway both agents smelled growing or

freshly cultivated marijuana. The odor appeared to be

coming from a garage located about 110 feet from the

house. The agents continued on the driveway to an area

between the garage and the house. They then set up a

thermal imaging device and directed it at the garage. The

device is a passive, non-intrusive system that detects the

surface temperature of an object. The agents concluded

that heat coming from the garage was consistent with the

amount of heat which would be necessary to grow mari-

juana. The agents were on the property approximately ten

to ﬁfteen minutes during this entry.

The agents returned to the Cada property on June 21,

1993, at approximately 4 a.m. One or both of them wore

camouﬂage clothing. Landers again smelled marijuana

coming from the garage. On this visit the agents heard a

noise coming from the back of the garage that sounded like

an exhaust fan. Agent Thornton testiﬁed that in his

experience indoor marijuana cultivation operations often

have an exhaust system. Thornton set up a motion-

activated low light infrared video camera and two infrared

sensors in a position hidden among bushes across the

driveway from the garage. The camera was focused on the

garage. This intrusion onto Cada’s property lasted about

45 minutes.

[73]

The agents then used the information gleaned from

these

nighttime intrusions to obtain a warrant.

Cada, 129 Idaho at 227.

Id.

482 313 M

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concluding that this conduct exceeded the open-view

doctrine, the court explained:

Furtive intrusion late at night or in the predawn

hours is not conduct that is expected from ordinary

visitors. Indeed, if observed by a resident of the premises,

it could be a cause for great alarm. As compared to open

daytime approaches, surreptitious searches under cover

of darkness create a greater risk of armed response—

with potentially tragic results—from fearful residents

who may mistake the police ofﬁcers for criminal intrud-

ers.

For the foregoing reasons, we conclude that the timing

and manner of the two nighttime searches involved in this

case place them outside the scope of the open view

doctrine articulated in [State v ]Rigoulot[, 123 Idaho 267;

846 P2d 918 (1992),] and [State v ]Clark[, 124 Idaho 308;

859 P2d 344 (1993)]. In those cases, the breadth of

permissible police activity was tied to that which would be

expected of “ordinary visitors,” Rigoulot, 123 Idaho at 272,

846 P.2d at 923, and “reasonably respectful citizens.”

Clark, 124 Idaho at 313, 859 P.2d at 349. The clandestine

intrusion of Agents Thornton and Landers onto Cada’s

driveway under cover of darkness in the dead of night

exceeded the scope of any implied invitation to ordinary

visitors and was not conduct to be expected of a reasonably

respectful citizen.

[75]

Thus, in Cada,

it was not simply that the ofﬁcers

entered the premises in the early hours of the morning

that created the constitutional problem. Rather, it was

that the ofﬁcers used the “cover of darkness” to conduct

a “clandestine intrusion” of the property that caused

them to exceed “the scope of any implied invitation to

ordinary visitors . . . .”

This type of “furtive intrusion

late

at night or in the predawn hours” is not the type of

Id. at 233.

Id.

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“conduct that is expected from ordinary visitors[,]” and

thus, could lead to “potentially tragic results . . . .”

In nearly every relevant way, the conduct that

occurred in this case is the exact opposite of what

occurred in Cada. Ofﬁcers did not furtively approach

either home; the ofﬁcers walked directly to the homes

and knocked. There was nothing clandestine about

their behavior. And rather than refuse to come to the

door or call the police, both Frederick and Van Doorne

answered the door and spoke with the ofﬁcers. What

occurred in the cases before us was not a “ ‘[f]urtive

intrusion late at night or in the predawn hours’ ” that

“ ‘if observed by a resident of the premises . . . could be

a cause for great alarm[.]’ ”

Thus, although the ofﬁ-

cers

visited the homes in the early hours of the morn-

ing, that fact does not render the knock-and-talks

unconstitutional under the circumstances of these

cases.

3. “COMMUNITY STANDARDS”

Finally, Frederick and Van Doorne argue that the

ofﬁcers

“failed to follow community standards” by

“incessantly” pounding on each door until the ofﬁcers

received an answer. The record simply does not sup-

Id. Other cases have similarly concluded that clandestine entries

into areas protected by the Fourth Amendment are unconstitutional.

See State v Ross, 141 Wash 2d 304; 4 P3d 130 (2000) (without

attempting to contact a home’s occupants, the police entered the

property shortly after midnight in plain clothes to check for the odor of

marijuana emanating from a garage); State v Johnson, 75 Wash App

692; 879 P2d 984 (1994) (the police entered private property via a state

park shortly after 1:00 a.m., past signs that said “Private Property” and

“No Trespassing,” and then used a thermal imaging device to investigate

a barn).

Jardines, 569 US at ___; 133 S Ct at 1422 (Alito, J., dissenting),

quoting Cada, 129 Idaho at 233.

484 313

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OURT

port these factual assertions. As found by the trial

court, the ofﬁcers knocked on each door and waited a

few minutes for someone to respond. This factual

conclusion was supported by the testimony of several

ofﬁcers, all of whom testiﬁed to knocking on each door

and waiting a matter of minutes for a response. Fred-

erick’s and Van Doorne’s argument lacks merit.

Afﬁrmed.

K. F. K

ELLY

, J., concurred with T

ALBOT

, C.J.

ERVITTO

, J. (dissenting). I respectfully dissent.

On remand, our Supreme Court directed us to ad-

dress “whether the ‘knock and talk’ procedure con-

ducted in [these cases] is consistent with US Const, Am

IV, as articulated in Florida v Jardines, [569 US ___;]

133 S Ct 1409[; 185 L Ed 2d 495] (2013).” People v

Frederick, 497 Mich 993 (2015). People v Van Doorne,

497 Mich 993 (2015). The majority interprets this

directive to mean that our inquiry is strictly limited to

the question whether the knock-and-talk procedure

used in these cases amounts to a “search” within the

meaning of the Fourth Amendment, indicating its

belief that the United States Supreme Court’s inquiry

in Jardines was ﬁrmly limited to the question whether

the ofﬁcers’ behavior was a search within the meaning

of the Fourth Amendment. I disagree that our Su-

preme Court’s directive was so restrictive or narrow, or

that the Jardines Court’s inquiry was so limited.

In Jardines, the United States Supreme Court be-

gan by stating the basic principle that a search within

the meaning of the Fourth Amendment occurs when

the government obtains information by physically in-

truding on persons or houses. Jardines, 569 US at ___;

133 S Ct at 1414. According to Jardines:

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That principle renders this case a straightforward one.

The ofﬁcers were gathering information in an area belong-

ing to Jardines and immediately surrounding his

house—in the curtilage of the house, which we have held

enjoys protection as part of the home itself. And they

gathered that information by physically entering and

occupying the area to engage in conduct not explicitly or

implicitly permitted by the homeowner. [Id. at ___; 133 S

Ct at 1414.]

The United States Supreme Court then went on,

however

, to engage in a lengthy analysis of whether

Jardines had “given his leave” for the police and the

dog to be on his front porch. Thus, the case focused on

the scope of an implicit license and the objective

reasonableness of what the Court deemed to be an

obvious search, and not, as the majority asserts,

whether a search had occurred at all. This focus makes

sense because the Fourth Amendment protects against

unreasonable searches and seizures, not simply

searches and seizures. The Jardines Court stated that

the question before the court is precisely whether the

ofﬁcer’s

conduct was an objectively reasonable search. As

we have described, that depends upon whether the ofﬁcers

had an implied license to enter the porch, which in turn

depends upon the purpose for which they entered. [Id. at

___; 133 S Ct at 1416-1417.]

According to the Jardines Court:

A license may be implied from the habits of the country,

notwithstanding

the strict rule of the English common law

as to entry upon a close. We have accordingly recognized

that the knocker on the front door is treated as an

invitation or license to attempt an entry, justifying ingress

to the home by solicitors, hawkers and peddlers of all

kinds. This implicit license typically permits the visitor to

approach the home by the front path, knock promptly,

wait brieﬂy to be received, and then (absent invitation to

linger longer) leave. Complying with the terms of that

traditional invitation does not require ﬁne-grained legal

486 313 M

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knowledge; it is generally managed without incident by

the Nation’s Girl Scouts and trick-or-treaters. Thus, a

police ofﬁcer not armed with a warrant may approach a

home and knock, precisely because that is no more than

any private citizen might do. [Id. ___; 133 S Ct at 1415-

1416 (quotation marks and citations omitted; emphasis

added).]

The United States Supreme Court further stated that

the

scope of the license was limited to a particular area

and to a speciﬁc purpose. Id. ___; 133 S Ct at 1416.

Thus, though it cannot be denied that the ﬁnal holding

of Jardines was that a search occurred, the answer to

that question required an expansive inquiry into, and

analysis of, several factors, including the context of the

procedure employed and the reasonableness of the

ofﬁcers’ actions.

A knock-and-talk represents one tactic employed by

police ofﬁcers that does not generally contravene the

Fourth Amendment. See, e.g., People v Frohriep, 247

Mich App 692, 698; 637 NW2d 562 (2001) (“We con-

clude that in the context of knock and talk the mere

fact that the ofﬁcers initiated contact with a citizen

does not implicate constitutional protections.”). The

Frohriep Court also recognized, however, that the

knock-and-talk procedure is not entirely without con-

stitutional implications. “Anytime the police initiate a

procedure, whether by search warrant or otherwise,

the particular circumstances are subject to judicial

review to ensure compliance with general constitu-

tional protections. Accordingly, what happens within

the context of a knock and talk contact and any

resulting search is certainly subject to judicial review.”

Id. at 698.

The majority opinion in Jardines did not expressly

discuss any spatial or temporal limitations on the im-

plied license to approach a home. The dissent, however,

did. See Jardines, 569 US at ___; 133 S Ct at 1422-1423

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(Alito, J., dissenting). Speciﬁcally, the dissent found that

the implied license contained the following limitations:

(1) “[a] visitor must stick to the path that is typically

used to approach a front door, such as a paved walk-

way”; (2) a visitor may not “come to the front door in the

middle of the night without an express invitation”; and

(3) “a visitor may not linger at the front door for an

extended period.” Id. at ___; 133 S Ct at 1422. Though

the majority opinion did not speciﬁcally impose any

temporal limits, it favorably referred to the dissent’s

“no-night-visits rule” in a footnote. See id. at ___ n 3; 133

S Ct at 1416 n 3 (opinion of the Court). In that footnote,

the majority indicated that a “typical person” would ﬁnd

the use of a drug-snifﬁng dog “a cause for great alarm,”

which, it stated, was “the kind of reaction the dissent

quite rightly relie[d] upon to justify its no-night-visits

rule[.]” Id. at ___ n 3; 133 S Ct at 1416 n 3. The majority

also stated that the dissent presented “good questions”

regarding the scope of the implied license, which in-

cluded a consideration of “the appearance of

things,” “what is typical for a visitor,” “what might

cause alarm to a resident of the premises,” “what is

expected of ordinary visitors,” and “what would be

expected from a reasonably respectful citizen[.]” Id. at

___ n 2; 133 S Ct at 1415 n 2 (quotation marks omitted).

Recently, in United States v Walker, 799 F3d 1361

(CA 11, 2015), the United States Court of Appeals for

the Eleventh Circuit determined that the scope of a

knock-and-talk is limited in two respects. First, citing

Jardines, 569 US at ___; 133 S Ct at 1416-1417, the

court indicated that this exception to the warrant

requirement “ceases where an ofﬁcer’s behavior ‘objec-

tively reveals a purpose to conduct a search.’ ” The

second limitation is that “the exception is geographi-

cally limited to the front door or a ‘minor departure’

from it.” Walker, 799 F3d at 1363.

488 313 M

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Based on Jardines and our Supreme Court’s direc-

tive, I would interpret the instant case as presenting

the speciﬁc question of whether a knock-and-talk pro-

cedure conducted at a private residence in the middle

of the night (the “predawn hours”), without evidence

that the occupant of the residence extended an explicit

or implicit invitation to strangers to visit during those

hours, is an unconstitutional search in violation of the

Fourth Amendment. Michigan courts have yet to ad-

dress possible constitutional limitations on the knock-

and-talk procedure. See People v Gillam, 479 Mich 253,

276 n 13; 734 NW2d 585 (2007) (K

ELLY

, J., dissenting)

(“This Court has not yet discussed the constitutionality

of, or limits to, traditional knock-and-talk encoun-

ters.”). Other jurisdictions have, however, addressed

the limitations of an implicit license with respect to

police ofﬁcers’ warrantless approach to homes.

In Kelley v State, 347 P3d 1012, 1013 (Alas App,

2015), two Alaska state troopers, acting on an anony-

mous tip, drove up a defendant’s driveway shortly after

midnight. The defendant’s home was in a rural area

and set back from the road a considerable distance. Id.

The troopers remained in their car for several minutes

and rolled down the windows, snifﬁng the air. Id.

Detecting an odor of marijuana in the air, the troopers

left and obtained a warrant to search the defendant’s

home, which revealed evidence of a marijuana grow

operation. Id. The trial court denied the defendant’s

motion to suppress the evidence seized in the search,

reasoning “that the driveway to [the defendant]’s

house was impliedly open to public use because it

provided public ingress to and egress from her prop-

erty . . . .” Id. The Alaska Court of Appeals directed the

parties to brief the recently decided case of Jardines

with respect to the defendant’s appeal of her convic-

tion. Id.

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The Kelley court recognized Jardines’s holding “that

a police ofﬁcer has an implicit license to approach a

home without a warrant and knock on the front door

because this is ‘no more than any private citizen might

do.’ ” Id. at 1014. It also pointed out, however, that in

Jardines, the United States Supreme Court recognized

that the scope of the “implicit license [wa]s limited not

only to the normal paths of ingress and egress, but also

by the manner of the visit.” Id. The Kelley court quoted

Jardines’s statement that “ ‘[t]o ﬁnd a visitor knocking

on the door is routine (even if sometimes unwelcome);

to spot that same visitor exploring the front path with

a metal detector, or marching his bloodhound into the

garden before saying hello and asking permission,

would inspire most of us to—well, call the police.’ ” Id.,

quoting Jardines, 569 US at ___; 133 S Ct at 1416. The

Kelley Court thus found that the manner of the visit

was of paramount importance in the Jardines decision.

In Kelley, the court determined that the search there

was more intrusive than was the search in Jardines

because it took place after midnight. Kelley, 347 P3d at

1014. In making this determination, Kelley referred to

Justice Alito’s dissent in Jardines in which he indi-

cated that a visitor could not come to a home in the

middle of the night without express invitation. Id. The

Kelley court further stated that the Jardines majority

“referred approvingly to the dissent’s ‘no-night-visits

rule.’ ” Id. at 1014-1015. Ultimately, the Kelley court

found that the ofﬁcers’ conduct constituted an illegal

search, that the warrant obtained was tainted by the

illegal search, and that any evidence obtained under

the warrant must be suppressed. Id. at 1016.

We recognize that the Kelley majority, in addressing

the dissent’s position, speciﬁcally stated that “the legal

principles that govern a ‘knock and talk’ do not apply

490 313 M

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here, because the State never asserted, and the record

does not show, that the troopers approached Kelley’s

residence to engage in a knock and talk.” Id. However,

Kelley also pointed out that all the knock-and-talk

cases relied on by the dissent considered the lateness of

the hour as an important factor to consider “in assess-

ing the overall coerciveness and lawfulness of a knock

and talk.” Id.

In United States v Lundin, 47 F Supp 3d 1003,

1007-1008 (ND Cal, 2014), after interviewing a kidnap-

ping victim at a hospital in the early morning hours, a

police ofﬁcer contacted dispatch and requested a BOLO

(“be on the lookout”) for the kidnapper, Lundin. The

ofﬁcer also requested that Lundin be arrested on

several charges. Id. at 1008. In response to the BOLO,

another ofﬁcer drove to Lundin’s home, saw Lundin’s

car and light on inside the home, and called for backup.

Id. At approximately 4:00 a.m. the ofﬁcers knocked on

Lundin’s front door. Id. The ofﬁcers heard loud crash-

ing from the back of the home, and they ordered

whoever was in the backyard to come out with hands

up, at which point Lundin exited the backyard and was

taken into custody. Id. Ofﬁcers then searched Lundin’s

home and backyard, ﬁnding two ﬁrearms. Id. at 1009.

In determining the reasonableness of the search

conducted at Lundin’s home, the United States District

Court for the Northern District of California pro-

nounced that “it is ‘a ﬁrmly-rooted notion in Fourth

Amendment jurisprudence’ that a resident’s expecta-

tion of privacy is not violated, at least in many circum-

stances, when an ofﬁcer intrudes brieﬂy on a front

porch to knock on a door in a non-coercive manner to

ask questions of a resident.” Id. at 1011. As in Jar-

dines, the Lundin court noted that the rationale for

this is that residents of a home typically extend an

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implicit license to strangers to approach the home by

the front path, to knock, to linger brieﬂy to be received,

and absent invitation to stay longer, to leave. Id. at

1011. In Lundin, two factors indicated that the ofﬁcers’

conduct exceeded the scope of the recognized implied

license: (1) their purpose was to locate Lundin and to

arrest him, not to talk to him, and (2) the approach

took place at 4:00 a.m. Id.

In contemplating the purpose of the ofﬁcers’ visit,

the Lundin court indicated that whether the ofﬁcers’

conduct constituted an objectively reasonable search

depended on whether the ofﬁcers had an implied

license to approach Lundin’s home, which depended, in

part, on their purpose for doing so. Id. at 1012. The

court did not hold that the ofﬁcers’ purpose was a

dispositive factor in analyzing whether the ofﬁcers’

visit fell within the scope of a lawful knock-and-talk,

but that it was at least a signiﬁcant factor. Id. at 1013.

The time of the visit, 4:00 a.m., was the other signiﬁ-

cant factor, it being “a time at which most residents do

not extend an implied license for strangers to visit.” Id.

The Lundin court concluded that “[b]y entering onto

Lundin’s curtilage at four in the morning for the

purpose of locating him to arrest him, the ofﬁcers

engaged not in a lawful ‘knock and talk’ but rather in

a presumptively unreasonable search.” Id. at 1014.

While not presented with a situation in which an

ofﬁcer attempted to contact the homeowner,

the Ken-

tucky

Supreme Court, to determine the reasonableness

of such a visit, nonetheless found it necessary to

address the time of day an ofﬁcer visited a home.

Commonweath v Ousley, 393 SW3d 15 (Ky, 2013). The

An ofﬁcer removed trash from the curtilage of a home in the late

night/early morning hours in order to investigate tips that the home-

owner was engaged in illegal drug sales from the home.

492 313 M

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Ousley court stated, “Surely there is no reasonable

basis for consent to ordinary public access, presumed

or otherwise, for the public to enter one’s property at

midnight absent business with the homeowner. Girl

Scouts, pollsters, mail carriers, door-to-door salesmen

just do not knock on one’s door at midnight . . . .” Id. at

30. The court also noted that the time limitation

appears in several curtilage cases and that

[o]ne of the earliest knock-and-talk cases laid out the rule

this:

Absent express orders from the person in posses-

sion against any possible trespass, there is no rule of

private or public conduct which makes it illegal per

se, or a condemned invasion of the person’s right of

privacy, for anyone openly and peaceably, at high

noon, to walk up the steps and knock on the front

door of any man’s “castle” with the honest intent of

asking questions of the occupant thereof—whether

the questioner be a pollster, a salesman, or an ofﬁcer

of the law. Davis v. United States, 327 F.2d 301, 303

(9th Cir.1964), impliedly overruled on other grounds

as suggested in United States v. Perea-Rey, 680 F.3d

1179, 1187 (9th Cir.2012) (emphasis added).

As Davis went on to note, “The time of day, coupled

with the openness of the ofﬁcers’ approach to defendant’s

doorway, rules out the possible dangers to their persons

which might have resulted from a similar unannounced

call in the dead of night.” Id. at 304. Numerous other cases

mention time of the invasion as a factor in whether the

Fourth Amendment is violated. [Ousley, 393 SW3d at

30-31.]

Ousley thus

concluded that, “just as the police may

invade the curtilage without a warrant only to the

extent that the public may do so, they may also invade

the curtilage only when the public may do so.” Id. at 31.

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In a pre-Jardines case involving observations made

by the police from a defendant’s driveway during 1:00

a.m. and 4:00 a.m. visits, an Idaho appellate court

indicated that the time of day and openness of the

ofﬁcer’s approach have been found to be signiﬁcant

factors in determining whether the scope of the implied

invitation to enter areas of a private home’s curtilage

was exceeded. State v Cada, 129 Idaho 224; 923 P2d

469 (1996). “Furtive intrusion late at night or in the

predawn hours is not conduct that is expected from

ordinary visitors.” Id. at 233.

In sum, the time of a knock-and-talk visit, while

perhaps not the only deciding factor in determining

whether an unconstitutional (unreasonable) search

occurred, is at least a signiﬁcant factor among those to

be considered along with the totality of the circum-

stances surrounding the knock-and-talk. In these con-

solidated cases, the totality of the circumstances leads

me to conclude that both knock-and-talk occurrences

constituted unconstitutional searches.

On the night of March 17, 2014, seven ofﬁcers

appeared for the knock-and-talks at defendants’ (cor-

rections ofﬁcers with Kent County) homes. The ofﬁcers

arrived at each house in four unmarked vehicles. Each

ofﬁcer wore a tactical vest with a ﬁrearm on his or her

hip, but the ofﬁcers were not in full uniform. The

ofﬁcers went to Frederick’s home at approximately

4:14 a.m., and then went to Van Doorne’s home at

approximately 5:30 a.m. Each defendant was asleep

when the ofﬁcers arrived, and the ofﬁcers pounded on

a door to each home before making contact with each

defendant. The ofﬁcers pounded on Frederick’s front

door, but had to knock on a door next to the garage at

Van Doorne’s because icy conditions prevented the

ofﬁcers from approaching Van Doorne’s front door.

494 313 M

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Considering the circumstances of these cases, it is

very difﬁcult to imagine why the ofﬁcers tried to

initiate consensual conversations with Frederick and

Van Doorne between 4:00 a.m. and 5:30 a.m. to simply

ask questions of each of them. Just as the behavior of

the ofﬁcers in Jardines “objectively reveals a purpose

to conduct a search,” Jardines, 569 US at ___; 133 S Ct

at 1417, the behavior of the ofﬁcers in this case

objectively reveals a purpose to conduct a warrantless

search of these defendants’ homes to obtain evidence.

Signiﬁcantly, at least two of the ofﬁcers testiﬁed that

they had enough probable cause to obtain search

warrants for the homes but did not do so, instead

electing to go to defendants’ homes in the early morn-

ing hours as a matter of “courtesy” because defendants

were ofﬁcers employed by the same sheriff department.

Van Doorne testiﬁed that one of the ofﬁcers told him

that they chose to not seek a warrant because the

department did not want a public record of the situa-

tion at that time. The highest-ranking ofﬁcer on the

scene admitted that at some point, he told Van Doorne

that the decision was made to not get a warrant

because if a warrant was obtained, the media would

get hold of it right away. The testimony supports the

conclusion that the primary purpose of conducting the

knock-and-talks was to obtain—without a warrant—

the evidence that one ofﬁcer had earlier delivered to

defendants. The ofﬁcers claimed they did not get a

warrant because they wished to avoid publicity focused

on the Kent County Sheriff’s Department. Objectively,

according to the testimony, the ofﬁcers that appeared

at defendants’ homes in the early morning hours did

not seek to ask defendants questions, but rather, they

sought to search defendants’ homes to obtain perish-

able evidence before it “disappeared,” and to avoid

publicity.

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The time of day that the ofﬁcers appeared at defen-

dants’ homes also lends support for ﬁnding that their

conduct violated the Fourth Amendment. As previously

indicated, the knock-and-talk exception to the warrant

requirement is premised, at its most basic level, on the

fact that the police are acting consistently with the

implied license a homeowner extends to the public-at-

large. Jardines, 569 US at ___; 133 S Ct at 1415. There

is no evidence that either Frederick or Van Doorne

extended an invitation to the public to come to their

homes between the hours of 4:00 a.m. and 5:30 a.m.

Absent evidence that Frederick or Van Doorne regu-

larly expected or accepted visitors or public company at

those hours, the ofﬁcers cannot rely on the implied

consent exception for the knock-and-talks they con-

ducted at 4:00 a.m. and 5:30 a.m., because those are

not times “at which most residents extend an implied

license for strangers to visit.” Lundin, 47 F Supp 3d at

1013. Moreover, several of the involved ofﬁcers, includ-

ing the lead ofﬁcer, testiﬁed that they could have

waited and spoken to defendants several hours later,

during daylight hours.

Yet another factor worthy of consideration is the

sheer number of ofﬁcers who appeared at defendants’

homes in the early morning hours. By all accounts,

seven ofﬁcers came to defendants’ homes, armed and

wearing their tactical gear, to, according to the ofﬁcers,

conduct knock-and-talks. It is difﬁcult to conceive of a

reason why it would be necessary for seven ofﬁcers to

come to the home of another ofﬁcer at 4:00 a.m. or 5:30

a.m. to simply ask questions.

I reach my conclusion that the ofﬁcers’ conduct

violated the Fourth Amendment on the basis of all of

the circumstances of this case, including the time of

night, an objective view of the ofﬁcers’ conduct, and the

496 313 M

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ofﬁcers’ failure to advance any objectively reasonable

explanation for why they could not gather their evi-

dence during the day, or proceed with obtaining a

warrant. As a result, I would reverse the trial court’s

order in each case and remand to the trial court for

entry of an order granting defendants’ motions to

suppress the evidence. I reach this conclusion despite

the fact that after the ofﬁcers spoke to defendants,

defendants consented to searches of their homes.

“A search preceded by a Fourth Amendment viola-

tion remains valid if the consent to search was volun-

tary in fact under the totality of the circumstances.”

United States v Fernandez, 18 F3d 874, 881 (CA 10,

1994).

When there has been such a violation, the government

bears

the heavy burden of showing that the primary taint

of that violation was purged. To satisfy this burden, the

government must prove, from the totality of the circum-

stances, a sufﬁcient attenuation or break in the causal

connection between the illegal [action] and the consent.

No single fact is dispositive, but the so-called “Brown

factors” (from Brown v. Illinois, 422 U.S. 590, 603-04, 95

S.Ct. 2254, 45 L.Ed.2d 416 (1975)) are especially impor-

tant: (1) the temporal proximity of the illegal [action] and

consent, (2) any intervening circumstances, and (3) the

purpose and ﬂagrancy of any ofﬁcial misconduct. [United

States v Reyes-Montes, 233 F Supp 2d 1326, 1331 (D Kan,

2002) (quotation marks and citations omitted; alterations

in original).]

In these consolidated cases, as in Reyes-Montes,

233

F Supp 2d at 1331, I cannot conclude that there was a

sufﬁcient attenuation between the unlawful entries

and the defendants’ consents. The consent of each

defendant came within a few minutes of the ofﬁcers’

entries. Id. There were no intervening circumstances

present to “break the causal connection” or eliminate

2015] P

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the coercive effects of the unlawful entry. Id. With

regard to the purpose and ﬂagrancy of the misconduct,

“the ofﬁcers’ conduct here may have been well-

intentioned, but . . . a warrantless entry into a house is

presumptively unreasonable, and the physical entry of

the house is the chief evil against which the Fourth

Amendment is directed.” Id. The defendants’ pur-

ported consent to search directly ﬂowed from the

ofﬁcers’ unlawful entry, and thus I cannot ﬁnd that the

searches were permissible under the Fourth Amend-

ment.

Even if the knock-and-talks were viewed as permis-

sible, “[a] knock and talk becomes a seizure requiring

reasonable suspicion where a law enforcement ofﬁcer,

‘through coercion, “physical force[,] or a show of au-

thority, in some way restricts the liberty of a per-

son.” ’ ” United States v Crapser, 472 F3d 1141, 1150

(CA 9, 2007) (Reinhardt, J., dissenting) (citation and

emphasis omitted; alteration in original); see United

States v Chan-Jiminez, 125 F3d 1324, 1326 (CA 9,

1997). “[F]actors, such as a display of weapons, physi-

cal intimidation or threats by the police, multiple

police ofﬁcers questioning the individual, or an un-

usual place or time for questioning may transform a

consensual encounter between a citizen and a police

ofﬁcer into a seizure.” United States v Ponce Munoz,

150 F Supp 2d 1125, 1133 (D Kan, 2001).

Again, in these cases, seven ofﬁcers appeared in the

very early morning hours at the fellow ofﬁcers’ homes,

purportedly to ask them questions. The ofﬁcers who

approached the door, at least two of whom were higher

in rank than defendants, knocked for several minutes,

aware that no one was awake in the homes. While

neither Frederick nor Van Doorne felt “threatened” by

the ofﬁcers, both were in a unique situation—both

defendants were employed by the same department as

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the ofﬁcers at their homes. Understandably, Frederick

and Van Doorne testiﬁed that because members of

their own department were at their doors asking to

talk to them about an investigation, they felt that they

were not free to say no, and that they would be risking

their employment if they failed to comply with a

departmental request. Seven ofﬁcers appearing at the

home of a fellow ofﬁcer in the wee hours of the

morning, armed and in tactical gear, advising each

defendant that his name had come up in a criminal

investigation, could be viewed as a show of authority

designed to assure that the defendants would not deny

their “request” to enter each defendant’s home to talk,

and/or for permission to search the defendants’ homes.

“The ordinary remedy in a criminal case for violation of

the Fourth Amendment is the suppression of any

evidence obtained during the illegal police conduct,”

United States v Perez-Partida, 773 F Supp 2d 1054,

1059 (D NM, 2011), and I would ﬁnd it to be the

appropriate remedy in these cases.

2015] P

EOPLE V

REDERICK

499

ISSENTING

PINION BY

ERVITTO

, J.

LOWREY v LMPS & LMPJ, INC

Docket No. 323049. Submitted December 1, 2015, at Detroit. Decided

December 10, 2015, at 9:00 a.m. Reversed in part and vacated in

part 500 Mich 1.

Krystal Lowrey brought an action in the Oakland Circuit Court

against LMPS & LMPJ, Inc., after she slipped and fell while

descending a stairway at Woody’s Diner. Lowrey alleged that she

slipped because the stairs were wet as the result of people

tracking snow into the establishment. Lowrey subsequently

amended her complaint to name KSK Hospitality Group, Inc.,

doing business as Woody’s Diner, as the defendant. KSK moved

for summary disposition under MCR 2.116(C)(10). The court,

Rudy J. Nichols, J., granted the motion. Lowrey appealed.

The Court of Appeals held:

1. A party may test the opposing party’s factual support for a

claim or defense by making a properly supported motion for

summary disposition under MCR 2.116(C)(10). A trial court

should grant the motion if, except as to the amount of damages,

there is no genuine issue as to any material fact, and the moving

party is entitled to judgment or partial judgment as a matter of

law. In order to invoke the trial court’s authority to dismiss a

claim under MCR 2.116(C)(10), the moving party must identify

the issues about which there is no genuine issue of material fact

and present evidence that, if left unrebutted, would establish the

moving party’s right to summary disposition. Because the burden

of production is on the moving party at this point, the moving

party risks having the motion rejected if he or she fails to properly

support it. Only if the moving party properly supports the motion

does the burden shift to the opposing party to establish that a

genuine issue of disputed fact exists. To establish a claim of

premises liability, the plaintiff must be able to prove that the

premises possessor had actual or constructive notice of the

dangerous condition at issue—that is, that the premises pos-

sessor either knew about the dangerous condition or would have

discovered it had he or she conducted a reasonable inspection.

2. To demonstrate that there was no genuine issue that it did

not have actual notice, KSK had to present evidence that, if

believed, would have established that it did not know that the

500 313

ICH

500 [Dec

stairs were wet or slippery. As an artiﬁcial entity, KSK’s knowl-

edge consists of the collective knowledge acquired by its employ-

ees within the scope of their employment and authority. KSK

relied on evidence from three sources to establish that it did not

have actual notice. It cited deposition testimony from the man-

ager on duty on the night at issue. She testiﬁed that no one made

her aware that anyone had fallen on the steps. KSK noted too

that its owner did not learn of Lowrey’s fall until much later.

Finally, KSK relied on testimony tending to establish that Lowrey

and her friends did not hear anyone complaining to KSK’s

employees about the condition of the stairs. None of this testi-

mony was sufﬁcient to allow a reasonable jury to ﬁnd that KSK

did not actually know that the steps were wet and slippery.

Because the evidence proffered in support of KSK’s motion for

summary disposition did not permit an inference that it lacked

actual notice of the wet and slippery conditions, KSK failed to

properly support its motion on that basis. Consequently, the trial

court erred to the extent that it required Lowrey to present

evidence to establish a question of fact with regard to whether

KSK had actual notice; instead, it should have denied KSK’s

motion for lack of evidentiary support.

3. Even if the premises possessor does not have actual knowl-

edge of a dangerous condition—as would be the case for a

dangerous condition created by some third party or through

gradual deterioration—Michigan courts have long recognized

that the law will impute knowledge of the dangerous condition to

the premises possessor if the premises possessor should have

discovered the dangerous condition in the exercise of reasonable

care. Generally, the law will impute knowledge of the dangerous

condition to the premises possessor if the dangerous condition is

of such a character or has existed for a sufﬁcient time that a

reasonable premises possessor would have discovered it. Whether

the condition was one that a premises possessor would have

discovered with a reasonable inspection generally depends in the

ﬁrst instance on the nature of the inspection that a reasonable

premises possessor would have made under the circumstances. A

premises possessor who moves for summary disposition on the

ground that he or she did not have constructive notice of the

dangerous condition will normally have to present evidence to

establish what constitutes a reasonable inspection under the

circumstances to permit an inference that, given the nature of the

hazard, he or she would not have discovered the hazard even if he

or she had performed that inspection. KSK argued that the

undisputed evidence showed that Lowrey could not prove how the

liquid at issue got on the stairs or how long it was there. Because

2015] L

OWREY V

LMPS & LMPJ 501

KSK had the initial burden to produce evidence in support of its

motion, its belief that Lowrey would be unable to meet her burden

at trial was irrelevant and did not establish grounds for dismiss-

ing Lowrey’s claim under MCR 2.116(C)(10). Moreover, KSK did

not proffer any evidence that would permit a reasonable ﬁnder of

fact to ﬁnd that it did not have constructive notice. KSK failed to

present any evidence that the method it used for inspecting the

premises was reasonable under the circumstances of that night.

The trial court erred when it granted KSK’s motion for summary

disposition on the ground that there was no genuine issue of fact

that it did not have either actual or constructive notice. KSK

failed to support its motion as required under MCR 2.116(G)(3)

and (4), and the trial court should have denied the motion on that

basis.

4. KSK also argued that it was entitled to summary disposi-

tion because Lowrey could not establish causation. In support of

its motion, KSK selectively cited testimony by Lowrey that

suggested that she was not sure about the cause of her fall. If this

testimony had been left unrebutted, KSK would have been

entitled to summary disposition. However, in response to KSK’s

motion, Lowrey cited portions of her testimony in which she

clariﬁed that she slipped and fell as a result of liquid on the stairs.

Viewing Lowrey’s testimony and the other evidence in the light

most favorable to her, it was deducible using reasonable infer-

ences that Lowrey slipped as a result of the wet stairs; that is,

there was substantial evidence from which a jury might conclude

that, but for KSK’s failure to rectify the wet condition of the

stairs, Lowrey would not have been injured. Thus, there was a

question of fact on the issue of causation, and the trial court erred

to the extent that it determined that summary disposition was

warranted on this ground.

5. KSK also argued that there was nothing about the charac-

ter, location, or surrounding condition of the steps that made the

steps unreasonably dangerous. In making this argument, KSK

ignored the evidence that the steps had become wet; instead, it

focused on the fact that—under normal conditions—there was

nothing particularly dangerous about the steps. Considering the

evidence that the steps had become wet, a reasonable jury could

ﬁnd that the risk of harm to invitees was unreasonable. There-

fore, there was a question of fact on that issue.

6. A premises possessor has no duty to rectify a dangerous

condition that is so obvious that the invitee might reasonably be

expected to discover it. Where an otherwise dangerous condition

is open and obvious, the open and obvious danger doctrine will cut

502 313

ICH

500 [Dec

off liability. A dangerous condition is open and obvious if an

average user with ordinary intelligence acting under the same

conditions would have been able to discover the danger and the

risk presented by the condition upon casual inspection. To prop-

erly support a motion for summary disposition on the ground that

the dangerous condition at issue was open and obvious, the

premises possessor must present evidence that the dangerous

condition—as it existed at the time the plaintiff encountered

it—was such that reasonable people could not disagree that an

average user of ordinary intelligence acting under those condi-

tions would have been able to discover the danger and the risk

presented by the condition on casual inspection. KSK did not

present any evidence to support its contention that the wet stairs

were open and obvious; more speciﬁcally, it did not present any

evidence that an average patron with ordinary intelligence, who

was acting under the same conditions as those present when

Lowrey encountered the hazard, would have been able to discover

the danger and the risk presented by the condition upon casual

inspection. The trial court should have denied KSK’s motion for

summary disposition to the extent that KSK asserted that

Lowrey’s claim was barred by the open and obvious danger

doctrine.

Trial court decision reversed, trial court order granting sum-

mary disposition vacated, and case remanded for further proceed-

ings.

The Rasor Law Firm, PLLC (by Jonathan

Marko), for Krystal Lowrey.

Kallas & Henk PC (by Joseph F. Fazi) for KSK

Hospitality Group, Inc.

Before: R

ONAYNE

RAUSE

, P.J., and M

ARKEY

and M. J.

ELLY

, JJ.

M. J. K

ELLY,

J. In this suit involving a slip and fall,

plaintiff, Krystal Lowrey, appeals by right the trial

court’s order dismissing her claim against defendant,

KSK Hospitality Group, Inc. (KSK), which does busi-

ness as Woody’s Diner (the bar). On appeal, we must

determine whether the trial court erred when it

2015] L

OWREY V

LMPS & LMPJ 503

granted KSK’s motion for summary disposition under

MCR 2.116(C)(10). We conclude that it did. In its

motion, KSK failed to present evidence that, if left

unrebutted, would establish that it did not have actual

or constructive notice of the condition; Lowrey there-

fore had no obligation to come forward with evidence

establishing a question of fact as to that element, and

the trial court should have denied the motion. We also

conclude that the other bases for dismissal raised in

KSK’s motion are without merit. Accordingly, we re-

verse and remand.

I. BASIC FACTS

Lowrey testiﬁed at her deposition that she and four

friends,

including Kelly Dobronski and Samantha Bev-

ins, went to the bar at about 12:30 a.m. on March 17,

2013. After checking their coats, they went upstairs to

the dance area.

Bevins testiﬁed at her deposition that the stairs were

close to the door where guests go outside to smoke. Two

or three times during their visit, Bevins said, they went

downstairs for a smoke break. At the time, it was

snowing and there was snow on the ground. Bevins said

that the bar was busy and there was “a lot of trafﬁc”

from people going in and out. Dobronski similarly tes-

tiﬁed at her deposition that it began to snow after they

arrived and was snowing “really bad.” Bevins said she

saw “girls that were wearing like ﬂat shoes . . . sliding”

on the steps. She was not sure if all the steps after the

landing were wet because “it’s darker, you can’t see as

good, and I didn’t inspect the stairs, I’m there to have

fun, not to look for safety hazards.” Nevertheless, she

testiﬁed that the steps “were very wet” from the smok-

ers tracking snow inside. There was even some salt on

the steps that got tracked in from outside.

504 313 M

ICH

500 [Dec

Lowrey testiﬁed that she and her friends descended

the same steps on their way to leave. She could not see

clearly because there were “a lot of people like walking

down the stairs . . . .” Dobronski also testiﬁed that

there were a lot of people going down the steps. The

steps were narrow; there was enough room for two

people to descend side-by-side, but they would be in

trouble if somebody were coming up the stairs. After

Lowrey had descended about three-quarters of the way

down, she suddenly slipped, lost her balance, and fell.

She tried to get up, but she couldn’t walk; it was later

learned that she had broken her tibia and ﬁbula.

Lowrey said a bouncer ordered them to “get out.”

Bevins similarly stated that there was a bouncer at the

bottom of the steps who witnessed the fall; she agreed

that that he was controlling trafﬁc coming down the

stairs. The bouncer was “rushing” them to get out.

Lowrey’s friends eventually got her out of the bar

without any help from the bouncers.

In June 2013, Lowrey sued LMPS & LMPJ, Inc., for

damages arising from her slip and fall. She amended

her complaint in July 2013 to name KSK as the

defendant instead of LMPS & LMPJ.

KSK moved for summary disposition in May 2014. It

argued that Lowrey’s claim should be dismissed be-

cause Lowrey could not identify what caused her fall

and could not prove that KSK had actual or construc-

tive notice of any dangerous condition that may have

existed. It also argued that, if there were a dangerous

condition, it had no duty to rectify it or warn her

because the condition was open and obvious. The trial

court agreed that Lowrey failed “to present any evi-

dence that [KSK] had actual or constructive notice” of

the condition of the stairs before Lowrey’s fall and

granted KSK’s motion. It also stated, in passing, that it

2015] L

OWREY V

LMPS & LMPJ 505

was dismissing Lowrey’s claims for the reasons “fur-

ther stated” by KSK in its brief. The trial court entered

an order dismissing Lowrey’s claim under MCR

2.116(C)(10) for the reasons stated on the record in

July 2014. After the trial court denied her motion for

reconsideration, Lowrey appealed.

II. SUMMARY DISPOSITION

STANDARD OF REVIEW

Lowrey argues that the trial court erred when it

granted KSK’s motion for summary disposition. This

Court reviews de novo a trial court’s decision on a

motion for summary disposition. Barnard Mfg Co, Inc

v Gates Performance Engineering, Inc, 285 Mich App

362, 369; 775 NW2d 618 (2009). This Court also

reviews de novo whether the trial court properly inter-

preted and applied the court rules and this state’s

common law. Brecht v Hendry, 297 Mich App 732, 736;

825 NW2d 110 (2012).

B. THE BURDEN OF PRODUCTION

In its brief in support of its motion for summary

disposition,

KSK repeatedly asserted its belief that

Lowrey would not be able to support the elements of

her claim. Likewise, in granting KSK’s motion, the

trial court emphasized that Lowrey would have the

burden to present evidence that KSK had actual or

constructive notice of the dangerous condition if her

claim were to proceed to trial and, for that reason,

concluded that she had an obligation to present evi-

dence after KSK raised the issue in its motion. The

trial court appears to have understood that a defen-

dant meets his or her burden of production as the

moving party by simply stating a belief that the

506 313 M

ICH

500 [Dec

plaintiff will be unable to present evidence to establish

an element at trial. This understanding is not, how-

ever, in accord with our court rules.

The parties to a civil action generally have the right

to have a jury hear the evidence and resolve their

dispute. See Const 1963, art 1, § 14. Nevertheless,

because the plaintiff bears the burden of proof, if the

plaintiff fails to present evidence on an element of his

or her claim at trial, the trial court properly directs a

verdict in the defendant’s favor. See Taylor v Kent

Radiology, PC, 286 Mich App 490, 499-500; 780 NW2d

900 (2009). Courts should grant a motion for a directed

verdict only in those cases in which reasonable people

could not differ as to whether the plaintiff established

the elements of his or her claim; to do otherwise would

contravene the constitutional requirement that the

right to a jury trial be preserved. Napier v Jacobs, 429

Mich 222, 231-232; 414 NW2d 862 (1987). The grant of

a motion for summary disposition amounts to—in

effect—the grant of a directed verdict in favor of the

moving party, and the same standard of review applies

to both motions. See Skinner v Square D Co, 445 Mich

153, 165 n 9; 516 NW2d 475 (1994).

Summary dispo-

sition

does not violate a party’s right to a jury trial

because that right extends only to cases in which there

are genuine issues of fact for the jury. See Peoples

Wayne Co Bank v Wolverine Box Co, 250 Mich 273, 281;

230 NW 170 (1930). In considering such motions,

courts must still remain “cognizant of the delicate

balance between the constitutional right to a jury trial,

on the one hand, and the proper judicial exercise of the

rules of civil procedure, on the other.” Napier, 429 Mich

at 231.

Skinner was overruled in part on other grounds in Smith v Globe

Life Ins Co, 460 Mich 446, 455 n 2 (1999).

2015] L

OWREY V

LMPS & LMPJ 507

A party may test the opposing party’s factual sup-

port for a claim or defense by making a properly

supported motion for summary disposition under MCR

2.116(C)(10). See Maiden v Rozwood, 461 Mich 109,

120; 597 NW2d 817 (1999). A trial court should grant

the motion if, “[e]xcept as to the amount of damages,

there is no genuine issue as to any material fact, and

the moving party is entitled to judgment or partial

judgment as a matter of law.” MCR 2.116(C)(10). In

order to invoke the trial court’s authority to dismiss a

claim under MCR 2.116(C)(10), the moving party must

identify the issues about which there is no genuine

issue of material fact and present evidence that, if left

unrebutted, would establish the moving party’s right

to summary disposition. See Barnard Mfg, 285 Mich

App at 369-370. “If the moving party properly supports

its motion, the burden ‘then shifts to the opposing

party to establish that a genuine issue of disputed fact

exists.’ ” Id. at 370, quoting Quinto v Cross & Peters Co,

451 Mich 358, 362; 547 NW2d 314 (1996). If the moving

party fails to identify with the requisite speciﬁcity the

“issues as to which the moving party believes there is

no genuine issue as to any material fact,” MCR

2.116(G)(4), the nonmoving party cannot be faulted for

failing to respond, and the trial court should deny the

motion. Similarly, if the moving party fails to properly

support his or her motion for summary disposition

with afﬁdavits, depositions, admissions, or other docu-

mentary evidence, the nonmoving party has no obliga-

tion to respond and the trial court should also deny the

motion. Barnard Mfg, 285 Mich App at 370. It is only

after the moving party ﬁles a properly asserted and

supported motion for summary disposition that the

nonmoving party may no longer “rest upon the mere

allegations or denials of his or her pleading, but must,

by afﬁdavits or as otherwise provided in this rule, set

508 313 M

ICH

500 [Dec

forth speciﬁc facts showing that there is a genuine

issue for trial.” MCR 2.116(G)(4).

There is a temptation on the part of busy trial courts

to conclude that, because the plaintiff bears the initial

burden of production at trial, the defendant should be

able to challenge the plaintiff’s ability to support his or

her claim by ﬁling a motion for summary disposition

under MCR 2.116(C)(10) and asserting the belief that

the plaintiff will be unable to meet his or her burden at

trial. However, as our court rules clearly provide, it is

the moving party—whether the plaintiff or the

defendant—who bears the initial burden of production

in a motion for summary disposition; the moving party

must not only “speciﬁcally identify the issues as to

which the moving party believes there is no genuine

issue as to any material fact,” but also must support

the motion “as provided in this rule . . . .” MCR

2.116(G)(4).

The moving party supports his or her motion by

presenting afﬁdavits, depositions, admissions, or

other documentary evidence to establish the grounds

asserted in the motion. MCR 2.116(G)(3). It is only

when the moving party properly supports the motion

that the burden shifts to the nonmoving party to

present evidence sufﬁcient to establish that there is a

genuine issue for trial. Quinto, 451 Mich at 362. And,

because the burden of production is on the moving

party at this point, the moving party risks having his

or her motion “thrown out of court” if the moving

party fails to properly support it. See Kar v Hogan,

399 Mich 529, 540; 251 NW2d 77 (1976) (quotation

marks and citation omitted), overruled in part on

other grounds In re Estate of Karmey, 468 Mich 68;

658 NW2d 796 (2003). Consequently, a defendant who

moves for summary disposition does not satisfy the

2015] L

OWREY V

LMPS & LMPJ 509

initial burden of production by asserting his or her

mere belief that the plaintiff will be unable to make

his or her case at trial. Rather, the moving party must

present evidence that, if left unrebutted, would per-

mit a reasonable ﬁnder of fact to ﬁnd in the moving

party’s favor on the element at issue. Barnard Mfg,

285 Mich App at 370; see also Grandberry-Lovette v

Garascia, 303 Mich App 566, 580-581; 844 NW2d 178

(2014). When the defendant is convinced that the

plaintiff will be unable to support an element of the

claim at trial, but is unwilling or unable to marshal

his or her own proofs to support a motion under MCR

2.116(C)(10), the defendant’s recourse is to wait for

trial and move for a directed verdict after the close of

the plaintiff’s proofs. See Napier, 429 Mich at 229-

230.

C. APPLYING THE LAW: NOTICE

To establish a claim of premises liability,

the plain-

tiff

must be able to prove that the premises possessor

had actual or constructive notice of the dangerous

condition at issue—that is, that the premises possessor

either knew about the dangerous condition or would

have discovered it had he or she conducted a reason-

able inspection. See Riddle v McLouth Steel Prod Corp,

440 Mich 85, 93; 485 NW2d 676 (1992). Because actual

or constructive notice is an essential element of Low-

rey’s claim, if KSK established that there was no

question of fact that it did not have actual or construc-

tive notice, it would be entitled to summary disposi-

tion. MCR 2.116(C)(10).

It is undisputed that Lowrey was an invitee of KSK and that it

therefore owed her the highest duty of care, including a duty to inspect

its premises for dangerous conditions. Grandberry-Lovette, 303 Mich

App at 573.

510 313 M

ICH

500 [Dec

1. ACTUAL NOTICE

To demonstrate that there was no genuine issue that

it did not have actual notice, KSK had to present

evidence that, if believed, would establish that it did

not know that the stairs were wet or slippery. As an

artiﬁcial entity, KSK’s knowledge consists of the col-

lective knowledge acquired by its employees within the

scope of their employment and authority. See The

Upjohn Co v New Hampshire Ins Co, 438 Mich 197,

213-214, 215 n 14; 476 NW2d 392 (1991). For that

reason, a premises possessor is considered to have

actual notice of those conditions caused by his or her

employees or about which his or her employees know.

Hulett v Great Atlantic & Paciﬁc Tea Co, 299 Mich 59,

67; 299 NW 807 (1941). Therefore, to establish that it

did not have actual notice that the steps were wet and

slippery, KSK had to present evidence from an em-

ployee whose duties included addressing dangerous

conditions on the property during the time at issue, as

those conditions might arise or become known.

In the present case, KSK relied on evidence from

three sources to establish that it did not have actual

notice. It cited deposition testimony from the manager

on duty on the night at issue, Jenna Evans. She

testiﬁed that no one made her aware that anyone had

fallen on the steps. KSK noted too that its owner, Tony

Kasab, did not learn of Lowrey’s fall until much later.

Finally, KSK relied on testimony tending to establish

that Lowrey and her friends did not hear anyone

complaining to KSK’s employees about the condition of

the stairs. None of this testimony was sufﬁcient to

allow a reasonable jury to ﬁnd that KSK did not

actually know that the steps were wet and slippery.

Although knowledge that someone had fallen down

the stairs at issue would be evidence that Evans or

2015] L

OWREY V

LMPS & LMPJ 511

Kasab knew that the stairs might have been wet and

slippery, it does not follow from that testimony that no

customer or employee reported that the steps were wet

and slippery, nor, for that matter, that the employees

themselves did not know about the condition of the

stairs. Knowledge that a hazard has not yet caused a

fall is distinct from knowledge that the hazard exists in

the ﬁrst place. Likewise, the fact that Lowrey and her

companions did not hear anyone complain to one of

KSK’s employees does not establish that no one

brought the wet and slippery condition of the stairs to

the attention of its employees. It is highly unlikely that

Lowrey and her companions were privy to every con-

versation between every customer and KSK’s employ-

ees during the time at issue. Because the evidence

proffered in support of KSK’s motion for summary

disposition did not permit an inference that it lacked

actual notice of the wet and slippery conditions, KSK

failed to properly support its motion on that issue.

Consequently, the trial court erred to the extent that it

required Lowrey to present evidence to establish a

question of fact as to whether KSK had actual notice;

instead, it should have denied KSK’s motion for lack of

evidentiary support. See Barnard Mfg, 285 Mich App

at 370.

2. CONSTRUCTIVE NOTICE

A premises possessor owes a duty to inspect his or

her

premises for conditions that might pose a danger to

invitees and this duty is linked to the concept of

constructive notice:

The duty to inspect one’s premises to ensure that the

premises

are safe for invitees is inextricably linked to the

concept of constructive notice. Even if the premises pos-

sessor does not have actual knowledge of a dangerous

512 313 M

ICH

500 [Dec

condition—as would be the case for a dangerous condition

created by some third party or through gradual

deterioration—Michigan courts have long recognized that

the law will impute knowledge of the dangerous condition

to the premises possessor if the premises possessor should

have discovered the dangerous condition in the exercise of

reasonable care. [Grandberry-Lovette, 303 Mich App at

573.]

Generally, the law “will impute knowledge of the

dangerous condition to the premises possessor if the

dangerous condition is of such a character or has

existed for a sufﬁcient time that a reasonable premises

possessor would have discovered it.” Id. at 575. How-

ever, whether the condition was one that a premises

possessor would have discovered with a reasonable

inspection generally depends in the ﬁrst instance on

the nature of the inspection that a reasonable premises

possessor would have made under the circumstances.

See id. at 576-584; see also Gerlach v Detroit United R,

171 Mich 474, 485; 137 NW 256 (1912) (stating that a

reasonable inspection includes not only visual inspec-

tion, but also all those tests that a reasonably prudent

man would ordinarily use to ascertain the condition of

the property at issue).

In Grandberry-Lovette, the plaintiff was injured

while visiting a group home. Grandberry-Lovette, 303

Mich App at 570. On appeal, this Court considered

whether the trial court properly dismissed the plain-

tiff’s claim against the defendant on the ground that he

did not have constructive notice of the dangerous

condition. Id. at 572.

The Court ﬁrst explained that the defendant was

incorrect when he argued that his duty to inspect for

hazards was no different than the plaintiff’s duty to

avoid hazards that are open and obvious. “The prem-

ises possessor’s duty to inspect,” the Court observed,

2015] L

OWREY V

LMPS & LMPJ 513

“is not invariably limited to ‘casual’ observation.” Id.

at 577. This is so because the “premises possessor

must take reasonable care to know the actual condi-

tions” on his or her property. Id. at 578 (quotation

marks and citation omitted). And what amounts to

reasonable care depends on the type of inspection that

a reasonably prudent premises possessor would per-

form under like circumstances: “The duty to take

reasonable care to know the actual condition of the

premises requires the premises possessor to under-

take the type of inspection that a ‘reasonably prudent’

premises possessor would exercise under similar cir-

cumstances to protect his or her invitees.” Id. “[I]f

under the totality of the circumstances a reasonably

prudent premises possessor would have employed a

more vigorous inspection regime that would have

revealed the dangerous condition, the fact that the

condition was not observable on casual inspection

would not preclude a jury from ﬁnding that the

premises possessor should have discovered the haz-

ard in the exercise of reasonable care notwithstand-

ing its latent character.” Id. at 579.

After rejecting the notion that a premises possess-

or’s duty to inspect was invariably the same as an

invitee’s duty to avoid open and obvious hazards,

this

Court

examined the evidence that the defendant prof-

fered in support of his motion and concluded that he

did not properly support it; speciﬁcally, the Court

determined that he failed to offer any evidence as to

what would constitute a reasonable inspection under

like circumstances:

Notably, the Court left open the possibility that a casual inspection

might be reasonable under some circumstances. See Grandberry-

Lovette, 303 Mich App at 580-581.

514 313

ICH

500 [Dec

He did not discuss or present any evidence concerning his

actual inspection regime and whether that regime would

have revealed the dangerous condition. He also did not

discuss or present any evidence that the hazard might

have developed within such a short time that, even with a

reasonable inspection regime, he would not have discov-

ered that the bricks had come loose. He essentially relied

on [the plaintiff’s] inability to discover the hazard on

casual inspection to establish that he too, as a reasonably

prudent premises possessor, would not have discovered

that the bricks had come loose. This evidence, even if left

unrebutted, was insufﬁcient to establish that a reasonably

prudent premises possessor would not have discovered the

step’s condition. [Id. at 580.]

As is evident from the Court’s analysis, a premises

possessor who moves for summary disposition on the

ground that he or she did not have constructive notice

of the dangerous condition will normally have to pres-

ent evidence to establish what constitutes a reasonable

inspection under the circumstances to permit an infer-

ence that, given the nature of the hazard, he or she

would not have discovered the hazard even if he or she

had performed that inspection. Id.; see also Moning v

Alfono, 400 Mich 425, 438; 254 NW2d 759 (1977)

(stating that, in negligence cases, the general standard

of care is a question of law for the court, but the speciﬁc

standard of care is a question of fact for the jury). In

the absence of evidence concerning what would consti-

tute a reasonable inspection, a jury would in most

cases be left to speculate as to whether the premises

possessor would have discovered the hazard at issue

had he or she conducted a reasonable inspection.

The proper context for evaluating whether a condi-

tion was discoverable with a reasonable inspection

depends both on the nature of the hazard and the

nature of the inspection that a reasonable premises

2015] L

OWREY V

LMPS & LMPJ 515

possessor would employ under like circumstances.

See, e.g, Merryman v Hall, 131 Mich 406, 407; 91 NW

647 (1902) (holding that it was error to exclude

testimony concerning the construction of a boiler

because the jury needed to understand the construc-

tion of the boiler and the ordinary practices for

inspecting the boiler before it could determine if

ordinarily prudent and careful men would have re-

moved the ﬂues to ascertain whether the braces had

become defective). In most cases, a premises pos-

sessor cannot adequately support his or her motion

for summary disposition on the ground that he or she

did not have constructive notice without presenting

evidence as to what constitutes a reasonable inspec-

tion under the circumstances. Once the premises

possessor presents evidence concerning what consti-

tutes a reasonable inspection, the premises possessor

can link the evidence concerning the inspection with

the evidence concerning the nature of the hazard in a

way that would permit a jury to infer that the

premises possessor did not have constructive notice.

For example, with regard to a liquid spilled on the ﬂoor of a

supermarket when there was evidence that the liquid was not visible

on casual inspection, but showed signs of evaporation on close exami-

nation, whether the premises possessor could have discovered the spill

would depend on the type of inspection that a reasonable premises

possessor would have undertaken under like circumstances. If there

was evidence that the fall occurred during a busy shopping period and

that a reasonable premises possessor under those circumstances would

have had an employee run a dust mop across the retail areas of the

store every hour, which would have revealed the spill, and that the

evaporation would not have occurred in less than an hour, then the

jury could ﬁnd that the retailer would have discovered the spill

notwithstanding its latent character. Conversely, if there was evidence

that the fall occurred late at night when there are few customers and

when a reasonable premises possessor would not have run a dust mop,

but would instead have relied on casual inspection by its employees,

the jury could ﬁnd that the retailer would not have discovered the spill.

516 313 M

ICH

500 [Dec

If the evidence showed that the premises possessor

actually performed a reasonable inspection, but did

not discover the dangerous condition, the premises

possessor could cite that evidence to establish that

the reason he or she did not discover the hazard was

because the hazard formed in such a short interval

that it could not even be discovered with a reasonable

inspection; in such a case, he or she would have no

liability. See Goldsmith v Cody, 351 Mich 380, 387-

389; 88 NW2d 268 (1958). Even if the evidence

showed that the premises possessor failed to conduct

a reasonable inspection, he or she could proffer evi-

dence concerning the nature of the hazard and dem-

onstrate that, given the nature of the hazard, even if

he or she had conducted a reasonable inspection, the

hazard would not have been discovered. In both cases,

the burden would then shift to the nonmoving party

to come forward with evidence to establish a question

of fact. Quinto, 451 Mich at 362.

In this case, KSK argued that the undisputed evi-

dence showed that Lowrey could not prove how the

liquid at issue got on the stairs or how long it was

there. KSK also noted that its manager, Evans, testi-

ﬁed that either “a waitress or one of the staff will see it

[a spill] and report it, or [that she] will see it on the

security cameras.” KSK then concluded that this evi-

dence demonstrated that Lowrey would not be able to

prove that KSK had constructive notice of the wet

stairs at trial:

It is possible that the water got on the stairs only ﬁve

minutes

or ﬁve seconds before [Lowrey’s] fall. Someone

walking down the stairs immediately in front of [Lowrey]

could have spilled a drink right in front of her. As [Lowrey]

cannot meet her burden of demonstrating that [KSK] had

actual or constructive notice, [it] is not liable.

2015] L

OWREY V

LMPS & LMPJ 517

We do not agree that KSK supported its motion for

summary disposition with evidence that, if left unre-

butted, would establish that it did not have construc-

tive notice of the wet and slippery condition of the

stairs. Because KSK had the initial burden to produce

evidence in support of its motion, its belief that Lowrey

would be unable to meet her burden at trial was

irrelevant and did not establish grounds for dismissing

Lowrey’s claim under MCR 2.116(C)(10). Moreover,

KSK did not proffer any evidence that would permit a

reasonable ﬁnder of fact to ﬁnd that it did not have

constructive notice.

Although KSK brieﬂy cited Evans’s testimony about

how

spills are normally discovered and handled, it did

not present any evidence indicating that particular

method for inspecting the premises was reasonable

under the circumstances of that night. It did not cite

any evidence concerning the weather conditions (there

was testimony that it was snowing heavily and that

snow was being tracked into the bar and onto the

stairs), how busy the bar was at the time (there was

testimony that there were normally a couple hundred

or more patrons), and did not even cite evidence that

the bar’s employees actually used the stairs at issue.

In the absence of evidence tending to show that casual

As this Court has stated, we must review a motion for summary

disposition by considering only the evidence and arguments actually

made before the trial court. Barnard Mfg, 285 Mich App at 380-381. We

are not, therefore, at liberty to consider new arguments or evidence on

appeal.

There was evidence that would permit an inference that the bar’s

patrons tracked snow onto the stairs and that the stairs had become

slippery for some time before Lowrey’s fall. If the jury were to ﬁnd the

testimony concerning the presence of bouncers near these stairs to be

credible, it could infer that the bouncers had actual notice of the

dangerous condition or, in the exercise of reasonable care, would have

discovered the dangerous condition.

518 313

ICH

500 [Dec

inspection by the employees while working was rea-

sonable and that the employees actually used the

stairs, a jury confronted with this evidence would be

left to speculate as to whether KSK conducted a

reasonable inspection under the circumstances and, if

it did not, whether it could have discovered the wet

conditions with a reasonable inspection. Thus, KSK

failed to support its motion with evidence that, if left

unrebutted, would establish that there was no genu-

ine issue of material fact as to whether it had con-

structive notice. See MCR 2.116(G)(3) and (4). At best,

the evidence established that it was theoretically

possible that it did not have constructive notice. See

Skinner, 445 Mich at 164-166. By failing to discuss

the evidence concerning the nature of the condition at

issue—steps that were wet with snow tracked in from

outside, a condition that may have formed over the

course of an hour or more—KSK failed to establish

that the condition might have occurred in such a short

interval that a reasonable inspection regime would

not have revealed it. Without discussing the evidence,

its claim that the condition might have arisen mere

seconds before Lowrey’s fall is nothing more than

conjecture. Because KSK did not support its motion

for summary disposition with evidence that would, if

believed, establish that it did not have constructive

notice of the wet stairs, the burden never shifted to

Lowrey to establish a question of fact on that issue.

Quinto, 451 Mich at 362.

The trial court erred when it granted KSK’s motion

for summary disposition on the ground that there was

no genuine issue of fact that it did not have either

actual or constructive notice. KSK failed to support its

motion as required under MCR 2.116(G)(3) and (4), and

the trial court should have denied the motion on that

basis alone. Grandberry-Lovette, 303 Mich App at 581.

2015] L

OWREY V

LMPS & LMPJ 519

Because of our resolution of this issue, we need not

address Lowrey’s evidence that KSK actually knew

through its agents that the steps were wet and slip-

pery.

ALTERNATE GROUNDS

The trial court also determined that KSK was en-

titled to summary disposition on the basis of the other

arguments that it made in its motion. KSK had argued

that Lowrey’s claim should be dismissed for three

additional reasons: (1) Lowrey could not establish that

a liquid caused her fall, (2) the stairs do not amount to

a dangerous condition, and (3) it had no duty to warn

or rectify the condition because it was open and obvi-

ous.

1. CAUSATION

To prove her claim at trial, Lowrey had to show that

the

dangerous condition was both the cause in fact and

the proximate cause of her injury. Skinner, 445 Mich at

162-163. It would not be sufﬁcient for Lowrey to

present evidence that it was plausible that the wet

stairs caused her fall; there must be evidence from

which a reasonable jury could conclude that it is more

likely than not that the wet stairs caused her fall. Id. at

164-165.

In support of its motion, KSK selectively cited testi-

mony by Lowrey that suggested that she was not sure

about the cause of her fall. If this testimony had been

As noted, there was testimony that one or more bouncers were

stationed near the stairs and may have observed that the steps were

wet. KSK, however, has been unable to identify its bouncers, did not

apparently keep records of their service, and claimed to have no contact

information for them.

520 313 M

ICH

500 [Dec

left unrebutted, KSK would have been entitled to

summary disposition. However, in response to KSK’s

motion, Lowrey cited portions of her testimony in

which she clariﬁed that she slipped and fell as a result

of liquid on the stairs. She agreed that she saw the

“liquid that caused [her] foot to slip” after she fell and,

when asked, she stated that “[l]iquid” caused her foot

to slip. Although her testimony seemed inconsistent,

any inconsistencies were a matter of weight and cred-

ibility that could not be assessed on a motion for

summary disposition. Id. at 161. This Court, like the

trial court, must view Lowrey’s testimony in the light

most favorable to her when determining whether there

is a genuine issue of fact. Id. at 162; see also Quinto,

451 Mich at 362. Viewing Lowrey’s testimony and the

other evidence in the light most favorable to her, it was

deducible using reasonable inferences that Lowrey

slipped as a result of the wet stairs; that is, there was

substantial evidence from which a jury might conclude

that, but for KSK’s failure to rectify the wet condition

of the stairs, Lowrey would not have been injured. See

Skinner, 445 Mich at 164-165. Thus, there was a

question of fact on the issue of causation, and the trial

court erred to the extent that it determined that

summary disposition was warranted on this ground.

2. DANGEROUS CONDITION

KSK also argued that there was nothing about the

character

, location, or surrounding condition of the

steps that made the steps unreasonably dangerous.

See Bertrand v Alan Ford, Inc, 449 Mich 606, 614-617;

537 NW2d 185 (1995). In making this argument, KSK

ignored the evidence that the steps had become wet;

instead, it focused on the fact that—under normal

conditions—there was nothing particularly dangerous

2015] L

OWREY V

LMPS & LMPJ 521

about the steps. Considering the evidence that the

steps had become wet, a reasonable jury could ﬁnd that

the risk of harm to invitees was unreasonable. There-

fore, there was a question of fact on that issue. Id. at

617.

3. THE OPEN AND OBVIOUS DANGER DOCTRINE

A premises possessor has no duty to rectify a dan-

gerous condition that is so obvious that the invitee

might reasonably be expected to discover it.

Grandberry-Lovette, 303 Mich App at 576. Where an

otherwise dangerous condition is open and obvious, the

open and obvious danger doctrine will cut off liability.

Id.

The threshold issue of whether KSK owed a duty to

Lowrey is a question of law to be decided by the court.

Riddle, 440 Mich at 95. Because the open and obvious

danger doctrine is an integral part of the deﬁnition of

the duty owed by a premises possessor, whether the

open and obvious danger doctrine will cut off liability

will often be a question of law. See Lugo v Ameritech

Corp, Inc, 464 Mich 512, 516-517; 629 NW2d 384

(2001). Nevertheless, there may be circumstances in

which there is a factual dispute that must be resolved

before it can be determined whether there was a duty

of care. See Bertrand, 449 Mich at 617. In Bonin v

Gralewicz, 378 Mich 521, 526-527; 146 NW2d 647

(1966) (opinion by S

OURIS

, J.), our Supreme Court

explained the distinction between the role of the jury

and the role of the trial court when determining

whether a defendant has a duty to the plaintiff:

Usually, in negligence cases, whether a duty is owed by

the

defendant to the plaintiff does not require resolution of

fact issues. However, in some cases, as in this one, fact

issues arise. When they do, they must be submitted to the

522 313 M

ICH

500 [Dec

jury, our traditional ﬁnders of fact, for ultimate resolution

and they must be accompanied by an appropriate condi-

tional instruction regarding defendant’s duty, conditioned

upon the jury’s resolution of the fact dispute.

Hence, when the facts necessary to make a determi-

nation regarding the duty owed by a defendant to a

plaintiff are not disputed, it is the trial court’s respon-

sibility to decide the legal import of those facts. If there

are disputed facts, which, depending on how those

facts are resolved, could alter the determination that

the defendant owed a duty to the plaintiff, those facts

must be submitted to the jury with an appropriate

instruction. Id.

“A dangerous condition is open and obvious if an

average user with ordinary intelligence acting under

the same conditions would have been able to discover

the danger and the risk presented by the condition upon

casual inspection.” Grandberry-Lovette, 303 Mich App

at 576-577 (quotation marks and citation omitted). To

properly support a motion for summary disposition on

the ground that the dangerous condition at issue was

open and obvious, the premises possessor must present

evidence that the dangerous condition—as it existed at

the time the plaintiff encountered it—was such that

reasonable people could not disagree that an average

user of ordinary intelligence acting under those condi-

tions would have been able to discover the danger and

the risk presented by the condition on casual inspection.

Id.; see also Napier, 429 Mich at 231-232. It is only after

the moving party presents such evidence that the bur-

den shifts to the nonmoving party to present evidence to

establish a question of fact as to whether an average

user of ordinary intelligence would not have been able to

discover the hazard on casual inspection. Quinto, 451

Mich at 362.

2015] L

OWREY V

LMPS & LMPJ 523

KSK did not present any evidence to support its

contention that the wet stairs were open and obvious;

more speciﬁcally, it did not present any evidence that an

average patron with ordinary intelligence, who was

acting under the same conditions as those present when

Lowrey encountered the hazard, would “have been able

to discover the danger and the risk presented by the

condition upon casual inspection.” Grandberry-Lovette,

303 Mich App at 576-577 (quotation marks and citation

omitted). There was testimony that the stairs were wet

and slippery and that the stairwell was dark and

crowded with patrons who were attempting to leave. Yet

KSK did not present any evidence that an average

person acting under those conditions would have dis-

covered the danger and risk presented on casual in-

spection. Instead, KSK relied on the fact that courts

have held that steps and water—under other

circumstances—amounted to open and obvious haz-

ards. That, however, was insufﬁcient to establish that

reasonable people could not differ as to the character of

the hazard at issue in this case. Grandberry-Lovette,

303 Mich App at 576-577; see also Napier, 429 Mich at

231-232. Because KSK failed to present any evidence

to support its contention that an average patron “with

ordinary intelligence acting under the same conditions

would have been able to discover the danger and the

risk presented by the condition upon casual inspec-

tion,” Grandberry-Lovette, 303 Mich App at 576-577

(quotation marks and citation omitted), the trial court

should have denied the motion to the extent that KSK

asserted that Lowrey’s claim was barred by the open

and obvious danger doctrine.

III. CONCLUSION

KSK failed to present evidence that, if left unrebut-

ted,

would establish that it did not have actual or

524 313 M

ICH

500 [Dec

constructive notice of the hazard at issue or that the

hazard was open and obvious. Consequently, the bur-

den to establish a question of fact did not shift to

Lowrey and the trial court erred when it concluded

otherwise. The trial court also erred to the extent that

it determined that there was no question of fact as to

whether wet stairs constitute an actionable hazard or

on the issue of causation. For these reasons, the trial

court should have denied KSK’s motion.

Accordingly, we reverse the trial court’s decision,

vacate its order granting summary disposition in

KSK’s favor, and remand for further proceedings con-

sistent with this opinion. Given our resolution of the

issues, we decline to address Lowrey’s arguments

concerning the spoliation of evidence. We do not retain

jurisdiction. As the prevailing party, Lowrey may tax

her costs. MCR 7.219(A).

ONAYNE

RAUSE

, P.J., and M

ARKEY

, J., concurred

with M. J. K

ELLY

, J.

2015] L

OWREY V

LMPS & LMPJ 525

PEOPLE v GREEN

Docket No. 321669. Submitted October 8, 2015, at Petoskey. Decided

October 20, 2015. Approved for publication December 10, 2015, at

9:05 a.m.

Gabriel L. Green was tried in the Emmet Circuit Court and

convicted of three counts of third-degree criminal sexual conduct

(CSC-III) involving force or coercion, MCL 750.520d(1)(b), against

JG and one count of fourth-degree criminal sexual conduct

(CSC-IV) involving force or coercion, MCL 750.520e(1)(b), against

JB. Defendant was a Children’s Protective Services (CPS) worker

for the Department of Human Services (now the Department of

Health and Human Services). His convictions arose out of his

sexual relations with JG and sexual contact with JB while

working as the CPS worker assigned to the respective neglect or

abuse complaints ﬁled against them. The court, Charles W.

Johnson, J., sentenced defendant to concurrent terms of 5 to 15

years in prison for each CSC-III conviction and 12 months in

prison for the CSC-IV conviction, and defendant appealed.

The Court of Appeals held:

1. Defendant argued that there was insufﬁcient evidence at

the preliminary examination to support his bindover on the

charges. A defendant may not appeal that issue, however, if he or

she was fairly convicted at trial. Given that there was no merit to

the issues that defendant raised on appeal, the Court of Appeals

concluded that he had been fairly convicted at trial and that

reviewing whether the evidence at the preliminary examination

was sufﬁcient to warrant a bindover would have been improper.

2. Defendant argued that the trial court abused its discretion

by restricting cross-examination of JG at trial and not admitting

JG’s purportedly inconsistent preliminary examination testi-

mony as substantive evidence under MRE 801(d)(1)(A), which

provides that a prior statement of a declarant is not hearsay if (1)

the declarant testiﬁes at the trial or hearing and is subject to

cross-examination concerning the statement and (2) the state-

ment is inconsistent with the declarant’s sworn testimony at a

trial, hearing, or other proceeding. Defendant’s counsel, however,

was allowed to use JG’s preliminary examination testimony to

526 313

ICH

526 [Dec

impeach her trial testimony on one point, asking JG about her

discussion with defendant regarding why she did not think the

sexual activity was a good idea and making clear that at the

preliminary examination JG had not used defendant’s CPS status

as one of the reasons.

3. JG testiﬁed at trial that she had never said that defendant

asked her whether she wanted him to step down as her case-

worker because he was in a position of authority. At the prelimi-

nary examination, JG had testiﬁed that defendant asked her if

she wanted to keep seeing him because it was up to her since he

was in a position of authority. The trial court did not abuse its

discretion by concluding that JG’s trial testimony was not incon-

sistent with her preliminary examination testimony. Inconsis-

tency is not limited to diametrically opposed answers but may be

found in evasive answers, inability to recall, silence, or changes of

position. The two statements were not diametrically opposed,

evasive, or a change of position. Instead, JG’s denial at trial that

she had made such a statement was consistent with her prelimi-

nary examination testimony. For the same reasons, the trial court

did not abuse its discretion by permitting defense counsel to

cross-examine JG about another part of her preliminary exami-

nation testimony (concerning when defendant made the state-

ment about leaving JG’s case open so he could continue to see her)

but not admitting it as substantive evidence.

4. The trial court did not abuse its discretion by concluding

that JB’s statements to her stepdaughter on the day JB and

defendant had sexual contact were admissible under MRE 803(2)

as excited utterances. JB made her ﬁrst statement after defen-

dant, while investigating alleged neglect or abuse, massaged JB’s

shoulders, back, and inner thighs. She made the second state-

ment after sexual contact that involved oral sex and sexual

intercourse. While she did not allege physical coercion or violence

in either occurrence, both occurred in the context of defendant

investigating JB for child abuse and neglect. The stepdaughter

testiﬁed that complainant JB was very upset and crying during

both conversations. Given the circumstances surrounding both

events, they were startling events. Both statements were made

within a few minutes of defendant’s leaving the apartment, so

there was no time to contrive and misrepresent his actions.

Finally, JB’s statements were clearly related to the circumstances

surrounding defendant’s actions, which were startling events.

JB’s statements to her mother on the same day as her contacts

with defendant were also admissible under MRE 803(2) for the

same reasons.

2015] P

EOPLE V

REEN

527

5. Defendant’s convictions were not against the great weight

of the evidence. MCL 750.520d(1)(b) provides that a person is

guilty of CSC-III if he or she engages in sexual penetration with

another person and force or coercion is used to accomplish the

sexual penetration. Under MCL 750.520e(1)(b), a person is guilty

of CSC-IV is he or she engages in sexual contact with another

person and force or coercion is used to accomplish the sexual

contact. MCL 750.520b(1)(f) deﬁnes the phrase “force or coercion”

as including several circumstances, but the Legislature did not

limit the deﬁnition to the examples enumerated in the statute.

The existence of force or coercion must be determined in light of

all the circumstances and is not limited to acts of physical

violence. Coercion may be actual, direct, or positive, as when

physical force is used to compel an act against one’s will, or

implied, legal, or constructive, as when one party is constrained

by subjugation to another to do what the party’s free will would

refuse. Further, force or coercion exists whenever a defendant’s

conduct induces a victim to reasonably believe that the victim has

no practical choice because of a history of child sexual abuse or for

some other similarly valid reason. A defendant’s conduct consti-

tutes coercion when the defendant abuses his or her position of

authority to constrain a vulnerable victim by subjugation to

submit to sexual penetration or contact. Defendant was in a

position of authority over the complainants because he was the

CPS worker assigned to investigate the abuse or neglect com-

plaints ﬁled against them. Testimony established that CPS has

the authority to provide services to rectify the risk to a child and

petition the court for removal of a child or termination of parental

rights. CPS may also petition to have a child removed from a

home if a mother fails to protect her child from an abusive father

or boyfriend, which was the situation that caused the complaint

to be ﬁled in JG’s case. Fear of losing one’s child through neglect

or abuse proceedings would produce an extreme reaction in most

parents. Defendant informed JG on the ﬁrst day that if she did

not leave her ﬁancé her child would be taken away. JG testiﬁed

that she knew defendant would not stop until he got what he

wanted. With respect to JB, defendant isolated her by requesting

her stepdaughter to leave the room and then conﬁded facts about

his sister’s murder as a result of domestic violence, which upset

JB, who had just discussed her marriage and domestic violence

with defendant. Both complainants were in a position of special

vulnerability with respect to defendant, and his actions as a CPS

worker were unprofessional, irresponsible, and an abuse of au-

thority. In light of all the circumstances, the evidence established

that defendant used his position of authority to manipulate and

528 313

ICH

526 [Dec

coerce the complainants to perform the sexual acts with him, and

the trial court did not abuse its discretion by denying defendant’s

motion for a new trial.

Afﬁrmed.

RIMINAL

EXUAL

ONDUCT —

SE OF

ORCE OR

OERCION —

BUSE OF A

OSITION OF

UTHORITY —

HILDREN

’

ROTECTIVE

ERVICES

ORKER

A person may be guilty of criminal sexual conduct in various

circumstances in which he or she engages in sexual penetration

or sexual contact with another person and force or coercion is

used to accomplish the penetration or contact;. MCL

750.520b(1)(f) deﬁnes the phrase “force or coercion” as including

several circumstances, but the deﬁnition is not limited to the

examples enumerated in the statute; the existence of force or

coercion must be determined in light of all the circumstances and

is not limited to acts of physical violence; coercion may be actual,

direct, or positive, as when physical force is used to compel an act

against one’s will, or implied, legal, or constructive, as when one

party is constrained by subjugation to another to do what the

party’s free will would refuse; force or coercion exists whenever a

defendant’s conduct induces a victim to reasonably believe that

the victim has no practical choice because of a history of child

sexual abuse or for some other similarly valid reason; a defen-

dant’s conduct constitutes coercion when the defendant abuses

his or her position of authority to constrain a vulnerable victim by

subjugation to submit to sexual penetration or contact; a Chil-

dren’s Protective Services worker assigned to investigate a com-

plaint of abuse or neglect ﬁled against an individual is in a

position of authority over that individual.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, James R. Linderman, Pros-

ecuting Attorney, and Cheri L. Bruinsma, Assistant

Attorney General, for the people.

Duane J. Beach for defendant.

Before: M

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ.

URIAM

. A jury acquitted defendant of six counts

of third-degree criminal sexual conduct (CSC-III) in-

volving force or coercion, MCL 750.520d(1)(b), but

2015] P

EOPLE V

REEN

529

convicted defendant of three counts of that crime

against complainant JG and one count of fourth-degree

criminal sexual conduct (CSC-IV) involving force or

coercion, MCL 750.520e(1)(b) against complainant JB

(collectively referred to as the “complainants”). The

trial court sentenced defendant to concurrent terms of

5 to 15 years in prison for each of the CSC-III convic-

tions and 12 months in prison for the CSC-IV convic-

tion. Defendant appeals by right. We afﬁrm.

Defendant was a Children’s Protective Services

(CPS) worker for the Department of Human Services

(DHS).

His convictions arise out of his sexual relations

with

JG and sexual contact with JB while working as

the CPS worker assigned to the respective neglect or

abuse complaints ﬁled with the DHS against the

individual complainants. The prosecution’s theory of

the case was that defendant coerced the complainants

to agree to his behavior because he was in a position of

authority at the time of the acts. Defendant argued

that the sexual relations and contact were consensual.

Defendant ﬁrst argues that there was insufﬁcient

evidence at the preliminary examination to support his

bindover on the CSC-III and CSC-IV charges. A defen-

dant may not appeal whether the evidence at the

preliminary examination was sufﬁcient to warrant a

bindover if the defendant was “fairly convicted of the

crimes at trial.” People v Wilson, 469 Mich 1018 (2004).

See also People v Hall, 435 Mich 599, 602-603; 460

NW2d 520 (1990) (holding that “the evidentiary error

committed at the preliminary examination stage of

this case does not require automatic reversal of the

subsequent conviction absent a showing that defen-

dant was prejudiced at trial”). As discussed fully in this

opinion, we ﬁnd no merit in the issues raised by

The DHS is now the Department of Health and Human Services.

530 313 M

ICH

526 [Dec

defendant on appeal. Thus, we conclude that defendant

was fairly convicted at trial, and we may not review

whether the evidence at the preliminary examination

was sufﬁcient to warrant a bindover.

Defendant next argues that the trial court abused

its discretion by restricting cross-examination of JG at

trial and not admitting JG’s purportedly inconsistent

preliminary examination testimony as substantive evi-

dence under MRE 801(d)(1)(A). Defendant preserved

this issue by seeking to impeach her with certain

preliminary examination testimony, arguing that her

trial testimony was inconsistent. MRE 103(a)(2). We

review for an abuse of discretion a preserved challenge

to the admission of evidence. People v Orr, 275 Mich

App 587, 588; 739 NW2d 385 (2007). “A trial court

abuses its discretion when it chooses an outcome that

is outside the range of reasonable and principled

outcomes.” Id. at 588-589.

In general, hearsay—an out-of-court statement of-

fered to prove the truth of the matter asserted—may

not be admitted into evidence. MRE 801; MRE 802.

MRE 801(d)(1)(A) provides that a prior statement of a

declarant is not hearsay if (1) “[t]he declarant testiﬁes

at the trial or hearing and is subject to cross-

examination concerning the statement” and (2) the

statement is “inconsistent with the declarant’s testi-

mony, and was given under oath subject to the penalty

of perjury at a trial, hearing, or other proceeding, or in

a deposition . . . .” The word “inconsistent” is deﬁned as

“ ‘marked by incompatibility of elements,’ ‘not in agree-

ment with each other.’ and ‘not consistent in standards

of behavior.’ ” People v Chavies, 234 Mich App 274, 282;

593 NW2d 655 (1999), overruled in part on other

grounds by People v Williams, 475 Mich 245, 255; 716

NW2d 208 (2006), quoting Random House Webster’s

2015] P

EOPLE V

REEN

531

College Dictionary (1997). “ ‘[I]nconsistency is not

limited to diametrically opposed answers but may be

found in evasive answers, inability to recall, silence, or

changes of position.’ ” Chavies, 234 Mich App at 282

(citation omitted). The word “consistent,” however, is

deﬁned as “ ‘agreeing or accordant; compatible; not

self-contradictory,’ ‘constantly adhering to the same

principles, course, form, etc.,’ and ‘holding ﬁrmly to-

gether; cohering.’ ” Id. at 282 n 3, quoting Random

House Webster’s College Dictionary (1997).

Defendant initially notes the following trial testi-

mony that was purportedly inconsistent with JG’s

preliminary examination testimony:

Q [by

the prosecutor on direct examination]. So what

happened next?

A. We continued light conversation. He asked if [I]

could move my shorts so he could get in better towards

me -- and my legs. And at this point, I was rolled over

onto my -- I was laying on my back. And he moved my

shorts over and started over and started massaging my

groin area and I asked him at that point, “Are we still on

a professional level?” And he looked at me and said, “Do

you want to be?” At that point, I told him, “You know, this

probably is not a good idea. You’re married. I have a

ﬁancé and you’re my CPS worker and you’re investigat-

ing me. This isn’t a very good idea.[”] At that --

* * *

Q. So, you actually spoke up and said something?

A. Yes, I did.

Q. How did he respond?

A. He said, “Okay, let’s just -- it’s up to you.” And he

continued on with his massage and we were making light

conversation. I’m not exactly -- I don’t exactly remember

certain things that were said.

532 313

ICH

526 [Dec

Contrary to defendant’s argument, his trial counsel

was allowed to use JG’s preliminary examination tes-

timony to impeach this trial testimony. Counsel asked

JG about her discussion with defendant regarding why

she did not think the sexual activity was a good idea,

bringing out that at the preliminary examination she

did not use his CPS status as one of the reasons:

Okay. You were asked on direct examination about

your protesting or discussion or however you characterize

it, with regards to [defendant] initially engaging in sexual

conduct. Do you remember being asked questions about

what you said?

A. Yes.

Q. Okay, do you remember that same exact issue being

addressed back at the preliminary examination, back in

October of last year?

A. What exact issue?

Q. The exact issue of what you said to [defendant]?

A. What exactly did I say to [defendant]?

Q. I’m asking. I’ll show you, but I want to ask you if you

remember being asked the same question, the same line of

questioning.

A. Somewhat similar, yes.

Q. Okay at the preliminary examination, on page 63,

lines four, ﬁve, six and seven, you were on direct exami-

nation and being asked questions by the same prosecutor,

do you remember that exchange?

A. (No Audible Response).

Q. Once again, 63, four, ﬁve, six, and seven.

A. Yes, I remember being asked that question.

Q. Okay. Is that the same answer that you gave today?

A. Yes.

Q. Back in October, you were asked the question by [the

prosecutor], “So, after the digital, what happened next?”

2015] P

EOPLE V

REEN

533

Answer at line ﬁve, do you remember making the state-

ment, “And then I asked if we were still being professional

and he asked me, ‘Do you want to be?’ And at that point, I

explained that I had a ﬁancé and he was married.” That’s

the end of your answer, correct?

A. So, I didn’t go into full detail of what I said today?

Q. No, that’s what I was asking you.

Because defendant was allowed to use the preliminary

examination testimony during cross-examination,

there was no error related to this testimony.

Next, defendant appears to argue that the trial court

abused its discretion by not allowing trial counsel to

introduce preliminary examination testimony that was

purportedly inconsistent with JG’s trial testimony re-

garding whether defendant gave her the option of his

stepping down as her caseworker before having sex. The

trial court did not abuse its discretion by concluding

that trial testimony—that JG never said defendant

asked her whether she wanted him to step down as her

caseworker because he was in a position of authority—

was not inconsistent with her preliminary examination

testimony. At the preliminary examination, JG testiﬁed

that defendant asked her if she wanted to keep seeing

him because it was up to her since he was in a position

of authority. These two statements are not diametrically

opposed, evasive, or a change of position. Chavies, 234

Mich App at 282. Instead, her denial at trial of making

such a statement is consistent with her preliminary

examination testimony. Id. at 282 n 3. Because the

preliminary examination testimony was not inconsis-

tent with JG’s trial testimony, we conclude that the trial

court did not abuse its discretion. See Orr, 275 MichApp

at 588.

Defendant next argues that the trial court abused

its discretion by precluding trial counsel from admit-

534 313 M

ICH

526 [Dec

ting JG’s preliminary examination testimony regard-

ing the chronology of when defendant made the state-

ment about leaving her case open so he could continue

to see her. Defendant asserts that at trial JG testiﬁed

that it was made before her statement that she wanted

to continue seeing defendant, but that at the prelimi-

nary examination she said the opposite. We have

reviewed the record and conclude that the trial court

did not abuse its discretion by permitting counsel to

cross-examine JG about her prior testimony but not

admitting it as substantive evidence. At the prelimi-

nary examination, JG testiﬁed that defendant told her

he was going to keep her case open as long as possible

so he could continue to see her. She did not testify

about when defendant made that comment in relation

to her decision to continue the sexual relationship.

Thus, the two statements are not diametrically op-

posed or evasive and do not constitute a change in her

position. Chavies, 234 Mich App at 282. Instead, her

two statements are consistent with each other. Id. at

282 n 3.

To the extent defendant argues that the prosecution

improperly bolstered JG’s credibility and in-court tes-

timony because trial counsel was “not permitted to

impeach” her, we consider this issue abandoned. “An

appellant may not merely announce his position and

leave it to this Court to discover and rationalize the

basis for his claims, nor may he give only cursory

treatment with little or no citation of supporting au-

thority.” People v Kelly, 231 Mich App 627, 640-641;

588 NW2d 480 (1998).

Defendant next argues that the trial court abused its

discretion by concluding that JB’s statements to her

stepdaughter and mother on the day she and defendant

had sexual contact were admissible under MRE 803(2)

2015] P

EOPLE V

REEN

535

as excited utterances. We review for an abuse of discre-

tion the trial court’s evidentiary ruling. Orr, 275 Mich

App at 588.

We ﬁnd no abuse of discretion in the admission of

two statements to the stepdaughter, one after each

contact with defendant, under MRE 803(2). The ﬁrst

statement was made after defendant, while investi-

gating alleged neglect or abuse, massaged JB’s shoul-

ders, back, and inner thighs. The second statement

was made after the sexual contact that involved oral

sex and sexual intercourse. While neither physical

coercion nor violence was alleged in either occurrence,

both occurred in the context of defendant’s investigat-

ing JB for child abuse and neglect. The stepdaughter

testiﬁed that JB was very upset and crying during

both conversations. Given the circumstances sur-

rounding both events, we conclude that they were

startling events. See People v Smith, 456 Mich 543,

552; 581 NW2d 654 (1998) (noting that sexual assault

is a startling event). Both statements were made

within a few minutes of defendant’s leaving the

apartment, so there was no time to contrive and

misrepresent his actions. Finally, her statements

were clearly related to the circumstances surrounding

defendant’s actions, which were startling events.

People v Straight, 430 Mich 418, 424; 424 NW2d 257

(1988). According the trial court wide discretion re-

garding its determination that JB was still under the

stress of the startling events when she made the

statements, see Smith, 456 Mich at 552, we ﬁnd no

abuse of discretion.

Similarly, we conclude that JB’s statements to her

mother on the same day as her contacts with defendant

were admissible under MRE 803(2). The statements

were made after defendant ﬁrst massaged her shoul-

536 313 M

ICH

526 [Dec

ders, back, and inner thighs and later had oral sex and

sexual intercourse. Again, while physical coercion or

violence was not alleged, both contacts occurred in the

context of defendant’s investigating JB for child abuse

and neglect. Her mother testiﬁed that JB was very

upset and crying when she related the events over the

telephone. The statements were made within hours of

defendant leaving the apartment, so there was little

time to contrive and misrepresent his actions. Finally,

her statements were clearly related to the circum-

stances surrounding defendant’s actions, which were

the startling events. Straight, 430 Mich at 424. Thus,

giving the trial court wide discretion, we conclude that

it did not abuse its discretion by ﬁnding the statements

admissible as excited utterances.

Defendant next argues that reversal is required

because of cumulative evidentiary errors. However,

“[a]bsent the establishment of errors, there can be no

cumulative effect of errors meriting reversal.” People

v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007).

See also People v Bahoda, 448 Mich 261, 292 n 64; 531

NW2d 659 (1995) (stating that “only actual errors are

aggregated to determine their cumulative effect”).

Finally, defendant argues that his convictions are

against the great weight of the evidence. We disagree.

We review a great-weight claim to determine whether

“the evidence preponderates heavily against the ver-

dict and a serious miscarriage of justice would other-

wise result.” People v Lemmon, 456 Mich 625, 642;

576 NW2d 129 (1998) (quotation marks and citation

omitted). A trial court’s denial of a motion for new

trial is reviewed for an abuse of discretion. People v

Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008).

Defendant was convicted of CSC-III and CSC-IV. A

person is guilty of CSC-III “if the person engages in

2015] P

EOPLE V

REEN

537

sexual penetration with another person and . . . [f]orce

or coercion is used to accomplish the sexual penetra-

tion.” MCL 750.520d(1)(b). As directed by that statute,

the phrase “force or coercion” is deﬁned in MCL

750.520b(1)(f) and

includes, but is not limited to, any of the following circum-

stances:

(i) When the actor overcomes the victim through the

actual application of physical force or physical violence.

(ii) When the actor coerces the victim to submit by

threatening to use force or violence on the victim, and the

victim believes that the actor has the present ability to

execute these threats.

(iii) When the actor coerces the victim to submit by

threatening to retaliate in the future against the victim, or

any other person, and the victim believes that the actor

has the ability to execute this threat. As used in this

subdivision, “to retaliate” includes threats of physical

punishment, kidnapping, or extortion.

(iv) When the actor engages in the medical treatment

or examination of the victim in a manner or for purposes

that are medically recognized as unethical or unaccept-

able.

(v) When the actor, through concealment or by the

element of surprise, is able to overcome the victim.

A person is guilty of CSC-IV if he or she engages in

sexual

contact with another person and . . . “[f]orce or

coercion is used to accomplish the sexual contact.”

MCL 750.520e(1)(b). For purposes of CSC-IV, the

phrase “force or coercion” is deﬁned in the same

manner as for CSC-III. MCL 750.520e(1)(b)(i) to (v).

We conclude that the facts and circumstances sur-

rounding defendant’s sexual penetration of JG and

sexual contact with JB establish the element of force or

coercion as deﬁned by these statutes.

538 313 M

ICH

526 [Dec

The statutes expressly provide that the list of cir-

cumstances in which force or coercion may be proved is

not exhaustive. In People v Premo, 213 Mich App 406,

410; 540 NW2d 715 (1996), a panel of this Court

explained that “the Legislature did not limit the deﬁ-

nition of force or coercion to the enumerated examples

in the statute. Furthermore, the existence of force or

coercion is to be determined in light of all the circum-

stances and is not limited to acts of physical violence.”

(Citations omitted.) “Coercion,” the Court noted, “ ‘may

be actual, direct, or positive, as where physical force is

used to compel act against one’s will, or implied, legal

or constructive, as where one party is constrained by

subjugation to other to do what his free will would

refuse.’ ” Id. at 410-411, quoting Black’s Law Diction-

ary (5th ed). Further, “ ‘force or coercion’ exists when-

ever a defendant’s conduct induces a victim to reason-

ably believe that the victim has no practical choice

because of a history of child sexual abuse or for some

other similarly valid reason.” People v Eisen, 296 Mich

App 326, 335; 820 NW2d 229 (2012).

There is no statutory provision or case that ad-

dresses the situation of a CPS worker using his posi-

tion to coerce a parent he is investigating for abuse or

neglect into sexual acts. However, this Court has

determined that “force or coercion” was established in

a teacher-student relationship. In Premo, 213 Mich

App at 407-410, this Court concluded that the conduct

of the defendant, a teacher who pinched the buttocks of

three high school students, constituted coercion for

purposes of former MCL 750.520e(1)(a).

This Court

reasoned:

MCL 750.520e(1)(a), as amended by 1988 PA 86, was the predecessor

of current MCL 750.520e(1)(b).

2015] P

EOPLE V

REEN

539

We believe that defendant’s actions constituted implied,

legal, or constructive coercion because, as a teacher, de-

fendant was in a position of authority over the student

victims and the incidents occurred on school property.

Defendant’s conduct was unprofessional, irresponsible,

and an abuse of his authority as a teacher. Accordingly, we

conclude that defendant’s conduct in this case is sufﬁcient

to constitute coercion under MCL 750.520e(1)(a). [Premo,

213 Mich App at 411 (citation omitted).]

In People v Knapp, 244 Mich App 361; 624 NW2d

227 (2001), the defendant, a practitioner of Reiki—an

ancient healing art that involves energy centers in the

body called chakras and uses various hand positions to

activate internal healing powers in patients—

instructed the 14-year-old complainant alone in a bed-

room, resulting in the complainant’s touching the

defendant’s testicles and placing one hand on his

stomach. The defendant then placed his hands on the

complainant to demonstrate a position. Later, the

defendant talked to the complainant about the hand

positions and discussed male sexual energy. The defen-

dant asked the complainant to take off his underwear

and he did so; the defendant then did the same. The

complainant then manipulated the defendant’s tes-

ticles at the defendant’s request (purportedly to pro-

mote healthier semen), and the defendant then mas-

turbated while talking about sexual energy and Reiki.

Id. at 366-367. In discussing what constitutes coercion

for purposes of second-degree criminal sexual conduct,

the Court held that “a defendant’s conduct constitutes

coercion where, as here, the defendant abuses his

position of authority to constrain a vulnerable victim

by subjugation to submit to sexual contact.” Id. at 369.

The Court reasoned that the defendant was in a

position of authority over the complainant because he

was involved in a teacher-student relationship and the

540 313 M

ICH

526 [Dec

complainant was in a position of special vulnerability

with respect to the defendant. Id. at 371.

Although the coercion in Premo and Knapp involved

teacher-student relationships, the reasoning in those

cases is instructive and applicable to this situation.

Like the defendants in Premo and Knapp, defendant

was in a position of authority over the complainants

because he was the CPS worker assigned to investigate

the abuse or neglect complaints ﬁled against them

individually. Testimony established that CPS has the

authority to provide services to rectify the risk to a

child and petition the court for removal of a child or

termination of parental rights. CPS may also petition

to have a child removed from a home if a mother fails

to protect her child from an abusive father or boy-

friend, which was the situation that caused the com-

plaint to be ﬁled in JG’s case. Fear of losing one’s child

through neglect or abuse proceedings would produce

an extreme reaction in most parents. As such, the

complainants were “ ‘in a position of special vulnerabil-

ity with respect to the defendant[]’.” Knapp, 244 Mich

App at 371 (citation omitted). Moreover, in light of all

the circumstances, defendant’s actions as a CPS

worker, like those of the teacher in Premo, were “un-

professional, irresponsible, and an abuse of author-

ity . . . .” Premo, 213 Mich App at 411.

With respect to JG, the testimony established that

defendant informed her on the ﬁrst day that if she did

not leave her ﬁancé, her child would be taken away.

Defendant rubbed her shoulders and then performed a

full body massage that included her groin area. Al-

though defendant asked her if she wanted him to still

operate on a professional level and that it was up to

her, he continued the massage, pulled up her sports

bra, pulled her shorts down, and digitally penetrated

2015] P

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REEN

541

her. JG testiﬁed that she knew he would not stop until

he got what he wanted. They then performed oral sex

on each other and had intercourse. In light of all the

circumstances, see Premo, 213 Mich App at 409-411,

the evidence established that defendant used his posi-

tion of authority to manipulate and coerce JG to

perform the sexual acts with him. Thus, the evidence

did not preponderate heavily against the verdict, Lem-

mon, 456 Mich at 641, and the trial court did not abuse

its discretion by denying defendant’s motion for a new

trial.

With respect to JB, we note that the jury only

convicted defendant of the CSC-IV charge, which arose

from the sexual contact with her during their initial

meeting, and acquitted him of the CSC-III charges,

which arose from conduct after the initial meeting.

Defendant identiﬁed himself to JB as a CPS worker

and explained the complaint process. Defendant iso-

lated JB, like the defendant in Knapp, by requesting

her stepdaughter to leave the room. Defendant con-

ﬁded facts about his sister’s murder as a result of

domestic violence, which upset JB, who had just dis-

cussed her marriage and domestic violence with defen-

dant. Defendant then hugged her and rubbed her

shoulders and then her thighs and inner thighs, telling

her to let him help her relax. In light of all the

circumstances, see Premo, 213 Mich App at 410, the

evidence established that defendant used his position

of authority and JB’s emotional response to his

domestic-violence comments to manipulate and coerce

her to allow the sexual contact; defendant came in

contact with her only because of his status as her CPS

worker. Thus, the evidence does not preponderate

heavily against the verdict, Lemmon, 456 Mich at 641,

and the trial court did not abuse its discretion by

denying defendant’s motion for a new trial.

542 313 M

ICH

526 [Dec

Defendant’s reliance on People v Perkins, 468 Mich

448; 662 NW2d 727 (2003), is misplaced. In Perkins,

the defendant “was prosecuted for acts arising from his

sexual relationship with the complainant, a sixteen-

year-old girl.” Id. at 450. The defendant, who was a

friend of the complainant’s family and whose wife was

the complainant’s basketball coach, was also a deputy

sheriff. At the time the complainant and the defendant

began having sexual relations, “the complainant [had]

regularly babysat for defendant’s children, attended

church with the family, and, for a time, resided with

them.” Id. On the date of the charged incident, the

defendant was on duty in a marked police cruiser when

the complainant got into the car with him, talked with

him, and then fellated him. Id. at 451. The prosecutor

argued at the preliminary examination that the defen-

dant was guilty of ﬁrst-degree criminal sexual conduct

through coercion because he was an authority ﬁgure

and a child can be psychologically subjugated in that

manner. However, the Court noted that “no evidence

was presented at the preliminary hearing to support

the prosecutor’s assertion that the complainant was

coerced, in any sense of that term, to fellate defendant

on the occasion in question.” Id. at 454. The Court

concluded that the district court had not abused its

discretion by dismissing the ﬁrst-degree criminal

sexual conduct charge because the unrebutted facts

indicated that on the date in question the relationship

was consensual.

Unlike Perkins, in which there was no evidence that

the defendant had used his position as a deputy sheriff

to coerce the sexual act, defendant’s initial contacts

with the complainants here were the result of his

position as the CPS worker assigned to investigate the

abuse or neglect complaints ﬁled in their respective

cases. Moreover, while there was no evidence intro-

2015] P

EOPLE V

REEN

543

duced in Perkins that the complainant had been co-

erced, in this case both complainants testiﬁed that

they only “consented” to the sexual contact or acts

because of their fear that defendant would otherwise

take their children away. Thus, Perkins does not sup-

port defendant’s position.

We afﬁrm.

ARKEY

, P.J., and S

TEPHENS

and R

IORDAN

, JJ., con-

curred.

544 313 M

ICH

526 [Dec

PEOPLE v MABEN

Docket No. 321732. Submitted December 2, 2015, at Detroit. Decided

December 10, 2015, at 9:10 a.m. Leave to appeal denied 499 Mich

929.

James R. Maben pleaded guilty in the St. Clair Circuit Court to

assault by strangulation or suffocation, MCL 750.84(1)(b), as the

result of an altercation with his brother. The court, Cynthia A.

Lane, J., sentenced defendant as a fourth-offense habitual offender

to serve 6 years and 4 months to 20 years in prison. Defendant

appealed by delayed leave granted, and the Court of Appeals

granted the application with respect to issues relating to the

scoring of the sentencing guidelines variables and the accuracy of

information in his presentence investigation report (PSIR). On

appeal from this order, the Supreme Court remanded the case to

the Court of Appeals for consideration of these issues and one

additional issue related to the then-pending decision in People v

Lockridge, 498 Mich 358 (2015), for which the Court ofAppeals was

ordered to hold defendant’s appeal in abeyance. 497 Mich 927

(2014). After the Supreme Court decided Lockridge, defendant

elected not to pursue his appeal of the Lockridge issue on remand.

The Court of Appeals held:

1. The sentencing court did not err when it scored Prior

Record Variable 5 at 20 points. Although defendant argued that

he had only six prior misdemeanor convictions that constituted

an offense against a person under MCL 777.55(2)(a), the court

properly concluded that defendant’s convictions for malicious use

of a telecommunications device under MCL 750.540e constituted

offenses against a person because that provision speciﬁcally

prohibits certain types of communications directed at another

person.

2. The sentencing court did not err by scoring Offense Vari-

able 3 at 10 points to reﬂect that bodily injury requiring medical

treatment occurred to a victim under MCL 777.33(1)(d). Defen-

dant acknowledged that he had placed his hands around his

brother’s neck and throat and applied pressure such that his

brother suffered injury, and he did not dispute the information in

the PSIR that ofﬁcers observed redness around his brother’s neck

area and that his brother complained of soreness to his neck and

2015] P

EOPLE V

ABEN

545

throat. Although defendant’s brother refused an ambulance, the

phrase “requiring medical treatment” in MCL 777.33(3) refers to

the necessity for treatment and not the victim’s success in

obtaining treatment. Therefore, it was not necessary to establish

that defendant’s brother actually went to the hospital to support

the score of 10 points. Moreover, defendant’s description of the

manner in which he strangled his brother and undisputed infor-

mation by the police ofﬁcers who responded to the incident

provided independent support for the court’s ﬁnding. Defendant’s

observation that his brother’s statements concerning whether he

lost consciousness were inconsistent does not require an eviden-

tiary hearing because, regardless of whether his brother lost

consciousness, a preponderance of the evidence supported the

court’s 10-point score.

3. The sentencing court abused its discretion when it refused to

consider defendant’s challenges to his PSIR. Under MCR 6.425(E),

a defendant must be given an opportunity to explain, or challenge

the accuracy or relevancy of, any information in the presentence

report. When information is challenged, the sentencing court may

determine the accuracy of the information, accept the defendant’s

version, or simply disregard the challenged information. However,

if the court chooses to disregard the challenged information, it

must clearly indicate that it did not consider the alleged inaccuracy

in determining the sentence, and if the court ﬁnds the challenged

information inaccurate or irrelevant, it must strike that informa-

tion from the PSIR before sending the report to the Department of

Corrections. Defendant ﬁled a 2-page, 15-item list of objections to

the contents of the PSIR, with most objections pertaining to

statements attributed to his brother. At the start of the sentencing

proceeding, the court commented that because defendant’s objec-

tions involved the word of one party against another, it did not

need to respond to them, further stating that it had no authority to

strike allegations in the PSIR because it was presumptively

accurate. Although the court later agreed to strike two of the

allegations, the court erred to the extent that it believed it was not

required to resolve defendant’s remaining challenges. The court

also erred by refusing to consider defendant’s challenges to factual

information in the victim impact statement, which was included in

the PSIR. Although a court is not required to strike a victim’s

subjective statements about the impact of a defendant’s crime

merely because a defendant disputes those statements, in this

case the information went beyond describing the impact of

defendant’s conduct to include factual allegations about other

uncharged crimes, and defendant was entitled to challenge the

546 313

ICH

545 [Dec

accuracy of this information. The case was remanded to the

sentencing court for proper consideration of defendant’s chal-

lenges in accordance with MCR 6.425(E) and MCL 771.14(6), with

instructions for the court to determine whether any information

found to be inaccurate or irrelevant affected the court’s sentenc-

ing decision and, if so, to resentence defendant. Otherwise, the

court was instructed to make only those changes to the PSIR that

it deemed to be warranted.

Afﬁrmed in part and remanded for further proceedings.

1. S

ENTENCES —

ENTENCING

UIDELINES —

RIOR

ECORD

ARIABLE

—

FFENSES

GAINST A

ERSON —

ALICIOUS

SE OF A

ELECOMMUNICA-

TIONS

EVICE

A conviction under MCL 750.540e for malicious use of a telecom-

munications device constitutes an offense against a person for

purposes of scoring Prior Record Variable 5 of the sentencing

guidelines (MCL 777.55(2)(a)).

2. S

ENTENCES —

RESENTENCE

NVESTIGATION

EPORTS —

ICTIM

MPACT

TATE-

MENTS —

HALLENGES TO

CCURACY

A defendant is entitled to challenge the accuracy of information in

a victim impact statement that is included in a presentence

investigation report when the information includes factual alle-

gations about other uncharged crimes (MCR 6.425(E)).

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, Michael D. Wendling, Prosecuting At-

torney, and Hilary B. Georgia, Senior Assistant Pros-

ecuting Attorney, for the people.

State Appellate Defender (by Anne Yantus) for de-

fendant.

Before: R

ONAYNE

RAUSE

, P.J., and M

ARKEY

and M. J.

ELLY

, JJ.

URIAM

. Defendant, James Robert Maben,

pleaded guilty to assault by strangulation or suffoca-

tion, MCL 750.84(1)(b), for which the trial court

sentenced him as a fourth-offense habitual offender,

MCL 769.12, to serve 6 years and 4 months to

2015] P

EOPLE V

ABEN

547

20 years in prison. On appeal by leave granted,

Maben raises several claims of sentencing error.

conclude that the trial court did not err when it scored

Maben’s sentencing variables; however, we agree that

the trial court abused its discretion when it refused to

consider Maben’s challenges to his presentence inves-

tigation report (PSIR). For that reason, we remand for

a hearing to address those challenges.

Maben’s conviction arises out of an altercation with

his brother. As a factual basis for his plea, Maben

stated that he became involved in a verbal altercation

with his brother, who worked for him. He admitted

that he placed his hands around his brother’s throat

and began to strangle him by applying pressure and

impeding his ability to breathe.

According to the author of the PSIR, police ofﬁcers

observed red marks on Maben’s brother’s neck, and took

photographs. Additionally, his brother reported to ofﬁ-

cers that he nearly lost consciousness and defecated

during the assault; however, he told the probation

ofﬁcer who prepared the PSIR that he in fact lost

consciousness. Maben’s brother refused to be trans-

ported to a hospital, but related that he would obtain

treatment on his own. Maben objected to several por-

tions of the PSIR and the scoring of his sentencing

variables. The trial court rejected most of the chal-

lenges, but agreed to strike references to a prior sexual

assault against a child and to a personal protection

order.

In addition to the claims addressed in this appeal, Maben challenged

the trial court’s use of facts not found by the jury to score his sentencing

variables. However, after our Supreme Court issued its decision in

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), Maben ﬁled a

notice in this court indicating that, after consulting with his appellate

lawyer, “he has elected not to pursue this particular issue on appeal.” We

have limited our review accordingly.

548 313 M

ICH

545 [Dec

Maben ﬁrst argues that the trial court erred in

scoring Prior Record Variable (PRV) 5 and Offense

Variable (OV) 3. A trial court’s ﬁndings of fact at

sentencing must be supported by a preponderance of

the evidence; this Court reviews a trial court’s ﬁndings

of fact for clear error. People v Hardy, 494 Mich 430,

438; 835 NW2d 340 (2013). This Court reviews de novo

whether the facts are adequate to satisfy the statutory

criteria for scoring the variable. Id.

The trial court assessed 50 points for Maben’s PRVs

and 30 points for his OVs, which put his recommended

minimum sentence range at 19 to 38 months in prison.

See MCL 777.65. After doubling the maximum of the

range to reﬂect his status as a habitual offender, see

MCL 777.21(3)(c), Maben’s recommended minimum

sentence range was 19 to 76 months.

Maben ﬁrst argues that the trial court erred when it

scored PRV 5 at 20 points; speciﬁcally, he argues that

he only has six qualifying prior misdemeanor convic-

tions, not seven or more. The trial court had to score

PRV 5 at 20 points if, in relevant part, Maben had

seven or more prior misdemeanor convictions. MCL

777.55(1)(a). A prior misdemeanor conviction may be

scored only “if it is an offense against a person or

property, a controlled substance offense, or a weapon

offense.” MCL 777.55(2)(a). Maben argues that the

trial court erred when it determined that his convic-

tions for malicious use of a telecommunications device

constituted offenses against a person as required by

MCL 777.55(2)(a).

A person is prohibited from maliciously using “any

service provided by a telecommunications service pro-

vider with intent to terrorize, frighten, intimidate,

threaten, harass, molest, or annoy another person, or

to disturb the peace and quiet of another person”

2015] P

EOPLE V

ABEN

549

through various types of communications. MCL

750.540e(1) (emphasis added). The Legislature has not

adopted classiﬁcations for misdemeanor offenses such

as this one. See MCL 777.5; People v Bonilla-Machado,

489 Mich 412, 422; 803 NW2d 217 (2011) (noting that

the offense categories stated under MCL 777.5 apply to

felonies).

Maben contends that analogous felony offenses have

been categorized as offenses against public order or

public safety, and therefore, the misdemeanor offense

should not be classiﬁed as an offense against a person

or property, citing MCL 750.540 and MCL 750.167d.

However, those offenses and another offense, which

Maben describes but does not cite, do not proscribe

activity directed at a particular individual. By con-

trast, the malicious use of a telecommunications device

speciﬁcally addresses communications directed at “an-

other person.” MCL 750.540e(1). Therefore, the trial

court correctly determined that it is an offense against

a person and scored PRV 5 accordingly.

Next, Maben argues that the trial court erred by

scoring 10 points under OV 3. The trial court had to

score OV 3 at 10 points if “[b]odily injury requiring

medical treatment occurred to a victim.” MCL

777.33(1)(d). Maben maintains that there was no evi-

dence that his brother actually suffered a bodily injury

that required medical treatment.

The author of the PSIR wrote out Maben’s brother’s

victim impact statement. Maben’s brother said “he

took himself to the River District Hospital after the

attack,” ”suffered back injuries,” and would be “seeing

a specialist to get a CAT Scan to see if he has any

permanent damage.” His brother also related that “he

was choked unconscious and his brain was denied

oxygen.” Although Maben’s brother’s statement plainly

550 313 M

ICH

545 [Dec

supports the trial court’s score, Maben argues that,

because he disputed at sentencing that his brother

actually went to the hospital, the trial court erred by

scoring 10 points for OV 3 without independently

verifying the report.

The trial court may rely on reasonable inferences

arising from the record evidence to support a particu-

lar score. People v Earl, 297 Mich App 104, 109; 822

NW2d 271 (2012). In providing a factual basis for his

guilty plea, Maben acknowledged that he placed his

hands around his brother’s neck and throat, and ap-

plied pressure such that his brother suffered injury. In

addition, Maben did not dispute the information in the

PSIR that ofﬁcers “observed redness” around his broth-

er’s “neck area” and that his brother “complained of

soreness to his neck and throat area.” The author of the

PSIR also indicated that Maben’s brother refused an

ambulance, but told the ofﬁcers that he “would seek

treatment on his own.”

The phrase “requiring medical treatment” for pur-

poses of OV 3 “refers to the necessity for treatment and

not the victim’s success in obtaining treatment.” MCL

777.33(3). Therefore, it was not necessary to establish

that Maben’s brother actually went to the hospital.

Moreover, Maben’s description of the manner in which

he strangled his brother, and the undisputed informa-

tion that the ofﬁcers observed redness around his

brother’s neck, that his brother defecated during the

assault, that he reported soreness to his neck and

throat, and that he told the ofﬁcers that he intended to

seek treatment, provided independent support for the

trial court’s ﬁnding. Although Maben notes that his

brother’s statements concerning whether he lost con-

sciousness were inconsistent, the inconsistencies do

not require an evidentiary hearing. Regardless of

2015] P

EOPLE V

ABEN

551

whether his brother lost consciousness, a preponder-

ance of the evidence supports the trial court’s 10-point

score.

Next, Maben argues that he is entitled to resentenc-

ing or correction of the PSIR because the trial court

failed to adequately address several of his challenges

to it. “This Court reviews a trial court’s response to a

defendant’s challenge to the accuracy of a PSIR for an

abuse of discretion.” People v Uphaus (On Remand),

278 Mich App 174, 181; 748 NW2d 899 (2008). “A trial

court abuses its discretion when it selects an outcome

outside the range of reasonable and principled out-

comes.” Id.

In Morales v Parole Bd, 260 Mich App 29, 45-46; 676

NW2d 221 (2003), this Court discussed the purpose

and scope of a presentence report and explained that

the PSIR was intended to assist the parole board in

making release decisions and to enhance public safety:

The presentence investigation report is an information-

gathering

tool for use by the sentencing court. Therefore,

its scope is necessarily broad. A judge preparing to sen-

tence a defendant may consider comments made by the

defendant to the probation ofﬁcer during the presentence

interview in addition to evidence adduced at trial, public

records, hearsay relevant to the defendant’s life and

character, and other criminal conduct for which the defen-

dant has not been charged or convicted.

The Michigan Court Rules provide that the presen-

tence investigation report must include “a complete de-

scription of the offense and the circumstances surround-

ing it, . . . information concerning the ﬁnancial, social,

psychological, or physical harm suffered by any victim of

Maben also argues that his trial lawyer was ineffective for conceding

that ﬁve points could be scored under OV 3. However, given our

resolution of this scoring issue, it is unnecessary to address whether his

trial lawyer’s concession amounted to ineffective assistance.

552 313

ICH

545 [Dec

the offense, . . . any statement the defendant wishes to

make . . . [and] any other information that may aid the

court in sentencing.” To ensure accuracy, the defendant

must be given an opportunity to review his presentence

investigation report before sentencing. [Citations omit-

ted.]

As this Court observed in People v McAllister, 241

Mich App 466, 477 n 3; 616 NW2d 203 (2000), re-

manded on other grounds 465 Mich 884 (2001), the

presentence report “follows the defendant to prison”; it

“may have ramiﬁcations for purposes of security clas-

siﬁcation” or parole consideration when appropriate.

Accordingly, a defendant must be given an “opportu-

nity to explain, or challenge the accuracy or relevancy

of, any information in the presentence report . . . .”

MCR 6.425(E)(1)(b). “If any information in the presen-

tence report is challenged, the court must allow the

parties to be heard regarding the challenge, and make

a ﬁnding with respect to the challenge or determine

that a ﬁnding is unnecessary because it will not take

the challenged information into account in sentenc-

ing.” MCR 6.425(E)(2). “If the court ﬁnds merit in the

challenge or determines that it will not take the

challenged information into account in sentencing, it

must direct the probation ofﬁcer to” correct or delete

the challenged information. MCR 6.425(E)(2)(a). The

Legislature has also recognized that a defendant has

the right to challenge the accuracy of the information

in a PSIR. See MCL 771.14(6).

It is presumed that unchallenged information in the

PSIR is accurate, and a judge is entitled to rely on the

information unless a defendant raises an effective

challenge. People v Harper, 479 Mich 599, 642 n 72;

739 NW2d 523 (2007). When information is chal-

lenged, the sentencing court has wide latitude in how

to respond to the challenged information. People v

2015] P

EOPLE V

ABEN

553

Spanke, 254 Mich App 642, 648; 658 NW2d 504 (2003).

“The court may determine the accuracy of the informa-

tion, accept the defendant’s version, or simply disre-

gard the challenged information.” Id. However, if the

court chooses to disregard the challenged information,

it must clearly indicate that it did not consider the

alleged inaccuracy in determining the sentence. Id. at

649. “If the court ﬁnds the challenged information

inaccurate or irrelevant, it must strike that informa-

tion from the PSIR before sending the report to the

Department of Corrections.” Id.

Maben ﬁled a 2-page, 15-item list of objections to

the contents of the PSIR, with most objections per-

taining to statements attributed to his brother. At the

start of the sentencing proceeding, the trial court

noted that it would not expend an hour on sentencing

and commented that Maben’s objections involved the

word of one party against another. For that reason, it

stated, “I don’t know that there’s really any need to

respond to them[.]” It did, however, later agree to

strike an allegation involving a personal protection

order and allegations that Maben had sexually as-

saulted a 12-year-old child. The trial court also denied

Maben’s postsentencing motion challenging the accu-

racy of the PSIR. The court commented that the PSIR

is “presumptively accurate” and stated that it had “no

authority” to strike allegations in a victim’s impact

statement.

We agree that the trial court failed to adequately

resolve Maben’s challenges to the accuracy of the

PSIR. The trial court erred to the extent that it

believed it was not required to resolve his challenges

because the PSIR is presumptively accurate. The pre-

sumption of accuracy applies only to unchallenged

information. Harper, 479 Mich at 642 n 72. The trial

554 313 M

ICH

545 [Dec

court also erred by refusing to consider his challenges

to factual information related in the impact statement.

The Legislature “has determined the contents of the

PSIR and has given victims the discretion to determine

whether their victim impact statements may be in-

cluded in the PSIR . . . .” McAllister, 241 Mich App at

476-477. We agree that a trial court is not required to

strike a victim’s subjective statements about the im-

pact of a defendant’s crime merely because a defendant

disputes those statements. This Court has recognized

that the sentencing standards for ensuring that the

goals of sentencing are met, along with the court’s

knowledge that victim impact statements are the sub-

jective opinions of victims, are sufﬁcient protections to

ensure that a defendant is not sentenced in response to

emotional pleas. Id. at 476 n 2. In this case, however,

the information went beyond describing the impact of

Maben’s conduct. It included factual allegations about

other uncharged crimes, including that Maben had

killed cats in front of children, had a “bodyguard/hit

man,” and had “informed people” that he was going to

kill the prosecutor, rape his wife, and kill his family.

These allegations did not involve the offense or Ma-

ben’s brother’s subjective statements about the impact

of Maben’s crime. Moreover, the statement was not

written by Maben’s brother, but was recorded by the

author after interviewing Maben’s brother. To the

extent that the impact section of the PSIR contained

factual allegations unrelated to Maben’s crime, and

which did not involve Maben’s brother’s subjective

statements, Maben was entitled to challenge the accu-

racy of the information, particularly considering that

the content could have consequences in prison and

with the parole board. Id. at 477 n 3.

Because the trial court failed to adequately resolve

Maben’s challenges, we remand this case for proper

2015] P

EOPLE V

ABEN

555

consideration of his challenges. It is unclear to what

extent the trial court may have relied on the chal-

lenged information in sentencing. Therefore, on re-

mand, the trial court shall resolve Maben’s challenges

in accordance with MCR 6.425(E) and MCL 771.14(6),

and also clarify whether any information found to be

inaccurate or irrelevant affected the trial court’s sen-

tencing decision. If it is determined that information

found to be inaccurate or irrelevant played a role in the

trial court’s sentencing decision, the trial court shall

resentence him. Otherwise, the trial court need only

make such changes to the PSIR that it deems in its

discretion to be warranted. See People v Thompson,

189 Mich App 85, 88; 472 NW2d 11 (1991).

Afﬁrmed in part, but remanded for further proceed-

ings consistent with this opinion. We do not retain

jurisdiction.

ONAYNE

RAUSE

, P.J., and M

ARKEY

and M. J. K

ELLY

JJ., concurred.

556 313 M

ICH

545 [Dec

TEDDY 23, LLC v MICHIGAN FILM OFFICE

Docket Nos. 323299 and 323424. Submitted December 8, 2015, at

Lansing. Decided December 15, 2015, at 9:00 a.m. Leave to

appeal sought.

Teddy 23, LLC, and Michigan Tax Credit Finance, LLC, brought an

action in the Court of Claims against the Michigan Film Ofﬁce

(MFO) and the Department of Treasury, challenging the MFO’s

decision to deny Teddy 23 a postproduction certiﬁcate under MCL

208.1455 for a movie it had ﬁlmed. The decision was based on a

ﬁnding that Teddy 23 had substantially and intentionally mis-

stated its expenditures. Defendants moved to dismiss plaintiffs’

case under MCR 2.116(C)(4) for lack of subject-matter jurisdic-

tion. Six weeks later, plaintiffs ﬁled a delayed application for

leave to appeal in the Ingham Circuit Court, arguing that they

had been improperly denied a postproduction certiﬁcate of

completion and explaining that they had not ﬁled a circuit court

action sooner because defendants had induced them to believe

that the Court of Claims had jurisdiction to review the MFO’s

decision. The circuit court, Rosemarie E. Aquilina, J., denied

plaintiffs’ delayed application for leave to appeal under MCR

7.105(G)(1), and the Court of Claims, M

ICHAEL

J. T

ALBOT

, J.,

granted defendants’ motions for summary disposition under MCR

2.116(C)(4) and (7). Plaintiffs appealed the circuit court’s decision

in Docket No. 323299 and the Court of Claims decision with

respect to MCR 2.116(C)(4) in Docket No. 323424.

The Court of Appeals held:

1. The Court of Claims did not err by dismissing plaintiffs’

case for lack of subject-matter jurisdiction. The Court of Claims

did not have subject-matter jurisdiction under the revenue act,

which provides that a taxpayer aggrieved by an assessment,

decision, or order of the department may appeal to the court of

claims, because the revenue act deﬁnes “department” to mean the

Department of Treasury and it was the MFO, not the Department

of Treasury, that issued the decision denying Teddy 23’s request

for a postproduction certiﬁcate of completion. Although the MFO

is within the Department of Treasury, the MFO and the Depart-

ment of Treasury are two separate entities that operate indepen-

2015] T

EDDY

23 v M

ICH

ILM

FFICE

557

dently. The Court of Claims also did not have subject-matter

jurisdiction over the case under the Court of Claims Act. While

MCL 600.6419(1)(a) gives the Court of Claims jurisdiction to hear

and determine any claim or demand against the state, MCL

600.6419(5) indicates that this statute did not deprive the circuit

court of exclusive jurisdiction over appeals from administrative

agencies as authorized by law. A litigant seeking judicial review of

an administrative agency’s decision has three potential avenues

of relief: (1) the method of review prescribed by the statutes

applicable to the particular agency, (2) the method of review

prescribed by the Administrative Procedures Act (APA), MCL

24.201 et seq., and (3) an appeal under MCL 600.631. Because

there was no speciﬁc statutory procedure for appealing a decision

of the MFO denying a postproduction certiﬁcate of completion,

plaintiffs’ judicial appeal options were limited to the methods

prescribed in the APA or under MCL 600.631, which also did not

confer subject-matter jurisdiction over plaintiffs’ appeal on the

Court of Claims.

2. The circuit court did not abuse its discretion under MCR

7.105(G)(1) by denying plaintiffs’ delayed application for leave

to appeal. Defendants did not mislead plaintiffs to believe that

the Court of Claims had jurisdiction over their appeal, either

through the Department of Treasury’s “Taxpayer Rights Hand-

book,” which addressed ﬁnal determinations made by the de-

partment itself and not the MFO and stated that it did not take

the place of the law, or by an e-mail from a department employee

that referred to a 60-day appeal period, given that appeals from

department decisions in the Court of Claims have a 90-day

appeal period. Plaintiffs’ contention that they were diligent in

ﬁling an application for leave to appeal in the circuit court after

learning that defendants did not believe the Court of Claims had

subject-matter jurisdiction over their case was weakened by the

fact that they waited six weeks to ﬁle their application after

defendants moved for summary disposition in the Court of

Claims.

3. The circuit court’s decision to deny plaintiffs’ delayed

application for leave to appeal was not the result of an abdication

of discretion. Although the court did not provide any speciﬁc

analysis with its denial, plaintiffs ﬁled a motion for reconsidera-

tion, which the court stated it denied because it concluded that

the motion merely presented the same issues it had already ruled

on. This indicated that the circuit court was familiar with the

issues in plaintiffs’ delayed application, even if it did not explain

558 313

ICH

557 [Dec

its analysis on the denial form. Plaintiffs offer no evidence

suggesting that the circuit court was unaware of or did not

consider the issues involved.

4. The Court of Claims did not err by granting defendants’

motions for summary disposition under MCR 2.116(C)(4) because,

even if a valid argument for applying the doctrine of equitable

estoppel existed, subject-matter jurisdiction cannot be conferred

by estoppel. Equitable estoppel also did not obligate the circuit

court to grant plaintiffs’ delayed application for leave to appeal;

rather, the circuit court had discretion under MCR 7.105(G) to

consider the length of and the reasons for plaintiffs’ delay in

deciding whether to grant the application.

Afﬁrmed.

DMINISTRATIVE

AW —

AXATION —

REDITS —

ICHIGAN

ILM

FFICE —

OSTPRODUCTION

ERTIFICATES —

PPEALS —

OURT OF

LAIMS —

UBJECT

-M

ATTER

URISDICTION.

The Court of Claims does not have subject-matter jurisdiction over

appeals from decisions of the Michigan Film Ofﬁce under MCL

208.1455; although the Michigan Film Ofﬁce is within the De-

partment of Treasury, they are two separate entities that operate

independently.

Bloom Sluggett Morgan, PC (by Jack

L. Van Coever-

ing, Crystal L. Morgan, and Scott A. Noto), and Miller

Canﬁeld Paddock & Stone, PLC (by Gregory A. Nowak,

Clifford W. Taylor, and Michael P. Coakley), for Teddy

23, LLC, and Michigan Tax Credit Finance, LLC.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, and Christina M. Grossi and Joshua O.

Booth, Assistant Attorneys General, for the Michigan

Film Ofﬁce.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, and Jessica A. McGivney and Eric M.

Jamison, Assistant Attorneys General, for the Depart-

ment of Treasury.

2015] T

EDDY

23 v M

ICH

ILM

FFICE

559

Before: G

ADOLA

, P.J., and K. F. K

ELLY

and F

ORT

OOD

JJ.

ADOLA

, P.J. In these consolidated appeals, plaintiffs

appeal the order of the Court of Claims granting defen-

dants’ motion for summary disposition under MCR

2.116(C)(4) (lack of subject-matter jurisdiction) and the

order of the Ingham Circuit Court denying their delayed

application for leave to appeal. Both cases arise from

plaintiffs’ attempt to appeal the decision of the Michi-

gan Film Ofﬁce (MFO),

denying Teddy 23, LLC (Teddy

3) a postproduction certiﬁcate of completion that would

have enabled it to receive a tax credit from the Michigan

Department of Treasury (the Department). Plaintiffs

ﬁrst ﬁled a complaint challenging the MFO’s decision in

the Court of Claims. After defendants moved for sum-

mary disposition in the Court of Claims, plaintiffs ﬁled

a delayed application for leave to appeal in the Ingham

Circuit Court. The Court of Claims concluded that it

lacked subject-matter jurisdiction over plaintiffs’

claims, and the circuit court rejected plaintiffs’ delayed

application for leave to appeal. We afﬁrm with respect to

both decisions.

I. FACTUAL BACKGROUND

The MFO is an entity within the Michigan Strategic

Fund

(MSF). MCL 125.2029a(1). At the time the Court

of Claims and the Ingham Circuit Court issued their

decisions, the MSF was “a public body corporate and

politic” located within the Department, but its “powers,

The Michigan Film Ofﬁce is now known as the Michigan Film &

Digital Media Ofﬁce. Michigan Film & Digital Media Ofﬁce, Michigan

Film Ofﬁce 2015 Fourth Quarter Report <http://www.

michiganﬁlmofﬁce.org/MFO%20Fourth%20Quarter%202015%20Report.

pdf> (accessed December 1, 2015) [https://perma.cc/GTG2-GF7T], p 4.

560 313 M

ICH

557 [Dec

duties, and functions” were to be exercised indepen-

dently from the Department.

MCL 125.2005. MCL

208.1455(1) provides that the MFO, “with the concur-

rence of the state treasurer, may enter into an agree-

ment with an eligible production company” to allow

such a company to receive a tax credit provided certain

requirements are met.

These requirements include

entering

into an agreement under MCL 208.1455(3)

and obtaining a “postproduction certiﬁcate of comple-

tion” from the MFO under MCL 208.1455(5). The MFO

will only issue a postproduction certiﬁcate of comple-

tion if it determines that the eligible production com-

pany complied with the terms of the agreement. MCL

208.1455(5). If an eligible production company receives

a postproduction certiﬁcate of completion, it must

submit the certiﬁcate to the Department, which will

issue the applicable tax credit. MCL 208.1455(8).

Teddy 23 is a production company that obtained

preliminary approval for a tax credit in connection

with the production of a movie titled “Scar 23.” Teddy

23 used the expected tax credit as security to obtain a

loan from Michigan Tax Credit Finance, LLC. Teddy 23

ceased production of the ﬁlm in April 2011, and sub-

mitted a request to the MFO for a postproduction

certiﬁcate of completion. Teddy 23 also submitted an

On December 18, 2014, the Governor signed Executive Order No.

2014-12, which transferred the Michigan Strategic Fund from the

Department of Treasury to the Department of Talent and Economic

Development.

Recently, the Legislature enacted 2015 PA 117, effective July 10,

2015, which provides that “[b]eginning on the effective date of the

amendatory act that added this sentence, the Michigan ﬁlm ofﬁce and

the fund shall not provide funding under a new agreement, or increase

funding through an amendment to an existing agreement, for direct

production expenditures, Michigan personnel expenditures, crew per-

sonnel expenditures, or qualiﬁed personnel expenditures under this

section.” MCL 125.2029h(1).

2015] T

EDDY

23 v M

ICH

ILM

FFICE

561

independent auditor’s report, which concluded that

with the exception of a $196,843 overstatement of

qualiﬁed expenditures, Teddy 23 had fairly repre-

sented its Michigan expenditures. Department em-

ployee Sara Clark Pierson reviewed Teddy 23’s expen-

ditures and concluded that “the production company

and its principals acted in concert to substantially

misstate expenditures.” Pierson further reported that

“[t]he misstatements affected almost every area of the

production and were on a scale that was so large and

pervasive that we can only conclude that it was inten-

tional.” Thereafter, the MFO denied Teddy 23’s request

for a postproduction certiﬁcate of completion.

The accounting ﬁrm Plante Moran reviewed the re-

port and concluded that defendants’ determinations

were based on “erroneous assumptions and incomplete

analyses.” Nonetheless, the MFO reiterated its denial of

the postproduction certiﬁcate of completion in letters

dated October 14, 2013, and December 11, 2013. The

December 11, 2013 letter stated that “any rights of

appeal begin as of December 11, 2013, the date of this

notice.” Pierson sent an e-mail to plaintiffs’ counsel on

January 14, 2014, stating that the MFO had extended

the appeal period by issuing the December 11, 2013

letter, and that “based on [her] informal count of the 60

day period,” the appeal period was set to expire on

February 10, 2014. Pierson later explained in an afﬁda-

vit that her reference to the “60 day period” was in

response to a conversation that she had with plaintiffs’

counsel, who suggested that he had 60 days to ﬁle an

appeal. She asserted that at no time did she advise

plaintiffs regarding issues of jurisdiction or appeals

periods.

On February 10, 2014, plaintiffs ﬁled an action

against both the MFO and the Department in the

562 313 M

ICH

557 [Dec

Court of Claims. Six weeks after defendants ﬁled

motions in the Court of Claims to dismiss plaintiffs’

case for lack of subject-matter jurisdiction, plaintiffs

ﬁled a delayed application for leave to appeal in the

Ingham Circuit Court, arguing that they were improp-

erly denied a postproduction certiﬁcate of completion

and that they did not ﬁle a circuit court action sooner

because defendants induced them to believe that the

Court of Claims had jurisdiction to review the MFO’s

decision. On June 17, 2014, the circuit court entered an

order denying plaintiffs’ delayed application for leave

to appeal.

Thereafter, the Court of Claims entered an order

granting defendants’ motions for summary disposition

under MCR 2.116(C)(4). The Court of Claims concluded

that because Teddy 23 did not obtain a postproduction

certiﬁcate of completion, it could not have made a valid

request to the Department for a tax credit; therefore,

the decision that aggrieved plaintiffs was the MFO’s

denial of the postproduction certiﬁcate of completion.

The Court of Claims concluded that the Department

made no “assessment, decision, or order,” which was

required to vest the Court of Claims with subject-

matter jurisdiction under the revenue act, MCL 205.1

et seq. The Court of Claims further noted that the

Court of Claims Act, MCL 600.6401 et seq., explicitly

states that the Court of Claims has no jurisdiction to

review an administrative agency’s decision. Finally,

the Court of Claims determined that plaintiffs’ remain-

ing claims involving fraud, equal protection, and due

process would require it to review the process by which

the MFO denied the postproduction certiﬁcate of

completion, and would thus be an administrative

agency review within the exclusive jurisdiction of the

circuit court.

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II. STANDARD OF REVIEW

“[W]e review jurisdictional questions under MCR

2.116(C)(4) de novo as questions of law.” Durcon Co v

Detroit Edison Co, 250 Mich App 553, 556; 655 NW2d

304 (2002). Questions of statutory interpretation are

also reviewed de novo. Bukowski v Detroit, 478 Mich

268, 273; 732 NW2d 75 (2007). We review a circuit

court’s decision denying a delayed application for leave

to appeal for an abuse of discretion. People v Melotik,

221 Mich App 190, 196-197; 561 NW2d 453 (1997). A

trial court does not abuse its discretion unless it

chooses an outcome outside the range of reasonable

and principled outcomes. Maldonado v Ford Motor Co,

476 Mich 372, 388; 719 NW2d 809 (2006).

III. ANALYSIS

COURT OF CLAIMS DECISION

“Subject-matter jurisdiction concerns a court’s ab-

stract

power to try a case of the kind or character of the

one pending and is not dependent on the particular

facts of a case.” Harris v Vernier, 242 Mich App 306,

319; 617 NW2d 764 (2000). The Michigan Constitution

and the Legislature deﬁne the class of cases over which

courts have subject-matter jurisdiction. Id. “Subject-

matter jurisdiction is not subject to waiver because it

concerns a court’s ‘abstract power to try a case . . . .’ ”

Travelers Ins Co v Detroit Edison Co, 465 Mich 185,

204; 631 NW2d 733 (2001), quoting Campbell v St

John Hosp, 434 Mich 608, 613; 455 NW2d 695 (1990)

(emphasis in Travelers). Nor can subject-matter juris-

diction be conferred by the consent of the parties. In re

AMB, 248 Mich App 144, 166; 640 NW2d 262 (2001).

“Subject-matter jurisdiction is so critical to a court’s

authority that a court has an independent obligation to

564 313 M

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557 [Dec

take notice when it lacks such jurisdiction, even when

the parties do not raise the issue.” Id. at 166-167.

Plaintiffs contend that the Court of Claims had juris-

diction to hear their case under the revenue act and the

Court of Claims Act. Each will be examined in turn.

1. THE REVENUE ACT

The revenue act provides: “A taxpayer aggrieved by

assessment, decision, or order of the department

may appeal the contested portion of the assessment,

decision, or order to the tax tribunal within 35 days, or

to the court of claims within 90 days after the assess-

ment, decision, or order.” MCL 205.22(1). The revenue

act deﬁnes “department” to mean “the department of

treasury.” MCL 205.1(3)(a). “[W]hen a statute speciﬁ-

cally deﬁnes a given term, that deﬁnition alone con-

trols.” Tryc v Mich Veterans’ Facility, 451 Mich 129,

136; 545 NW2d 642 (1996).

Again, the MFO is an entity within the Michigan

Strategic Fund, which was within the Department.

MCL 125.2005 and MCL 125.2029a(1). Throughout

MCL 208.1455, the terms “ofﬁce” and “department” are

referred to separately, indicating that although the

MFO was within the Department, the two are separate

entities. This understanding is consistent with the

distinct and separate responsibilities assigned to the

MFO and the Department when it comes to ﬁlm tax

credits. Speciﬁcally, the MFO is responsible for deter-

mining whether “an eligible production company has

complied with the terms of an agreement” entered into

under MCL 208.1455, such that it can issue a postpro-

duction certiﬁcate of completion. MCL 208.1455(5).

Once an eligible production company receives a post-

production certiﬁcate of completion, it must then sub-

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mit the certiﬁcate to the Department, which issues the

tax credit. MCL 208.1455(8).

In this case, the MFO, not the Department, issued

the decision denying Teddy 23’s request for a postpro-

duction certiﬁcate of completion. Therefore, Teddy 23

did not receive an adverse “assessment, decision, or

order” from the Department, and the revenue act did

not confer subject-matter jurisdiction over plaintiffs’

claims on the Court of Claims.

Plaintiffs make much of the fact that the MFO was

housed within the Department at all times relevant to

this appeal. However, plaintiffs’ analysis ignores the

nature of the relationship between the MSF, the

MFO, and the Department. As previously noted, the

MSF is a “body corporate and politic” that was to

exercise its powers, duties, and functions indepen-

dently from the Department. MCL 125.2005. The

MSF and the MFO were housed within the Depart-

ment strictly for administrative purposes pursuant to

the requirement that each agency of the executive

branch of state government be allocated within not

more than 20 principal departments. Const 1963, art

5, § 2. But as far as substantive decision making of

the sort involved in this appeal was concerned, the

MSF and, by extension, the MFO were legally re-

quired to operate independently from the Depart-

ment. Indeed, the MSF and the MFO have since been

allocated to another principal department of state

government, illustrating the fact that the MFO is not

and never was equivalent to the Department.

2. THE COURT OF CLAIMS ACT

The Court of Claims Act states that the Court of

Claims

has jurisdiction

566 313 M

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557 [Dec

[t]o hear and determine any claim or demand, statutory

or constitutional, liquidated or unliquidated, ex con-

tractu or ex delicto, or any demand for monetary, equi-

table, or declaratory relief or any demand for an extraor-

dinary writ against the state or any of its departments or

ofﬁcers notwithstanding another law that confers juris-

diction of the case in the circuit court. [MCL

600.6419(1)(a).]

However, § 6419 also states that “[t]his chapter does

not deprive the circuit court of exclusive jurisdiction

over appeals from the district court and administrative

agencies as authorized by law.” MCL 600.6419(5).

Regarding administrative agency appeals, this Court

has stated that “[a] litigant seeking judicial review of

an administrative agency’s decision has three potential

avenues of relief: (1) the method of review prescribed

by the statutes applicable to the particular agency; (2)

the method of review prescribed by the [Administra-

tive Procedures Act (APA), MCL 24.201 et seq.]; or (3)

an appeal under MCL 600.631[.]” Jackson Community

College v Dep’t of Treasury, 241 Mich App 673, 678-679;

621 NW2d 707 (2000).

There is no speciﬁc statutory procedure for appeal-

ing a decision of the MFO denying a postproduction

certiﬁcate of completion; therefore, plaintiffs’ judicial

appeal options were limited to the methods prescribed

in the APA or under MCL 600.631. Jackson Community

College, 241 Mich App at 678-679. The APA’s procedure

for judicial review of an agency’s decision states that “a

petition for review shall be ﬁled in the circuit court for

the county where petitioner resides or has his or her

principal place of business in this state, or in the

circuit court for Ingham county.” MCL 24.303. Addi-

tionally, the APA states that judicial review is available

when a person “is aggrieved by a ﬁnal decision or order

in a contested case . . . .” MCL 24.301. The APA deﬁnes

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“contested case” as “a proceeding . . . in which a

determination of the legal rights, duties, or privileges of

a named party is required by law to be made by an

agency after an opportunity for an evidentiary hearing.”

MCL 24.203. In the present case, no evidentiary hearing

was ever held, so an appeal under the APA was not

available to plaintiffs. Moreover, even if such an appeal

were available, plaintiffs were required to ﬁle their

claim in the circuit court, not the Court of Claims. MCL

24.303(1). Likewise, MCL 600.631 states the following:

An appeal shall lie from any order, decision, or opinion

f any state board, commission, or agency, authorized

under the laws of this state to promulgate rules from

which an appeal or other judicial review has not other-

wise been provided for by law, to the circuit court of the

county of which the appellant is a resident or to the circuit

court of Ingham county, which court shall have and

exercise jurisdiction with respect thereto as in nonjury

cases. Such appeals shall be made in accordance with the

rules of the supreme court. [Emphasis added.]

Therefore, MCL 600.631 did not give the Court of

Claims

subject-matter jurisdiction over plaintiffs’ ap-

peal, and the Court of Claims did not err by dismissing

plaintiffs’ case.

B. CIRCUIT COURT DECISION

Plaintiffs next argue that the circuit court abused its

iscretion by denying their delayed application for leave

to appeal. MCR 7.105(G)(1) states the following:

When an appeal of right or an application for leave was

not

timely ﬁled, the appellant may ﬁle an application as

prescribed under subrule (B) accompanied by a statement

of facts explaining the delay. The answer may challenge

the claimed reasons for the delay. The circuit court may

consider the length of and the reasons for the delay in

deciding whether to grant the application.

568 313

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557 [Dec

Plaintiffs’ argument that the circuit court abused its

discretion is based in large part on the contention that

defendants misled them to believe that the Court of

Claims had jurisdiction over their appeal. Plaintiffs ﬁrst

cite the Department’s “Taxpayer Rights Handbook”

upport their decision to ﬁle suit in the Court of Claims.

The handbook states that “[t]axpayers have the right to

appeal any ﬁnal determination made by Treasury in-

cluding a reduced or denied refund or credit” to the

Michigan Tax Tribunal or the Court of Claims. Taxpayer

Rights Handbook, p 4. Again, however, this case does

not involve a decision by the Department, but rather by

the MFO. Moreover, the handbook explicitly states that

although its purpose is to “help taxpayers understand

their rights and responsibilities[,] it does not take the

place of the law.” Id. at 1. Plaintiffs also argue that

Pierson misled them, but Pierson’s reference to a 60-day

appeal period could not reasonably have led plaintiffs to

conclude that jurisdiction was proper in the Court of

Claims because appeals from Department decisions in

the Court of Claims have a 90-day appeal period. MCL

205.22(1). It is more likely that Pierson’s mention of a

60-day appeal period referred to the 60 days provided

for appeals to the circuit court under the APA, as

opposed to the 90-day appeal period under the Court of

Claims Act. See MCL 24.304(1).

Additionally, plaintiffs argue that they were diligent

in ﬁling an application for leave to appeal in the circuit

court after learning that defendants did not believe the

Court of Claims had subject-matter jurisdiction over

their case. Plaintiffs’ contention is weakened by the fact

that they waited six weeks to ﬁle their application after

State of Michigan, Department of Treasury, Taxpayer Rights Hand-

book <https://www.michigan.gov/documents/taxes/TBOR_199483_7.pdf>

(accessed December 1, 2015) [https://perma.cc/4PXR-3JLY].

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defendants ﬁled their motions for summary disposition

in the Court of Claims. The circuit court could consider

this delay when deciding whether to grant plaintiffs’

application for leave to appeal. Further, although plain-

tiffs provided numerous copies of ﬁlings of ﬁlm tax

credit cases from the Court of Claims, nothing suggests

that defendants provided these ﬁlings to plaintiffs, as

opposed to plaintiffs’ having obtained them through

their own research.

Plaintiffs also argue that the circuit court abused its

discretion because it failed to exercise any discretion,

which was evidenced by the fact that the court denied

plaintiffs’ delayed application for leave by simply check-

ing a box on a form without further analysis. Although

there is support for plaintiffs’ contention that an abdi-

cation of discretion can be an abuse of discretion, People

v Stafford, 434 Mich 125, 134; 450 NW2d 559 (1990), the

circuit court’s decision in this case was not the result of

an abdication of discretion. Although the court did not

provide any speciﬁc analysis with its denial, plaintiffs

ﬁled a motion for reconsideration, which the court

stated it denied because it concluded that the motion

merely presented the same issues already ruled on. This

indicates that the circuit court was familiar with the

issues in plaintiffs’ delayed application, even if it did not

explain its analysis on the denial form. Plaintiffs offer

no evidence suggesting that the circuit court was un-

aware of or did not consider the issues involved; thus,

plaintiffs have not shown that the circuit court’s deci-

sion denying their delayed application for leave to

appeal was the result of an abdication of discretion.

C. EQUITABLE ESTOPPEL

Finally, plaintiffs argue that the doctrine of equitable

stoppel applied because defendants repeatedly re-

ferred to a 60-day appeal period. Generally, the applica-

570 313 M

ICH

557 [Dec

tion of an equitable doctrine such as equitable estoppel

is reviewed de novo. Schmude Oil Co v Omar Operating

Co, 184 Mich App 574, 582; 458 NW2d 659 (1990).

However, because plaintiffs did not raise this issue

below, we review it under the plain-error rule. Kern v

Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838

(2000). To avoid forfeiture under the plain-error rule,

three requirements must be met: (1) an error must have

occurred, (2) the error must have been “plain, i.e., clear

or obvious,” and (3) the plain error must have affected

substantial rights. Id. (quotation marks and citation

omitted).

“Equitable estoppel arises where a party, by repre-

sentations, admissions, or silence intentionally or neg-

ligently induces another party to believe facts, the other

party justiﬁably relies and acts on that belief, and the

other party will be prejudiced if the ﬁrst party is allowed

to deny the existence of those facts.” Soltis v First of

America Bank-Muskegon, 203 Mich App 435, 444; 513

NW2d 148 (1994). The Court of Claims did not err by

granting defendants’ motions for summary disposition

under MCR 2.116(C)(4), because even if a valid

equitable-estoppel argument existed, subject-matter ju-

risdiction cannot be conferred by estoppel. In re AMB,

248 Mich App at 166. Neither did the possible applica-

tion of the doctrine obligate the circuit court to grant

plaintiffs’ delayed application for leave to appeal.

Rather, the circuit court had discretion to consider the

length of and the reasons for plaintiffs’ delay in deciding

whether to grant the application. MCR 7.105(G). There-

fore, even if equitable estoppel could be applied in this

case, this fact alone does not compel us to reverse the

decisions of the Court of Claims and the circuit court.

Afﬁrmed.

K. F. K

ELLY

and F

ORT

OOD

, JJ., concurred with

ADOLA

, P.J.

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FORD MOTOR COMPANY v DEPARTMENT OF TREASURY

Docket No. 322673. Submitted December 9, 2015, at Lansing. Decided

December 15, 2015, at 9:05 a.m. Leave to appeal denied 500 Mich

___.

Ford Motor Company and Ford Parts and Services Division brought

an action against the Department of Treasury in the Court of

Claims in 2006, challenging the department’s assessment of ap-

proximately $10.7 million in taxes and interest under the Use Tax

Act (UTA), MCL 205.91 et seq., after an audit that covered the

period of July 1, 1993 through November 30, 2001. On January 28,

1999, while the audit was ongoing, Ford sent two letters to the

department, asserting that the vehicles it manufactured or pur-

chased from competitors for test purposes were exempt from use

tax under former MCL 205.94(g)(i) and that it intended to ﬁle for

a refund of any tax accrued and paid on the use of these vehicles.

In June 2009, Ford brought a second action in the Court of Claims,

challenging a second tax assessment that the department issued in

December 2008 for approximately $29 million in use taxes and $15

million in interest covering the same years at issue in the audit.

The department moved for summary disposition in the 2009

action, arguing that the Court of Claims lacked subject-matter

jurisdiction. Ford also moved for summary disposition under MCR

2.116(I)(2), asking the Court of Claims to declare that it had

subject-matter jurisdiction over the action and that the depart-

ment lacked authority to issue a second tax assessment. While the

motions in the 2009 action were pending, Ford ﬁled two motions for

partial summary disposition under MCR 2.116(C)(10) in the 2006

action, one with respect to the department’s assessment of use tax

for automotive parts that Ford dealers supplied to consumers

under extended service plans (ESPs), the other with respect to the

department’s assessment of use tax on its test vehicles under

former MCL 205.94(g)(i). The Court of Claims, Rosemarie E.

Aquilina, J., granted Ford’s motion with regard to the use-tax

assessment and ordered the department to refund Ford approxi-

mately $1.6 million plus interest. The court further ordered the

department to pay Ford’s costs and attorney fees pursuant to MCR

2.114 and MCR 2.625 after ruling that the department had relied

on a frivolous defense. Ford requested $152,140.92 in attorney fees

and $5,014.95 in costs, to which the department objected. In

572 313 M

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572 [Dec

January 2011, the court awarded Ford $112,256.73 plus interest.

In November 2011, Ford moved for a show-cause order regarding

the department’s failure to pay the attorney-fee award and the

tax refund. The court ordered the department to issue the

required payments by November 23, 2011, and it awarded Ford

attorney fees and costs associated with the motion to show cause.

The court also granted Ford’s motion for summary disposition

with respect to the use-tax assessment on its test vehicles,

concluding that a manufacturer’s license plate was not a “license”

under former MCL 205.94(g)(i) because it could be used inter-

changeably among test vehicles and was issued to the manufac-

turer rather than to a speciﬁc vehicle. The court ordered the

department to refund Ford the use tax and deﬁciency interest

paid under protest with regard to Ford’s test vehicles. Ford then

ﬁled an emergency ex parte motion to prevent the department

from sending its multimillion-dollar refund checks by mail. The

court granted Ford’s motion and awarded Ford associated attor-

ney fees and costs. In December 2011, the court held a hearing on

Ford’s and the department’s motions for summary disposition in

the 2009 action. At the hearing, the department explained that it

had reduced the second tax assessment from $44 million to $13

million based on information that the department had obtained in

the other matter that was being litigated, and it admitted that

the tax issues in the case were basically identical to those

litigated in the 2006 action, which had been decided in Ford’s

favor. The court then granted Ford’s motion to consolidate the

2009 case with the 2006 case, and denied the department’s

motion for summary disposition. Thereafter, Ford ﬁled a motion

under MCR 2.114(E) and (F), MCR 2.625(A), and MCL 600.2591

for costs and attorney fees incurred in the 2009 action. The court

found that the department’s actions were frivolous and vexatious

and ruled that the department was liable for actual and exem-

plary damages, including Ford’s costs and attorney fees. In

January 2014, Ford moved for partial summary disposition

regarding the date on which interest on its test vehicle refund

claim began to accrue. Ford contended that it ﬁled its refund

claim on January 28, 1999, when it sent two letters asking the

department to credit the refunds against any deﬁciencies in the

then ongoing tax audit. The department argued that the letters

were inadequate notice of a claim for a refund to start the 45-day

period after which interest would accrue. The Court of Claims,

ICHAEL

J. T

ALBOT

, J., concluded that the January 1999 letters

constituted adequate notice of a claim and granted Ford’s motion

for partial summary disposition under MCR 2.116(C)(10). The

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department ﬁled a motion for reconsideration, which the court

denied. The department appealed.

The Court of Appeals held:

1. The court erred by concluding that Ford’s test vehicles,

which were titled and driven under manufacturer’s license plates,

were exempt from use tax under former MCL 205.94(g)(i). Before

the 1999 amendment of the UTA took effect, former MCL

205.94(g)(i) provided that property used or consumed in indus-

trial processing did not include vehicles licensed and titled for use

on public highways. Ford’s test vehicles were licensed because

they were driven under manufacturer’s license plates that autho-

rized their use on public highways. The Michigan Vehicle Code

(MVC), MCL 257.1 et seq., provides in MCL 257.244(1) that a

manufacturer owning a vehicle of a type otherwise required to be

registered under this act may operate or move the vehicle upon a

street or highway primarily for the purposes of transporting or

testing if the vehicle displays, in the manner prescribed in MCL

257.225, one special plate approved by the secretary of state. A

manufacturer’s license plate is a physical representation that a

vehicle is authorized to operate on public highways. Therefore,

when a manufacturer’s license plate is afﬁxed to a test vehicle,

the vehicle becomes licensed for use on public highways under

MCL 205.94(g)(i). The fact that a manufacturer’s license plate

may be legally interchanged among test vehicles has no effect on

the fact that a vehicle displaying a plate becomes licensed for use

on public highways. Ford contends that a vehicle is only licensed

if it meets the registration and certiﬁcate of title provisions of

MCL 257.216; however, under MCL 257.216(a), Ford’s test ve-

hicles driven under manufacturer’s license plates are exempt

from the MVC’s registration provisions. Ford argues that its test

vehicles were not licensed for use on public highways because

Ford could not lawfully sell, lease, or lend a test vehicle to a third

party or use a test vehicle for any purpose other than testing. The

UTA deﬁnes “use” in MCL 205.92(b) as “the exercise of a right or

power over tangible personal property incident to the ownership

of that property including transfer of the property in a transac-

tion where possession is given.” Under MCL 257.244(1), manu-

facturer’s license plates speciﬁcally authorized Ford to operate or

move the vehicles on a street or highway. The fact that Ford could

not sell or lease the vehicles, or use them for purposes other than

testing, does not mean that they were not licensed for use.

2. The Legislature’s 1999 amendment of the UTA, 1999 PA

117, did not apply retroactively. Generally, statutory amendments

are only applied prospectively unless the Legislature expressly or

574 313

ICH

572 [Dec

impliedly identiﬁed its intention to give the amendment retro-

spective effect. An amendment may apply retroactively when the

Legislature enacts an amendment to clarify an existing statute.

The ﬁrst enacting section of 1999 PA 117 listed several clariﬁca-

tions of the UTA, but it did not mention the tax exemption for

vehicles displaying manufacturer’s license plates. Therefore, it

was not clear that the Legislature intended to clarify the indus-

trial processing exemption with regard to vehicles using a manu-

facturer’s license plate. Moreover, MCL 205.94o, as added by 1999

PA 117, which contained the manufacturer’s license plate provi-

sion, provides that tax levied under the UTA did not apply to

property sold after March 30, 1999, indicating that the Legisla-

ture intended this portion of the amendment to apply prospec-

tively.

3. The court did not err by concluding that the department’s

defense of its assessment of use tax for automotive parts

provided under extended service plans was frivolous. Under

MCL 600.2591(3)(a), a court may ﬁnd that a party’s action is

frivolous if (1) the party initiated the suit for purposes of

harassment, (2) the party’s legal position was devoid of arguable

legal merit, or (3) the party had no reasonable basis to believe

that the facts underlying that party’s legal position were in fact

true. The court made sufﬁcient factual ﬁndings on the record, as

required by MCR 2.517(A), to justify its determination that the

department’s defense was frivolous because it lacked factual and

legal support. Although the court’s explanation was stated in

relation to a separate motion, it was adequate to facilitate

appellate review.

4. The court’s award of $112,256.73 was not unreasonable. To

evaluate whether an attorney fee is reasonable, courts begin by

determining the fee customarily charged in the locality for similar

legal services by using reliable surveys or other credible evidence

of the legal market. Then, the reasonable hourly rate should be

multiplied by the reasonable number of hours expended to reach

a baseline ﬁgure for a reasonable attorney fee, which should be

adjusted using the factors from MRPC 1.5(a) and Wood v Detroit

Auto Inter-Ins Exch, 413 Mich 573 (1982). Although the court

stated that it had presumed that the fees for Ford’s attorneys

were reasonable by comparing them to those of Ford’s lead

attorney, the court also stated that it had reviewed the fees and

hours for the other attorneys in preparation for the evidentiary

hearing, so its decision was based on evidence. Further, the court

found that the department had conceded the reasonableness of

the time spent on afﬁdavits, the brief, and the motion and

argument, and that Ford’s request for 25% of the time it spent on

2015] F

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various categories such as the amended complaint, research, and

discovery was appropriate because the ESP issue increased the

amount of time spent in those categories. The court further found

that the time spent on some categories, such as depositions and

documents, was not reasonable because Ford would have in-

curred those expenses regardless of whether the ESP issue was in

dispute. Therefore, the court did not fail to consider the reason-

ableness of the hours billed.

5. The court abused its discretion by awarding Ford attorney

fees for time spent on the amended complaint because those fees

were awarded for time spent in relation to the motion for partial

summary disposition.

6. The department did not show that the court abused its

discretion in determining that the rates charged by Ford’s lead

attorney were reasonable. Although the department claimed that

his hourly rate was contradicted by a survey conducted by the

State Bar of Michigan, Ford submitted other surveys demonstrat-

ing that the fee was reasonable. Because the lead attorney

worked with Ford through his ﬁrm’s Detroit ofﬁce, the court did

not abuse its discretion by determining that Detroit was the

appropriate locality on which to base the rates. Ford was not

subject to MCL 600.2421c(4), which caps attorney fees against the

state at $75 per hour, because, as a corporation with more than

250 employees, it was not a “party” as deﬁned in MCL

600.2421b(2). Furthermore, the court awarded Ford attorney fees

under MCL 600.2591, not MCL 600.2421c(4).

7. The court did not clearly err by ﬁnding that the depart-

ment’s defense of the $44 million dollar second tax assessment

was frivolous. The court’s order speciﬁcally stated that the award

of attorney fees was appropriate under MCR 2.114(E) and (F),

MCR 2.625(A)(2), and MCL 600.2591 because the department’s

actions were frivolous and vexatious. There was no dispute that

the department’s $44 million second tax assessment was im-

proper because the department acknowledged that it should not

have been assessed, and evidence supported Ford’s contention

that the department had issued the second tax assessment to

harass Ford.

8. The court did not abuse its discretion by awarding attorney

fees for Ford’s emergency ex parte motion to prevent the depart-

ment from sending its multimillion-dollar refund checks through

the mail. Although the court did not specify the grounds on which

it awarded the fees, it was clear from the context of the ex parte

motion and Ford’s arguments that the court agreed that the

department’s refusal to let Ford’s counsel personally pick up the

576 313

ICH

572 [Dec

multimillion-dollar checks was unreasonable. Given the amount

at issue, this was a sound conclusion, and the court had the

inherent authority to impose sanctions on the basis of a party’s

misconduct.

9. The court did not abuse its discretion by awarding attorney

fees for Ford’s motion to show cause regarding the department’s

failure to pay the tax refund on the ESP issue in accordance with

the court’s order. Litigants are required to obey court orders,

regardless of their propriety, until the orders are dissolved, and

MCL 600.1721 grants courts the power to order a party in

contempt of court to indemnify the injured party for any actual

loss or injury caused by the misconduct.

10. The court did not err by granting summary disposition

with regard to Ford’s claim that it was entitled to interest on its

tax refund. In order to trigger the 45-day waiting period after

which interest would begin to accrue on a tax refund under MCL

205.30, a taxpayer must have actually paid the tax at issue;

must have made a petition for a refund or a claim for refund by

demanding, requesting, or asserting a right to a refund of tax

payments that the taxpayer made that the taxpayer asserts are

not due; and must have ﬁled the claim or petition by submitting

it to the department, thereby providing notice of the claim. The

record indicated that Ford had paid the tax at issue, and Ford’s

January 28, 1999 letters to the department asserted a right to a

refund and gave the department adequate notice of the claim.

Afﬁrmed in part, reversed in part, and remanded for further

proceedings.

Bush Seyferth & Paige PLLC (by Stephanie

A. Doug-

las) and Schiff Hardin LLP (by Joanne B. Faycurry,

Samuel J. McKim, and Jackie J. Cook) for Ford Motor

Company.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, and Zachary C. Larsen, Assistant At-

torney General, for the Department of Treasury.

Before: G

ADOLA

, P.J., and K. F. K

ELLY

and F

ORT

OOD

JJ.

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ADOLA

, P.J. This case arises from a challenge by

Ford Motor Company and Ford Parts & Services Divi-

sion (collectively “Ford”) to an assessment by the

Department of Treasury (the Department) under

Michigan’s Use Tax Act (UTA), MCL 205.91 et seq.

June

25, 2014, the Court of Claims issued an order

closing the case, which the Department appeals as of

right. We afﬁrm in part, reverse in part, and remand

for further proceedings consistent with this opinion.

I. BACKGROUND FACTS

This case began when the Department conducted a

tax

audit of Ford for the period of July 1, 1993 through

November 30, 2001. During part of the audit period,

the UTA provided a use-tax exemption for eligible

property used or consumed in industrial processing,

but stated that such property did not include “vehicles

licensed and titled for use on public highways.” MCL

205.94(g)(i), as amended by 1989 PA 141. In 1999, the

Legislature amended the UTA to provide that the

industrial-processing exemption excluded “[v]e-

hicles . . . required to display a vehicle permit or li-

cense plate to operate on public highways, except for a

vehicle bearing a manufacturer’s plate . . . .” MCL

205.94o(5)(g), added by 1999 PA 117 (emphasis added).

On January 28, 1999, Ford sent two letters to the

Department, asserting that the vehicles it manufac-

tured or purchased from competitors for test purposes,

which displayed manufacturer’s license plates when

operated on public highways, were exempt from use

tax under former MCL 205.94(g)(i). Ford stated that it

“[U]se tax is a tax imposed ‘for the privilege of using, storing, or

consuming tangible personal property in this state . . . .’ ” WMS Gam-

ing, Inc v Dep’t of Treasury, 274 Mich App 440, 442-443; 733 NW2d 97

(2007), quoting MCL 205.93(1).

578 313 M

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intended “to ﬁle for a refund of any tax accrued and

paid (if any) on the use of such vehicles in Michigan.”

The Department took the position that Ford’s test

vehicles purchased or manufactured before the 1999

amendment took effect were subject to use tax as

vehicles “licensed and titled for use on public high-

ways.”

The Department completed its audit and issued a

ﬁnal tax assessment of approximately $10.7 million for

unpaid taxes and accrued interest, which Ford paid

under protest. In July 2006, Ford ﬁled suit against the

Department, asserting that its test vehicles were ex-

empt from use tax under former MCL 205.94(g)(i).

Ford later amended its complaint to add a claim

challenging the Department’s assessment of use tax on

automotive parts that independent Ford dealers sold to

consumers under extended service plans (ESPs). Ford

argued that it was not liable to pay use tax on the

automotive parts because it did not own, possess, use,

store, or consume the parts.

In June 2009, Ford ﬁled a complaint seeking a

declaratory judgment in a separate action, alleging

that in December 2008, the Department issued a

second tax assessment for approximately $29 million

in use taxes and $15 million in interest covering the

same years at issue in the audit. The Department

moved for summary disposition, arguing that the

Court of Claims lacked subject-matter jurisdiction for

several reasons including Ford’s failure to exhaust

administrative remedies. Ford also moved for sum-

mary disposition under MCR 2.116(I)(2), asking the

Court of Claims to declare that it had subject-matter

jurisdiction over the action and that the Department

lacked authority to issue a second tax assessment.

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A. SUMMARY DISPOSITION REGARDING EXTENDED SERVICE

PLANS AND ASSOCIATED SANCTIONS

While the motions in the 2009 action were pending,

Ford ﬁled two motions for partial summary disposition

in the 2006 action. First, Ford moved for summary

disposition under MCR 2.116(C)(10) with respect to the

Department’s assessment of use tax for automotive

parts that Ford dealers supplied to consumers under

ESPs. On March 22, 2010, the Court of Claims granted

Ford’s motion, concluding that Ford had not used,

stored, or consumed the parts, and that Ford’s reim-

bursement to Ford dealers for repairs under ESPs was

no different than a consumer purchase, so the dealer

was responsible for remitting sales tax. The Court of

Claims concluded that the Department had “no basis

from which to charge [Ford] use tax on the repair costs

paid by [Ford],” and ordered the Department to refund

Ford approximately $1.6 million plus interest. The

court further ordered the Department to pay Ford’s

costs and attorney fees “pursuant to MCR 2.114 and

MCR 2.625, as [the Department] relied upon a frivo-

lous defense.” Ford submitted a request for

$152,140.92 in attorney fees and $5,014.95 in costs, to

which the Department objected. On January 5, 2011,

the court awarded Ford $112,256.73 plus interest.

On November 9, 2011, Ford moved for a show-cause

order regarding the Department’s failure to pay the

January 5, 2011 award and the March 22, 2010 refund.

The Department argued that under MCR 7.101(H)(1),

an order or judgment cannot be enforced until the time

for

taking an appeal has expired. Ford replied that the

Department’s position was meritless because MCR

7.101(H) only governed appeals to circuit courts. The

Court of Claims ordered the Department to issue the

MCR 7.101(H)(1) has since been replaced by MCR 7.108(B)(1).

580 313 M

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required payments by November 23, 2011, and

awarded Ford attorney fees and costs associated with

the motion to show cause. The Department stipulated

the reasonableness of Ford’s bill of costs while preserv-

ing its challenge to the appropriateness of the award.

B. SUMMARY DISPOSITION REGARDING FORD’S TEST

VEHICLES

AND ASSOCIATED SANCTIONS

Ford also moved for summary disposition under

MCR 2.116(C)(10) with respect to the Department’s

assessment of use tax on its test vehicles under former

MCL 205.94(g)(i). The Department argued that Ford

was required to title the vehicles that it manufactured

for its own testing, and that the vehicles were licensed

because they were driven under manufacturer’s license

plates. At oral argument, the Department conceded

that Ford’s untitled test vehicles were not subject to

use tax. The Court of Claims granted Ford’s motion for

summary disposition, concluding that a manufactur-

er’s license plate was not a “license” under former MCL

205.94(g)(i) because it could be used interchangeably

among test vehicles and was issued to the manufac-

turer, rather than a speciﬁc vehicle. The court ordered

the Department to refund Ford the use tax and deﬁ-

ciency interest paid under protest with regard to Ford’s

test vehicles.

On February 8, 2012, Ford ﬁled an emergency ex

parte motion to prevent the Department from sending

its multimillion-dollar refund checks by mail. Ford

asserted that its counsel was “reluctant to trust $24

million in refunds to the mail and delivery to a general

mailbox at Ford,” and requested that she be allowed to

personally retrieve the checks on Ford’s behalf. The

Department responded that it would follow its “normal

procedure,” which was to mail the checks to the tax-

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payer’s legal address. The Court of Claims granted

Ford’s motion and awarded Ford associated attorney

fees and costs. The Department stipulated the reason-

ableness of Ford’s costs and attorney fees, but pre-

served its right to challenge the appropriateness of the

award.

C. SUMMARY DISPOSITION REGARDING THE 2009 ACTION

AND

ASSOCIATED SANCTIONS

In December 2011, the Court of Claims held a

hearing on Ford’s and the Department’s motions for

summary disposition in the 2009 action. At the hear-

ing, the Department explained that it had reduced the

second tax assessment from $44 million to $13 million

“based upon information that [the Department] ob-

tained in the other matter that was being litigated.”

The Court of Claims inquired whether the tax issues in

the case were identical to those litigated in the 2006

action, and the Department’s counsel admitted the

court was “[b]asically . . . correct” and that the issues

had already been decided in Ford’s favor in the 2006

action. The court then granted Ford’s motion to con-

solidate the 2009 case with the 2006 case, and denied

the Department’s motion for summary disposition.

Thereafter, Ford ﬁled a motion under MCR 2.114(E)

and (F), MCR 2.625(A), and MCL 600.2591 for costs

and attorney fees incurred in the 2009 action. Although

the Department stipulated to an order cancelling and

rescinding the second tax assessment, it argued that

its actions were not frivolous because it did not intend

to harass, embarrass, or injure Ford. The Court of

Claims found that the Department’s actions were

“frivolous and vexatious” and ordered that “for these

reasons and those stated on the record,” the Depart-

ment was liable for actual and exemplary damages,

582 313 M

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572 [Dec

including Ford’s costs and attorney fees. The Depart-

ment stipulated the reasonableness of the award, but

reserved the right to challenge the appropriateness of

the award.

D. INTEREST ACCRUAL ON THE TEST VEHICLE REFUND CLAIM

In January 2014, Ford moved for partial summary

disposition

regarding the date on which interest on its

test vehicle refund claim began to accrue. Ford con-

tended that it ﬁled its refund claim on January 28,

1999, when it sent two letters asking the Department

to credit the refunds against any deﬁciencies in the

then ongoing tax audit. The Department argued that

the letters were inadequate notice of a claim for a

refund to start the 45-day period after which interest

would accrue. The Court of Claims concluded that

under the “adequate notice” standard from Lindsay

Anderson Sagar Trust v Dep’t of Treasury, 204 Mich

App 128; 514 NW2d 514 (1994), the January 1999

letters constituted adequate notice of a claim. The

Department ﬁled a motion for reconsideration, which

the court denied.

II. THE INDUSTRIAL-PROCESSING EXEMPTION

The Department ﬁrst argues that the Court of

Claims

erred by concluding that Ford’s test vehicles

that were titled and driven under manufacturer’s

license plates were not “licensed . . . for use on public

highways,” and therefore were exempt from use tax

under former MCL 205.94(g)(i). We agree.

We review a trial court’s decision on a motion for

summary disposition de novo. Willett v Waterford

Charter Twp, 271 Mich App 38, 45; 718 NW2d 386

(2006). We review questions of statutory interpretation

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de novo. Green Oak Twp v Munzel, 255 Mich App 235,

238; 661 NW2d 243 (2003). “Where a statute does not

deﬁne a term, [courts] will construe it in accordance

with its ordinary and generally accepted meaning.”

Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas

Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751

(1998). If the plain and ordinary meaning of statutory

language is clear, judicial construction is not permit-

ted. Nastal v Henderson & Assoc Investigations, Inc,

471 Mich 712, 720; 691 NW2d 1 (2005).

Before the 1999 amendment of the UTA took effect,

former MCL 205.94(g)(i) provided that “[p]roperty used

or consumed in industrial processing does not in-

clude . . . vehicles licensed and titled for use on public

highways.” The UTA does not deﬁne the word “li-

censed.” Courts may rely on dictionary deﬁnitions to

ascertain the plain and ordinary meaning of undeﬁned

statutory terms. Halloran v Bhan, 470 Mich 572, 578;

683 NW2d 129 (2004). Merriam-Webster’s Collegiate

Dictionary (11th ed) deﬁnes the transitive verb “li-

cense” as “to permit or authorize esp. by formal li-

cense.” Ford’s test vehicles were “licensed” because

they were driven under manufacturer’s license plates

that authorized their use on public highways.

Ford contends that manufacturer’s license plates did

not

license its test vehicles for use on public highways,

On appeal, both parties discuss whether the term “licensed” should

be interpreted in light of the Michigan Vehicle Code (MVC), MCL 257.1

et seq., which does not deﬁne the word “licensed” but instead deﬁnes the

word “license” to mean “any driving privileges, license, temporary

instruction permit, commercial learner’s permit, or temporary license

issued under the laws of this state pertaining to the licensing of persons

to operate motor vehicles.” MCL 257.25 (emphasis added). Both Ford

and the Department agree that the MVC deﬁnes the word “license” only

in reference to persons, rather than vehicles, so any reference to the

MVC is not helpful in discerning the meaning of the word “licensed” as

used in the UTA.

584 313

ICH

572 [Dec

but rather licensed Ford to test the vehicles. The

Michigan Vehicle Code (MVC), MCL 257.1 et seq.,

provides the following regarding manufacturer’s li-

cense plates:

A manufacturer owning a vehicle of a type otherwise

equired to be registered under this act may operate or

move the vehicle upon a street or highway primarily for the

purposes of transporting or testing . . . if the vehicle dis-

plays, in the manner prescribed in [MCL 257.225], 1 special

plate approved by the secretary of state. [MCL 257.244(1).]

A manufacturer’s license plate is a physical represen-

tation

that a vehicle is authorized to operate on public

highways. Therefore, when a manufacturer’s license

plate is afﬁxed to a test vehicle, the vehicle becomes

“licensed . . . for use on public highways.” Former MCL

205.94(g)(i).

Ford argues that its test vehicles were not licensed

because a manufacturer’s license plate is not assigned

to a speciﬁc vehicle and may be legally interchanged

among test vehicles. The fact that a manufacturer’s

license plate is interchangeable has no effect on the

fact that a vehicle displaying a plate becomes “li-

censed . . . for use on public highways.” Ford contends

that it cannot “license” its own test vehicles by afﬁxing

a manufacturer’s license plate because only the Secre-

tary of State can license vehicles. However, the Secre-

tary of State, not Ford, issued the manufacturer’s

license plates authorizing Ford to operate the test

vehicles on public highways.

Ford contends that a vehicle is only licensed if it

meets the registration and certiﬁcate-of-title provi-

sions of MCL 257.216.

However, MCL 257.216(a)

MCL 257.216 does not speciﬁcally refer to “licensing” a motor vehicle

but instead provides: “Every motor vehicle, . . . when driven or moved on

a street or highway, is subject to the registration and certiﬁcate of title

provisions of this act . . . .”

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exempts from registration requirements “[a] vehicle

driven or moved on a street or highway in conformance

with the provisions of this act relating to manufactur-

ers . . . .” Therefore, Ford’s test vehicles driven under

manufacturer’s license plates need not comply with the

MVC’s registration provisions. Ford’s argument also

tacitly assumes that there is only one way to license a

vehicle for use on public highways, which is clearly not

the case because MCL 257.244(1) allows a manufac-

turer that owns a vehicle “otherwise required to be

registered” to “operate . . . the vehicle upon a street or

highway . . . if the vehicle displays . . . 1 special plate

approved by the secretary of state.”

Ford argues that its test vehicles were not licensed

for use on public highways because Ford could not

lawfully sell, lease, or lend a test vehicle to a third

party or use a test vehicle for any purpose other than

testing. The UTA deﬁnes “use” as “the exercise of a

right or power over tangible personal property incident

to the ownership of that property including transfer of

the property in a transaction where possession is

given.” MCL 205.92(b). Manufacturer’s license plates

speciﬁcally authorize Ford to “operate or move the

vehicle upon a street or highway[.]” MCL 257.244(1).

The mere fact that Ford could not sell or lease the

vehicles, or use them for purposes other than testing,

does not mean that the vehicles were not licensed for

use.

Alternatively, Ford argues that we should retroac-

tively apply the Legislature’s 1999 amendment of the

UTA. Generally, statutory amendments are applied

prospectively unless the Legislature expressly or im-

pliedly identiﬁed its intention to give the amendment

retrospective effect. GMAC LLC v Dep’t of Treasury,

286 Mich App 365, 377; 781 NW2d 310 (2009). “An

586 313 M

ICH

572 [Dec

amendment may apply retroactively where the Legis-

lature enacts an amendment to clarify an existing

statute . . . .” Mtg Electronic Registration Sys, Inc v

Pickrell, 271 Mich App 119, 126; 721 NW2d 276 (2006).

Ford argues that legislative analysis for the 1999

amendment mentioned extending exemptions to cer-

tain “third parties,” but otherwise spoke of clarifying

the Act. House Legislative Analysis, HB 4744, HB

4745, and SB 544, July 16, 1999, p 11. However,

staff-prepared legislative analysis does not “summa-

rize the intentions of those who have been designated

by the Constitution to be participants in this legisla-

tive process” and therefore “should be accorded very

little signiﬁcance by courts when construing a statute.”

In re Certiﬁed Question, 468 Mich 109, 115 n 5, 659

NW2d 597 (2003).

Additionally, Ford argues that the 1999 amendment

merely clariﬁed existing law because it gave the phrase

“vehicles licensed . . . for use on public highways” the

same meaning that it has in other parts of Michigan

tax law.

Ford contends that every other time the

phrase

“vehicles licensed . . . for use on public high-

ways” is used, it refers to licensing vehicles under MCL

257.216, and the manufacturer’s license plate provi-

sions of the MVC do not apply. As discussed earlier,

MCL 257.216 relates to registrations and certiﬁcates of

title, not speciﬁcally to a “license” as deﬁned by the

MVC. Further, the speciﬁc tax exemption relating to

industrial processing is the only place that manufac-

See, e.g., MCL 205.54a(1)(b)(ii) (stating that sales of tangible prop-

erty to a religious organization are exempt from sales tax except for the

sale of “vehicles licensed for use on public highways other than a

passenger van or bus with a manufacturer’s rated seating capacity of 10

or more that is used primarily for the transportation of persons for

religious purposes”).

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turer’s license plates would be relevant because only a

manufacturer, as opposed to a consumer, would engage

in industrial processing.

The ﬁrst enacting section of 1999 PA 117 lists

several clariﬁcations of the UTA, without mentioning

the tax exemption for vehicles displaying manufactur-

er’s license plates. Thus, it is not clear that the Legis-

lature intended to clarify the industrial-processing

exemption with regard to vehicles using a manufactur-

er’s license plate. Moreover, Section 4o of the amend-

ment, which contains the manufacturer’s license plate

provision, provides that tax levied under the UTA did

not apply to property sold “after March 30, 1999,”

indicating that the Legislature intended the relevant

portion of the 1999 amendment to apply prospectively.

Accordingly, we decline to retroactively apply the 1999

amendment of the UTA.

III. ATTORNEY FEES AND COSTS

The Department next challenges four separate

wards of attorney fees and costs. We review a trial

court’s award of attorney fees and costs for an abuse of

discretion. 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 out-

side the range of reasonable and principled outcomes.”

Id. We review a trial court’s determination that a claim

or defense was frivolous for clear error. Szymanski v

Brown, 221 Mich App 423, 436; 562 NW2d 212 (1997). A

decision is clearly erroneous if we are left with a deﬁnite

and ﬁrm conviction that a mistake has been made. Id.

A. ATTORNEY FEES AND COSTS ASSOCIATED WITH THE ESP ISSUE

The Department ﬁrst challenges the Court of

Claims’

conclusion that the Department’s defense of its

588 313 M

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assessment of use tax for automotive parts provided

under ESPs was frivolous. A court may ﬁnd that a

party’s action is frivolous if (1) the party initiated the

suit for purposes of harassment, (2) “[t]he party’s legal

position was devoid of arguable legal merit,” or (3)

“[t]he party had no reasonable basis to believe that the

facts underlying that party’s legal position were in fact

true.” MCL 600.2591(3)(a). “A claim is not frivolous

merely because the party advancing the claim does not

prevail on it.” Adamo Demolition Co v Dep’t of Trea-

sury, 303 Mich App 356, 368; 844 NW2d 143 (2013). “A

claim is devoid of arguable legal merit if it is not

sufﬁciently grounded in law or fact[.]” Id. at 369.

The Department argues that the Court of Claims did

not make sufﬁcient factual ﬁndings to justify its deter-

mination that the Department’s defense was frivolous.

Court rules require trial courts to place ﬁndings of fact

and conclusions of law on the record. MCR 2.517(A)(1);

Morris v Clawson Tank Co, 459 Mich 256, 274; 587

NW2d 253 (1998). Findings of fact are sufﬁcient if they

are “[b]rief, deﬁnite, and pertinent,” MCR 2.517(A)(2),

and “it appears that the trial court was aware of the

issues in the case and correctly applied the law, and

where appellate review would not be facilitated by

requiring further explanation,” Triple E Produce Corp

v Mastronardi Produce, Ltd, 209 Mich App 165, 176;

530 NW2d 772 (1995).

The court’s order stated that the Department was

required to pay Ford’s costs and attorney fees “pursu-

ant to MCR 2.114 and MCR 2.625, as [the Department]

relied upon a frivolous defense.” Although the court did

not mention its speciﬁc ﬁndings regarding the frivo-

lousness of the defense in its order, during a subse-

quent hearing on the Department’s motion to stay the

order, the court stated the following:

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It is sad to hear that [the Department] thinks that

because of this ruling they would be afraid to ﬁle other

cases because of fear of retribution or fear of the courts

awarding costs and sanctions, attorney fees, what have

you. I think the opposite is sad, that [the Department]

should have free license to simply ﬁle a suit without

proper cause or good showing of a meritorious case,

without appropriate factual and legal support. That puts

the burden on the taxpayer. Not all taxpayers have deep

pockets like Ford and I don’t think anybody, even Ford,

these days have deep pockets.

Therefore, the court awarded Ford costs and attorney

fees

because it believed the Department’s use-tax as-

sessment for automotive parts provided under ESPs

lacked factual and legal support. Although the court’s

explanation occurred in relation to a separate motion,

a ﬁnding that is “[b]rief, deﬁnite, and pertinent,” MCR

2.517(A)(2), is sufﬁcient, and the court’s statement in

this matter was adequate to facilitate appellate review.

Further, the Department’s defense was frivolous.

Under MCL 205.93, the state imposes use tax on a

person who uses, stores, or consumes tangible personal

property. The Department’s auditor, George Tetteh,

admitted that there was no evidence that Ford used,

stored, or consumed the repair parts. Tetteh explained

that Ford dealers purchased the parts and customers

took the parts after the dealer installed them on the

customer’s vehicle. Tetteh also admitted that he did

not have “any particular or speciﬁc document . . . to

show that . . . the dealers were an agent of Ford.”

Accordingly, the Department’s defense lacked any fac-

tual or legal support.

The Department argues that the court’s award of

$112,256.73 was unreasonable. To evaluate whether

an attorney fee is reasonable, courts begin by deter-

mining the fee customarily charged in the locality for

590 313 M

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similar legal services. Khouri, 481 Mich at 530. To

determine this amount, courts should use “reliable

surveys or other credible evidence of the legal market.”

Id. at 530-531. Then, the reasonable hourly rate should

be multiplied by the number of hours that were rea-

sonably expended to reach a baseline ﬁgure for a

reasonable attorney fee. Id. at 533. Courts should

make adjustments to the ﬁgure using the factors from

MRPC 1.5(a) and Wood v Detroit Auto Inter-Ins Exch,

413 Mich 573; 321 NW2d 653 (1982). Khouri, 481 Mich

at 532.

The Department ﬁrst argues that the Court of

Claims erred by “presuming” the reasonableness of the

fees assessed for all of Ford’s attorneys based on the

reasonableness of the fees for Ford’s lead counsel. The

court stated that it was “overly burdensome” to deter-

mine the reasonableness of the fees charged by each

attorney that worked on the case from its inception.

Instead, the court stated that it considered the fees

from Ford’s lead attorney, Loren Opper, and then

“presumed” that the fees for the other attorneys were

reasonable based on Opper’s fees. However, the court

also stated that it reviewed the fees and hours for the

other attorneys in preparation for the evidentiary

hearing, so its decision was based on evidence.

The Department contends that the court did not

attempt to determine the reasonableness of the hours

spent on the ESP issue. To the contrary, the court

found that the Department conceded the reasonable-

ness of the time spent on afﬁdavits, the brief, and the

motion and argument, and that Ford’s request for 25%

of the time it spent on various categories such as the

amended complaint, research, and discovery was ap-

propriate because the ESP issue increased the amount

of time spent in those categories. The court further

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found that the time spent on some categories, such as

depositions and documents, was not reasonable be-

cause Ford would have incurred those expenses re-

gardless of whether the ESP issue was in dispute.

Therefore, the Court of Claims did not fail to consider

the reasonableness of the hours billed.

The Department contends that the Court of Claims

erred by awarding Ford attorney fees for time spent on

the amended complaint, because, as the court stated,

the fees were awarded for “whatever was expended in

relation to the motion for partial summary disposition”

and “not on the whole case.” On this point, we agree.

Time spent on the amended complaint could not have

been spent “in relation to the motion for partial sum-

mary disposition” that followed the complaint. There-

fore, the court abused its discretion by awarding attor-

ney fees for time Ford spent on the amended

complaint.

The Department challenges the court’s determina-

tion that Opper, Ford’s lead attorney, charged a rea-

sonable rate. Speciﬁcally, the Department argues that

Opper’s hourly rate was contradicted by the State Bar

of Michigan Economics of Law Practice Survey and

that the court improperly considered Detroit rather

than Lansing as the locality on which to base the rate.

At the evidentiary hearing, Ford’s counsel noted that

the 2007 Economics of Law Practice Survey had no

participants in the category of “tax problem resolu-

tion,” which was the relevant area of practice. In lieu of

the State Bar’s survey, Ford submitted surveys from

PricewaterhouseCoopers and the National Law Jour-

nal to demonstrate that Ford’s hourly rates were

reasonable.

In ﬁnding that Opper’s hourly rates were reason-

able, the court stated that the case involved “complex

592 313 M

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litigation in state and local taxation,” which was a

“specialized area of law” that a limited number of

Michigan ﬁrms practice, and that the hourly rates

were reasonable because they were “in line with rates

charged in the Detroit region for experienced attorneys

performing specialized complex litigation.” The De-

partment has not shown an abuse of discretion because

the Court of Claims could determine the reasonable-

ness of Opper’s rates based on the surveys Ford sub-

mitted at the evidentiary hearing. Additionally, Opper

testiﬁed that he worked with Ford through his ﬁrm’s

Detroit ofﬁce, so the court did not abuse its discretion

by determining that Detroit was the appropriate local-

ity on which to base the rates.

The Department asserts that the court ignored MCL

600.2421c(4), which caps attorney fees against the

state at $75 an hour. However, the Department aban-

doned this issue by providing only one sentence of

analysis in its appellate brief. Prince v MacDonald, 237

Mich App 186, 197; 602 NW2d 834 (1999). Moreover,

the argument is meritless. The Court of Claims

awarded Ford attorney fees under MCL 600.2591, not

MCL 600.2421c(4). Additionally, Ford is not a “party”

as deﬁned in MCL 600.2421b(2) because it is a corpo-

ration with more than 250 employees, so it was not

subject to the award restrictions in MCL 600.2421c(4).

B. ATTORNEY FEES AND COSTS ASSOCIATED WITH THE 2

009 ACTION

Next, the Department argues that the Court of

Claims clearly erred by ﬁnding that its defense of the

$44 million second tax assessment was frivolous. The

court’s order speciﬁcally stated that the award of

attorney fees was appropriate under MCR 2.114(E)-

(F), MCR 2.625(A)(2), and MCL 600.2591 because the

Department’s actions were “frivolous and vexatious.”

2015] F

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There is no dispute that the Department’s $44 million

second tax assessment was improper because the De-

partment stipulated to an order cancelling and re-

scinding the assessment and acknowledging that it

should not have been assessed. At the motion hearing

for summary disposition in the 2009 action, the De-

partment’s counsel admitted that the court was “[b]a-

sically . . . correct” in its contention that the 2009

action involved the same matters litigated in the 2006

action, which had already been decided in Ford’s favor.

When asked whether the Department was responsible

for verifying the facts underlying the second tax as-

sessment, the Department’s audit specialist, Carla

Ward, stated, “If the department does not feel they’re

getting the information that they need, then they have

the authority to issue an assessment.” These state-

ments all support Ford’s contention that the Depart-

ment issued the second tax assessment to harass Ford.

Accordingly, the Court of Claims did not clearly err by

ﬁnding that the Department’s defense was frivolous,

and it properly awarded attorney fees.

C. ATTORNEY FEES AND COSTS ASSOCIATED WITH

FORD’S

EMERGENCY EX PARTE MOTION

The Department contends that the Court of Claims

abused its discretion by awarding attorney fees for

Ford’s ex parte motion to prevent the Department from

sending its multimillion-dollar refund checks through

the mail. Although the court did not specify the

grounds on which it awarded the fees, it is clear from

the context of the ex parte motion and Ford’s argu-

ments that the court agreed that the Department’s

refusal to let Ford’s counsel personally pick up the

multimillion-dollar checks was unreasonable. Given

the amount at issue, this is a sound conclusion. Trial

courts have inherent authority to impose sanctions on

594 313 M

ICH

572 [Dec

the basis of a party’s misconduct. Persichini v William

Beaumont Hosp, 238 Mich App 626, 639; 607 NW2d

100 (1999). Therefore, the Court of Claims did not

abuse its discretion by awarding attorney fees for

Ford’s emergency ex parte motion.

D. ATTORNEY FEES AND COSTS ASSOCIATED WITH

FORD’S

MOTION TO SHOW CAUSE

The Department argues that the Court of Claims

abused its discretion by awarding attorney fees for

Ford’s motion to show cause regarding the Depart-

ment’s failure to pay the tax refund on the ESP issue.

The Department argued that under former MCR

7.101(H)(1) (now MCR 7.108(B)(1)), an order or judg-

ment cannot be enforced until the time for taking an

appeal expired, but Ford replied that MCR 7.101(H)(1)

only governed appeals from district or probate courts

to circuit courts.

Litigants are required to obey court orders, regard-

less of their propriety, until the orders are dissolved.

Plumbers & Pipeﬁtters Local Union No 190 v Wolff, 141

Mich App 815, 818; 369 NW2d 237 (1985). MCL

600.1721 grants courts the power to order a party in

contempt of court to indemnify the injured party for

any “actual loss or injury” caused by the misconduct.

Thus, the Court of Claims could properly assess attor-

ney fees in this instance because the Department

violated the court’s orders to pay the refund and

attorney fees. Therefore, the Court of Claims did not

abuse its discretion by awarding the attorney fees.

IV. INTEREST ACCRUAL FOR TEST VEHICLE REFUND CLAIM

Finally, the Department argues that Ford’s Janu-

ry 28, 1999 letters were not claims or petitions for a

refund that triggered the 45-day period before inter-

2015] F

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est begins to accrue on a tax refund. MCL 205.30

provides that interest begins to accrue on overpaid

taxes 45 days after a claim is made or a petition is

ﬁled. In Ford Motor Co v Dep’t of Treasury, 496 Mich

382; 852 NW2d 786 (2014), our Supreme Court held

the following regarding MCL 205.30:

[W]hen the statute is read as a whole it is clear that, in

order

to trigger the 45-day waiting period before interest

begins to accrue on a tax refund, a taxpayer must (1) have

actually paid the tax at issue; (2) make a “petition . . . for”

a refund or “claim for refund” by demanding, requesting,

or asserting a right to a refund of tax payments that the

taxpayer made to the Treasury return that the taxpayer

asserts are not due; and (3) “ﬁle” the claim or petition by

submitting it to the Treasury, thereby providing the Trea-

sury with adequate notice of the taxpayer’s claim for a

refund. [Ford Motor Co, 496 Mich at 396.]

The Department ﬁrst contends that there is no

record

evidence that Ford paid the taxes at issue as of

January 28, 1999. The Department never challenged

Ford’s payment of the taxes below, so the record is

devoid of documentary evidence on this issue. Thus,

there are no factual ﬁndings on the record for us to

review in relation to whether Ford paid the tax by

1999. The Court of Claims implicitly found that Ford

paid the tax because it found that the interest began to

accrue in 1999. In any event, the Department was able

to verify and issue refund checks for the tax overpay-

ment, which negates its contentions that it could not

have had the money.

The Department argues that Ford’s January 28,

1999 letters were not claims or petitions for a refund

because they did not make an explicit demand for

money and they contemplated a future follow-up. A

taxpayer can make a petition or claim for a refund by

asserting a right to a refund for payments that the

596 313 M

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572 [Dec

taxpayer asserts are not due. Ford Motor Co, 496 Mich

at 396. Ford’s ﬁrst letter asserted a right to a refund for

tax payments made to the Department, stating, “Any

tax paid on these vehicles during the audit period was

paid in error and should be credited or refunded to Ford

Motor Company.” (Emphasis added.) Ford’s second

letter also asserted a right to a refund, stating, “There-

fore, Ford Motor Co. should receive a refund on tax paid

on these vehicles for the open statutory period.” (Em-

phasis added.)

The Department argues that Ford’s claim was not

“ﬁled” because the letters stated that Ford intended to

ﬁle a claim in the future. However, our Supreme Court

has held that a claim is ﬁled when it is submitted to the

Department. Ford Motor Co, 496 Mich at 395. Filing

requires the taxpayer to give the Department “ad-

equate notice of the claim[.]” Id. at 396. Both of Ford’s

letters were addressed and sent to the Department’s

audit supervisor; thus, the letters were submitted to

the Department and gave notice of a claim for a refund.

Because evidence shows that Ford paid the taxes at

issue, petitioned or claimed a refund, and then ﬁled the

claim, the 45-day waiting period before interest began

to accrue started after Ford sent its January 28, 1999

letters.

Afﬁrmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion.

K. F. K

ELLY

and F

ORT

OOD

, JJ., concurred with

ADOLA

, P.J.

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FALCONER v STAMPS

Docket No. 323392. Submitted December 8, 2015, at Lansing. Decided

December 22, 2015, at 9:00 a.m.

Kristen Falconer brought an action in the Calhoun Circuit Court

against Chadwick Stamps, seeking custody of their daughter (the

child). Defendant’s mother, Donna Weddington, intervened in the

action, seeking custody of the child under MCL 722.26b(1) (action

for custody by a guardian). Plaintiff and defendant had begun

dating as teenagers, and plaintiff moved into intervener’s home

while still attending high school. Plaintiff became pregnant

shortly after she graduated from high school. When the child was

approximately two years old, defendant moved to Arizona to

attend school. Plaintiff went to visit defendant in Arizona and

ended up staying there with defendant for approximately 16

months. While plaintiff and defendant were in Arizona, the child

lived with intervener, who was appointed the child’s guardian in

separate proceedings in the Calhoun County Probate Court. In

2011, plaintiff and defendant returned to Michigan. Plaintiff had

begun using drugs while in Arizona, and intervener continued to

be the child’s primary caretaker. Plaintiff left intervener’s home

in November 2012. In April 2013, plaintiff moved to terminate the

guardianship. Department of Health and Human Services em-

ployee Candace Stack, the child’s counselor, and the child’s

guardian ad litem, all supported the child’s reuniﬁcation with

plaintiff. Stack noted that plaintiff had done an outstanding job

overcoming her prior drug use and was ready to be a full-time

mother. The probate court ultimately terminated the guardian-

ship on January 16, 2014. Plaintiff ﬁled her complaint for custody

in the circuit court shortly before the order terminating the

guardianship was entered. The circuit court, Brian Kirkham, J.,

ordered that the child be left in intervener’s care during the

custody proceedings, but allowed plaintiff to have regular parent-

ing time. After the lengthy custody hearing, the circuit court

awarded sole legal and physical custody to plaintiff, but then

went on to address grandparent visitation by intervener. The

circuit court awarded intervener standard parenting time for a

noncustodial parent. Plaintiff appealed.

598 313

ICH

598 [Dec

The Court of Appeals held:

1. Under MCL 722.27b, a child’s grandparent may seek a

grandparenting-time order when, in the year preceding the

commencement of an action for grandparenting time, the grand-

parent provided an established custodial environment for the

child. The grandparenting-time statute sets forth the procedure

for bringing the issue of grandparenting time before the court.

When the circuit court has continuing jurisdiction over the child

because of a custody proceeding, the child’s grandparent must

seek a grandparenting-time order by ﬁling a motion with the

circuit court in the county where the court has continuing

jurisdiction. The motion must be accompanied by an afﬁdavit

setting forth facts supporting the requested order, which, in turn,

allows the party having legal custody to ﬁle an opposing afﬁdavit.

However, 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. To rebut that 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. If the grandparent does not overcome the

presumption, the court must deny the motion. In this case, the

circuit court conﬂated what should have been two different

proceedings—the custody determination and the grandparenting-

time determination. While the circuit court carefully considered

the best-interest factors under the grandparenting-time statute,

MCL 722.27b(6), separately from its previous best-interests de-

termination on custody, MCL 722.23, it nevertheless committed

error by even considering the issue of grandparent visitation.

Importantly, plaintiff received custody of the child just moments

before the circuit court’s decision on grandparenting time and,

therefore, plaintiff had not denied intervener grandparenting

time. The trial court, in rendering an opinion on grandparent

visitation absent a request to do so, effectively jumped the gun

and presumed that plaintiff would unreasonably deny intervener

grandparenting time. But plaintiff had testiﬁed that she was

amenable to visitation as long as intervener did nothing to

sabotage plaintiff’s relationship with the child. The circuit court,

by granting intervener grandparenting time absent a request to

do so, deprived plaintiff of the opportunity to argue that inter-

vener had failed to rebut the presumption that plaintiff’s osten-

sible decision to deny grandparenting time did not create a

substantial risk of harm to the child. In fact, the circuit court

failed to indicate that it was even taking the presumption into

2015] F

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599

consideration. The Due Process Clause does not permit a state to

infringe on the fundamental right of parents to make child-

rearing decisions simply because a state judge believes a better

decision could be made. Accordingly, the circuit court’s

grandparenting-time order had to be vacated.

2. Even if the matter had been properly before it, the circuit

court erred by permitting grandparenting time. Given the evi-

dence presented, intervenor failed to overcome the presumption

that plaintiff’s ostensible decision to deny grandparenting time

did not create a substantial risk of harm to the child’s physical,

mental, or emotional health. The record revealed that while there

was support for the child having continued contact with inter-

vener, with whom she had lived her entire life, there was also

evidence that intervener’s continued involvement in the child’s

life was potentially detrimental to the child’s transition to plain-

tiff’s home and, therefore, the child’s overall well-being.

3. MCL 722.27b(6) states that if the court ﬁnds by a prepon-

derance of the evidence that it is in the best interests of the child

to enter a grandparenting-time order, the court shall enter an

order providing for reasonable grandparenting time of the child

by the grandparent by general or speciﬁc terms and conditions.

Where, as here, the grandparent’s involvement in a child’s life

exceeds the typical role of a grandparent, one could envision a

visitation schedule that resembles that of a noncustodial parent.

However, under MCL 722.27b, the court must balance the par-

ent’s fundamental right to manage his or her child against the

goal of eliminating the risk of harm to the child that might result

from a denial of grandparenting time. Accordingly, if an order for

grandparenting time is entered, the amount of grandparenting

time should be whatever amount will eliminate the risk of harm

to the child. The experts who testiﬁed in this case offered no

opinion on the amount of grandparenting time necessary to

eliminate the risk of harm to the child from a lack of grandpar-

enting time. Given the evidence presented, the amount of grand-

parenting time ordered was excessive.

4. MCL 722.27b(6) sets forth the best-interest factors a court

must consider when deciding whether it is in the best interests of

the child to enter an order for grandparenting time. In this case,

the circuit court’s decision to order grandparenting time was

against the great weight of the evidence on the record presented.

In fact, the evidence on the best-interest factors strongly predomi-

nated against granting visitation.

Circuit court’s grandparenting-time order vacated.

600 313

ICH

598 [Dec

ARENT AND

HILD —

RANDPARENTING

IME —

ROCEDURE

Under MCL 722.27b, a child’s grandparent may seek a

grandparenting-time order; the grandparenting-time statute sets

forth the procedure for bringing the issue of grandparenting time

before the court; when the circuit court has continuing jurisdic-

tion over the child because of a custody proceeding, the child’s

grandparent must seek a grandparenting-time order by ﬁling a

motion with the circuit court in the county where the court has

continuing jurisdiction, but the circuit court must not conﬂate the

custody and grandparenting-time proceedings.

Legal Services of South Central Michigan (by Megan

A. Reynolds) for plaintiff.

Before: G

ADOLA

, P.J., and K. F. K

ELLY

and F

ORT

OOD

JJ.

K. F. K

ELLY

, J. In a three-way child custody dispute

involving plaintiff mother, Kristen Alise Falconer

(plaintiff); defendant father, Chadwick Jason Stamps,

also known as Chad Meyers (defendant); and paternal

grandmother, Donna Bryant Weddington (Intervener),

plaintiff appeals as of right because, while plaintiff was

awarded sole physical and legal custody of the child,

the order included extensive grandparenting time with

Intervener

. We vacate that portion of the circuit court’s

order that granted Intervener grandparenting time

given that the issue of grandparent visitation was not

properly before the circuit court.

I. BASIC FACTS AND PROCEDURAL HISTORY

PROBATE COURT PROCEEDINGS

On October 14, 2010, Intervener ﬁled a petition in the

Calhoun County Probate Court for appointment of a full

We refer to plaintiff and defendant’s daughter as “the child” through-

out this opinion to preserve her privacy.

2015] F

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601

guardianship of the two-year-old child under MCL

700.5204(2). Intervener told the probate investigator

that plaintiff and defendant lived with Intervener

before the child was born and that all three continued

to live with Intervener until defendant moved to Ari-

zona to attend college in February 2010 and plaintiff

followed in April 2010. Intervener reported that plain-

tiff and defendant supported the guardianship and

that the child had frequent contact with plaintiff and

defendant via telephone calls and video calls using

Skype, as well as in-person visits. Intervener was

granted full guardianship on November 29, 2010.

Intervener ﬁled an annual report with the court on

December 2, 2011, indicating that the parents had now

returned to Michigan but that the “[p]arents still lack

necessary skills to parent child” and that “neither

parent is a suitable guardian for [the child].” The

report indicated that the “[c]hild loves parents and vice

versa” and that visits took place “as much as possible.”

Intervener ﬁled her next annual report on Novem-

ber 30, 2012. She reported that plaintiff had moved out

of the home in November 2012 and her whereabouts

were “unknown.” Intervener requested that plaintiff’s

future visits be supervised by her.

On April 9, 2013, plaintiff petitioned to terminate

the guardianship. The probate court appointed the

child a guardian ad litem (GAL), David Marsh.

Marsh’s September 20, 2013 report provided:

A. The minor has essentially lived with the guardian,

her

grandmother, Donna Weddington, all her life.

B. The mother, Kristen Falconer, had a physical abu-

sive and substance abusive relationship with the son of

Donna Weddington until sometime in November, 2012

when she moved back to Hastings to be with her family in

order to get her life back together.

602 313

ICH

598 [Dec

Ms. Falconer has apparently made great strides in that

direction in that she is employed, substance free and has

stable housing.

C. The father, Chadwick Stamps, while living in the

same household with his daughter, has had little to do

with raising her.

D. The guardian/grandmother has done a good job in

raising [the child].

E. Both parties blame the other for the inconsistent

contact between [the child] and her mother.

F. The minor child desire[s] to remain living with the

guardian/grandmother.

G. Child Protective Services makes no speciﬁc recom-

mendation, stating that both parties are appropriate.

This writer believes that Kristen Falconer has done a

great job in getting her life together. However, she states

that she has only been clean since November, 2012 and did

so on her own, without any profession[al] help or support.

In addition, there has not been a lot of contact between

Ms. Falconer and her daughter, . . . the blame for which is

unclear.

* * *

The undersigned recommends that this Court institute

a speciﬁc plan in order to better prepare the minor for

potential reuniﬁcation with her mother.

The probate court set forth a court-structured plan

September 23, 2013, requiring plaintiff to, among

other things, submit to drug screening and participate

in supervised visitation. The plan included a proposed

date of March 24, 2014, for terminating the guardian-

ship.

Intervener ﬁled her next annual report on Decem-

ber 6, 2013, shortly after the structured plan was

implemented. In the report, Intervener indicated that

2015] F

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603

defendant lived in the same home as the child and saw

her every day: “[The child] loves being with her dad! She

grows more fond every day. She is completely not

interested/reluctant to see her mother. She cries every

time!” Intervener reported that while “[m]other attends

2 hour meeting/visit once a week with [the child], [the

child] does NOT enjoy, is very sad + disheartened by

each visit. [The child] should not be forced to have a

relationship with her mother until ready! [The child]

should continue counseling + perhaps Miss Falconer

could begin attending. [The child] has been abandoned

by her mother 5 times + she is reluctant and afraid.”

Intervener requested that the guardianship continue

because “the father would like to ﬁle for full custody but

does not yet have funds to hire attorney.”

A couple of days later, Intervener ﬁled a motion to

have “another, more appropriate supervisor be chosen”

for future supervised visits. Department of Health and

Human Services (DHHS) worker Candace Stack had

allowed plaintiff’s grandmother, Connie Falconer, to

act as supervisor during plaintiff’s visits with the child.

Intervener complained that Falconer had once tried to

“kidnap” the child in 2009 “after a high speed chase.”

Included with the motion was a letter Intervener wrote

to Judge Michael Jaconette on November 29, 2013,

asking how defendant “can apply for custody without

an attorney. He has always had physical custody. He

has never abandoned her and she adores him.” This, in

contrast with plaintiff who has abandoned the child “5

times over the last ﬁve years” and “[w]hen she did

reside with us there was little to no parenting in-

volved.” Intervener also included screen shots of email

exchanges she had with Stack, even though the ex-

changes did not cast Intervener in a positive light. The

exchanges revealed that Intervener had no intention of

presenting the child for supervised visits with plaintiff

604 313 M

ICH

598 [Dec

if those visits included Connie Falconer. The exchanges

also show that Intervener did not agree that plaintiff

should see the child twice a week.

In a December 1, 2013 report, the child’s counselor,

Kathleen Keeder, noted that, although the child had

been initially standofﬁsh with plaintiff, “Kristen has

followed through with all the recommendations and

suggestions made to her to help with the bonding

process and help [the child] to feel at ease during the

sessions. Kristen has been empathic with [the child],

she has validated her feelings even when they are

hurtful and has been emotionally supportive. It is

evidence to this clinician that [the child’s] Guardian is

not in support of [the child] being reunited with her

mother and this is having an adverse affect [sic] on [the

child].” In Keeder’s opinion, plaintiff demonstrated an

ability to provide a safe and stable home for the child

and the two needed to be reunited.

On December 11, 2013, Stack ﬁled a report on the

case. Stack, like Keeder, reported that plaintiff was

doing a good job at her visits with the child, even

though the child would say things like “ ‘I hate you’ ”

and “ ‘you are not my mom.’ ” Stack reported that not

only did Intervener make scheduling visits difﬁcult,

but Intervener was also a distraction to the child by

waiting outside of the visitation room or in the bath-

room down the hall. The child, knowing Intervener was

outside the door or in the bathroom, would ask to use

the bathroom several times. Intervener refused to

leave the area until security guards got involved. Once

Intervener was out of the area, the child began to

warm up to and interact with plaintiff. Stack con-

cluded:

[The child’s] emotional well-being is being jeopardized

living

with Donna Weddington. Ms. Weddington has

2015] F

ALCONER V

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605

thwarted any and all efforts of reuniﬁcation between the

child and her mother. It is believed that Ms. Weddington is

feeding negative thoughts to [the child] about her mother,

Kristen Falconer, instead of being supportive of the rela-

tionship. It is a travesty that this reuniﬁcation period has

not been more successful, but it is this worker’s opinion

this is solely due to Ms. Weddington’s attitudes and

actions. This worker does not anticipate that Ms. Wed-

dington will ever support the reuniﬁcation of [the child]

and her mother.

In the meantime, Stack noted that plaintiff has “done

an outstanding job recovering from her drug use and is

ready to be a full time mother. She has awesome family

support in the Hasting[s] area. There is no reason to

continue this guardianship, the recommendation is to

terminate.”

The child’s GAL made a similar recommendation in

his December 18, 2013 report:

Ms. Weddington has frequently procrastinated and at-

tempted

to circumvent the arrangements made by Child

Protective Services to move forward with the plan. She

claims that these arrangements are detrimental to and

against the best interest of [the child]. Ms. Weddington

believes that Kristin [sic] Falconer doesn’t want [the

child]; she is jealous of Chad Stamps and is doing this to

hurt him.

It is this writer’s opinion that Donna Weddington is so

desperately afraid of losing custody of [the child] that she

grasps at any straw in the attempt to prevent termination

of the guardianship. It is further my belief that Donna

Weddington continues to attempt to undermine this pro-

cess by coaching the minor.

RECOMMENDATION:

The undersigned recommends that this case continue

on track to termination of the minor guardianship as the

mother has done all that is asked and required of her.

606 313

ICH

598 [Dec

I further recommend that this Court emphasize the

need for Donna Weddington to totally cooperate with the

Court structured plan especially with the parenting time

arranged by Department of Human Services under the

penalty of contempt and/or removal of the minor from Ms.

Weddington.

A hearing was held on December 18, 2013. That

same

day, the probate court ordered that, in light of

plaintiff’s substantial compliance with the court-

structured plan, the termination of the guardianship

“should be accelerated from the previously scheduled

termination date of 3-24-14 to an earlier date” and that

“the best interests of the minor would be served by

continuing the guardianship until 1-16-14 pending

completion of a modiﬁed court-structured plan which

will allow for unsupervised parenting time as speciﬁed

in this plan and will allow for counselor(s)/therapist(s)

of the minor to address with her the scheduled 1/16/14

permanent reuniﬁcation of the minor with her

mother.” The guardianship was terminated in a Janu-

ary 16, 2014 order.

B. COMPETING COMPLAINTS FOR TEMPORARY CUSTODY

Plaintiff ﬁled her complaint for custody in the Cal-

houn

Circuit Court on December 23, 2013, before the

order terminating the guardianship was entered.

Plaintiff preemptively sought temporary custody to

avoid interference by defendant or Intervener with the

guardianship’s imminent termination. The complaint

sought sole physical and legal custody, suspension of

defendant’s parenting time, and exclusion of Inter-

vener from any visits the child would have with defen-

dant.

Defendant ﬁled a motion for temporary custody on

January 8, 2014. He was concerned that termination of

2015] F

ALCONER V

TAMPS

607

the guardianship would result in the child being placed

with plaintiff, who had abandoned the child and who,

defendant contended, was unﬁt.

At a January 13, 2014 motion hearing, the circuit

court indicated that it had discovered outstanding

warrants for defendant’s arrest for malicious destruc-

tion of property and home invasion. Defendant was

immediately placed into police custody. Defendant was

also ordered to submit to a drug test and tested

positive for marijuana. Counsel for defendant never-

theless begged the circuit court not to uproot the child’s

life by removing her from Intervener’s care, especially

where “we have a mother who simply left the home

where her daughter lived went for many months with-

out having any real meaningful contact with her

daughter. . . . She left the home. She made no efforts

for a considerable period of time to have regular

contact with the daughter.” Plaintiff’s attorney ex-

plained that plaintiff was forced to leave the child in

November 2012 because of the abusive situation with

defendant. Plaintiff sought substance abuse counsel-

ing and had been very diligent in trying to gain custody

of the child. In fact, the only reason the probate court

did not order same-day termination of the guardian-

ship was to allow intensive services to the child to

prepare her for the transition. Counsel believed that

Intervener brought defendant to court as a proxy,

pointing to the fact that defendant had played no part

in the probate court proceedings. Citing its authority to

place a child with a third party under the Child

Custody Act (CCA), MCL 722.21 et seq., the circuit

court concluded that it would not uproot the child and

left the child in Intervener’s care.

Intervener ﬁled her motion for intervention and for

custody on January 15, 2014, citing MCL 722.26b(1)

608 313 M

ICH

598 [Dec

(action for custody by a guardian). The circuit court

granted the motion at a February 3, 2014 hearing.

Plaintiff moved to modify the temporary custody

order on January 21, 2014, citing defendant’s continu-

ous abusive and criminal behavior and Intervener’s

failure to protect the child by essentially covering up

defendant’s illegal and violent behavior. The circuit

court denied the motion but modiﬁed the parenting-

time schedule to allow plaintiff mid-week contact and

extended weekend visits to Monday mornings. The

circuit court also appointed the child a GAL. It refused

to appoint Marsh (the child’s GAL from the probate

proceeding) because of Marsh’s ex parte communica-

tion with the judge in which Marsh expressed displea-

sure with how the case was going. Michael Clore was

named GAL.

C. THE CUSTODY HEARING

Defendant represented himself at the custody hear-

ing.

Importantly, at no time did defendant seek custody

of the child; the hearing was essentially between

plaintiff and Intervener. At the time of the hearing,

there were a number of allegations regarding defen-

dant’s assaultive behavior. The focus was on whether

the child was exposed to domestic violence in Interven-

er’s home. Intervener and defendant denied that there

was any domestic violence. In contrast, plaintiff and

her witnesses reported that defendant had a history of

abusing, not only his girlfriends, but Intervener.

Children’s Protective Services (CPS) investigator

Megan Wilder testiﬁed that she received an allegation

of substance abuse and physical neglect in Intervener’s

home on January 13, 2014, which coincided with the

hearing in which defendant was arrested on outstand-

ing warrants. Wilder tried visiting the home four times

2015] F

ALCONER V

TAMPS

609

and left a business card. She received a voice mail on

January 21 from Intervener, telling Wilder she was not

welcome in the home and giving Wilder the name of

her attorney. Wilder ﬁnally met with Intervener in

February, along with Wilder’s supervisor, Chadd Han-

nah, and ongoing CPS caseworker Christian Giggy.

Defendant was not present for the meeting. Wilder

noted that Intervener’s “story changed several times”

during the meeting. When confronted with two sepa-

rate police reports regarding defendant’s criminality,

Intervener either denied the incidents occurred or

downplayed them. One incident involved the malicious

destruction of property and the other involved a home

invasion. CPS was concerned because the child was

present for both incidents.

Wilder reviewed the police reports and had another

CPS

worker speak with defendant’s ex-girlfriend

Alaura Haueter about “other things” in the home that

concerned Wilder. Wilder ultimately concluded that

Intervener failed to protect the child. A case was

opened as a “category two.” Both Intervener and de-

fendant were placed on the Central Registry and the

matter was transferred to an ongoing caseworker for

services, including psychological evaluations for Inter-

vener, defendant, and the child. The child was not

removed from Intervener’s care because Wilder did not

“see any signiﬁcant risk of harm that was an immedi-

The malicious destruction of property incident occurred on Febru-

ary 9, 2013. Defendant was involved in a road-rage incident and ripped

the rear windshield wiper off of the back of another vehicle (road-rage

incident). The second incident occurred on June 18, 2013, when

defendant went to a “friend’s” home armed with a knife to confront the

friend about taking marijuana plants (home-invasion incident). Inter-

vener admitted that the child was present for the home-invasion

incident, but he gave conﬂicting statements about whether the child

was present for the road-rage incident.

610 313 M

ICH

598 [Dec

ate threat to the child.” Wilder met with the child at

school and the child “seemed a little coached” and

made statements “I don’t usually hear a ﬁve or six-

year-old say to me.”

DHHS worker Christian Giggy testiﬁed that he

received the case after Wilder substantiated the alle-

gations. Defendant was noncompliant and did not

complete his psychological evaluation; Intervener and

the child completed theirs. The child was already

receiving counseling with Sheri Pancost, so additional

counseling was not ordered. Giggy was led to believe

that defendant was out of Intervener’s home. Giggy

believed the child’s home with Intervener was safe, but

Intervener was always rescheduling appointments. So

while Intervener was technically compliant, Giggy

testiﬁed that “[t]he amount of time and energy that

I’ve put into trying to make arrangements to see her, to

see the children,

[3]

verify their well-being, has been

extensive,

in my opinion.” On one unannounced visit,

Giggy knocked on the door and was conﬁdent that

individuals were there but not responding to his

knocks. Intervener told Giggy that the child was un-

available for a psychological evaluation during spring

break, but Giggy contacted plaintiff who was able to

make sure the evaluation was completed. Afterward,

Intervener left Giggy a voicemail and “talked about

how we failed to forget that she has custody and she

didn’t authorize the psychological evaluation to occur

and that we would be hearing from her attorney.”

Giggy observed plaintiff with the child and found

her to be “very attentive.” He had no concerns about

plaintiff’s parenting ability. Giggy noted that when the

child was with Intervener, she was more guarded in

The plural use of “children” includes Intervener’s teenaged daugh-

ter, AW.

2015] F

ALCONER V

TAMPS

611

talking to Giggy, looking to Intervener for reassurance.

Giggy opined that “there may be some type of coach-

ing.” In contrast, the child opened up more when with

plaintiff. Giggy testiﬁed that the case would likely

close if the child was returned to plaintiff, but would

remain open if the child remained with Intervener.

CPS outreach counselor Kathleen Keeder testiﬁed

that her involvement in the case dated back to the

probate matter. She received a referral in the probate

case to work with plaintiff, Intervener, and the child to

ease the child’s transition from living with Intervener

to living with plaintiff. Keeder observed numerous

visits between plaintiff and the child. At the ﬁrst visit,

the child did not interact with plaintiff, saying things

like “ ‘you’re not my mom, I want to go home.’ ”

Plaintiff tried to engage the child, showing an enor-

mous amount of patience and empathy, but the child

would not talk to or even look at plaintiff. Keeder

categorized plaintiff’s level of skill at these visits as

“good” from the very start. They met weekly and, as the

sessions continued, the child warmed up to plaintiff,

becoming affectionate and engaging in activities. “[I]t

seemed like a—a normal mother/child relationship the

way they were playing together.”

Keeder observed that the child would use the bath-

room frequently during these visits and believed it was

because Intervener was just outside the room where

plaintiff was visiting with the child. The workers then

asked Intervener to sit downstairs and observed that

the child did not leave the room as frequently once she

realized Intervener was not there. Intervener also

canceled visits the child was to have with plaintiff on

at least two occasions. In Keeder’s estimation, Inter-

vener was not interested in outreach services and

refused visits Keeder planned to make to Intervener’s

612 313 M

ICH

598 [Dec

home; Intervener was “not cooperative at all.” Keeder

wanted Intervener to help the child prepare to the

transition from one home to the other, but Intervener

refused. In contrast, plaintiff welcomed Keeder into

the home that plaintiff shared with her grandparents.

The downstairs was a completely furnished apart-

ment. The child would have her own room and the

living arrangement was appropriate.

Keeder previously recommended terminating the

guardianship because plaintiff was “at a place where

she can take care of [the child], and [the child] does

appear to have a bond with her mom and . . . they get

along great together, and so I felt that it was time for

[the child] to go back home to her mom.” Keeder opined

that plaintiff and the child “have a very good bond. I

think Kristen loves her child very much and I think

[the child] loves her very much.” Because Intervener

would not cooperate, Keeder never had a chance to see

Intervener interact with the child.

Ongoing CPS caseworker Candace Stack testiﬁed

that she became involved in October 2013 after the

court-structured plan was put into place in the probate

proceeding. Plaintiff had ﬁve drug screens between

October 2013 and December 2013, all negative. Plain-

tiff had already started counseling by her own initia-

tive and Stack was able to obtain their reports. Stack

supervised visits with the child and plaintiff. At ﬁrst,

visits did not go well. The child was “standofﬁsh” with

plaintiff and would sit in the corner, saying, “ ‘You’re

not my mom, I hate you[.]’ ” Several of the visits were

like that. Intervener had placed herself right outside

the visiting room instead of sitting where other people

were waiting. She would even sit on the ﬂoor. The child

would ask to use the bathroom four or ﬁve times and

Intervener would be right there. Intervener even once

2015] F

ALCONER V

TAMPS

613

waited in the bathroom. Stack asked Intervener if she

could go run errands or wait downstairs. Intervener

said she would go run errands if someone gave her a

gas card. Stack asked Intervener two more times to

please go down to the ﬁrst ﬂoor. Eventually a security

guard asked her to and she complied. But Intervener

returned to the ﬂoor and had to be escorted by security.

Intervener’s teenaged daughter, AW, was also present

during the visits.

Stack noticed that visits started to go well after

Intervener was removed from the situation and plain-

tiff “was doing a fantastic job” interacting with the

child. “I could see that she was a very loving, caring

mother.” Parenting time was expanded to visits at

plaintiff’s house on Saturdays. Intervener, who be-

lieved that expanded visitation went against the

court’s visitation order, was not cooperative in bringing

the child for the visits. Intervener also objected to

plaintiff’s grandparents, Connie and Donald Falconer,

acting as designees for supervised visits. Intervener

told Stack that the child was “scared to death of

Connie” because there was a high-speed chase that

occurred when the child was an infant. Stack noted

that the child was born in March 2008 and the alleged

incident occurred in January 2009 when the child was

less than a year old. The Falconers had no criminal

record and were not on Central Registry.

Plaintiff was fully compliant with her structured

plan and Stack had recommended that the guardian-

ship end. Because Intervener would not cooperate,

Stack never had the chance to visit Intervener’s home

or report who lived there. Stack reported Intervener’s

noncompliance to the probate court. Stack also ob-

served Intervener with a black eye at a custody hear-

ing.

614 313 M

ICH

598 [Dec

Sheri Pancost testiﬁed that she was the child’s

therapist. Intervener had retained Pancost on July 3,

2013, prior to any court intervention, to help with the

child’s adjustment to seeing plaintiff. Pancost noted

that the child looked to Intervener for reassurance and

asked that Intervener be part of the ﬁrst couple of

sessions. The child reported that she wanted to live

with Intervener and that she was unsure about visit-

ing plaintiff. She was initially angry at plaintiff. Pan-

cost continued to see the child weekly after the court

became involved. On January 9, 2014, Pancost began

joint sessions with the child and plaintiff at CPS’s

suggestion. By that time, the child had become more

comfortable talking about plaintiff. Pancost observed

that plaintiff interacted with the child “just the way

you would expect most parents interact. She engages

with her, talks to her.” Pancost had no concerns about

plaintiff’s parenting ability. As the visits progressed,

the child was increasingly able to show plaintiff love

and affection. The child reported that she had fun with

her cousins on plaintiff’s side of the family, but was still

uncomfortable with her great-grandparents. She

thought they were a little “creepy” because they were

so much older. The child reported that she missed her

half-sister, whom we will refer to as “A.”

The child also

expressed

fear of defendant in regard to one particular

incident and did not discuss him nearly as much as the

other people in her life. Pancost believed that the

incident that caused the child to fear defendant was

the reason that Intervener, AW, and the child had to

stay in a hotel just before they moved into a new house.

Pancost had the impression that even when they were

living together, defendant’s interaction with the child

As will be discussed in further detail below, A was defendant’s child

with his former girlfriend Alaura Haueter.

2015] F

ALCONER V

TAMPS

615

was limited. The child reported that defendant would

yell and spend a lot of time in his room.

Pancost opined that the child was capable of making

a healthy adjustment to living with plaintiff. Pancost

believed that the child would have adjustment prob-

lems if someone was saying negative things about

plaintiff. Pancost believed that the child was not nice

to plaintiff initially because the child was afraid she

would have to move. The child was afraid that plaintiff

would “leave [her] again,” meaning leave her with

people she was not comfortable with. Pancost indicated

that this fear stemmed mostly from lack of interaction

with the great-grandparents, but the child also re-

ferred to a “car chase.” Pancost noted that the child

“has a strong bond with [Intervener]. She feels really

close to her and comfortable with her” and it would be

traumatic for the child to lose all contact with Inter-

vener, who was the stable force in her life. “[I]f she had

visitations or something like that still, it might lessen

that impact . . . .”

Clinical psychologist Dr. Randall Haugen testiﬁed

that he evaluated the child on April 10 and 11, 2014.

The child expressed ideas of being abandoned or lost

and had a “vague sense of mother being unsafe.”

Haugen testiﬁed that the child’s “presentation of the

information was pretty adult-like.” She repeatedly

used the word “ ‘abandonment’ ” and said it was “bad,”

but could not tell Haugen what the word meant.

Haugen noted that using the word abandonment, as

the child did almost 40 times, was inconsistent with a

child her age. Haugen believed the child was repeating

some adult conversation. In terms of being conditioned,

Haugen noted that the child’s interpretation of events

“seemed to be what she felt that grandma perceived

also.” Haugen warned that if the negative feelings

616 313 M

ICH

598 [Dec

continued, it would impact the child’s function: “Chil-

dren in these situations over a long period of time are

really prone to develop emotionally behavioral difﬁcul-

ties,” and negative statements create “a lot of anxiety

and apprehensiveness just about her basic sense of

stability, who she is, where she’s going to be in the

future.”

Haugen testiﬁed that, without regard to intent, the

child had been groomed or conditioned either directly

or indirectly by Intervener. The child perceived Inter-

vener as “her psychological parent at this time,” who

met her needs. She had a more conﬂicted relationship

with her mother because she perceived plaintiff as

having abandoned her and as someone who “has a lot

of problems and is really bad.” The child did not believe

that plaintiff’s love for her was true love; she believed

that the love she received at “home” was “real” love.

The child said, “ ‘mommy is pretending.’ ” Haugen

believed that Intervener’s statements to the child that

plaintiff was the biological mom but not the real mom

were “undermining.”

At the time of trial, plaintiff was 24 years old.

Plaintiff testiﬁed that she was 17 and defendant was

15 when they began dating. Plaintiff was not getting

along well with her step-mother and Intervener indi-

cated that she would “love” for plaintiff to move in with

them. At the time, plaintiff and defendant had been

dating for approximately two months. Plaintiff de-

scribed herself during that time as a “dumb, love-

struck teenager.” She managed to graduate from high

school in 2007, but defendant dropped out.

Plaintiff became pregnant with the child in July

2007. Plaintiff, defendant, and Intervener were living

in Florida at the time. They returned to Michigan in

August 2007. Plaintiff and Intervener lived in Grand

2015] F

ALCONER V

TAMPS

617

Rapids with one of Intervener’s friends because they

had no money and needed a place to stay while

Intervener found a home. AW lived in Battle Creek

with a friend, and defendant lived in Hastings. Even-

tually, Intervener found housing in Battle Creek and

the group came back together. From December 2006

until the time of trial, Intervener had eight different

residences. Plaintiff testiﬁed that, aside from the move

from Florida back to Michigan, each move was the

result of the failure to pay rent.

The child was born in March 2008.

Plaintiff stayed

home

with the child for three weeks but then went

back to work as a waitress because the family needed

money. Plaintiff testiﬁed that, at that time, Intervener

helped take care of the child, but the primary childcare

responsibility went to plaintiff.

Plaintiff testiﬁed that defendant moved down to

Arizona in March 2010 to attend a mechanic’s school.

Plaintiff went down a month later to visit. Intervener

and defendant decided that plaintiff should stay in

Arizona in order to help defendant recuperate from

shoulder surgery and to make sure that he did not drop

out of school. Although she wanted to be with the child

in Michigan, plaintiff wanted to make sure defendant

graduated from the program so that he could begin

contributing to the family’s ﬁnances. The couple stayed

in Arizona for approximately 16 months. They saw the

child on visits and via Skype. During this time, plain-

tiff believed she had a “good” relationship with Inter-

vener. She did not feel the need to delegate parental

authority because she trusted Intervener. Plaintiff

acknowledged that in the time she was in Arizona,

Plaintiff explained that the child was given the last name of one of

defendant’s mentors because defendant did not want the child to have

his biological father’s last name.

618 313 M

ICH

598 [Dec

“things had kind of turned a little bit” and Intervener

had primary care of the child. Defendant ﬁnished his

program in July 2011 and the couple returned to

Michigan that summer. Plaintiff “had no idea” about

the guardianship until she left the home in November

2012.

Plaintiff acknowledged that she began abusing

drugs while living in Arizona. She began with the

prescription drug oxycodone. When the couple moved

back to Michigan, defendant started using heroin in

December 2011 and plaintiff started using it in April

2012. Plaintiff began working as a dancer and admit-

ted that she “wasn’t parenting the way that I . . .

should have . . . I wasn’t in a good state to be a parent.”

She and defendant slept a lot and spent a lot of time in

their room. Plaintiff deferred to Intervener when it

came to the child’s care. Plaintiff and defendant would

ﬁght when they ran out of money for drugs, which was

nearly weekly. Intervener would take the child into

another room and tell her that defendant “didn’t mean

to act like that.” A number of times Intervener had to

summon the police, but once they got there, Intervener

would tell them that everything was ﬁne, so plaintiff

followed suit. In 2009, plaintiff attempted suicide one

time by taking a number of aspirin: “Because Chadd

had gotten into an argument with me and told me that

I made everybody miserable, nobody wanted me

around, [the child] didn’t need me, [the child] didn’t

want me, and that I was a horrible person and that

everybody hated me and . . . being treated like that on

a daily basis gets to you.”

Plaintiff testiﬁed that there was physical violence in

the home, including pushing, kicking and hair-pulling.

On one occasion defendant was at the top of the stairs

and threw an old television at plaintiff, who was at the

2015] F

ALCONER V

TAMPS

619

bottom of the stairs. There was physical violence

almost daily; Intervener was present for it and was

also a victim. Plaintiff explained that the “littlest

things” would upset defendant and “you never knew

what was going to make him mad.” Plaintiff had been

pushed down the stairs and had her face stomped on.

When plaintiff talked to Intervener about defendant’s

behavior, Intervener’s response most of the time was to

tell plaintiff that she needed to learn to “not make him

so mad and it wouldn’t happen.”

Plaintiff explained the “kidnapping” incident. Plain-

tiff tried to leave defendant in January 2009 and

stayed with her grandparents for about a week. Plain-

tiff obtained an afﬁdavit of parentage, thinking that

she could take the child out of the Intervener’s home.

Plaintiff and her grandmother, Connie Falconer, went

to Intervener’s home, but the child was not there.

Plaintiff and her grandmother waited until Intervener

and defendant left the home and followed them. Plain-

tiff wanted the child to have a family, so she went back

to Intervener’s home shortly thereafter.

Plaintiff left Intervener’s home once and for all in

November 2012. Defendant confronted one of plain-

tiff’s male friends by slashing one of his tires and

running over his leg with a car. Plaintiff went to a

friend’s house and went through drug withdrawal.

When plaintiff’s new boyfriend became abusive in

December 2012, plaintiff went to live with her grand-

parents. It was at that point that plaintiff decided to

focus her efforts on ﬁnding stability. Plaintiff had

recently become a certiﬁed nursing assistant at a

long-term care facility. Plaintiff would ask Intervener

to see the child, but Intervener made it difﬁcult.

Plaintiff’s sisters also testiﬁed as to the abuse and plaintiff’s alien-

ation from her family.

620 313 M

ICH

598 [Dec

Intervener did not allow plaintiff to see the child again

until February 2013. Plaintiff applied for termination

of the guardianship in April 2013. Intervener contacted

plaintiff and told her that if she dropped the petition to

terminate the guardianship, then plaintiff would be

able to see the child at certain times, including unsu-

pervised visits. Plaintiff was tempted to drop the

petition, but did not.

Plaintiff acknowledged that the child had some

negative emotions at ﬁrst and initially refused to refer

to plaintiff as “mom.” Plaintiff also acknowledged that

the child shared a very close bond with both Intervener

and AW, whom the child referred to as her sister.

Plaintiff was not opposed to the child seeing Inter-

vener: “I don’t think that she shouldn’t be allowed any

contact, but as long as Donna can show that she is not

going to be harmful to [the child’s] emotional wellbe-

ing . . . and if she will be in support—actual support of

[the child] and my relationship.” Plaintiff further

stated that she would be comfortable with Intervener

having grandparenting time when she could “see from

Donna that she’s trying and that she’s not—not trying

to turn [the child] against me in any way, shape, or

form.”

Plaintiff testiﬁed that the child had a medical ap-

pointment that she wanted to attend. In the waiting

room, Intervener turned to plaintiff and said that she

did not need to come back to the room and was not

wanted there. Intervener told plaintiff to wait in the

waiting room. Plaintiff also testiﬁed to an incident in

which Intervener gave her misinformation about a

party that the child wanted to attend. Intervener also

interfered with plaintiff’s attempts to meet with the

child’s teacher, again telling plaintiff that she was not

allowed in the school and was not wanted there.

2015] F

ALCONER V

TAMPS

621

Although plaintiff initially vehemently denied hav-

ing recent contact with defendant, she later admitted

to seeing him on a number of occasions since February

2013. Plaintiff allowed the child to talk to defendant on

the phone and allowed her to see defendant after he

hurt his head. Plaintiff admitted to staying overnight

at defendant’s on occasion. They were having sexual

relations throughout the course of the case. But plain-

tiff still denied being in a relationship with defendant:

“I was stupid and I am very ashamed for letting him

get into my head. He absolutely made me believe that

I needed him on my side and I was—I needed to do

anything and everything possible to get [the child] out

of a bad situation.”

Plaintiff called Alaura Haueter as a witness.

Haueter testiﬁed that defendant was her ex-boyfriend

and father of her child, A, born in December 2013.

Haueter began her relationship with defendant in

October 2012 and moved in with defendant, Inter-

vener, and AW in November or December 2012, just

one month after plaintiff left the home. Haueter testi-

ﬁed that there was domestic violence perpetrated by

defendant against Haueter and Intervener. The abuse

would take place as regularly as every other week and

included “[p]unching, kicking, biting, pulling hair, any-

thing he possibly could.” Within two weeks of A coming

home from the hospital, defendant gave Intervener a

black eye. Intervener minimized defendant’s behavior

and would ask Haueter, “ ‘What did you do this time?’ ”

The child was also present for some of the outbursts.

Intervener would tell the child that defendant “was

sick and that it was going to be okay and that he was

going to ﬁx himself . . . .” The child would cry and run

and hide. Haueter testiﬁed that defendant kept

Haueter from her family: “I never had a phone, I never

had a way out. He had sold my car. He had never let me

622 313 M

ICH

598 [Dec

talk to my family.” Haueter tried leaving defendant on

two separate occasions by having her sister come get

her. Defendant convinced her to come back by promis-

ing to get counseling.

Haueter took advantage of the fact that the rest of

the household was at court on January 13, 2014, to

make her escape. Haueter called her sister and father

to come and get her. Intervener came home while she

was packing and told Haueter, “ ‘You’re not going

anywhere’ ” and asked, “ ‘Why are you doing this to our

family?’ ” Intervener would not move out of Haueter’s

way, so Haueter ripped the shades off of the window

and banged on the window to get her sister’s and

father’s attention. Police ofﬁcers arrived on the scene.

Intervener proclaimed that she had done nothing

wrong and that Haueter had not been held against her

will.

Haueter was present during the home-invasion in-

cident when defendant went to confront the man whom

he believed stole marijuana and lamps from him. AW

believed she knew who had taken the marijuana and

lamps. Intervener, defendant, Haueter, and the child

drove to where AW was. It was Intervener’s idea that

the child accompany the family to confront this indi-

vidual. AW was trying to convince the individual to

return her brother’s items when defendant became

upset and chased the individual into the house. Defen-

dant knocked on the door and knocked on a window so

hard that his hand went through it. The child was

sitting on Haueter’s lap inside the family’s van. The

child was upset because she thought defendant was

going to die since he cut his arm. An ambulance was

called and police questioned defendant at the hospital.

Haueter testiﬁed that the child was present when

Intervener and defendant discussed plaintiff. They

2015] F

ALCONER V

TAMPS

623

described plaintiff to the child as “[s]omeone that she

never really knew.” They said that plaintiff “was a

druggie and that she would never change because she

has mental issues and that she doesn’t know [the child]

and she doesn’t have the right to know [the child].”

Fifteen-year-old AW described the child as her little

sister and favorite person in the world. AW did not

observe any domestic violence in Intervener’s home. If

there was yelling, she, Intervener, and the child would

leave. AW observed verbal ﬁghts between defendant

and Haueter, but not as frequently as when defendant

and plaintiff used to ﬁght. AW saw defendant push

past Haueter once when Haueter refused to leave him

alone. AW never saw Intervener or defendant try and

keep plaintiff from leaving the home.

The day Haueter left, AW was home sick from school

with the ﬂu. AW called her mom, who arrived as

Haueter was packing her things. AW denied that

Intervener did anything to keep Haueter from leaving,

though she acknowledged that Haueter pulled the

shade off of the window. AW denied that the police were

involved. AW and Intervener now lived in a different

house from defendant. AW denied that the move was

prompted by anything other than wanting more space

and because defendant was older. She denied that the

child was afraid of defendant. AW never heard any

negative comments about plaintiff.

In the middle of the proceedings, plaintiff ﬁled a

motion to modify temporary custody after it was re-

vealed that the child placed calls to plaintiff and others

in an attempt to recant what she previously told her

therapist—that she had witnessed defendant’s domes-

tic abuse. AW was there when the child called plaintiff

after being confronted about statements she made to

Pancost. Intervener explained that defendant had

624 313 M

ICH

598 [Dec

been at the house and returned a few minutes later

after speaking with plaintiff on the phone. Apparently

plaintiff let defendant know that the child had revealed

that there was domestic abuse in the home to her

therapist. Defendant returned to the home to see if it

was true. Defendant was upset when he questioned the

child about it. Intervener asked AW to take the child to

her room. Intervener told defendant that the child did

not reveal any abuse. Instead, plaintiff “was continuing

to push his buttons, and that he needed to calm down

and to think about the situation, and that was about it,

and then he left.” Intervener did not realize that the

child had called plaintiff. The circuit court later ordered

that defendant have no contact with the child pending

resolution of the case. It declined plaintiff’s motion to

change temporary custody, even as the GAL noted:

“This child is being told things, and this—this case is

being discussed with her. She is being put in the middle

of this. She is being pitted against her mother by calling

her. This is harming this child.”

On June 6, 2014, the matter was adjourned because

the child’s half-sister, A, had become ill and was in the

hospital. The circuit court ordered that plaintiff’s sum-

mer parenting time be accelerated and ordered that

plaintiff could pick up the child from school at the end of

the day to begin parenting time or, alternatively, if the

child was with her sibling at the hospital, plaintiff was

to begin summer parenting time at noon the next day.

Intervener picked up the child from school that day.

Staff informed her that plaintiff had called and said she

was bringing paperwork that would allow her to take

the child home. Intervener left before plaintiff arrived,

explaining that “I didn’t have time to worry about it”

in light of the fact that she was on her way to the

hospital in Grand Rapids to see A. Because the child

was not allowed to have contact with defendant, Inter-

2015] F

ALCONER V

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625

vener dropped the child off at her friend’s home.

Plaintiff went to the hospital, looking for the child but

Intervener told plaintiff that the child was not with her

and that she had no way of contacting the child.

Intervener did not know the address for her friend,

whom she had known for 15 years. Intervener did not

provide the phone number because “I wasn’t asked for

it.” Intervener denied knowing about the court order,

but admitted, “She [plaintiff] tried to hand me a piece

of paper when she ﬁrst got there, but I was already

walking out.” Intervener admitted she had spoken

with her own attorney an hour before seeing plaintiff

at the hospital.

Intervener testiﬁed that the child calls her “Mimi”

and never referred to her as “grandma.” Intervener

denied doing anything to negatively impact the rela-

tionship between plaintiff and the child, stating, “The

mother has done that all by herself.”

Intervener testiﬁed to the number of times plaintiff

was absent from the child’s life, including when she

was in the hospital for a week when the child was six

months old after attempting suicide. Plaintiff left for

Arizona on two separate occasions. Intervener had

ﬂown plaintiff and defendant home for Christmas and

Intervener expected plaintiff would stay, but she de-

cided to go back with defendant. While Intervener

believed plaintiff abandoned the child, she did not

believe defendant had abandoned the child.

Intervener denied ever trying to keep plaintiff or

Haueter from leaving her home. In fact, she “wanted

them out, both of the girls” after she “saw what they

had become and what they were doing.” Intervener

claimed that she was actually helping Haueter carry

her things out to the car, but also acknowledged that

the police were there. Intervener denied that there was

626 313 M

ICH

598 [Dec

any domestic violence between defendant and plaintiff.

“There was yelling, absolutely, throughout the course

of their relationship. But I’m not sure of a relationship

that doesn’t have yelling. But I never saw any physical

violence.” Intervener denied there was ever any domes-

tic violence against her. “In the past, when my son was

14 or 15, he got out of hand with me and I called the

police and had him arrested. Has he raised his voice at

me? Yes, he has. Do I put up with it? No.” Intervener

always makes sure AW and the child are away from the

house when defendant is upset. Intervener attributed

her black eye in January 2013 to a fall on the ice. She

denied that they had to move because of an incident at

AW’s school with defendant. She explained that defen-

dant arrived at the school upset, though she could not

remember why—“[t]hat’s how trivial it was.” Inter-

vener did not see any reason why the child would be

afraid of defendant.

Regarding the home-invasion incident, Intervener

testiﬁed that defendant “went to keep someone for the

police, keep someone from leaving the state until the

police got there when someone broke into the shed.”

Intervener was the one that called the police on their

way there. “It was not supposed to be any physical

altercation, whatsoever.” The child was in the car play-

ing for the hour it took police to arrive on the scene. She

did not witness defendant getting hurt. “There were no

safety issues at all.” “I didn’t put [the child] in that

situation. [The child] was just in the vehicle.”

Intervener denied knowing anything about the road-

rage incident or speaking to ofﬁcers. Defendant told

her that someone had cut him off and that his shirt got

caught on the windshield wiper.

This was in stark contrast to the testimony of Battle Creek Police

Ofﬁcer Tonya Wilt. Wilt testiﬁed that she responded to an incident on

2015] F

ALCONER V

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627

Regarding the high-speed chase, Intervener testiﬁed

that plaintiff “ran off” with someone and came back a

week later to take the child. The child was not home.

Plaintiff and Connie Falconer waited until Intervener

and defendant left the house and then “began to chase

us.” The police ordered plaintiff to stop and leave them

alone. Plaintiff moved back in with Intervener a week

later.

Intervener admitted to sitting in the hallway and

the bathroom, but believed prior testimony was “em-

bellished” and that “Ms. Stack was very combative

with me the entire time . . . .” Intervener only lived a

few minutes from where the two-hour visits were

taking place, but decided to stay in order to read the

Bible. She did not think she should have to spend

money on gas to go back and forth.

Intervener testiﬁed that she was cooperative with

CPS and it was the CPS workers who refused to return

her phone calls. She denied changing any appoint-

ments. Intervener still remained uncertain as to what

CPS’s concerns were. Intervener did not believe the

child needed protection from defendant. “I don’t agree

that [defendant] would ever do anything to hurt his

February 9, 2013, involving the malicious destruction of property to a

vehicle. The victim provided a license plate number that led Wilt to

Intervener’s home. Intervener described the incident to Wilt and indi-

cated that the other driver stopped abruptly and almost killed them. She

told Wilt that the other driver spat on defendant and threatened him

with a gun. The windshield wiper was torn off when defendant’s jacket

got caught on it. Intervener led Wilt to believe that she had no way of

contacting defendant. She offered to pay the damages. Wilt testiﬁed that

contact with Intervener was “odd”: “just, you know, her changing of

statements and stuff like that. Changing from Mr. Meyers being her

son . . . to not knowing him, to him being a juvenile, when originally she

had advised that he was in his twenties, I believe. I don’t—didn’t

remember all of that, you know, offhand, but I—like I said, I just

remember them being odd.” Wilt had considered referring Intervener to

the prosecutor for giving false information.

628 313

ICH

598 [Dec

daughter, absolutely not.” Intervener stated, “I never

failed to protect [the child] from anybody.” She added,

“That’s what I’m trying to do now.”

Intervener had followed the order that prohibited

defendant from having contact with the child though

she did not see the child at risk with defendant. Prior

to that, the child saw defendant at least three or four

times a week. Intervener believed defendant was ﬁt to

raise the child, but then clariﬁed that there was a

difference between “ﬁt” and “ready” and defendant was

not ready. This was in contrast to a letter she ﬁled in

the probate court, begging the court for help in ﬁnding

out how defendant could apply for custody of the child

without an attorney.

Intervener testiﬁed that plaintiff was not ready to

take care of the child but did not deny there was the

potential for plaintiff to provide care and custody in the

future. She believed plaintiff still needed to learn “how

to tell the truth, learning right from wrong, learning

not how to be manipulated by other people.” Intervener

added that plaintiff continued to use drugs. Although

Intervener was confronted that there was no proof of

plaintiff’s alleged continued drug use, Intervener tes-

tiﬁed, “No, but I—somebody will—it will get testiﬁed

to. Some person who has proof will testify to it before

the day is over, sir.”

Intervener denied inﬂuencing the child. “[The child]

knows these proceedings are going on. As everybody

has told you, she is an extremely intelligent child.

Have I dwelled on or told her her mother was a bad

mother, absolutely not.” All that Intervener told the

child was that plaintiff believed she was capable of

taking care of the child and “wanted [the child] to come

live with her . . . .” Intervener denied interfering with

plaintiff’s attempt to have a relationship with the

2015] F

ALCONER V

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629

child. Intervener talked to the child about the impor-

tance of having her parents in her life. The child

reported that plaintiff would yell at her. “And you

know, we talk about different kinds of parenting skills

and—and, you know, that possibly—hopefully Kristen

will be getting more help with her parenting skills, you

know. And that as long as she felt safe, that you know,

people have different types of parentings skills.” Inter-

vener testiﬁed that claims that she was attempting to

sabotage the relationship was “just not the truth.” “I

have been there since day one for all of them—all of

them; these two included, and would love nothing

better than to have a peaceful relationship with all of

them.”

The child’s GAL questioned Intervener about any

efforts she might have made to facilitate the child’s

relationship with plaintiff:

How have you fostered a relationship between Ms.

Falconer and [the child]?

A. [The child] and I have had talks about both of her

parents getting sober and that they are continuing to get

the help they need.

Q. That’s how you foster that relationship?

A. By talking to her? Yes, we talked about it all—yes.

Q. I—I . . .

A. And that she’s making an effort . . .

Q. You . . .

A. . . . to try to be a better parent.

Q. Okay.

A. And maybe one day she will be.

When confronted by the GAL’s questioning regarding

why

Intervener would have left the child in plaintiff’s

care when Intervener knew she was using drugs,

630 313 M

ICH

598 [Dec

Intervener lashed out: “I shouldn’t have left her with

her mother? Yes, that was a bad decision to let her

mother try to be a mother. And I’m trying not to make

that decision again and I’m hoping the Court won’t.”

And during another exchange with the GAL about her

willingness to cooperate with plaintiff, Intervener

stated as follows:

You’re not going to cooperate with Ms. Falconer

about anything are you?

A. What are you talking about?

Q. Her simply trying to hand you a piece of paper,

you’re not going to cooperate with that, are you?

A. How about me getting my Father’s Day visit, is she

going to cooperate with me?

Q. And—and . . .

A. Yes, absolutely, I would love to cooperate with Ms.

Falconer if she could quit telling lies long enough to

cooperate.

Intervener denied ever being evicted since caring for

the

child, even in the face of documents to the contrary.

She testiﬁed that she never saw the documents or that

the claims had been “taken care of.” Intervener also

downplayed an arrest for retail fraud at Meijer regard-

ing a prescription. She denied stating on Facebook that

plaintiff “ ‘has some serious mental issues’ ” and was

“ ‘trying to legally remove [the child] from my

home . . . .’ ”

Although Intervener testiﬁed that she had no objec-

tion to having her psychological evaluation released, it

never was.

Defendant testiﬁed that he and plaintiff were “off

and on” during the proceedings and had spent nights

together. They stopped speaking in June 2014. Defen-

dant last used heroin in April with plaintiff; they had

2015] F

ALCONER V

TAMPS

631

used heroin together at least six times in 2014. Defen-

dant admitted that his relationship with plaintiff was

a “cat and mouse game.” He knew she had used heroin

and could use that against her, while she was in a

position to cause trouble with Haueter, with whom he

was seeking to reconcile. Defendant’s last contact with

plaintiff was “when she decided that when my ﬁve-

month-old was just waking up out of surgery that she

needed to come up to her room to cause a commotion

over a court paper.”

Defendant denied any domestic violence with plain-

tiff: “[W]e’ve had our horrible ﬁghts, just like I would

assume any other couple has had. But I’ve never sat

there and just, I mean, Mohammad Ali went crazy on

her or anything like that.” Defendant denied seeing

Intervener coach the child.

Defendant was combative and hostile during cross.

Defendant denied receiving any of the pleadings in the

guardianship proceeding. He supported his mother in

her resistance to terminating the guardianship and did

not see a reason to be involved. Even now, he did not

ﬁght for custody because he was “not ﬁt at this time”

and wanted to allow “someone that I have seen raise

[the child] her entire life continue to raise her until I

am ready or Kristen is ready.” He admitted to a 2009

conviction for interfering with a communication with

Intervener; he claimed that the phone just died. De-

fendant was charged with assault and malicious de-

struction of property for a November 18, 2012 incident

with plaintiff’s friend, but that was “dropped” when no

one appeared at court. Defendant constantly indicated

that he did not remember things, adding “I’m sorry, I

have a lot going on right now if you haven’t noticed.”

Defendant claimed he did not remember the road-rage

incident. He had also “blocked out” the home-invasion

incident.

632 313 M

ICH

598 [Dec

During closing arguments, plaintiff’s attorney noted

that Intervener was attempting to sabotage plaintiff’s

relationship with the child. Counsel added that Inter-

vener “does not have an independent right to grand-

parenting time. . . . [T]here’s a . . . claim in which she

could ﬁle to seek that, but it’s not this. This is a custody

case.” The GAL likewise noted, “I would recommend

that any parenting time with the grandmother be at

the mother’s discretion[.]” The GAL further noted that

the circuit court should not even bother with an in

camera interview of the child, in light of the grooming.

The circuit court nevertheless interviewed the child.

D. THE CIRCUIT COURT’S DECISION

The circuit court ﬁrst commented on the witnesses’

testimony

. It found that plaintiff was not entirely

forthcoming in that plaintiff initially denied seeing

defendant during the proceedings. The circuit court

found that Intervener lied about some things, but

nevertheless accepted some of Intervener’s testimony

as credible. Regarding defendant, the circuit court

noted: “listening to his testimony, or lack thereof, as

well as considering his demeanor . . . , the Court totally

discounts and rejects his entire testimony . . . . [B]ased

upon the testimony and his actions, the Court believes

that in fact there just was no truthfulness in this

testimony and I completely reject it.” The circuit court

admonished plaintiff that further contact with defen-

dant “could prove to be disastrous to you.”

The circuit court cited MCL 722.25(1), Heltzel v

Heltzel, 248 Mich App 1; 638 NW2d 123 (2001), and

Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009),

for the notion that there is a presumption that place-

ment with the natural parent is in the child’s best

interests absent clear and convincing evidence other-

2015] F

ALCONER V

TAMPS

633

wise. It also cited Troxel v Granville, 530 US 57; 120 S

Ct 2054; 147 L Ed 2d 49 (2000), for the notion that a

natural parent has a fundamental liberty interest in

caring for his or her child. The circuit court concluded,

therefore, that Intervener had the burden of showing

by clear and convincing evidence that the child should

be placed with Intervener. It then proceeded to analyze

the best-interest factors in MCL 722.23 of the CCA.

The circuit court found the parties on equal footing

as it related to Factor (a)—the love, affection, and

emotional ties the child had with the parties.

As for Factor (b)—the capacity and disposition of the

parties to give the child love, affection, and guidance,

the circuit court noted that the factor favored plaintiff:

As it relates to guidance, the—Ms. Weddington had

allowed

her son and the Plaintiff in her home to engage in

sexual relations during the time that they were minors

resulting in the birth of this child. She’s allowed them in

both—in her house as well when they were both engaging

in drug use, when she knew that, when she had in essence

two minor children in the household.

Additionally, Ms. Weddington took [the child] [during

the home-invasion incident]. And basically, when she was

questioned extensively . . . she showed a total lack of

judgment as to how this could have been a dangerous

situation for [the child].

As a result—and for other reasons as well—the Court

will ﬁnd that this factor . . . does favor the Plaintiff

Mother.

As to Factor (c)—the capacity and disposition of the

parties

to provide the child with food, clothing, medical

and other remedial care—the circuit court concluded

that Intervener’s insistence on continuing to help de-

fendant with his rent affected her ability to provide for

the child and, as such, there was a “slight” advantage

to plaintiff.

634 313 M

ICH

598 [Dec

As for Factor (d)—the length of time the child has

lived in a stable satisfactory environment and the

desirability of maintaining that environment—the

circuit court concluded that Intervener’s many moves

and the lack of safety caused it to “slightly” favor

plaintiff.

As for Factor (e)—the permanency as a family unit

of the existing and proposed homes—the circuit court

found the factor equal.

As for Factor (f)—the moral ﬁtness of the parties—

the circuit court noted that “neither party has an

exemplary history as it relates to this factor.” It noted,

however, that Intervener’s behavior of pandering to or

condoning defendant’s behavior caused it to “slightly”

favor plaintiff.

As for Factor (g)—the mental and physical health of

the parties—the circuit court found that the factor

“slightly” favored plaintiff.

As for Factor (h)—the home, school, and community

record of the child—the circuit court found that the

factor favored plaintiff.

As for Factor (i)—reasonable preference of the

child—the circuit court noted that it spoke to the

child, who was clearly impacted by the proceedings.

“And sometimes kids of that age come in and are just

simply maybe somewhat apprehensive of the—of the

Judge, or not knowing what’s going to happen, but

you could see that [the child] was impacted by these

proceedings. But she was very pleasant, very thought-

ful, and she did express a preference, and the Court is

considering that preference in this particular matter.”

As for Factor (j)—willingness and ability to facilitate

and encourage a close and continuing relationship—

the circuit court had a lot to say:

2015] F

ALCONER V

TAMPS

635

In this particular matter, the testimony was that Ms.

Weddington, when the Plaintiff went to the doctor’s ofﬁce,

that Ms. Weddington told her to wait in the lobby. Ms.

Weddington told the Plaintiff that—when she was at

school that she was not welcome at school. She told her

she wouldn’t be able to—she wouldn’t be able to get a

report card without a court order, and she—Ms. Wedding-

ton objected to having the maternal grandparents super-

vise any parenting time.

And the Court, likewise, believes as it relates to this

issue of the car chase, there was this car chase in which

she basically characterizes it [as] a car chase, the Court

doesn’t—believes that they were followed, but the Court

doesn’t believe that it was a car chase in this particular

matter. And I think that the way that Ms. Weddington has

approached a number of things in this matter have in fact

impacted the way that [the child] views her mother in this

particular case.

Ms. Haueter testiﬁed that Ms. Weddington and the

Defendant discussed the Plaintiff in front of [the child]

and the—basically the only reason for such conduct would

be to alienate the child from the parent.

Ms. Weddington is likewise—has a—a Facebook post

that she admitted to, stating that [the child] was living

with a stranger and at a stranger’s home and feeling so

sad. In this particular case, at some point, the child would

be able to view that and see that, and that is not conducive

to establishing a parent/child relationship.

Additionally, when Ms. Weddington was questioned by

[the GAL] back on June 18th as to whether she credited

Plaintiff with any improvement, Ms. Weddington would not

acknowledge that she had improved her life in any way. She

wouldn’t even acknowledge the improved housing, the

stable job, and she wouldn’t acknowledge that the Plaintiff

had in fact gained control of her drug issues; notwithstand-

ing the fact that she had had a number [of] negative drug

tests.

These statements and conduct belie any ability on behalf

of Ms. Weddington to establish and continue a parent/child

relationship between [the child] and the Plaintiff mother.

636 313

ICH

598 [Dec

So as a result, the Court will ﬁnd that that factor does

favor the Plaintiff mother.

As for Factor (h)—domestic violence—the circuit

court noted that there was no evidence that plaintiff

had been involved in any domestic violence whereas

“there was voluminous testimony” that defendant had.

The circuit court concluded that the factor favored

plaintiff:

I would state that Ms. Weddington did not commit any

domestic

violence, but she had allowed that to continue in

the home, and notwithstanding the fact that she would

take the child and have the child removed by her own

statements and by the statements of [AW], the testimony

of Ms. Haueter was that [the child] would cry and hide

during these bouts when they occurred in the home.

And ﬁnally, as for Factor (i)—any other factors the

court

deems relevant—the circuit court noted:

In this case, when grandmother was asked about Mr.

Stamps,

she acknowledged that he gets angry, he has a

temper, that there’s a history of bad decisions concern—

and I state based on what I’ve seen, there’s a history of bad

decisions concerning her son—that she’s simply blinded to

his faults, his bad behavior, and his conduct.

And the Court is also concerned about Ms. Wedding-

ton’s total and complete lack of objectivity when it comes

to her son in this matter . . . .

Intervener having failed to meet her burden by clear

and

convincing evidence, the circuit court ruled that

plaintiff would have custody of the child.

The circuit court did not end its inquiry, however. It

indicated that “there are other issues the Court has to

decide. Those other issues concern grandparent visita-

tion.” It addressed the factors in MCL 722.27b(6)(a)

through (j).

2015] F

ALCONER V

TAMPS

637

The circuit court concluded that Factor (a)—the

love, affection, and other emotional ties existing be-

tween the grandparent and the child—favored grand-

parent visitation.

The circuit court also concluded that Factor (b)—the

prior relationship between the grandparent and the

child—also favored visitation.

The circuit court found that Factors (c) and (d)—the

grandparent’s moral, physical, and mental ﬁtness—

weighed against visitation.

The circuit court considered the child’s reasonable

preferences under Factor (e).

As for Factor (f)—the effect on the child of hostility

between the grandparent and the parent—the circuit

court noted:

It does appear that the parties have been able to in fact get

along

somewhat as it relates to the exchanges, et cetera,

and as a result the Court will ﬁnd that in fact, hopefully,

the parties can get past any animosity they have when

this case is concluded, but the Court will ﬁnd that that

factor does favor grandparenting time.

As for Factor (g)—willingness of grandparent to

encourage

a relationship with the parent—the circuit

court concluded that, for the same reasons set forth

under the similar custody factor, Factor (g) did not

favor visitation.

As for Factor (h)—allegations of abuse—the circuit

court did not give the factor weight even though

Intervener had been substantiated for neglect.

As for whether plaintiff’s decision to deny grandpar-

enting time was motivated by something other than

the child’s best interests under Factor (i), the circuit

court concluded that it did not feel that plaintiff acted

638 313 M

ICH

598 [Dec

out of ill will “but the Court does ﬁnd that in fact it

would adversely affect the minor child if this contact

was cut off.”

Finally, the circuit court gave “substantial[]” consid-

eration to Factor (j), which was “any other factor

relevant to the physical and psychological well-being of

the child.” The circuit court noted that the child had

come to depend upon Intervener. The circuit court

concluded that “the grandmother has met the burden

by a preponderance of the evidence that in fact it would

be a—the child would be placed at substantial risk of

harm to the child’s mental, physical, and emotional

health if in fact that contact is cut off.”

On August 11, 2014, the circuit court entered the

ﬁnal order for child custody. The order granted plaintiff

sole physical and legal custody of the child. Defen-

dant’s parenting time remained suspended and Inter-

vener was granted standard parenting time for a

noncustodial parent. The circuit court denied plain-

tiff’s motion for reconsideration. Plaintiff now appeals

as of right.

II. ANALYSIS

STANDARD OF REVIEW

As recently set forth by this Court:

Orders concerning grandparenting time must be af-

ﬁrmed on appeal unless the trial court’s ﬁndings were

against the great weight of the evidence, the court com-

mitted a palpable abuse of discretion, or the court made a

clear legal error on a major issue. Issues of statutory

interpretation are questions of law. Questions of law are

reviewed for clear legal error. Clear legal error occurs

when the trial court errs in its choice, interpretation, or

application of the existing law. [Varran v Granneman (On

2015] F

ALCONER V

TAMPS

639

Remand), 312 Mich App 591, 617; 880 NW2d 242 (quota-

tion marks, citations, and brackets omitted).]

B. PROCEDURAL ERROR

This case is a custody dispute between plaintiff, who

is the child’s biological mother, and Intervener, who is

the child’s paternal grandmother. Intervener had pro-

vided the child with an established custodial environ-

ment for a number of years before the custody hearing.

Generally, a “court shall not modify or amend its

previous judgments or orders or issue a new order so as

to change the established custodial environment of a

child unless there is presented clear and convincing

evidence that it is in the best interest of the child.”

MCL 722.27(1)(c). However, a natural parent has a

fundamental liberty interest in the care and custody of

her child. Hunter, 484 Mich at 257. To that end, MCL

722.25(1) provides:

If a child custody dispute is between the parents,

between

agencies, or between third persons, the best

interests of the child control. If the child custody dispute is

between the parent or parents and an agency or a third

person, 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.

Our Supreme Court has held that the parental

presumption

in MCL 722.25(1) controls over the con-

ﬂicting presumption favoring an established custodial

environment in MCL 722.27(1)(c). Hunter, 484 Mich

263-264; see also Heltzel, 248 Mich App at 26-28. This

is because “the parental presumption has some consti-

tutional provenance, whereas the custodial environ-

ment presumption has none.” Hunter, 484 Mich 272.

The Court explained:

640 313 M

ICH

598 [Dec

The importance of the family and the essential, basic,

and precious right of parents to raise their children are

well established in United States Supreme Court jurispru-

dence. This right is not easily relinquished. The funda-

mental liberty interest of natural parents in the care,

custody, and management of their child does not evaporate

simply because they have not been model parents or have

lost temporary custody of their child to the State. There-

fore, to satisfy constitutional due process standards, the

state must provide the parents with fundamentally fair

procedures. [Id. at 257 (quotation marks and citations

omitted).]

The Court further explained:

Troxel explicitly

requires courts to give some deference to

a parent’s decision to pursue custody because it is inher-

ently central to the parent’s control over his or her child.

By contrast, unlike the parental presumption in MCL

722.25(1), no constitutional protections for third persons

underlie the established custodial environment presump-

tion in MCL 722.27(1)(c). This Court has held that no

constitutional or statutory basis exists for third parties to

have standing to seek child custody solely because they

have an established custodial relationship with the child.

[Id. at 263.]

Absent a statutory requirement to the contrary, the

parental

presumption does not even require a thresh-

old determination of parental ﬁtness. Id. at 268. That

is because “a natural parent’s ﬁtness is an intrinsic

component of a trial court’s evaluation of the best

interest factors in MCL 722.23.” Id. at 270. The best-

interest factors that require a trial court to consider a

parent’s “moral ﬁtness” and “mental and physical

health” “reﬂect the legislative determination that con-

cerns about parental ﬁtness are of paramount impor-

tance in custody determinations.” Id. at 270-271.

Therefore, in a custody dispute between a natural

parent and a third party, it is presumed that the child’s

2015] F

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best interests are served by being placed with the

natural parent unless the third party can demonstrate

otherwise by clear and convincing evidence. A custody

proceeding necessarily involves an inquiry as to the

ﬁtness of the competing parties, utilizing the best-

interest standards set forth in MCL 722.23.

An action for grandparenting time, unlike custody, is

simply a different cause of action altogether. Here, in

granting plaintiff full physical and legal custody, the

circuit court methodically considered the child’s best

interests under MCL 722.23 and concluded that Inter-

vener failed to meet her burden of showing by clear and

convincing evidence that the child’s best interests

would have been served by placing the child in Inter-

vener’s care. Necessarily included in that decision was

the circuit court’s tacit ﬁnding that plaintiff was a ﬁt

parent. Whereas a custody case involves an inquiry as

to parental ﬁtness, a proceeding under the grandpar-

ent visitation statute presumes parental ﬁtness. Ab-

sent a challenge to the circuit court’s custody decision,

it is presumed that plaintiff is a ﬁt parent and “there is

a presumption that ﬁt parents act in the best interests

of their children.” Troxel, 530 US at 68 (opinion by

O’Connor, J.).

The United States Supreme Court has declared that

“the decision whether such an intergenerational rela-

tionship would be beneﬁcial in any speciﬁc case is for

the parent to make in the ﬁrst instance. And, if 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 parent’s own determi-

nation.” Id. at 70. Troxel struck as unconstitutional a

Washington statute that permitted any person to at

any time to seek visits with a child if such visits were

in the child’s best interests because a ﬁt parent’s

642 313 M

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598 [Dec

decision was accorded no deference under the statute.

Id. at 67; id. at 75-77 (Souter, J., concurring in judg-

ment). Similarly, in DeRose v DeRose, 469 Mich 320,

333-334; 666 NW2d 636 (2003), our Michigan Supreme

Court struck as inﬁrm the prior version of MCL

722.27b because “[t]here is no indication that the

statute requires deference of any sort be paid by a trial

court to the decisions ﬁt parents make for their chil-

dren” and “fails to require that a trial court accord

deference to the decisions of ﬁt parents regarding

grandparent visitation . . . .”

Our current grandparenting-time statute now af-

fords such deference. A child’s grandparent may seek a

grandparenting-time order where, as here, “[i]n the

year preceding the commencement of an action under

[MCL 722.27b(3)] for grandparenting time, the grand-

parent provided an established custodial environment

for the child as described in [MCL 722.27], whether or

not the grandparent had custody under a court order.”

MCL 722.27b(1)(f). The grandparenting-time statute

also sets forth the procedure for bringing the issue of

grandparenting time before the court. Where, as here,

the “circuit court has continuing jurisdiction over the

child” because of the custody proceeding, “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.” MCL

722.27b(3)(a) (emphasis added). Additionally, the mo-

tion “shall be accompanied by an afﬁdavit setting forth

facts supporting the requested order.” In turn, the

party having legal custody may ﬁle an opposing afﬁ-

davit. MCL 722.27b(4)(a). “A hearing shall be held by

the court on its own motion or if a party requests a

hearing. At the hearing, parties submitting afﬁdavits

shall be allowed an opportunity to be heard.” Id.

2015] F

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However, because “[a] parent has a fundamental

right, one that is protected by the Due Process Clause of

the Fourteenth Amendment, to make decisions concern-

ing the care, custody, and control of his or her child. 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.” Varran, 312 Mich App at 605 (citations omitted).

Therefore, our Legislature has provided:

In order to give deference to the decisions of ﬁt parents,

is presumed in a proceeding under this subsection 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 com-

plaint 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 presumption,

the court shall dismiss the complaint or deny the motion.

[MCL 722.27b(4)(b).]

Our Court has recently upheld a constitutional chal-

lenge

to this statute, holding that the statute “does not

allow a trial court to grant grandparenting time simply

because it disagrees with the parent’s decision” and

“thus abides by the Troxel deference requirement.”

Varran, 312 Mich App at 612. The Court further held

that, because due process concerns are not at their

highest in cases involving requests for grandparenting

time, “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 decision to deny grandparenting time creates

a substantial risk of harm to the child is sufﬁcient to

protect the fundamental rights of parents.” Id. at 615.

644 313 M

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598 [Dec

Here, the circuit court conﬂated what should have

been two separate and distinct actions—the custody

determination and the grandparenting-time determi-

nation. It ﬁrst concluded that plaintiff was entitled to

custody of the child based on Intervener’s failure to

show by clear and convincing evidence that the child’s

best interests were not served by placing the child with

plaintiff. However, the circuit court sua sponte contin-

ued that “there are other issues the Court has to

decide. Those other issues concern grandparent visita-

tion.” It then plowed ahead and addressed the factors

in MCL 722.27b(6), which provides:

If the court ﬁnds that a grandparent has met the stan-

ard for rebutting the presumption described in [MCL

722.27b(4)], the court shall consider whether it is in the

best interests of the child to enter an order for grandpar-

enting time. If the court ﬁnds by a preponderance of the

evidence that it is in the best interests of the child to enter

a grandparenting time order, the court shall enter an order

providing for reasonable grandparenting time of the child

by the grandparent by general or speciﬁc terms and condi-

tions. In determining the best interests of the child under

this subsection, the court shall consider all of the following:

(a) The love, affection, and other emotional ties existing

between the grandparent and the child.

(b) The length and quality of the prior relationship

between the child and the grandparent, the role per-

formed by the grandparent, and the existing emotional

ties of the child to the grandparent.

(d) The grandparent’s mental and physical health.

(e) The child’s reasonable preference, if the court con-

siders the child to be of sufﬁcient age to express a

preference.

(f) The effect on the child of hostility between the

grandparent and the parent of the child.

2015] F

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645

(g) The willingness of the grandparent, except in the

case of abuse or neglect, to encourage a close relationship

between the child and the parent or parents of the child.

(h) Any history of physical, emotional, or sexual abuse

or neglect of any child by the grandparent.

(i) Whether the parent’s decision to deny, or lack of an

offer of, grandparenting time is related to the child’s

well-being or is for some other unrelated reason.

(j) Any other factor relevant to the physical and psy-

chological well-being of the child. [Emphasis added.]

While the circuit court carefully considered the

best-interest

factors under the grandparenting-

visitation statute, MCL 722.27b(6), separately from its

previous best-interests determination on custody, MCL

722.23, it nevertheless committed error by even con-

sidering the issue of grandparent visitation. Impor-

tantly, plaintiff received custody of the child just mo-

ments before the circuit court’s decision on

grandparenting time and, therefore, plaintiff had not

denied Intervener grandparenting time. See MCL

722.27b(4). The circuit court, in rendering an opinion

on grandparent visitation absent a request to do so,

effectively jumped the gun and presumed that plaintiff

would unreasonably deny Intervener grandparenting

time. But plaintiff testiﬁed that she was amenable to

visitation as long as Intervener did nothing to sabotage

plaintiff’s relationship with the child.

Additionally, “[b]ecause a grandparenting-time or-

der overrides a parent’s legal decision to deny grand-

parenting time, a grandparenting-time order inter-

feres with a parent’s fundamental right to make

decisions concerning the care, custody, and control of

his or her child.” Varran, 312 Mich App at 605-606. As

previously stated, the primary issue in a custody

proceeding is markedly different from the primary

646 313 M

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598 [Dec

issue in a grandparent visitation proceeding. In the

former, the trial court must determine the relative

ﬁtness of the parties and the child’s best interests. In

the latter, the parent’s ﬁtness is presumed and it is

incumbent on the grandparent to show by a prepon-

derance 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. The circuit court, by granting Intervener

grandparenting time absent a request to do so, de-

prived plaintiff of the opportunity to argue that Inter-

vener had failed to rebut the presumption that plain-

tiff’s decision did not create a substantial risk of harm.

In fact, the circuit court failed to indicate that it was

even taking the presumption into consideration. Plain-

tiff was also denied the opportunity to address the

best-interest factors set forth in the statute. “[T]he Due

Process Clause does not permit a State to infringe on

the fundamental right of parents to make child rearing

decisions simply because a state judge believes a

‘better’ decision could be made.” Troxel, 530 US at

72-73 (opinion by O’Connor, J.).

Also of critical importance was the fact that the

custody proceeding was not conducted in such a way as

to elicit whether the child would suffer mental, physi-

cal, or emotional harm if grandparent visitation was

denied. Instead, the focus was on the child’s physical

placement. True, there was testimony that the child,

who had lived with Intervener her entire life, was

strongly bonded to Intervener and that a total denial of

contact with Intervener would be potentially harmful.

But the evidence also clearly demonstrated that the

child’s transition from Intervener’s home to plaintiff’s

home was made unnecessarily difﬁcult as a result of

Intervener’s behavior. Thus, even assuming that Inter-

vener could successfully rebut the presumption, the

2015] F

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647

record would need to be developed to determine just

exactly how grandparent visitation (or lack thereof)

would impact the child. By the same token, assuming

that continued visits would be permissible after such

an inquiry, the parties should at least have some input

into exactly what “reasonable grandparenting time”

should be. MCL 722.27b(6).

Contrary to the circuit court’s approach, a request

for grandparenting time is not automatically included

in a third-party request for custody. We, therefore,

vacate that portion of the circuit court’s order that

granted Intervener grandparenting time where the

issue of grandparent visitation was not properly before

the circuit court.

While this would generally end our inquiry, consid-

ering the numerous errors below, we make additional

observations in the event Intervener brings a proper

motion before the circuit court.

C. INTERVENER’S FAILURE TO OVERCOME THE PRESUMPTION

Assuming that the matter was properly before it, the

circuit

court nevertheless erred by permitting grand-

parenting time where Intervener failed to overcome

the presumption that plaintiff’s “decision” to deny

grandparenting time did not create a substantial risk

of harm to the child’s physical, mental, or emotional

well-being.

Because grandparenting time was not an issue at

the custody hearing, the presumption was never dis-

cussed. While it may be possible that Intervener could

prove that failure to allow visits would create a risk of

harm to the child at some future proceeding, the

record, in its present form, does not support the circuit

court’s actions. The record reveals that although there

is support for the child having continued contact with

648 313 M

ICH

598 [Dec

Intervener, with whom she had lived her entire life,

there is also evidence that Intervener’s continued in-

volvement in the child’s life was potentially detrimen-

tal to the child’s transition to plaintiff’s home and,

therefore, the child’s overall well-being.

Intervener’s disapproval of plaintiff exercising her

parental rights was obvious, even as far back as the

probate proceeding. Intervener’s ﬁrst two annual court

reports revealed that the child and plaintiff loved one

another and saw each other frequently. It was only

after plaintiff moved to terminate the guardianship

and a court-structured plan was in place that Inter-

vener suddenly changed the tone of her annual report:

“[The child] loves being with her dad! She grows more

fond every day. She is completely not

interested/reluctant to see her mother. She cries every

time!” Intervener reported that while “[m]other at-

tends 2 hour meeting/visit once a week with [the child],

[the child] does NOT enjoy, is very sad + disheartened

by each visit. [The child] should not be forced to have a

relationship with her mother until ready! [The child]

should continue counseling + perhaps Miss Falconer

could begin attending. [The child] has been abandoned

by her mother 5 times + she is reluctant and afraid.”

Intervener requested that the guardianship continue

because “the father would like to ﬁle for full custody

but does not yet have funds to hire attorney.” By all

accounts except for her own, Intervener made visits as

difﬁcult as possible, objecting to DHHS’s designee for

supervised visits and canceling or rescheduling ap-

pointments. She would sit outside the visitation room

or camp out in the bathroom down the hall. Even when

advised that her actions were interfering with the

child’s visits, Intervener refused to comply with re-

quests that she leave the area and only left after

security guards got involved.

2015] F

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649

Intervener’s behavior was such that Candace Stack

noted:

[The child’s] emotional well-being is being jeopardized

living with Donna Weddington. Ms. Weddington has

thwarted any and all efforts of reuniﬁcation between the

child and her mother. It is believed that Ms. Weddington is

feeding negative thoughts to [the child] about her mother,

Kristen Falconer, instead of being supportive of the rela-

tionship. It is a travesty that this reuniﬁcation period has

not been more successful, but it is this worker’s opinion

this is solely due to Ms. Weddington’s attitudes and

actions. This worker does not anticipate that Ms. Wed-

dington will ever support the reuniﬁcation of [the child]

and her mother.

Similarly, the child’s GAL in the probate proceeding

noted

in a report:

It is this writer’s opinion that Donna Weddington is so

desperately afraid of losing custody of [the child] that she

grasps at any straw in the attempt to prevent termination

of the guardianship. It is further my belief that Donna

Weddington continues to attempt to undermine this pro-

cess by coaching the minor.

The lack of cooperation continued (and actually got

worse)

once CPS opened a case against Intervener and

defendant in January 2013. The case was originally

opened due to defendant’s criminality and domestic

violence, as well as Intervener’s failure to protect the

child. Workers were concerned that Intervener took

the child with her when she and defendant went to

confront one of defendant’s “friends” over some stolen

items. Defendant was badly injured during the inci-

dent when he broke through a glass window. The child

was present and was upset. Intervener failed to see

that such behavior placed the child at risk. There was

also evidence that Intervener allowed the child to be

exposed to defendant’s domestic violence. Intervener

650 313 M

ICH

598 [Dec

excused defendant’s behavior. Intervener’s “enabling”

behavior caused the GAL in the circuit court proceed-

ing to note:

Unfortunately, Ms. Weddington—she loves her son,

obviously, and she’s going to protect him, and she’s been

there for him. But she’s been there for him too much. She

needs to stop protecting him and lying for him. And

hopefully, she will ﬁnd a way to do that, but she is

enabling him, and it’s a concern of mine.

If this child were to continue to be placed in the custody

of Ms. Weddington, I, as the Guardian Ad Litem would

ﬁnd it necessary to ﬁle a neglect petition myself. I—I feel

that strongly about it.

At the time of the custody trial, Intervener ex-

pressed

confusion as to why the workers were con-

cerned for the child. Intervener did not believe the

child needed protection from defendant. “I don’t agree

that [defendant] would ever do anything to hurt his

daughter, absolutely not.” She added, “I never failed to

protect [the child] from anybody,” and “[t]hat’s what

I’m trying to do now,” implying that the child needed

protection from plaintiff in spite of the probate court’s

order that the guardianship be terminated and the

child be returned to plaintiff’s care.

The child’s therapist, Sheri Pancost, opined that the

child was capable of making a healthy adjustment to

living with plaintiff. The child revealed that she was

afraid that plaintiff would “leave [her] again.” Pancost

indicated that this fear stemmed mostly from lack of

interaction with the great-grandparents up to that

point, but also from the “car chase.” The child, who was

an infant at the time of the alleged chase, could not

have possibly remembered the incident. Pancost deﬁ-

nitely believed that if someone was saying negative

things about plaintiff, that would be a problem for the

2015] F

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651

child’s adjustment. Pancost noted that the child “has a

strong bond with [Intervener]. She feels really close to

her and comfortable with her.” Pancost believed it

would be traumatic for the child to lose all contact with

Intervener, who was the stable force in her life, but “if

she had visitations or something like that still, it might

lessen that impact . . . .” Pancost’s testimony falls far

short of opining that plaintiff’s “decision” to deny

grandparenting time

created a substantial risk of

harm

to the child’s physical, mental, or emotional

well-being.

Dr. Randall Haugen testiﬁed that the child had

clearly been groomed, either intentionally or uninten-

tionally. Haugen noted that the child’s interpretation

of events “seemed to be what she felt that grandma

perceived also.” Haugen warned that if the negative

feelings continued, it would impact the child’s function.

He testiﬁed that “[c]hildren in these situations over a

long period of time are really prone to develop emotion-

ally behavioral difﬁculties,” and negative statements

create “a lot of anxiety and apprehensiveness just

about her basic sense of stability, who she is, where

she’s going to be in the future.” Haugen noted that the

child perceived Intervener as “her psychological parent

at this time,” who met her needs but that the child had

a more conﬂicted relationship with plaintiff because

she perceived plaintiff as having abandoned her and as

someone who “has a lot of problems and is really bad.”

The child told Haugen that she did not believe that

plaintiff’s love for her was true love; she believed that

the love she received at “home” was “real” love. The

child said, “ ‘[M]ommy is pretending.’ ” Haugen opined

that Intervener’s statements to the child that plaintiff

Again, because grandparent visitation was not an issue at the

custody trial, there was no decision to deny parenting time.

652 313 M

ICH

598 [Dec

was the child’s biological mom but not her real mom

were “undermining.” Again, Haugen fell far short of

opining that plaintiff’s “decision” to deny grandparent-

ing time created a substantial risk of harm to the

child’s physical, mental, or emotional well-being.

It is clear beyond the shadow of a doubt that the

child is well bonded to Intervener and has looked to her

for care for many years. However, it is just as clear that

the lower courts have ordered that plaintiff receive

custody of the child, having now adequately reformed

her life so that she is a ﬁt parent. Given the presump-

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, it was

incumbent upon Intervener to show by a preponder-

ance of the evidence that plaintiff made a decision that

created a substantial risk of harm to the child’s men-

tal, physical, or emotional health. Instead of receiving

evidence on this issue, the circuit court appears to have

trumped plaintiff’s discretion as a ﬁt parent. Again,

“the Due Process Clause does not permit a State to

infringe on the fundamental right of parents to make

child rearing decisions simply because a state judge

believes a ‘better’ decision could be made.” Troxel, 530

US at 72-73 (opinion by O’Connor, J.).

Plaintiff points to this Court’s decision in Hollis v

Miller, unpublished opinion per curiam of the Court of

Appeals, entered December 6, 2012 (Docket No.

306090). While not precedentially binding, MCR

7.215(C)(1), we agree with the Court’s observation:

Plaintiff’s entire argument was that a child needs a

loving

grandparent and some access to the maternal side

of the family. However, if that were sufﬁcient to overcome

the presumption in favor of the [parent’s] decision, it is

hard to imagine a case when the presumption would not

be overcome. This would not be consistent with the Leg-

2015] F

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653

islature’s decision to set up a presumption that denial of

grandparenting time by a ﬁt parent does not create a

substantial risk of harm. A trial court may not merely

conclude that “grandparenting is good, therefore it should

occur.” [Hollis, unpub op at 4, quoting Keenan v Dawson,

275 Mich App 671, 682; 739 NW2d 681 (2007).]

D. THE AMOUNT OF GRANDPARENTING TIME ORDERED

WAS EXCESSIVE

MCL 722.27b(6) provides, “If the court ﬁnds by a

preponderance

of the evidence that it is in the best

interests of the child to enter a grandparenting time

order, the court shall enter an order providing for

reasonable grandparenting time of the child by the

grandparent by general or speciﬁc terms and condi-

tions.” (Emphasis added.) Once again, because grand-

parenting time was not an issue at the custody hear-

ing, the issue of what was “reasonable” under MCL

722.27b(6) was never discussed at the custody hearing.

The record reveals that although there is support for

the child having continued contact with Intervener,

with whom she had lived her entire life, there is also

evidence that Intervener’s continued involvement in

the child’s life was potentially detrimental to the

child’s transition to plaintiff’s home and, therefore, the

child’s overall well-being.

We decline plaintiff’s invitation to declare that only

“occasional, temporary” visitation is contemplated un-

der the grandparenting-time statute. Where, as here,

the grandparent’s involvement in a child’s life exceeds

the “traditional” role of a grandparent, one could

envision a visitation schedule that resembles that of a

noncustodial parent. In re Visitation of L-ADW, 38

NE3d 993, 1000 (Ind, 2015), is an example of such a

situation. In that case, the maternal grandparents

played a signiﬁcant role in the child’s upbringing. They

654 313 M

ICH

598 [Dec

lived with the parents and the child on two separate

occasions to allow the parents an opportunity to pursue

their highly demanding careers and then later to help

with the child as the mother was dying of cancer.

Feeling that they were being cut out of the child’s life

after the mother’s death, the maternal grandparents

sought visitation under Indiana’s Grandparent Visita-

tion Act. Id. at 995. The trial court ordered structured

and unsupervised grandparenting time, which included

weekly overnight visits. Id. at 996 n 4. Indiana’s inter-

mediate court determined that, while grandparenting

time was certainly in the child’s best interests (even in

light of the presumption that the father was a ﬁt

parent), the trial court abused its discretion in the

amount of grandparenting time it ordered. Id. at 997.

Indiana’s highest court afﬁrmed the decision to grant

grandparenting time, but disagreed that the amount

awarded was excessive. Id. at 999. The high court noted:

In the present case, the trial court considered the

xtensive role that Grandparents played in L–A’s life

from the time she was born, which far exceeded the

“traditional” role of a grandparent. While living in

Mother and Father’s home, Grandparents largely carried

out parental duties, such as cooking meals, doing L–A’s

laundry, taking L–A to and from school, helping with

homework, reading to L–A before she went to sleep, and

attending L–A’s extracurricular activities. All on a daily

basis. After Mother’s death, Grandparents still never

missed L–A’s extracurricular activities. Now, Grandpar-

ents also serve as one of L–A’s only connections to her

deceased Mother. Even though it is not disputed that

since Mother’s death, Father has spent more time with

L–A and developed a closer relationship with her, Grand-

parents were heavily involved in raising L–A up until

that point. Thus, it is reasonable that the trial court

would view a more involved visitation schedule as appro-

priate for this family. [Id. at 1000.]

2015] F

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655

However, of great signiﬁcance (and totally absent in

the case at bar), is the fact that there was extensive

record evidence in the form of expert testimony sup-

porting the trial court’s decision:

Right before Mother’s passing, Laura Ellsworth, MA,

licensed mental health counselor, had been contacted

by Father to assist the family in developing a parenting

time schedule that would be in the best interest of L–A.

After Mother’s death, Ellsworth continued consulting

with the family to help L–A transition from staying with

Grandparents on a regular basis to being cared for

primarily by Father. Ellsworth conducted multiple inter-

views with Father, Grandparents, and L–A to determine

what was in L–A’s best interest. Some interviews were

conducted individually and some were conducted as

group sessions. Ellsworth concluded that due to L–A’s

close relationship with Grandparents throughout her

life, it would be in her best interest to have regularly

scheduled time with Grandparents. She also found it

“disturbing” that Grandparents had only three over-

nights and one at-home visitation with L–A in the ﬁve

months following Mother’s death. Despite an apparent

agreement that Father would comply with the recom-

mended schedule, the schedule was not followed.

Grandparents also hired a mental health expert, Dr.

Rebecca Luzio, in order to provide a recommendation

regarding what type of visitation was in the best interest

of L–A. Ellsworth and Dr. Luzio frequently consulted with

one another regarding their observations. Ultimately, both

testiﬁed at the visitation hearing that Father was a ﬁt

parent and that grandparent visitation was in L–A’s best

interest. The experts disagreed only on whether it was

necessary for there to be court-ordered visitation. Ells-

worth believed that Father should be allowed to determine

a visitation schedule, while Dr. Luzio was of the opinion

that court-ordered visitation was necessary to ensure that

L–A maintained a meaningful and regular relationship

with Grandparents. [Id. at 995-996.]

656 313

ICH

598 [Dec

While Ellsworth believed that the father should be

allowed to determine a visitation schedule, her recom-

mended schedule nearly mirrored the trial court’s

ultimate schedule. Id. at 995 n 3. This Indiana case is

in no way controlling, but does support the idea that, in

some very unusual circumstances, extensive grandpar-

enting time may be appropriate. Where, as here, the

child has looked to Intervener for her care her entire

life, we do not believe that grandparenting visitation

should necessarily be limited to only occasional visits.

Rather, what is reasonable grandparenting time must

be determined on a case-by-case basis, keeping the

child’s best interests in mind.

However, we agree with plaintiff’s statement that

the “design of MCL 722.27b(4)(b) and MCL 722.27b(6)

is to balance the parent’s fundamental Constitutional

right to manage his or her child against the goal of

eliminating the risk of harm to the child.” The circuit

court made no attempt to balance these competing

interests. Unlike the Indiana case, there was abso-

lutely no testimony in this case regarding what

amount of contact with Intervener, if any, was in the

child’s best interests. As plaintiff aptly notes, the

amount of grandparenting time should have been

whatever amount would have eliminated the risk of

harm to the child. So, while the experts may have

subtly opined that grandparent visitation was in the

child’s best interests given the particular history of

this case, the experts offered no opinion as to the

amount of grandparenting time necessary to eliminate

the risk of harm to the child.

Additionally, as plaintiff appropriately notes, there

is evidence that Intervener failed to follow court-

ordered visitation, which would likely have an effect on

the type of visitation ordered. There were a number of

2015] F

ALCONER V

TAMPS

657

relevant posttrial events that took place that warrant

discussion. On July 14, 2014, plaintiff ﬁled a motion

to show cause, alleging that Intervener failed to

return the child after her week-long visit with Inter-

vener. Attached to plaintiff’s motion were copies of

texts that went back and forth between plaintiff and

Intervener. In those messages, Intervener steadfastly

refused to reveal where the child was and also in-

sisted that because the upcoming weekend was Inter-

vener’s scheduled visitation time, the vacation was

really “seven days plus two,” meaning that Intervener

did not have to return the child on Sunday, but would

return her on Tuesday. Intervener also refused to

have the child call plaintiff unless she wanted and

would not answer the phone when plaintiff tried

calling the child. Plaintiff further argued that, based

on Intervener’s use of the plural “kids” in a Facebook

post, that Intervener was allowing the child to have

contact with defendant. Intervener had also posted

the following message on Facebook: “Thinking about

Megan Reynolds, Michael Khlor [sic], Candace Stack,

Christian Giggy, Kathleen Keeter [sic], Megan Wilder

and a few others. I hope you are having a wonderful

summer so far!!”

A hearing was held on July 28, 2014. The circuit

court

found that plaintiff’s inquiries about the child’s

whereabouts were neither harassing nor unreasonable

and that plaintiff should not have had to guess where

the child was. It concluded that Intervener’s keeping

the child beyond the one-week period was contempt of

court and remedied that by reducing Intervener’s Au-

gust visit by two days. The circuit court found that

Intervener’s Facebook posting naming individuals in-

During the proceedings, these individuals were critical of different

aspects of Intervener’s behavior.

658 313 M

ICH

598 [Dec

volved in this case was passive-aggressive behavior,

but was not a technical violation of its previous order.

The circuit court noted, “I think it’s clear that—and the

Court would simply reiterate that Mr. Stamps is not to

be around the child. And hopefully, in view of the

contempt as it relates to the week, that Ms. Wedding-

ton will not push . . . the limits of that particular

order . . . because the Court will in fact deal with that

much more seriously if the issue of contempt comes

back before the Court.”

On September 26, 2014, plaintiff ﬁled another mo-

tion to show cause. Plaintiff claimed that Alaura

Haueter’s mother, Randie Haueter (Randie) revealed

that Intervener and defendant were in ﬂagrant viola-

tion of the court’s order that defendant not have

contact with the child. In an afﬁdavit, Randie averred

that she had a falling out with her daughter after her

daughter obtained an order preventing defendant from

being at the hospital with A. Randie believed that

defendant should have been allowed to see A. Because

Randie was separated from her husband, Intervener

offered to let Randie stay with her. It was obvious to

Randie that defendant continued to live with Inter-

vener and that he had contact with the child during

Intervener’s visits. Randie also noted that defendant

continued to do drugs. The circuit court granted plain-

tiff’s request that Intervener’s grandparenting time be

suspended until further order of the court.

Intervener ﬁled a pro se response on October 14,

2014, dismissing Randie’s afﬁdavit as an attempt to

get back into Haueter’s good graces so that Randie

could visit her sick grandchild. Intervener denied that

she allowed defendant to have contact with the child

and further denied that defendant lived with her or

was still using drugs.

2015] F

ALCONER V

TAMPS

659

The parties appeared before the circuit court to

argue the motion on October 13, 2014, but the court

concluded that an evidentiary hearing was necessary.

It continued the order suspending grandparent visita-

tion until the conclusion of the evidentiary hearing. It

declined Intervener’s request to have at least super-

vised visits.

The hearing was held on November 7, 2014. Randie

testiﬁed about what she had observed while living

with Intervener. Intervener offered witnesses who

testiﬁed that Randie was not worthy of belief. Inter-

vener testiﬁed as well. She denied ever leaving plain-

tiff a voicemail recording wherein the caller indicates

that “as much as you don’t want him involved in your

life, he’s going to be involved. It’s [the child’s] daddy

and she loves him dearly, as she does her grand-

mother and her aunt and her cousins.” Intervener

denied trying to have contact with the child in spite of

the court order suspending visits. Intervener admit-

ted that she wrote to the child and that AW delivered

the letter and a Halloween basket to the child on the

street outside of the child’s school. Defendant stayed

with Intervener during the week, but she explained

that was so that she could make sure he was comply-

ing with services.

The circuit court noted that Intervener lacked

credibility and that she was evasive. It speciﬁcally

noted that it recognized Intervener’s voice on the

voicemail in spite of her denials. The circuit court was

“miffed” about the denial because it called into ques-

tion Intervener’s overall credibility. The circuit court

concluded:

And the Court does believe that the testimony does

show

in that particular matter that you did allow [the

child] to be around her father, Mr. Stamps. And based

660 313

ICH

598 [Dec

upon the testimony as a whole, the Court is going to ﬁnd

that you did in fact violate the court order. You are in

contempt of court as a result.

* * *

. . . I do believe that she has a substantial relationship

with grandmother and with her Aunt [AW] in this particu-

lar case, and as a result, in deciding the remedy, the Court

doesn’t believe that it is in her best interest that all

contact be suspended or eliminated in this matter.

But what the Court will do, in view of the violation of

this order—and the order is put in place to protect [the

child]—and what happens, if you’re not going to protect

her, this Court will protect her.

What I’m going to do is I am going to order supervised

grandparent time that will occur on alternating weekends

starting November 15, 2014, or alternating Saturdays

from twelve o’clock noon until four o’clock p.m., and

alternating holidays, with Ms. Weddington to receive

Thanksgiving, again, from twelve o’clock noon to four

o’clock p.m.

The circuit court was amenable to adjusting the

grandparenting-time

schedule based on Intervener’s

behavior but, in so doing, the circuit court showed the

folly of its original order granting Intervener such

liberal grandparenting time without ﬁrst considering

expert testimony as to what would be appropriate

under the circumstances. The developments that oc-

curred after the initial order give credence to plaintiff’s

fears.

E. BEST-INTEREST FACTORS

Finally, the circuit court’s decision to award Inter-

vener

grandparent visitation was against the great

weight of the evidence, at least as far as the record

existed at the time of the custody trial.

2015] F

ALCONER V

TAMPS

661

The circuit court considered the best-interest factors

in MCL 722.27b(6).

1. FACTOR (a) THE LOVE, AFFECTION, AND OTHER EMOTIONAL

TIES EXISTING BETWEEN THE GRANDPARENT AND THE CHILD

The circuit court noted, “I’ve already addressed that

as it relates to the custody issue of the Child Custody

Act, and as the Court found that that factor was equal

as to the parties in this particular case, the Court does

ﬁnd that in fact that factor would favor grandparent

visitation at this time.” Plaintiff does not challenge

this ﬁnding.

2. FACTOR (b) THE LENGTH AND QUALITY OF THE PRIOR

RELA

TIONSHIP BETWEEN THE CHILD AND THE GRANDPARENT,

THE ROLE PERFORMED BY THE GRANDPARENT, AND THE EXISTING

EMOTIONAL TIES OF THE CHILD TO THE GRANDPARENT

The circuit court noted that this factor favored

visitation without discussion. Plaintiff complains that

the circuit court failed to consider the fact that the

relationship was not healthy for the child. Absent an

explanation from the circuit court, we agree. When it

analyzed Factor (b) under the CCA—the capacity and

disposition of the parties to give the child love, affec-

tion, and guidance—the circuit court noted:

As it relates to guidance, the—Ms. Weddington had

allowed

her son and the Plaintiff in her home to engage in

sexual relations during the time that they were minors

resulting in the birth of this child. She’s allowed them in

both—in her house as well when they were both engaging

in drug use, when she knew that, when she had in essence

two minor children in the household.

Additionally, Ms. Weddington took [the child] [during

the home-invasion incident]. And basically, when she was

questioned extensively . . . she showed a total lack of

662 313

ICH

598 [Dec

judgment as to how this could have been a dangerous

situation for [the child].

There was signiﬁcant domestic violence in Intervener’s

home perpetrated by defendant, whom Intervener con-

stantly enabled. The child was placed in danger when

Intervener decided to take her along on a confrontation

defendant had with a friend, which is part of the

reason she was substantiated for neglect. There was

evidence that, even when forbidden to do so, Inter-

vener allowed defendant to have contact with the child.

Moreover, the child had clearly been coached. Haugen

testiﬁed that such coaching damaged the child’s emo-

tional well-being.

Additionally, when looking at Factor (d) under the

CCA best interest factors—the length of time the child

has lived in a stable satisfactory environment and the

desirability of maintaining that environment—the cir-

cuit court concluded that Intervener’s many moves and

the lack of safety caused it to “slightly” favor plaintiff.

3. FACTOR (c) THE GRANDPARENT’S MORAL FITNESS AND

ACTOR (d) THE GRANDPARENT’S MENTAL AND PHYSICAL HEALTH

The circuit court found that Factors (c) and (d)

weighed against visitation for the same reason it found

against Intervener in the custody analysis. In its

custody analysis, the circuit court had noted that

“neither party has an exemplary history as it relates to

[moral ﬁtness].” It also noted, however, that Interven-

er’s behavior of pandering to or condoning defendant’s

behavior caused it to “slightly” favor plaintiff. On

appeal, plaintiff complains that the circuit court did

not give sufﬁcient weight to this factor, pointing out

that the circuit court had found that Intervener had

intentionally lied while testifying, lied to police to

prevent defendant from being arrested, excused her

2015] F

ALCONER V

TAMPS

663

son’s bad behavior, and intentionally alienated the

child from plaintiff. Again, absent a more detailed

ﬁnding, we are inclined to believe that the circuit court

failed to give this particular factor proper weight.

4. FACTOR (e) THE CHILD’S REASONABLE PREFERENCE, IF THE

COURT

CONSIDERS THE CHILD TO BE OF SUFFICIENT AGE

TO EXPRESS A PREFERENCE

The circuit court considered the child’s reasonable

preferences. As the plaintiff correctly notes, there was

little value in interviewing the child where the evi-

dence at trial clearly revealed that she had been

coached.

5. FACTOR (f) THE EFFECT ON THE CHILD OF HOSTILITY

BETWEEN

THE GRANDPARENT AND THE PARENT OF THE CHILD

The circuit court noted:

It does appear that the parties have been able to in fact get

along

somewhat as it relates to the exchanges, et cetera,

and as a result the Court will ﬁnd that in fact, hopefully,

the parties can get past any animosity they have when

this case is concluded, but the Court will ﬁnd that that

factor does favor grandparenting time.

In fact, hostility permeated these proceedings. Inter-

vener

tried to prevent plaintiff from attending a doc-

tor’s appointment for the child or visiting the child’s

school. Intervener was twice held in contempt of court

for failing to follow court orders regarding grandpar-

enting time. Intervener made Facebook postings in

which plaintiff was described as mentally ill and a

stranger to the child. Both Pancost and Haugen testi-

ﬁed that the child’s emotional well-being was in peril

when Intervener made negative comments about

plaintiff. The circuit court erred by ﬁnding that the

factor favored grandparenting time.

664 313 M

ICH

598 [Dec

6. FACTOR (g) THE WILLINGNESS OF THE GRANDPARENT, EXCEPT

IN THE CASE OF ABUSE OR NEGLECT, TO ENCOURAGE A CLOSE

RELATIONSHIP BETWEEN THE CHILD AND THE PARENT OR

PARENTS OF THE CHILD

The circuit court concluded that, for the same rea-

sons set forth under the custody Factor (j)—willingness

and ability to facilitate and encourage a close and

continued relationship—the factor did not favor visita-

tion. In analyzing Factor (j), the circuit court had

concluded:

In this particular matter, the testimony was that Ms.

eddington, when the Plaintiff went to the doctor’s ofﬁce,

that Ms. Weddington told her to wait in the lobby. Ms.

Weddington told the Plaintiff that—when she was at

school that she was not welcome at school. She told her

she wouldn’t be able to—she wouldn’t be able to get a

report card without a court order, and she—Ms. Wedding-

ton objected to having the maternal grandparents super-

vise any parenting time.

And the Court, likewise, believes as it relates to this

issue of the car chase, there was this car chase in which

she basically characterizes it [as] a car chase, the Court

doesn’t—believes that they were followed, but the Court

doesn’t believe that it was a car chase in this particular

matter. And I think that the way that Ms. Weddington has

approached a number of things in this matter have in fact

impacted the way that [the child] views her mother in this

particular case.

Ms. Haueter testiﬁed that Ms. Weddington and the

Defendant discussed the Plaintiff in front of [the child]

and the—basically the only reason for such conduct would

be to alienate the child from the parent.

Ms. Weddington is likewise—has a—a Facebook post

that she admitted to, stating that [the child] was living

with a stranger and at a stranger’s home and feeling so

sad. In this particular case, at some point, the child would

be able to view that and see that, and that is not conducive

to establishing a parent/child relationship.

2015] F

ALCONER V

TAMPS

665

Additionally, when Ms. Weddington was questioned by

[the GAL] back on June 18th as to whether she credited

Plaintiff with any improvement, Ms. Weddington would

not acknowledge that she had improved her life in any

way. She wouldn’t even acknowledge the improved hous-

ing, the stable job, and she wouldn’t acknowledge that the

Plaintiff had in fact gained control of her drug issues;

notwithstanding the fact that she had had a number [of]

negative drug tests.

These statements and conduct belie any ability on

behalf of Ms. Weddington to establish and continue a

parent/child relationship between [the child] and the

Plaintiff mother.

So as a result, the Court will ﬁnd that that factor does

favor the Plaintiff mother. [Emphasis added.]

On appeal, plaintiff complains that the circuit court

did

not give sufﬁcient weight to this factor. We are

inclined to agree.

7. FACTOR (h) ANY HISTORY OF PHYSICAL, EMOTIONAL, OR SEXUAL

ABUSE

OR NEGLECT OF ANY CHILD BY THE GRANDPARENT

The circuit court did not give the factor weight even

though Intervener had been substantiated for neglect.

Incredibly, the circuit court noted that it was “mindful

of the CPS investigation in this particular case, and

the Court will consider that, but the Court feels that to

be minimal in this particular matter on that particular

action, so I’m not giving a lot of—of weight in this

particular case.” CPS substantiated Intervener for her

failure to protect the child from defendant’s criminal

and violent behavior. That was perhaps the theme of

the entire custody debate—whether and if Intervener

was capable of protecting the child. It was error for the

court to minimize this factor, especially when it should

have considered that, not only was Intervener substan-

tiated, but she was completely uncooperative.

666 313 M

ICH

598 [Dec

8. FACTOR (i) WHETHER THE PARENT’S DECISION TO DENY, OR

LACK OF AN OFFER OF, GRANDPARENTING TIME IS RELATED

TO THE CHILD’S WELL-BEING OR IS FOR SOME OTHER

UNRELATED REASON

The circuit court concluded that it did not feel that

plaintiff acted out of ill will “but the Court does ﬁnd

that in fact it would adversely affect the minor child if

this contact was cut off.” Again, “the Due Process

Clause does not permit a State to infringe on the

fundamental right of parents to make child rearing

decisions simply because a state judge believes a

‘better’ decision could be made.” Troxel, 530 US at

72-73 (opinion by O’Connor, J.). Plaintiff was deter-

mined to be a ﬁt parent and the circuit court found that

plaintiff’s “decision” to disallow grandparenting time

was not motivated by ill will. The circuit court simply

substituted its judgment for plaintiff’s.

9. FACTOR (j) ANY OTHER FACTOR RELEVANT TO THE PHYSICAL

AND

PSYCHOLOGICAL WELL-BEING OF THE CHILD

Finally, the circuit court noted that the child had

come to depend upon Intervener and, therefore, the

factor favored grandparenting time. Once again, ab-

sent any expert testimony on this direct issue, the

circuit court appears to have given this factor undue

weight.

After weighing all of these factors, the circuit court

concluded that “the grandmother has met the burden

by a preponderance of the evidence that in fact it would

be a—the child would be placed at substantial risk of

harm to the child’s mental, physical, and emotional

health if in fact that contact is cut off.”

We once again note that the issue of grandparenting

visitation was not properly before the court. We also

agree with plaintiff that when taken as a whole, and on

2015] F

ALCONER V

TAMPS

667

this record, the factors “strongly predominate against

any grant of visitation . . . .”

That portion of the circuit court’s order granting

grandparenting visitation is vacated. The custody or-

der is otherwise afﬁrmed. The circuit court is further

directed not to revisit the issue of grandparenting time

unless Intervener brings a proper motion under MCL

722.27b(3). As the prevailing party, plaintiff may tax

costs. MCR 7.219.

ADOLA

, P.J., and F

ORT

OOD

, J., concurred with K. F.

ELLY

, J.

668 313 M

ICH

598 [Dec

ENBRIDGE ENERGY LTD PARTNERSHIP v UPPER

PENINSULA POWER COMPANY

Docket No. 321946. Submitted October 6, 2015, at Lansing. Decided

December 22, 2015, at 9:05 a.m. Leave to appeal sought.

Enbridge Energy Limited Partnership (Enbridge) ﬁled a complaint

with the Public Service Commission (PSC) challenging a settle-

ment agreement involving the PSC staff, respondent Upper Pen-

insula Power Company (UPPC), and other parties not relevant to

the disposition of this case. Enbridge was not a party to the

settlement agreement, nor did it intervene. In the settlement

agreement, the PSC approved UPPC’s 2009 request to increase its

electric rates and to implement a revenue-decoupling mechanism

(RDM) for the test year 2010. In May 2011, UPPC ﬁled an

application to reconcile the 2010 costs associated with the RDM

and to recover a shortfall. The Court of Appeals decided In re

Applications of Detroit Edison Co, 296 Mich App 101 (2012), while

UPPC’s application for reconciliation was pending. In Detroit

Edison, the Court of Appeals recognized that the PSC was without

statutory authority to approve an electric utility’s use of an RDM.

In deciding on UPPC’s application for reconciliation, the PSC

considered Detroit Edison and acknowledged that it could not

approve an RDM for an electric utility, but the PSC noted that

UPPC’s RDM was adopted as a result of a settlement agreement

binding the signatories of the agreement—which included all

parties to the reconciliation. Enbridge was not a party to the

reconciliation. The PSC concluded that Detroit Edison had no effect

on the PSC’s reconciliation decision because the reconciliation

decision reﬂected only the language of an agreement to which all

parties subscribed; it did not represent the PSC’s improper exer-

cise of authority. The PSC granted UPPC’s motion to dismiss

Enbridge’s complaint and the PSC staff’s motion for summary

disposition. The PSC denied Enbridge’s motion for summary

disposition on the grounds that Enbridge failed to state a claim on

which relief could be granted. Enbridge appealed.

The Court of Appeals held:

The PSC exceeded its statutory authority when it approved a

settlement agreement that permitted UPPC to implement an

2015] E

NBRIDGE

NERGY V

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OWER

669

RDM. Detroit Edison made it clear that the PSC was without

authority to approve an electric utility’s use of an RDM. That the

approval of UPPC’s RDM was effected by a settlement agreement

did not make valid an otherwise invalid exercise of authority.

Detroit Edison clearly states that the PSC, whose authority is

deﬁned by statute, has no statutory authority to approve an

electric utility’s use of an RDM. This limitation of the PSC’s

authority applies even when the method by which the RDM is

approved is a settlement agreement.

Reversed and remanded.

Clark Hill PLC (by Robert

A. W. Strong and Sean P.

Gallagher) for Enbridge Energy Limited Partnership.

Miller, Canﬁeld, Paddock and Stone, PLC (Sherri A.

Wellman and Paul M. Collins), for Upper Peninsula

Power Company.

Bill Schuette, Attorney General, Aaron D. Lind-

strom, Solicitor General, Matthew Schneider, Chief

Legal Counsel, B. Eric Restuccia, Deputy Solicitor

General, and Steven D. Hughey and Spencer A. Sattler,

Assistant Attorneys General, for the Public Service

Commission.

Before: B

OONSTRA

, P.J., and S

AAD

and H

OEKSTRA

, JJ.

AAD

, J. Enbridge Energy Limited Partnership (En-

bridge) appeals the order of the Michigan Public Ser-

vice Commission (PSC) that dismissed Enbridge’s com-

plaint, which challenged the PSC’s authority to

approve a settlement agreement that provided for the

use of a revenue decoupling mechanism (RDM). For

the reasons below, we reverse and remand.

I. BACKGROUND

This case raises the issue of whether the PSC

possessed

the authority to approve a settlement agree-

ment between the PSC staff and the Upper Peninsula

670 313 M

ICH

669 [Dec

Power Company (UPPC) that established an RDM for

UPPC for the test year 2010.

In June 2009, UPPC ﬁled an application seeking an

increase in electric rates in excess of $12 million.

UPPC, the PSC staff, and other intervening parties

entered

into a settlement agreement that increased

UPPC’s electric rates and implemented an RDM for

UPPC for the test year 2010. The PSC subsequently

approved the rate increase and the settlement agree-

ment. Enbridge did not seek to intervene in the case.

In May 2011, UPPC ﬁled an application to reconcile

the costs associated with the RDM for 2010 and to

recover a shortfall.

While the application was pend-

ng, this Court decided In re Applications of Detroit

Edison Co, 296 Mich App 101; 817 NW2d 630 (2012).

In that case, the appellants, including the Attorney

General, challenged the PSC’s order that authorized

Detroit Edison, an electric utility, to adopt an RDM.

This Court observed that while MCL 460.1089(6)

authorized the PSC to approve the use of an RDM by

a natural gas utility, the statute contained no similar

provision for an electric utility. Id. at 108-109.

The

etroit Edison Court concluded that “a plain reading

of MCL 460.1097(4) does not empower the PSC to

approve or direct the use of an RDM for electric

providers” and reversed the PSC’s decision to allow

Detroit Edison to adopt an RDM. Id. at 110.

Thereafter, the PSC issued an order in Case No.

U-16568 in which it considered Detroit Edison and

stated:

The PSC docketed this application as Case No. U-15988.

The PSC docketed this application as Case No. U-16568.

This Court noted that although MCL 460.1097(4) mandated re-

search and reporting on the potential use of RDMs by electric utilities,

the statute did not authorize their implementation. Detroit Edison, 296

Mich App at 109.

2015] E

NBRIDGE

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OWER

671

In light of the Court of Appeals’ opinion, the Commis-

sion appreciates that it cannot approve UPPCo’s RDM.

However, this RDM was adopted pursuant to a settlement

agreement, which constitutes a binding contract between

the signatories to that agreement. Those signatories in-

clude all parties to this reconciliation. As such, the RDM

reconciliation must simply comport with the language of

the settlement agreement.

Enbridge ﬁled a petition for rehearing, or in the

alternative,

a formal complaint, regarding the PSC’s

order. The PSC denied the petition for rehearing be-

cause Enbridge was not a party to the proceeding, and

therefore, it lacked standing. The PSC did not address

the ﬁling as a formal complaint.

Enbridge reﬁled its formal complaint

and again

argued

that the PSC lacked the authority to approve

the use of an RDM by an electric utility, thereby

lacking subject-matter jurisdiction to approve the sur-

charges in Case No. U-16568. Enbridge and the PSC

staff moved for summary disposition, and UPPC

moved to dismiss the complaint.

The PSC granted UPPC’s motion to dismiss and the

PSC staff’s motion for summary disposition and denied

Enbridge’s motion for summary disposition. The PSC

found that pursuant to Rule 323 of the rules governing

practice and procedure before the PSC, Enbridge failed

to state a claim on which relief could be granted. The

PSC rejected Enbridge’s assertion that it lacked

subject-matter jurisdiction, noting that it had the

general authority to set rates. In addition, the PSC

relied on Dodge v Detroit Trust Co, 300 Mich 575; 2

NW2d 509 (1942), for the proposition that it had the

authority to approve a settlement agreement that

The instant case began when that complaint was ﬁled, Case No.

U-17077.

672 313 M

ICH

669 [Dec

resolved a disputed legal issue. The PSC noted that at

the time the parties negotiated the settlement agree-

ment, the question of whether statutory law permitted

electric utilities to implement RDMs was unclear. The

PSC distinguished Detroit Edison from the instant

case on the ground that Detroit Edison did not involve

the implementation of an RDM by a settlement agree-

ment, but rather, the creation of an RDM for Detroit

Edison by the PSC itself. The PSC held that under

MCL 460.6 and Dodge, it had the authority to approve

the settlement agreement.

II. STANDARDS OF REVIEW

“The standard of review for PSC orders is narrow

and

well-deﬁned.” Attorney Gen v Pub Serv Comm No

2, 237 Mich App 82, 88; 602 NW2d 225 (1999). Pursu-

ant to MCL 462.25, all rates, fares, charges, classiﬁca-

tion and joint rates, regulations, practices, and ser-

vices prescribed by the PSC are presumed to be lawful

and reasonable. A party aggrieved by an order of the

PSC has the burden of proving by clear and satisfac-

tory evidence that the order is unlawful or unreason-

able. MCL 462.26(8). To establish that a PSC order is

unlawful, a party must show that the PSC failed to

follow a mandatory statute or abused its discretion in

the exercise of its judgment. In re MCI Telecom Com-

plaint, 460 Mich 396, 427; 596 NW2d 164 (1999). An

order is unreasonable if it is “arbitrary, capricious, or

totally unsupported by admissible and admitted evi-

dence.” Associated Truck Lines, Inc v Pub Serv Comm,

377 Mich 259, 279; 140 NW2d 515 (1966). Thus, a ﬁnal

order of the PSC must be authorized by law and be

“supported by competent, material and substantial

evidence on the whole record.” Const 1963, art 6, § 28;

2015] E

NBRIDGE

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OWER

673

see also Attorney Gen v Pub Serv Comm, 165 Mich App

230, 235; 418 NW2d 660 (1987).

A reviewing court “gives due deference to the PSC’s

administrative expertise and is not to substitute its

judgment for that of the PSC.” Pub Serv Comm No 2,

237 Mich App at 88. We give “respectful consideration

to the PSC’s construction of a statute that the PSC is

empowered to execute, and [we] will not overrule that

construction absent cogent reasons.” In re Application

of Consumers Energy Co for Reconciliation of 2009

Costs (On Reconsideration), 307 Mich App 32, 42; 859

NW2d 216 (2014). “If the language of a statute is vague

or obscure, the PSC’s construction serves as an aid to

determining the legislative intent, and will be given

weight if it does not conﬂict with the language of the

statute or the purpose of the Legislature.” Id. But the

PSC’s interpretation of a statute is not binding on us.

Id. “Whether the PSC exceeded the scope of its author-

ity is a question of law that we review de novo.” In re

Complaint of Pelland Against Ameritech Mich, 254

Mich App 675, 682; 658 NW2d 849 (2003).

III. ANALYSIS

On appeal, Enbridge argues that because the PSC is

creation of statute and has only those powers con-

ferred on it by the Legislature, the PSC exceeded its

authority and its subject-matter jurisdiction when it

approved the settlement agreement allowing for the

UPPC’s use of an RDM in Case No. U-16568.

Initially, we note that Enbridge’s argument that the

PSC exceeded its subject-matter jurisdiction when it

approved the settlement agreement containing an

RDM is misplaced. “[This] argument conﬂates subject-

matter jurisdiction with a court’s exercise of its juris-

diction.” Usitalo v Landon, 299 Mich App 222, 230; 829

674 313 M

ICH

669 [Dec

NW2d 359 (2013). “Subject-matter jurisdiction con-

cerns a body’s abstract power to hear a case of the kind

or character of the one pending, and is not dependent

on the particular facts of the case.” Pelland, 254 Mich

App at 682. The PSC has speciﬁc statutory authority to

establish the rates charged by all regulated utilities,

MCL 460.6(1), and therefore, the PSC had jurisdiction

to hear the cases before it.

Instead, the question before us is whether, by ap-

proving the underlying settlement agreement, the PSC

exceeded its statutory authority. “The PSC possesses

only that authority granted it by the Legislature.

Authority must be granted by clear and unmistakable

language. A doubtful power does not exist.” Mich

Electric Coop Ass’n v Pub Serv Comm, 267 Mich App

608, 616; 705 NW2d 709 (2005).

We hold that the PSC erred when it upheld the

settlement agreement in the previous case and dis-

missed Enbridge’s complaint in the instant case. There

is no dispute that the PSC’s authority is limited to

whatever the Legislature dictates. See id. The statute

in question governing RDMs for electric utilities is

MCL 460.1097(4), which provides as follows:

Not later than 1 year after the effective date of this act,

the

commission shall submit a report on the potential rate

impacts on all classes of customers if the electric providers

whose rates are regulated by the commission decouple

rates. The report shall be submitted to the standing

committees of the senate and house of representatives

with primary responsibility for energy and environmental

issues. The commission’s report shall review whether

decoupling would be cost-effective and would reduce the

overall consumption of fossil fuels in this state.

As we have explained in Detroit

Edison, this “provision

mandates research and reporting on how RDMs would

2015] E

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675

operate in connection with providers of electricity, but

does not call for or authorize actual implementation of

an RDM by those utilities.” Detroit Edison, 296 Mich

App at 109 (emphasis altered). As the Detroit Edison

Court noted, this provision for electric utilities is in

stark contrast to MCL 460.1089(6), which expressly

allows the PSC to approve RDMs for gas utilities. Id. at

110; see also French v Mitchell, 377 Mich 364, 384; 140

NW2d 426 (1966) (opinion by B

LACK

, J.) (“[W]hen the

legislature has used certain language in one instance

and different language in another, the indication is

that different results were intended . . . .”). Thus, there

is no question that the PSC did not have the authority

to implement the RDM for UPPC, an electric utility, in

the instant case.

In spite of the clear statutory language, the PSC

approved the settlement agreement and relied on

Dodge, 300 Mich 575, as it does on appeal, for the

proposition that it had the authority to approve a

settlement agreement that resolved a disputed legal

issue. In Dodge, the parties to the litigation involving a

contested will entered into a settlement agreement

that resolved a disputed legal issue. Id. at 592-593.

Some 17 years later, a party to the settlement agree-

ment ﬁled suit seeking to have the agreement set aside

as void because of an intervening change in the law. Id.

at 592-593, 597-598. Our Supreme Court noted that

there was no lawful basis to allow a party to invalidate

a settlement when there was “an honest dispute be-

tween competent legal minds” regarding the status of

the law at the time of the settlement. Id. at 614.

Instead, it ruled that

where a

doubt as to what the law is has been settled by a

compromise, a subsequent judicial decision by the highest

court of the jurisdiction upholding the view adhered to by

676 313

ICH

669 [Dec

one of the parties affords no basis for a suit by him to upset

the compromise. [Id. (emphasis added).]

The PSC’s reliance on Dodge is inapposite for two

primary reasons. First, in the instant case, unlike in

Dodge, there was no intervening change in the law.

MCL 460.1097(4) became effective in 2008 and has not

been altered since. 2008 PA 295. Although Detroit

Edison was issued after the PSC approved the settle-

ment in this case, that fact is not dispositive. Even

without the beneﬁt of our decision in Detroit Edison,

contrary to the PSC’s claim that “it was unclear

whether Act 295 [of 2008] permitted electric RDMs,”

the act’s language is unmistakably clear, and it was not

reasonable to believe that the law was in dispute or

otherwise unclear. While the PSC could approve RDMs

for gas utilities, it was not authorized to do so for

electric utilities. Second, the settlement in Dodge in-

volved private parties, who only themselves were

bound by the agreement. Here, as acknowledged by all

the parties, settlements in the regulatory context carry

the force of law and necessarily bind all consumers in

the affected area, even those who were not parties to

the agreement.

See Indiana

Bell Tel Co, Inc v Ofﬁce of

Utility Consumer Counselor (On Rehearing), 725 NE2d

432, 435 (Ind App, 2000) (“[A] settlement agreement

that must be ﬁled with and approved by a regulatory

agency ‘loses its status as a strictly private contract

and takes on a public interest gloss.’ ”) (citation omit-

ted). As a result, the strong public policy behind the

long-standing doctrine that requires parties to be

bound by their settlement agreements, see Plamondon

Indeed, at oral argument, the PSC admitted that the settlement did

not merely bind the signatories to the agreement, as it claimed in its

order in Case No. U-16568, but rather, the settlement bound thousands

of users in the affected area.

2015] E

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677

v Plamondon, 230 Mich App 54, 56; 583 NW2d 245

(1998), simply is not advanced when such a “settle-

ment” affects countless others who were not parties to

the agreement.

In sum, the PSC exceeded its clear statutory author-

ity when it approved the RDM in Case No. U-16568.

The fact that the approval was accomplished in the

context of a settlement agreement does not transform

the PSC’s ultra vires act into a legal one. See, e.g.,

Timney v Lin, 106 Cal App 4th 1121, 1127-1129; 131

Cal Rptr 2d 387 (2003) (“[E]ven though there is a

strong public policy favoring the settlement of litiga-

tion, this policy does not excuse a contractual clause

that is otherwise illegal or unjust.”). We stress that our

holding is based on the fact that reasonable minds

could not have disputed the extent of the PSC’s author-

ity at the time it approved the settlement agreement.

We reverse the PSC’s dismissal of Enbridge’s com-

plaint in Case No. U-17077 and remand for proceed-

ings consistent with this opinion. We do not retain

jurisdiction.

OONSTRA

, P.J., and H

OEKSTRA

, J., concurred with

AAD

, J.

678 313 M

ICH

669 [Dec

PEOPLE v SARDY

Docket No. 319227. Submitted May 12, 2015, at Detroit. Decided

December 29, 2015, at 9:00 a.m. Part II vacated and case

remanded 500 Mich 887.

Ghassan Salim Sardy was convicted in the Oakland Circuit Court of

child sexually abusive activity (CSAA), MCL 750.145c; using a

computer to commit a crime, MCL 752.796; and two counts of

second-degree criminal sexual conduct (CSC-II), MCL 750.520c,

following a jury trial. The victim was defendant’s daughter. In

searching defendant’s home, police ofﬁcers had found a CD with

nude images of the victim and two videos that had been ﬁlmed

using defendant’s phone. Although the victim was clothed in both

videos, the prosecution characterized the victim’s actions as

constituting masturbation for purposes of the CSAA and

computer-crime charges. The victim also reported instances in

which, while both were clothed, defendant pressed his penis

against her genital area, which formed the basis of the CSC-II

counts. The victim was seven years old when she testiﬁed at the

preliminary examination in the 52-4 District Court. She testiﬁed

without an oath or afﬁrmation. When the victim ﬁrst took the

stand, the prosecutor asked her a few preliminary questions for

the purpose of establishing that she could distinguish truth from

lies. The victim answered appropriately, and the court, William E.

Bolle, J., responded in the afﬁrmative when the prosecutor asked

the court for permission to proceed with questioning her. Defen-

dant did not object to the unsworn testimony that followed,

allowing the victim’s testimony to be fully developed. Defense

counsel extensively cross-examined the victim, asking numerous

questions regarding her ability to tell the truth and distinguish

between fact and fabrication. Midway through cross-

examination, defense counsel asked the victim whether she had

been telling the truth so far, and the victim replied yes. She also

stated that she was telling the truth and would continue to do so,

adding that several people had told her to simply tell the truth

when she testiﬁed. Ultimately, the court bound defendant over for

trial. At trial, the victim took the stand, but when the questioning

turned to defendant’s conduct, the victim indicated that she could

not remember what had occurred. The prosecutor’s efforts to

refresh the victim’s memory by referring to the preliminary

2015] P

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ARDY

679

examination transcript were unsuccessful. The victim was ada-

mant that she could not remember the events giving rise to the

charges, and the trial court, Daniel Patrick O’Brien, J., concluded

that because of her lack of memory, she was unavailable as a

witness. The court instead admitted the victim’s preliminary

examination testimony over defendant’s objection. After defen-

dant was convicted, the trial court sentenced him to concurrent

prison terms of 71 months to 20 years for the CSAA and

computer-crime convictions and 71 months to 15 years for the

CSC-II convictions. Defendant appealed.

The Court of Appeals held:

1. Defendant argued that the court violated his constitutional

right to confront the witnesses against him when it permitted the

victim’s preliminary examination testimony to be admitted as

substantive evidence at trial. Under the Confrontation Clauses,

US Const, Am VI and Const 1963, art 1, § 20, out-of-court

testimonial statements are inadmissible unless the declarant

appears at trial or the defendant had a previous opportunity to

cross-examine the declarant. Because testimony given at a pre-

liminary examination qualiﬁes as testimonial in nature, it was

necessary to establish that the victim was unavailable at trial

and that defendant had an opportunity to cross-examine her at

the preliminary examination.

2. MRE 804(a) addresses hearsay exceptions regarding un-

available witnesses and sets forth situations in which a witness is

properly deemed unavailable. Under MRE 804(a)(3), a witness or

declarant is unavailable when the declarant has a lack of memory

of the subject matter of his or her statement. The trial court and

the parties thoroughly quizzed the victim regarding whether she

truly could not testify on the relevant matters due to lack of

memory, and she steadfastly asserted that lack of memory was

the reason for her inability to testify. The trial court did not

clearly err by ﬁnding the victim unavailable on that ground.

Under MRE 804(a)(2), a declarant is also unavailable as a witness

when the declarant persists in refusing to testify concerning the

subject matter of his or her statement. Had the trial court

determined that the victim was fabricating her claimed lack of

memory and was instead refusing to testify, it was clear from the

record that she would still not have testiﬁed about the relevant

matters even if ordered to do so. Finally, when a child attempts to

testify but because of the child’s youth is unable to do so since he

or she lacks the mental ability to overcome the distress, the child

has a then existing mental inﬁrmity within the meaning of MRE

804(a)(4) and is therefore unavailable as a witness.

680 313

ICH

679 [Dec

3. Defendant argued that his confrontation rights were in-

fringed because the preliminary examination did not provide him

a full and fair opportunity at cross-examination. Speciﬁcally, he

complained that his counsel did not have the opportunity to

examine certain discovery materials before the preliminary ex-

amination, including a thumb drive containing a computer foren-

sic analysis. He also contended that the purpose of cross-

examination at a preliminary examination differs substantially

from the purpose of cross-examination at trial and that the

district court had improperly curtailed cross-examination with

respect to relevant issues of motive and bias. The right of

confrontation only guarantees an opportunity for effective cross-

examination, not cross-examination that is effective to whatever

extent and in whatever way a defendant wishes. While a prelimi-

nary examination is ordinarily a less searching exploration into

the merits of a case than a trial, the Confrontation Clause can be

satisﬁed if a defendant’s cross-examination of the witness at the

preliminary examination was not signiﬁcantly limited in scope or

nature and the witness was actually unavailable at trial. Al-

though the district court found irrelevant a line of questioning

pertaining to the victim’s belief that her mother did not like

defendant (which might have suggested the victim’s bias against

defendant and a motive to lie about the sexual assaults), defen-

dant had ample opportunity during cross-examination in the

preliminary examination to explore this avenue, and at trial the

jurors were read preliminary examination testimony that consti-

tuted more than adequate evidence from which defense counsel

could have formulated and presented an argument predicated on

bias and an ill motive. There was no signiﬁcant limitation with

respect to the scope and nature of defendant’s cross-examination

of the victim. In the context of this case, the purpose of cross-

examination at the preliminary examination was essentially

identical to that at the trial, which was attempting to show that

the sexual-assault and impropriety claims were untrue. Defense

counsel thoroughly cross-examined the victim at the preliminary

examination to explore these areas. The discovery materials were

made available for defendant’s review, but he chose not to take

advantage of that opportunity and did not identify the speciﬁc

discovery materials that would have assisted in cross-examining

the victim or explain how familiarity with the particular discov-

ery materials would have been beneﬁcial. Finally, the thumb

drive pertained mainly to the CSAA and computer-crime charges,

not the CSC-II counts. Because the victim’s testimony was

focused only on the CSC-II charges, the relevance of the thumb

drive to the cross-examination of the victim was minimal.

2015] P

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681

4. Witnesses in judicial proceedings must swear or afﬁrm that

their testimony will be true. MRE 603, MCL 600.1432(1), and

MCL 600.1434 address the requirement that before testifying,

every witness must declare that he or she will testify truthfully by

swearing an oath or giving an afﬁrmation administered in a form

calculated to awaken the witness’s conscience and impress on the

witness’s mind the duty to do so. However, neither MCL 600.1434

nor MRE 603 mandates special words or actions before a witness

may testify; each requires only a simple afﬁrmation or promise to

tell the truth. Therefore, as long as a witness’s promise to testify

truthfully is minimally sufﬁcient, the trial court must allow the

witness’s testimony. A simple promise by a young child to tell the

truth comports with the statute and evidentiary rule. Neverthe-

less, to the extent that the victim’s statement that she would tell

the truth constituted a promise to tell the truth at the prelimi-

nary examination, that statement was not made until cross-

examination was partially concluded and well after the prosecu-

tor had elicited the inculpatory testimony. While the victim

demonstrated her ability to distinguish truth from lies when the

prosecutor questioned her, the district court and the prosecutor

failed to take the extra step of obtaining a promise or afﬁrmation

to tell the truth. Nonetheless, reversal of defendant’s convictions

was not necessary on the basis of this unobjected-to error.

Defendant made no attempt to address on appeal whether the

error was structural; whether the error was waived and thus not

appealable; whether the error was forfeited; whether, if forfeited,

the plain-error test precluded or required reversal; whether the

error was preserved; and, if preserved, whether the harmless-

error test precluded or required reversal. The panel concluded

that a structural-error approach relative to the unsworn testi-

mony was not consistent with caselaw. It also noted that some

Michigan precedent had effectively applied a waiver analysis

when a party failed to object to unsworn testimony and allowed it

to be fully developed. In this case, defendant objected at trial that

the victim’s preliminary examination testimony had not been

given under oath or by afﬁrmation but had not objected when the

testimony was actually procured at the preliminary examination.

Only an objection at the preliminary examination would have

been meaningful, allowing the district court to take corrective

action. Under Michigan’s waiver caselaw, defendant waived the

issue concerning the victim’s unsworn testimony, and reversal

was not warranted. Finally, more recent precedent regarding the

concepts of forfeiture and waiver suggested that simply not

objecting to the unsworn testimony at the preliminary examina-

tion, particularly given the lack of any indication that defendant

682 313

ICH

679 [Dec

was aware of the oversight and knowingly remained quiet,

constituted more of a case of forfeiture than waiver, implicating a

review for plain error affecting defendant’s substantial rights.

5. Defendant argued that the offense of CSAA was unconsti-

tutionally vague as applied to him, undermining both the CSAA

conviction and the related computer-crime conviction that were

based on the videos. Under MCL 750.145c(2), a person who

knowingly allows a child to engage in a child sexually abusive

activity for the purpose of producing any child sexually abusive

material is guilty of a felony. MCL 750.145c(1)(n) deﬁnes “child

sexually abusive activity” as a child’s engaging in a listed sexual

act, which under MCL 750.145c(1)(i) includes masturbation. MCL

750.145c(1)(k) deﬁnes in extensive detail what acts constitute

masturbation. MCL 750.145c(1)(o) deﬁnes “child sexually abusive

material” as any depiction, including a video, of a child engaging

in a listed sexual act. Finally, MCL 752.796(1) prohibits the use of

a computer program, computer, computer system, or computer

network to commit a crime. For purposes of the computer-crime

charge against defendant, the predicate crime was the CSAA

offense. A statute may be challenged as unconstitutionally vague

when (1) it is overbroad and impinges on First Amendment

freedoms, (2) it does not provide fair notice of the conduct

proscribed, or (3) it is so indeﬁnite that it confers unstructured

and unlimited discretion on the trier of fact to determine whether

the law has been violated. A statute provides fair notice when it

gives a person of ordinary intelligence a reasonable opportunity

to know what is prohibited. A statute is sufﬁciently deﬁnite if its

meaning can fairly be ascertained by reference to judicial inter-

pretations, the common law, dictionaries, treatises, or the com-

monly accepted meanings of words. The statutory deﬁnition of

“masturbation” plainly provides speciﬁc criteria for its applica-

tion, was not arbitrarily applied to create criminal conduct, and

gives fair notice of the illegal nature of the proscribed conduct in

the context of a CSAAprosecution. Moreover, a person of ordinary

intelligence would reasonably know that ﬁlming the actions

depicted in the videos would be prohibited without the need to

speculate regarding the meaning of “masturbation” as deﬁned in

the statute. Reversal was not warranted on vagueness grounds.

6. Defendant also argued that there was insufﬁcient evidence

to support his CSAA and computer-crime convictions. Viewing the

direct and circumstantial evidence in a light most favorable to the

prosecution, taking into consideration all reasonable inferences

arising from the evidence, resolving all conﬂicts in the evidence in

favor of the prosecution, and deferring to the jury’s assessment of

2015] P

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ARDY

683

the weight of the evidence and the credibility of the witnesses,

however, a rational juror could have found that the prosecution

proved beyond a reasonable doubt that defendant knowingly

videotaped the victim while she was engaged in a listed sexual

act. That evidence included the videos themselves and the acts

depicted in them, the detective’s characterization of the victim’s

behavior in the videos, defendant’s suggestive questions to the

victim during the videotaping, the victim’s responses to defen-

dant while being ﬁlmed, the inappropriate photographs of the

victim taken by defendant, the testimony of the victim’s mother

about a similar masturbatory act, and expert testimony about

normal sexual behavior by children. That evidence sufﬁciently

supported both the CSAA and computer-crime convictions.

7. Defendant argued that the trial court erred by permitting

the prosecution’s rebuttal expert witness to testify about hearsay

when she alluded to statements made by the victim during her

forensic interview and mentioned acts of fellatio and sexual

contact unrelated to the charged CSC-II counts for which defen-

dant was convicted. The statements, however, were not offered to

prove that defendant engaged in those acts with the victim.

Rather, the ﬁrst statement was offered as part of an explanation

and discussion of source-monitoring questions posed to the vic-

tim. The second statement was offered to clarify what incident

the expert was referring to in regard to statements the victim

made to the forensic interviewer, all in the context of broader

questioning concerning forensic interviewing procedures.

8. Defendant also argued that the trial court erred by permit-

ting the prosecution’s rebuttal witness to testify beyond the scope

of defendant’s case on matters concerning typical patterns of

behavior relative to sexually abused children. Admission of rebut-

tal evidence is within the trial court’s sound discretion. The trial

court must evaluate the overall impression that might have been

created by the defense proofs. Rebuttal evidence is admissible to

contradict, repel, explain, or disprove evidence produced by the

other party. The test for whether rebuttal evidence was properly

admitted is not whether the evidence could have been offered in

the prosecution’s case in chief, but whether the evidence was

properly responsive to evidence introduced or a theory developed

by the defendant. In this case, the prosecutor asked the rebuttal

witness only one question about delayed disclosure of sexual

abuse by children and made no attempt through further ques-

tioning to connect the issue to defendant’s case. Any error was

accordingly harmless. With regard to the dynamics and charac-

teristics of child sexual abuse, the witness’s testimony was

684 313

ICH

679 [Dec

responsive and was properly admitted. She testiﬁed that it was

consistent and not unusual for child victims of sexual abuse to

appear unafraid of the abuser, to have an apparently close and

loving relationship with the perpetrator, to forget at some point

what had occurred to them, and to believe that they had already

told someone about the abuse. This testimony was properly

offered to rebut any inferences arising from the testimony by

defendant’s niece and his friend that defendant and the victim

had an appropriate, normal, and loving relationship.

9. Defendant argued that the trial court erred by allowing the

ofﬁcer in charge of the investigation to give her opinion that the

victim had not been coached, thereby violating the rule that one

witness may not comment on the credibility of another witness. In

cross-examination, defense counsel had pursued a line of ques-

tioning suggesting that the victim had been coached in light of the

number of persons who had spoken to her before the forensic

interview. On redirect examination, the ofﬁcer explained the

methods used and questions asked by forensic interviewers to

determine whether an alleged child victim of criminal sexual

conduct had been coached. The prosecutor then asked whether

there was any indication that the victim here had been coached.

The ofﬁcer testiﬁed that there was no indication. Defendant

opened the door to the question. Moreover, under MRE 702 and

MRE 703, giving an opinion that there was no indication of

coaching based on forensic-interview training, experience, educa-

tion, and the totality of the circumstances is not the equivalent of

opining that the victim was credible or telling the truth.

10. Defendant argued that the prosecutor’s cross-

examination of defendant’s expert witness regarding the forensic

interview exceeded the scope of direct examination and effectively

permitted the prosecutor to introduce hearsay and present to the

jurors a second time parts of the victim’s preliminary examina-

tion testimony and the ofﬁcer’s opinion on coaching. The trial

court, however, did not rule that questions concerning the foren-

sic interview could not be asked on direct examination. MRE

611(c) provides that a witness may be cross-examined on any

matter relevant to any issue in the case, including credibility, and

the trial court has the discretion to limit cross-examination with

respect to matters not testiﬁed to on direct examination. The

prosecutor’s cross-examination gave defendant’s expert a forum

to voice her criticisms of the forensic interview, which defense

counsel further explored on redirect examination. Defendant was

not prejudiced, and any error was harmless.

2015] P

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685

11. The trial court did not err by admitting other-acts evi-

dence, consisting of nude and semi-nude photographs of the

victim and evidence of allegations of abuse by defendant that she

made during the forensic interview. MRE 404(b)(1) provides that

evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity with that character. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, scheme, plan, or system in doing an act, knowledge,

identity, or absence of mistake or accident when those matters are

material, regardless of whether the other crimes, wrongs, or acts

are contemporaneous with or before or after the conduct at issue

in the case. If a defendant is charged with unlawful sexual acts,

MCL 768.27 (which is essentially the statutory version of MRE

404(b)) allows the admission of evidence of uncharged activities

between the defendant and the victim when that evidence en-

hances credibility, shows familiarity, explains and gives context to

the relationship, forms a link in the chain of events, allows the

jury to appreciate the full range and nature of the interactions

between the defendant and the victim, and otherwise provides

the jurors with the full or entire story, instead of leaving the

jurors to view events in a vacuum. All these reasons were relevant

in this case. The photographs gave context to the videos and

enhanced the victim’s credibility with respect to her CSC-II

accusations, thereby assisting in providing the jury the full story.

With respect to the forensic interview references, defendant

himself elicited the evidence and relied on it in arguing that the

victim’s claims were nonsensical and that she could not be

believed. The evidence was actually beneﬁcial to defendant’s

claim of innocence.

12. In People v Lockridge, 498 Mich 358 (2015), the Supreme

Court held that Michigan’s sentencing guidelines scheme was

unconstitutional to the extent that it allows courts to ﬁnd by a

preponderance of the evidence facts that are then used to increase

the mandatory minimum punishment a defendant receives. To

make a threshold showing of plain error that could require

resentencing, a defendant must demonstrate that his or her

offense variable (OV) level was calculated using facts beyond

those found by the jury or admitted by the defendant and that a

corresponding reduction in the defendant’s OV score to account

for the error would change the applicable guidelines minimum

sentence range. If a defendant makes that threshold showing and

was not sentenced to an upward departure sentence, he or she is

entitled to a remand for the trial court to determine whether

plain error occurred, i.e., whether the court would have imposed

686 313

ICH

679 [Dec

the same sentence absent the unconstitutional constraint on its

discretion, using the procedures outlined in United States v

Crosby, 397 F3d 103 (CA 2, 2005). If the trial court determines

that it would not have imposed the same sentence but for the

constraint, it must resentence the defendant. In this case, defen-

dant’s minimum sentence range under the guidelines was 51 to

85 months. The trial court, however, engaged in judicial fact-

ﬁnding to score two OVs. Deducting the improperly assessed

points from defendant’s total OV assessment changed the appli-

cable guidelines minimum sentence range to 45 to 75 months

under MCL 777.63. Accordingly, defendant was entitled to a

Crosby remand.

Convictions afﬁrmed; case remanded for compliance with

Lockridge in regard to sentences.

TEPHENS

, J., concurring, wrote separately to address two

points of the majority’s analysis. The ﬁrst point regarded the

majority’s equivocation about whether the failure to object to the

victim’s testimony at the preliminary examination resulted in a

waiver or forfeiture. Judge S

TEPHENS

concluded that it was the

latter. Waiver requires positive action or words, while forfeiture

results from incomplete or ineffective action or from complete

inaction. In this case, defense counsel, whether for reasons of

inadvertence, strategy, or courtesy, failed to object to the admis-

sion of the unsworn testimony at the preliminary examination.

The second point concerned the ramiﬁcations of the forfeited

error. Judge S

TEPHENS

disagreed with the majority and concluded

instead that the forfeited error in this case was structural. The

concept that defendants should only be found guilty of crimes on

the basis of the testimony of persons to whom some oath has been

given is fundamental to our system of jurisprudence. The oath not

only impresses the witness with the obligation to be truthful, but

imposes grave penalties for a willful untruth. The oath serves to

undergird public conﬁdence in the integrity of our judicial system

in much the same way that the promise of an unbiased judiciary

and a jury of peers does. Not all structural errors require reversal,

however, and Judge S

TEPHENS

agreed with the majority that

reversal was not warranted in this case.

1. E

VIDENCE —

ITNESSES —

ATHS OR

FFIRMATIONS —

HILDREN —

ROMISES

ELL THE

RUTH

Before testifying in a judicial proceeding, witnesses must swear or

afﬁrm that their testimony will be true, and the oath or afﬁrma-

tion must be administered in a form calculated to awaken the

witness’s conscience and impress on the witness’s mind the duty

2015] P

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687

to do so; the statutes and court rules, however, do not mandate

special words or actions before a witness may testify, requiring

only a simple afﬁrmation or promise to tell the truth; as long as

a witness’s promise to testify truthfully is minimally sufﬁcient,

the trial court must allow the witness’s testimony, and a simple

promise by a young child to tell the truth comports with the

statutes and evidentiary rules (MRE 603; MCL 600.1432(1), MCL

600.1434).

2. C

RIMINAL

AW —

VIDENCE —

EBUTTAL —

DMISSIBILITY

Admission of rebuttal evidence in a criminal case is within the trial

court’s sound discretion; the court must evaluate the overall

impression that might have been created by the defense proofs;

rebuttal evidence is admissible to contradict, repel, explain, or

disprove evidence produced by the defense; the test for whether

rebuttal evidence was properly admitted is not whether the

evidence could have been offered in the prosecution’s case in chief,

but whether the evidence was properly responsive to evidence

introduced or a theory developed by the defendant.

Bill Schuette,

Attorney General, Aaron D. Lind-

strom, Solicitor General, Jessica R. Cooper, Prosecut-

ing Attorney, Thomas R. Grden, Chief, Appellate Divi-

sion, and Kathryn G. Barnes, Assistant Prosecuting

Attorney, for the people.

Robyn B. Frankel for defendant.

Before: M

URPHY

, P.J., and S

TEPHENS

and G

ADOLA

, JJ.

URPHY

, P.J. Defendant was convicted by a jury of

child sexually abusive activity (CSAA), MCL 750.145c,

using a computer to commit a crime, MCL 752.796, and

two counts of second-degree criminal sexual conduct

(CSC-II), MCL 750.520c. The victim of these crimes

was defendant’s young daughter. Defendant was sen-

tenced to concurrent prison terms of 71 months to 20

years for the CSAA and computer-crime convictions

and 71 months to 15 years for the CSC-II convictions.

Defendant appeals as of right. We afﬁrm defendant’s

688 313 M

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convictions, but remand to address a sentencing mat-

ter pursuant to People v Lockridge, 498 Mich 358; 870

NW2d 502 (2015).

I. BASIC FACTS

Defendant is the biological father of the victim.

Defendant and the victim’s mother were not married,

and they were residing in different homes when the

child made claims to her mother regarding inappropri-

ate sexual behavior by defendant. The child’s mother

contacted law enforcement, which led to a forensic

interview of the child and the execution of a search

warrant at defendant’s home. In executing the war-

rant, the police seized computers, including an Apple

iMac, external hard drives, numerous CDs, a diskette,

multiple SD (storage data) cards, two cellular phones,

including an iPhone 4, and a ﬂash drive. A detective,

who was qualiﬁed as an expert in computer forensic

examinations, testiﬁed that, for the most part, exami-

nation of these items did not reveal any suspicious

activities. He did, however, discover a CD with nude

images of the child in the bathtub and bathroom.

Additionally, the detective retrieved two suspicious

videos,

created seven minutes apart, that had been

ﬁlmed using defendant’s iPhone 4. These videos were

additionally stored on the iMac and an external hard

drive, and they formed the basis of the CSAA and

computer-crime charges. The victim was clothed in

both videos, and in one video, the child is observed, as

described by the detective, “grinding . . . on the couch,”

with defendant “focusing [the camera] on her rear

While some of these images are disturbing, including a photo that is

focused entirely on the child’s buttocks while in the bathtub and a photo

showing the child touching her genitals, they did not directly form the

basis of any of the charges.

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end.”

The detective opined that the child’s act entailed

manual manipulation of the genitals, and the prosecu-

tion characterized the victim’s actions as constituting

masturbation for purposes of the charges. In the video,

defendant is heard asking the child why she was

engaging in the act, and she responded, “because it’s

comfortable.” When defendant then asked her why it

was comfortable, the child expressed that it felt good.

With respect to the second video, the child is seen

grinding against the couch with one hand under her

body on her genitals. The child’s mother testiﬁed to

having once observed the child with “her hands be-

tween her legs and . . . gyrating on the bed,” and when

she told the child to stop, the child responded that “she

was allowed to” engage in the behavior.

In preliminary examination testimony that was even-

tually submitted to the jury during the trial after the

trial court found that the victim had become unavail-

able due to lack of memory, the child, seven at the time

of the preliminary examination, testiﬁed that defendant

would watch her as she bathed in the shower and when

she used the toilet. The victim also testiﬁed regarding a

couple of instances in which, while both were clothed,

defendant pressed his penis against the child’s genital

area, which conduct formed the basis of the two counts

of CSC-II. One of the assaults occurred on a couch in

defendant’s home as defendant lay on top of the child,

who believed that she was in ﬁrst grade at the time. The

other sexual assault occurred when defendant entered

the child’s bedroom where she lay, lay down on her bed

under the covers, and then maneuvered his body so that

the two were on their sides facing each other and

making direct contact.

The video was played as the detective testiﬁed to his interpretation

of the events ﬁlmed by defendant.

690 313 M

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II. CONSTITUTIONAL RIGHT OF CONFRONTATION

A. GENERAL GOVERNING LEGAL PRINCIPLES AND

BACKGROUND INFORMATION

On appeal, defendant ﬁrst argues that the trial

court violated his constitutional right to confront the

witnesses against him when it permitted the victim’s

preliminary examination testimony to be admitted as

substantive evidence at trial. Defendant contends that

the victim was not “unavailable” as required to admit

the evidence, that the victim’s testimony at the pre-

liminary examination was unsworn and thus unus-

able, given that she had not been placed under oath

before testifying, and that the preliminary examina-

tion did not provide defendant a full and fair opportu-

nity for cross-examination. We reject each of these

arguments as a basis for reversal.

We review de novo the question whether a defendant

was denied the constitutional right to confront com-

plaining witnesses. People v Benton, 294 Mich App 191,

195; 817 NW2d 599 (2011). Under the United States

Constitution, “[i]n all criminal prosecutions, the ac-

cused shall enjoy the right . . . to be confronted with

the witnesses against him[.]” US Const, Am VI. Simi-

larly, under the Michigan Constitution, “[i]n every

criminal prosecution, the accused shall have the

right . . . to be confronted with the witnesses against

him or her[.]” Const 1963, art 1, § 20. “The Confronta-

tion Clause of the Sixth Amendment bars the admis-

sion of ‘testimonial’ statements of a witness who did

not appear at trial, unless the witness was unavailable

to testify and the defendant had a prior opportunity to

cross-examine the witness.” People v Walker (On Re-

mand), 273 Mich App 56, 60-61; 728 NW2d 902 (2006),

citing Crawford v Washington, 541 US 36, 59, 68; 124

S Ct 1354; 158 L Ed 2d 177 (2004) (“Where testimonial

2015] P

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evidence is at issue, . . . the Sixth Amendment de-

mands what the common law required: unavailability

and a prior opportunity for cross-examination.”).

are unaware of any precedent suggesting that the right

of confrontation under the Michigan Constitution is to

be analyzed any differently than the Sixth Amend-

ment’s Confrontation Clause. In People v Nunley, 491

Mich 686, 697-698; 821 NW2d 642 (2012), our Supreme

Court observed:

The Confrontation Clause is “primarily a functional

right”

in which the right to confront and cross-examine

witnesses is aimed at truth-seeking and promoting reli-

ability in criminal trials. Functioning in this manner, “the

principal evil at which the Confrontation Clause was

directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence

against the accused.”

The speciﬁc protections the Confrontation Clause pro-

vides apply “only to statements used as substantive evi-

dence.” In particular, one of the core protections of the

Confrontation Clause concerns hearsay evidence that is

“testimonial” in nature. The United States Supreme Court

has held that the introduction of out-of-court testimonial

statements violates the Confrontation Clause; thus, out-

of-court testimonial statements are inadmissible unless

the declarant appears at trial or the defendant has had a

previous opportunity to cross-examine the declarant. [Ci-

tations omitted.]

Of course, testimony given at a preliminary exami-

nation

qualiﬁes as being testimonial in nature, see id.

at 698-699; Crawford, 541 US at 68; therefore, it was

necessary to establish that the victim here was un-

The Confrontation Clause of the Sixth Amendment is applicable to

the states through the Due Process Clause of the Fourteenth Amend-

ment. Tennessee v Lane, 541 US 509, 523; 124 S Ct 1978; 158 L Ed 2d

820 (2004).

692 313 M

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available at trial and that defendant had an opportu-

nity to cross-examine her at the preliminary examina-

tion.

At the preliminary examination, the victim testiﬁed

absent oath or afﬁrmation. When the victim ﬁrst took

the stand, the prosecutor asked her a few preliminary

questions for the purpose of establishing that the child

could distinguish truth from lies. The victim answered

appropriately, and the district court responded in the

afﬁrmative when the prosecutor asked the court for

permission to proceed with the questioning of the child.

Defendant failed to voice any objection to the unsworn

testimony that followed, allowing the child’s testimony

to be fully developed. The victim was subject to exten-

sive cross-examination by defense counsel, encompass-

ing nearly 70 pages of transcript. Defendant’s attorney

grilled the child with questions regarding her ability to

tell the truth and distinguish between fact and fabri-

cation. Midway through cross-examination, defense

counsel asked the victim whether she had “been telling

the truth so far,” and the victim replied, “Yes.” The

child also stated: “I’m telling the truth”; “I’ll tell the

truth”; and “I’ll still tell the truth.” The victim further

testiﬁed how several people had told her to simply tell

the truth when she testiﬁed.

At the trial, the victim took the stand and testiﬁed to

foundational and peripheral matters; however, when

the questioning turned to defendant’s conduct that

formed the heart of the prosecution’s case, the victim

indicated that she could not remember what had

occurred. Efforts by the prosecutor to refresh the

child’s memory through reference to the preliminary

examination transcript were unsuccessful. Outside the

presence of the jury, the trial court and the attorneys

engaged in an extensive colloquy regarding how to

2015] P

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proceed, with the court entertaining arguments con-

cerning the propriety of having the victim’s prelimi-

nary examination testimony read to the jurors. The

trial court and the parties also made direct inquiries to

the child herself, seeking to understand whether she

could not remember what had transpired or whether

she simply refused or did not want to testify about

defendant’s conduct. The child was adamant that she

could not remember the events giving rise to the

charges, and the trial court concluded that, due to lack

of memory, the child was “unavailable.” The trial court

ruled in favor of admitting the victim’s preliminary

examination testimony, rejecting defendant’s argu-

ments that his counsel had not had a full and fair

opportunity to cross-examine the victim at the prelimi-

nary examination and that the failure to place the

victim under oath at the examination barred admis-

sion.

B. UNAVAILABILITY

We initially address defendant’s argument that the

trial

court erred by ﬁnding that the child was unavail-

able for purposes of confrontation analysis. The gist of

defendant’s argument is that, given all the surround-

ing circumstances, the child was feigning a lack of

memory and therefore she was not unavailable, con-

trary to the trial court’s ruling. We fail to see the

relevance of defendant’s argument, considering that

had the trial court instead found that the child was

intentionally refusing to testify or was too scared or

distressed to testify, she still would have qualiﬁed as

unavailable, as explained below. In examining a Con-

frontation Clause argument and determining whether

a person is unavailable as part of that analysis, it is

proper to consider MRE 804(a), which addresses hear-

694 313 M

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say exceptions relative to unavailable witnesses and

sets forth situations in which a witness is properly

deemed unavailable. See People v Garland, 286 Mich

App 1, 7; 777 NW2d 732 (2009). A trial court’s factual

ﬁnding on the issue of unavailability is reviewed for

clear error. Id.

A witness or declarant is unavailable when “the

declarant . . . has a lack of memory of the subject

matter of the declarant’s statement[.]” MRE 804(a)(3).

The trial court and the parties thoroughly quizzed the

victim regarding whether she truly could not testify on

the relevant matters due to lack of memory, and the

child was steadfast in asserting that lack of memory

was the reason for her inability to so testify. Indeed,

even defense counsel conceded below, “I believe the

record speaks for itself that she has no recollection.”

On the existing record, we conclude that the trial court

did not clearly err by ﬁnding that the victim was

unavailable because of lack of memory, especially given

the trial court’s special opportunity to judge the vic-

tim’s credibility. MCR 6.001(D); MCR 2.613(C).

Moreover, a witness or declarant is also unavailable

when “the declarant . . . persists in refusing to testify

concerning the subject matter of the declarant’s state-

ment . . . .” MRE 804(a)(2). If the trial court had deter-

mined that the child was fabricating in claiming failed

memory and that she was instead refusing to testify, it

is abundantly clear from the record that the child

would still not have testiﬁed on the relevant matters

even if ordered. Additionally, in People v Duncan, 494

Mich 713, 717; 835 NW2d 399 (2013), our Supreme

Court held “that when a child attempts to testify but,

because of her youth, is unable to do so because she

lacks the mental ability to overcome her distress, the

child has a ‘then existing . . . mental . . . inﬁrmity’

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within the meaning of MRE 804(a)(4) and is therefore

unavailable as a witness.” (Ellipses in original.)

To the

extent that the victim in the present case was unable to

testify because of her youth and the absence of the

mental ability to overcome distress, she would also

qualify as being unavailable under MRE 804(a)(4).

It is

lso plain that additional attempts to accommodate the

victim, e.g., allowing her to testify via closed-circuit

television, would have been futile, considering that

despite the enormous efforts by the trial court and the

attorneys to procure the child’s testimony, she was not

prepared to testify because of her lack of memory. See

Duncan, 494 Mich at 729 (urging courts, “when appro-

priate,” to use “the tools in our court rules and statutes

to accommodate young witnesses”). We note our refer-

ence in the preceding sentence to “additional” attempts

to accommodate the child, as the trial court in this case

did close the courtroom during her testimony and per-

mitted a victim support advocate to be present for the

child’s mental well-being. Reversal is unwarranted.

Pursuant to MRE 804(a)(4), a declarant is unavailable if he or she “is

unable to be present or to testify at the hearing because of death or then

existing physical or mental illness or inﬁrmity[.]”

We note that in Duncan a child criminal sexual conduct (CSC)

complainant had competently testiﬁed at the preliminary examination,

but she faltered at the defendants’ trial. Our Supreme Court solely

addressed the issue regarding whether the CSC complainant was un-

available under MRE 804(a)(4) after this Court had afﬁrmed the circuit

court’s decision that the complainant was not unavailable. Duncan, 494

Mich at 717-722. Ruling that she was unavailable under MRE 804(a)(4),

the Supreme Court remanded the case for a determination “whether the

complainant’s preliminary examination testimony satisﬁe[d] the require-

ments of MRE 804(b)(1) and, if so, whether admission of that testimony

would violate defendants’ rights under the Confrontation Clause.” Id. at

717. The Court found that the child complainant’s “emotional distress

made it impossible for her to testify,” as “highlighted by the fact that she

had previously been able to give testimony about the alleged sexual

contacts at issue . . . .” Id. at 728-729.

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C. FULL AND FAIR OPPORTUNITY FOR CROSS-EXAMINATION

We next address defendant’s argument that his

confrontation rights were infringed because the pre-

liminary examination did not provide defendant a full

and fair opportunity for cross-examination. More spe-

ciﬁcally, defendant complains that his counsel lacked

the ability or opportunity to examine certain discovery

materials before the preliminary examination, encom-

passing those materials subject to a protective order

and “a thumb drive containing all of [the] . . . computer

forensic analysis” compiled by the detective who testi-

ﬁed as an expert witness in computer forensic exami-

nations. Defendant further contends that the purpose

of cross-examination at a preliminary examination

differs substantially from the purpose of cross-

examination at trial and that the district court had

improperly curtailed cross-examination with respect to

relevant issues of motive and bias. We hold that these

arguments are unavailing.

The constitutional right of confrontation solely guar-

antees an opportunity for effective cross-examination,

not cross-examination that is effective to whatever

extent and in whatever way a defendant wishes.

United States v Owens, 484 US 554, 559; 108 S Ct 838;

98 L Ed 2d 951 (1988). The United States Supreme

Court has recognized that while a preliminary exami-

nation “is ordinarily a less searching exploration into

the merits of a case than a trial,” the Confrontation

Clause can be satisﬁed if a defendant’s cross-

examination of the witness at the preliminary exami-

nation was not signiﬁcantly limited in scope or nature

and the witness was actually unavailable at trial.

California v Green, 399 US 149, 166; 90 S Ct 1930; 26

L Ed 2d 489 (1970).

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In regard to defendant’s assertion that the district

court had improperly curtailed cross-examination with

respect to issues of motive and bias, the line of ques-

tioning cited by defendant, which the district court had

found irrelevant, pertained to why the child had come

to believe that her mother did not like defendant. In

his appellate brief, defendant provides no elaboration

whatsoever explaining his theory that the questioning

went to the issues of motive and bias. But we assume

that defendant is suggesting that the child was biased

against defendant and might have had a motive to lie

about the sexual assaults based on the nature of her

parents’ relationship, i.e., she falsely accused defen-

dant of sexual misconduct in order to gain favor with or

please her mother. We ﬁrst note that the victim’s

mother testiﬁed at trial, and defendant had ample

opportunity during cross-examination to explore this

avenue from that perspective. Moreover, defendant

ignores the fact that the jurors were read preliminary

examination testimony in which the child testiﬁed that

she “always wanted to stay with my mom,” that she

never wanted to go with defendant, and that her

mother did not like defendant. This was more than

adequate evidence from which to formulate and pres-

ent an argument predicated on bias and an ill motive,

and we fail to see how questioning regarding why the

child’s mother disliked defendant was of any real

relevance, assuming that the child even had sufﬁcient

personal knowledge to answer that question. The ex-

clusion of the testimony, even if constituting eviden-

tiary error, did not reﬂect a signiﬁcant limitation with

respect to the scope and nature of defendant’s cross-

examination of the child. Accordingly, defendant’s ar-

gument does not sufﬁce to establish a violation of his

confrontation rights.

698 313 M

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With respect to defendant’s argument that the pur-

pose of cross-examination at a preliminary examina-

tion differs substantially from the purpose of cross-

examination at trial, he again provides no elaboration

in support of the argument. In the context of this case,

we conclude that the purpose of cross-examination at

the preliminary examination and at the trial was

essentially identical, which was to attempt to show

that the sexual-assault and impropriety claims were

untrue, resulting from improper coaching, a problem-

atic forensic examination, the confused mind of a child

spinning outlandish tales, or a purposeful attempt by

the child to imperil her father. As mentioned earlier,

defense counsel took full advantage of cross-

examination of the victim at the preliminary examina-

tion in exploring these areas and was extremely thor-

ough.

We next reject defendant’s argument that he lacked

the ability to review discovery materials before the

preliminary examination, encompassing those materi-

als subject to a protective order and a thumb drive

containing information regarding the computer foren-

sic examination. The record reﬂects that discovery

materials were the subject of a motion the week before

the preliminary examination and were made available

for defendant’s review at the Troy Police Department.

Apparently, defendant chose not to take advantage of

reviewing the materials despite the ability to do so,

and he fails to explain on appeal why review of the

discovery materials was not pursued. Indeed, except

for the thumb drive, defendant fails to even identify in

his appellate brief the speciﬁc discovery materials that

would have assisted in the cross-examination of the

victim, let alone explain how familiarity with the

particular discovery materials would have been beneﬁ-

cial in cross-examining the victim. With respect to the

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thumb drive, the prosecution noted at the preliminary

examination that it had previously identiﬁed the

thumb drive in an answer to defendant’s motion for

discovery. And the thumb drive was admitted into

evidence on the ﬁrst day of a two-day preliminary

examination—the second day of which took place three

weeks after day one—yet defendant did not seek to

reopen cross-examination of the victim. Additionally,

the prosecutor indicated, with no assertion by defen-

dant to the contrary, that the thumb drive, like the

other discovery materials, had been made available for

defendant’s review at the Troy Police Department

before the preliminary examination was conducted.

Finally, the importance of the thumb drive has to be

assessed in the context of the cross-examination of the

victim, not the case in general. The thumb drive

pertained mainly to the prosecution’s case regarding

the CSAA and computer-crime charges, not the two

CSC-II counts. And the victim’s testimony was focused

on the CSC-II charges, not the CSAA and computer-

crime charges. Therefore, the relevance of the thumb

drive to the cross-examination of the victim was mini-

mal. Accordingly, the claimed inability to review the

thumb drive before the preliminary examination did

not constitute a signiﬁcant limitation with respect to

the scope and nature of defendant’s cross-examination

of the child.

D. OATH OR AFFIRMATION—VICTIM’S UNSWORN TESTIMONY

We next address the argument that defendant’s

confrontation

rights were violated because the victim

never declared at the preliminary examination, by

oath or afﬁrmation, that she would testify truthfully.

See MRE 603 (“Before testifying, every witness shall

be required to declare that the witness will testify

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truthfully, by oath or afﬁrmation administered in a

form calculated to awaken the witness’ conscience and

impress the witness’ mind with the duty to do so.”);

MCL 600.1432(1) (addressing administration of an

oath to a witness); MCL 600.1434 (addressing afﬁrma-

tion as an alternative to an oath). “[W]itnesses in

judicial proceedings must swear or afﬁrm that their

testimony will be true.” People v Putman, 309 Mich

App 240, 243; 870 NW2d 593 (2015).

Michigan Model Criminal Jury Instruction 5.9 cur-

rently provides that “[f]or a witness who is a [young]

child, a promise to tell the truth takes the place of an

oath to tell the truth.” (Second set of brackets in

original.) The “Use Note” for the instruction states that

“[t]his instruction is based on former MCL 600.2163,

repealed by 1998 PA 323, [effective] Aug. 3, 1998.”

MCR 2.512(D)(2) provides that

instructions approved by . . . the Committee on Model

Criminal

Jury Instructions . . . must be given in each

action in which jury instructions are given if

(a) they are applicable,

(b) they accurately state the applicable law, and

Of course, M Crim JI 5.9 would generally have no

direct

application in regard to a preliminary examina-

tion, as there is no jury to instruct. The trial court did

instruct the jury on M Crim JI 5.9 at the trial in light

of the child’s limited live testimony, during which the

child promised the trial court to tell the truth without

an oath being administered. Defendant voiced no ob-

jection to the child’s simple promise to tell the truth or

to the associated instruction. MRE 603, MCL

600.1432, and MCL 600.1434 do not contain language

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comparable to that found in M Crim JI 5.9. However,

this Court, in examining the concept of afﬁrmation,

has held:

Neither MCL 600.1434 nor MRE 603 mandates special

words or actions before a witness may testify; each re-

quires only a simple afﬁrmation or promise to tell the

truth. Thus, as long as [the witness’s] promise to testify

truthfully was minimally sufﬁcient, the trial court was

required to allow her testimony. [Donkers v Kovach, 277

Mich App 366, 374; 745 NW2d 154 (2007) (emphasis

added).]

In Donkers,

the witness was not required to raise her

right hand in afﬁrming or promising to tell the truth.

Id. See also Putman, 309 Mich App at 244-245.

Therefore, M Crim JI 5.9 is not inconsistent with

MCL 600.1434 or MRE 603, and a simple promise by a

young child to tell the truth would appear to comport

with the statute and rule of evidence. Nevertheless, to

the extent that the victim’s statement that she would

“tell the truth” constituted a “promise” to tell the truth

at the preliminary examination, the statement was not

made until cross-examination was partially concluded

and well after the prosecutor had elicited the inculpa-

tory testimony. While at the commencement of the

child’s testimony she showed her ability to distinguish

truth from lies on questioning by the prosecutor, the

district court and the prosecutor failed, clearly inad-

vertently, to take the one extra step to obtain a promise

or afﬁrmation to tell the truth. For the reasons ex-

plained below, however, reversal of defendant’s convic-

tions is not necessary because of this unobjected-to

error.

Defendant couches his argument concerning the unsworn testimony

solely within the context of an alleged Confrontation Clause violation.

We question whether the issue regarding the unsworn testimony is even

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Although defendant argues that his right of confron-

tation was violated by the admission of the victim’s

preliminary examination testimony, defendant makes

relevant for purposes of confrontation analysis under Crawford. It is

true that, generally speaking, “ ‘[t]he right of confrontation insures that

the witness testiﬁes under oath at trial, is available for cross-

examination, and allows the jury to observe the demeanor of the

witness.’ ” People v Watson, 245 Mich App 572, 584; 629 NW2d 411

(2001) (citation omitted). However, within the framework of a Crawford

analysis for purposes of confrontation, in which the focus is on a

statement made by a witness who does not appear at trial, the relevant

inquiry entails whether the statement was testimonial in nature,

whether the witness was unavailable for trial, and whether there was a

previous opportunity to cross-examine the witness. Crawford, 541 US at

59, 68. Resolution of a confrontation dispute under Crawford is not

governed or controlled by whether the witness made the statement

under oath or whether the witness’s demeanor while making the

statement was observable by the jury. For example, unless an out-of-

court statement made by a witness was videotaped, with the jury being

shown the video, a jury typically is unable to observe the demeanor of a

witness when he or she made an out-of-court statement, yet Crawford

allows the admission of the statement if the witness was unavailable at

trial and subject to prior cross-examination. This is true despite the fact

that ordinarily the right of confrontation allows jurors to observe the

demeanor of a witness. Watson, 245 Mich App at 584. Similarly, in a

Crawford setting, whether a statement was sworn or unsworn has little

to do with determining if a Confrontation Clause violation occurred. The

United States Supreme Court has held that the absence of an oath is not

dispositive in deciding whether a statement is testimonial in nature.

Bullcoming v New Mexico, 564 US 647, 664; 131 S Ct 2705; 180 L Ed 2d

610 (2011); Crawford, 541 US at 52. Thus, an unsworn statement may

be admitted against a defendant if the statement is not actually

testimonial in nature or when the unsworn statement is testimonial, but

the statement was made by a now-unavailable witness whom the

defendant had a prior opportunity to cross-examine. Under a Crawford

analysis, the fact that the prosecution elicited unsworn testimony from

the victim in the instant case does not appear to equate with an

infringement of defendant’s right of confrontation. While outside the

context of confrontation and Crawford there may have been a problem

with admitting the preliminary examination testimony under MRE

804(b)(1) (hearsay exception—“former testimony” by unavailable de-

clarant) or under a straight application of MRE 603, defendant does not

frame the argument in that manner. Despite our reservations outlined

in this footnote, we shall proceed on the basis that an error occurred.

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no attempt whatsoever to address questions concern-

ing whether the error was structural, whether the

error was waived and therefore not appealable,

whether the error was forfeited, whether, if forfeited,

the plain-error test precludes or requires reversal,

whether the error was preserved, and whether, if

preserved, the harmless-error test precludes or re-

quires reversal. Clearly, at least one of these principles

must apply, yet defendant engages in no legal analysis

regarding any of the principles.

With respect to structural-error analysis, it perhaps

can be implied that defendant’s position is that struc-

tural error occurred, considering that he argues error

and then simply demands reversal.

But even giving

defendant

the beneﬁt of this implication, our Supreme

Court has stated as follows:

“It is not enough for an appellant in his brief simply to

announce a position or assert an error and then leave it up

to this Court to discover and rationalize the basis for his

claims, or unravel and elaborate for him his arguments,

and then search for authority either to sustain or reject his

position. The appellant himself must ﬁrst adequately

prime the pump; only then does the appellate well begin to

ﬂow.” [Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d

845 (1998) (citation omitted).]

Furthermore, a structural-error approach relative to

the

unsworn testimony is not consistent with caselaw.

As explained by the Supreme Court in People v Duncan, 462 Mich

47, 51-52; 610 NW2d 551 (2000):

Structural errors . . . are intrinsically harmful, without regard

to their effect on the outcome, so as to require automatic reversal.

Such an error necessarily renders unfair or unreliable the deter-

mining of guilt or innocence. . . . [S]tructural errors deprive

defendants of basic protections without which a criminal trial

cannot reliably serve its function as a vehicle for determination of

guilt or innocence. [Citation omitted.]

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In People v Kemmis, 153 Mich 117, 117-118; 116 NW

554 (1908), our Supreme Court addressed a case in

which a 10-year-old witness “was permitted to give his

testimony without being sworn” and “[n]o exception

was taken.” On appeal, the defendant, in seeking

reversal of his conviction, argued that “the testimony

was improperly received . . . .” Id. at 118. The Supreme

Court held, “We dispose of this contention by saying

that it was not made in the trial court and cannot be

made for the ﬁrst time in this court.” Id. In Mettetal v

Hall, 288 Mich 200, 207-208; 284 NW 698 (1939), the

Michigan Supreme Court similarly held that “[w]here

a witness gives his testimony without being sworn, the

adverse party by not objecting thereto waives any

objection to it.” (Emphasis added.) In People v Knox,

115 Mich App 508, 511; 321 NW2d 713 (1982), this

Court, after acknowledging MRE 603, MCL 600.1432,

and MCL 600.1434, ruled that, under Kemmis and

Mettetal, the issue of unsworn testimony was not

reviewable because “defense counsel did not object to

the failure of the trial court to insist upon an oath or

afﬁrmation.”

This precedent effectively applies a waiver analysis

when a party fails to object to the unsworn testimony

and allows the testimony to be fully developed. Federal

courts have taken a similar stance. In United States v

Odom, 736 F2d 104, 114-115 (CA 4, 1984), the United

States Court of Appeals for the Fourth Circuit ob-

served:

It is well settled that the swearing of a witness is

waived

by failure to raise the point during the witness’

testimony, thus denying the trial court an opportunity to

correct what has been characterized as an “irregularity.”

The rationale of this principle was declared a century and

a half ago in the oft-cited case of Cady v. Norton, [31 Mass

236, 237] 14 Pick. 236, 237 (Mass.1833). The Court in that

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case stated two justiﬁcations for the rule: First, the defect

or failure could have been corrected if a timely objection

had been made; second, in the absence of a waiver rule

counsel might deliberately avoid objecting to a witness

being unsworn in order to have a ground of appeal.

The Fifth Circuit in United States v Perez, 651 F2d

268, 273 (CA 5, 1981), stated that “[i]t has long been

the general rule that even a failure to swear a witness

may be waived,” and “[t]his may occur either by know-

ing silence . . . or by the mere failure of counsel to

notice the omission . . . .” And in Wilcoxon v United

States, 231 F2d 384, 387 (CA 10, 1956), the Tenth

Circuit indicated that “the administering of the oath to

a witness may be waived” and that “[b]y failing to bring

the matter to the attention of the trial court in some

manner . . . , [the defendant] effectively waived the

right to seek a new trial . . . .”

State courts outside of Michigan have also applied a

waiver analysis when there was no objection to un-

sworn testimony. State v Paolella, 211 Conn 672,

687-688; 561 A2d 111 (1989); Heier v State, 727 P2d

707, 708 (Wy, 1986) (“ ‘It is generally held that the

failure to require an oath or afﬁrmation before testify-

ing must be raised by objection or it is considered

waived.’ ”) (citation omitted); State v Navarro, 132 Ariz

340, 342; 645 P2d 1254 (Ariz App, 1982) (“[I]rregular-

ity in failing to swear a witness is waived where he is

permitted to testify without objection.”); Brown v Ris-

tich, 36 NY2d 183, 189; 366 NYS2d 116; 325 NE2d 533

(1975) (“[T]he failure to object to unsworn testimony

serves to waive any argument that the testimony was

not properly admitted.”).

In this case, although defendant objected at the trial

that the victim’s preliminary examination testimony

had not been given under oath or by afﬁrmation, there

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was no objection at the time that the testimony was

actually procured at the preliminary examination.

Only an objection at the preliminary examination

would have been meaningful, allowing the district

court to take corrective action and prevent the error.

While Kemmis, Mettetal, and Knox dealt with a failure

to object at trial and the complaining parties’ raising

the issue of unsworn testimony for the ﬁrst time on

appeal, which varies from the procedural circum-

stances here, the waiver analysis is nonetheless appli-

cable. This is so because the overriding principle aris-

ing from the caselaw is that one must object at the time

the unsworn witness is giving the testimony, not at a

later date. Given that preliminary examination testi-

mony always presents the potential of being admitted

at a future trial due to witness unavailability caused

by injury, illness, death, ﬂight, lack of recall, or other

events or circumstances, it is incumbent on counsel to

protect the record. Under Kemmis, Mettetal, and Knox,

defendant waived the issue concerning the victim’s

unsworn testimony, and thus reversal is unwarranted.

We acknowledge that the waiver analysis is some-

what inconsistent with more recent Supreme Court

precedent regarding, in general, the concepts of forfei-

ture and waiver. In People v Carter, 462 Mich 206, 215;

612 NW2d 144 (2000), our Supreme Court explained

the difference between waiver and forfeiture, stating:

Waiver has been deﬁned as the intentional relinquish-

ment

or abandonment of a known right. It differs from

forfeiture, which has been explained as the failure to

make the timely assertion of a right. 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. Mere forfeiture, on the other

hand, does not extinguish an error. [Citations and quota-

tion marks omitted.]

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Simply not objecting to the unsworn testimony at

the preliminary examination, especially given that

there is no indication that defendant was cognizant of

the oversight and knowingly remained quiet, appears

to be more of a case of forfeiture than waiver, which

would implicate plain-error analysis. Claims of consti-

tutional or nonconstitutional forfeited error are re-

viewed for plain error affecting a defendant’s substan-

tial rights. People v Carines, 460 Mich 750, 763-764;

597 NW2d 130 (1999). In Carines, the Court set forth

the plain-error test:

To avoid forfeiture under the plain error rule, three

requirements

must be met: 1) error must have occurred, 2)

the error was plain, i.e., clear or obvious, 3) and the plain

error affected substantial rights. The third requirement

generally requires a showing of prejudice, i.e., that the

error affected the outcome of the lower court proceedings.

“It is the defendant rather than the Government who

bears the burden of persuasion with respect to prejudice.”

Finally, once a defendant satisﬁes these three require-

ments, an appellate court must exercise its discretion in

deciding whether to reverse. Reversal is warranted only

when the plain, forfeited error resulted in the conviction of

an actually innocent defendant or when an error “ ‘seri-

ously affect[ed] the fairness, integrity or public reputation

of judicial proceedings’ independent of the defendant’s

innocence.” [Id. at 763 (citations omitted; alteration in

original).]

Indeed, in Putman,

309 Mich App at 243, this Court

addressed an unpreserved claim that the trial court

had erred by not properly administering the oath to

witnesses, and the panel did not apply a waiver analy-

sis but instead stated:

Defendant did not object to the form of the oath given to

he witnesses at trial. Therefore, the issue is unpreserved.

This Court reviews unpreserved issues for plain error

708 313

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affecting a defendant’s substantial rights. [Citation omit-

ted.]

This approach in Putman does appear to be incon-

sistent with Kemmis, Mettetal, and Knox. Regardless,

even if we apply the plain-error test, reversal is un-

warranted. Assuming the existence of a plain error,

defendant has not shown that he was prejudiced as a

result of the district court’s allowing the victim to

testify absent an oath, an afﬁrmation, or a promise (or

timely promise) to tell the truth. At the preliminary

examination, before any substantive testimony was

elicited from the victim, the prosecution carefully ques-

tioned the child regarding the difference between truth

and lies. And the child responded in a manner showing

that she fully understood the distinction. Certainly,

even the child, despite her youth, appreciated that the

prosecutor’s questions were meant to instill an under-

standing of the necessity to tell the truth. Additionally,

defense counsel peppered the child with questions

regarding her ability to tell the truth and to distin-

guish between fact and fabrication. Counsel asked the

child whether she had “been telling the truth so far,”

and she replied, “Yes.” The child further implored: “I’m

telling the truth”; “I’ll tell the truth”; and “I’ll still tell

the truth.” The victim recalled how several people had

emphasized to her to simply tell the truth when she

testiﬁed. Accordingly, although the child did not ex-

pressly promise to tell the truth at the preliminary

examination and did not do so before testifying on

behalf of the prosecution, the record reﬂects that the

child understood the difference between truth and lies,

understood the need to tell the truth, and adamantly

asserted that she had told the truth, was telling the

truth, and would continue to tell the truth. The pur-

pose of an oath or afﬁrmation is “to awaken the

witness’ conscience and impress the witness’ mind

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with the duty to” testify truthfully, MRE 603, and the

child was clearly conscious of and had impressed on

her the need to testify truthfully. Defendant’s argu-

ment does not withstand scrutiny under the plain-

error test, as we conﬁdently conclude that prejudice

has not been shown.

Additionally, even if we treat the claim of error as

having been fully preserved, defendant’s argument, as

noted earlier, is entirely couched within the framework

of an alleged violation of his right of confrontation. And

our Supreme Court has unequivocally held that

“[h]armless error analysis applies to claims concerning

Confrontation Clause errors.” People v Shepherd, 472

Mich 343, 348; 697 NW2d 144 (2005) (applying the

harmless-beyond-a-reasonable-doubt standard) (cita-

tion omitted). At the risk of being redundant, we again

conclude that, although the child did not expressly

promise to tell the truth at the preliminary examina-

tion and did not do so before testifying on behalf of the

prosecution, the record reﬂects that the child under-

stood the difference between truth and lies, understood

the need to tell the truth, and adamantly asserted that

she had told the truth, was telling the truth, and would

continue to tell the truth. Any error was harmless

beyond a reasonable doubt.

In regard to structural error, we note that the

Kentucky Supreme Court has held that the failure to

administer an oath to a witness is not a structural

error. Peak v Commonwealth, 197 SW3d 536, 547 (Ky,

2006). Moreover, our Supreme Court in People v Cain,

498 Mich 108, 118 n 4; 869 NW2d 829 (2015), recently

explained that structural error has only been found in

a very limited class of cases—“complete denial of

counsel, a biased trial judge, racial discrimination in

the selection of a grand jury, denial of self-

representation at trial, denial of a public trial, and

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defective reasonable-doubt instructions.” We are un-

aware of any cases holding that the admission of

unsworn testimony constitutes structural error.

Finally, even assuming that unpreserved structural

error actually occurred, our Supreme Court in Cain, 498

Mich at 118 n 4, quoting People v Vaughn, 491 Mich 642,

654, 667; 821 NW2d 288 (2012), observed that even if an

unpreserved error is structural, a new trial is only

warranted if the plain error resulted in the conviction of

an actually innocent defendant or seriously affected the

fairness, integrity, or public reputation of the proceed-

ings (the fourth prong of the plain-error test). Given the

evidence, the nature of the assumed error, and the

victim’s testimony regarding telling the truth, we can-

not conclude that the error resulted in the conviction of

an actually innocent defendant or seriously affected the

fairness, integrity, or public reputation of the proceed-

ings. Reversal is unwarranted.

III. VAGUENESS AND THE SUFFICIENCY OF THE EVIDENCE

Defendant next argues that the offense of CSAA is

nconstitutionally vague as applied to him under the

circumstances in this case, undermining both the CSAA

conviction and the related computer-crime conviction,

and that there was insufﬁcient evidence supporting the

CSAA conviction. Defendant also argues that his trial

counsel was ineffective for failing to raise a vagueness

argument below and for withdrawing a motion for a

directed verdict challenging the sufﬁciency of the evi-

dence. We reject each of these arguments.

A. VAGUENESS AND THE CSAA STATUTE

As indicated earlier in this opinion, the CSAA and

computer

-crime offenses were prosecuted on the basis

of the two videos ﬁlmed using defendant’s iPhone 4,

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which were also stored on the iMac and an external

hard drive. With respect to the offense of CSAA, MCL

750.145c(2) provides, as pertinent to the prosecution’s

theory of the case, that “[a] person who . . . knowingly

allows a child to engage in a child sexually abusive

activity for the purpose of producing any child sexually

abusive material . . . is guilty of a felony . . . .” “ ‘Child

sexually abusive activity’ means a child engaging in a

listed sexual act.” MCL 750.145c(1)(n). A “listed sexual

act” expressly includes, as relevant here, “masturba-

tion.” MCL 750.145c(1)(i). “Masturbation” is statuto-

rily deﬁned as follows:

[T]he real or simulated touching, rubbing, or otherwise

stimulating

of a person’s own clothed or unclothed geni-

tals, pubic area, buttocks, or, if the person is female,

breasts, or if the person is a child, the developing or

undeveloped breast area, either by manual manipulation

or self-induced or with an artiﬁcial instrument, for the

purpose of real or simulated overt sexual gratiﬁcation or

arousal of the person. [MCL 750.145c(1)(k).]

“ ‘Child sexually abusive material’ means any depic-

tion,

whether made or produced by electronic, me-

chanical, or other means, including a . . . video . . .

which is of a child . . . engaging in a listed sexual act[.]”

MCL 750.145c(1)(o). Finally, MCL 752.796(1) provides

that “[a] person shall not use a computer program,

computer, computer system, or computer network to

commit . . . a crime.” For purposes of the computer-

crime charge under MCL 752.796(1), the predicate or

underlying crime relied on by the prosecution was the

CSAA offense.

As outlined in his appellate brief, the crux of defen-

dant’s vagueness argument is as follows:

The language used to deﬁne masturbation does not pro-

vide

any speciﬁc criteria for its application. Rather, in this

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case the statute was arbitrarily applied to create criminal

conduct. That there was no fair notice as to the illegal

nature of the charged conduct is highlighted in several

regards. Even . . . [the] [d]etective [computer forensic ex-

aminer] was clueless as to what, if any behavior exhibited

in the digital media was illegal.

“The constitutionality of a statute is a question of

law that this Court reviews de novo.” People v Doug-

las, 295 Mich App 129, 134; 813 NW2d 337 (2011)

(addressing a vagueness challenge). We assume that a

statute is constitutional and interpret the statute as

constitutional “unless it is clearly unconstitutional.”

Id. at 135. The party claiming that a statute is

unconstitutional bears the burden of proving its inva-

lidity. Id.

In People v Gratsch, 299 Mich App 604, 609-610; 831

NW2d 462 (2013), vacated in part on other grounds 495

Mich 876 (2013), this Court discussed the nature of a

vagueness challenge:

The void-for-vagueness doctrine ﬂows from the Due

rocess Clauses of the Fourteenth Amendment and

Const 1963, art 1, § 17, which guarantee that the state

may not deprive a person of life, liberty, or property,

without due process of law. A statute may be challenged

as unconstitutionally vague when (1) it is overbroad and

impinges on First Amendment freedoms; (2) it does not

provide fair notice of the conduct proscribed, or (3) it is so

indeﬁnite that it confers unstructured and unlimited

discretion on the trier of fact to determine whether the

law has been violated. A statute provides fair notice when

it gives a person of ordinary intelligence a reasonable

opportunity to know what is prohibited. “A statute is

sufﬁciently deﬁnite if its meaning can fairly be ascer-

tained by reference to judicial interpretations, the com-

mon law, dictionaries, treatises, or the commonly ac-

cepted meanings of words.” But “[a] term that requires

persons of ordinary intelligence to speculate about its

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meaning and differ on its application may not be used.”

[Citations and quotation marks omitted; alteration in

original.]

The statutory deﬁnition of “masturbation,” MCL

750.145c(1)(k), plainly provides speciﬁc criteria for its

application, was not arbitrarily applied to create crimi-

nal conduct, and gives fair notice of the illegal nature

of the proscribed conduct in the context of a CSAA

prosecution. Defendant’s vagueness argument, at its

core, is that a person of ordinary intelligence is forced

to speculate in ascertaining whether the particular

actions and movements of the child as seen in the

videos fall within the statutory deﬁnition of “mastur-

bation,” thereby rendering MCL 750.145c unconstitu-

tionally vague as applied to defendant and the speciﬁc

facts in this case. We disagree.

As relevant to the CSAA charge brought against

defendant, and under the deﬁnitions recited above,

including the deﬁnition of “masturbation,” a person is

subject to a criminal penalty for knowingly allowing a

child to engage in an act, while videotaping the act,

wherein the child rubs or otherwise stimulates the

child’s own clothed genitals by manual manipulation

or with an artiﬁcial instrument for the purpose of real

or simulated overt sexual gratiﬁcation or arousal. MCL

750.145c(1)(i), (k), (n), and (o) and (2). On the basis of

this plain and unambiguous statutory language, a

person of ordinary intelligence would reasonably know

that ﬁlming the child’s actions that were speciﬁcally

depicted in the videos and described earlier is prohib-

ited, absent the need to speculate regarding the mean-

ing of “masturbation” as deﬁned in the statute. The

meaning of the statutory language can easily and fairly

be ascertained by reference to dictionaries or the

commonly accepted deﬁnitions of words. Reversal is

unwarranted.

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B. CSAA AND COMPUTER-CRIME CONVICTIONS—SUFFICIENCY

OF THE EVIDENCE

Defendant also argues that the evidence was insuf-

ﬁcient to support the CSAA and computer-crime con-

victions, considering the lack of evidence showing

that the child was indeed engaged in acts of mastur-

bation as videotaped by defendant. Viewing the direct

and circumstantial evidence in a light most favorable

to the prosecution, taking into consideration all rea-

sonable inferences arising from the evidence, resolv-

ing all conﬂicts in the evidence in favor of the pros-

ecution, and deferring to the jury’s assessment of the

weight of the evidence and the credibility of the

witnesses, we conclude that a rational juror could ﬁnd

that the prosecution proved beyond a reasonable

doubt that defendant knowingly videotaped the child

while she was engaged in a listed sexual act, i.e.,

masturbation. People v Reese, 491 Mich 127, 139; 815

NW2d 85 (2012); People v Hardiman, 466 Mich 417,

428; 646 NW2d 158 (2002); Carines, 460 Mich at 757;

People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748

(1992); People v Kanaan, 278 Mich App 594, 618-619;

751 NW2d 57 (2008). The evidence supporting our

conclusion included the videos themselves and the

acts depicted therein as described earlier, the detec-

tive’s characterization of the behavior seen in the

videos, defendant’s suggestive questions to the child

during the videotaped conduct, the child’s responses

to defendant while being ﬁlmed, the inappropriate

photographs of the child taken by defendant, testi-

mony of the child’s mother about a similar masturba-

tory act, and expert testimony about normal sexual

behavior by children. The evidence supported both

the CSAA and computer-crime convictions. Reversal

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is unwarranted.

IV. PROSECUTION’S REBUTTAL WITNESS—HEARSAY AND

SCOPE OF TESTIMONY

Defendant next argues that the trial court erred by

permitting

the prosecution’s rebuttal witness—an

expert

—to testify beyond the scope of defendant’s case

and to testify to hearsay statements. Defendant also

maintains that counsel was ineffective for failing to

object to the hearsay testimony. With respect to the

hearsay argument, defendant contends that the expert

witness improperly alluded to statements made by the

victim during her forensic interview, mentioning acts

of fellatio and sexual contact unrelated to the charged

counts of CSC-II for which defendant was convicted.

With respect to the scope of rebuttal, defendant argues

that at no time did he submit evidence suggesting or

contending that the behaviors exhibited by the victim

were inconsistent with the behaviors typically seen in

sexually abused children, including in regard to the

subject of delayed disclosure, and that he did not

submit any evidence indicating that the victim was not

credible on the basis of particular behaviors. Thus,

according to defendant, when the rebuttal expert wit-

ness was allowed to testify on matters concerning

typical patterns of behavior relative to sexually abused

Defendant’s associated arguments that counsel was ineffective for

not presenting a vagueness argument below and for not following

through with a motion for directed verdict on the CSAA and computer-

crime charges are rejected, given that counsel is not ineffective for

failing to advance meritless positions or pursue futile arguments. People

v Henry (After Remand), 305 Mich App 127, 141; 854 NW2d 114 (2014).

The witness was qualiﬁed by the trial court as an expert in (1)

forensic interviewing, (2) the dynamics and characteristics of child

sexual abuse, and (3) suggestibility, source monitoring, and delayed

disclosure.

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children, it was not properly responsive to the evidence

introduced or a theory developed by defendant.

A. HEARSAY

We ﬁrst tackle the hearsay argument, which defen-

dant bases on two instances during the rebuttal testi-

mony of an expert witness. First, the expert responded

as follows when queried by the prosecutor for some

examples of source-monitoring questions

asked by

the interviewer who conducted the victim’s forensic

examination:

Well, speciﬁcally when she -- when [the victim] de-

scribed that -- the penis in the mouth or the -- whatever it

was in the mouth felt squishy like pizza, that was in

response to a source monitoring question.

In the second instance cited by defendant, the prosecu-

tor sought clarity in regard to an “incident” mentioned

by the expert that had been communicated by the

victim to the forensic interviewer. The prosecutor

asked the expert, “And is she talking here about an

incident where her dad took his pants off and put his

peanut on her thing?” The expert responded, “Yes, she

goes on to say that.”

Defendant did not object to the testimony; therefore,

our review is for plain error affecting defendant’s

substantial rights. Carines, 460 Mich at 763-764. As

readily evident, the challenged statements did not

constitute hearsay, given that they were not “offered in

evidence to prove the truth of the matter asserted.”

The expert explained that “source monitoring” entails asking chil-

dren “to derive information from their personal experience,” such as

asking “them questions about what something felt like, tasted like,

[and] smelled like,” which makes them “better able to distinguish

between something that they heard or saw and something that was

their real life experience.”

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MRE 801(c) (deﬁnition of hearsay); see also People v

McDade, 301 Mich App 343, 353; 836 NW2d 266 (2013)

(“The two notes from Stafford were admissible because

they were not offered into evidence ‘to prove the truth

of the matter[s] asserted’ . . . .”) (alteration in original).

The statements were not offered to prove that defen-

dant engaged in oral sex or sexual contact with the

child. Rather, the ﬁrst statement was offered as part of

an explanation and discussion of source-monitoring

questions posed to the child. And the second statement

was offered to clarify what “incident” the expert was

referring to in regard to communications made by the

child to the forensic interviewer, all in the context of

broader questioning concerning forensic-interviewing

procedures. Accordingly, reversal based on defendant’s

hearsay argument is unwarranted.

SCOPE OF REBUTTAL TESTIMONY

Defendant contends that the prosecution’s expert’s

“testimony

was the only testimony regarding the con-

cept of delayed disclosure and the characteristics of a

child sex abuse complainant” and that “[n]o other

witness had proffered any such testimony, let alone

any contrary testimony.”

In People v Figgures, 451 Mich 390, 398-399; 547

NW2d 673 (1996), our Supreme Court discussed the

nature of rebuttal evidence, observing:

Admission of rebuttal evidence is within the sound

discretion

of the trial judge and will not be disturbed

absent a clear abuse of discretion. Because the scope of

rebuttal is based on the trial judge’s discretionary author-

Additionally, because counsel is not ineffective for failing to raise a

meritless or futile objection, we reject defendant’s argument that

counsel was ineffective for not making a hearsay objection. Henry, 305

Mich App at 141.

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ity to preclude the trial from turning into a trial of

secondary issues, it is the trial court that must, of neces-

sity, evaluate the overall impression that might have been

created by the defense proofs. . . .

* * *

Rebuttal evidence is admissible to “contradict, repel,

explain or disprove evidence produced by the other party

and tending directly to weaken or impeach the same.” The

question whether rebuttal is proper depends on what

proofs the defendant introduced and not on merely what

the defendant testiﬁed about on cross-examination.

Contrary to the dissent’s insinuation, the test of

whether rebuttal evidence was properly admitted is not

whether the evidence could have been offered in the

prosecutor’s case in chief, but, rather, whether the evi-

dence is properly responsive to evidence introduced or a

theory developed by the defendant. [Citations omitted.]

With respect to the expert’s being allowed to testify

about

delayed disclosure, as well as forensic interview-

ing, suggestibility, and source monitoring, defense

counsel expressly indicated that he would “leave it to

the Court’s discretion,” while objecting only to the

expert’s testifying in regard to the dynamics and

characteristics of child sexual abuse.

Accordingly, the

issue

was waived for purposes of appeal. Carter, 462

Mich at 215. Regardless, even if the issue was pre-

served, any error was harmless. MCL 769.26; People v

Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).

The prosecution asked one question of the expert about

delayed disclosure and made no attempt through fur-

ther questioning to connect the issue to the case at bar.

While delayed disclosure would appear to ﬁt within this category,

the prosecutor, trial court, and defense counsel spoke of and addressed

delayed disclosure separately. See footnote 9 of this opinion.

2015] P

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In regard to the dynamics and characteristics of

child sexual abuse, the expert’s testimony was respon-

sive and was properly admitted. She testiﬁed that it

was consistent and not unusual for a child victim of

sexual abuse to appear unafraid of the abuser, to have

an apparently close and loving relationship with the

perpetrator, to forget at some point what had occurred,

and to believe that he or she had already told someone

about the abuse, although not in formal reporting

terms.

Defendant had introduced testimony from a

niece

and friend indicating that defendant and the

victim had an appropriate, normal, and loving rela-

tionship. Their testimony painted defendant as an

involved, devoted, and affectionate father. This rela-

tionship supposedly existed during the period of sexual

abuse. The testimony was offered by defendant to

assail the victim’s credibility and have the jury ques-

tion how the sexual abuse could have occurred given

the ostensible father-daughter bond and the victim’s

We note that in People v Peterson, 450 Mich 349, 352-353; 537

NW2d 857 (1995), the Michigan Supreme Court ruled:

In these consolidated cases, we are asked to revisit our

decision in People v Beckley, 434 Mich 691; 456 NW2d 391 (1990),

and determine the proper scope of expert testimony in childhood

sexual abuse cases. The question that arises in such cases is how

a trial court must limit the testimony of experts while crafting a

fair and equitable solution to the credibility contests that inevi-

tably arise. As a threshold matter, we reafﬁrm our holding in

Beckley that (1) an expert may not testify that the sexual abuse

occurred, (2) an expert may not vouch for the veracity of a victim,

and (3) an expert may not testify whether the defendant is guilty.

However, we clarify our decision in Beckley and now hold that (1)

an expert may testify in the prosecution’s case in chief regarding

typical and relevant symptoms of child sexual abuse for the sole

purpose of explaining a victim’s speciﬁc behavior that might be

incorrectly construed by the jury as inconsistent with that of an

actual abuse victim, and (2) an expert may testify with regard to

the consistencies between the behavior of the particular victim

and other victims of child sexual abuse to rebut an attack on the

victim’s credibility.

720 313

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lack of fear of defendant. The expert’s testimony was

properly offered to rebut any inferences arising from

the testimony by defendant’s niece and friend.

V. OPINION TESTIMONY REGARDING COACHING

Defendant next argues that the trial court erred by

allowing the ofﬁcer in charge of the investigation to

give her opinion that the victim had not been coached.

Defendant maintains that permitting the testimony

violated the well-settled rule that one witness may not

comment on the credibility of another witness while

testifying at trial.

On direct examination of the ofﬁcer, the prosecution

did not elicit any opinion about coaching and only did

so on redirect examination after defense counsel on

cross-examination pursued a line of questioning sug-

gesting that the victim had been coached in light of the

number of persons who had spoken to her before the

forensic interview. On redirect, the ofﬁcer explained

the methods used and questions asked by forensic

interviewers in attempting to determine whether an

alleged child CSC victim had been subjected to coach-

ing, noting the signs that suggest a child had been

coached. The prosecutor then asked the ofﬁcer whether

there was any indication that the victim here had been

coached. Defendant objected to the prosecutor’s ques-

tion, asserting that the ofﬁcer was not an expert in that

area. The trial court then asked the prosecutor to

establish a foundation for purposes of allowing a re-

sponse by the ofﬁcer, and the prosecutor proceeded to

elicit information regarding the ofﬁcer’s training, ex-

perience, education, and background relative to foren-

sic interviewing and coaching. The ofﬁcer then testi-

ﬁed, absent further objection by defendant or

intervention by the court, that there was no indication

2015] P

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that the victim had been coached. It would thus appear

that the court accepted the testimony as expert opin-

ion, MRE 702, and not lay opinion testimony, MRE

701.

In People v Musser, 494 Mich 337, 349; 835 NW2d

319 (2013), our Supreme Court stated:

Because it is the province of the jury to determine whether

“a

particular witness spoke the truth or fabricated a

cock-and-bull story,” it is improper for a witness or an

expert to comment or provide an opinion on the credibility

of another person while testifying at trial. Such comments

have no probative value because “they do nothing to assist

the jury in assessing witness credibility in its fact-ﬁnding

mission and in determining the ultimate issue of guilt or

innocence.” As a result, such statements are considered

“superﬂuous” and are “inadmissible lay witness[] opinion

on the believability of a [witness’s] story” because the jury

is “in just as good a position to evaluate the [witness’s]

testimony.” [Citations omitted; alteration in original.]

In People

v Douglas, 496 Mich 557, 583; 852 NW2d

587 (2014), the Supreme Court held that the principle

that it is improper for a lay or expert witness to

comment on the credibility of another witness barred

the testimony of an expert forensic interviewer who

had opined that a child CSC victim had not been

coached and was being truthful, and also precluded the

testimony of a Children’s Protective Services worker

who had opined that there was no indication of coach-

ing or that the victim was being untruthful.

As defendant did not object to the testimony on the

basis of the particular argument now presented on

appeal, our review is for plain error affecting substan-

tial rights. People v Kimble, 470 Mich 305, 309, 312;

684 NW2d 669 (2004). We initially note that it is

unclear from Douglas whether the Court found prob-

lematic the testimony regarding coaching or whether

722 313 M

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679 [Dec

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the main or sole concern was the testimony about the

victim’s truthfulness (or perhaps a combination

thereof). Defendant makes no claim here that the

ofﬁcer ever opined at trial that the victim was telling

the truth. In our view, giving an opinion that there was

no indication that a child CSC victim was coached

based on forensic-interview training, experience, edu-

cation, and the totality of the circumstances, MRE 702

and MRE 703, is not the equivalent of opining that the

victim was credible or telling the truth. Indeed, we

believe that there is also a distinction between testify-

ing that a child victim had not been coached, like the

deﬁnitive conclusion made by the forensic interviewer

in Douglas, 496 Mich at 570, 583, and testifying that

there is no indication that a child victim was coached,

as opined by the ofﬁcer in this case. Additionally,

defendant opened the door to the question whether

there was any indication of coaching.

To the extent or assuming that Douglas directs a

conclusion that the ofﬁcer’s testimony that there was

no indication of coaching was inadmissible, we hold

that defendant has not established the requisite preju-

dice under the plain-error rule. Carines, 460 Mich at

763-764. The ofﬁcer’s untainted responses to proper

questions by the prosecutor leading up to the pre-

sumed improper question and response effectively re-

vealed to the jury the ofﬁcer’s view that safeguards had

been followed during the forensic interview as neces-

sary to weed out any indications of coaching by others.

The opinion itself added very little to the otherwise

appropriate line of questioning. Moreover, we cannot

conclude that any presumed error resulted in the

conviction of an actually innocent defendant or seri-

ously affected the fairness, integrity, or public reputa-

tion of the proceedings. Id. at 763. Reversal is unwar-

ranted.

2015] P

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VI. CROSS-EXAMINATION OF DEFENSE EXPERT

We begin with some background information in

order to give context to defendant’s argument on ap-

peal. Defendant presented the testimony of a witness

who was qualiﬁed as an expert in forensic psychology

with expertise in forensic interviewing techniques,

memory, suggestibility, child and adolescent develop-

ment, and normative sexual behavior of children. The

prosecutor, citing the principles in MRE 703, objected

to the expert’s testifying with respect to opinions and

views regarding the victim’s forensic interview unless

the interview itself (on videotape) was admitted into

evidence. Defense counsel indicated that he had no

plans to ask for the admission of the forensic interview.

Defendant’s attorney explained to the court that his

planned examination of his expert was intended to

address whether the victim’s accusations had been

tainted by others or had been the result of coaching, as

based on evidence regarding events and interactions

that transpired before the forensic examination. De-

fense counsel agreed that he could not ask questions of

the expert regarding materials that were not in evi-

dence. Defense counsel then began backpedaling, ar-

guing that the expert should be permitted to testify in

relationship to the forensic interview to the extent that

a prosecution witness had testiﬁed in regard to the

interview. After extensive arguments, the trial court

ruled, “The witness may testify and the Court will rule

on what comes in and what doesn’t come in after-

wards.” Defendant asserts on appeal that the trial

court’s ruling appeared or was understood by trial

counsel to be a ruling that the expert could not testify

regarding the forensic interview unless the recording

of the interview was admitted into evidence. As

gleaned from above, this is a gross mischaracterization

724 313 M

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679 [Dec

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or a mistaken interpretation of the court’s ruling; no

such ruling was made. The expert proceeded to testify

in support of a position that the child might have been

coached given the numerous interactions with people

before the forensic interview, but the expert did not

explore the forensic interview itself.

Subsequently, on cross-examination of the expert,

the prosecutor asked the expert if she had any con-

cerns regarding whether the forensic interview of the

victim had been conducted pursuant to established

forensic interviewing protocol. Following an objection

by defense counsel and a bench conference of unknown

character, the trial court, without directly addressing

or ruling on the objection, allowed the prosecutor to

proceed with her questioning. Thereafter, the prosecu-

tor engaged the expert in questioning concerning any

criticisms the expert had about the forensic interview.

The expert freely voiced her criticisms of asserted

problematic aspects of the forensic interview. At one

point, the expert acknowledged that the victim had

told the interviewer that it felt squishy like pizza when

defendant put his “buto” in her mouth. The cross-

examination of the expert also entailed references to

the victim’s preliminary examination testimony and to

the opinion by the ofﬁcer in charge that there was no

indication of coaching. On redirect examination, defen-

dant asked questions of the expert pertaining to the

forensic interview.

In his appellate brief, defendant argues that the

cross-examination of the expert by the prosecution

regarding the forensic interview was improper because

it exceeded the scope of direct examination that had

been curtailed by the trial court on the prosecutor’s

own demand that the expert should not be permitted to

testify with respect to the forensic interview. Defen-

2015] P

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725

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dant argues that the trial court, by improperly allow-

ing the cross-examination about the forensic interview,

effectively permitted the prosecutor to introduce hear-

say and present to the jurors, for a second time, parts

of the victim’s preliminary examination testimony and

the ofﬁcer’s opinion on coaching or lack thereof.

The factual predicate of defendant’s argument is

inaccurate, considering that the trial court did not rule

that questions concerning the forensic interview could

not be asked on direct examination. Moreover, MRE

611(c) provides that “[a] witness may be cross-

examined on any matter relevant to any issue in the

case, including credibility,” with the court having the

discretion to “limit cross-examination with respect to

matters not testiﬁed to on direct examination.” Fur-

thermore, the prosecutor’s questioning gave the expert

a forum to voice her criticisms of the forensic interview,

which defense counsel further explored on redirect

examination. We cannot conclude that defendant was

prejudiced; any error was harmless. MCL 769.26;

Lukity, 460 Mich at 495-496. The trial’s second injec-

tion of the opinion regarding whether the victim had

been coached, even assuming its inadmissibility, and

the repeated parts of the victim’s preliminary exami-

nation testimony, which was otherwise entirely admis-

sible, plainly did not prejudice defendant. Moreover,

like our ruling regarding the prosecution witness’s

reference to fellatio, which came from the identical

passage in the forensic interview, the expert’s testi-

mony was not hearsay given that it was not “offered in

evidence to prove the truth of the matter asserted.”

MRE 801(c); see also McDade, 301 Mich App at 353. It

was, as before, offered as a means of assessing the

soundness of the forensic interview, not to prove that

defendant had oral sex with the victim. Finally, under

the circumstances described above, trial counsel was

726 313 M

ICH

679 [Dec

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not deﬁcient on the matters argued by defendant, nor

has prejudice been established. People v Carbin, 463

Mich 590, 599-600; 623 NW2d 884 (2001).

VII. MRE 404(b)

Defendant next argues that the trial court erred

under MRE 404(b) by allowing the admission of other

acts evidence. This evidence, according to defendant,

included nude and semi-nude photographs of the child

in various areas of the bathroom and evidence of

allegations made by the child during the forensic

interview. Defendant states in his appellate brief that

these allegations were “that her father had punched

her in the stomach while at the zoo, thrown her out of

a window 100 times, stuck toothpicks in her butt and

her eyes, taken his clothing off and put his peanut on

her private part, licked his own private part and made

her put his penis in her mouth.”

Defendant addition-

ally

argues that his trial counsel was ineffective to the

extent that he did not renew his pretrial objections to

exclude the evidence. MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admis-

sible to prove the character of a person in order to show

action in conformity therewith. It may, however, be admis-

sible for other purposes, such as proof of motive, opportu-

nity, intent, preparation, scheme, plan, or system in doing

an act, knowledge, identity, or absence of mistake or

accident when the same is material, whether such other

crimes, wrongs, or acts are contemporaneous with, or

prior or subsequent to the conduct at issue in the case.

“At its essence, MRE 404(b) is a rule of inclusion,

allowing

relevant other acts evidence as long as it is

The allegations of fellatio and sexual contact were the same as those

addressed earlier in this opinion.

2015] P

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not being admitted solely to demonstrate criminal

propensity.” People v Martzke, 251 Mich App 282, 289;

651 NW2d 490 (2002). The proponent of other-acts

evidence must meet three requirements in order to

introduce it under MRE 404(b). People v Sabin (After

Remand), 463 Mich 43, 55-56; 614 NW2d 888 (2000).

The Sabin Court elaborated:

First, the prosecutor must offer the other acts evidence

under

something other than a character to conduct or

propensity theory. MRE 404(b). Second, the evidence must

be relevant under MRE 402, as enforced through MRE

104(b), to an issue of fact of consequence at trial. Third,

under MRE 403, a “ ‘determination must be made whether

the danger of undue prejudice [substantially] outweighs

the probative value of the evidence in view of the avail-

ability of other means of proof and other facts appropriate

for making decision[s] of this kind under Rule 403.’ ”

Finally, the trial court, upon request, may provide a

limiting instruction under MRE 105. [Id. (citations omit-

ted; ﬁrst alteration in original).]

With respect to the photographs, in pretrial motions

defendant

challenged the admission of the photos, and

the trial court ruled that their admission would be

“taken under advisement” and reviewed pursuant to

People v DerMartzex, 390 Mich 410; 213 NW2d 97

(1973). At trial, when the prosecution moved to admit

the photographs, defense counsel expressly indicated

that there was no objection. It would thus appear that

defendant waived the issue for purposes of appeal.

Carter, 462 Mich at 215. However, given the pretrial

objections and the fact that defendant bootstraps an

ineffective-assistance claim onto the failure to object,

we shall continue with our analysis. While the trial

court speciﬁcally stated that it would entertain the

admission of the photographs under DerMartzex, de-

fendant makes no attempt to address DerMartzex in

728 313 M

ICH

679 [Dec

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his appellate brief; it is not cited anywhere in the brief.

Accordingly, defendant’s argument can reasonably be

viewed as waived, but we shall continue our examina-

tion.

The Supreme Court in DerMartzex, 390 Mich at

413-415, after acknowledging MCL 768.27, which is

essentially the statutory version of MRE 404(b), indi-

cated that when a defendant is charged with unlawful

sexual acts, it is proper to admit evidence of uncharged

activities between the defendant and the victim when

that evidence enhances credibility, shows familiarity,

explains and gives context to the relationship, forms a

link in the chain of events, allows the jury to appreci-

ate the full range and nature of the interactions

between the defendant and the victim, and otherwise

provides the jurors with the full or entire story, instead

of leaving the jurors to view events in a vacuum. All

these reasons are especially relevant here. The photo-

graphs gave context to the videos, allowing for a better

understanding of the events captured by the videos,

including the acts of masturbation, and showing defen-

dant’s intent and motive in ﬁlming the victim. The

photographs also enhanced the victim’s credibility

with respect to her CSC-II accusations. In sum, the

photographs assisted in providing the jury the full

story. The photographs were not admitted to demon-

strate defendant’s criminal propensity, and the proba-

tive value of the evidence was not substantially out-

weighed by the danger of any unfair prejudice, MRE

403.

The trial court did not err by admitting the

To be clear, we are not applying a “res gestae exception” to MRE

404(b), but rather concluding that application of MRE 404(b) did not bar

admission of the evidence, given that the photographs were admitted for

purposes other than propensity. People v Jackson, 498 Mich 246, 274,

281; 869 NW2d 253 (2015) (concluding that no “res gestae exception” to

the coverage of MRE 404(b) exists).

2015] P

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evidence, and trial counsel was not ineffective for

failing to raise a futile objection. People v Henry (After

Remand), 305 Mich App 127, 141; 854 NW2d 114

(2014).

With respect to the forensic interview references to

the child’s having been punched in the stomach while

at the zoo, thrown out of a window a hundred times,

and stuck with toothpicks in her butt and her eyes and

her claim that defendant had licked his own private

part, this evidence was elicited by defendant himself

and relied on by defendant in arguing that the victim’s

claims were nonsensical and that she could not be

believed. Defendant has waived any appellate claims

in regard to this evidence, Carter, 462 Mich at 215, and

any assumed error in admitting the evidence is en-

tirely harmless, Carines, 460 Mich at 763-764. The

evidence was actually beneﬁcial to defendant’s claim of

innocence. Furthermore, for that very reason, counsel’s

performance was not deﬁcient and no prejudice re-

sulted. Carbin, 463 Mich at 599-600.

With respect to the act of fellatio and unclothed

sexual contact, we ﬁrst note that this evidence would

generally have been admissible to show defendant’s

propensity to commit a sexual assault against the

victim under MCL 768.27a (addressing admission of

other sexual assaults against a minor, supplanting

MRE 404(b) in that context). People v Watkins, 491

Mich 450, 455-456, 470; 818 NW2d 296 (2012).

DerMartzex would also support admission of the evi-

dence. Additionally, given the ﬂeeting and somewhat

vague references (the victim “described . . . the penis in

the mouth or the -- whatever it was in the mouth”) and

the context of the testimony, i.e., examining proper

forensic examination techniques, we conclude that

defendant has not established with respect to this

730 313 M

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679 [Dec

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unpreserved claim of error that he suffered the requi-

site prejudice, that he is actually innocent, or that any

error seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. Carines, 460

Mich at 763. Likewise, unable to establish the requi-

site prejudice, defendant’s accompanying claim of inef-

fective assistance of counsel is rejected. Carbin, 463

Mich at 599-600.

VIII. SENTENCING AND ALLEYNE

Finally, defendant contends that under Alleyne

United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d

314 (2013), his constitutional rights under the Sixth

and Fourteenth Amendments to a jury trial and to

have the prosecution prove its case beyond a reason-

able doubt were violated, given that the trial court

engaged in impermissible judicial fact-ﬁnding in re-

gard to scoring various variables under the sentencing

guidelines. Defendant did not raise this issue below;

therefore, “our review is for plain error affecting sub-

stantial rights.” Lockridge, 498 Mich at 392. In Lock-

ridge, our Supreme Court recently held:

Because Michigan’s sentencing guidelines scheme al-

lows

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 Con-

stitution under Alleyne. We therefore reverse the judg-

ment below . . . . To remedy the constitutional ﬂaw in the

guidelines, we hold that they are advisory only.

To make a threshold showing of plain error that could

require resentencing, a defendant must demonstrate that

his or her OV [offense variable] level was calculated using

facts beyond those found by the jury or admitted by the

defendant and that a corresponding reduction in the defen-

dant’s OV score to account for the error would change the

2015] P

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applicable guidelines minimum sentence range. If a defen-

dant makes that threshold showing and was not sentenced

to an upward departure sentence, he or she is entitled to a

remand to the trial court for that court to determine

whether plain error occurred, i.e., whether the court would

have imposed the same sentence absent the unconstitu-

tional constraint on its discretion.

[16]

If the trial court

determines that it would not have imposed the same

sentence but for the constraint, it must resentence the

defendant. [Id. at 399.]

In the present case, defendant’s minimum sentence

range

as scored by the trial court was 51 to 85 months

under the Class B sentencing grid, with a total prior

record variable (PRV) assessment of 20 points, placing

defendant at PRV Level C (10- to 24-point range), and

a total OV assessment of 60 points, placing him at OV

Level V (50- to 74-point range), absent any habitual-

offender enhancement. See MCL 777.63. The trial

court engaged in judicial fact-ﬁnding in assessing 10

points for OV 4, MCL 777.34(1)(a) (serious psychologi-

cal injury to the victim) and 10 points for OV 19, MCL

777.49(c) (interference with the administration of jus-

tice). Neither the jury’s verdict nor any admissions by

defendant supported these scores. Deducting the 20

points from defendant’s total OV assessment results in

a total OV score of 40 points and “change[s] the

applicable guidelines minimum sentence range,” Lock-

ridge, 498 Mich at 399, from 51 to 85 months to 45 to 75

months (OV Level IV and the same PRV level, giving a

35- to 49-point range). MCL 777.63.

Accordingly,

The Court referred to such remands as “Crosby remands” after the

procedures outlined in United States v Crosby, 397 F3d 103, 117-118 (CA

2, 2005). Lockridge, 498 Mich at 395-399. “Crosby remands are warranted

only in cases involving sentences imposed on or before July 29, 2015 . . . .”

Id. at 397. Defendant here was sentenced before July 29, 2015.

The trial court also assessed 15 points for OV 10, MCL 777.40(1)(a)

(predatory conduct). We note that 10 points must be assessed for OV 10

732 313 M

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defendant is entitled to a Crosby remand under Lock-

ridge, and it is so ordered. Given our ruling, it is

unnecessary to consider defendant’s accompanying

claim of ineffective assistance of counsel for failure to

raise the Alleyne issue.

Afﬁrmed with respect to defendant’s convictions and

remanded for compliance with Lockridge in regard to

defendant’s sentences. We do not retain jurisdiction.

ADOLA

, J., concurred with M

URPHY

, P.J.

TEPHENS

, J. (concurring). I write separately to ad-

dress two points of the analysis of the majority. The

ﬁrst point regards the equivocation about whether the

failure to object to the victim’s testimony at the pre-

liminary examination resulted in a waiver or forfei-

ture. I believe it was the latter. People v Carter, 462

Mich 206, 215-216; 612 NW2d 144 (2000), clariﬁed and

gave direction to the courts of this state that waiver

when a defendant exploits a victim’s youth. MCL 777.40(1)(b). In People

v Needham, 299 Mich App 251, 252; 829 NW2d 329 (2013), this Court

held:

When a person possesses child sexually abusive material, he or

she personally engages in the systematic exploitation of the

vulnerable victim depicted in that material. Evidence of posses-

sion therefore can support a score of 10 points for OV 10,

reﬂecting that a defendant exploited a victim’s vulnerability due

to the victim’s youth.

An argument can be made that the jury’s verdict on the CSAA

charge, which necessarily included a ﬁnding that defendant engaged in

child sexually abusive activity for the purpose of producing child

sexually abusive material, supported at least a 10-point score for OV 10

relative to exploitation of youth, and perhaps even 15 points for

predatory conduct. Given that the minimum sentence range is already

altered by examination of OVs 4 and 19, mandating a Crosby remand

regardless of consideration of OV 10, we decline to determine whether

the jury’s verdict encompassed a ﬁnding of exploitation or predatory

conduct.

2015] P

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ONCURRING

PINION BY

TEPHENS

, J.

requires positive action or words while forfeiture re-

sults from incomplete or ineffective action or from

complete inaction. In this case defense counsel, albeit

for reasons of inadvertence, strategy, or courtesy, failed

to object to the admission of the unsworn testimony

given at the preliminary examination.

The second point addresses the ramiﬁcations of the

forfeited error. I disagree with the majority that the

forfeited error in this case was not structural. When

our Supreme Court in People v Cain, 498 Mich 108,

117 n 4; 869 NW2d 829 (2015), discussed the class of

trial error that could be labeled as structural, it

offered a list of errors that had historically been

placed within that class. It did not assert that the list

was exhaustive. An examination of the historical list

is instructive, however. It included items that affront

our essential concept of system integrity—a biased

judge, the absence of counsel, and the imposition of

counsel when the defendant desires to self-represent.

When the Kentucky Supreme Court, in Peak v Com-

monwealth, 197 SW3d 536, 547 (Ky, 2006), deter-

mined that the failure to administer an oath to a

witness was not structural, it offered neither analysis

nor reasoning and merely announced its conclusion,

noting contrary federal authority. The concept that

defendants should only be found guilty of crimes on

the basis of the testimony of persons to whom some

oath has been given is fundamental to our system of

jurisprudence. The oath not only impresses the wit-

ness with the obligation to be truthful, but imposes

grave penalties for a willful untruth. The oath serves

to undergird public conﬁdence in the integrity of our

judicial system in much the same way that the

promise of an unbiased judiciary and a jury of peers

does. That said, as the majority notes, not all struc-

734 313 M

ICH

679 [Dec

ONCURRING

PINION BY

TEPHENS

, J.

tural errors demand reversal. I concur with the ma-

jority’s conclusion that reversal is not warranted in

this case.

2015] P

EOPLE V

ARDY

735

ONCURRING

PINION BY

TEPHENS

, J.

PECIAL

RDERS

SPECIAL ORDERS

In this section are orders of the Court of general

interest to the bench and bar of the state.

Order Entered December 18, 2015:

EOPLE V

ASROOR

, Docket No. 322280; 322281; and 322282. The

Court orders that the order issued December 17, 2015 convening a

special panel in this matter is vacated, a clerical error having been made

in the polling conducted pursuant to MCR 7.215(J).

The Court further orders that a special panel shall not be convened

pursuant to MCR 7.215(J) to resolve a conﬂict between this case and

People of MI v Alexander Jeremy Steanhouse, 313 Mich App 1 (Docket

No. 318329, issued October 22, 2015).

PECIAL

RDERS

801