BV-MiApp325

MICHIGAN APPEALS REPORTS

CASES DECIDED

THE

MICHIGAN

COURT OF APPEALS

FROM

June 26, 2018 through September 18, 2018

KATHRYN L. LOOMIS

REPORTER OF DECISIONS

VOLUME 325

FIRST EDITION

2020

he 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

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

HIEF

UDGE

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

UDGES

DAVID SAWYER .......................................................................... 2023

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

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

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

JOEL P. HOEKSTRA ................................................................... 2023

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

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

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

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

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

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

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

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

CYNTHIA DIANE STEPHENS................................................... 2023

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

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

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

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

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

MICHAEL F. GADOLA................................................................ 2023

COLLEEN A. O’BRIEN ............................................................... 2023

BROCK A. SWARTZLE................................................................ 2019

THOMAS C. CAMERON ............................................................. 2019

JONATHAN TUKEL.................................................................... 2019

ANICA LETICA............................................................................ 2021

HIEF

LERK

: JEROME W. ZIMMER, J

ESEARCH

IRECTOR

: JULIE ISOLA RUECKE

o September 4, 2018.

iii

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

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

USTICES

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

BRIDGET M. M

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

DAVID F. VIVIANO .................................................................... 2025

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

KURTIS T. WILDER................................................................... 2019

ELIZABETH T. CLEMENT........................................................ 2019

OMMISSIONERS

DANIEL C. BRUBAKER, C

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER ANNE E. ALBERS

SHARI M. OBERG AARON J. GAUTHIER

DEBRA A. GUTIERREZ-M

GUIRE STACI STODDARD

ANNE-MARIE HYNOUS VOICE MARK E. PLAZA

MICHAEL S. WELLMAN MOLLY E. HENNESSEY

GARY L. ROGERS REGINA T. DELMASTRO

SAMUEL R. SMITH CHRISTOPHER M.THOMPSON

CHRISTOPHER M. SMITH

TATE

OURT

DMINISTRATOR

MILTON L. MACK, J

LERK

: LARRY S. ROYSTER

EPORTER OF

ECISIONS

: KATHRYN L. LOOMIS

RIER

: JEFFREY A. MILLS

TABLE OF CASES REPORTED

AGE

AFSCME Local 3317, Wayne County v ............ 614

Auto-Owners Ins Co, Vandercook v .................. 195

Barbee, People v ................................................. 1

Barritt, People v ................................................. 556

Beers/LeBeau-Beers, In re ................................. 653

Byron Twp, DeRuiter v ...................................... 275

Chikaming Twp, Olsen v ................................... 170

Craft, People v .................................................... 598

Crawford, People v (On Remand) ..................... 14

Czuprynski, People v ......................................... 449

Delta College Bd of Trustees, Vermilya v ......... 416

Dep’t of Treasury, TOMRA of North America,

Inc v ................................................................. 289

Dep’t of Treasury, Total Armored Car Service,

Inc v ................................................................. 403

DeRuiter v Byron Twp ....................................... 275

Fairey, People v .................................................. 645

AGE

Fremont Ins Co, Maurer v ................................. 685

Goodwin v Northwest Michigan Fair Ass’n ...... 129

Hernandez-Zitka, People v ................................ 38

Horton Estate, In re ........................................... 325

In re Beers/LeBeau-Beers .................................. 653

In re Horton Estate ............................................ 325

In re Kaczkowski ................................................ 69

In re Keillor ........................................................ 80

In re Parole of Spears ........................................ 54

In re Portus ......................................................... 374

In re Reliability Plans of Electric Utilities For

2017–2021 ....................................................... 207

In re Rhea Brody Living Trust (On Remand) .. 476

Kaczkowski, In re ............................................... 69

Keillor, In re ........................................................ 80

Langlois, People v .............................................. 236

M&W Inc, Magley v ........................................... 307

Magley v M&W Inc ............................................ 307

Mansour, People v .............................................. 339

Marik v Marik .................................................... 353

Maurer v Fremont Ins Co .................................. 685

McFarlane, People v ........................................... 507

vi 325 M

ICH

AGE

Niemiec, Parks v ................................................ 717

Northwest Michigan Fair Ass’n, Goodwin v ..... 129

Oakland County v State of Michigan ............... 247

Olsen v Chikaming Twp .................................... 170

Parks v Niemiec ................................................. 717

Parole of Spears, In re ....................................... 54

Patton, People v ................................................. 425

People v Barbee .................................................. 1

People v Barritt .................................................. 556

People v Craft ..................................................... 598

People v Crawford (On Remand) ...................... 14

People v Czuprynski .......................................... 449

People v Fairey ................................................... 645

People v Hernandez-Zitka ................................. 38

People v Langlois ............................................... 236

People v Mansour ............................................... 339

People v McFarlane ............................................ 507

People v Patton .................................................. 425

People v Vanderpool ........................................... 493

People v Zitka ..................................................... 38

Phoenix Ins Co, Woodring v .............................. 108

Portus, In re ........................................................ 374

Reliability Plans of Electric Utilities For

2017–2021, In re ............................................. 207

Rhea Brody Living Trust (On Remand), In re ... 476

ABLE OF

ASES

EPORTED

vii

AGE

Sandalwood Ranch, LLC, Township of

Williamstown v ............................................... 541

State of Michigan, Oakland County v .............. 247

TOMRA of North America, Inc v Dep’t of

Treasury .......................................................... 289

Total Armored Car Service, Inc v Dep’t of

Treasury .......................................................... 403

Township of Williamstown v Sandalwood

Ranch, LLC ..................................................... 541

Treasury (Dep’t of), TOMRA of North

America, Inc v ................................................. 289

Treasury (Dep’t of), Total Armored Car

Service, Inc v .................................................. 403

Vandercook v Auto-Owners Ins Co ................... 195

Vanderpool, People v .......................................... 493

Vermilya v Delta College Bd of Trustees .......... 416

Wayne County v AFSCME Local 3317 ............. 614

Woodring v Phoenix Ins Co ............................... 108

Zitka, People v .................................................... 38

viii 325 M

ICH

OURT OF

PPEALS

ASES

PEOPLE v BARBEE

ocket No. 337515. Submitted June 12, 2018, at Detroit. Decided

June 26, 2018, at 9:00 a.m.

Keenan Barbee was convicted after a bench trial in the Wayne

Circuit Court of being a felon in possession of a ﬁrearm, MCL

750.224f; being a felon in possession of ammunition, MCL

750.224f; possessing a ﬁrearm during the commission of a felony,

MCL 750.227b; and carrying a concealed weapon, MCL 750.227.

Police ofﬁcers discovered the ﬁrearm when they noticed a parked

car with its engine running and headlights on while on routine

patrol at night. The ofﬁcers pulled alongside the driver’s side of the

vehicle and shined their ﬂashlights at the car, revealing that a

woman was behind the wheel and that defendant was sitting in the

front passenger seat. According to the police, defendant looked

shocked and leaned back in his seat, appeared to pull something

out from his waist area with his right hand, and leaned forward as

if he were attempting to place something on the ﬂoor under his

seat, which led the ofﬁcers to believe that defendant might be

armed. When one of the ofﬁcers got out of the police cruiser,

defendant jumped out of the car. Once defendant was detained, an

ofﬁcer went to the passenger side of the car, shone his ﬂashlight

inside the vehicle at the ﬂoorboard, and saw the back of a gun

handle partly under the seat. The gun was seized, and defendant

was arrested. Defendant testiﬁed that he had no knowledge that

the gun was in the car, that he had never possessed the weapon on

his person, that he did not see the gun in the vehicle, and that he

did not own the ﬁrearm. At trial, defense counsel attempted to

argue that evidence of the gun should be suppressed, considering

that the ofﬁcers lacked probable cause to stop and search the

vehicle; however, the trial court, Catherine L. Heise, J., refused to

consider the argument because counsel had failed to challenge the

search and seizure in a pretrial motion. Defendant appealed.

The Court of Appeals held:

1. Defense counsel was not ineffective for not ﬁling a pretrial

motion to suppress the ﬁrearm. Under the open-view doctrine,

when a law enforcement ofﬁcer observes incriminating evidence or

unlawful activity from a vantage point that is not within a

EOPLE V

ARBEE

constitutionally protected area, no search occurs for purposes of

he Fourth Amendment, and the information gleaned as a result

can form the basis of probable cause or reasonable suspicion to

proceed further. Defendant had no reasonable expectation of pri-

vacy regarding his movements in a car that was parked on a public

street, and therefore the police did not trespass when they pulled

up to the vehicle and looked inside. The fact that a ﬂashlight was

used to see into the vehicle does not change this conclusion because

the use of artiﬁcial means to illuminate a darkened area does not

transform conduct that would not have been a search by daylight

into a search that triggers Fourth Amendment protections. Be-

cause ﬁling a pretrial motion to suppress the ﬁrearm would have

been futile, defense counsel was not ineffective for failing to do so.

2. There was sufﬁcient evidence to support defendant’s con-

victions. Despite the lack of any direct evidence that defendant

physically possessed the gun, there was sufﬁcient circumstantial

evidence from which it could be reasonably inferred that defen-

dant had actually possessed the gun before and at the time the

police pulled up next to the vehicle in which defendant was a

passenger. The police testimony describing defendant’s suspi-

cious movements and his startled appearance when the ofﬁcers

stopped, his conduct in immediately jumping out of the vehicle,

and the discovery of the weapon partway under the passenger

seat, which location would be consistent with the nature of

defendant’s movements that suggested he had placed something

under his seat, gave rise to a reasonable inference that defendant

had physically handled and possessed the ﬁrearm.

Afﬁrmed.

Judge J

ANSEN

concurred in the result only.

1. E

VIDENCE —

ONSTITUTIONAL

AW —

EARCHES AND

EIZURES —

PEN

-V

IEW

OCTRINE

Under the open-view doctrine, when a law enforcement ofﬁcer

observes incriminating evidence or unlawful activity from a

vantage point that is not within a constitutionally protected area,

no search occurs for purposes of the Fourth Amendment, and the

information gleaned as a result can form the basis of probable

cause or reasonable suspicion to proceed further.

2. E

VIDENCE —

ONSTITUTIONAL

AW —

EARCHES AND

EIZURES —

PEN

-V

IEW

OCTRINE —

EASONABLE

XPECTATION OF

RIVACY —

EHICLES

A person does not have a reasonable expectation of privacy for

purposes of the Fourth Amendment when in a vehicle that is

parked on a public street.

2 325 M

ICH

1 [June

3. E

VIDENCE —

ONSTITUTIONAL

AW —

EARCHES AND

EIZURES —

PEN

-V

IEW

OCTRINE —

SE OF

RTIFICIAL

LLUMINATION

The use of artiﬁcial means to illuminate a darkened area does not

transform conduct that would not have been a search by daylight

into a search that triggers Fourth Amendment protections.

Joseph L. Stewart for defendant.

Before: M

URPHY

, P.J., and J

ANSEN

and R

ONAYNE

RAUSE

, JJ.

URPHY

, P.J. In a bench trial, defendant was con-

victed of being a felon in possession of a ﬁrearm

(felon-in-possession), MCL 750.224f, being a felon in

possession of ammunition, MCL 750.224f, possessing a

ﬁrearm during the commission of a felony (felony-

ﬁrearm), MCL 750.227b, and carrying a concealed

weapon (CCW), MCL 750.227. He was sentenced to one

to ﬁve years’ imprisonment for each of the convictions,

except for the felony-ﬁrearm conviction, for which he

was sentenced to two years’ imprisonment. We afﬁrm.

Shortly after midnight on July 8, 2016, police ofﬁ-

cers on routine patrol in a marked cruiser observed a

parked car with its engine running and headlights on,

and the ofﬁcers pulled alongside the driver’s side of the

vehicle. The ofﬁcers shined their ﬂashlights at the car,

observing that a woman was behind the wheel and that

defendant was sitting in the front passenger seat.

There was police testimony that defendant looked

shocked and leaned back in his seat, appearing to pull

something out from his waist area with his right hand,

followed by defendant’s leaning forward as if he were

attempting to place something on the ﬂoor under his

seat. The ofﬁcers found the movements suspicious,

leading the police to believe that defendant may be

armed. When one of the ofﬁcers exited the police

cruiser, defendant immediately jumped out of the pas-

2018] P

EOPLE V

ARBEE

PINION OF THE

OURT

senger seat and car, holding a stack of money. Upon

defendant’s

being detained, an ofﬁcer went to the

passenger side of the car, shined his ﬂashlight inside

the vehicle at the ﬂoorboard, and observed the back of

a gun handle partly under the seat, giving rise to an

inference, considering defendant’s movements, that

defendant had put the ﬁrearm in that spot in a frantic

attempt to conceal it under the seat. The gun was

seized, and defendant was arrested. Defendant testi-

ﬁed that he had no knowledge that the gun was in the

car, that he had never possessed the weapon on his

person, that he did not see the gun in the vehicle, and

that he did not own the ﬁrearm.

At the bench trial, defense counsel attempted to

argue that evidence of the gun should be suppressed,

considering that the ofﬁcers lacked probable cause to

stop and search the vehicle; however, the trial court

refused to consider the argument because counsel had

failed to challenge the search and seizure in a pretrial

motion. On appeal, defendant argues that defense

counsel was ineffective for not ﬁling a pretrial motion

to suppress the ﬁrearm and that there was insufﬁcient

evidence to support the convictions. We disagree.

With respect to the claim of ineffective assistance of

counsel, defendant argues that the car was lawfully

parked in front of his home, that he and the driver

were quietly saying goodnight, that they had an expec-

tation of privacy, that there was no indication by the

ofﬁcers that the neighborhood was rampant with

criminal activity, and that “the police did not provide a

single reason for coming up on defendant’s car so

clandestinely and shining their ﬂashlights into it[.]”

Defendant contends that the plain-view doctrine could

not be invoked because the doctrine requires that an

ofﬁcer be in a place where he or she had a right to be,

4 325 M

ICH

1 [June

PINION OF THE

OURT

and the police in the instant case had no right to pull

within a couple feet of the car and then shine their

ﬂashlights inside. Defendant maintains that the ofﬁ-

cers needed to have some articulable suspicion of

criminal activity being afoot to proceed as they did, and

there was none. Defendant appears to accept that a

police ofﬁcer may generally, but not always, use a

ﬂashlight, but only if the ofﬁcer was rightfully and

lawfully positioned when doing so.

Defendant makes clear that his argument is not

that his movements, i.e., leaning back, appearing to

pull something from his waist area, and then leaning

forward as if to put something under the seat, did not

give rise to probable cause or reasonable suspicion to

temporarily detain him, nor does he appear to con-

tend that it was improper to shine the ﬂashlight on

the passenger-side ﬂoorboard where the gun was

found. Rather, the entire premise of defendant’s ar-

gument is that it was unconstitutional for the police

to be in the position from which they initially saw

defendant’s movements; therefore, counsel was inef-

fective for not ﬁling a pretrial motion to suppress the

gun.

Defendant’s argument is couched, at least in part, in

terms of the plain-view doctrine, and in People v

Champion, 452 Mich 92, 101; 549 NW2d 849 (1996),

the Supreme Court observed:

The plain view doctrine allows police ofﬁcers to seize,

without

warrant, items in plain view if the ofﬁcers are

lawfully in a position from which they view the item, and

if the item’s incriminating character is immediately ap-

parent. A fundamental characteristic of the doctrine is

that it is exclusively a seizure rationale. No searching, no

matter how minimal, may be done under the auspices of

the plain view doctrine. [Citations omitted.]

2018] P

EOPLE V

ARBEE

PINION OF THE

OURT

As can be gleaned from this passage, the plain-view

doctrine

is not technically applicable to the speciﬁc

argument being made by defendant. Defendant’s argu-

ment is more akin to cases involving whether the police

can gather incriminating information from a particu-

lar vantage point to then justify a search or search

warrant based on the information, or whether police

conduct at that vantage point in gathering the infor-

mation is itself a search implicating Fourth Amend-

ment protections. We are addressing an argument that

falls under what has been coined the “open view

doctrine.” In State v Clark, 124 Idaho 308, 311-313; 859

P2d 344 (App, 1993), the Idaho Court of Appeals gave

the following helpful explanation:

Both parties here urge application of a “plain view”

analysis.

. . . However, we conclude that the plain view

doctrine is not the proper framework for analysis of [the

ofﬁcer’s] . . . observation through the [mobile home’s] cor-

ner window, for the plain view doctrine addresses the

validity of warrantless seizures, not searches.

. . . [T]he United States Supreme Court [has] clariﬁed

that the plain view doctrine is a constitutionally recog-

nized justiﬁcation only for warrantless seizures, not war-

rantless searches[.]

* * *

. . . [T]he plain view doctrine refers only to the circum-

stances where an ofﬁcer has a prior justiﬁcation for an

intrusion into a constitutionally protected area or activity

and in the course of that intrusion spots and seizes

incriminating evidence. . . . Accordingly, it is warrantless

seizures of readily visible items, not warrantless searches,

that are limited by the criteria delineated under the plain

view doctrine.

The validity of a law enforcement ofﬁcer’s mere obser-

vation of objects or activities requires a different analysis.

If the ofﬁcer intruded into an area where a privacy

6 325

ICH

1 [June

PINION OF THE

OURT

interest exists in order to gain the view, the intrusion

must

be justiﬁed by one of the recognized exceptions to the

warrant requirement. However, a policeman’s mere obser-

vation from a vantage point that does not infringe upon a

privacy interest, of something open to public view, nor-

mally implicates no Fourth Amendment constraints be-

cause observation of items readily visible to the public is

not a “search.” . . . What a person knowingly exposes to

the public, even in his own home or ofﬁce, is not a subject

of Fourth Amendment protection.

This Court and others have used the term “open view

doctrine” to refer to this rule that no Fourth Amendment

“search” occurs where a law enforcement ofﬁcer observes

incriminating evidence or unlawful activity from a non-

intrusive vantage point. State v Ramirez, 121 Idaho 319,

322[; 824 P2d 894 (Idaho App, 1992)] (ofﬁcer’s view into a

car in a public parking lot) . . . . The “open view” terminol-

ogy distinguishes the analysis applicable to warrantless

observations from the legally distinct “plain view” doctrine

applicable to seizures.

The open view analysis must be applied to determine

whether [the ofﬁcer’s] view through the corner window

was an unreasonable search prohibited by the Fourth

Amendment. . . . If his vantage point was not within a

constitutionally protected area, his observation using only

his normal vision to see that which was open to public

gaze, was permissible under the open view doctrine.

[Citations and quotation marks omitted.]

The Idaho court relied, in part, on T

exas

v Brown,

460 US 730, 739; 103 S Ct 1535; 75 L Ed 2d 502 (1983),

wherein the United States Supreme Court indicated

that the plain-view doctrine provides a basis to seize

an item when the ofﬁcer’s access to the object had some

previous justiﬁcation under the Fourth Amendment.

The Court cautioned that it is important to distinguish

“plain view” justifying a seizure of an object from an

ofﬁcer’s observation of an item left in plain or open

sight, the latter of which does not involve a Fourth

2018] P

EOPLE V

ARBEE

PINION OF THE

OURT

Amendment search. Id

. at 738 n 4. The information

gleaned as a result of observation of an object in plain

or open sight can form the basis of probable cause or

reasonable suspicion to proceed further. Id. The con-

cept of open view was noted recently by our Supreme

Court in People v Frederick, 500 Mich 228, 237 n 4; 895

NW2d 541 (2017):

For example, looking into the windows of a home from

sidewalk or other public area is not a search. But it is

information-gathering, such that, if the police trespass on

the home’s curtilage and peer through the windows from

that vantage point, they have conducted a search. The

trespass converts conduct that would not otherwise con-

stitute a search into a search.

[1]

Accordingly, the more precise question here is

whether

the police conducted a search that implicated

Fourth Amendment protections by simply pulling up to

the vehicle in which defendant was a passenger and

observing movements taking place inside the car aided

with ﬂashlights. Stated otherwise, the issue is whether

defendant’s movements inside the car were in “open

view.” In turn, as we will explain, the analysis requires

a determination whether defendant had a reasonable

expectation of privacy or whether the ofﬁcers’ conduct

constituted a trespass for purposes of information

gathering.

In Frederick, 500 Mich 228, the Michigan Supreme

Court examined whether police conduct amounted to

permissible “knock and talks” or warrantless searches

in violation of the Fourth Amendment when police

made early morning unscheduled visits to the two

See

also Florida v Riley, 488 US 445; 109 S Ct 693; 102 L Ed 2d 835

(1989) (examining whether ofﬁcer’s observation of partially covered

greenhouse in a backyard from the vantage point of a helicopter was a

search under the Fourth Amendment).

8 325

ICH

1 [June

PINION OF THE

OURT

defendants’ homes, obtained consents to search, and

discovered

marijuana-related products in each home.

The Court held:

Because these knock and talks were outside the scope of

the implied license [to go up to a house and knock on a

door], the ofﬁcers trespassed on Fourth-Amendment-

protected property. And because the ofﬁcers trespassed

while seeking information, they performed illegal

searches. Finally, because of these illegal searches, the

defendants’ consent—even if voluntary—is nonetheless

invalid unless it was sufﬁciently attenuated from the

illegality. [Id. at 244.]

As part of the analysis, the Frederick Court

ac-

knowledged the decision in Florida v Jardines, 569 US

1; 133 S Ct 1409; 185 L Ed 2d 495 (2013), in which the

police went to the front door of a house with a trained

police dog who explored the area and alerted ofﬁcers of

the smell of drugs, which information was then used to

obtain a search warrant. Frederick, 500 Mich at 234-

236. Our Supreme Court noted that the Jardines Court

held that introducing a trained police dog to explore

around the outside of a home in hopes of discovering

incriminating information went beyond any customary

invitation typically applicable to a limited licensee

(knock promptly, wait brieﬂy for response, and then

leave unless invited to linger longer), thereby trespass-

ing on property protected by the Fourth Amendment.

Frederick, 500 Mich at 236. The Frederick Court ob-

served that the rule emanating from Jardines is that a

trespass plus an attempt to gather information consti-

tutes a search and thus implicates Fourth Amendment

protections. Id. Our Supreme Court also noted that the

expectation-of-privacy analysis for purposes of the

Fourth Amendment set forth in Katz v United States,

389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), along

with the property-rights or trespass analysis pertain-

2018] P

EOPLE V

ARBEE

PINION OF THE

OURT

ing to the Fourth Amendment, are both part of Fourth

Amendment

jurisprudence subject to consideration.

Frederick, 500 Mich at 235 n 2.

We hold that there was no reasonable expectation of

privacy by defendant relative to his movements in the

car parked on a public street and that there was no

trespass by the police when they pulled up to the

vehicle and looked inside. Therefore, the Fourth

Amendment was not implicated and there was no

search when the police pulled alongside the parked car

and observed defendant’s movements therein. There

plainly was no trespass, and defendant, while arguing

that the ofﬁcers’ conduct was intrusive, makes no

claim of a trespass. Defendant does maintain that he

and his female companion had a reasonable expecta-

tion of privacy. We disagree. In Brown, 460 US at 740,

the United States Supreme Court ruled:

. . . [T]he fact that [the ofﬁcer] changed his position and

bent

down

at an angle so he could see what was inside

Brown’s car . . . is irrelevant to Fourth Amendment analy-

sis. The general public could peer into the interior of

Brown’s automobile from any number of angles; there is

no reason [the ofﬁcer] should be precluded from observing

as an ofﬁcer what would be entirely visible to him as a

private citizen. There is no legitimate expectation of

privacy shielding that portion of the interior of an auto-

mobile which may be viewed from outside the vehicle by

either inquisitive passersby or diligent police ofﬁcers. In

short, the conduct that enabled [the ofﬁcer] to observe the

interior of Brown’s car and of his open glove compartment

was not a search within the meaning of the Fourth

Amendment. [Citations, quotation marks, and brackets

omitted.]

[2]

See

also State v Harris, 98 Ohio App 3d 543, 547; 649 NE2d 7 (1994)

(holding that a person generally has no reasonable expectation of

privacy in a public area, as there is always a risk that others will see

things in open view, and while a defendant “may have a subjective

10 325

ICH

1 [June

PINION OF THE

OURT

Accordingly, we conclude that defendant did not have

reasonable or legitimate expectation of privacy in the

vehicle that was parked on a public street. To the extent

that defendant’s argument encompasses employment of

the ﬂashlights by the ofﬁcers, it is unavailing. See

Brown, 460 US at 740 (“Numerous . . . courts have

agreed that the use of artiﬁcial means to illuminate a

darkened area simply does not constitute a search, and

thus triggers no Fourth Amendment protection.”);

People v Custer (On Remand), 248 Mich App 552, 562;

640 NW2d 576 (2001) (holding that if a police ofﬁcer’s

observation would not have constituted a search had it

taken place in the daylight, then the fact that the ofﬁcer

used a ﬂashlight to see through the nighttime darkness

does not transform any observation into a search).

In sum, because ﬁling a pretrial motion to suppress

the

gun would have been futile, defense counsel was

not ineffective, as counsel is not required to ﬁle merit-

less or futile motions. People v Fonville, 291 Mich App

363, 384; 804 NW2d 878 (2011).

expectation of privacy in his car while parked in a business lot, it is not

one

which this court, or more importantly, society is prepared to

recognize as reasonable”) (quotation marks and citation omitted); State

v Ramirez, 121 Idaho 319, 322; 824 P2d 894 (App, 1991) (holding that a

car located in the parking lot of a bar is readily subject to observation by

members of the public, and there exists no cognizable right to privacy in

that portion of the vehicle’s interior that may be viewed from outside the

car by either an inquisitive passerby or a diligent police ofﬁcer).

Although defendant’s argument does not reach the issues, we

conclude that defendant’s suspicious movements inside the car justiﬁed,

minimally, a brief Terry detention for purposes of investigating the

possibility of criminal activity being afoot. People v Custer, 465 Mich

319, 326-327; 630 NW2d 870 (2001), citing Terry v Ohio, 392 US 1; 88 S

Ct 1868; 20 L Ed 2d 889 (1968). And the ofﬁcer’s observation of the back

of the gun handle was from a lawful position regardless of the use of the

ﬂashlight, Custer, 248 Mich App at 562, thereby implicating, at this

juncture, the plain-view doctrine, Champion, 452 Mich at 101, allowing

for the seizure of the gun.

2018] P

EOPLE V

ARBEE

PINION OF THE

OURT

Defendant next argues that there was insufﬁcient

evidence

to prove beyond a reasonable doubt that he

had ever possessed the gun. Again, we disagree. View-

ing the direct and circumstantial evidence in a light

most favorable to the prosecution, People v Reese, 491

Mich 127, 139; 815 NW2d 85 (2012); People v Hardi-

man, 466 Mich 417, 428; 646 NW2d 158 (2002), adher-

ing to the principle that we must not interfere with the

trier of fact’s role in assessing the weight of the

evidence and the credibility of the witnesses, People v

Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992),

mod 441 Mich 1201 (1992), appreciating that circum-

stantial evidence and reasonable inferences arising

from such evidence can constitute satisfactory proof of

an element of a crime, People v Carines, 460 Mich 750,

757; 597 NW2d 130 (1999), including ﬁrearm posses-

sion, People v Johnson, 293 Mich App 79, 83; 808

NW2d 815 (2011), and resolving all conﬂicts in the

evidence in favor of the prosecution, People v Kanaan,

278 Mich App 594, 619; 751 NW2d 57 (2008), we hold

that there was sufﬁcient evidence for the trial court to

ﬁnd beyond a reasonable doubt that defendant pos-

sessed the gun.

Despite the lack of any direct evidence that defen-

dant

physically

possessed the gun, we hold that there

existed sufﬁcient circumstantial evidence from which

it could be reasonably inferred that defendant had

actually possessed the gun before and at the time the

police pulled up next to the vehicle in which defendant

was a passenger. See People v Minch, 493 Mich 87, 91;

“Possession”

is an element of felon-in-possession, MCL 750.224f;

People v Bass, 317 Mich App 241, 268-269; 893 NW2d 140 (2016), and

felony-ﬁrearm, MCL 750.227b; People v Peals, 476 Mich 636, 640; 720

NW2d 196 (2006); Johnson, 293 Mich App at 82-83, and the “carrying”

element of CCW has been equated to possession, People v Butler, 413

Mich 377, 390 n 11; 319 NW2d 540 (1982).

12 325 M

ICH

1 [June

PINION OF THE

OURT

825 NW2d 560 (2012) (explaining that possession of a

ﬁrearm

can be either actual or constructive).

The

police testimony describing defendant’s suspicious

movements and his startled appearance when the

ofﬁcers stopped, his conduct in immediately jumping

out of the vehicle, and the discovery of the weapon

partway under the passenger seat, which location

would be consistent with the nature of defendant’s

movements that suggested he had placed something

under his seat, gave rise to a reasonable inference that

defendant had physically handled and possessed the

ﬁrearm. The evidence was sufﬁcient to support the

verdicts.

Afﬁrmed.

ONAYNE

RAUSE

, J., concurred with M

URPHY

, P.J.

ANSEN

, J. (concurring). I concur in the result only.

appears from the trial court’s written opinion and comments from

the bench that the court found that defendant had actually possessed

the gun, absent any reliance on constructive possession.

2018] P

EOPLE V

ARBEE

PINION BY

ANSEN

, J.

PEOPLE v CRAWFORD (ON REMAND)

Docket

No. 330215. Submitted March 14, 2018, at Lansing. Decided

June 26, 2018, at 9:05 a.m. Vacated in part 503 Mich 990 (2019).

Antonio W. Crawford was convicted after a jury trial in the

Muskegon Circuit Court of two counts of armed robbery, MCL

750.529, and sentenced to concurrent prison terms of 9

/2 to 32

years. Testimony elicited by the prosecution indicated that defen-

dant, who was attending a graduation party, had learned through

Facebook about a video game that two teenagers were selling

from a hospital, a location they chose because it had wireless

Internet service, and that defendant told people at the party he

was going to go get the game. Defendant, who did not know the

sellers, went to the hospital, introduced himself using the name of

a personal rival, and told them he wanted to buy the game but

ﬁrst needed to break two 20-dollar bills, which he told them he

could do at his house. The three biked to a house, and after

defendant chatted with the sellers outside the house, he con-

vinced them to hand him the game and their cell phones, which

defendant expressed an interest in trading. Defendant began

walking toward the house, then ran away and pointed a gun at

the sellers when they tried to stop him. Before trial, defendant,

who had initially told the police that he had an alibi, instead

provided a statement indicating that he had gone to the hospital

to use the bathroom and, while there, two people approached him

seeking to buy drugs, then seeking to sell a video game. The

statement claimed that defendant had returned the game to the

people after telling them he was not interested. At trial, the

prosecution introduced evidence that defendant had previously

robbed a teenager by attacking him from behind and taking his

MP3 player and headphones, explaining that evidence of this

2011 incident was relevant to show intent and motive. Defendant

appealed as of right, and the Court of Appeals afﬁrmed his

convictions and sentences, holding that although the other-acts

evidence was not similar enough to the charged acts to support an

inference of a common plan, scheme, or system, it was sufﬁciently

similar to be admissible for showing intent. People v Crawford,

unpublished per curiam opinion of the Court of Appeals, issued

May 16, 2017 (Docket No. 330215). Defendant appealed in the

14 325

ICH

14 [June

Supreme Court, which, in lieu of granting leave to appeal,

vacated

the part of the Court of Appeals judgment holding that

the other-acts evidence was properly admitted to show intent and

remanded the case to the Court of Appeals for reconsideration,

under People v Denson, 500 Mich 385 (2017), of “whether the

other-acts evidence was relevant to show the necessary intent for

armed robbery and not merely propensity for wrongdoing.” 501

Mich 974 (2018). The Supreme Court denied leave to appeal in all

other respects.

The Court of Appeals held:

1. MRE 404(b)(1) provides that although evidence of other

crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith, it may

be admissible for other purposes, including proof of intent. In

Denson, the Supreme Court examined MRE 404(b) in the context

of other-acts evidence that was admitted on the basis of similarity

and for the purpose of rebutting the defendant’s claims of self-

defense and defense of others. The Denson Court used the

four-prong test set forth in People v VanderVliet, 444 Mich 52

(1993), which requires a court to determine whether the prosecu-

tion has articulated a proper noncharacter purpose for admission

of the other-acts evidence, whether the other-acts evidence is

logically relevant, whether the probative value of the other-acts

evidence is substantially outweighed by the danger of unfair

prejudice, and whether to provide a limiting instruction under

MRE 105 if requested to do so. Evidence is logically relevant if it

is material and has probative value. Other-acts evidence is

material if it is related to a fact that is of consequence in the case,

meaning that the fact sought to be proven must truly be at issue.

Evidence is probative if it tends to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.

In the context of other-acts evidence, the court must determine

whether the prosecution has established some intermediate in-

ference, other than the improper inference of character, which in

turn is probative of the ultimate issues in the case. If not, the

evidence is inadmissible. In making this determination, a court

must examine the similarity between the other act and the

charged offense. The degree of similarity that is required between

a defendant’s other act and the charged offense depends on the

manner in which the prosecution intends to use the other-acts

evidence. When other acts are offered to show intent, logical

relevance dictates only that the charged crime and the proffered

other acts are of the same general category.

2018] P

EOPLE V

RAWFORD

EMAND

) 15

2. The trial court did not abuse its discretion by admitting

evidence

of the 2011 robbery. First, admission of the other-acts

evidence served the proper purpose of showing defendant’s in-

tent. There was evidence that defendant had told someone at the

party that he was leaving in order to get the video game; on the

other hand, defendant told the police that he went to the hospital

simply to use a bathroom and coincidentally ran into the sellers.

As part of the prosecution’s attempt to prove that defendant acted

with the intent to permanently deprive the sellers of their

property, which is an element of armed robbery, the prosecution

was not limited to presenting evidence pertaining to the imme-

diate point at which defendant walked off with the cell phones

and video game. Second, the evidence of the 2011 robbery com-

mitted by defendant was material to a fact that was of conse-

quence at trial, namely, defendant’s intent to permanently de-

prive the victims of their property. Further, because evidence of

the 2011 robbery made it more probable than without the

evidence that defendant acted with the necessary intent to steal,

the prosecution established the proper intermediate inference of

intent arising from the other-acts evidence, and not the improper

inference of character or propensity to commit the crime. When

other acts are offered to show intent, logical relevance dictates

only that the charged crime and the proffered other acts are of the

same general category, and both crimes involved using the

element of surprise to rob teenage victims of electronic devices.

For purposes of establishing an intermediate inference of intent,

the two offenses were sufﬁciently similar. Third, evidence of the

2011 robbery had signiﬁcant probative value with respect to the

issue of proving defendant’s intent, and the probative value was

not substantially outweighed by the danger of unfair prejudice

given that the other-acts evidence did not inject considerations

such as jury bias, shock, or anger. Finally, any error in the trial

court’s ruling was harmless given that the testimony of the two

victims was consistent, that defendant provided the police with

conﬂicting accounts, and that testimony indicated that defendant

forced one of the victims to deny on camera that defendant had

participated in the crime.

Afﬁrmed.

Judge M

ARKEY

, concurring in part and dissenting in part,

would have held that the trial court abused its discretion by

admitting the other-acts evidence because the evidence of the

prior robbery was only marginally probative of defendant’s intent

regarding the charged armed robbery given that the other-acts

evidence sought to negate defendant’s statement of innocent

16 325 M

ICH

14 [June

intent regarding his conduct before the

robbery occurred, a point

at which defendant’s intent was of little consequence, and be-

cause she believed the other-acts evidence only operated to show

defendant’s intent through the prohibited inference of propensity.

However, she concurred in the result reached by the majority

because she agreed that the error was harmless.

1. E

VIDENCE —

THER

-A

CTS

VIDENCE —

ELEVANCE —

IMILARITY —

ROOF OF

NTENT

To determine whether evidence of a defendant’s other crimes,

wrongs, or acts is admissible under MRE 404(b), a court must

determine whether the prosecution has established some inter-

mediate inference, other than the improper inference that a

defendant was acting in conformity with his or her character,

which in turn is probative of the ultimate issues in the case; in

making this determination, a court must examine the similarity

between the other act and the charged offense; the degree of

similarity that is required between a defendant’s other act and

the charged offense depends on the manner in which the pros-

ecution intends to use the other-acts evidence; when other acts

are offered to show intent, logical relevance dictates only that the

charged crime and the proffered other acts are of the same

general category.

2. E

VIDENCE —

THER

-A

CTS

VIDENCE —

ELEVANCE —

ROOF OF

NTENT —

IMING

In using other-acts evidence to establish that a defendant acted

with the requisite intent to commit a robbery, the prosecution is

not limited to presenting evidence pertaining to the immediate

point at which the defendant acted to permanently deprive the

victim of his or her property.

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Dale J. Hilson, Muskegon County

Prosecutor, and Charles F. Justian, Chief Appellate

Attorney, for the people.

Wistrom Law, PLLC (by Kevin J. Wistrom) for defen-

dant.

ON REMAND

Before: M

ARKEY

, P.J., and M

URPHY

and M

ETER

, JJ.

2018] P

EOPLE V

RAWFORD

EMAND

) 17

URPHY

, J. Defendant was convicted after a jury trial

of two counts of armed robbery, MCL 750.529, and

sentenced to concurrent prison terms of 9

to 32 years.

Defendant appealed as of right, and this panel afﬁrmed

his convictions and sentences. People v Crawford, un-

published per curiam opinion of the Court of Appeals,

issued May 16, 2017 (Docket No. 330215). In lieu of

granting leave to appeal, our Supreme Court vacated

solely that part of our judgment which held that other-

acts evidence of a prior robbery was properly admitted

to show intent. People v Crawford, 501 Mich 974 (2018).

The Supreme Court directed us to reconsider, under

People v Denson, 500 Mich 385; 902 NW2d 306 (2017),

“whether the other-acts evidence was relevant to show

the necessary intent for armed robbery and not merely

propensity for wrongdoing.” Crawford, 501 Mich at 974.

Leave to appeal was denied in all other respects. Id. We

hold that evidence of the 2011 robbery served the proper

purpose of showing “intent,” MRE 404(b)(1), that it was

logically relevant, MRE 401 and MRE 402, and that the

probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice, MRE 403.

See Denson, 500 Mich at 398, quoting People v Vander-

Vliet, 444 Mich 52, 55; 508 NW2d 114 (1993). Moreover,

assuming error, it was harmless. MCL 769.26; People v

Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).

Accordingly, we once again afﬁrm.

We begin our discussion with the pertinent testimony

elicited by the prosecution at trial. Jaeden Kammers

posted on his Facebook page that he had a video game

for sale. Kammers and a friend, Daniel Ribon, later rode

their bikes to Hackley Hospital because it had wireless

Internet service and they wished to send a message

about the game to a friend, Jainautica Watkins, who

was attending a graduation party. From the hospital,

a message was sent by Kammers, and Watkins re-

18 325 M

ICH

14 [June

PINION OF THE

OURT

sponded using his cell phone, indicating that he was

nterested in purchasing the video game. Watkins

allowed defendant, who was also present at the

graduation party, to use his cell phone to check

Facebook. Defendant, using Watkins’s cell phone,

began communicating with Kammers. Defendant

learned about the video game and the presence of

Kammers at Hackley Hospital. He then left the

graduation party, telling Watkins, “I’m gonna go get

that game.” Defendant went to the hospital, meeting

Kammers and Ribon at that location. Defendant, who

was unknown to both Kammers and Ribon, falsely

identiﬁed himself, giving the name of a personal rival.

Defendant indicated a desire to purchase the game

but claimed that he ﬁrst needed to break a couple of

20-dollar bills. He supposedly was unsuccessful in

doing so at the hospital. Defendant next informed

Kammers and Ribon that he could get change at his

house, and the three of them biked to a house.

Defendant did not go inside, and he engaged Kammers

and Ribon in friendly conversation outside the house.

Kammers and Ribon allowed defendant to examine the

video game and their cell phones after defendant

suggested the possibility of trading phones. With the

game and phones in hand, defendant began walking

toward the house, leading Kammers and Ribon to

believe that he was going to get money inside. Defen-

dant instead started to run away, and upon an attempt

by Kammers and Ribon to stop him, defendant pointed

a gun at the pair, asking whether they were “tryin’ to

do something.”

On the day before the trial began, defendant, who

had earlier told the police that he had an alibi, pro-

vided a new statement to the police, indicating that

defendant had been at the graduation party on the day

2018] P

EOPLE V

RAWFORD

EMAND

) 19

PINION OF THE

OURT

of the offense, that he left the party after about 30

minutes,

that he walked to nearby Hackley Hospital to

use a bathroom, that he inadvertently bumped into

Kammers and Ribon at the hospital, with the two

making a request to purchase drugs from defendant,

and that defendant refused to sell them any drugs.

Defendant further asserted that Kammers and Ribon

then pulled out a video game and asked him whether

he was interested in buying it, and that defendant

looked at the game, but then returned it to them,

declining to purchase the game because he did not

have the required gaming system. Defendant addition-

ally claimed that, upon request, he allowed Kammers

and Ribon to look at defendant’s cell phone, that they

returned his phone to him, and that he then left.

Defendant’s statement effectively constituted a claim

that he went to the hospital with innocent intent,

lacking any plan or intent to rob Kammers and Ribon,

and that he indeed did not rob them.

With respect to the other-acts evidence, the 2011

robbery committed by defendant entailed defendant

walking behind the 15-year-old victim, suddenly at-

tacking the teenager from the rear, physically assault-

ing him, and then stealing the victim’s MP3 player and

headphones. The prosecutor successfully argued in

favor of the introduction of the other-acts evidence,

maintaining, in part, that it was admissible to show

intent and motive, especially in light of defendant’s

most recent statement that he had an innocent inter-

action with Kammers and Ribon at Hackley Hospital.

We review for an abuse of discretion a trial court’s

decision to admit evidence. Denson, 500 Mich at 396.

“However, whether a rule or statute precludes admis-

sion of evidence is a preliminary question of law that

this Court reviews de novo.” Id. When a trial court

20 325 M

ICH

14 [June

PINION OF THE

OURT

admits evidence that is inadmissible as a matter of law,

the

court necessarily abuses its discretion. Id.

MCL 750.529, Michigan’s armed robbery statute,

sets forth the nature of the crime, providing, in perti-

nent part, as follows:

A person who engages in conduct proscribed under

section

530 and who in the course of engaging in that

conduct, possesses a dangerous weapon or an article used

or fashioned in a manner to lead any person present to

reasonably believe the article is a dangerous weapon, or

who represents orally or otherwise that he or she is in

possession of a dangerous weapon, is guilty of a felony

punishable by imprisonment for life or for any term of

years.

As indicated in this statutory language, MCL

750.529

incorporates by reference MCL 750.530, which

is the general robbery statute, and which provides:

(1) A person who, in the course of committing a larceny

any

money or other property that may be the subject of

larceny, uses force or violence against any person who is

present, or who assaults or puts the person in fear, is

guilty of a felony punishable by imprisonment for not

more than 15 years.

(2) As used in this section, “in the course of committing

a larceny” includes acts that occur in an attempt to

commit the larceny, or during commission of the larceny,

or in ﬂight or attempted ﬂight after the commission of the

larceny, or in an attempt to retain possession of the

property.

Armed robbery is a speciﬁc-intent crime, requiring

proof

that the defendant intended to permanently

deprive the owner of his or her property. People v

Harverson, 291 Mich App 171, 177-178, 178 n 2; 804

NW2d 757 (2010); People v Williams, 288 Mich App 67,

72 n 3, 76; 792 NW2d 384 (2010), aff’d 491 Mich 164

(2012); People v Lee, 243 Mich App 163, 168; 622 NW2d

2018] P

EOPLE V

RAWFORD

EMAND

) 21

PINION OF THE

OURT

71 (2000); People

v Parker, 230 Mich App 337, 344; 584

NW2d 336 (1998); People v King, 210 Mich App 425,

428; 534 NW2d 534 (1995); M Crim JI 18.1 (setting

forth the elements of armed robbery and deﬁning the

“larceny” component as the “taking and movement of

someone else’s property or money with the intent to

take it away from that person permanently”). Accord-

ingly, the prosecution in the instant case was required

to establish beyond a reasonable doubt that defendant

intended to permanently deprive the two victims of

their property.

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.

[Emphasis added.]

In Denson,

our

Supreme Court examined MRE

404(b) in the context of other-acts evidence that was

admitted on the basis of similarity and for the purpose

of rebutting the defendant’s claims of self-defense and

defense of others. The Court reviewed the test for

admitting other-acts evidence under MRE 404(b), cit-

ing the VanderVliet factors. Denson, 500 Mich at 398.

With respect to the ﬁrst prong, the Denson Court

stated:

Under the ﬁrst prong of the V

anderVliet test, the

question is whether the prosecution has articulated a

proper noncharacter purpose for admission of the other-

acts evidence. The prosecution bears the burden of estab-

lishing that purpose. MRE 404(b) prohibits the admission

22 325

ICH

14 [June

PINION OF THE

OURT

of other-acts evidence when the prosecution’s only theory

relevance is that the other act demonstrates the defen-

dant’s inclination for wrongdoing in general and thus

indicates that the defendant committed the conduct in

question. On the other hand, such other-acts evidence may

be admissible whenever it is also relevant to a nonchar-

acter purpose, such as one of the purposes speciﬁcally

enumerated in MRE 404(b)(1).

* * *

. . . [W]e have warned that a common pitfall in MRE

404(b) cases is that trial courts tend to admit other-acts

evidence merely because the proponent has articulated a

permissible purpose. The “mechanical recitation” of a

permissible purpose, without explaining how the evidence

relates to the recited purpose, is insufﬁcient to justify

admission under MRE 404(b). It is incumbent on a trial

court to vigilantly weed out character evidence that is

disguised as something else. In other words, merely recit-

ing a proper purpose does not actually demonstrate the

existence of a proper purpose for the particular other-acts

evidence at issue and does not automatically render the

evidence admissible. Rather, in order to determine

whether an articulated purpose is, in fact, merely a front

for the improper admission of other-acts evidence, the

trial court must closely scrutinize the logical relevance of

the evidence under the second prong of the VanderVliet

test. [Denson, 500 Mich at 398-400 (citations, quotation

marks, and brackets omitted).]

The second prong of the V

anderVliet test—logical

relevance—implicates

MRE 401 and MRE 402 and is

the “touchstone” relative to the admissibility of other-

acts evidence. Denson, 500 Mich at 400-401.

“Other-

acts

evidence is logically relevant if two components

MRE

401 and MRE 402 provide, respectively, as follows:

“Relevant evidence” means evidence having any tendency to

make the existence of any fact that is of consequence to the

2018] P

EOPLE V

RAWFORD

EMAND

) 23

PINION OF THE

OURT

are present: materiality and probative value.” Id

. at

401. Concerning “materiality,” it requires other-acts

evidence to be related to a fact that is of consequence in

the case, meaning that the fact sought to be proven

must truly be at issue. Id. In relation to materiality,

the Denson Court noted that the prosecution has the

burden to prove all the elements of a charged crime

beyond a reasonable doubt. Id. With respect to proba-

tive value, the Supreme Court explained:

The prosecution must demonstrate the probative value

the other-acts evidence. . . .

Evidence is probative if it tends to make the existence

of any fact that is of consequence to the determination of

the action more probable or less probable than it would be

without the evidence. Generally, the threshold is minimal:

any tendency is sufﬁcient probative force. In the context of

prior acts evidence, however, MRE 404(b) stands as a

sentinel at the gate: the proffered evidence truly must be

probative of something other than the defendant’s propen-

sity to commit the crime. Thus, although the prosecution

might claim a permissible purpose for the evidence under

MRE 404(b), the prosecution must also explain how the

evidence is relevant to that purpose without relying on a

propensity inference. Ultimately, the court must deter-

mine whether the prosecution has established some inter-

mediate inference, other than the improper inference of

character, which in turn is probative of the ultimate issues

in the case. If not, the evidence is inadmissible.

In evaluating whether the prosecution has provided an

intermediate inference other than an impermissible char-

acter inference, we examine the similarity between a

determination of the action more probable or less probable than it

would

be without the evidence. [MRE 401.]

All relevant evidence is admissible, except as otherwise pro-

vided by the Constitution of the United States, the Constitution of

the State of Michigan, these rules, or other rules adopted by the

Supreme Court. Evidence which is not relevant is not admissible.

[MRE 402.]

24 325

ICH

14 [June

PINION OF THE

OURT

defendant’s other act and the charged offense. In this case,

note that the prosecution sought to admit the other-

acts evidence particularly based on the alleged similari-

ties between the 2002 incident and the charged offense.

The degree of similarity that is required between a defen-

dant’s other act and the charged offense depends on the

manner in which the prosecution intends to use the

other-acts evidence. [Id. at 401-403 (citations, quotation

marks, ellipsis, and brackets omitted).]

We note that “[w]hen other acts are offered to show

intent,

logical relevance dictates only that the charged

crime and the proffered other acts are of the same

general category.” VanderVliet, 444 Mich at 79-80 (em-

phasis added; quotation marks and citation omitted).

“The level of similarity required when disproving in-

nocent intent is less than when proving modus ope-

randi.” Id. at 80 n 36; see also People v Mardlin, 487

Mich 609, 622; 790 NW2d 607 (2010).

The third prong of the VanderVliet test provides that

the probative value of the other-acts evidence cannot

be substantially outweighed by the danger of unfair

prejudice. Denson, 500 Mich at 398. The Denson Court

did not ﬁnd it necessary to construe and discuss this

prong because it concluded that the other-acts evidence

was inadmissible on the ground that it was not logi-

cally relevant to a permissible purpose. Id. at 409 n 13.

The third prong simply requires the trial court to

“employ the balancing process under [MRE] 403.”

VanderVliet, 444 Mich at 74-75. MRE 403 provides:

Although relevant, evidence may be excluded if its

probative

value

is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.

The fourth and ﬁnal V

anderVliet prong states that

“the trial court, upon request, may provide a limiting

2018] P

EOPLE V

RAWFORD

EMAND

) 25

PINION OF THE

OURT

instruction under [MRE] 105.” V

anderVliet, 444 Mich

at 75; see also Denson, 500 Mich at 398.

Here, the evidence suggests that defendant’s plan

was to engage Kammers and Ribon in an unthreaten-

ing manner and with friendly banter, all as part of a

ruse to have the unsuspecting pair lower their guards,

which obviously occurred when Kammers and Ribon

voluntarily handed the game and their cell phones to

defendant. Indeed, Kammers and Ribon were not even

concerned when defendant initially began to walk

away from them with their property. Subterfuge and

deception were revealed when defendant provided

Kammers and Ribon with a false name at the hospital.

Under these circumstances, we believe that the crime

ﬁrst began unfolding when defendant met Kammers

and Ribon at Hackley Hospital. Thus, defendant’s

conduct and interactions with the victims associated

with events at Hackley Hospital, placing Kammers

and Ribon at ease and making them susceptible to

robbery, can be viewed as occurring in the course of

committing a larceny or during the commission of a

larceny, even though the period was somewhat pro-

tracted. MCL 750.529; MCL 750.530.

Regardless, as indicated earlier, the prosecution was

required to prove that defendant acted with the intent

to permanently deprive Kammers and Ribon of their

property, i.e., that defendant intended to rob them or

steal from them. As part of attempting to satisfy that

burden of proof, the prosecution was certainly entitled

to present evidence showing that defendant had

formed the requisite intent to steal as early as the

graduation party when he was using Watkins’s cell

phone. Importantly, the prosecution was not limited to

proving intent solely by way of evidence pertaining to

the immediate point at which defendant walked off

26 325 M

ICH

14 [June

PINION OF THE

OURT

with the cell phones and video game.

The

intent to

commit a crime can be developed or exist long before an

offense is actually committed. Thus, for example, if

there is testimony that a perpetrator was overheard

stating an intent to kill a particular person and that

person was murdered a week later, the testimony can

be used to establish an intent to kill in a murder

prosecution, with the testimony being critical on the

issue of intent despite the lapse of time between the

perpetrator’s statement and the killing. In the instant

case, there was evidence that defendant told Watkins

at the graduation party that he was leaving in order to

“go get that game” and that defendant was just string-

ing Kammers and Ribon along while at the hospital,

using a false identity. On the other hand, in defen-

dant’s statement given to police right before trial,

defendant claimed that he went to the hospital simply

to use a bathroom and coincidentally ran into Kam-

mers and Ribon. Stated otherwise, defendant asserted

a completely innocent intent in going to Hackley Hos-

pital. In light of this conﬂicting evidence, we conclude,

as to the ﬁrst prong of the VanderVliet test, that

admission of the other-acts evidence served the proper

purpose of showing defendant’s “intent,” MRE

404(b)(1), even if it was developed earlier than when he

and the victims were at the house.

With respect to logical relevance, the second

VanderVliet prong, the evidence of the 2011 robbery

committed by defendant was material to a fact that

was of consequence at trial, i.e., defendant’s intent to

permanently deprive the victims of their property,

which is an element of the crime of armed robbery.

Denson, 500 Mich at 401; Harverson, 291 Mich App at

177-178, 178 n 2. The second component of logical

e note that $5 was also taken by defendant.

2018] P

EOPLE V

RAWFORD

EMAND

) 27

PINION OF THE

OURT

relevance—probative value—requires an assessment,

n the context of this case, of whether the 2011 robbery

made it more probable than without the evidence that

defendant acted with the necessary intent to steal.

Denson, 500 Mich at 401-402. We conclude that the

prosecution established the proper intermediate infer-

ence of “intent” arising from the other-acts evidence,

and not the improper inference of character or propen-

sity to commit the crime. Id. at 402. As indicated earlier,

the Denson Court explained that “[i]n evaluating

whether the prosecution has provided an intermediate

inference other than an impermissible character infer-

ence, we examine the similarity between a defendant’s

other act and the charged offense,” with the required

degree of similarity being dependent “on the manner in

which the prosecution intends to use the other-acts

evidence.” Id. at 402-403. And, as also mentioned ear-

lier, “[w]hen other acts are offered to show intent, logical

relevance dictates only that the charged crime and the

proffered other acts are of the same general category.”

VanderVliet, 444 Mich at 79-80 (emphasis added; quo-

tation marks and citation omitted).

Both offenses involved the robbery of electronic

devices or personal property associated with electronic

devices: an MP3 player and headphones in the 2011

robbery and a video game and cell phones in the

instant prosecution. Also, both crimes involved teenage

victims. Although different in character, both robberies

involved the element of surprise, with defendant sud-

denly and unexpectedly pouncing on the victim from

behind in the 2011 robbery and, here, defendant lulling

Kammers and Ribon into a false sense of security

before suddenly and unexpectedly walking off with

their property. We recognize that there are also differ-

ences between the two offenses, given that the 2011

robbery entailed an actual physical assault and bat-

28 325 M

ICH

14 [June

PINION OF THE

OURT

tery and the instant offense did not and that a gun was

displayed

in the charged offense but not in connection

with the 2011 robbery. That said, defendant used his

cunning to avoid the need to physically assault and

injure Kammers and Ribon, while still revealing an

intent to employ violence if necessary when he ﬂashed

and pointed the gun at Kammers and Ribon. For

purposes of establishing an intermediate inference of

“intent,” we rule that the two offenses were sufﬁciently

similar. In sum, with regard to probative value, the

other-acts evidence pertaining to the 2011 robbery

made it more probable than without the evidence that

defendant acted with the requisite intent to perma-

nently deprive Kammers and Ribon of their property.

Finally, we conclude, under the balancing test set

forth in MRE 403, i.e., the third VanderVliet factor,

that the probative value of the 2011 robbery on the

issue of intent was not substantially outweighed by the

danger of unfair prejudice. MRE 403 “does not prohibit

prejudicial evidence; only evidence that is unfairly so.”

People v Crawford, 458 Mich 376, 398; 582 NW2d 785

(1998). And “[e]vidence is unfairly prejudicial when

there exists a danger that marginally probative evi-

dence will be given undue or preemptive weight by the

jury.” Id. “In other words, where a probability exists

that evidence which is minimally damaging in logic

will be weighed by the jurors substantially out of

proportion to its logically damaging effect, a situation

arises in which the danger of ‘prejudice’ exists.” People

v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod

450 Mich 1212 (1995) (quotation marks and citation

omitted). “All evidence offered by the parties is ‘preju-

dicial’ to some extent, but the fear of prejudice does not

generally render the evidence inadmissible.” Id. at 75.

Unfairness might arise when the other-acts evidence

injects considerations extraneous to the merits of a

2018] P

EOPLE V

RAWFORD

EMAND

) 29

PINION OF THE

OURT

case, e.g., a jury’s bias, shock, sympathy, or anger.

People

v McGhee, 268 Mich App 600, 614; 709 NW2d

595 (2005). “Unfairness might not exist where . . . the

critical evidence supporting a party’s position on a key

issue raises the danger of prejudice within the mean-

ing of MRE 403 . . . but the proponent of this evidence

has no less prejudicial means by which the substance

of this evidence can be admitted.” Mills, 450 Mich at 76

(quotation marks and citation omitted). “[T]he pros-

ecution may offer all relevant evidence, subject to MRE

403, on every element [of an offense],” given that the

elements of an offense “are always at issue.” Id. at 71.

We conclude that the other-acts evidence had signiﬁ-

cant probative value with respect to the issue of

proving defendant’s intent. And even if the probative

value was not that great, it cannot be said that the

probative value was substantially outweighed by the

danger of unfair prejudice. We cannot ﬁnd that the

other-acts evidence injected considerations of jury bias,

shock, or anger, or that it was given undue or preemp-

tive weight by the jury.

In sum, the trial court did not abuse its discretion or

otherwise err in admitting the other-acts evidence

regarding the 2011 robbery. Moreover, as we indicated

in the previous opinion in this case, assuming error in

the trial court’s ruling, it was harmless. Crawford,

unpub op at 6 n 3. Given that the testimony of the two

victims was consistent, that defendant provided the

police with conﬂicting accounts, having ﬁrst claimed

an alibi but then later acknowledging that he met with

Kammers and Ribon, and that there was testimony

that defendant confronted Kammers after the crime

and essentially forced him to deny on camera defen-

dant’s participation in the crime, all of which was

untainted evidence, we hold that defendant has not

30 325 M

ICH

14 [June

PINION OF THE

OURT

shown that it is more probable than not that a different

outcome

would have resulted without the assumed

evidentiary error; there was no miscarriage of justice.

MCL 769.26; Lukity, 460 Mich at 495-496.

Afﬁrmed.

ETER

, J., concurred with M

URPHY

, J.

ARKEY

, P.J. (concurring in part and dissenting in

part). I concur in the result reached by the majority,

but I respectfully disagree that the other-acts evidence

in this case, a 2011 robbery that defendant committed,

was relevant to prove the proper purpose of defen-

dant’s intent without operating through the propensity

inference that MRE 404(b) prohibits. According, I con-

clude, as our Supreme Court did in People v Crawford,

458 Mich 376, 397; 582 NW2d 785 (1998), that “[b]e-

cause MRE 404(b) expressly prohibits the use of prior

bad acts to demonstrate a defendant’s propensity to

form a certain mens rea, . . . the trial court abused its

discretion in admitting evidence of the defendant’s

prior” robbery. Nevertheless, I agree with the majority

and this Court’s prior opinion that the error of admit-

ting the other-acts evidence was harmless. People v

Crawford, unpublished per curiam opinion of the

Court of Appeals, issued May 16, 2017 (Docket No.

330215), p 6 n 3, citing People v Lukity, 460 Mich 484,

495-496; 596 NW2d 607 (1999).

Following a jury trial, defendant was convicted of

two counts of armed robbery, MCL 750.529, and the

trial court sentenced him to concurrent terms of 9

32 years’ imprisonment. On his appeal by right, this

Court afﬁrmed defendant’s convictions and sentences.

In lieu of granting leave to appeal, our Supreme Court

vacated the part of this Court’s opinion “addressing

2018] P

EOPLE V

RAWFORD

EMAND

) 31

PINION BY

ARKEY

, P.J.

whether the other-acts was probative of defendant’s

intent”

and remanded this case to this Court for

reconsideration in light of People v Denson, 500 Mich

385 (2017). People v Crawford, 501 Mich 974 (2018).

This Court was directed to “reconsider whether the

other-acts evidence was relevant to show the necessary

intent for armed robbery and not merely propensity for

wrongdoing.” Id. In all other respects, the Court denied

defendant leave to appeal. Id.

On reconsideration, I conclude that the trial court

abused its discretion by admitting the other-acts evi-

dence. The evidence of the prior robbery was only

marginally probative of defendant’s intent regarding

the charged armed robbery, and I believe it only

operated to show his intent through the prohibited

inference of propensity. The evidence sought to negate

defendant’s statement of innocent intent regarding his

conduct before the robbery occurred, a point at which

defendant’s intent was of little consequence. More

important, the prosecution did not establish a logical

intermediate inference, other than propensity, through

which the evidence was material and probative of the

necessary intent for robbery.

“MRE 404(b) prohibits the admission of other-acts

evidence when the prosecution’s only theory of rel-

evance is that the other act demonstrates the defen-

dant’s inclination for wrongdoing in general and thus

indicates that the defendant committed the conduct in

question.” People v Denson, 500 Mich 385, 398; 902

NW2d 306 (2017). Also, the prosecution bears the

burden of articulating a proper noncharacter purpose

for the other-acts evidence. Id. More is required than a

rote incantation of a permissible purpose; the prosecu-

tion must explain how the evidence relates to the

proper purpose other than through propensity. Id. at

32 325 M

ICH

14 [June

PINION BY

ARKEY

, P.J.

400. “[M]erely reciting a

proper purpose does not

actually demonstrate the existence of a proper purpose

for the particular other-acts evidence at issue and does

not automatically render the evidence admissible.” Id.

The Denson Court further stressed that trial courts

must closely scrutinize the logical link between the

other-acts evidence and the asserted proper, nonpro-

pensity purpose. Indeed, logical relevance is the

“touchstone” of admissibility of other-acts evidence,

which requires showing both materiality and probative

value. Id. at 400-401. “Materiality is the requirement

that the other-acts evidence be related to” a consequen-

tial fact. Id. at 401. Evidence has probative value when

it is relevant, “having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.” MRE

401; see also Denson, 500 Mich at 401-402. The pros-

ecution must assert not only a proper purpose for the

evidence but also “explain how the evidence is relevant

to that purpose without relying on a propensity infer-

ence.” Denson, 500 Mich at 402 (emphasis added). I

conclude the prosecution failed to articulate an inter-

mediate, nonpropensity inference through which the

prior robbery tended to prove defendant’s intent in this

case.

The intent necessary for the offense of armed rob-

bery is the intent necessary to commit larceny. People

v Williams, 288 Mich App 67, 76; 792 NW2d 384 (2010).

The intent necessary to commit larceny is supplied by

the common law, which is the intent to steal another’s

property or to permanently deprive the owner of his or

her property. People v March, 499 Mich 389, 401; 886

NW2d 396 (2016); People v Harverson, 291 Mich App

171, 177; 804 NW2d 757 (2010). By deﬁnition, the

2018] P

EOPLE V

RAWFORD

EMAND

) 33

PINION BY

ARKEY

, P.J.

necessary intent for robbery must exist while the

defendant

is “in the course of committing a larceny,”

MCL 750.530(1), which “includes acts that occur in an

attempt to commit the larceny, or during commission of

the larceny, or in ﬂight or attempted ﬂight after the

commission of the larceny, or in an attempt to retain

possession of the property.” MCL 750.530(2). In other

words, defendant’s intent before attempting to commit

a larceny is not a fact necessary to prove the offense of

robbery but may, of course, be probative of defendant’s

future intent while “in the course of committing a

larceny.” MCL 750.530.

In my view, the prosecution has failed to meet its

burden of showing that the other-acts evidence is

logically relevant to the asserted proper purpose of

intent through some intermediate inference other than

propensity. Denson, 500 Mich at 402. The prosecution

contended that the other-acts evidence was relevant to

show a scheme, plan, or system of doing an act. But

this Court determined that there were insufﬁcient

similarities between the charged offense and the prior

act for the other-acts evidence to be admitted under

this theory. See Crawford, unpub op at 5-6; see also

Denson, 500 Mich at 403 (“If the prosecution creates a

theory of relevance based on the alleged similarity

between a defendant’s other act and the charged of-

fense, we require a ‘striking similarity’ between the

two acts to ﬁnd the other act admissible.”).

The majority concludes “that admission of the other-

acts evidence served the proper purpose of showing

defendant’s ‘intent’ ” and also “that the prosecutor

established the proper intermediate inference of ‘in-

tent’ arising from the other-acts evidence, and not the

improper inference of character or propensity to com-

mit the crime.” In other words, “intent” serves both as

34 325 M

ICH

14 [June

PINION BY

ARKEY

, P.J.

the proper fact sought be proved and the intermediate

nonpropensity

inference to get to that proper fact. The

majority ﬁnds support in People v VanderVliet, 444

Mich 52, 79-80; 508 NW2d 114 (1993), in which the

Court opined that “[w]hen other acts are offered to

show intent, logical relevance dictates only that the

charged crime and the proffered other acts are of the

same general category” (emphasis added; quotation

marks and citation omitted), and also noted that mens

rea or lack of accident are permissible intermediate

inferences, id. at 87. But VanderVliet also instructs

that a proper MRE 404(b) purpose, such as intent, may

not be proved when it is proved through the prohibited

inference arising from character or propensity. Id. at

63-64.

I simply do not agree that the prior robbery shows

defendant’s “intent” by any inference other than that

defendant has the propensity to commit such crimes.

As explained by the Court in Crawford, 458 Mich at

392-393, other-acts evidence may prove intent through

the nonpropensity theory of the “doctrine of chances”

or “doctrine of objective improbability.” See also

VanderVliet, 444 Mich at 79 n 35. This theory “rests on

the premise that ‘the more often the defendant commits

an actus reus, the less is the likelihood that the defen-

dant acted accidentally or innocently.’ ” Crawford, 458

Mich at 393 (citation omitted). But because intent in

some form is almost always an element of the crime,

merely asserting that the other-acts evidence will

prove intent is insufﬁcient and must be closely scruti-

nized by courts. See id. at 394; Denson, 500 Mich at

400. For evidence to be admissible under the theory of

the doctrine of chances to prove intent, there must be a

close factual nexus in terms of similarity between the

evidence and the charged offense. Crawford, 458 Mich

at 395, nn 12 & 13. “If the prosecution creates a

2018] P

EOPLE V

RAWFORD

EMAND

) 35

PINION BY

ARKEY

, P.J.

theory of relevance based on the alleged similarity

between

a defendant’s other act and the charged of-

fense, we require a ‘striking similarity’ between the

two acts to ﬁnd the other act admissible.” Denson, 500

Mich at 403. In this case, the prior robbery is logically

relevant to defendant’s intent only if, because the two

events are so similar, it may be inferred that defendant

possessed the intent to commit robbery on each occa-

sion. But this Court held in our prior opinion that the

two robberies were not sufﬁciently similar to be admit-

ted on this basis. Crawford, unpub op at 5-6. In my

opinion, merely asserting that “intent” is both the

proper purpose and the noncharacter intermediate

inference of the prior robbery does not render it admis-

sible.

Despite my disagreement with the majority concern-

ing admissibility, I concur that the error in this case

was harmless. Under the harmless-error rule, “the

effect of the error is evaluated by assessing it in the

context of the untainted evidence to determine

whether it is more probable than not that a different

outcome would have resulted without the error.”

Lukity, 460 Mich at 495. In sum, “nonconstitutional

error is not a ground for reversal unless ‘after an

examination of the entire cause, it shall afﬁrmatively

appear’ that it is more probable than not that the error

was outcome determinative.” Id. at 495-496, quoting

MCL 769.26.

Unlike in Denson, 500 Mich at 410, the untainted

evidence of defendant’s guilt in this case was over-

whelming. At trial, the testimony of Kammers and

Ribon regarding the robbery was generally consistent.

Kammers and Ribon identiﬁed defendant as the per-

petrator at trial and throughout the investigation.

Kammers testiﬁed that defendant had identiﬁed him-

36 325 M

ICH

14 [June

PINION BY

ARKEY

, P.J.

self as Hicks, and other evidence showed that Hicks

looked

nothing like defendant and that there was

animosity between defendant and Hicks. One witness

testiﬁed that defendant would use Hicks’s name be-

cause defendant would not care if Hicks got into

trouble.

Further, evidence of defendant’s own actions indi-

cated consciousness of guilt. Defendant gave the police

conﬂicting statements regarding his whereabouts and

conduct on August 9, 2014. Defendant made a late

statement that placed him at Hackley Hospital meet-

ing the victims concerning a video game they had for

sale. Further testimony showed that, before trial, de-

fendant approached Kammers and asked him to state

on camera that defendant was not the person who

robbed him and that the police had given him defen-

dant’s name. Consequently, it does not afﬁrmatively

appear more probable than not that the error in the

admission of evidence of the 2011 robbery was

outcome-determinative. Lukity, 460 Mich at 495-496.

Therefore, I would again afﬁrm defendant’s convictions

and sentences.

2018] P

EOPLE V

RAWFORD

EMAND

) 37

PINION BY

ARKEY

, P.J.

PEOPLE v ZITKA

PEOPLE

v HERNANDEZ-ZITKA

Docket Nos. 338064 and 338065. Submitted May 8, 2018, at Lansing.

Decided May 10, 2018. Approved for publication June 26, 2018, at

9:10 a.m.

Bruce A. Zitka and Susan Hernandez-Zitka were each charged in the

Ingham Circuit Court with three counts of conducting a gambling

operation without a license, MCL 432.218(1)(a), and three counts

of using a computer to commit a crime, MCL 752.796 and MCL

752.797(3)(e). Defendants owned and operated three Internet

lounges in Muskegon County—The Landing Strip, The Lucky

Mouse, and Fast Lane—in which customers opened accounts to

wager on and play games online. The Michigan Gaming Control

Board investigated defendants’ lounges to determine whether

illegal gambling was taking place at those businesses, but the

board halted its investigation when the Norton Shores Police

Department began its own investigation of alleged gambling ac-

tivities at The Landing Strip. Following that investigation, the

Norton Shores city attorney brought a civil-nuisance-abatement

action in the Muskegon Circuit Court against The Landing Strip,

alleging violations of the local zoning code. Defendants and the city

attorney stipulated to the charges being dismissed in exchange for

defendants agreeing to operate The Landing Strip without viola-

tion of any applicable gambling laws or ordinances “as it is

currently operating.” The board then resumed its investigation of

all three lounges before later ﬁling criminal charges against

defendants in the Ingham Circuit Court. In binding defendants

over on the charges, 54-A District Court Judge Hugh Clarke

determined that the offense of using a computer to commit a crime

was a speciﬁc-intent crime, while conducting a gambling operation

without a license was a general-intent crime. Defendants moved to

quash in the Ingham Circuit Court, arguing that both offenses

were speciﬁc-intent crimes and that because the stipulated order of

dismissal of the civil case was a judicial determination that

defendants were operating the lounge legally, defendants were

acting under a mistake of law that negated the mens rea element

of both offenses. Ingham Circuit Court Judge William E. Collette

38 325 M

ICH

38 [June

granted the motion, reasoning that the prosecution was collater-

lly estopped from bringing the charges because the attorney

general could have intervened in the earlier civil litigation but

chose not to do so. The prosecution appealed.

The Court of Appeals held:

1. Collateral estoppel generally precludes relitigation of an

issue in a subsequent proceeding when that issue has previously

been the subject of a ﬁnal judgment in an earlier proceeding.

Collateral estoppel applies when (1) a question of fact essential to

the judgment was actually litigated and determined by a valid

and ﬁnal judgment; (2) the same parties had a full and fair

opportunity to litigate the issue; and (3) there was mutuality of

estoppel, which requires that the party seeking to invoke the

doctrine establish that his or her adversary was a party to, or in

privy with a party to, the previous action. The application of

collateral estoppel in the civil-to-criminal context—that is, cross-

over estoppel—is exercised cautiously because of the fundamen-

tal procedural differences in criminal and civil actions. In this

case, the civil litigation concerned defendants’ compliance with

local zoning laws in its operation of The Landing Strip, and the

legality of its operations at each lounge was not at issue. Accord-

ingly, the issue whether defendants violated state criminal laws

was not actually litigated in the civil proceeding. Because the

state had no protectable interest in the civil action involving a

local zoning ordinance and there was no coordination between the

city attorney’s ofﬁce and attorney general’s ofﬁce, the prosecution

was not a party to, or in privy with a party to, the civil action.

Finally, it would be contrary to sound public policy to apply

collateral estoppel given that the purposes of the two proceedings

were fundamentally different. For that reason, the circuit court

abused its discretion by granting defendants’ motion to quash and

dismissing the cases on the basis of collateral estoppel.

2. A speciﬁc-intent crime requires a particular criminal intent

beyond the act done, whereas a general-intent crime merely

requires the intent to perform the physical act itself. Courts will

infer an element of criminal intent when an offense is silent

regarding mens rea unless the statute contains an express or

implied indication that the legislative body intended that strict

criminal liability be imposed. MCL 432.218(1)(a) provides that a

person is guilty of a felony and shall be barred from receiving or

maintaining a license for conducting a gambling operation when

wagering is used or to be used without a license issued by the

board. The statute does not contain an express or implied

indication that the Legislature intended that strict liability be

2018] P

EOPLE V

ITKA

imposed. Instead, the statute’s use of the term “conducting”

indicates

that the mens rea element was the intent to perform the

act of “conducting,” which is consistent with a general-intent

crime. Accordingly, the district court erred by concluding that

MCL 432.218(1)(a) was a speciﬁc-intent crime.

3. Neither mistake-of-law nor entrapment by estoppel were

valid defenses to the charged crimes. Neither defense applied to

the MCL 432.218(1)(a) charges in these cases because that

offense is a general-intent crime, and defendants’ alleged belief

that they were operating the lounges in compliance with the law

was immaterial to whether they committed the offense. Neither

defense applied to the MCL 752.796 and MCL 752.797(3)(e)

charges because defendants’ claimed reliance on the city attor-

ney’s agreement in the stipulated order that operations at The

Landing Strip complied with state gambling laws was not rea-

sonable. Accordingly, the circuit court erred by granting defen-

dants’ motion to quash on the basis of collateral estoppel.

Reversed and remanded.

RIMINAL

AW —

ONDUCTING A

AMBLING

PERATION WITHOUT A

ICENSE —

ENS

EA —

ENERAL

-I

NTENT

RIME

MCL 432.218(1)(a)—which provides that a person is guilty of a

felony and shall be barred from receiving or maintaining a license

for conducting a gambling operation when wagering is used or to

be used without a license issued by the Michigan Gaming Control

Board—is a general-intent crime, the mens rea element of which

is the intent to perform the act of “conducting.”

Bill Schuette, A

ttorney General, Aaron D. Lindstrom,

Solicitor General, Laura Moody, Chief Legal Counsel,

and Daniel C. Grano, Assistant Attorney General, for

the people.

Dodge & Dodge, PC (by David A. Dodge) for defen-

dants.

Before: M

ETER

, P.J., and G

ADOLA

and T

UKEL

, JJ.

ADOLA

, J. At issue in these consolidated appeals are

the charges brought against each defendant for three

counts of conducting a gambling operation without a

license, MCL 432.218(1)(a), and three counts of using a

40 325 M

ICH

38 [June

computer to commit a crime, MCL 752.796 and MCL

52.797(3)(e). After conducting a preliminary examina-

tion, the district court found that probable cause existed

to bind over defendants, Bruce H. Zitka and Susan

Hernandez-Zitka, to the circuit court. The circuit court,

however, entered orders granting defendants’ motions

to quash the amended information and dismissing all

charges. The prosecution appeals as of right, and we

reverse and remand for further proceedings.

I. FACTUAL BACKGROUND

Defendants own and operate three Internet lounges

ocated in Muskegon County: The Landing Strip, The

Lucky Mouse, and Fast Lane. At these establishments,

customers can open accounts to wager on and play

games online, including slot and lottery-type games. On

April 14, 2015, the Michigan Gaming Control Board

(MGCB) began an investigation to determine whether

illegal gambling activities were taking place at the

lounges. The MGCB interrupted this investigation,

however, when the Norton Shores Police Department

began its own independent investigation of allegations

that unlawful gambling activities were taking place at

The Landing Strip. The city attorney for Norton Shores

subsequently ﬁled in the Muskegon Circuit Court a

civil-nuisance-abatement action against The Landing

Strip under the local zoning code. The parties ultimately

agreed to dismissal of that case, and the court entered a

stipulated order of dismissal on January 28, 2016,

stating in part, “Defendants agree to operate the Land-

ing Strip LLC without violation of any applicable gam-

bling laws or ordinances as it is currently operating.”

(Emphasis added.)

Although

this provision of the stipulated order was referred to in the

Ingham Circuit Court in the present action and in the parties’ briefs on

2018] P

EOPLE V

ITKA

Following the conclusion of the civil lawsuit, the

GCB resumed its investigation of the three lounges

in February 2016. As a result of this investigation,

defendants were each charged with three counts of

conducting a gambling operation without a license,

MCL 432.218(1)(a), and three counts of using a com-

puter to commit a crime, MCL 752.796 and MCL

752.797(3)(e). The amended information alleges an

offense period extending from February 1, 2016,

through October 31, 2016. The district court con-

ducted a two-day preliminary examination and, on

January 27, 2017, issued an opinion and order deter-

mining that probable cause supported the charges

and binding over the cases to the Ingham Circuit

Court. In reaching this conclusion, the district court

determined that the offense of using a computer to

commit a crime, MCL 752.796 and MCL 752.797(3)(e),

is a speciﬁc-intent crime, while conducting a gam-

bling operation without a license, MCL 432.218(1)(a),

constitutes a general-intent crime. With respect to the

Muskegon Circuit Court’s stipulated order of dis-

missal, the district court was “not persuaded that

the . . . [order], in a civil proceeding, is particularly

helpful here in relation to the probable cause stan-

dard.”

In the Ingham Circuit Court, defendants ﬁled iden-

tical motions to quash, arguing that the district court

erred by determining that the offense of conducting a

gambling operation without a license was a general-

intent crime as opposed to a speciﬁc-intent crime.

Defendants further asserted that because the stipu-

lated order dismissing the civil case reﬂected a judicial

determination that defendants were operating legally,

appeal, the Muskegon Circuit Court record is not part of the record

before

this Court. However, the parties do not dispute the nature of the

civil case or the contents of the relevant provision of the stipulated order.

42 325

ICH

38 [June

defendants were acting under a mistake of law that

negated

the mens rea elements of both offenses. The

circuit court granted defendants’ motions to quash and

stated on the record as follows:

My opinion is based upon the fact that the Attorney

General

of this state, in part, has the authority to inter-

vene in any litigation that they want to that would be

something that relates to state law, I believe they could

have gone back to the circuit judge in this case and asked

to intervene and have this reargued in some fashion as to

its applicability.

This appears to be a situation where apparently the

Attorney General’s ofﬁce and their other agencies were so

aggrieved by these poor people that they felt it necessary

to investigate for months and months as to whether they

existed. They could have walked right in and seen. But in

my opinion, when a circuit judge of — is it Muskegon?

* * *

. . . [The Muskegon Circuit Court judge] has the right to

make these rulings and put these rulings in effect. But as

I have seen in my cases, I have been chastised. I have been

appealed. I have even had people come in here and consent

to things and your ofﬁce appealed that because the con-

sent was wrong. I am just amazed. These cases are

dismissed.

II. STANDARD OF REVIEW

A trial court’s decision regarding a motion to quash

information

is reviewed for an abuse of discretion.

People v Miller, 288 Mich App 207, 209; 795 NW2d 156

(2010). An abuse of discretion occurs when a decision

“falls outside the range of reasonable and principled

outcomes,” People v Waterstone, 296 Mich App 121,

131-132; 818 NW2d 432 (2012), and “[a] trial court

necessarily abuses its discretion when it makes an

2018] P

EOPLE V

ITKA

error of law,” People

v Duncan, 494 Mich 713, 723; 835

NW2d 399 (2013). “To the extent that a lower court’s

decision on a motion to quash the information is based

on an interpretation of the law, appellate review of the

interpretation is de novo.” Miller, 288 Mich App at 209.

III. DISCUSSION

COLLATERAL ESTOPPEL

The prosecution contends that the circuit court

abused its discretion by determining that the charges

brought against defendants were barred pursuant to

collateral estoppel in light of the stipulated order of

dismissal in the civil case. We agree.

The doctrine of collateral estoppel generally pre-

cludes relitigation of an issue in a subsequent proceed-

ing when that issue has previously been the subject of

a ﬁnal judgment in an earlier proceeding. Porter v

Royal Oak, 214 Mich App 478, 485; 542 NW2d 905

(1995). Collateral estoppel applies when the following

three conditions are satisﬁed: “(1) a question of fact

essential to the judgment must have been actually

litigated and determined by a valid and ﬁnal judgment;

(2) the same parties must have had a full [and fair]

opportunity to litigate the issue; and (3) there must be

mutuality of estoppel.” Monat v State Farm Ins Co, 469

Mich 679, 682-684; 677 NW2d 843 (2004) (quotation

marks and citations omitted; alteration in original).

Mutuality of estoppel requires that the party seeking

to invoke the doctrine establish that his or her adver-

sary was either a party to, or in privy with a party to,

the previous action. Id. at 684.

In the vast majority of cases, parties seek to apply

collateral estoppel in the context of two civil proceed-

ings. However, our Supreme Court has recognized the

44 325 M

ICH

38 [June

concept of “cross-over estoppel,” i.e., “the application of

ollateral estoppel in the civil-to-criminal context.”

People v Trakhtenberg, 493 Mich 38, 48; 826 NW2d 136

(2012), citing People v Gates, 434 Mich 146, 155; 452

NW2d 627 (1990). Yet, in light of the fundamental

procedural differences in the civil versus criminal con-

texts, the Supreme Court has advised exercising caution

in applying cross-over estoppel. See Trakhtenberg, 493

Mich at 48 (“[W]e must hesitate to apply collateral

estoppel in the reverse situation—when the government

seeks to apply collateral estoppel to preclude a criminal

defendant’s claim of ineffective assistance of counsel in

light of a prior civil judgment that defense counsel did

not commit malpractice.”); Gates, 434 Mich at 157

(“[S]uch procedural differences raise serious doubt

about the soundness of applying ‘cross-over estoppel’ in

situations such as this case presents.”).

The ﬁrst prong of the collateral-estoppel analysis

requires that the ultimate issue to be determined in the

subsequent action be the same as that involved in the

ﬁrst action. Rental Props Owners Ass’n of Kent Co v

Kent Co Treasurer, 308 Mich App 498, 529; 866 NW2d

817 (2014). Speciﬁcally, the common ultimate issues

“must be identical, and not merely similar,” and addi-

tionally “must have been both actually and necessarily

litigated.” Id. In order for an issue to be “actually

litigated,” it must have been submitted to and deter-

mined by the trier of fact. Id., citing VanDeventer v Mich

Nat’l Bank, 172 Mich App 456, 463; 432 NW2d 338

(1988).

Under the present circumstances, the previous civil

litigation initiated by the Norton Shores city attorney in

the Muskegon Circuit Court concerned defendants’ com-

pliance with local zoning laws in operating The Landing

Strip. Accordingly, the legality of defendants’ operations

2018] P

EOPLE V

ITKA

under the state criminal laws was not at issue, nor was

heir operation of The Lucky Mouse or Fast Lane.

Further, no issue in the civil litigation was submitted to

or determined by the fact-ﬁnder; rather, the parties

negotiated and stipulated to dismissal of the action. The

stipulated order stated, in part, that “[d]efendants agree

to operate the Landing Strip LLC without violation of

any applicable gambling laws or ordinances as it is

currently operating.” (Emphasis added.) But because

the scope of the civil action was limited to defendants’

compliance with local ordinances in their operation of

The Landing Strip, the interpretation of this provision

must be similarly conﬁned. Accordingly, we conclude

that the issue whether defendants violated state crimi-

nal laws by conducting an unlicensed gambling opera-

tion was not actually litigated in the civil proceeding.

For collateral estoppel to apply, it is also required

that the same parties, or parties in privy, had a full and

fair opportunity to litigate the issue. Monat, 469 Mich at

682-683. “A party is one who was directly interested in

the subject matter and had a right to defend or to

control the proceedings and to appeal from the judg-

ment, while a privy is one who, after the judgment, has

an interest in the matter affected by the judgment

through one of the parties . . . .” Rental Props Owners

Ass’n, 308 Mich App at 529-530. The circuit court

correctly noted that the state attorney general is autho-

rized to intervene in any state court action “whenever

such intervention is necessary in order to protect any

right or interest of the state, or of the people of the

state.” MCL 14.101. However, in the civil action in the

Muskegon Circuit Court, the state had no protectable

interest. The case involved a city zoning ordinance, a

matter of solely local concern, and there was no coordi-

nation between the city attorney’s ofﬁce and the attor-

ney general’s ofﬁce or the MGCB in the civil nuisance

46 325 M

ICH

38 [June

action. See I

n re Certiﬁed Question, 465 Mich 537, 545;

638 NW2d 409 (2002) (“Just as the authority of counties

to sue in matters of local interest cannot be used to

undermine the authority of the state to sue in matters of

state interest, the authority of the state to sue in

matters of state interest cannot be used to undermine

the authority of political subdivisions to sue in matters

solely of local interest.”).

Accordingly, the prosecution

was

neither a party to nor a party in privy to the civil

action.

Further, our Supreme Court has declined to apply

collateral estoppel in instances when the purposes of the

two proceedings are “so fundamentally different that

application . . . of collateral estoppel would be contrary

to sound public policy.” See Gates, 434 Mich at 161. For

example, in Gates, the Supreme Court declined to hold

that a prior determination of no jurisdiction in a child

protective proceeding operated to collaterally estop sub-

sequent criminal charges. Id. at 162. Likewise, in People

v Windsor, 207 Mich App 221, 223; 523 NW2d 881

(1994), this Court declined to apply a determination of

no wrongdoing reached by the Michigan Employment

Security Commission to collaterally estop a criminal

action involving the same defendant. We therefore con-

clude that the circuit court abused its discretion by

granting the motion to quash and by dismissing the

cases on the basis of collateral estoppel.

B. MENS

REA

The

prosecution next contends that conducting an

unlicensed gambling operation, MCL 432.218(1)(a), is

re Certiﬁed Question involved the interpretation of MCL 14.28,

which grants the attorney general the authority to represent and

intervene in actions on behalf of the state, as supplemented by the

authority granted in MCL 14.101.

2018] P

EOPLE V

ITKA

a strict-liability offense as opposed to a general-intent

ffense as determined by the district court. This

argument is relevant to the grounds underlying de-

fendants’ motion to quash. The essence of defendants’

argument in that motion was that—like the offense of

using a computer to commit a crime, MCL 752.796

and MCL 752.797(3)(e)—conducting an unlicensed

gambling operation is a speciﬁc-intent offense and

that defendants’ mens rea for both charges was ne-

gated by a mistake of law. Because the circuit court

did not rule on the merits of this position, it is

unpreserved. See People v Metamora Water Serv, Inc,

276 Mich App 376, 382; 741 NW2d 61 (2007) (“For an

issue to be preserved for appellate review, it must be

raised, addressed, and decided by the lower court.”).

Nonetheless, if an issue is raised before the trial court

and is pursued on appeal, this Court is not foreclosed

from reviewing it even if it was not decided by the

trial court. Loutts v Loutts, 298 Mich App 21, 23-24;

826 NW2d 152 (2012).

To determine the intent element required to commit

a criminal offense, this Court must evaluate the men-

tal state set forth in the relevant statute. People v

Fennell, 260 Mich App 261, 266; 677 NW2d 66 (2004).

“A crime requiring a particular criminal intent beyond

the act done is generally considered a speciﬁc intent

crime; whereas, a general intent crime merely requires

‘the intent to perform the physical act itself.’ ” Id.,

quoting People v Disimone, 251 Mich App 605, 610; 650

NW2d 436 (2002). In relevant part, the statute at issue

in this case, MCL 432.218, provides:

(1) A person is guilty of a felony punishable by impris-

onment

for

not more than 10 years or a ﬁne of not more

than $100,00.00, or both, and shall be barred from receiv-

ing or maintaining a license for doing any of the following:

48 325 M

ICH

38 [June

(a) Conducting a gambling operation where wagering is

used

or to be used without a license issued by the [MGCB].

This language does not expressly indicate a degree of

intent, nor does the statute further deﬁne the term

“conducting.” Therefore, the mens rea required to vio-

late MCL 432.218(1)(a) is a matter of statutory inter-

pretation.

When interpreting the meaning of a statute, the

Court’s primary goal is “to ascertain and give effect to

the intent of the Legislature.” People v Thomas, 263

Mich App 70, 73; 687 NW2d 598 (2004) (quotation

marks and citations omitted). If the statutory language

is clear and unambiguous, it must be enforced as

written in accordance with its plain and ordinary

meaning. Herman v Berrien Co, 481 Mich 352, 366; 750

NW2d 570 (2008). “However, if a statute is susceptible

to more than one interpretation, judicial construction

is proper to determine legislative intent. Statutory

language should be construed reasonably, keeping in

mind the purpose of the act.” Thomas, 263 Mich App at

73 (quotation marks and citations omitted).

Though MCL 432.218(1)(a) is silent with respect to

intent, there is no clear indication that the Legislature

sought to discard the mens rea requirement. See People

v Kowalski, 489 Mich 488, 499; 803 NW2d 200 (2011).

“[C]ourts will infer an element of criminal intent when

an offense is silent regarding mens rea unless the

statute contains an express or implied indication that

the legislative body intended that strict criminal liabil-

ity be imposed.” People v Likine, 492 Mich 367, 391-

392; 823 NW2d 50 (2012) (quotation marks and cita-

tions omitted). For example, in Likine, our Supreme

Court construed the statute as imposing strict liability

because the Legislature had amended that statute to

eliminate the terms “refus[al] or neglect,” words which

2018] P

EOPLE V

ITKA

implied an element of intent. Id

. at 392 (alteration in

original). In contrast, the Supreme Court confronted in

Kowalski a criminal statute that incorporated the

element of “encouraging.” Kowalski, 489 Mich at 499.

The Supreme Court determined that although the

statute was silent with respect to mens rea, it nonethe-

less had a mens rea element, that being “the intent to

do the physical act of encouraging.” Id. at 500. Further,

by completing an act, an accused “is presumed to

intend the natural consequences of his [actions] . . . .”

Id. (quotation marks and citation omitted; alteration in

original).

MCL 432.218(1)(a) does not contain an express or

implied indication that the Legislature intended that

strict criminal liability be imposed. As in Kowalski, the

statute’s use of the term “conducting” evidences an

intention that the mens rea element of MCL

432.218(1)(a) be the intent to perform the act of “con-

ducting.” Although the prosecution correctly argues

that “the presumption in favor of imposing criminal

intent as an element does not invariably apply to

public-welfare or regulatory offenses,” People v Janes,

302 Mich App 34, 47; 836 NW2d 883 (2013), citing

Staples v United States, 511 US 600, 606; 114 S Ct

1793; 128 L Ed 2d 608 (1994), there is no evidence here

that the Legislature intended that strict criminal li-

ability be imposed. Indeed, by attaching a speciﬁc-

intent element to other subdivisions of MCL

432.218(1), the Legislature demonstrated that its ob-

jective was not to impose strict liability for violations of

MCL 432.218(1). See MCL 432.218(1)(c) through (e).

The language of MCL 432.218(1)(a) is consistent

with that of a general-intent crime as opposed to a

speciﬁc-intent crime. As noted, Subdivisions (c)

through (e) of MCL 432.218(1) include express ele-

50 325 M

ICH

38 [June

ments of speciﬁc intent, such as “knowingly” and

“willfully

,” thus requiring criminal intent beyond the

physical act done. See People v Gould, 225 Mich App

79, 85; 570 NW2d 140 (1997) (“[S]peciﬁc intent crimes

would be limited only to those crimes which are re-

quired to be committed either ‘purposefully’ or ‘know-

ingly’ . . . .”), quoting People v Lerma, 66 Mich App 566,

569; 239 NW2d 424 (1976) (quotation marks omitted).

The statutory scheme as a whole evinces the Legisla-

ture’s awareness of language that can be used to

heighten a crime’s mens rea element to that of a

speciﬁc-intent crime. However, with respect to MCL

432.218(1)(a), the Legislature chose to use language

consistent with a general-intent crime.

C. MISTAKE OF LAW

Finally, defendants argued in their motion to quash

that

they were operating under a mistake of law,

negating the speciﬁc intent they claimed was required

under the offenses charged. Speciﬁcally, they maintain

that they relied on the Norton Shores city attorney’s

agreement in the stipulated order of dismissal that

The Landing Strip would be operated in compliance

with any gambling laws or ordinances “as it [was]

currently operating.” While defendants characterize

this argument as a mistake-of-law defense, the pros-

ecution contends it is properly viewed as a theory of

entrapment by estoppel. Under either of these two

fundamentally similar analyses, we conclude that de-

fendants’ argument fails.

This Court has held that a defense of entrapment by

estoppel applies when the defendant establishes by a

preponderance of the evidence that

(1) a government ofﬁcial (2) told the defendant that

certain

criminal

conduct was legal, (3) the defendant

2018] P

EOPLE V

ITKA

actually relied on the government ofﬁcial’s statements, (4)

and

the defendant’s reliance was in good faith and reason-

able in light of the identity of the government ofﬁcial, the

point of law represented, and the substance of the ofﬁcial’s

statement. [People v Woods, 241 Mich App 545, 558; 616

NW2d 211 (2000), quoting United States v West Indies

Transp, Inc, 127 F3d 299, 313 (CA 3, 1997) (quotation

marks omitted).]

Similarly, defendants cite federal caselaw describing

the

mistake-of-law defense: “ ‘In order to assert a

defense of a mistake of law based upon a good faith

reliance on the representations of public ofﬁcials, the

Appellants must demonstrate that they received com-

munications from public ofﬁcials in a situation in

which reliance would have been justiﬁed.’ ” United

States v Stagman, 446 F2d 489, 491 (CA 6, 1971),

quoting United States v Gebhart, 441 F2d 1261, 1263

(CA 6, 1971).

Initially, we note that defendants’ mistake-of-law

argument has no effect on the charges brought under

MCL 432.218(1)(a) because we have determined this is

a general-intent offense. Defendants therefore need

not have intended to violate the law but rather simply

have intended to perform the act of “conducting” an

unlicensed gambling operation. See People v Beaudin,

417 Mich 570, 573-574; 339 NW2d 461 (1983). Accord-

ingly, defendants’ alleged belief that they were operat-

ing their establishments in compliance with the law is

immaterial to a determination of whether they com-

mitted this offense.

Defendants’ argument is equally unavailing with

respect to the speciﬁc-intent charges brought under

MCL 752.796 and MCL 752.797(3)(e). Entrapment-by-

estoppel and mistake-of-law defenses both require that

the alleged reliance on a public ofﬁcial’s representation

be “reasonable” or “justiﬁed.” Defendants are unable to

52 325 M

ICH

38 [June

meet this requirement. They claim reliance on the

Norton

Shores city attorney’s agreement in the stipu-

lated order that operations at The Landing Strip were

in compliance with applicable gambling laws and ordi-

nances. It cannot be said that a statement by a city

attorney in a civil suit involving a local ordinance could

be authoritative on a matter of criminal state law such

that reliance on it was reasonable. The statement was

not made by the attorney general’s ofﬁce, by the

MGCB, or by a county prosecutor. Rather, it was made

pursuant to a stipulated agreement regarding a civil

suit made by an entity with limited authority. Addi-

tionally, the civil case involved only The Landing Strip

and not the other two businesses involved in the

present criminal actions. Although defendants imply

that all three establishments operated in the same

manner, it does not appear that all were within the city

limits of Norton Shores or that the city attorney would

have possessed knowledge regarding the operations in

the other two establishments. For these reasons, we

conclude that neither a mistake-of-law nor an

entrapment-by-estoppel defense is applicable.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

ETER

, P.J., and T

UKEL

, J., concurred with G

ADOLA

2018] P

EOPLE V

ITKA

In re P

AROLE OF SPEARS

Docket No. 340914. Submitted May 1, 2018, at Detroit. Decided May 10,

2018. Approved for publication June 26, 2018, at 9:15 a.m.

In 2006, Ronald N. Spears pleaded guilty in the Monroe Circuit

Court, Michael W. LaBeau, J., to one count of malicious destruc-

tion of a building, MCL 750.380(3)(a), and was sentenced as a

fourth-offense habitual offender, MCL 769.12, to 92 to 450

months’ imprisonment. In 2014, the Michigan Parole Board (the

Board) granted defendant parole. The Monroe County prosecutor

sought leave to appeal the Board’s decision in the circuit court.

The Board rescinded its grant of parole, and the appeal was

dismissed. However, in early 2016, the Board again granted

defendant parole, and the prosecutor appealed in the circuit

court. The court, Daniel S. White, J., reversed the Board’s grant

of parole, holding that the Board violated its duty to consider all

relevant facts before granting defendant parole because the

Board failed to prepare a “current and meaningful” transition

accountability plan (TAP). In 2017, the Board again granted

defendant parole. The prosecutor again appealed, and the court,

Daniel S. White, J., reversed the Board’s grant of parole, holding

that defendant’s 2014 TAP was “almost identical” to defendant’s

2013 TAP, which the court had previously held was neither

“current nor robust” when it reversed the Board’s 2016 grant of

parole to defendant, and thus the Board violated Mich Admin

Code, R 791.7715(2)(c)(iii). Therefore, the court concluded that

the Board had “failed to consider a current and meaningful TAP

despite the requirements of” In re Parole of Haeger, 294 Mich App

549 (2011), and 2008 PA 245. The Board sought leave to appeal in

the Court of Appeals, and the Court of Appeals granted the

application.

The Court of Appeals held:

When challenging the Board’s decision granting a prisoner

parole, the prosecutor, as the challenging party, has the burden to

show either that the Board’s decision was a clear abuse of

discretion or was in violation of the Michigan Constitution, a

statute, an administrative rule, or a written agency regulation.

Mich Admin Code, R 791.7715(1), provides, in relevant part, that

54 325

ICH

54 [June

a prisoner shall not be released on parole until the Board has

considered

all relevant facts and circumstances, including the

prisoner’s probability of parole as determined by the parole

guidelines. Mich Admin Code, R 791.7715(2)(c)(iii) provides that

the Board may consider a prisoner’s readiness for release as

evinced by his or her development of a suitable and realistic

parole plan. In 2008, the Michigan Department of Corrections

(the DOC) implemented the Michigan Prisoner ReEntry Initia-

tive (MPRI), which required that the DOC and the Board prepare

and consider a TAP for each prisoner. In 2016, the DOC transi-

tioned from the MPRI model to the Michigan Offender Success

Model. The new model requires a case plan for each prisoner;

however, the new model continues to require a TAP that inte-

grates the prisoner’s transition from prison to the community by

developing phases in the transition process. In re Parole of Elias,

294 Mich App 507 (2011), outlined that a TAP has four elements:

needs, goals, tasks, and activities. Haeger explained that once the

Board had rendered a decision regarding a defendant’s parole, the

Board must issue in writing a sufﬁcient explanation for its

decision to allow meaningful appellate review and to inform the

prisoner of speciﬁc recommendations for corrective action if

necessary to facilitate release. The Haeger Court held that the

Board had abused its discretion when it granted parole to the

defendant in the absence of a TAP and other important records

that the Board was required to consider before granting or

denying that defendant parole; however, the Haeger Court did not

provide objective criteria for what constituted a “meaningful”

TAP. Therefore, pursuant to Haeger, review of a Board’s decision

to grant parole should not focus on whether the TAP is current or

robust; rather, review should begin by determining whether the

Board reviewed a TAP that was prepared for the defendant. In

this case, the record revealed that the Board demonstrated that a

TAP was prepared for defendant: a “Manager Version” of defen-

dant’s “TAP/Case Plan” identiﬁed, among other things, defen-

dant’s risk inventory, goals, tasks, and activities, and a second

form titled “Program Classiﬁcation Report” included a “TAP

Update,” which showed that defendant had participated in two

programs during 2015 and 2016. The record also showed that the

DOC prepared plans regarding defendant’s potential parole re-

lease, including identifying a speciﬁc residence for defendant and

how defendant’s mental health needs would be addressed. Ac-

cordingly, there was no basis for the circuit court to conclude that

the Board had violated Mich Admin Code, R 791.7715(2)(c)(iii).

Additionally, while the circuit court observed the similarity

between defendant’s 2014 TAP and 2013 TAP, the court merely

2018] In

re P

AROLE OF

PEARS

declared that those documents were insufﬁcient without provid-

ing

any further explanation. Moreover, the circuit court seem-

ingly ignored defendant’s Program Classiﬁcation Report, conclud-

ing without explanation that defendant’s TAP could only be

encompassed on a single form or document. Failure to consider

defendant’s Program Classiﬁcation Report was tantamount to

ignoring a signiﬁcant portion of the record. Furthermore, it was

error for the circuit court to have relied on 2008 PA 245, § 403(8)

to reach its conclusion that defendant’s TAP was not “current,”

because, as demonstrated by defendant’s Program Classiﬁcation

Report, defendant’s TAP was updated as recently as October

2016, which was only seven months before the Board voted to

grant defendant parole. Finally, the circuit court erred to the

extent it held that the Court of Appeals had set forth standards in

Haeger relative to a defendant’s TAP; the Court ofAppeals merely

articulated in Haeger that a TAP, among other relevant docu-

ments, must be considered by the Board before granting or

denying parole. Finally, the prosecutor failed to provide a statu-

tory basis or cite caselaw to support the assertion that the

absence of signatures on defendant’s 2014 TAP and Program

Classiﬁcation Report should warrant concern or be afforded any

weight when reviewing the Board’s decision to grant parole.

Accordingly, the circuit court erred when it held that the Board

had abused its discretion by failing to consider a “meaningful”

TAP.

Reversed and remanded for reinstatement of the order grant-

ing parole.

Michael C. Brown,

Assistant

Prosecuting Attorney,

for the Monroe County Prosecutor.

H. Steven Langschwager, Assistant Attorney Gen-

eral, for the Michigan Parole Board.

Before: B

ORRELLO

, P.J., and S

AWYER

and J

ANSEN

, JJ.

ORRELLO

, P.J. Intervenor-appellant, the Michigan

Parole Board (the Board), appeals by leave granted

the circuit court’s order reversing the Board’s grant of

re Parole of Spears, unpublished order of the Court of Appeals,

entered December 21, 2017 (Docket No. 340914).

56 325 M

ICH

54 [June

parole to defendant, Ronald Neil Spears. The circuit

court’s

order was entered after appellee, the Monroe

County prosecutor (the prosecutor), appealed by leave

granted the Board’s grant of parole to defendant in the

circuit court. For the reasons set forth in this opinion,

we reverse and remand the matter to the trial court for

entry of an order reinstating parole.

I. BACKGROUND

This appeal arises from defendant’s 2006 plea of

nolo

contendere to one count of malicious destruction of

a building between $1,000 and $20,000, MCL

750.380(3)(a). Defendant was sentenced, as a fourth-

offense habitual offender, MCL 769.12, to 92 to 450

months’ imprisonment for his conviction. The Board

initially granted defendant parole in 2014; however,

the Board rescinded its grant of parole after the

prosecutor sought leave to appeal the Board’s decision

in the circuit court. The Board granted defendant

parole again in early 2016; however, following an

appeal by the prosecutor, the circuit court ruled that

the Board violated its duty to consider all relevant

facts before granting defendant parole because the

Board failed “to prepare a current and meaningful

transition accountability plan,” otherwise known as a

“TAP,” and therefore, the circuit court reversed the

Board’s grant of parole.

In 2017, the Board again granted parole to defen-

dant, and again, the prosecutor sought leave to appeal

the Board’s grant of parole. The circuit court granted

the prosecutor’s application for leave to appeal and

ultimately entered an order reversing the Board’s

grant of parole to defendant. In its order, the circuit

court took issue with defendant’s “2014 TAP” because

it was “almost identical” to defendant’s “2013 TAP,”

2018] In re P

AROLE OF

PEARS

which the circuit court had previously held was “nei-

ther

current nor robust” when the circuit court re-

versed the Board’s 2016 grant of parole to defendant.

The circuit court went on to explain that in its 2016

order, it reversed the Board’s grant of parole to defen-

dant because the Board had “violated Michigan Admin-

istrative Code, Rule 791.7715(1)(2) [sic], [by] failing to

consider a proper TAP . . . .” Therefore, the circuit

court ruled that “[t]he matter before [it] [was] for all

intents and purposes identical to that which was ruled

upon by [the circuit court]” in 2016 and that the Board

had “failed to consider a current and meaningful TAP

despite the requirements of In re Heger

[sic] and

public acts [sic] 245 of 208 [sic].” The Board then

sought

leave to appeal in this Court, which, as previ-

ously indicated, was granted.

II. ANALYSIS

On appeal, the Board argues that the circuit court

erred

when

it made de novo ﬁndings of fact, speciﬁ-

cally, that defendant’s 2014 TAP was “insufﬁcient”

without specifying any particularized defects in that

document. Further, the Board contends that defen-

dant’s 2014 TAP identiﬁes needs and goals that were

taken from “the COMPAS instrument,” otherwise

known as a Corrections Offender Management Pro-

gram for Alternative Sanctions report, and that defen-

dant’s program recommendations and completed pro-

grams are tasks that are detailed on defendant’s CSX-

175 form, a form that is also designated as “the

‘Program Classiﬁcation Report (TAP).’ ” Moreover, the

Board contends that the circuit court failed to articu-

late a standard by which a TAP could be determined to

be “meaningful.” And, the Board further argues, de-

re Parole of Haeger, 294 Mich App 549; 813 NW2d 313 (2011).

58 325

ICH

54 [June

spite the circuit court’s characterization that the 2014

AP was not current, the 2014 TAP was updated with

the relevant “programming information.” Therefore,

the Board concludes, the circuit court erred when it

held that the Board had violated Mich Admin Code, R

791.7715(2)(c)(iii).

The prosecutor contends that the circuit court acted

properly when it reversed the Board’s grant of parole

because, among other reasons, the Board violated its

duty to consider all relevant facts and circumstances

when it failed to “consider a current and meaningful”

TAP. The prosecutor also argues that a CSX-175 form

is not a TAP and that even if this Court were to

consider it as such, then that form is not a current,

meaningful, or robust TAP that meets the require-

ments as set forth by this Court in In re Parole of Elias,

294 Mich App 507, 538; 811 NW2d 541 (2011).

“Judicial review of the Board’s decision to grant

parole is limited to the abuse-of-discretion standard.”

Id. “An abuse of discretion occurs when the trial court’s

decision falls outside the range of reasonable and

principled outcomes.” Id.

“Either the prosecutor or the victim of an offense

may appeal in the circuit court when the Board grants

a prisoner parole.” Id., citing MCL 791.234(11) and

Morales v Parole Bd, 260 Mich App 29, 35; 676 NW2d

221 (2003). The prosecutor, as the challenging party,

“has the burden to show either that the Board’s deci-

sion was ‘a clear abuse of discretion’ or was ‘in violation

of the Michigan Constitution, a statute, an administra-

tive rule, or a written agency regulation.’ ” Elias, 294

Mich App at 538, quoting MCR 7.104(D)(5).

Addition-

The

court rule cited in Elias was subsequently renumbered. The

content of that court rule may now be found at MCR 7.118(H)(3).

2018] In re P

AROLE OF

PEARS

ally, “a reviewing court may not substitute its judg-

ment

for that of the Board.” Elias, 294 Mich App at

538-539.

Generally, “ ‘matters of parole lie solely within the

broad discretion of the [Board] . . . .’ ” Elias, 294 Mich

App at 521, quoting Jones v Dep’t of Corrections, 468

Mich 646, 652; 664 NW2d 717 (2003) (alteration in

original). The Board should consider a prisoner’s sen-

tencing offense when determining whether to grant

parole to a prisoner, but “the Board must also look to

the prisoner’s rehabilitation and evolution throughout

his or her incarceration.” Elias, 294 Mich App at 544.

However, “the Legislature has clearly imposed certain

statutory restrictions on the Board’s exercise of its

discretion.” Id. at 521-522. “Statutorily mandated pa-

role guidelines form the backbone of the parole-

decision process.” Id. at 512.

Caselaw derived from statutory authority holds that

the Board may not “grant parole unless it ‘has satisfac-

tory evidence that arrangements have been made

for . . . employment . . . , for the prisoner’s education, or

for the prisoner’s care if the prisoner is mentally or

physically ill or incapacitated.’ ” Id. at 522, quoting

MCL 791.233(1)(e). Further, “ ‘[a] prisoner shall not be

given liberty on parole until the board has reasonable

assurance, after consideration of all of the facts and

circumstances, including the prisoner’s mental and so-

cial attitude, that the prisoner will not become a menace

to society or to the public safety.’ ” Elias, 294 Mich App

at 522, quoting MCL 791.233(1)(a) (alteration in origi-

nal).

“The [Michigan Department of Corrections (DOC)]

regulations further direct the Board to consider ‘all

relevant facts and circumstances, including the prison-

er’s probability of parole as determined by the parole

60 325 M

ICH

54 [June

guidelines . . . .’ ” I

n re Parole of Haeger, 294 Mich

App 549, 554; 813 NW2d 313 (2011), quoting Mich

Admin Code, R 791.7715(1). “Mich Admin Code, R

791.7715(2)(c)(iii) provides that the Board may con-

sider a prisoner’s ‘readiness for release’ as evinced by

his or her ‘[d]evelopment of a suitable and realistic

parole plan.’ ” Haeger, 294 Mich App at 576, quoting

Mich Admin Code, R 791.7715(2)(c)(iii) (alteration in

original).

At the time this Court decided Haeger we noted that

“the DOC recently implemented the Michigan Prisoner

ReEntry Initiative (MPRI), which [was] designed to

promote public safety and reduce the likelihood of

parolee recidivism” and to improve “decision making at

critical decision points,” including “when the Board is

considering whether to release a prisoner from incar-

ceration on parole.” Haeger, 294 Mich App at 555,

quoting Elias, 294 Mich App at 519, and DOC Policy

Directive 03.02.100, ¶ C, p 1 (quotation marks omitted).

Thus:

Under the MPRI, the DOC and the Board are now required

prepare and consider additional reports, in particular the

transition accountability plan TAP [sic]. The TAP “suc-

cinctly describe[s] . . . exactly what is expected for offender

success.” The MPRI Model: Policy Statements and Recom-

mendations, Michigan Prisoner ReEntry Initiative, Janu-

ary 2006, p 5. A DOC staff member “must formulate a TAP

with each prisoner, mostly to assist the prisoner’s reentry

into society, but also to assist the Board in rendering its

parole decision.” Elias, 294 Mich App at 519-520. The TAP

analyzes the prisoner’s risk factors, sets goals to decrease

those risks, and establishes a plan for the prisoner to reach

his or her goals. Id. [Haeger, 294 Mich App at 555 (citation

omitted; third alteration in original).]

This Court explained in Haeger that

the DOC had

“used TAPs to assist prisoners in reaching this goal”

2018] In re P

AROLE OF

PEARS

since 2005 and that “the development of TAPs is ‘the

lynchpin’

of the MPRI model.” Id. at 576-577. More-

over, this Court explained:

In the 2008 appropriations act for the DOC, 2008 PA

245, § 403(8), the Legislature made the DOC’s 2009 ap-

propriation contingent on the imposition of a TAP require-

ment, stating that the DOC “shall ensure that each

prisoner develops a [TAP] at intake in order to success-

fully reenter the community after release from prison.

Each prisoner’s [TAP] shall be reviewed at least once each

year to assure adequate progress.” [Id. at 577 (alterations

in original).]

In Elias,

this Court observed that a TAP has four

elements:

➣ Needs are criminogenic factors that contribute to risk

and are individually assessed using the COMPAS risk

assessment

instrument.

➣ Goals are designed to mitigate each criminogenic need.

➣ T

asks are developed with each offender to meet the

goals deﬁned in the plan.

➣ Activities are

created with each offender to break each

task down into manageable steps. [Elias, 294 Mich App at

520

(citation omitted).]

As of May 2016, the DOC has transitioned from the

MPRI model to “The Michigan Offender Success

Model,” which requires a “Case Plan” for each prisoner

and a TAP that “integrates the prisoner’s transition

from prison to the community by developing phases in

the transition process.”

According to defendant’s DOC

records,

a “Manager Version” overview of defendant’s

2013 to 2014 “TAP/Case Plan” identiﬁed defendant’s

Michigan

Department of Corrections, The Michigan Offender

Success Model, <http://www.michigan.gov/documents/corrections/

Michigan_Prisoner_Reentry_Model_05.2012._454416_7.pdf> (accessed

March 8, 2018) [https://perma.cc/QVJ3-DWU6].

62 325 M

ICH

54 [June

“Risk Inventory,” “Client Strengths,” “Client Inter-

ests,”

“Client Needs Summary,” and “TAP/Case Plan

Goals, Tasks and Activities.” Speciﬁcally, under defen-

dant’s “TAP/Case Plan Goals,” defendant was assigned

various goals related to his “Client Needs,” including

maintaining sobriety, developing prosocial relationship

activities within his community, and seeking mental

health counseling. A second record, listed on a form

titled “Program Classiﬁcation Report” with the desig-

nation of CSX-175, showed a “TAP Update” pertaining

to defendant starting a “WorkKeys Career” program on

October 11, 2016, and under another “TAP Update”

that defendant had completed a program called “VPP

Moderate” between July 2015 and October 2015.

Review of the record in this case reveals that before

the Board voted on whether defendant should be

granted parole, defendant underwent an evaluation

conducted by a “Qualiﬁed Mental Health Professional,”

and the evaluation indicated that defendant did not

“express homicidal ideation.” Similarly, the DOC pre-

pared plans regarding defendant’s potential parole

release that included identifying a speciﬁc residence

for defendant and how defendant’s mental health

needs would be addressed. Ultimately, the Board

granted defendant parole in 2017. However, the circuit

court reversed the Board’s grant of parole to defendant

because, among other reasons, the Board had “failed to

consider a current and meaningful TAP despite the

requirements of [Haeger] and [2008 PA 245].” In its

opinion, the circuit court failed to explain what exactly

constituted a “meaningful” TAP, focusing instead on

how defendant’s 2014 TAP was “almost identical” to a

2013 TAP that had been prepared for defendant and

that the circuit court had previously held to be “neither

current nor robust.” Hence, by classifying the TAP as

“neither current nor robust,” the circuit court seem-

2018] In re P

AROLE OF

PEARS

ingly created its own standards not set forth in statute

adopted by this Court in Haeger. By contrast, in

Haeger, this Court explained that once the Board had

rendered a decision regarding a defendant’s parole, the

Board “must issue in writing a sufﬁcient explanation

for its decision to allow meaningful appellate review

and to inform the prisoner of speciﬁc recommendations

for corrective action if necessary to facilitate release.”

Haeger, 294 Mich App at 556 (quotation marks and

citations omitted; emphasis added). Accordingly, in

Haeger, this Court held that the Board’s grant of parole

to the defendant was “in violation of controlling admin-

istrative rules and agency regulations” because the

defendant’s ﬁle lacked “case summary reports pro-

duced following Board interviews, any reports pro-

duced following in-reach services, or any TAP that may

have been developed with [the defendant],” and “the

Board or the DOC, or both, failed to maintain careful

records documenting [the defendant’s] participation in

services and completion of steps necessary for parole.”

Haeger, 294 Mich App at 578, 581. Therefore, this

Court did not provide objective criteria for what con-

stituted a “meaningful” TAP in Haeger; rather, it

concluded that the Board abused its discretion when it

granted parole to a defendant in the absence of a TAP

and other important records that the Board was re-

quired to consider before granting or denying that

defendant parole. See id. at 581.

Hence, pursuant to our decision in Haeger, review of

the Board’s decision should not focus on whether the

TAP is current or robust; rather, review should begin

by determining whether the Board reviewed a TAP

that was prepared for this defendant. In this case, the

record clearly reveals that the Board demonstrated

that a TAP was prepared for this defendant. Hence, we

cannot ﬁnd a basis for the circuit court to have con-

64 325 M

ICH

54 [June

cluded that the Board had failed to consider defen-

dant’s

readiness for release based on defendant’s “suit-

able and realistic parole plan.” Haeger, 294 Mich App

at 576, quoting Mich Admin Code, R 791.7715(2)(c)(iii).

While we note that the circuit court observed the

similarity between defendant’s 2013 TAP and 2014

TAP, the circuit court merely declared that those

documents were insufﬁcient without providing any

further explanation. Further, the circuit court seem-

ingly ignored defendant’s Program Classiﬁcation Re-

port, concluding without explanation that defendant’s

TAP could only be encompassed on a single form or

document. That form speciﬁcally recorded multiple

ﬁelds with the designation of “TAP Update,” with the

most recent update showing that defendant began a

“WorkKeys Career” program as recently as October

2016. Thus, even if we were to conclude that defen-

dant’s document entitled “2014 TAP” was somehow

deﬁcient because it only provided defendant’s “Needs”

and “Goals,” we cannot ignore that the Board provided

ample documentation of defendant’s TAP-related

“Tasks” and “Activities” on defendant’s Program Clas-

siﬁcation Report. Hence, the circuit court should have

considered and addressed defendant’s Program Classi-

ﬁcation Report before reaching its conclusions. Failure

to do so was tantamount to ignoring a signiﬁcant

portion of the record.

The circuit court also held that the Board had failed

to consider a “current” TAP per the requirements of

2008 PA 245, which was an appropriations act encom-

passing the ﬁscal year ending in 2009 for the DOC.

2008 PA 245, § 403(8) provides, in relevant part:

The department shall ensure that each prisoner devel-

ops a

transition accountability plan at intake in order to

successfully reenter the community after release from

2018] In re P

AROLE OF

PEARS

prison. Each prisoner’s transition accountability plan

shall

be reviewed at least once each year to assure

adequate progress.

This Court considered the text of 2008 PA 245,

§ 403(8) in Haeger in the broader context of a discussion

regarding how the DOC had used TAPs since 2005 and

how TAPs were central to the MPRI model. Haeger, 294

Mich App at 576-577. This Court relied on Mich Admin

Code, R 791.7715(2)(c)(iii), with regard to the Board

being able to consider a prisoner’s development “ ‘of a

suitable and realistic parole plan’ ” when it evaluated

whether that prisoner was ready for parole. Haeger, 294

Mich App at 576, quoting Mich Admin Code, R

791.7715(2)(c)(iii). Therefore, in Haeger, this Court

merely noted the speciﬁc conditions imposed as part of

the appropriations act to help underscore the ubiqui-

tous nature of TAPs in order to highlight the impor-

tance of the absence of a TAP in the defendant’s

records. Haeger, 294 Mich App at 576-577, 581. Accord-

ingly, it was error for the circuit court to have relied on

2008 PA 245, § 403(8) to reach its conclusion that

defendant’s TAP was not “current,” because, as dem-

onstrated by defendant’s Program Classiﬁcation Re-

port, defendant’s TAP was updated as recently as

October 2016, which was only seven months before the

Board voted to grant defendant parole.

Regardless of whether we would have concluded

that defendant’s 2014 TAP was deﬁcient, the circuit

court erred to the extent it held that this Court has set

forth standards relative to a defendant’s TAP. The

closest this Court has come to articulating any stan-

dard relating to a TAP for a potential parolee is that a

TAP, among other relevant documents, must be consid-

ered by the Board before granting or denying parole.

Haeger, 294 Mich App at 581. Additionally, unlike the

66 325 M

ICH

54 [June

facts before this Court in Haeger

, this case does not

present us with a situation in which defendant’s TAP

was absent from the record or in which the Board

contended that an essentially blank form constituted

defendant’s TAP. Rather, the entirety of defendant’s

TAP was recounted across multiple forms, and the

Board speciﬁcally directed the circuit court to those

relevant records. Therefore, the circuit court erred

when it held that the Board had abused its discretion

by failing to consider a “meaningful” TAP.

In reaching our conclusions we are mindful of the

prosecutor’s arguments that defendant’s 2014 TAP and

Program Classiﬁcation Report suffer from inﬁrmities

due to the absence of signatures on those records from

either defendant or his “Case Manager.” However, the

prosecutor fails to explain a statutory basis or cite

caselaw to inform this Court why those irregularities

should warrant concern or be afforded any weight

when reviewing the Board’s decision to grant defen-

dant parole. The prosecutor merely asserts that these

defects demonstrate that the Board failed to review

defendant’s TAP before it granted him parole. Yet that

inference is entirely undone by the fact that in defen-

dant’s June 1, 2017 Case Summary Report, the Board

speciﬁcally noted that defendant completed “VPP”

with “gains in all treatment targets.” As discussed

earlier, defendant’s Program Classiﬁcation Report spe-

ciﬁcally listed defendant’s completion of a program

called “VPP Moderate” between July 2015 and October

2015.

Therefore, the circuit court, by injecting its own

e note in reaching this conclusion the prosecutor’s contention, as

previously explained, that the circuit court did not err because defen-

dant’s Program Classiﬁcation Report on the CSX-175 form is not a TAP

and that even if this Court construes that record as a TAP, then it is not

a “current, meaningful or robust TAP that meets the requirements of In

re Elias.” As the party appealing the Board’s grant of parole to

2018] In

re P

AROLE OF

PEARS

criteria into defendant’s TAP, effectively substituted its

judgment

for that of the Board’s when it reversed the

Board’s grant of parole to defendant.

Given our resolution of this issue, we need not

address the Board’s other contentions on appeal. See

Agnone v Home-Owners Ins Co, 310 Mich App 522, 534

n 8; 871 NW2d 732 (2015) (explaining that given the

resolution of the issue and this Court’s reversal of the

trial court’s grant of summary disposition in favor of

plaintiff, this Court did not need to address the defen-

dant’s remaining claims of error).

Reversed and remanded for reinstatement of the

order granting parole. We do not retain jurisdiction.

AWYER

and J

ANSEN

, JJ., concurred with B

ORRELLO

P.J.

defendant, it is the prosecutor’s burden to demonstrate how the Board

clearly

abused its discretion. Elias, 294 Mich App at 538. Yet, beyond

recounting this Court’s observations about the characteristics and

elements of a TAP in Elias, the prosecutor has failed to elaborate what

would constitute a “meaningful” or “robust” TAP. Moreover, the prosecu-

tor has also, without explanation, arrived at the conclusion that a TAP

must consist of an all-encompassing individual document. Hence, the

prosecutor’s arguments fail for the same reasons as stated earlier.

68 325 M

ICH

54 [June

In re CMR

KACZKOWSKI, Minor

Docket No. 341138. Submitted June 13, 2018, at Detroit. Decided

June 28, 2018, at 9:00 a.m.

The respondent-mother appealed an order entered in the Macomb

Circuit Court, Family Division, terminating her parental rights

to a minor child, CMRK, under MCL 712A.19b(3)(c)(i), (c)(ii), (g),

and (j). The initial petition recounted respondent’s history with

Child Protective Services and included information pertaining to

the murder of respondent’s other child. Speciﬁcally, the petition

stated that respondent’s husband had been convicted of murder-

ing respondent’s other child and yet respondent was still married

to him. The petition also indicated that respondent was in a

relationship with JK, a man alleged to be CMRK’s biological

father, who was prohibited from having contact with minors

following his conviction of child molestation in Oklahoma. CMRK

was removed from respondent’s care and placed in foster care.

The Department of Health and Human Services (DHHS) ﬁled a

supplemental petition against respondent alleging that respon-

dent had recurring and severe depression and failed to attend

counseling sessions or follow through with DHHS service con-

tracts. The supplemental petition alleged that respondent contin-

ued to have contact with JK and, at times, the contact occurred

when CMRK was present. Although no order expressly prohibit-

ing respondent from having contact with JK was found in the

record, respondent was aware that she was not supposed to have

contact with him or allow him around CMRK. After a bench trial,

the referee recommended that respondent’s parental rights be

terminated. Tracey A. Yokich, J., adopted the referee’s recommen-

dation, and respondent’s parental rights were terminated. Re-

spondent appealed.

The Court of Appeals held:

1. Termination of parental rights is proper under MCL

712A.19b(3)(c)(ii) when the parent has received recommenda-

tions to rectify other conditions that caused the child to come

within the trial court’s jurisdiction, the parent has received notice

and a hearing and a reasonable opportunity to rectify the condi-

tions and has not done so, and there is no reasonable likelihood

2018] In

re K

ACZKOWSKI

that the conditions will be rectiﬁed within a reasonable time

given

the child’s age. The trial court cited MCL 712A.19b(3)(c)(ii)

as a reason for termination but failed to identify the other

conditions that supported termination. Under the facts of the

case, however, the error was harmless.

2. Terminating an individual’s parental rights requires a trial

court to ﬁnd by clear and convincing evidence that at least one of

the statutory grounds for termination listed in MCL 712A.19b(3)

has been met. Termination is proper under MCL 712A.19b(3)(c)(i)

when the conditions that led to the adjudication continue to exist

and there is no reasonable likelihood that the conditions will be

rectiﬁed within a reasonable time considering the child’s age.

Despite respondent’s denials, and in spite of the fact that many of

the concerns in the initial petition had been addressed, substan-

tial evidence showed that respondent had continued to volun-

tarily associate with JK and had allowed CMRK to be around JK

even after adjudication. Respondent engaged in this conduct even

though she was repeatedly reminded and understood that neither

she nor CMRK was allowed any contact with JK. Therefore, the

trial court did not clearly err by ﬁnding that the conditions

leading up to the adjudication had not been rectiﬁed and would

not be rectiﬁed within a reasonable time, supporting termination

under MCL 712A.19b(3)(c)(i).

3. Termination is appropriate under MCL 712A.19b(3)(g)

when the parent, regardless of intent, fails to provide proper care

or custody for the child and there is no reasonable expectation

that a parent will be able to provide proper care or custody within

a reasonable time considering the child’s age. A parent’s failure to

participate in and beneﬁt from a service plan is evidence that the

parent will not be able to provide a child with proper care and

custody. Respondent’s continued voluntary contact with JK after

she learned the full extent of his criminal history and her failure

to refrain from contact with JK after being directed to so refrain

was evidence that respondent had not beneﬁted from her service

plan. MCL 712A.19b(3)(j) states that termination is proper when

there is a reasonable likelihood, based on the parent’s conduct or

capacity, that the child will be harmed if he or she is returned to

the parent’s home. A parent’s failure to comply with the terms

and conditions of a service plan is evidence that the child will be

harmed if returned to the parent’s home. Respondent’s failure to

take adequate precautions to keep CMRK safe from JK supported

a conclusion that there was a reasonable likelihood that CMRK

would be harmed if returned to respondent’s home. In addition,

respondent’s continued mental health issues and her refusal to

70 325

ICH

69 [June

consider taking psychotropic medications as a means of achieving

emotional

stability further supported the trial court’s ﬁndings

that termination was also proper under MCL 712A.19b(3)(g) and

(j).

4. According to MCL 712A.19b(5), if a trial court ﬁnds that

there are grounds for the termination of parental rights and that

termination is in the child’s best interests, the trial court must

terminate the parent’s parental rights and order that any addi-

tional efforts at reuniﬁcation not be made. Factors to consider

when determining whether termination is in a child’s best inter-

ests include the child’s bond to the parent; the parent’s parenting

ability; the child’s need for permanency, stability, and ﬁnality;

and the advantages of a foster home over the parent’s home. In

this case, termination was proper because at the time of the

termination hearing, CMRK had been in foster care for approxi-

mately 2

/2 years and, although respondent loved CMRK, respon-

dent had made little, if any, progress toward addressing the main

reasons the court took jurisdiction over CMRK. The caseworker

had stated that termination would provide CMRK with the

permanency she needed—CMRK was doing well in foster care,

had bonded with her foster siblings, and CMRK’s foster parents

were willing to adopt her. Moreover, respondent was unlikely to

improve her parenting skills within a reasonable time, and

alternatives to termination, such as guardianship, had been

explored without success. Accordingly, the evidence supported the

trial court’s determination that termination of respondent’s pa-

rental rights was in CMRK’s best interests.

Afﬁrmed.

Eric J. Smith,

Prosecuting

Attorney, Joshua D.

Abbott, Chief Appellate Attorney, and John Paul Hunt,

Assistant Prosecuting Attorney, for the Department of

Human Services.

Thomas A. Casey for respondent.

Christine Piatkowski PLC (by Christine Piatkowski)

as lawyer-guardian ad litem.

Before: M

URPHY

, P.J., and J

ANSEN

and R

ONAYNE

RAUSE

, JJ.

2018] In re K

ACZKOWSKI

URIAM

. Respondent-mother appeals as of right

the trial court’s order terminating her parental rights

to the minor child under MCL 712A.19b(3)(c)(i), (c)(ii),

(g), and (j). Respondent’s husband—the child’s legal

father—voluntarily released his parental rights. He is

not a party to this appeal, and he is allegedly not the

child’s biological father. We afﬁrm.

This case arises, in part, out of the murder of

another one of respondent’s children. That child was

murdered by respondent’s husband before the birth of

the child in this case. Respondent’s husband is incar-

cerated for the murder. The initial petition recited

respondent’s prior history with Child Protective Ser-

vices (CPS), including the death of the other child at

the hands of respondent’s husband and the fact that

respondent had never ﬁled for divorce from her hus-

band despite the fact that he was convicted of murder-

ing respondent’s other child. The petition indicated

that respondent was currently in a relationship with

JK—who was alleged to be the instant child’s biological

father—despite that he was prohibited from having

contact with minors after a prior conviction for child

molestation in Oklahoma. The petition also included

allegations concerning respondent’s poor housing con-

ditions and her mental instability.

Following a hearing, the child was removed from

respondent’s care and placed in foster care. Respon-

dent was allowed supervised visitation. Respondent’s

treatment plan, designed so that she could continue to

be a parent to her child, required respondent to attend

a parenting program, submit to random drug screens,

undergo a complete psychological evaluation, and par-

ticipate in mental health services. She completed the

psychological evaluation and the parenting program,

72 325 M

ICH

69 [June

had negative drug screens, and began full-time em-

ployment

and unsupervised visitations with her child.

Shortly thereafter, the guardian ad litem (GAL) ﬁled

a petition to suspend respondent’s visitation and to

terminate respondent’s parental rights. The petition

alleged that respondent was having continued contact

with JK and that, at times, this contact occurred with

the child present. At the time respondent and JK met,

and throughout at least the initial period of the instant

matter, JK was on probation in Oklahoma for commit-

ting the offense of lewd molestation

against a family

member

. Respondent denied knowing the truth about

the speciﬁc crime for which JK was on probation but

did know that he was on probation.

We are concerned that we cannot ﬁnd any order in

the record speciﬁcally naming JK and explicitly direct-

ing respondent to refrain from contact with him, and we

are deeply concerned that JK’s violation of the orders

imposed on him may have been held against respon-

dent. However, the evidence shows that respondent was

aware that she was not supposed to have contact with

him nor allow him around her child. The relevant

factual dispute is whether she actually did. Respondent

had sufﬁcient income, suitable housing, a lawful life-

style, and conducted herself properly with the child.

There were concerns that respondent lacked self-control

and emotional stability, that she had an alleged history

of being in the presence of unsafe individuals, and that

she had not beneﬁted from counseling despite mostly

participating in the services offered.

“In order to terminate parental rights, the trial court

must ﬁnd by clear and convincing evidence that at

least one of the statutory grounds for termination in

e presume this to be a violation of Okla Stat Ann, tit 21, § 1123, a

felony.

2018] In re K

ACZKOWSKI

MCL 712A.19b(3) has been met.” In

re VanDalen, 293

Mich App 120, 139; 809 NW2d 412 (2011). We review

for clear error a trial court’s ruling that a statutory

ground for termination has been proved by clear and

convincing evidence. In re Hudson, 294 Mich App 261,

264; 817 NW2d 115 (2011). “A ﬁnding is clearly erro-

neous if, although there is evidence to support it, this

Court is left with a deﬁnite and ﬁrm conviction that a

mistake has been made.” Id.

The trial court found that grounds for terminating

respondent’s parental rights were established under

MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which autho-

rize termination of parental rights under the following

circumstances:

brought

under this chapter, 182 or more days have elapsed

since the issuance of an initial dispositional order, and the

court, by clear and convincing evidence, ﬁnds either of the

following:

(i) The conditions that led to the adjudication continue

to exist and there is no reasonable likelihood that the

conditions will be rectiﬁed within a reasonable time con-

sidering the child’s age.

(ii) Other conditions exist that cause the child to come

within the court’s jurisdiction, the parent has received

recommendations to rectify those conditions, the condi-

tions have not been rectiﬁed by the parent after the parent

has received notice and a hearing and has been given a

reasonable opportunity to rectify the conditions, and there

is no reasonable likelihood that the conditions will be

rectiﬁed within a reasonable time considering the child’s

age.

* * *

(g) The parent, without regard to intent, fails to provide

proper care or custody for the child and there is no

74 325

ICH

69 [June

reasonable expectation that the parent will be able to

provide

proper care and custody within a reasonable time

considering the child’s age.

* * *

(j) There is a reasonable likelihood, based on the

conduct or capacity of the child’s parent, that the child will

be harmed if he or she is returned to the home of the

parent.

The trial court cited § 19b(3)(c)(ii)

as a reason for

termination, but neither the trial court nor the parties

have identiﬁed what “other conditions” supported ter-

mination. We therefore cannot ﬁnd a basis for termi-

nation on that ground to be established. However,

under the circumstances of this case, either the error is

harmless or the trial court simply misspoke. In re

Powers Minors, 244 Mich App 111, 118; 624 NW2d 472

(2000).

Many of the above concerns have been corrected.

Respondent’s husband is incarcerated, and he relin-

quished his parental rights. Therefore, we fail to per-

ceive the threat he poses to the child. It appears that

respondent’s housing is stable, even if it is not perfect;

her income is sufﬁcient; and her employment has been

reasonably steady despite setbacks outside her control.

Respondent also completed parenting classes, and she

completed two psychological evaluations. There was no

dispute that respondent and the child were bonded to

each other, and for the most part, respondent appeared

to interact appropriately with the child. Furthermore,

there was some indication in the record that JK’s

violation of the orders imposed upon him may have been

held against respondent, which would be contrary to

law. It is absolutely impermissible for any person to be

held responsible for someone else’s violation of an order.

2018] In re K

ACZKOWSKI

In other words, a no-contact order issued against JK to

ave no contact with respondent is an order against JK

and only JK. It is simply impossible for respondent to

violate a no-contact order issued against JK.

Nevertheless, the concern with respondent’s ongoing

relationship with JK is an entirely appropriate concern.

The record is replete with indications that such an order

was actually communicated to respondent on many

occasions and that she comprehended it. There are

numerous references to respondent’s having been told

multiple times by the court, the agency, and the GAL

that neither she nor her child were to associate with JK.

While respondent may not be faulted for other individu-

als’ violations of orders against them, her own violations

of an order against her are highly signiﬁcant.

Additionally, there was concern that despite partici-

pating in services, respondent did not beneﬁt from those

services, or at least did not beneﬁt sufﬁciently. Respon-

dent’s therapist testiﬁed that she continued to lack

insight and that she was unable or unwilling to take

responsibility for her actions. The therapist also testi-

ﬁed that respondent had shown an increase in her rage

and an inability to control herself. The therapist ex-

pressed concern about respondent’s continued contact

with JK and opined that respondent’s continued poor

decisions in choosing relationships with abusive men

presented a risk to the child’s safety. Respondent’s

caseworker expressed these same concerns and noted

that respondent had obtained a second psychological

evaluation, which indicated that she was likely to have

problems with anger management, impulsiveness, and

acting out.

Although the trial court did not speciﬁcally make

this ﬁnding, we agree with the GAL’s argument that

the credibility of the witnesses was critical to the trial

court’s ﬁndings. We are required to defer to any such

76 325 M

ICH

69 [June

credibility assessments. MCR 2.613(C); McGonegal

McGonegal, 46 Mich 66, 67; 8 NW 724 (1881). Despite

respondent’s denials, substantial evidence was pre-

sented that respondent had continued to voluntarily

associate with JK and had allowed the child to be

around him. She continued to remain in contact with

JK, contrary to court orders and despite repeated

reminders that neither she nor the child was allowed to

have any contact with him. The trial court was entitled

to give credence to the testimony of respondent’s thera-

pist and caseworker. In combination, we cannot ﬁnd

clear error in the trial court’s ﬁndings that the grava-

men of the conditions that led to the adjudication had

not been rectiﬁed and would not be rectiﬁed within a

reasonable time. Therefore, the trial court did not

clearly err by ﬁnding that the evidence supported

termination of respondent’s parental rights under

§ 19b(3)(c)(i).

The evidence also supports the trial court’s reliance

on § 19b(3)(g) and (j) as additional grounds for termi-

nation. “A parent’s failure to participate in and beneﬁt

from a service plan is evidence that the parent will not

be able to provide a child proper care and custody.” In

re White, 303 Mich App 701, 710; 846 NW2d 61 (2014).

“Similarly, a parent’s failure to comply with the terms

and conditions of his or her service plan is evidence

that the child will be harmed if returned to the parent’s

home.” Id. at 711. Respondent’s continued voluntary

contact with JK despite being ordered to refrain from

contact and after being made aware of the full extent of

JK’s criminal history supports a ﬁnding that she has

not beneﬁted from her service plan. Consequently, a

ﬁnding that respondent was failing to take adequate

precautions to keep the child safe from JK also sup-

ports a conclusion that there is a reasonable likelihood,

based on respondent’s conduct or capacity, that the

2018] In re K

ACZKOWSKI

child will be harmed if returned to respondent’s home.

The

testimony indicating that respondent has continu-

ing mental health issues, including anger management

issues, and that she refuses to consider psychotropic

medications as an option for achieving emotional sta-

bility further supports the trial court’s ﬁndings that

grounds for termination were established under

§ 19b(3)(g) and (j).

Respondent also argues that the trial court erred by

ﬁnding that termination of her parental rights was in

the child’s best interests. “If the court ﬁnds that there

are grounds for termination of parental rights and that

termination of parental rights is in the child’s best

interests, the court shall order termination of parental

rights and order that additional efforts for reuniﬁca-

tion of the child with the parent not be made.” MCL

712A.19b(5). Whether termination of parental rights is

in a child’s best interests is determined by a prepon-

derance of the evidence. In re Moss, 301 Mich App 76,

83; 836 NW2d 182 (2013). Factors to be considered

include “the child’s bond to the parent, the parent’s

parenting ability, the child’s need for permanency,

stability, and ﬁnality, and the advantages of a foster

home over the parent’s home.” Id. at 41-42 (citations

omitted). A court may also consider whether it is likely

“that the child could be returned to her parents’ home

within the foreseeable future, if at all.” In re Frey, 297

Mich App 242, 249; 824 NW2d 569 (2012).

Although respondent loves her child, the trial court

did not clearly err by ﬁnding that termination of

respondent’s parental rights was in the child’s best

interests. At the time of the termination hearing, the

child had been in foster care for approximately 2

years. Respondent had made little, if any, progress in

addressing the main reasons that the court took juris-

78 325 M

ICH

69 [June

diction over the child. Respondent’s therapist opined

that

it was highly unlikely that respondent would ever

be emotionally or psychologically stable enough to

provide a safe environment for the child. In contrast,

the child was doing well in foster care, and her foster

parents were willing to adopt her. The caseworker

testiﬁed that the child was fully adjusted to her foster

home and had bonded with her foster siblings. The

caseworker also stated that termination would provide

the child with the permanency she needed, especially

considering that respondent would not be able to

improve her deﬁcient parenting skills within a reason-

able period of time. The caseworker had explored

alternatives to termination, such as a guardianship,

but no one else had come forward, and the foster

parents were not interested in that option. The evi-

dence supports the trial court’s determination that

termination of respondent’s parental rights was in the

child’s best interests.

Afﬁrmed.

URPHY

, P.J., and J

ANSEN

and R

ONAYNE

RAUSE

, JJ.,

concurred.

2018] In re K

ACZKOWSKI

In re KEILLOR,

Minors

Docket No. 340395. Submitted May 9, 2018, at Grand Rapids. Decided

June 28, 2018, at 9:05 a.m.

The Department of Health and Human Services brought an action

in the Wayne Circuit Court, Family Division, alleging that

respondent, Kathy Keillor, had physically abused her two minor

children, KK-1 and KK-2. Respondent pleaded no contest to the

allegations, and the court took jurisdiction over the minor chil-

dren. Later, a supplemental petition to terminate respondent’s

parental rights was ﬁled after KK-1 alleged that respondent’s

live-in boyfriend, who ﬁt the statutory deﬁnition of a “nonparent

adult,” had sexually abused her. The trial court held a trial, and

KK-1 provided testimony regarding the alleged sexual abuse.

KK-1 testiﬁed that while on vacation in California, the nonparent

adult slept with KK-1 in one room, and KK-2 and respondent

slept in another room. According to KK-1, it was uncommon for

the nonparent adult to be in bed with her. KK-1 testiﬁed that

while she was in bed, she told the nonparent adult that her

stomach hurt. She testiﬁed that the nonparent adult then rubbed

her stomach and began moving his hand lower, “[a]lmost below

[her] waist.” She testiﬁed that she “pulled his hand out” and then

went to the bathroom. When asked whether the nonparent adult

ever touched her “private parts,” KK-1 answered, “Almost.” KK-1

also testiﬁed that except for this incident in California, nothing

like that had ever happened before or since with the nonparent

adult. After hearing the evidence, the court found that a prepon-

derance of the evidence supported the existence of sexual abuse

by a nonparent adult. The court subsequently terminated respon-

dent’s parental rights pursuant to MCL 712A.19b(3)(b)(iii) and

(j). Respondent appealed.

In opinions by R

IORDAN

, J., and R

ONAYNE

RAUSE

, P.J., the Court

of Appeals held:

The trial court did not err by terminating respondent’s paren-

tal rights.

Afﬁrmed.

IORDAN

, J., authored the lead opinion for afﬁrmance, stating

that to terminate parental rights, the trial court must ﬁnd that at

80 325 M

ICH

80 [June

least one of the statutory grounds for termination in MCL

712A.19b(3)

has been proved by clear and convincing evidence.

MCL 712A.19b(3)(b)(iii) provides, in pertinent part, that the

court may terminate a parent’s parental rights to a child if the

court ﬁnds by clear and convincing evidence that a nonparent

adult’s act caused sexual abuse and a reasonable likelihood exists

that the child will suffer abuse by the nonparent adult if returned

to the parent’s home. MCL 722.622(y) deﬁnes “sexual abuse” as

engaging in sexual contact or sexual penetration, as those terms

are deﬁned in MCL 750.520a, with a child. MCL 750.520a(q)

deﬁnes “sexual contact” as the intentional touching of the victim’s

or actor’s intimate parts, or the intentional touching of the

clothing covering the immediate area of the victim’s or actor’s

intimate parts, if that intentional touching can reasonably be

construed as being for the purpose of sexual arousal or gratiﬁca-

tion, done for a sexual purpose, or in a sexual manner for revenge,

to inﬂict humiliation, or out of anger. MCL 750.520a(f) deﬁnes

“intimate parts” as the primary genital area, groin, inner thigh,

buttock, or breast of a human being. Dictionaries deﬁne “groin” as

the crease at the junction of the thigh and the trunk, together

with the adjacent area. In this case, it was reasonable to infer

that the broad area surrounding KK-1’s private parts was covered

by the deﬁnition of “groin,” and therefore her testimony estab-

lished that the nonparent adult touched her “intimate parts.”

Accordingly, the trial court did not clearly err by determining that

the nonparent adult touched KK-1’s intimate parts. Additionally,

KK-1’s testimony established that the nonparent adult’s touching

could reasonably be construed as being for the purpose of sexual

arousal or gratiﬁcation because it was uncommon for the nonpar-

ent to sleep in bed with her and because KK-1 testiﬁed that she

felt uncomfortable, nauseous, and that her stomach hurt because

he was touching her. Consequently, the trial court did not clearly

err by ﬁnding that clear and convincing evidence supported that

the nonparent adult sexually abused KK-1. Finally, the record

showed that respondent did not and does not believe that the

nonparent adult sexually abused KK-1 and that respondent was

still living with the nonparent adult at the time of trial; therefore,

the trial court did not clearly err by ﬁnding that clear and

convincing evidence established that the minor children would

suffer sexual abuse by the nonparent adult in the future. In

addition, MCL 712A.19b(3)(j) provides that the court may termi-

nate a parent’s parental rights to a child if the court ﬁnds by clear

and convincing evidence that there is a reasonable likelihood

based on the conduct or capacity of the child’s parent that the

child will be harmed if he or she is returned to the home of the

2018] In

re K

EILLOR

parent. Because termination was proper pursuant to MCL

712A.19b(3)(b)(

iii), the trial court’s termination of respondent’s

parental rights pursuant to MCL 712A.19b(3)(j) did not need to be

considered. However, there was clear and convincing evidence

that termination was proper under MCL 712A.19b(3)(j) for the

same reasons that termination was proper under MCL

712A.19b(3)(b)(iii). Finally, once a statutory basis for termination

has been shown by clear and convincing evidence, the court must

determine whether termination is in the child’s best interests.

Best interests are determined on the basis of the preponderance

of the evidence. In assessing whether termination of parental

rights is in a child’s best interests, the trial court should weigh all

evidence available to it. In this case, a number of reasons—

including respondent’s noted disbelief of KK-1’s sexual abuse

allegations, respondent’s allowing the nonparent adult to remain

in her house even after those allegations, KK-1’s numerous

allegations of respondent’s physical abuse of her, and the broken

bond between the family—prove that the trial court did not

clearly err by determining that a preponderance of the evidence

supported that termination of respondent’s parental rights was in

the best interests of the minor children.

ONAYNE

RAUSE

, P.J., concurring, agreed with the lead opin-

ion’s assessment of the best interests of the children but dis-

agreed that the record adequately established sexual abuse by

the nonparent adult and would have held that any act of the

nonparent adult perpetrated against the child was irrelevant

because the record conclusively established that respondent

physically abused the children, which alone was grounds for

termination of respondent’s parental rights. The court must

terminate a parent’s parental rights if one statutory ground for

termination is properly established, unless the trial court ﬁnds

that doing so is contrary to the best interests of the children, and

therefore respondent’s physical abuse of the children was sufﬁ-

cient to afﬁrm the trial court’s termination of respondent’s

parental rights.

ARKEY

, J., dissenting, would have held that the trial court

clearly erred by ﬁnding that MCL 712A.19b(3)(b)(iii) was proved

by clear and convincing evidence. KK-1’s testimony did not

establish that “sexual abuse” occurred because the Legislature

did not include “stomach” in its list of sexually “intimate parts” in

MCL 750.520a(f), and the erroneous ﬁnding of sexual abuse by a

nonparent residing in respondent’s home was so intertwined with

the trial court’s ﬁnding under MCL 712A.19b(3)(j) of likely harm

if the children were returned to respondent’s care that it rendered

82 325

ICH

80 [June

that ﬁnding also clearly erroneous. When speciﬁcally asked if the

nonparent

adult had touched her private parts, KK-1 answered,

“Almost.” Likewise, on cross-examination, KK-1 said that she

thought the nonparent adult was moving his hand toward her

“private parts,” but he never got it there. Accordingly, there was

no testimony to ﬁnd that the nonparent adult touched KK-1’s

intimate parts. Because there was no evidence that the nonpar-

ent adult touched KK-1’s “intimate parts” as required by the

statute, there also was no evidence to show either that the

touching that KK-1 described was for a sexual purpose or to

support an inference that the touching was to exact revenge, to

humiliate, or out of anger. Rather, the touching or rubbing of

KK-1’s stomach area occurred only after she complained that her

stomach hurt. Accordingly, it was also clear error to ﬁnd that

sexual abuse occurred. Additionally, KK-1 testiﬁed that the

touching she described was a single incident that had never

happened before and that never happened again; therefore, there

was no basis to conclude by clear and convincing evidence that

another incident would be likely to recur in the future. The trial

court relied only on the alleged sexual abuse by a nonparent adult

to ﬁnd both statutory grounds for termination; therefore, to cite

physical abuse as a reason to terminate would have been errone-

ous. Accordingly, Judge M

ARKEY

would have vacated the trial

court’s order terminating respondent’s parental rights and re-

manded the matter to the trial court for further proceedings.

Bill Schuette, A

ttorney General, Aaron D. Lindstrom,

Solicitor General, B. Eric Restuccia, Chief Legal Coun-

sel, and Susan B. Moody, Assistant Attorney General,

for the Department of Health and Human Services.

Law Ofﬁces of Roman J. Ficaj (by Roman J. Ficaj)

for respondent.

Michigan Children’s Law Center (by Rubina S.

Mustafa) for the minor children.

Before: R

ONAYNE

RAUSE

, P.J., and M

ARKEY

and

IORDAN

, JJ.

IORDAN

, J. Respondent appeals as of right the trial

court’s order terminating her parental rights to the

2018] In re K

EILLOR

PINION BY

IORDAN

, J.

minor children, KK-1 and KK-2, pursuant to MCL

12A.19b(3)(b)(iii) (a nonparent adult’s act caused

sexual abuse and a reasonable likelihood exists that the

child will suffer abuse by the nonparent adult if re-

turned to the parent’s home) and MCL 712A.19b(3)(j) (a

reasonable likelihood exists based on the conduct or

capacity of the child’s parent that the child will be

harmed if returned to the home of the parent). We

afﬁrm.

I. FACTUAL BACKGROUND

Respondent adopted the minor children in 2011. In

016, Child Protective Services (CPS) began an investi-

gation into physical abuse of the minor children by

respondent. Respondent pleaded no contest to the alle-

gations in the petition on January 5, 2017, and the trial

court took jurisdiction over the minor children. Later, a

supplemental petition to terminate respondent’s paren-

tal rights was ﬁled after KK-1 made allegations of

sexual abuse by respondent’s live-in boyfriend, who ﬁt

the statutory deﬁnition of a “nonparent adult.” See MCL

722.622(v).

On August 31, 2017, the trial court held a

ial both to adjudicate the new allegations and regard-

ing the request to terminate respondent’s parental

rights. KK-1 provided testimony regarding the alleged

sexual abuse by the nonparent adult.

After hearing the evidence, the trial court adjudi-

cated the new allegations, ﬁnding that a preponderance

of the evidence supported the existence of sexual abuse

by the nonparent adult. The parties then argued regard-

cite the alpha designations of MCL 722.622, as amended by 2016

PA 35, effective from March 8, 2016 to April 5, 2017, because the alleged

sexual abuse in this case occurred sometime during 2016. Although the

alphabetical references may have often changed over the years, the

substantive deﬁnitions have remained the same, so our analysis has not

been affected by any amendments.

84 325

ICH

80 [June

PINION BY

IORDAN

, J.

ing termination of respondent’s parental rights and

hether termination would be in the best interests of

the minor children. The trial court took the issue under

advisement, eventually releasing a written opinion ter-

minating respondent’s parental rights pursuant to MCL

712A.19b(3)(b)(iii) and (j). This appeal followed.

II. STATUTORY GROUNDS

Respondent argues that the trial court clearly erred

when

it terminated her parental rights to the minor

children. I disagree.

A. STANDARD OF REVIEW

“This Court reviews for clear error the trial court’s

factual ﬁndings and ultimate determinations on the

statutory grounds for termination.” In re White, 303

Mich App 701, 709; 846 NW2d 61 (2014). A trial court’s

ﬁndings of fact are clearly erroneous if “we are deﬁ-

nitely and ﬁrmly convinced that it made a mistake.” Id.

at 709-710. “To terminate parental rights, the trial

court must ﬁnd that at least one of the statutory

grounds for termination in MCL 712A.19b(3) has been

proved by clear and convincing evidence.” In re Ellis,

294 Mich App 30, 32; 817 NW2d 111 (2011). “[W]e

review de novo questions of statutory interpretation.”

In re Harper, 302 Mich App 349, 352; 839 NW2d 44

(2013) (quotation marks and citation omitted).

B. APPLICABLE LAW AND ANALYSIS

The trial court found clear and convincing evidence

statutory

grounds for termination under MCL

712A.19b(3)(b)(iii), which provides:

note that this case is being published at the request of the dissent

pursuant to MCR 7.215(A).

2018] In re K

EILLOR

PINION BY

IORDAN

, J.

(b) The child or a sibling of the child has suffered

physical

injury or physical or sexual abuse under 1 or

more of the following circumstances:

* * *

(iii) A nonparent adult’s act caused the physical injury

or physical or sexual abuse and the court ﬁnds that there

is a reasonable likelihood that the child will suffer from

injury or abuse by the nonparent adult in the foreseeable

future if placed in the parent’s home.

Although MCL 712A.19b does not provide deﬁni-

tions

for the pertinent terms “nonparent adult” and

“sexual abuse,” those terms are found and deﬁned in

the Child Protection Law, MCL 722.601 et seq. Indeed,

§ 19b twice refers to and adopts the deﬁnition of

“sexual abuse” “as that term is deﬁned in section 2 of

the child protection law, 1975 PA 238, MCL 722.622.”

MCL 712A.19b(3)(k)(ix) and (m)(ix).

MCL 722.622(y) deﬁnes “sexual abuse” as follows:

“Sexual abuse” means engaging in sexual contact or

sexual

penetration

as those terms are deﬁned in section

520a of the Michigan penal code, 1931 PA 328, MCL

750.520a, with a child.

In this case, there is no allegation of sexual penetra-

tion.

The deﬁnition of “sexual contact” is as follows:

“Sexual contact” includes the intentional touching of

the victim’s or actor’s intimate parts or the intentional

touching of the clothing covering the immediate area of

the victim’s or actor’s intimate parts, if that intentional

touching can reasonably be construed as being for the

purpose of sexual arousal or gratiﬁcation, done for a sexual

purpose, or in a sexual manner for:

(i) Revenge.

(ii) To inﬂict humiliation.

86 325 M

ICH

80 [June

PINION BY

IORDAN

, J.

(iii) Out of anger. [MCL 750.520a(q) (emphasis added).]

turn, MCL 750.520a(f) deﬁnes “intimate parts” as

“includ[ing] the primary genital area, groin, inner

thigh, buttock, or breast of a human being.” Thus, in

order for there to have been grounds for termination

pursuant to MCL 712A.19b(3)(b)(iii), the trial court

must have found clear and convincing evidence that

the nonparent adult touched KK-1’s “primary genital

area, groin, inner thigh, buttock, or breast” in a man-

ner that “can reasonably be construed as being for the

purpose of sexual arousal or gratiﬁcation . . . .” MCL

750.520a(f) and (q).

KK-1 testiﬁed that the nonparent adult touched her

in an inappropriate manner during a trip to California

with respondent. The nonparent adult slept with KK-1

in one room while KK-2 and respondent slept in

another room. According to KK-1, it was strange and

uncommon for the nonparent adult to be in bed with

her. KK-1 provided the following pertinent testimony

during direct examination regarding the night the

nonparent adult touched her:

All right. Did anything ever happen to you when [the

nonparent

adult] was sharing a room with you that made

you feel bad or uncomfortable?

A. Yes.

* * *

Q. And, and what happened?

A. I was laying next to him and he was touching me.

Q. How was he touching you?

A. With his hand.

Q. And, and how did that come about? Did you ask him

to touch you?

2018] In

re K

EILLOR

PINION BY

IORDAN

, J.

A. No.

. Okay. What—Were you awake when this happened?

A. Yes.

Q. And, and what—Did you have any kind of conversa-

tion with [the nonparent adult] at all before he touched

you?

A. No. All I said was my stomach hurt.

Q. And you told that to [him]?

A. Yes.

Q. And after you told him that your stomach hurt, what

did he do?

A. He started rubbing my stomach and going a little bit

lower.

Q. And what were you wearing at the time?

A. I think I was wearing, I think I was wearing summer

pajamas.

* * *

Q. All right. Where was his hand on your body at that

time?

A. Almost below my waist.

Q. And then what happened?

A. I pulled his hand out and said you were the reason

why my stomach was hurting.

Q. Did he make any comment to you after that?

A. No. I just ran into the bathroom.

Q. What did you mean by that, you’re the reason my

stomach is hurting?

A. Because it made me feel uncomfortable where he,

why he, where he was touching me.

Q. And after you went into the bathroom, how long did

you stay there?

88 325

ICH

80 [June

PINION BY

IORDAN

, J.

A. I stayed there for a couple minutes because I felt like

was gonna throw up.

Q. Did you throw up?

A. No.

* * *

Q. Did [the nonparent adult] ever touch you below your

waist?

A. Yeah.

Q. And when did that occur? Before the bathroom or

after?

A. Before.

Q. And before the bathroom, when he touched you

below your waist, what exactly did he do, if you remem-

ber?

A. I don’t remember.

Q. Did he ever, do you have—Did he ever touch your

private parts?

* * *

A. Almost.

Q. And what do you mean by almost?

A. Like he was right there, but then I pulled his hand

out and I went to the top bunk.

On cross-examination, respondent elicited the follow-

ing

testimony

from KK-1:

Q. Now, except for this one incident in California where

you say he touched you, that never happened before or

since, is that right?

A. Yes.

Q. And this happened over a year ago?

A. I’m not sure.

2018] In

re K

EILLOR

PINION BY

IORDAN

, J.

Q. And if I understood you correctly, you said on direct

examination

that you told him your stomach was hurting?

A. Yes.

Q. And then he started rubbing your stomach and he

started going down into your pants—

A. (Interposing) Yes.

Q. Is that right?

A. Yes.

Q. But he never got down to your private parts, is that

right?

A. He started to.

Q. He started, but he never got there, right?

A. Yes.

Respondent contends that the testimony could not

ave established sexual abuse by the nonparent adult

because KK-1 never testiﬁed that he actually touched

her private parts. I disagree because the deﬁnition of

“intimate parts” cannot be read so narrowly. While one

part of the statute deﬁning “intimate parts” refers to the

“primary genital area,” the deﬁnition also includes

“groin” as an intimate part. MCL 750.520a(f). Random

House Webster’s College Dictionary (2d ed) deﬁnes groin

as “the fold or hollow where the thigh joins the abdo-

men” and “the general region of this fold or hollow.”

Meanwhile, The American Heritage Dictionary (2d ed)

deﬁnes “groin” as “[t]he crease at the junction of the

thigh and the trunk, together with the adjacent area.”

Respondent is correct that KK-1 never testiﬁed that

the nonparent adult actually touched her vagina. How-

ever, KK-1 stated that the nonparent adult touched her

below her waist, and KK-1 repeatedly said that she

had to take his hand “out.” It is reasonable to infer that

KK-1’s use of the word “out” meant that the nonparent

adult’s hand was in her pants. Further, KK-1 testiﬁed

90 325 M

ICH

80 [June

PINION BY

IORDAN

, J.

that he “[a]lmost” touched her private parts while

owering his hand downward from her abdomen. Con-

sidering the broad area surrounding KK-1’s private

parts covered by the deﬁnition of “groin,” KK-1’s testi-

mony established that the nonparent adult touched her

“intimate parts.” MCL 750.520a(f) and (q). It would be

unreasonable to conclude that the area below KK-1’s

waist and pants line but above the opening of her vagina

is not an “intimate part” when the deﬁnition also

includes the “inner thigh.” Thus, in my view, the trial

court did not clearly err by determining that the non-

parent adult touched KK-1’s intimate parts. MCL

750.520a(f) and (q).

I also conclude that KK-1’s testimony established

that the nonparent adult’s touching could “reasonably

be construed as being for the purpose of sexual arousal

or gratiﬁcation . . . .” MCL 750.520a(q). KK-1 stated

that it was uncommon for the nonparent adult to sleep

in bed with her, KK-2 and respondent were in another

room, and the nonparent adult’s touching caused her to

be uncomfortable and feel nauseous. KK-1’s testimony

that she told the nonparent adult her stomach hurt

because he was touching her suggests that the touching

began before KK-1 complained of a stomachache. There-

fore, the trial court also did not clearly err by ﬁnding

that the nonparent adult touched KK-1 for the purpose

of sexual arousal or gratiﬁcation. Id. Consequently, the

trial court did not clearly err by ﬁnding that clear and

convincing evidence supported that the nonparent adult

sexually abused KK-1. MCL 712A.19b(3)(b)(iii).

contrast, the dissent suggests young children should suffer

adverse consequences if they take proactive steps, such as removing an

abuser’s hand from an intimate part of the body. Thus, MCL

712A.19b(3)(b)(iii), following the dissent’s reasoning, would not apply to

a child who seeks to protect herself during the commission of a sexual

assault by an abuser.

2018] In re K

EILLOR

PINION BY

IORDAN

, J.

In order for termination to be proper pursuant to

CL 712A.19b(3)(b)(iii), the trial court also was re-

quired to ﬁnd by clear and convincing evidence “that

there is a reasonable likelihood that the child will suffer

from injury or abuse by the nonparent adult in the

foreseeable future if placed in the parent’s home.” The

record shows that respondent did not and does not

believe that the nonparent adult sexually abused KK-1.

To wit, at the time of the trial, the nonparent adult was

still living in the home with respondent. While respon-

dent asserted that she would have the nonparent adult

move out if so ordered by the trial court, I do not believe

that the trial court clearly erred by ﬁnding otherwise.

Provided that the nonparent adult still lives in respon-

dent’s house and testimony established that she does

not believe KK-1’s allegations of sexual abuse, the trial

court did not clearly err by ﬁnding that clear and

convincing evidence established that the minor children

would suffer sexual abuse by the nonparent adult in the

future. Id.

In sum, because termination was proper pursuant to

MCL 712A.19b(3)(b)(iii), I need not consider the trial

court’s termination of respondent’s parental rights

pursuant to Subsection (j), In re Ellis, 294 Mich App at

32, but note that, for the same reasons, there was clear

and convincing evidence that “[t]here is a reasonable

likelihood, based on the conduct or capacity of the

child’s parent, that the child will be harmed if

he or she is returned to the home of the parent,” MCL

712A.19b(3)(j).

III. BEST INTERESTS

Respondent argues that the trial court clearly erred

determining

that it was in the minor children’s best

interests to terminate respondent’s parental rights. We

disagree.

92 325 M

ICH

80 [June

PINION BY

IORDAN

, J.

A. STANDARD OF REVIEW AND APPLICABLE LAW

This

Court reviews a trial court’s determination

regarding best interests for clear error. In re White, 303

Mich App at 713. “A trial court’s decision is clearly

erroneous ‘[i]f although there is evidence to support it,

the reviewing court on the entire evidence is left with

the deﬁnite and ﬁrm conviction that a mistake has

been made.’ ” In re Olive/Metts Minors, 297 Mich App

35, 41; 823 NW2d 144 (2012), quoting In re Miller, 433

Mich 331, 337; 445 NW2d 161 (1989).

“Once a statutory basis for termination has been

shown by clear and convincing evidence, the court

must determine whether termination is in the child’s

best interests.” In re LaFrance Minors, 306 Mich App

713, 732-733; 858 NW2d 143 (2014), citing MCL

712A.19b(5). “ ‘[T]he focus at the best-interest stage

has always been on the child, not the parent.’ ” In re

Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874

NW2d 205 (2015), quoting In re Moss, 301 Mich App

76, 87; 836 NW2d 182 (2013). “Best interests are

determined on the basis of the preponderance of the

evidence.” In re LaFrance Minors, 306 Mich App at

733.

In considering the issue of whether termination is in

the best interests of the minor child, the trial court is

permitted to consider “the child’s bond to the parent, the

parent’s parenting ability, the child’s need for perma-

nency, stability, and ﬁnality, . . . the advantages of a

foster home over the parent’s home[,] . . . the length of

time the child was in care, the likelihood that the child

could be returned to her parents’ home within the

foreseeable future, if at all, and compliance with the

case service plan.” In re Payne/Pumphrey/Fortson, 311

Mich App at 63-64 (citations and quotation marks

omitted). “In assessing whether termination of parental

2018] In re K

EILLOR

PINION BY

IORDAN

, J.

rights is in a child’s best interests, the trial court should

eigh all evidence available to it.” Id. at 63.

B. ANALYSIS

As previously stated, there was testimony that the

nonparent adult sexually abused KK-1 while on va-

cation in California. He did so while sleeping in the

same bed with KK-1 while respondent and KK-2 were

in a separate room. At trial, testimony established

that respondent did not believe KK-1’s allegations

and could not explain why KK-1 slept alone with the

nonparent adult. Furthermore, testimony of the fam-

ily therapist showed that the bond between respon-

dent and the minor children was broken. To wit, the

family therapist stated that KK-1 would not engage

with respondent at group sessions and that KK-2

followed her sister’s lead. The minor children refused

to visit with respondent, and the record established

that the minor children were ﬂourishing in their

placement with other relatives, who were willing to

adopt them. In addition to the allegations of sexual

abuse, the record was replete with accusations of

serious physical abuse by respondent. Therefore, a

number of reasons—including respondent’s noted dis-

belief of KK-1’s sexual-abuse allegations, respon-

dent’s allowing the nonparent adult to remain in her

house even after those allegations, KK-1’s numerous

allegations of respondent’s physical abuse of her, and

the broken bond between the family members—prove

that the trial court did not clearly err by determining

that a preponderance of the evidence supported that

termination of respondent’s parental rights was in

the best interests of the minor children. MCL

712A.19b(5).

Afﬁrmed.

94 325 M

ICH

80 [June

PINION BY

IORDAN

, J.

ONAYNE

RAUSE

, P.J. (concurring). I respectfully

concur in afﬁrming the trial court. I am unpersuaded

that the evidence in this record adequately establishes

that sexual abuse of either child by a nonparent adult

actually occurred. However, any act the nonparent

adult did or did not perpetrate against the children is

irrelevant. If only one statutory ground for termination

is properly established, a parent’s parental rights must

be terminated unless the trial court ﬁnds that doing so

is contrary to the best interests of the children. In re

Powers Minors, 244 Mich App 111, 118; 624 NW2d 472

(2000); In re BZ, 264 Mich App 286, 301; 690 NW2d 505

(2004). On this record, the trial court must be afﬁrmed.

The record conclusively establishes that respondent

physically abused the children; she even admitted to

beating them with an extension cord and was convicted

of third-degree child abuse. The trial court could have

left us with more speciﬁc factual ﬁndings to review, but

it is clear that it chose to believe the testimony given by

one of the children, which is the prerogative of the trial

court, not this Court. McGonegal v McGonegal, 46

Mich 66, 67; 8 NW 724 (1881). Considering all the

evidence—speciﬁcally (1) respondent’s bizarre testi-

mony that she would do anything to bring the children

home but would have agreed with the children’s wishes

never to see her again had the one child who stated

that she was sexually abused by the nonparent adult

withdrawn her allegation of sexual abuse; (2) respon-

dent’s apparent lack of concern for the serious trauma

the children suffered; (3) the trial court’s readily dis-

cernable ﬁnding that the children would suffer addi-

tional harm if returned to respondent, based, in part,

on respondent’s physical abuse of the child—it is clear

that the trial court’s decision is amply supported.

Additionally, respondent’s clear disregard for the chil-

dren’s allegations of sexual abuse further reﬂects an

2018] In re K

EILLOR

ONCURRING

PINION BY

ONAYNE

RAUSE

, P.J.

equal disregard for their well-being. I ﬁnd that MCL

712A.19b(3)(j)

has been more than adequately estab-

lished by clear and convincing evidence.

Because I ﬁnd one statutory ground for termination

overwhelmingly established, I would not address the

issue of the alleged sexual abuse because doing so is

unnecessary. And as can be seen from the lead opinion

and the dissenting opinion, it is something about which

there can be a serious debate. Not so with the physical

abuse: it unequivocally occurred. Only the severity of

the physical abuse is at all in question, and again, I

defer to the trial court’s ﬁndings regarding credibility

of the witnesses. McGonegal, 46 Mich at 67.

Other than the sexual-abuse allegation itself, I

agree with the lead opinion’s assessment of the best

interests of the children. Consequently, I concur in

afﬁrming.

ARKEY

, J. (dissenting). I must dissent in respect to

both the majority and concurring opinions. I do not

accept the majority’s statutory interpretation legerde-

main by which “stomach” is added to the statutory

deﬁnition of “intimate parts” under the aliases of “groin”

and “inner thigh” and/or to make it synonymous with

any of those words. “In determining the Legislature’s

intent, we must ﬁrst look to the language of the statute

itself.” In re MKK, 286 Mich App 546, 556; 781 NW2d

132 (2009). Further, the Legislature is presumed to “be

aware of the consequences of its use or omission of

statutory language.” Id. Judges may not read into a

clear statute that which is not within the manifest

intention of the Legislature as derived from the lan-

guage of the statute itself. People v Breidenbach, 489

Mich 1, 10; 798 NW2d 738 (2011). Further, clear statu-

tory language must be enforced as written. Velez v

Tuma, 492 Mich 1, 16-17; 821 NW2d 432 (2012). The

96 325 M

ICH

80 [June

ISSENTING

PINION BY

ARKEY

, J.

Legislature did not include “stomach” in its list of

exually “intimate parts” in MCL 750.520a(f), and this

Court may not add it to the statute to reach a desired

result in this case. The majority’s opinion does exactly

that. Consequently, for this reason and for others dis-

cussed later in this opinion, I conclude that the trial

court clearly erred and would vacate the trial court’s

order and remand this case to the trial court for further

proceedings.

I. STANDARDS OF REVIEW

This Court reviews for clear error the trial court’s

actual ﬁndings regarding both the statutory grounds to

terminate parental rights and the trial court’s ﬁndings

regarding the best interests of the children. MCR

3.977(K); In re Trejo Minors, 462 Mich 341, 356-357; 612

NW2d 407 (2000); In re Olive/Metts Minors, 297 Mich

App 35, 40; 823 NW2d 144 (2012). To be clearly errone-

ous, a decision must be more than maybe or probably

wrong. In re Williams, 286 Mich App 253, 271; 779

NW2d 286 (2009). This Court will determine a ﬁnding is

clearly erroneous only when left with the deﬁnite and

ﬁrm conviction that a mistake has been made. Id.

This case also presents an issue of statutory inter-

pretation, which this Court reviews de novo. In re

Harper, 302 Mich App 349, 352; 839 NW2d 44 (2013).

“The interpretation and application of a statute in

particular circumstances is a question of law this

Court reviews de novo.” Detroit Pub Sch v Conn, 308

Mich App 234, 246; 863 NW2d 373 (2014).

II. ANALYSIS

I conclude that the court clearly erred by ﬁnding

that

MCL

712A.19b(3)(b)(iii) was proved by clear and

2018] In re K

EILLOR

ISSENTING

PINION BY

ARKEY

, J.

convincing evidence. Because this Court must recognize

he special opportunity of the trial court to judge the

credibility of the witnesses who appeared before it, MCR

2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161

(1989), I accept KK-1’s testimony as credible for pur-

poses of my analysis. Her testimony, however, did not

establish “sexual abuse” within the meaning of

§ 19b(3)(b)(iii), and the trial court clearly erred in so

ﬁnding. Further, the erroneous ﬁnding of sexual abuse

by a nonparent residing in respondent’s home is so

intertwined with the trial court’s ﬁnding under MCL

712A.19b(3)(j) of likely harm if the children were re-

turned to respondent’s care that it renders this ﬁnding

also clearly erroneous. So even if terminating respon-

dent’s parental rights were in the children’s best inter-

ests, MCL 712A.19b(5), at least one statutory ground for

termination must still be proved by clear and convincing

evidence to support such an order. MCL 712A.19b(3); In

re JK, 468 Mich 202, 210; 661 NW2d 216 (2003) (“A

due-process violation occurs when a state-required

breakup of a natural family is founded solely on a ‘best

interests’ analysis that is not supported by the requisite

proof of parental unﬁtness.”).

I therefore conclude that

e trial court’s order terminating respondent’s paren-

tal rights must be vacated.

The trial court found clear and convincing evidence

of statutory grounds for termination under MCL

712A.19b(3)(b)(iii), which provides:

(b) The child or a sibling of the child has suffered

physical

injury or physical or sexual abuse under 1 or

more of the following circumstances:

* * *

Adoptive

parents have all the same rights and responsibilities as if

they were natural parents. MCL 710.60(1); Wilson v King, 298 Mich App

378, 381-382; 827 NW2d 203 (2012).

98 325 M

ICH

80 [June

ISSENTING

PINION BY

ARKEY

, J.

(iii) A nonparent adult’s act caused the physical injury

physical or sexual abuse and the court ﬁnds that there

is a reasonable likelihood that the child will suffer from

injury or abuse by the nonparent adult in the foreseeable

future if placed in the parent’s home.

Although MCL 712A.19b does not provide deﬁni-

tions

for the pertinent terms “nonparent adult” and

“sexual abuse,” those terms are found and deﬁned in

the Child Protection Law, MCL 722.601 et seq. Indeed,

§ 19b twice refers to and adopts the deﬁnition of

“sexual abuse” “as that term is deﬁned in section 2 of

the child protection law, 1975 PA 238, MCL 722.622.”

MCL 712A.19b(3)(k)(ix) and (m)(ix).

MCL 722.622(y) deﬁnes “sexual abuse” as follows:

“Sexual abuse” means engaging in sexual contact or

sexual

penetration as those terms are deﬁned in section

520a of the Michigan penal code, 1931 PA 328, MCL

750.520a, with a child.

In this case, there is no allegation of sexual penetra-

tion,

only “sexual contact” potentially is at issue.

The deﬁnition of “sexual contact” is as follows:

“Sexual contact” includes the intentional touching of

the

victim’s or actor’s intimate parts or the intentional

touching of the clothing covering the immediate area of

the victim’s or actor’s intimate parts, if that intentional

touching can reasonably be construed as being for the

purpose of sexual arousal or gratiﬁcation, done for a sexual

purpose, or in a sexual manner for:

(i) Revenge.

(ii) To inﬂict humiliation.

(iii) Out of anger. [MCL 750.520a(q) (emphasis added).]

In turn, MCL 750.520a(f) deﬁnes “intimate parts” as

“includ[ing]

the primary genital area, groin, inner

thigh, buttock, or breast of a human being.”

2018] In re K

EILLOR

ISSENTING

PINION BY

ARKEY

, J.

In light of these unambiguous statutory terms, estab-

ishing “sexual abuse” as used in MCL

712A.19b(3)(b)(iii) requires clear and convincing evi-

dence that the nonparent adult, here, Mr. H, intention-

ally touched KK-1’s “intimate parts”—“the primary

genital area, groin, inner thigh, buttock, or breast,” or

the clothing covering her intimate parts, and such

touching can reasonably be construed to have been for a

sexual purpose or other purpose prohibited by the

statute. In this case, accepting KK-1’s testimony as

credible, I note that the evidence showed Mr. H did not

touch KK-1’s “primary genital area, groin, inner thigh,

buttock, or breast” or her clothing covering those inti-

mate parts. Indeed, KK-1 herself testiﬁed that Mr. H

rubbed her stomach and her abdomen after KK-1 had

said her stomach hurt. She testiﬁed that she pulled

Mr. H’s hand out and that the touching made her feel

uncomfortable. She got up and went to the bathroom.

She testiﬁed that when she came back, Mr. H started to

rub her back, but she asked him to stop. She testiﬁed

that he immediately complied. This is the total extent of

the facts underlying the sole claim of sexual abuse or

contact.

When speciﬁcally asked if Mr. H had touched her

“private parts,” KK-1 answered, “Almost.” She ex-

plained, “Like he was right there, but then I pulled his

hand out and I went to the top bunk.” On cross-

examination, KK-1 said that she thought Mr. H was

moving his hand toward her “private parts,” but he

never got it there. In sum, there was no testimony

whatsoever to ﬁnd that Mr. H touched KK-1’s “inti-

mate parts,” MCL 750.520a(f). Patently, neither the

trial court nor this Court may speculate or infer

conduct or intent from the record evidence—the major-

ity and the concurrence do just that in reaching their

respective decisions. Consequently, it was clear error to

100 325 M

ICH

80 [June

ISSENTING

PINION BY

ARKEY

, J.

ﬁnd that “sexual abuse” within the meaning of MCL

712A.19b(3)(b)(

iii) occurred because there was a lack of

evidence that “sexual contact” occurred. See MCL

722.622(y); MCL 750.520a(q).

Moreover, because there was no evidence that Mr.

H touched KK-1’s “intimate parts” as required by the

statute, there also was no evidence to show either

that the touching that KK-1 described was for a

sexual purpose or to support an inference that the

touching was to exact revenge, to humiliate, or out of

anger. Rather, the touching or rubbing of KK-1’s

stomach area occurred only after she complained that

her stomach hurt. While the touching may have made

KK-1 uncomfortable—and given her age, that’s

understandable—there was no evidence that Mr. H

intended to cause that reaction instead of intending to

comfort KK-1. She had just complained that her

stomach was hurting. I also note the very important

fact that Mr. H was in his late sixties at the time and

had lived with respondent and the children by then

for many years, indeed, most of their lives. Notably,

no other incidents of any similar nature were ever

alleged either before or after this one that was raised

late in the proceedings and about which KK-1 testi-

ﬁed. Consequently, there was no clear and convincing

evidence that the touching that KK-1 described was

for one of the prohibited statutory purposes. MCL

750.520a(q). For this reason it was also clear error to

ﬁnd that “sexual abuse” within the meaning of MCL

712A.19b(3)(b)(iii) occurred—there was a lack of evi-

dence that the touching was for a sexual or other

prohibited purpose. See MCL 722.622(y); MCL

750.520a(q).

And, again, KK-1 testiﬁed that the touching she

described was a single incident that had never hap-

2018] In re K

EILLOR

101

ISSENTING

PINION BY

ARKEY

, J.

pened before and that never happened again. To estab-

lish

MCL 712A.19b(3)(b)(iii) as a ground for termina-

tion, the court must ﬁnd by clear and convincing

evidence that “there is a reasonable likelihood that the

child will suffer from . . . [sexual] abuse by the nonpar-

ent adult in the foreseeable future if placed in the

parent’s home.” KK-1’s testimony described a single

touching that she stated had happened once—never

before and never since. Parenthetically, I also point out

that KK-1’s sister had never made such accusations

against Mr. H despite living with him most of her life

as well. Under these facts, I ﬁnd no basis to conclude by

clear and convincing evidence that such an incident—

were it in some way even fairly determined to have

been sexual abuse by a nonparent adult—would be

likely to recur in the future.

Additionally, the allegations of sexual abuse did not

arise until late in the proceedings—at the end of April

2017, according to the supplemental petition. The

supplemental petition seeking termination on the ba-

sis of the new sexual-abuse allegations was ﬁled on

May 8, 2017, and not authorized until a May 22, 2017

pretrial hearing, at which time respondent and Mr. H

were served with it. At the time of the pretrial, respon-

dent had not been permitted to visit the children for

seven months, initially because the court temporarily

suspended visitation pending a psychological examina-

tion but later because the children refused to partici-

pate, and the court did not order them to do so despite

their young ages. Nevertheless, respondent was un-

questionably fully compliant with all court orders and

with the service provider’s treatment plans. In its oral

ﬁndings after trial, the trial court noted:

And so, obviously, this is a very difﬁcult case in the

sense

that

the mother is compliant with the service plan,

102 325

ICH

80 [June

ISSENTING

PINION BY

ARKEY

, J.

but because of the fact that the children won’t engage in

therapy

, they won’t engage in activities with the mother,

they refuse to return home, they refuse to see the mother,

we’re not able to reunify. And so, the Court, the Court has

to be mindful of that, that notwithstanding the fact that

the mother’s compliant, a case just can’t go on in perpe-

tuity without, without having a permanency plan and

some direction.

At trial, respondent testiﬁed that if necessary, she

would establish a household separate from Mr. H,

either by having him move out of the home they owned

together or by ﬁnding new housing for herself and the

children. Speciﬁcally, respondent testiﬁed that she

would separate from Mr. H if necessary to obtain the

return of the children. Respondent, however, was never

directed to establish a separate home for herself as a

condition of having the children returned to her, nor

was that issue even discussed with her. So a ﬁnding of

likely future harm from Mr. H, i.e., that he posed a

potential threat to the children, was patently prema-

ture where the evidence showed a one-time incident

and respondent expressed her willingness to establish

a household without Mr. H were that to be a condition

for her children’s return.

Here, the trial court’s ﬁnding regarding likely harm

under § 19b(3)(j) if the children were returned to

respondent’s care is so intertwined with the court’s

erroneous ﬁnding of sexual abuse by a nonparent

residing in respondent’s home that it also is clearly

erroneous. MCL 712A.19b(3)(j) provides a ground for

termination of parental rights if “[t]here is a reason-

able likelihood, based on the conduct or capacity of the

child’s parent, that the child will be harmed if he or she

is returned to the home of the parent.”

On this statutory ground, I also part company with

the concurring opinion. In its oral opinion from the

2018] In re K

EILLOR

103

ISSENTING

PINION BY

ARKEY

, J.

bench, the trial court stated that MCL 712A.19b(3)(j)

“is

also proven by clear and convincing evidence be-

cause we have testimony of sexual abuse by the non-

parent adult and we have testimony of physical abuse

to the child, [KK-1].” But it is settled law that a court

speaks through its written orders, not through its oral

pronouncements. In re KMN, 309 Mich App 274, 287;

870 NW2d 75 (2015). And in its written order termi-

nating parental rights, the trial court wrote:

It is further ordered that the court ﬁnds clear and

convincing

evidence of a statutory basis for termination of

parental rights of the mother pursuant to MCL

712A.19b(3)(b)(iii) and (j). The mother’s living together

partner sexually abused the child [KK-1], and future

abuse is reasonably likely as the non-parent adult has not

come forward to engage in services. Further, the non-

parent adult continues to reside in the home of the mother.

In addition, the children will be harmed if returned to

the home of the mother, given that the non-parent adult

continues to reside in that home. While the mother is

compliant with services, the children refuse to engage

with the mother in any activities, and they refuse to

return home.

Clearly, in its written order and ﬁndings of fact, the

trial

court

relied only on the alleged sexual abuse by a

nonparent adult to ﬁnd both statutory grounds for

termination. In her concurring opinion, Judge K

RAUSE

takes on the role of the trial court—here, relying in

large part on facts that apparently had no impact

whatsoever on the trial court’s written analysis and

ﬁndings: that respondent, not Mr. H, has previously

pled no contest to a charge of child abuse for striking a

child with an electrical cord. I suggest that the trial

court did not focus on that issue in its order because

not only did respondent take full responsibility, she

also presented and apparently convinced those provid-

104 325 M

ICH

80 [June

ISSENTING

PINION BY

ARKEY

, J.

ing services and the court that she understood her

mistake

and clearly conveyed that she had learned

from it. Thus, to cite it as a reason to terminate would

have been erroneous. In short, it was patently a

nonissue at the point of hearing and had been super-

seded by the allegation against Mr. H. To now boot-

strap that factor as the reason to terminate and remove

these children from respondent in lieu of remanding

for a fair and proper hearing when the trial court did

not is, to me, far beyond our role as appellate court

judges.

The trial court’s ﬁnding that clear and convincing

evidence supported ﬁnding MCL 712A.19b(3)(j) as a

ground for termination of respondent’s parental rights

is clearly erroneous. MCR 3.977(K); In re Olive/Metts

Minors, 297 Mich App at 40. First, this ﬁnding is

premised on the ﬁndings that Mr. H perpetrated

“sexual abuse” on KK-1 and that KK-1 was likely to be

sexually abused in the future by Mr. H. For the reasons

already discussed, these premises are not supported by

clear and convincing evidence; in fact, they are not

supported by any evidence!

Moreover, this ﬁnding is based on the additional

premise that Mr. H would remain in respondent’s

home. But respondent, who had fully complied with

all other requirements of the court, offered to estab-

lish a home for the children without Mr. H if the court

required it as a condition. But respondent was never

directed or even advised to do so. So the court’s

ﬁnding of likely harm to the children from Mr. H if

returned to respondent was patently not supported by

clear and convincing evidence. MCR 3.977(K). The

ﬁnding regarding § 19b(3)(j) was more than probably

wrong, In re Williams, 286 Mich App at 271, because

the legal premise on which it was based, “sexual

2018] In re K

EILLOR

105

ISSENTING

PINION BY

ARKEY

, J.

abuse” by Mr. H, was not supported by any evidence.

urther, the “conduct or capacity” of respondent

showed that she would abide by the court’s direction

and would remove Mr. H from her home if directed to

do so.

Where, as in this case, petitioner sought termination

of parental rights on grounds different from those by

which the court originally gained jurisdiction (physical

abuse), it is petitioner’s burden to prove “on the basis of

clear and convincing legally admissible evidence that

one or more of the facts alleged in the supplemental

petition” are true and come within MCL 712A.19b(3).

MCR 3.977(A)(3) and (F)(1)(b). The petitioner bears

the burden of establishing the existence of at least one

of the grounds for termination of parental rights listed

in MCL 712A.19b(3) by clear and convincing evidence.

In re JK, 468 Mich at 210. In this case, petitioner

asserted one ground for termination of parental rights:

sexual abuse of KK-1 by respondent and by respon-

dent’s housemate, Mr. H. But the evidence utterly

failed to show any sexual abuse by respondent, and the

testimony with respect to Mr. H was legally insufﬁcient

to establish sexual abuse within the meaning of MCL

712A.19b(3)(b)(iii). See MCL 722.622(y); MCL

750.520a(q); MCL 750.520a(f). The trial court’s ﬁnding

regarding likely harm under MCL 712A.19b(3)(j) if the

children were returned to respondent’s care is so

dependent on the court’s erroneous ﬁnding of sexual

abuse by a nonparent residing in respondent’s home

that it also is clearly erroneous. The trial court’s

decision to terminate, in fact, seems to be based solely

on its conclusion that because the children refused to

engage in any way with treatment or respondent, its

only option was to terminate respondent’s parental

rights. It should go without saying that such a deter-

mination as a basis for termination of parental rights

106 325 M

ICH

80 [June

ISSENTING

PINION BY

ARKEY

, J.

has no legal basis whatsoever and is a remarkable

judicial

assault on the parent/child relationship.

Many—if not most—children go through a deﬁant

period while maturing: KK-1 was about 13 years old

during these proceedings. To cite such deﬁance in

preteen and barely teenage children as the main rea-

son for terminating parental rights is patently wrong

and, for us to let it stand, dangerous. Because the

evidence did not establish at least one ground for

termination of respondent’s parental rights, MCL

712A.19b(3), the trial court clearly erred by terminat-

ing respondent’s parental rights. In re JK, 468 Mich at

210; In re Olive/Metts Minors, 297 Mich App at 40.

Terminating parental rights and removing children

from their parent’s care is an enormous responsibility

and one which should be undertaken with scrupulous

regard to the laws that provide the strict criteria that

must be followed. Because the trial court here clearly

failed to properly follow the statutory requirements in

terminating respondent’s parental rights, I would va-

cate the trial court’s order terminating respondent’s

parental rights and remand this matter to the trial

court for further proceedings. I fail to see how remand-

ing for a second hearing under these unusual facts and

legal conclusions is anything but a bottom-line thresh-

old to ensure the fair and proper proceedings respon-

dent and these children deserve.

2018] In re K

EILLOR

107

ISSENTING

PINION BY

ARKEY

, J.

WOODRING v PHOENIX INSURANCE COMPANY

Docket

No. 324128. Submitted May 9, 2018, at Grand Rapids. Decided

June 28, 2018, at 9:10 a.m. Leave to appeal denied at 504 Mich

873 (2019).

Tamara Woodring brought an action in the Muskegon Circuit Court

against Phoenix Insurance Company, seeking personal protection

insurance (PIP) beneﬁts under the no-fault act, MCL 500.3101 et

seq., for injuries she sustained when she slipped and fell at a

self-serve car wash while washing a vehicle insured by defendant.

Defendant moved for summary disposition on the ground that

plaintiff’s claim was barred by MCL 500.3106(1), which prohibits

the recovery of PIP beneﬁts for injuries arising out of the

ownership, operation, maintenance, or use of a vehicle that is

parked unless an exception applies. The trial court, Timothy G.

Hicks, J., denied defendant’s motion and instead granted sum-

mary disposition in plaintiff’s favor under MCR 2.116(I)(2), rea-

soning that under Miller v Auto-Owners Ins Co, 411 Mich 633

(1981), and Musall v Golcheff, 174 Mich App 700 (1989), plaintiff

was entitled to PIP beneﬁts despite the fact that her car was

parked for purposes of MCL 500.3106(1) because she was injured

while maintaining her vehicle under MCL 500.3105(1). The court

noted that although the Supreme Court had subsequently dis-

avowed Miller in part, it had not overruled the case. Defendant

applied for leave to appeal in the Court of Appeals, which denied

the application. The Supreme Court, in lieu of granting defen-

dant’s application for leave to appeal that decision, remanded the

case to the Court of Appeals for consideration as on leave granted.

501 Mich 883 (2017).

The Court of Appeals held:

1. The trial court did not err by relying on Miller and Musall

in granting plaintiff summary disposition because these cases

retain precedential value. Musall, which relied in part on Miller,

held that a plaintiff who was injured by a car-wash wand was

entitled to PIP beneﬁts under the no-fault act on the ground that

he was engaged in maintenance of the vehicle at the time of the

injury. The fact that Musall is not binding does not render it

without precedential value. While the Court of Appeals is not

strictly required under MCR 7.215(J)(1) to follow its uncontra-

108 325

ICH

108 [June

dicted opinions decided before November 1, 1990, those opinions

are

nevertheless entitled to signiﬁcantly greater deference than

are unpublished cases. However, those opinions may not be

followed if they conﬂict with binding precedent from the Supreme

Court that conforms to Const 1963, art 6, § 6, including peremp-

tory orders to the extent they can theoretically be understood,

even if doing so requires one to seek out other opinions. The

Supreme Court order in LeFevers v State Farm Mut Auto Ins Co,

493 Mich 960 (2013), stated that its decision in Frazier v Allstate

Ins Co, 490 Mich 381 (2011), effectively disavowed Miller to the

extent it was inconsistent with Frazier—speciﬁcally, that portion

of Miller addressing the circumstances under which a parked

vehicle may still be operated as a motor vehicle and pose a risk of

injury, such as opening the door of a parked car into trafﬁc.

Nothing in Frazier or LeFevers directly undermined the holding

in Miller that the parked-vehicle exception in MCL 500.3106(1) is

simply not triggered if an injury is caused by the maintenance of

a motor vehicle under MCL 500.3105(1). Accordingly, this holding

remained good law, as did the holding in Musall.

2. The fact that the word “parked” is not deﬁned in the

no-fault act raised the question whether plaintiff’s vehicle was

parked for purposes of MCL 500.3106(1). A vehicle is not neces-

sarily parked just because it is stopped, halted, standing, or

otherwise not presently in motion, as the example of a vehicle

stopped at a trafﬁc light makes clear, and the deﬁnition of

“parking” found in the Michigan Vehicle Code is not workable

outside the context of regulating vehicles on a highway. The cases

that have addressed the issue have determined a vehicle to be

parked if it is both motionless and either being used as something

unrelated to being a vehicle or incapable of being readily put back

into motion. While plaintiff’s vehicle was indeed motionless, it

was also still running and clearly not intended to be left alone or

to be unoccupied for very long. Therefore, even if the trial court’s

grant of summary disposition in plaintiff’s favor had been im-

proper, the trial court’s refusal to grant summary disposition in

defendant’s favor was properly afﬁrmed because whether the

vehicle was parked could only be resolved by posing the question

to the trier of fact.

3. The causal connection between the plaintiff’s injuries and

the maintenance of a motor vehicle as a motor vehicle was more

than incidental, fortuitous, or “but for.” In contrast to the cases

defendant cites in which the plaintiffs allegedly slipped and fell in

the general vicinity of a vehicle, plaintiff in this case was actively

engaged in performing essential maintenance to the vehicle

2018] W

OODRING V

HOENIX

109

pertinent to its use as a motor vehicle. Musall remains

controlling

precedent in this regard and has already determined that such a

causal nexus exists on highly similar facts. Unlike the situation

in Williams v Pioneer State Mut Ins Co, 497 Mich 875 (2014), in

which the plaintiff did not put into motion any chain of events

that inﬂuenced the tree branch that fell and injured her as she

was getting into her car, in this case, there was a strong likelihood

that the slippery patch on the ﬂoor of the car wash was directly

caused by the physical acts of maintenance performed by plain-

tiff, and even if it was not, those physical acts of maintenance

directly impaired plaintiff’s ability to detect or avoid it, or to

prevent herself from actually falling or getting hurt even if

avoidance of the slippery patch was impossible. Plaintiff’s main-

tenance of her car did not simply happen to be performed in the

wrong place at the wrong time, but in fact had a direct causal

inﬂuence on her fall and resulting injury.

Afﬁrmed.

Judge R

IORDAN

, dissenting, would have held that summary

disposition should have been granted in favor of defendant

because there was no question of fact that the causal connection

between plaintiff’s injuries and her automobile was merely inci-

dental. Plaintiff slipped and fell because of a condition on the

land—speciﬁcally, that the ﬂoor of the car wash was slippery or

icy—and the fact that she might have been washing her vehicle

when she stumbled was unquestionably incidental, fortuitous, or

“but for.”

1. C

OURTS —

OURT

ULES —

OURT OF

PPEALS

PINIONS —

IRST

-O

ULE —

RECEDENTIAL

ALUE

Published opinions issued by the Court of Appeals before Novem-

ber 1, 1990, that have not been contradicted by subsequent

cases, while not binding, are entitled to signiﬁcantly greater

deference than are unpublished cases; these opinions, however,

may not be followed if they conﬂict with binding precedent from

the Supreme Court that conforms to Const 1963, art 6, § 6,

including peremptory orders to the extent they can theoretically

be understood, even if doing so requires one to seek out other

opinions (MCR 7.215(J)(1)).

2. I

NSURANCE —

-F

AULT

CT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

ARKED

EHICLES

MCL 500.3106(1) prohibits the recovery of personal protection

insurance beneﬁts for injuries arising out of the ownership,

operation, maintenance, or use of a vehicle that is parked unless

110 325 M

ICH

108 [June

an exception applies; the holding in Miller

v Auto-Owners Ins Co,

411 Mich 633 (1981), that MCL 500.3106(1) does not apply if an

injury is caused by the maintenance of a parked motor vehicle

under MCL 500.3105(1) remains valid.

3. I

NSURANCE —

-F

AULT

CT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

AINTENANCE OF A

OTOR

EHICLE —

ARKED

EHICLES —

ASH-

ING

An injury sustained in the course of washing a motor vehicle may

be compensable through personal protection insurance as being

causally connected to the maintenance of the vehicle for purposes

of MCL 500.3105(1) and is not barred by MCL 500.3106(1), which

generally prohibits the recovery of beneﬁts for injuries arising out

of the ownership, operation, maintenance, or use of a vehicle that

is parked.

4. I

NSURANCE —

-F

AULT

CT —

ORDS AND

HRASES —

“P

ARKED

.”

A vehicle is “parked” for purposes of MCL 500.3106(1) if it is both

motionless and either being used as something unrelated to being

a vehicle or incapable of being readily put back into motion.

West Michigan Injury Lawyers, PLC (by Matthew G.

Swartz) for plaintiff.

Law Ofﬁces of Catherine A. Gofrank (by Mary Ann

Hart) for defendant.

Before: R

ONAYNE

RAUSE

, P.J., and M

ARKEY

and

IORDAN

, JJ.

ONAYNE

RAUSE

, P.J. Defendant appeals as on leave

granted, pursuant to an order of remand from our

Supreme Court, the trial court’s denial of summary

disposition in defendant’s favor and grant of summary

disposition in plaintiff’s favor. For purposes of the

instant appeal, the facts are undisputed. Plaintiff’s

employer provided her with a vehicle, which was

insured by defendant. Plaintiff went to a self-serve

spray car wash in early February, parked but left the

vehicle running, began washing the vehicle, and as she

worked her way around to the rear of the vehicle, she

2018] W

OODRING V

HOENIX

111

PINION OF THE

OURT

slipped and fell, suffering serious injuries for which

she

sought beneﬁts under the no-fault act, MCL

500.3101 et seq. It is unknown why plaintiff slipped, or

what she slipped on, but she believes it may have been

ice. It is undisputed that plaintiff was not entering,

occupying, exiting, or touching the vehicle at the time

of her fall, although she was using the car wash’s

sprayer wand. The trial court’s denial and grant of

summary disposition was based in signiﬁcant part on

the fact that precedent from our Supreme Court, which

was confusing, had not clearly overruled precedent

from this Court, which was therefore still good law. We

agree and afﬁrm.

As an initial matter, the remand order from our

Supreme Court reads, in its entirety, as follows:

By order of September 27, 2016, the application for leave

o appeal the March 3, 2015 order of the Court of Appeals

was held in abeyance pending the decision in Spectrum

Health Hospitals v Westﬁeld Ins Co (Docket No. 151419).

On order of the Court, the case having been decided on

June 30, 2017, 500 Mich [1024] (2017), the application is

again considered and, pursuant to MCR 7.305(H)(1), in lieu

of granting leave to appeal, we REMAND this case to the

Court of Appeals for consideration as on leave granted.

Among the issues to be considered, the Court of Appeals

shall address whether the causal connection between the

plaintiff’s injuries and the maintenance of a motor ve-

hicle as a motor vehicle is more than incidental, fortu-

itous, or “but for.” Thornton v Allstate Ins Co, 425 Mich

643, 659[; 391 NW2d 320] (1986). [Woodring v Phoenix

Ins Co, order of the Michigan Supreme Court, entered

October 5, 2017 (Docket No. 151414).]

The decision in Spectrum consisted

entirely

of an order

remanding that case to this Court for reconsideration

in light of Covenant Med Ctr, Inc v State Farm Mut

Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017). That

case addresses whether a healthcare provider has a

112 325 M

ICH

108 [June

PINION OF THE

OURT

statutory cause of action against an insurer for the

payment

of PIP beneﬁts; it does not appear to address

any issues relevant to the instant appeal.

Plaintiff argues that the issue speciﬁed for consid-

eration by our Supreme Court was not argued in the

trial court and, therefore, is allegedly unpreserved. It

is true that defendant only mentioned the require-

ment in its brief and provided no supporting argu-

ment whatsoever. However, at the motion hearing,

defendant did present an argument to the effect that

plaintiff’s act of washing her vehicle did not constitute

a sufﬁcient causal nexus, but rather that the car wash

was “just merely a fortuitous location where the

accident happened.” Defendant clearly makes a sig-

niﬁcantly more thorough argument on appeal, but

that does not preclude appellate consideration when

the issue itself is not wholly novel. See Steward v

Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002).

In any event, because we may not disregard explicit

and comprehensible instructions given to us by our

Supreme Court, plaintiff’s argument is misplaced. We

will address this issue second.

A grant or denial of summary disposition is reviewed

de novo on the basis of the entire record to determine

whether 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 and grants summary disposition

only if the evidence fails to establish a genuine issue

regarding any material fact. Id. at 120. The interpre-

tation and application of statutes, rules, and legal

2018] W

OODRING V

HOENIX

113

PINION OF THE

OURT

doctrines is reviewed de novo. Estes

v Titus, 481 Mich

573, 578-579; 751 NW2d 493 (2008).

Much of the instant appeal turns on whether this

Court’s opinion in Musall v Golcheff, 174 Mich App

700; 436 NW2d 451 (1989), which held that injuries

caused by a car-wash wand were compensable under

the no-fault act, is precedentially binding. Defendant

argues that it is not binding pursuant to MCR

7.215(J)(1), the “ﬁrst-out rule,” while citing an unpub-

lished opinion that is clearly not binding under MCR

7.215(C)(1). Unpublished cases are signiﬁcantly less

persuasive; this Court may not be strictly bound to

follow older published cases, but traditionally regards

them as retaining some authority, at least if they were

not disputed by some other contemporaneous case.

Indeed, MCR 7.215(J)(1) does not state, as does MCR

7.215(C)(1), that older cases are not precedentially

binding, only that later ones must be followed. In

contrast, MCR 7.215(C)(1) explicitly states that unpub-

lished opinions “should not be cited for propositions of

law for which there is published authority,” whereas no

similar restriction applies under MCR 7.215(J)(1). De-

fendant’s argument is therefore unconvincing.

Our Supreme Court “recognizes the maxim expressio

unius est exclusio alterius; that the express mention in

a statute of one thing implies the exclusion of other

similar things.” Bradley v Saranac Community Sch Bd

of Ed, 455 Mich 285, 298; 565 NW2d 650 (1997).

Interpretation of a court rule follows the general rules

of statutory construction. Grievance Administrator v

Underwood, 462 Mich 188, 193-194; 612 NW2d 116

(2000). We think it reasonable to draw the negative

inference that we are not strictly required to follow

uncontradicted opinions from this Court decided before

November 1, 1990, but we think they are nevertheless

114 325 M

ICH

108 [June

PINION OF THE

OURT

considered to be precedent and entitled to signiﬁcantly

greater

deference than are unpublished cases. Conse-

quently, we are not impressed by the suggestion that

Musall has no precedential effect simply because it is

an older case.

That being said, this Court may not follow any

opinion previously decided by this Court, no matter

when, to the extent that opinion conﬂicts with binding

precedent from our Supreme Court, which may be

essentially anything it issues that conforms to Const

1963, art 6, § 6. DeFrain v State Farm Mut Auto Ins Co,

491 Mich 359, 369-370; 817 NW2d 504 (2012). This

includes peremptory orders to the extent they can

theoretically be understood, even if doing so requires

one to seek out other opinions, id.; see also People v

Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 (1993);

Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196;

650 NW2d 364 (2002)—notwithstanding, with all due

respect, the enormous confusion peremptory orders

sow and the frustration they generate. Defendant thus

relies on the argument that LeFevers v State Farm Mut

Auto Ins Co, 493 Mich 960 (2013), and Frazier v

Allstate Ins Co, 490 Mich 381; 808 NW2d 450 (2011),

are controlling because they partially “disavowed”

Miller v Auto-Owners Ins Co, 411 Mich 633; 309 NW2d

544 (1981), on which Musall relied. This convoluted

chain thus depends on what exactly “disavowal” means

and whether the peremptory orders are comprehen-

sible.

Although no published cases have deﬁned the differ-

ence, “disavowal” must mean something distinct from

“overruling.” See, e.g., Renny v Dep’t of Transp, 478

Mich 490, 505 n 36; 734 NW2d 518 (2007). It appears

clear from usage that disavowal is a pronouncement

that a rule of law stated in a case no longer applies

2018] W

OODRING V

HOENIX

115

PINION OF THE

OURT

without otherwise touching the result of the prior

judgment.

See Ray v Swager, 501 Mich 52, 72 n 49; 903

NW2d 366 (2017); Kidder v Ptacin, 284 Mich App 166,

170-171; 771 NW2d 806 (2009). Disavowal is, there-

fore, a repudiation that recognizes that a rule of law

has been overruled as a consequence of some other

decision, holding, or pronouncement, without itself

constituting that overruling.

Because LeFevers can be comprehended, it is prec-

edent binding on this Court and thus precludes this

Court from relying on any prior decisions in conﬂict

with it. LeFevers unambiguously held that Miller was

disavowed to the extent it conﬂicts with Frazier, which

did not itself mention Miller at all. However, LeFevers

only stated that the exact portion of Miller that was

“disavowed as dicta” was as follows:

“[MCL 500.3106(b)] recognizes that some parked vehicles

may

still be operated as motor vehicles, creating a risk of

injury from such use as a vehicle. Thus a parked delivery

truck may cause injury in the course of raising or lowering

its lift or the door of a parked car, when opened into trafﬁc,

may cause an accident. Accidents of this type involve the

vehicle as a motor vehicle.” [LeFevers, 493 Mich at 960,

quoting Miller, 411 Mich at 640.]

That is as far as the order went. We cannot compre-

hend

any

holding beyond that, and we think it would

be inappropriate to infer anything additional from the

order. The fact that Miller was only partially “dis-

avowed” necessarily means that the trial court prop-

erly found Miller to also remain “good law” in part.

Indeed, our Supreme Court has even recently cited

Miller as remaining binding precedent at least in part.

See Kemp v Farm Bureau Gen Ins Co of Mich, 500 Mich

245, 258 n 36; 901 NW2d 534 (2017).

116 325 M

ICH

108 [June

PINION OF THE

OURT

In Miller

, our Supreme Court observed that it was

incongruous for MCL 500.3105(1) to provide PIP ben-

eﬁts for, inter alia, maintenance of a motor vehicle as a

motor vehicle, but for MCL 500.3106(1) to simultane-

ously provide that parked vehicles are generally ex-

cluded, because maintenance is usually not performed

on vehicles while they are in motion and the exceptions

seem irrelevant to maintenance. Miller, 411 Mich at

637-638. This is completely logical. Consequently, the

Miller Court turned to an analysis of the policies

underlying the no-fault act and the various provisions

of it. Id. at 638-641.

In so doing, the Court concluded that the parking

exclusion reﬂected a policy decision that parked cars

were generally not operating as motor vehicles except

in three general circumstances in which “an accident is

nonetheless directly related to its character as a motor

vehicle.” Id. at 640-641. The Court explained:

The policies underlying § 3105(1) and § 3106 thus are

complementary

rather

than conﬂicting. Nothing of the

policy behind the parking exclusion—to exclude injuries

not resulting from the involvement of a vehicle as a motor

vehicle—conﬂicts with the policy of compensating injuries

incurred in the course of maintaining (repairing) a motor

vehicle. The terms of the parking exclusion should be

construed to effectuate the policy they embody and to

avoid conﬂict with another provision whose effect was

intended to be complementary.

[The plaintiff’s] injury while replacing his shock ab-

sorbers clearly involved the maintenance of his vehicle as

a motor vehicle. Compensation is thus required by the

no-fault act without regard to whether his vehicle might

be considered “parked” at the time of injury. [Id. at 641.]

Plaintiff accurately points out that the plaintiff in

razier was not engaged in any kind of maintenance,

but rather was simply closing the door of the vehicle

2018] W

OODRING V

HOENIX

117

PINION OF THE

OURT

after having alighted from the vehicle. F

razier, 490

Mich at 386-387. Likewise, it is apparent from this

Court’s opinion in LeFevers, to which we must refer in

order to fully comprehend our Supreme Court’s order,

that the plaintiff in that case was also not engaging in

maintenance, but rather attempting to open a trailer

liftgate. LeFevers v State Farm Mut Auto Ins Co, unpub-

lished per curiam opinion of the Court ofAppeals, issued

December 13, 2011 (Docket No. 298216), p 2.

Nothing in either Frazier or LeFevers directly un-

dermines the holding in Miller that the parked-vehicle

exception in MCL 500.3106(1) is simply not triggered if

an injury is caused by the maintenance of a vehicle as

a motor vehicle, whether or not the vehicle is in fact

parked. Plaintiff’s claim is not that her Jeep was being

operated as a motor vehicle, but rather maintained as

a motor vehicle. The portion of Miller holding that the

“parked vehicle” exception is not triggered was, there-

fore, not apparently affected.

Defendant argues that Frazier and LeFevers are not

the only cases from our Supreme Court that have the

effect of overruling the relevant holding of Miller.

Defendant relies extensively on our Supreme Court’s

holding that scraping ice off a vehicle’s windshield was

unrelated to, inter alia, maintenance of a motor vehicle

as a motor vehicle. Willer v Titan Ins Co, 480 Mich 1177

(2008). Notably, however, nothing in Willer stated that

scraping ice was or was not maintenance; rather, it

only addressed causation, which would be a function of

MCL 500.3105. Even more notably, it was an appeal

from an order of this Court denying an application for

leave with no factual discussion. Our Supreme Court’s

peremptory orders are, after all, only binding to the

extent they can be comprehended. Because there are

no facts in either our Supreme Court’s order or this

118 325 M

ICH

108 [June

PINION OF THE

OURT

Court’s order from which any hints may be gleaned,

nothing

in that order can be comprehended as contrib-

uting any value whatsoever to an understanding of

what does, or does not, constitute “maintenance.” It did

not mention Miller except in a concurring statement,

and therefore it appears to have no precedential rel-

evance to Miller or any holding relevant in it.

Otherwise, far from overturning it, our Supreme

Court has reiterated that Miller had determined “that

because the injury arose out of ‘maintenance’ of the

vehicle, it was unnecessary to consider whether the

vehicle was parked,” but rather cautioned “that the

Miller holding is limited to the narrow circumstances

of that case.” Winter v Auto Club of Mich, 433 Mich 446,

457; 446 NW2d 132 (1989); see also Putkamer v

Transamerica Ins Corp of America, 454 Mich 626, 632

n 5; 563 NW2d 683 (1997). It is only otherwise that

“[w]here the motor vehicle is parked, the determina-

tion whether the injury is covered by the no-fault

insurer generally is governed by the provisions of

subsection 3106(1) alone.” Putkamer, 454 Mich at 632.

Our Supreme Court further clariﬁed that the no-fault

act was fundamentally intended to restrict payment of

PIP beneﬁts under MCL 500.3105 to injuries related to

the “transportational function” of a motor vehicle, but

the vehicle did not necessarily need to be in motion.

McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 220-

226; 580 NW2d 424 (1998).

Obviously, Miller is no longer binding precedent in

its entirety. However, its essential holding that “main-

tenance” of a parked vehicle will, at least under some

circumstances, avoid triggering MCL 500.3106(1) does

not appear to have been implicitly or explicitly over-

ruled. If anything, it has been reafﬁrmed, subject only

to whatever our Supreme Court meant by “the narrow

2018] W

OODRING V

HOENIX

119

PINION OF THE

OURT

circumstances of that case.” In the absence of any

lariﬁcation of that statement, the most rational

interpretation is to rely on the policy discussion in

Miller itself, ﬁltered through the policy discussion in

McKenzie. The gravamen of Miller is that because

most forms of vehicular maintenance literally cannot

be performed unless a vehicle is parked, the word

“maintenance” in MCL 500.3105(1) would be ren-

dered nugatory by MCL 500.3106 unless that main-

tenance avoided triggering MCL 500.3106 altogether.

McKenzie would suggest that any such maintenance

must have some bearing on the “transportational

function” of the vehicle.

Clearly, just as Michigan residents are completely

expected to have some awareness of the practical impli-

cations of snow and ice, any Michigan resident would be

aware that keeping their cars clean keeps them running

longer and without danger. Given the condition of our

roads and the salt used for snow and ice on our roads,

cleaning a car is essential to be able to see while driving.

Nothing in McKenzie, Winter, Putkamer, Willer, Frazier,

or LeFevers is inconsistent with this Court’s holding in

Musall that washing a car does indeed constitute the

kind of maintenance that will avoid the operation of

MCL 500.3106(1). Consequently, those cases do not

implicitly or explicitly overrule Musall. It is essential to

see out the windows and windshield while driving to

avoid risking injury or death to the driver or others.

We additionally note that the word “parked” is not

deﬁned in the no-fault act, and in fact only occurs in

two sections out of the entirety of Chapter 500, those

being MCL 500.3106 and MCL 500.3123. This neces-

sarily raises the question of whether plaintiff’s vehicle

was even parked at all. While it may seem intuitively

obvious, almost every intuitively obvious categoriza-

120 325 M

ICH

108 [June

PINION OF THE

OURT

tion scheme inevitably breaks down into “I know it

when

I see it,” which is precisely the opposite of a

deﬁnition and thus an open invitation to capricious-

ness and unpredictability.

In particular, it should be clear that a vehicle is not

necessarily parked just because it is stopped, halted,

standing, or otherwise not presently in motion. Indeed,

our Supreme Court has indicated that a lack of vehicu-

lar movement merely triggers a requirement to con-

sider whether the vehicle is therefore parked. Winter,

433 Mich at 455. In that case, a tow truck “positioned

perpendicular to the street with the front wheels

against the curb” with the hand brake set was deemed

parked while it was being used to assist the plaintiff in

lifting and leveling concrete slabs. Id. at 448-449, 456.

In contrast, it would seem completely unreasonable to

conclude that a vehicle that is unambiguously still

within the ﬂow of trafﬁc but temporarily motionless

should be considered a parked vehicle under the no-

fault act. Indeed, this Court has explicitly noted that a

vehicle stopped at a trafﬁc light does not constitute a

“parked vehicle.” Bachman v Progressive Cas Ins Co,

135 Mich App 641, 642-643; 354 NW2d 292 (1984).

This Court subsequently applied the deﬁnition of

“parking” found in MCL 257.38 of the Michigan Vehicle

Code, which deﬁnes it as “ ‘standing a vehicle, whether

occupied or not, upon a highway, when not loading or

unloading except when making necessary repairs.’ ”

United Southern Assurance Co v Aetna Life & Cas Ins

Co, 189 Mich App 485, 489; 474 NW2d 131 (1991). This

Court further noted that this deﬁnition was similar to

the dictionary deﬁnition, and it opined that parking,

standing, and stopping at the edge of a highway were

synonymous. Id. This latter deﬁnition is, however,

extremely troublesome because it obviously has no

2018] W

OODRING V

HOENIX

121

PINION OF THE

OURT

application anywhere other than on an expressway; it

would

also seem to hold that a vehicle is by deﬁnition

not parked “when making necessary repairs” even if it

is not moving. It would also seem to indicate that a

vehicle is parked while motionless at a trafﬁc light. It

is not workable to apply the deﬁnition in MCL 257.38

to vehicles anywhere other than on a highway, given

that, by its express terms, it applies exclusively to

vehicles “upon a highway.” See Kudek v Detroit Auto

Inter-Ins Exch, 100 Mich App 635, 640-641; 300 NW2d

350 (1980), rev’d on other grounds 414 Mich 956

(1982). It is likewise unworkable simply to treat any

vehicle not presently in motion as parked.

The most coherent and succinct standard for deter-

mining what constitutes a parked vehicle is whether

the vehicle was “in use as a motor vehicle” or more “like

‘other stationary roadside objects that can be involved

in vehicle accidents’.” Heard v State Farm Mut Auto

Ins Co, 414 Mich 139, 145; 324 NW2d 1 (1982) (citation

omitted). Ironically, in Heard, neither our Supreme

Court nor this Court analyzed why the car, which was

at a gasoline station where the plaintiff was pumping

gasoline into it, was considered parked in that case;

rather, both Courts appear to have presumed so and

instead discussed whether it was “involved” in the

accident. Insofar as we can determine, the plaintiff in

Heard asserted that the vehicle had been parked, and

the issue was never disputed. Similarly, in Musall, this

Court treated the vehicle as parked but never analyzed

the issue.

A somewhat less clear case is MacDonald v Mich

Mut Ins Co, 155 Mich App 650; 400 NW2d 305 (1986).

Superﬁcially, this Court apparently held that if the

wheels were not moving, the vehicle was parked. Id. at

655-656. However, a more careful reading of the case

122 325 M

ICH

108 [June

PINION OF THE

OURT

and its context reveals that a trailer was in the process

having its wheels and axle adjusted, and it was

fundamental to that particular operation that the

wheels be stationary while the trailer box was moved.

Id. at 653. The plaintiff contended on appeal that the

vehicle was not really parked because some slight

shifting back and forth of the trailer box occurred; it

was in that context that this Court focused on the

movement of the wheels. Id. at 654-656. It therefore

appears that the vehicle in question was in no state

whatsoever to be operated and, consequently, was

transportationally indistinguishable from any other

piece of heavy equipment undergoing maintenance.

This Court never addressed the maintenance exception

to the parked-vehicle exclusion pursuant to Miller,

however, because the plaintiff was denied beneﬁts

under MCL 500.3106(2), not MCL 500.3106(1). Id. at

654.

Notably, of the cases that have expressly analyzed

what constitutes “parked,” the tow truck in Winter was

being used as a mobile tool, not a vehicle. In Davis v

Auto Owners Ins Co, 116 Mich App 402, 406-408; 323

NW2d 418 (1982), another tow truck was deemed

parked while it was in the process of winching a

stranded car out of a ditch—again, clearly being used

as a tool. The car at the trafﬁc light in Bachman,

however, was clearly still being used as a car, and in

contrast, the trailer in MacDonald was immobilized.

The only obvious deﬁnition that can be assembled from

these examples is that the vehicle is both motionless

and either being used as something unrelated to being

a vehicle or incapable of being readily put back into

motion. Plaintiff’s vehicle was indeed motionless here,

but it was also still running and clearly not intended to

be left alone or to be unoccupied for very long. In the

event the maintenance exception were to be deemed

2018] W

OODRING V

HOENIX

123

PINION OF THE

OURT

inapplicable, we would hold that whether the vehicle

was

parked can only be resolved by posing the question

to the trier of fact, because that is the only proper way

to resolve a factual question where no bright-line rule

can be easily established and where human intuition

must be relied upon. Thus, even if summary disposi-

tion in plaintiff’s favor were to be found improper, the

trial court’s refusal to grant summary disposition in

defendant’s favor must still be afﬁrmed.

Thus, we now turn to our Supreme Court’s order to

consider “whether the causal connection between the

plaintiff’s injuries and the maintenance of a motor

vehicle as a motor vehicle is more than incidental,

fortuitous, or ‘but for.’ ” Woodring, 501 Mich at 883. As

discussed, Willer is utterly barren of any worth to this

analysis. It makes a speciﬁc reference to “on this

record”; however, no record exists that may be readily

found. It sets forth essentially no facts, and it is a

reversal of an order of this Court denying leave to

appeal, which also set forth no facts. Again, our

Supreme Court’s peremptory orders are only binding

to the extent they are comprehensible, and Willer

simply is not. All we know is that on the facts of that

case, whatever they were, the plaintiff in Willer failed to

persuade our Supreme Court that there was a more-

than-but-for causal connection between her injuries

and the scraping of her windshield.

Defendant additionally cites several cases in which

the plaintiffs in those cases allegedly slipped and fell

“in the general vicinity of a vehicle” and the plaintiff’s

injuries were deemed to lack the requisite causal

connection. Such a conclusion is obvious and irrel-

evant. It would naturally follow that merely being near

to a vehicle will not spontaneously generate a causal

connection to that vehicle. In contrast, plaintiff was

124 325 M

ICH

108 [June

PINION OF THE

OURT

actively engaged in performing essential maintenance

the vehicle pertinent to its use as a motor vehicle. It

may have been routine maintenance and not necessar-

ily of immediate urgency to permit it to move at all, but

essential maintenance nonetheless. Because Musall

remains controlling precedent and has already deter-

mined that such a causal nexus exists on highly

similar facts, we would follow that conclusion even if

we did not agree with it.

We respectfully disagree with our dissenting col-

league’s estimation of Williams v Pioneer State Mut Ins

Co, 497 Mich 875 (2014). As the Court held in that

matter, the tree branch that injured the plaintiff as she

was getting into her car was not causally linked to any

act or omission of the plaintiff. Although the plaintiff

had just removed several other branches from the hood

of her car, the branch that injured her was not one of

the branches plaintiff removed from the car, it was not

struck by or otherwise caused to fall by plaintiff or one

of the branches plaintiff removed from the car, it was

not struck by the car, and in general plaintiff did not

put into motion any chain of events that inﬂuenced the

branch’s falling. Williams v Pioneer State Mut Ins Co,

unpublished per curiam opinion of the Court of Ap-

peals, issued February 6, 2014 (Docket No. 311008),

p 2. In contrast, our dissenting colleague appears to

dismiss the strong likelihood that the slippery patch on

the ﬂoor in the present case was directly caused by the

physical acts of maintenance performed by plaintiff,

and even if it was not, those physical acts of mainte-

nance directly impaired plaintiff’s ability to detect or

avoid it, or to prevent herself from actually falling or

getting hurt even if avoidance of the slippery patch was

impossible. It stands to reason that the tree branch

that struck the plaintiff in Williams was outside any

chain of causation involving the plaintiff or her car.

2018] W

OODRING V

HOENIX

125

PINION OF THE

OURT

Plaintiff’s maintenance of her car here did not simply

happen

to be performed in the wrong place at the

wrong time, but in fact had a direct causal inﬂuence on

her fall and resulting injury.

In summary, we conclude that the maintenance

exception in Miller is still good law, that it applies to

the facts in this case, that there would necessarily be a

genuine question of material fact for the jury even if

the maintenance exception did not apply here, and that

there is a sufﬁcient causal nexus between the plain-

tiff’s injuries and the maintenance of a motor vehicle as

a motor vehicle. We therefore afﬁrm.

ARKEY

, J., concurred with R

ONAYNE

RAUSE

, P.J.

IORDAN

, J. (dissenting). I respectfully dissent.

In this action under the no-fault act, MCL 500.3101

et seq., defendant appeals by leave granted

the trial

court’s

order

denying defendant’s motion for summary

disposition and granting summary disposition in favor

of plaintiff. I would reverse the trial court’s order and

remand with instructions to enter summary disposi-

tion in favor of defendant.

Plaintiff fell and was injured while outside her

insured vehicle at a car wash. She sought no-fault

beneﬁts from defendant, which were denied. Plaintiff

sued, claiming that defendant wrongfully refused to

pay the claim. Defendant contended that plaintiff’s

claim was barred by the parked-vehicle exception to

the no-fault act, MCL 500.3106(1). Plaintiff responded

e originally denied defendant’s application for leave to appeal.

Woodring v Phoenix Ins Co, unpublished order of the Court of Appeals,

entered March 3, 2015 (Docket No. 324128). The Michigan Supreme

Court later remanded this case to us to consider as on leave granted.

Woodring v Phoenix Ins Co, 501 Mich 883 (2017).

126 325

ICH

108 [June

ISSENTING

PINION BY

IORDAN

, J.

that she was injured while performing maintenance to

her

vehicle, MCL 500.3105(1), so her claim was not

affected by the parking exception. The trial court

ultimately agreed with plaintiff and granted summary

disposition in her favor. This appeal followed.

“This Court . . . reviews de novo decisions on mo-

tions for summary disposition brought under MCR

2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5;

878 NW2d 784 (2016). A motion for summary disposi-

tion pursuant to MCR 2.116(C)(10) “tests the factual

sufﬁciency of the complaint . . . .” Joseph v Auto Club

Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012).

“Under personal protection insurance an insurer is

liable to pay beneﬁts for accidental bodily injury aris-

ing out of the ownership, operation, maintenance or

use of a motor vehicle as a motor vehicle . . . .” MCL

500.3105(1). Our Supreme Court has held that the

plain language of MCL 500.3105(1) “shows that the

Legislature . . . chose to provide coverage only where

the causal connection between the injury and the use of

a motor vehicle as a motor vehicle is more than

incidental, fortuitous, or ‘but for.’ ” Thornton v Allstate

Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986). See

also Putkamer v Transamerica Ins Co of America, 454

Mich 626, 634-635; 563 NW2d 683 (1997).

Disregarding the convoluted litany of caselaw dis-

cussed by the parties and the majority regarding

whether a person washing their car is conducting

maintenance and thus exempted from the parked-

vehicle exception, summary disposition plainly should

have been granted in favor of defendant because there

was no question of fact that the causal connection

between plaintiff’s injuries and her automobile was

merely incidental. See Thornton, 425 Mich at 659.

Plaintiff slipped and fell because of a condition on the

2018] W

OODRING V

HOENIX

127

ISSENTING

PINION BY

IORDAN

, J.

land—the ﬂoor of the car wash was slippery or icy. The

fact

that she may have been washing her vehicle at the

time that she may have stumbled upon the allegedly

dangerous condition on the land was, without ques-

tion, “incidental, fortuitous, or ‘but for.’ ” Id. Thus,

pursuant to the Court’s holding in Thornton, 425 Mich

at 659, summary disposition was required in favor of

defendant.

I would reverse and remand for entry of an order

granting summary disposition in favor of defendant.

Our

Supreme Court decided similarly on the same grounds in

Williams v Pioneer State Mut Ins Co, 497 Mich 875 (2014), wherein the

Court reversed a decision of this Court involving an insured sustaining

injury caused by a falling tree branch when entering her car. Although

plaintiff in this case makes no argument that she was entering her car,

the panel in Williams v Pioneer State Mut Ins Co, unpublished per

curiam opinion of the Court of Appeals, issued February 6, 2014 (Docket

No. 311008), p 5 n 5, alternatively relied on the fact that the insured was

conducting maintenance on her car immediately preceding the injury

when she was removing other branches from her car. Despite that

reasoning, the Michigan Supreme Court still reversed because the

causal connection between the insured’s injuries and vehicle was too

tenuous. Williams, 497 Mich at 875-876. I would hold similarly in this

case.

128 325

ICH

108

ISSENTING

PINION BY

IORDAN

, J.

GOODWIN v NORTHWEST MICHIGAN FAIR ASSOCIATION

Docket

Nos. 333963 and 335292. Submitted June 12, 2018, at Grand

Rapids. Decided July 3, 2018, at 9:00 a.m.

Rebecca R. Goodwin (plaintiff), as personal representative of the

estate of her six-year-old son Ezekiel D. Goodwin, ﬁled a

wrongful-death action in the Grand Traverse Circuit Court

against Northwest Michigan Fair Association (defendant); Tad M.

Thompson; TMT, Inc.; Meaghan E. Thompson; and Subway Store,

seeking to recover damages on behalf of the estate. In August

2012, Ezekiel camped at defendant’s fairground with his siblings

and with his father, Jeff Goodwin, while attending a fair and

participating in 4-H activities and exhibitions. During the fair,

people used a private service drive to walk or ride bicycles

between the campground area and the animal barns; motor

vehicles with a permit also used the service drive. On August 8,

2012, Jeff allowed Ezekiel to ride his bicycle by himself from the

campground to one of the barns; Jeff intended to meet Ezekiel at

the barn after getting ready. Tad, who did not see Ezekiel sitting

on his bicycle in the service drive given that Ezekiel was in his

blind spot, ran over and killed Ezekiel when he backed his truck

down the road. Plaintiff asserted that the service drive was

unreasonably dangerous because defendant allowed motor ve-

hicle trafﬁc on a drive used by pedestrians and bicycle riders.

Defendant maintained that Jeff was negligent in his supervision

of Ezekiel and moved to name Jeff as a nonparty at fault. The

court, Philip E. Rodgers, J., denied the motion, reasoning that the

jury could not consider Jeff’s potential fault because Jeff was

entitled to parental immunity. The trial court later instructed the

jury that it could not consider whether Ezekiel’s parents were

negligent and that 100% of the fault had to be apportioned

between defendant and Tad. The jury returned a verdict in favor

of plaintiff on a theory of premises liability, and it apportioned

fault equally between defendant and Tad. The trial court subse-

quently awarded plaintiff taxable costs under MCR 2.625 and

prejudgment interest under MCL 600.6013(8). Defendant ap-

pealed the award of costs and prejudgment interest in Docket No.

333963; in Docket No. 335292, defendant appealed the judgment,

and plaintiff cross-appealed.

OODWIN V

ORTHWEST

AIR

’

129

The Court of Appeals held

1. MCL 600.2956 provides that in most tort actions seeking

damages for personal injury, property damage, or wrongful death,

the liability of each defendant for damages is several only, not

joint; that is, each tortfeasor must not pay damages in an amount

greater than his or her allocated percentage of fault. Under MCL

600.6304(1), the fact-ﬁnder must determine (1) the total amount

of each plaintiff’s damages and (2) the total fault of all persons

who contributed to the death or injury, regardless of whether the

person was or could have been named as a party to the action.

Consistently, MCL 600.2957 provides that the fact-ﬁnder must

consider all persons who contributed to the injury, including

nonparties, when allocating fault. Because the allocation of fault

is not dependent on a plaintiff’s ability to recover against a

nonparty at fault, a fact-ﬁnder must consider a nonparty’s fault

for a breach of duty, regardless of whether immunity would

preclude the plaintiff from naming the immune person as a party.

Assessments of percentages of fault for nonparties are used only

to accurately determine the fault of named parties, and if fault is

assessed against a nonparty, a ﬁnding of fault does not subject the

nonparty to liability in that action.

2. A child may maintain a lawsuit against his or her parents

for an injury resulting from a parent’s negligence except when the

alleged negligent act involved an exercise of reasonable parental

authority over the child—including negligent parental

supervision—or an exercise of reasonable parental discretion

with respect to the provision of food, clothing, housing, medical

and dental services, and other care. Before fault may be assessed

under the comparative-fault statutes, there must be proof that

the person owed a legal duty to the injured party. Parents have a

duty to supervise their own children, which includes an obligation

to see that the child’s behavior does not involve danger to the

child or to other persons. In general, unless the parent entrusts

the child to another person who agrees to assume the duty to

supervise the child, the parent’s duty to supervise extends to

exercising reasonable care for the safety of the child while on

another person’s property, including an obligation to protect and

guard the child against dangers that are open and obvious to the

parent. Whether a duty exists is a separate and distinct inquiry

from whether an individual is immune from liability for a breach

of that duty; in other words, an immunity does not abrogate a

duty. Accordingly, a parent may be named as a nonparty at fault

under MCL 600.2957(1) regardless of whether the parent is

immune from liability.

130 325

ICH

129 [July

3. In this case, while the trial court correctly noted that

Ezekiel

could not recover against his father for negligent super-

vision (in other words, parental immunity applied), that inability

did not preclude the fact-ﬁnder from assessing Jeff’s fault for

purposes of accurately determining defendant’s liability and

ensuring that defendant only paid its fair share of the damages.

The trial court erred by focusing on whether plaintiff could

recover against Jeff because under the comparative-fault stat-

utes, the allocation of fault was not dependent on whether

plaintiff could recover damages from Jeff, a nonparty. For that

reason, the trial court erred by denying defendant’s request to

name Jeff as a nonparty. Reversal was required because there

was a question of fact whether Jeff breached his duty to supervise

Ezekiel and to protect him from open and obvious dangers on the

property—that is, the intermittent motor vehicle trafﬁc on the

service drive—and whether the breach was a proximate cause of

Ezekiel’s death. Further, because questions of fact existed, the

trial court correctly denied plaintiff’s motion for a directed verdict

regarding Jeff’s fault.

4. A landowner owes a duty to use reasonable care to protect

invitees from an unreasonable risk of harm posed by dangerous

conditions on the owner’s land. Liability, however, does not arise

from open and obvious dangers. With regard to adult invitees,

whether a danger is open and obvious is judged by an objective

standard, considering whether it is reasonable to expect that an

average person with ordinary intelligence would have discovered

the danger upon casual inspection. Children are not held to the

same standard as an average adult of ordinary intelligence

because they are unable to understand or appreciate dangerous

conditions or to protect themselves against those conditions.

Instead, children over the age of seven can only be expected to act

with that degree of care which a reasonably careful minor of the

age, mental capacity, and experience of other similarly situated

minors would exercise under the circumstances. Adults are ex-

pected to exercise greater vigilance around children, and land-

owners owe a heightened duty of care to children on their

premises, including children who are known trespassers or licens-

ees. Accordingly, a child invitee cannot be held to the same open

and obvious danger standard as adult invitees. In that regard, it

can be expected that children over the age of seven will conform

to a reasonable-child standard in discovering, appreciating, and

responding to dangers. In contrast, children under the age of

seven are presumptively incapable of committing negligent or

criminal acts or intentional torts because they are without

discretion, they are unconscious of the nature of their acts, and

2018] G

OODWIN V

ORTHWEST

AIR

’

131

they have no appreciation of the attending danger to themselves

others. Accordingly, the open and obvious danger doctrine does

not apply to children under the age of seven because children

under that age cannot be expected to conform their conduct to a

reasonable-child standard. For that reason, a landowner is obli-

gated to exercise reasonable care to protect a child from open and

obvious dangers on the property, even if those dangers would be

open and obvious to adults and older children. Ezekiel was under

the age of seven when he was killed in the accident. For that

reason, the trial court did not err by denying defendant’s request

to instruct the jury on the open and obvious danger doctrine in

relation to Ezekiel.

5. The violation of administrative rules and regulations is

evidence of negligence that may be submitted to the jury. In this

case, the trial court abused its discretion by instructing the jury

under M Civ JI 12.05 with regard to the alleged violation of Mich

Admin Code R 326.1556(8) but not by instructing the jury with

regard to the alleged violation of Mich Admin Code R 326.1558(1).

6. The award of costs under MCR 2.625 and the award of

prejudgment interest under MCL 600.6013 were vacated because

the underlying judgment was vacated.

Judgment vacated; case remanded for a new trial.

1. N

EGLIGENCE —

OMPARATIVE

-F

AULT

TATUTES —

EVERAL

IABILITY —

LLO-

CATION OF

IABILITY TO

ONPARTIES AT

AULT

MCL 600.2956 provides that in most tort actions seeking damages

for personal injury, property damage, or wrongful death, the

liability of each defendant for damages is several only, not joint;

that is, each tortfeasor must not pay damages in an amount

greater than his or her allocated percentage of fault; under MCL

600.2957, the fact-ﬁnder must consider all persons who contrib-

uted to the injury, including nonparties, when allocating fault;

because the allocation of fault is not dependent on a plaintiff’s

ability to recover against a nonparty at fault, a fact-ﬁnder must

consider a nonparty’s fault for a breach of duty, regardless of

whether immunity would preclude the plaintiff from naming the

immune person as a party.

2. N

EGLIGENCE —

OMPARATIVE

-F

AULT

TATUTES —

EVERAL

IABILITY —

ON-

PARTIES AT

AULT —

ARENTAL

MMUNITY

A parent may be named as a nonparty at fault under MCL

600.2957(1) regardless of whether the parent is immune from

liability.

132 325

ICH

129 [July

3. N

EGLIGENCE —

REMISES

IABILITY —

PEN AND

BVIOUS

ANGERS —

HIL-

DREN

NDER THE

GE OF

EVEN

A landowner owes a duty to use reasonable care to protect invitees

from an unreasonable risk of harm posed by dangerous conditions

on the owner’s land; while landowners are not liable for injuries

that occur to adult invitees from open and obvious dangers, the

open and obvious danger doctrine does not apply to children

under the age of seven because children under that age cannot be

expected to conform their conduct to a reasonable-child standard.

Mark Granzotto, PC (

by Mark Granzotto) and

Parsons Law Firm PLC (by Grant Parsons) for the

Estate of Ezekiel D. Goodwin.

Plunkett Cooney (by Robert G. Kamenec and Karen

E. Beach) for Northwest Michigan Fair Association.

Before: M

URRAY

, P.J., and H

OEKSTRA

and G

ADOLA

, JJ.

URIAM

. These consolidated appeals involve a

wrongful-death action ﬁled by Rebecca Goodwin as

personal representative of Ezekiel Goodwin’s estate

(plaintiff). Following a jury trial, the trial court entered

a judgment against defendant Northwest Michigan

Fair Association

in the amount of $1,000,000. Later,

the

trial

court also entered an order awarding plaintiff

taxable costs and prejudgment interest. Defendant

now appeals as of right. For the reasons explained in

this opinion, we conclude that the trial court erred by

denying defendant’s request to name Jeff Goodwin as a

nonparty at fault and that on the facts of this case,

Plaintiff

also sued Tad Thompson, the driver of the vehicle that

killed Ezekiel, as well as Thompson’s wife and Thompson’s employer,

TMT, Inc., which operates a Subway restaurant franchise. However,

plaintiff reached a settlement with these defendants, and by stipulation

of the parties these defendants were dismissed with prejudice. These

defendants are not parties to this appeal. As used in this opinion, the

term “defendant” refers solely to defendant Northwest Michigan Fair

Association.

2018] G

OODWIN V

ORTHWEST

AIR

’

133

failure to vacate the jury verdict would be inconsistent

with

substantial justice. Accordingly, we vacate the

judgment in plaintiff’s favor, we vacate the award of

taxable costs and prejudgment interest, and we re-

mand for a new trial.

I. FACTS

On August 8, 2012, while riding his bike, six-year-old

zekiel Goodwin was hit by a truck driven by Tad

Thompson. The accident occurred on a service drive on

defendant’s 80-acre fairground property during “fair

week,” an event featuring a carnival and amusement

rides as well as 4-H club animal exhibitions and activi-

ties. Children and young adults ranging in age from 5 to

19 years old participated in the 4-H events, and many of

the children and their families camped on-site during

the week.

Between the campground area and the

animal

barns there was a private service drive, and it

was on this service drive that Ezekiel was struck.

During fair week, pedestrians and bicycle riders,

including children, used the service drive to travel

from the campground area to the barns. Fair organiz-

ers were aware that pedestrians and bike riders used

the service drive. However, unlike other roads on the

property, the service drive was not closed to motor

vehicle trafﬁc during fair week. Motor vehicle use of

the service drive was restricted insofar as only people

with passes could drive onto the fairgrounds, and the

speed limit on the fairgrounds was 5

miles per hour.

Those with passes included 4-H families, the members

of the fair board, and service vehicles related to the

fair, including vehicles hauling manure, emptying

he fair rules required children to have “one parent per family on

site.”

134 325 M

ICH

129 [July

dumpsters, and tending outhouse facilities. Emer-

gency

vehicles could also use the drive if necessary. In

other words, the service drive saw bicycle and pedes-

trian trafﬁc as well as “intermittent” motor vehicle

trafﬁc during the fair.

Ezekiel and his siblings were participating in 4-H

events, and Ezekiel and members of his family—his

father Jeff Goodwin, his sister, and his brother—were

camping at the fairgrounds. On the morning of Au-

gust 8, 2012, Jeff allowed Ezekiel to ride his bike,

unaccompanied, from the family’s campsite to the

barns where Ezekiel planned to tend to his pony. Jeff

was going to the bathhouse, and after shaving and

brushing his teeth, he intended to meet Ezekiel at the

barns. As Ezekiel was leaving, Jeff told Ezekiel that

he would meet him at the door to the pony stall.

Thompson had a pass to drive on the fairgrounds

because he had a daughter participating in 4-H events.

On the morning of August 8, 2012, Thompson drove his

daughter to the fairgrounds to feed her cow. While

driving on the service drive toward the animal barns,

Thompson saw Ezekiel riding his bike on the road.

After passing Ezekiel, Thompson’s daughter reminded

him that he forgot to stop at the feed lot. Thompson

checked his mirrors and then began to back up. Unbe-

knownst to Thompson, Ezekiel was behind his truck in

a blind spot, where someone of Ezekiel’s height would

not be visible on a bike. According to an eyewitness to

the accident, Ezekiel sat on his bike and appeared to

just watch the truck slowly back up into him. Tragi-

cally, Ezekiel was pinned beneath the truck, and he

later died of his injuries.

Ezekiel

was among the youngest class of 4-H members, known as

“clover buds.” As a clover bud, Ezekiel could not enter the pony stall

unless accompanied by an adult.

2018] G

OODWIN V

ORTHWEST

AIR

’

135

Following Ezekiel’s death, Ezekiel’s mother, Rebecca

Goodwin,

as the personal representative of Ezekiel’s

estate, ﬁled the current wrongful-death lawsuit

against defendant. Plaintiff’s basic theory of the case

was that the service drive was unreasonably danger-

ous because defendant allowed motor vehicle trafﬁc on

a path used by pedestrians and bike riders. According

to plaintiff, defendant should have banned all motor

vehicles, used “spotters” for vehicles, or erected barri-

ers to create a separate bike path.

Notably, defendant maintained that Jeff was negli-

gent in his supervision of Ezekiel, and defendant at-

tempted to name Jeff as a nonparty at fault.

The trial

court

ultimately denied defendant’s request, reasoning

that the jury could not consider Jeff’s potential fault

because Jeff was entitled to parental immunity. Con-

sistently with this ruling, the trial court instructed the

jury that it could not consider whether Ezekiel’s par-

ents were negligent, and the jury was told to apportion

100% of the fault between defendant and Thompson.

Following trial, the jury returned a verdict in favor

of plaintiff on a “premises liability/nuisance” theory.

Initially

, Jeff was a named plaintiff in the case. As an individual

plaintiff, he alleged a claim of negligent inﬂiction of emotional distress

(NIED). He later dropped his NIED claim after admitting that he did

not see the accident and that he did not see Ezekiel removed from under

the vehicle. Defendant ﬁled its notice of nonparty fault regarding Jeff as

soon as Jeff dropped his claim and became a nonparty. See Salter v

Patton, 261 Mich App 559, 567; 682 NW2d 537 (2004); MCR

2.112(K)(3)(c).

Plaintiff also brought a claim of negligence, but the jury rejected this

claim. With regard to the “premises liability/nuisance” count, the jury

was instructed on a premises-liability theory consistent with M Civ JI

19.03. The instruction as it related to “nuisance” was likewise premised

on the assertion that there was a dangerous condition on the land and

that defendant acted negligently by failing to protect Ezekiel from this

condition. Despite the added “nuisance” label, the claim was in sub-

136 325

ICH

129 [July

With regard to Thompson, the jury concluded that he

had

been negligent. The jury then apportioned 50% of

the fault to defendant and 50% of the fault to Thomp-

son. The jury awarded a total of $2,000,000 in dam-

ages. Based on the jury’s verdict, the trial court en-

tered an order against defendant for 50% of the

damages, i.e., $1,000,000. After trial, the trial court

also awarded plaintiff taxable costs under MCR 2.625

and prejudgment interest under MCL 600.6013(8).

Defendant now appeals as of right. Speciﬁcally, in

Docket No. 335292, defendant challenges the jury

verdict and the judgment in plaintiff’s favor. Plaintiff

has ﬁled a cross-appeal in Docket No. 335292. In

Docket No. 333963, defendant challenges the trial

court’s award of costs and prejudgment interest.

II. NONPARTY AT FAULT

On appeal, defendant ﬁrst argues that a new trial

should

granted because the trial court refused to

allow the jury to consider Jeff as a nonparty at fault.

Although Jeff is entitled to parental immunity from a

lawsuit by Ezekiel or Ezekiel’s estate, defendant main-

tains that this grant of immunity does not eliminate

Jeff’s parental duty to supervise Ezekiel, and because

of this duty, defendant argues that Jeff may be named

as a nonparty at fault for purposes of determining

defendant’s “fair share” of liability. Defendant also

argues that there is substantial evidence that Jeff was

negligent in his supervision of Ezekiel and that this

negligence was a proximate cause of Ezekiel’s death.

stance a premises-liability claim—namely, that Ezekiel was injured

because

of an unreasonably dangerous condition on defendant’s land.

See Buhalis v Trinity Continuing Care Servs, 296 Mich App 685,

692-693; 822 NW2d 254 (2012).

2018] G

OODWIN V

ORTHWEST

AIR

’

137

According to defendant, a new trial is required to allow

the

jury to consider whether Jeff was negligent and to

apportion fault to Jeff on the basis of his negligence.

We agree.

A. STANDARDS OF REVIEW

“Statutory construction is a question of law subject

review de novo.” Vandonkelaar v Kid’s Kourt, LLC,

290 Mich App 187, 196; 800 NW2d 760 (2010). Like-

wise, whether a duty exists is a question of law, which

is reviewed de novo. Hill v Sears, Roebuck & Co, 492

Mich 651, 659; 822 NW2d 190 (2012). If the trial court

erred by refusing to allow the jury to consider Jeff’s

alleged negligence when apportioning fault, reversal is

not required unless failure to vacate the jury verdict

would be inconsistent with substantial justice. MCR

2.613(A); Pontiac Sch Dist v Miller, Canﬁeld, Paddock

& Stone, 221 Mich App 602, 630; 563 NW2d 693 (1997).

B. ANALYSIS

Traditionally, Michigan followed a joint and several

liability

approach

in tort cases involving multiple tort-

feasors. Kaiser v Allen, 480 Mich 31, 37; 746 NW2d 92

(2008). Under this approach, “the injured party could

either sue all tortfeasors jointly or he could sue any

individual tortfeasor severally, and each individual

tortfeasor was liable for the entire judgment, although

the injured party was entitled to full compensation

only once.” Gerling Konzern Allgemeine Versicherungs

AG v Lawson, 472 Mich 44, 49; 693 NW2d 149 (2005).

A defendant’s liability for the entire judgment existed

even when one of the tortfeasors could not be held

civilly responsible because of immunity. Bell v Ren-

Pharm, Inc, 269 Mich App 464, 470; 713 NW2d 285

(2006). “In such a situation, a [defendant] who is not

138 325 M

ICH

129 [July

immune and who is subject to suit is jointly and

severally

liable for damages arising out of the acts of a

person not named as a party because of some immunity

protection.” Id.

However, in 1995, the Legislature enacted tort-

reform legislation that “generally abolished joint and

several liability and replaced it with fair share liability

where each tortfeasor only pays the portion of the total

damages award that reﬂects that tortfeasor’s percent-

age of fault.” Id. at 467 (quotation marks and citation

omitted). These principles of fair-share liability are set

forth in the comparative-fault statutes: MCL 600.2956,

MCL 600.2957, and MCL 600.6304. Vandonkelaar, 290

Mich App at 190 n 1. In particular, under MCL

600.2956, “[e]xcept as provided in section 6304, in an

action based on tort or another legal theory seeking

damages for personal injury, property damage, or

wrongful death, the liability of each defendant for

damages is several only and is not joint.” In relevant

part, MCL 600.2957 provides:

(1) In an action based on tort or another legal theory

seeking

damages

for personal injury, property damage, or

wrongful death, the liability of each person shall be

allocated under this section by the trier of fact and, subject

to section 6304, in direct proportion to the person’s per-

centage of fault. In assessing percentages of fault under

this subsection, the trier of fact shall consider the fault of

each person, regardless of whether the person is, or could

have been, named as a party to the action.

* * *

(3) Sections 2956 to 2960 do not eliminate or diminish

a defense or immunity that currently exists, except as

expressly provided in those sections. Assessments of per-

centages of fault for nonparties are used only to accurately

determine the fault of named parties. If fault is assessed

2018] G

OODWIN V

ORTHWEST

AIR

’

139

against a nonparty, a ﬁnding of fault does not subject the

nonparty

to liability in that action and shall not be

introduced as evidence of liability in another action. [Em-

phasis added.]

MCL 600.6304 states:

(1) In an action based on tort or another legal theory

seeking damages for personal injury, property damage, or

wrongful death involving fault of more than 1 person,

including third-party defendants and nonparties, the

court, unless otherwise agreed by all parties to the action,

shall instruct the jury to answer special interrogatories or,

if there is no jury, shall make ﬁndings indicating both of

the following:

(a) The total amount of each plaintiff’s damages.

(b) The percentage of the total fault of all persons that

contributed to the death or injury, including each plaintiff

and each person released from liability under section

2925d, regardless of whether the person was or could have

been named as a party to the action.

(2) In determining the percentages of fault under

subsection (1)(b), the trier of fact shall consider both the

nature of the conduct of each person at fault and the

extent of the causal relation between the conduct and the

damages claimed.

* * *

(4) Liability in an action to which this section applies is

several only and not joint. Except as otherwise provided in

subsection (6) [in medical malpractice cases], a person

shall not be required to pay damages in an amount greater

than his or her percentage of fault as found under subsec-

tion (1). . . .

* * *

(8) As used in this section, “fault” includes an act, an

omission, conduct, including intentional conduct, a breach

140 325

ICH

129 [July

of warranty, or a breach of a legal duty, or any conduct that

could

give rise to the imposition of strict liability, that is a

proximate cause of damage sustained by a party. [Empha-

sis added.]

As made plain in these provisions, the fact-ﬁnder must

“allocate fault among all responsible torfeasors,” re-

gardless of whether the tortfeasor was or could have

been named as a party to the action, and “each tort-

feasor need not pay damages in an amount greater

than his allocated percentage of fault.” Gerling, 472

Mich at 51. See also Barnett v Hidalgo, 478 Mich 151,

167; 732 NW2d 472 (2007). However, when there is an

assertion that a person’s negligence is a proximate

cause of the damage sustained by a plaintiff, before

fault may be allocated to that person under the

comparative-fault statutes, there must be proof that

the person owed a legal duty to the injured party.

Romain v Frankenmuth Mut Ins Co, 483 Mich 18,

21-22; 762 NW2d 911 (2009). “Without owing a duty to

the injured party, the ‘negligent’ actor could not have

proximately caused the injury and could not be at

‘fault’ for purposes of the comparative fault statutes.”

Id. at 22.

1. PARENTAL DUTY TO SUPERVISE

Before fault may be apportioned to Jeff, there must

threshold determination that Jeff owed Ezekiel a

duty. Id. at 21-22. “Duty is essentially a question of

whether the relationship between the actor and the

injured person gives rise to any legal obligation on the

actor’s part for the beneﬁt of the injured person.”

Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d

759 (1977) (citations omitted). Michigan has long rec-

ognized that “both nature and the law impose” on

parents “the duty of care and watchfulness” with

2018] G

OODWIN V

ORTHWEST

AIR

’

141

regard to their children. R

yan v Towar, 128 Mich 463,

479; 87 NW 644 (1901). See also Lyshak v Detroit, 351

Mich 230, 234; 88 NW2d 596 (1958) (opinion by S

MITH

J.). As persons responsible for their children, parents

cannot allow their children “too young to understand

danger” to wander unattended; rather, parents, as

persons with “special dealings” with children, are ex-

pected to provide care and protection. Hoover v Detroit,

GH & M R Co, 188 Mich 313, 321-323; 154 NW 94

(1915) (quotation marks and citation omitted). Stated

differently, “parents have a duty to supervise their own

children, or determine that their children are of sufﬁ-

cient age and maturity to no longer need such super-

vision.” Stopczynski v Woodcox, 258 Mich App 226, 236;

671 NW2d 119 (2003) (quotation marks and citation

omitted). This duty to supervise one’s child includes an

obligation “to see that the child’s behavior does not

involve danger to the child,” 62 Am Jur 2d, Premises

Liability, § 227, p 600, or to other persons, American

States Ins Co v Albin, 118 Mich App 201, 206; 324

NW2d 574 (1982).

Parents are expected to exercise

“reasonable

care”

to “control” their minor child, Reinert

v Dolezel, 147 Mich App 149, 157; 383 NW2d 148

(1985), and to provide “instructions and education” to

ensure that the child is aware of dangers to his or her

well-being, McCallister v Sun Valley Pools, Inc, 100

Mich App 131, 139; 298 NW2d 687 (1980). See also

Rodebaugh v Grand Trunk W R Co, 4 Mich App 559,

567; 145 NW2d 401 (1966). Generally, unless the

ith regard to other persons, “a parent is under a duty to exercise

reasonable care . . . to control his minor children [so] as to prevent them

from intentionally harming others or from so conducting themselves as

to create an unreasonable risk of bodily harm to them if the parent

knows or has reason to know that he has the ability to control his

children and knows or should know of the necessity and opportunity for

exercising such control.” American States, 118 Mich App at 206.

142 325 M

ICH

129 [July

parent entrusts the child to another person who agrees

assume the duty to supervise the child, the parent’s

duty to supervise extends to exercising reasonable care

for the safety of the child while on the property of

another, including an obligation to protect and guard

the child against dangers that are open and obvious to

the parent.

See 62 Am Jur 2d, Premises Liability,

227 to § 229, pp 600-604; 65A CJS, Negligence, § 537,

pp 369-370; Stopczynski, 258 Mich App at 236. See also

Powers v Harlow, 53 Mich 507, 516; 19 NW 257 (1884)

(concluding that a father could not be found at fault for

a child’s injuries on the property of another because a

person of “ordinary prudence” in the father’s position

would not have suspected the danger to the child).

2. PARENTAL IMMUNITY

Although parents undoubtedly have a duty to super-

ise their children, the law generally does not allow

children to recover damages from their parents for a

breach of this duty. In particular, “[a]t common law, a

minor could not sue his or her parents in tort.” Haddrill

v Damon, 149 Mich App 702, 705; 386 NW2d 643

(1986). The Michigan Supreme Court generally abol-

ished intra-family tort immunity in Plumley v Klein,

388 Mich 1, 8; 199 NW2d 169 (1972), holding that a

child could maintain a lawsuit against his or her

parents for an injury resulting from a parent’s negli-

Although

parents have a duty to supervise their children, a parent’s

presence on the property does not abrogate the duty a premises owner

owes to children. See Woodman v Kera, LLC, 280 Mich App 125, 154; 760

NW2d 641 (2008) (opinion by T

ALBOT

, J.), aff’d 486 Mich 228 (2010); see

also 62 Am Jur 2d, Premises Liability, § 227, p 601. “[L]andowners owe

a duty to exercise reasonable care to protect children from dangerous

conditions on their premises notwithstanding the presence of the

children’s parents.” Wheeler v Central Mich Inns, Inc, 292 Mich App 300,

304; 807 NW2d 909 (2011).

2018] G

OODWIN V

ORTHWEST

AIR

’

143

gence. However, the Plumley Court

retained two excep-

tions to this rule, concluding that parental immunity

remained:

(1) where the alleged negligent act involves an exercise of

reasonable parental authority over the child; and (2)

where the alleged negligent act involves an exercise of

reasonable parental discretion with respect to the provi-

sion of food, clothing, housing, medical and dental ser-

vices, and other care. [Id.]

A claim for negligent parental supervision of a child

alls within the ﬁrst Plumley exception, meaning that

a parent is granted immunity and a child may not sue

a parent for negligent supervision. See Spikes v

Banks, 231 Mich App 341, 349; 586 NW2d 106 (1998);

McCallister, 100 Mich App at 139.

3. APPORTIONING FAULT TO IMMUNE PARENTS

In this case, the trial court acknowledged that Jeff,

Ezekiel’s

parent, generally owed Ezekiel a duty to

supervise him; however, the trial court precluded the

jury from considering Jeff’s alleged negligence, or ap-

portioning fault to Jeff, based on the conclusion that

Jeff’s entitlement to parental immunity barred the

jury’s consideration of his fault. In reaching this con-

clusion, the trial court distinguished between a “duty”

and a “legally cognizable duty that can serve as a basis

for allocation of fault . . . .” The trial court focused its

analysis on whether the comparative-fault statutes

allowed for recovery against parents, noting, for in-

stance, that the statutes did not address “what is the

legal duty, the duty that you can recover against with

respect to a parent and a child in a wrongful death

case.” In light of the trial court’s reasoning, the basic

question before us is whether immunity, speciﬁcally

parental immunity, bars the allocation of fault to an

144 325 M

ICH

129 [July

immune individual under the comparative-fault stat-

utes.

In contrast to the trial court’s conclusions, given

the plain language of the comparative-fault statutes

and the distinction between immunity and duty, we

conclude that a person entitled to parental immunity

may nevertheless be named as a nonparty at fault and

allocated fault for purposes of determining a defen-

dant’s liability under the comparative-fault statutes.

First of all, the trial court erred by focusing on

whether Ezekiel’s estate could obtain a recovery

against Jeff. Quite simply, under MCL 600.2957 and

MCL 600.6304, the allocation of fault is not dependent

on whether a plaintiff can recover damages from the

nonparty. Following the enactment of tort-reform leg-

islation, the ﬁnder of fact must allocate fault among all

responsible persons, “regardless of whether the person

is, or could have been, named as a party to the action.”

MCL 600.2957(1). See also MCL 600.6304(1)(b). A

ﬁnding that a nonparty is at fault “does not subject the

nonparty to liability in that action . . . .” MCL

600.2957(3). Rather, the sole purpose of assessing the

fault of nonparties is to “accurately determine the fault

of named parties,” MCL 600.2957(3), to ensure that

each named defendant-tortfeasor does not “pay dam-

ages in an amount greater than his allocated percent-

age of fault,” Gerling, 472 Mich at 51. In other words,

the nonparty’s “liability” to the plaintiff is not at issue

under the comparative-fault statutes, and it is imma-

terial whether a plaintiff could have named the non-

party as a defendant.

There is, accordingly, no merit to the trial court’s

suggestion that the allocation of fault under MCL

600.2957 and MCL 600.6304 depends on the plaintiff’s

ability to obtain a recovery against the nonparty at

fault; that interpretation has no basis in the statutory

2018] G

OODWIN V

ORTHWEST

AIR

’

145

language, and it wholly eviscerates the requirement

that

a person’s fault should be considered “regardless

of whether the person is, or could have been, named as

a party to the action.” MCL 600.2957(1). See also MCL

600.6304(1)(b). Accordingly, while the trial court cor-

rectly noted that a child cannot recover against a

parent for negligent supervision, this inability to re-

cover damages against a parent in no way precludes an

assessment of a parent’s fault for purposes of accu-

rately determining a defendant’s liability and ensuring

that a defendant only pays his or her fair share.

Rather than focus on whether a child could “recover”

against

a parent, the threshold question the trial court

should have considered under MCL 600.2957 and MCL

600.6304 was whether Jeff owed a duty to his child.

See Romain, 483 Mich at 21-22.

Second, to the extent the trial court attempted to

analyze the duty question, it erred by injecting the

concept of immunity into the threshold duty determi-

nation and using the parental-immunity doctrine to

determine whether there was a duty that could be

considered for purposes of allocating fault. In actuality,

a parent may have a duty—and therefore may be

allocated fault under MCL 600.2957 and MCL

600.6304—regardless of whether the parent is entitled

to immunity. Generally speaking, the question

Before

the enactment of the tort-reform statutes, the fact that

parental immunity prevented a child from suing a parent for negligent

supervision also prevented consideration of a parent’s fault in a lawsuit

brought by the child or the child’s estate. See Byrne v Schneider’s Iron

& Metal, Inc, 190 Mich App 176, 189; 475 NW2d 854 (1991); Wymer v

Holmes, 144 Mich App 192, 196-197; 375 NW2d 384 (1985). The trial

court relied on these cases when ruling that Jeff could not be named as

a nonparty at fault. However, these cases did not involve consideration

of the statutes that now control the allocation of fault in tort suits, and

therefore these cases have no bearing on the propriety of considering

parental fault under MCL 600.2957 and MCL 600.6304.

146 325

ICH

129 [July

whether a duty exists is a separate and distinct inquiry

from

whether an individual is immune from liability

for a breach of that duty. See McGoldrick v Holiday

Amusements, Inc, 242 Mich App 286, 298 n 5; 618

NW2d 98 (2000); Jones v Wilcox, 190 Mich App 564,

569-570; 476 NW2d 473 (1991). For example, this

distinction between duty and immunity was recog-

nized by the Michigan Supreme Court, in the context of

governmental immunity, as follows:

Because immunity necessarily implies that a “wrong” has

occurred,

we are cognizant that some tort claims, against

a governmental agency, will inevitably go unremedied.

Although governmental agencies may be under many

duties, with regard to services they provide to the public,

only those enumerated within the statutorily created

exceptions are legally compensable if breached. [Nawrocki

v Macomb Co Rd Comm, 463 Mich 143, 157; 615 NW2d

702 (2000).]

Similarly, in the context of parental immunity, this

Court

has

acknowledged the distinction between a

grant of immunity and a determination regarding the

existence of a duty, recognizing that “[t]he logical

predicate to the [parental] immunity question . . . is an

assumption that the [parent’s] conduct was negligent,

and hence unreasonable; the issue is whether the

parent should be shielded from liability for that unrea-

sonable conduct.” Thelen v Thelen, 174 Mich App 380,

384 n 1; 435 NW2d 495 (1989). See also Spikes, 231

Mich App at 348-349. Indeed, while traditionally a

parent’s negligence was not a basis to reduce a child’s

recovery in a lawsuit against a third-party tortfeasor, a

ﬁnding of parental negligence—i.e., a determination

that a parent breached a duty—has long been consid-

ered as a basis to reduce or foreclose a parent’s

recovery in a lawsuit by the parent based on the loss

of a child’s services, society, and companionship. See

2018] G

OODWIN V

ORTHWEST

AIR

’

147

Feldman v Detroit United R, 162 Mich 486, 489; 127

687 (1910); Byrne, 190 Mich App at 189.

As these

cases make plain, while a parent may be immune

from a lawsuit by his or her child or the child’s estate,

a parent nevertheless owes a duty to the child. In

other words, contrary to the trial court’s attempt to

deﬁne a parent’s duty based on parental immunity,

“the availability of an immunity has no bearing on

whether a duty exists, but rather focuses on redress-

ability.” Vandonkelaar, 290 Mich App at 212 (M

URRAY

J., dissenting).

analyzing the parental-fault question, the trial court indicated

that as a matter of public policy, juries should not be allowed to pass

judgment on parental decisions. Parental immunity serves a number of

purposes, including “preservation of domestic tranquility and family

unity, protection of family resources, and recognition of the need to avoid

judicial intervention into the core of parenthood and parental disci-

pline . . . .” Hush v Devilbiss Co, 77 Mich App 639, 645; 259 NW2d 170

(1977). However, contrary to the trial court’s reasoning, there have long

been circumstances when a parent’s negligence was considered by the

ﬁnder of fact. See, e.g., Feldman, 162 Mich at 489-490; Byrne, 190 Mich

App at 185-189. More importantly, it would be improper to use policy

concerns as a reason to prevent consideration of a parent’s fault under

MCL 600.2957 and MCL 600.6304. When interpreting statutory lan-

guage, our obligation is to enforce statutes as written, not “to indepen-

dently assess what would be most fair or just or best public policy.” Tull

v WTF, Inc, 268 Mich App 24, 36; 706 NW2d 439 (2005) (quotation marks

and citations omitted). In other words, the question before us is whether

MCL 600.2957 and MCL 600.6304 require consideration of parental

fault, not whether consideration of parental fault is the best public

policy.

The question of whether immune parents may be named as non-

parties at fault was raised in Vandonkelaar, 290 Mich App at 191.

However, the Vandonkelaar majority did not decide the issue. Id. at 195.

In a dissenting opinion, Judge M

URRAY

addressed the question of

parental immunity in the context of the comparative-fault statutes and

concluded that parental immunity does not eliminate parental duty,

meaning that this immunity would not preclude consideration of paren-

tal fault for purposes of allocating responsibility under the comparative-

fault statutes. Id. at 209-216 (M

URRAY

, J., dissenting). We ﬁnd Judge

URRAY

’s decision persuasive, and we adopt its reasoning.

148 325 M

ICH

129 [July

Consistently with this distinction between duty and

immunity

, the comparative-fault statutes make plain

that the availability of immunity does not control the

existence of a duty that can give rise to an allocation of

fault to a nonparty under MCL 600.2957 and MCL

600.6304. That is, while preserving any immunity held

by a nonparty, the statutes allow for consideration of a

nonparty’s fault for a breach of duty, regardless of

whether immunity would preclude a plaintiff from

naming the immune person as a party. See MCL

600.2957(1); MCL 600.6304(3) and (8). More fully,

Judge M

URRAY

’s dissenting opinion in Vandonkelaar

aptly examines this distinction between immunity and

duty as well as the implications of immunity in the

comparative-fault statutes as follows:

Concerning immunity, MCL 600.2957(3) provides:

Sections

2956 to 2960 [MCL 600.2956 to MCL

600.2960] do not eliminate or diminish a defense or

immunity that currently exists, except as expressly

provided in those sections. Assessments of percent-

ages of fault for nonparties are used only to accu-

rately determine the fault of named parties. If fault

is assessed against a nonparty, a ﬁnding of fault does

not subject the nonparty to liability in that action

and shall not be introduced as evidence of liability in

another action. [Emphasis supplied.]

By stating that a fact-ﬁnder’s assessment of the per-

centage of a nonparty’s fault does not eliminate or dimin-

ish an immunity, § 2957(3) necessarily presupposes that

an immunity does not abrogate a duty. Otherwise, there

would be no need to preserve that immunity after fault

has been allocated. Put differently, if an immunity were to

abrogate a duty, an allocation of fault could never come

into play because as Romain held, a nonparty’s duty is

necessary to allocate nonparty fault in the ﬁrst place.

Without an allocation of fault, no predicate would exist to

2018] G

OODWIN V

ORTHWEST

AIR

’

149

eliminate the immunity § 2957(3) otherwise seeks to pre-

serve.

[Vandonkelaar, 290 Mich App at 212-213 (M

URRAY

J., dissenting).]

Overall, given the clear distinction between immunity

and duty, and bearing in mind that fault may be

apportioned when there is a duty regardless of whether

the person may be named as a party, there is simply no

basis for the trial court’s conclusion that parental

immunity prohibits the consideration of a parent’s

fault under MCL 600.2957 and MCL 600.6304.

APPLICATION

Having concluded that a parent can be named as a

nonparty at fault notwithstanding the parental-

immunity doctrine, the question before us becomes

whether Jeff should have been named as a nonparty at

fault in this case and, if so, whether the refusal to allow

the jury to consider Jeff’s alleged negligence warrants

a new trial. In this regard, despite defendant’s request

to include Jeff as a nonparty at fault, the jury was

given a verdict form that required it to assign 100% of

the fault for Ezekiel’s death, and the jury was only

given the option of apportioning that fault between

defendant and Thompson. Indeed, under M Civ JI

13.09,

the trial court afﬁrmatively instructed the jury

While

nonbinding, several other jurisdictions have similarly deter-

mined that, notwithstanding parental immunity, parents owe their

children a duty and that parental negligence may therefore be consid-

ered when allocating fault. See, e.g., Doering v Copper Mountain, Inc,

259 F3d 1202, 1216 (CA 10, 2001); Witte v Mundy, 820 NE2d 128, 133

(Ind, 2005); Fitzpatrick v Allen, 24 Kan App 2d 896, 904; 955 P2d 141

(1998); YH Investments, Inc v Godales, 690 So 2d 1273, 1278 (Fla, 1997).

We ﬁnd these cases persuasive.

M Civ JI 13.09 states, “You must not consider whether there was

negligence on the part of [ name of child ]’s parents, because, under the

law, any negligence on the part of the parents cannot affect a claim on

150 325 M

ICH

129 [July

not to

consider any negligence by Ezekiel’s parents. By

denying defendant’s request to include Jeff as a non-

party at fault and omitting Jeff’s name from the verdict

form, the trial court denied defendant one of its pri-

mary defenses—namely, that Jeff was negligent in

allowing a six-year-old child to ride his bike unescorted

on a road open to intermittent motor vehicle trafﬁc.

Moreover, this error cannot be considered harmless

given that there was evidence to support the conclu-

sion that Jeff breached a duty to Ezekiel and that this

breach of duty was a proximate cause of Ezekiel’s

death. As Ezekiel’s parent, Jeff owed Ezekiel a duty of

supervision and a duty to protect him from open and

obvious dangers on the property. Lyshak, 351 Mich at

234 (opinion by S

MITH

, J.); Stopczynski, 258 Mich App

at 236; 62 Am Jur 2d, Premises Liability, § 227, pp

600-601. In this case, the purportedly dangerous con-

dition on defendant’s property was the mixed-use na-

ture of the service drive, i.e., intermittent motor ve-

hicle trafﬁc on a road that campers also used to

traverse from the campgrounds to the barns on their

bikes or on foot. Faced with this mixed-use roadway,

Jeff allowed six-year-old Ezekiel to ride his bike alone

from the family’s campsite to the barn.

Jeff’s only

justiﬁcation

for

this decision was his assertion that he

believed there was an unwritten rule that the service

drive was a “bike path” that was not open to trafﬁc

during the fair. Indeed, Jeff testiﬁed that he would

never have let his six-year-old ride a bike alone on a

behalf of the child.” This instruction is inapplicable when a parent is

named

as a nonparty at fault. See M Civ JI 13.09, use note.

Jeff never denied that he was responsible for supervising Ezekiel,

and testimony from parents and organizers conﬁrmed that parents were

generally responsible for their children while at the fair. Indeed, several

parents described entrusting their children to other adults if they could

not supervise them personally.

2018] G

OODWIN V

ORTHWEST

AIR

’

151

road that was open for trafﬁc; rather, Jeff stated that

would have accompanied Ezekiel to the barn.

However, despite Jeff’s claim that he thought the

road was closed to motor vehicle trafﬁc, in his trial

testimony, Jeff conceded that, though “rare,” he actu-

ally saw motor vehicles on the service drive. Addition-

ally, he knew that there were “ofﬁcial” vehicles going to

the barns, and more than once, Jeff saw an unofﬁcial

red convertible parked at the barn with hay in its

trunk. Aside from seeing the “rare” vehicle on the road,

Jeff also acknowledged that there were no signs or

barriers prohibiting vehicles from driving on the ser-

vice road, that numerous vehicles were parked along

the service drive (though Jeff asserted that he did not

believe these vehicles would move), and that, more

generally, campers with vehicles parked on the camp-

grounds could come and go with their vehicles during

the week. Likewise, other campers testiﬁed that they

used the road to walk and ride to the barn, but they

also conﬁrmed that they saw vehicles using the drive,

including garbage trucks, a backhoe or other vehicles

gathering manure, golf carts, “Gators,” and people

coming to tend to the portable toilets. The testimony of

the fair organizers also indicated that, unlike other

roadways on the property, the service drive was not

closed to motor vehicles.

Given Jeff’s admissions and the other evidence of

vehicles using the road, Jeff clearly knew—or would

have been reasonably expected to know—that there

was intermittent motor vehicle trafﬁc on the service

drive. Yet Jeff allowed a six-year-old to ride on the

service drive unaccompanied. Bearing in mind “the

immaturity, inexperience and carelessness of chil-

dren,” Moning, 400 Mich at 446, reasonable minds

could well conclude that a six-year-old should not have

152 325 M

ICH

129 [July

been on the roadway unsupervised. Cf. Feldman

, 162

Mich at 490; Price v Manistique Area Pub Sch, 54 Mich

App 127, 132; 220 NW2d 325 (1974). In other words,

Jeff’s decision to allow Ezekiel to ride alone could be

considered a breach of Jeff’s duty to supervise his child.

Indeed, plaintiff’s theory of the case was that defen-

dant was unreasonable in allowing even intermittent

motor vehicle trafﬁc on a road used by child bicyclists;

and if such a purportedly dangerous condition poses an

“unreasonable risk of harm” sufﬁcient to support a

premises-liability claim, see Hoffner v Lanctoe, 492

Mich 450, 460; 821 NW2d 88 (2012), it is challenging to

see how a parent could not be considered negligent in

allowing a six-year-old to confront this danger alone

when the parent knew or should have known of inter-

mittent motor vehicle trafﬁc on the roadway. See 62

Am Jur 2d, Premises Liability, § 227, pp 600-601.

Ultimately, there is a question of fact regarding Jeff’s

negligence that the jury should have been allowed to

resolve.

See Case

v Consumers Power Co, 463 Mich 1,

the trial court, plaintiff moved for a directed verdict on the issue

of Jeff’s fault, asserting that naming Jeff as a nonparty at fault was

inappropriate as a factual matter because there was no evidence that

Jeff was negligent. The trial court denied the motion, concluding that if

a parent could be named as a nonparty at fault, there was sufﬁcient

evidence of Jeff’s fault to submit the matter to a jury. On cross-appeal,

plaintiff argues that the trial court erred by denying its motion for a

directed verdict, and on appeal, plaintiff argues that any error in failing

to allow the jury to consider Jeff’s fault was harmless because there was

no evidence of negligence. In making these arguments, plaintiff adopts

the reasoning of the trial court, noting that after trial, the trial court

expressed the opinion that it would be “inconceivable” that a jury would

have found Jeff at fault. The trial court’s “inconceivable” statement after

trial wholly conﬂicts with the trial court’s earlier pronouncement, on the

ﬁfth day of trial, that “[i]f we don’t address the issue of parental fault

and we should have it taints the entire case and it has to be tried again.”

Setting aside this inconsistency, there are several ﬂaws in the trial

court’s reasoning and plaintiff’s reliance thereon. Most notably, plain-

tiff’s arguments and the trial court’s reasoning are premised on the

2018] G

OODWIN V

ORTHWEST

AIR

’

153

7; 615 NW2d 17 (2000) (“Ordinarily, it is for the jury to

determine

whether [an actor’s] conduct fell below the

general standard of care.”).

Further, given the evidence at trial, the jury could

also ﬁnd that this act of negligence constituted a

proximate cause of Ezekiel’s death. Thompson struck

Ezekiel while backing up his truck at a speed of 5 miles

per hour. Thompson testiﬁed that he checked his

mirrors but did not see Ezekiel, and the accident

reconstruction indicated that a child of Ezekiel’s height

would be in a vehicle’s blind spot. Rebecca testiﬁed

that Ezekiel would not have known how to respond to

a reversing vehicle, and the eyewitness testimony

indicated that Ezekiel just sat on his bike and watched

Thompson back up. Taken together, this evidence sup-

ports the inference that had Jeff accompanied Ezekiel

to provide supervision, the accident would not have

occurred because, as an adult, Jeff would have been

more visible to Thompson and as Ezekiel’s parent, he

would have controlled Ezekiel’s response to the situa-

tion and protected Ezekiel from the obvious danger of

a slowly reversing vehicle. Moreover, a car striking a

child bicyclist on a mixed-use roadway is a reasonably

foreseeable consequence of allowing a six-year-old to

belief that the service drive was a “bike path,” despite the considerable

evidence

that the service drive was open to intermittent trafﬁc and that

Jeff knew or should have known that it was open to trafﬁc. The trial

court’s characterization of the road as a “bike path” simply ignores the

fact that the danger posed by a mixed-use road could easily be consid-

ered an open and obvious danger to Jeff. Whether Jeff knew there was

trafﬁc on the road, whether the danger of the road was open and

obvious, and whether Jeff was negligent under the circumstances are

questions for the jury to resolve. See Case v Consumers Power Co, 463

Mich 1, 7; 615 NW2d 17 (2000). Therefore, contrary to plaintiff’s

arguments, the trial court’s refusal to allow consideration of Jeff’s fault

was not harmless, and plaintiff was not entitled to a directed verdict on

the question of Jeff’s fault. See Alﬁeri v Bertorelli, 295 Mich App 189,

192; 813 NW2d 772 (2012).

154 325

ICH

129 [July

ride on the road unsupervised. Therefore, Jeff’s failure

supervise may be considered a proximate cause of

Ezekiel’s death. See generally Haliw v Sterling Hts,

464 Mich 297, 310; 627 NW2d 581 (2001) (“Proof of

causation requires both cause in fact and legal, or

proximate, cause.”).

On the whole, there is signiﬁcant evidence support-

ing the conclusion that Jeff knew or should have

known that the service drive was being used by motor

vehicles. In these circumstances, his decision to allow

his six-year-old to ride on the road, unsupervised by an

adult, can be considered a breach of duty that was a

proximate cause of Ezekiel’s death. Consequently, de-

fendant was entitled to argue Jeff’s fault to the jury,

and the jury should have been allowed to apportion

fault to Jeff. See MCL 600.2957; MCL 600.6304;

Barnett, 478 Mich at 170; Zaremba Equip, Inc v Harco

Nat’l Ins Co, 280 Mich App 16, 34; 761 NW2d 151

(2008). Yet, the trial court refused to allow the jury to

apportion fault to Jeff and afﬁrmatively instructed the

jury not to consider the negligence of Ezekiel’s parents.

In these circumstances, failure to vacate the judgment

in plaintiff’s favor and remand for a new trial would be

inconsistent with substantial justice.

Cox v Flint Bd

Hosp

Managers, 467 Mich 1, 15; 651 NW2d 356

(2002). See also Case, 463 Mich at 10 (concluding that

appeal, defendant’s request for relief asks this Court to remand

with instructions to enter judgment notwithstanding the verdict

(JNOV). Although there is clearly evidence that would allow a jury to

hold Jeff at least partially at fault for Ezekiel’s accident, there are

questions of fact surrounding the use of the road, and the reasonable-

ness of Jeff’s conduct should be evaluated by the jury in light of all the

circumstances. See Case, 463 Mich at 7. Further, even if Jeff was

negligent, this would not necessarily absolve defendant of its duty to

Ezekiel. See Wheeler, 292 Mich App at 304; Woodman, 280 Mich App at

154 (opinion by T

ALBOT

, J.); see also 62 Am Jur 2d, Premises Liability,

§ 227, pp 600-601. Ultimately, a jury should be given the opportunity to

2018] G

OODWIN V

ORTHWEST

AIR

’

155

reversal was warranted when jury instructions failed

present one of the defendant’s primary defenses to

the jury). Consequently, we vacate the judgment in

plaintiff’s favor and remand for a new trial.

III. OPEN AND OBVIOUS DANGER DOCTRINE

Next, defendant argues that the trial court erred by

refusing

to instruct the jury on the open and obvious

danger doctrine. Speciﬁcally, defendant contends that

the doctrine should be applied to Ezekiel, meaning that

defendant would have no duty to protect or warn

Ezekiel of open and obvious hazards.

In contrast,

plaintiff

argues, and the trial court concluded, that the

open and obvious danger doctrine does not apply to

children under the age of seven.

A. STANDARDS OF REVIEW

Claims of instructional error are reviewed de novo.

Case, 463

Mich at 6. “The instructions should include

consider the fault of all persons, including Jeff. See Zaremba

, 280 Mich

App at 34. Accordingly, defendant’s request for JNOV or some other

more conclusive relief is denied.

In the trial court, defendant maintained that the open and obvious

danger doctrine applied to Ezekiel’s caretaker, meaning that the jury

should have been instructed on the doctrine in relation to whether the

dangers of the road were open and obvious to Jeff and whether Jeff could

be considered at fault for allowing Ezekiel to confront an open and

obvious danger. Given its conclusion that Jeff could not be named as a

nonparty at fault, the trial court also concluded that the open and

obvious danger doctrine had no applicability to Jeff. As discussed, the

trial court erred by refusing to allow the jury to consider Jeff’s fault. On

remand, defendant should be given the opportunity to raise an open and

obvious danger defense—and receive an open and obvious danger

instruction—in terms of whether Jeff was negligent in allowing Ezekiel

to ride unaccompanied on the service drive. However, whether the

doctrine applies to Jeff is a distinct question from whether it applies to

Ezekiel.

156 325

ICH

129 [July

all the elements of the plaintiff’s claims and should not

omit

material issues, defenses, or theories if the evi-

dence supports them.” Id. “[T]he trial court’s determi-

nation that a jury instruction is accurate and appli-

cable to the case is reviewed for an abuse of discretion.”

Hill v Hoig, 258 Mich App 538, 540; 672 NW2d 531

(2003). “Instructional error warrants reversal if the

error resulted in such unfair prejudice to the complain-

ing party that the failure to vacate the jury verdict

would be inconsistent with substantial justice.” Cox,

467 Mich at 8 (quotation marks and citation omitted).

B. ANALYSIS

“In a premises liability action, a plaintiff must prove

the

elements of negligence: (1) the defendant owed the

plaintiff a duty, (2) the defendant breached that duty,

(3) the breach was the proximate cause of the plaintiff’s

injury, and (4) the plaintiff suffered damages.” Benton

v Dart Props, Inc, 270 Mich App 437, 440; 715 NW2d

335 (2006). “With regard to invitees, a landowner owes

a duty to use reasonable care to protect invitees from

unreasonable risks of harm posed by dangerous condi-

tions on the owner’s land.” Hoffner, 492 Mich at 460.

Integral to a landowner’s duty to an invitee is whether

the defect in question is “open and obvious.” Id. (quo-

tation marks and citation omitted). Absent special

aspects,

“[t]he possessor of land ‘owes no duty to

protect

warn’ of dangers that are open and obvious

because such dangers, by their nature, apprise an

invitee of the potential hazard, which the invitee may

“[A]n

open and obvious hazard that ordinarily precludes liability

can have special aspects that give rise to liability in one of two ways: (1)

the hazard is, in and of itself, unreasonably dangerous or (2) the hazard

was rendered unreasonably dangerous because it was effectively un-

avoidable for the injured party.” Bullard v Oakwood Annapolis Hosp,

308 Mich App 403, 410; 864 NW2d 591 (2014).

2018] G

OODWIN V

ORTHWEST

AIR

’

157

then take reasonable measures to avoid.” Id

. at 460-

461 (citation omitted). With regard to adult invitees,

whether a danger is open and obvious is judged from

an objective standard, considering “whether it is rea-

sonable to expect that an average person with ordinary

intelligence would have discovered it upon casual in-

spection.” Id. at 461.

When it comes to children, this Court has recognized

that the open and obvious danger doctrine may apply to

children as young as 11 years old. Bragan v Symanzik,

263 Mich App 324, 326, 328, 335; 687 NW2d 881 (2004).

However, when applying the doctrine to minors, chil-

dren are not held to the same standard as an average

adult of ordinary intelligence. Id. at 328, 335. As a

general matter, the law recognizes that children can

only be expected to act with “that degree of care which a

reasonably careful minor of the age, mental capacity

and experience of other similarly situated minors would

exercise under the circumstances.” Id. at 328 (quotation

marks and citation omitted). In contrast, adults are

expected to “exercise greater vigilance” around children,

and landowners owe a “heightened duty of care” to

children on their property, including children who are

known trespassers or licensees. Id. at 328, 333-335. See

also Woodman Kera, LLC, 280 Mich App 125, 154; 760

NW2d 641 (2008) (opinion by T

ALBOT

, J.) (“Landowners

owe minor invitees the highest duty of care.”). In par-

ticular, when there are children on the land, a land-

owner is “obligated to anticipate and take into account

[the child’s] propensities to inquire into or to meddle

with conditions which he ﬁnds on the land, his inatten-

tion, and his inability to understand or appreciate the

danger, or to protect himself against it.” Bragan, 263

MichApp at 330 (quotation marks and citation omitted).

Given the unique characteristics of children and the

heightened duty that adults owe to children, the Bragan

158 325 M

ICH

129 [July

Court concluded that a child invitee cannot be held to

he same “open and obvious danger” standard as adult

invitees. Id. at 335. More fully, this Court reasoned:

Based on this long history of treating children differ-

ently under the law and entitling child trespassers and

licensees to a heightened duty of care, we ﬁnd the instant

case legally distinguishable from the line of open and

obvious cases involving adult invitees. Landowners owe

the greatest duty of care to invitees as a class. Even the

Restatement of Torts, upon which Michigan’s open and

obvious doctrine was originally based, recognizes that

child invitees are entitled to greater protection because of

their “inability to understand or appreciate the danger, or

to protect [themselves] against it.” It would, therefore, be

illogical to ﬁnd that child invitees are entitled to less

protection than child licensees or trespassers. Further-

more, as minors in Michigan are only held to the standard

of care of “a reasonably careful minor,” it would be

similarly illogical to hold child invitees to the standard of

an objective, reasonably prudent person; i.e., an adult.

Accordingly, we must consider whether a dangerous con-

dition would be open and obvious to a reasonably careful

minor; that is, whether the minor would discover the

danger and appreciate the risk of harm. [Id. (citations

omitted; alteration in original).]

Whether a dangerous condition is open and obvious “in

the

eyes

of a child, and if open and obvious, whether

the condition was unreasonably dangerous” in light of

the presence of children are ordinarily questions for

the fact-ﬁnder. Id. at 336.

Although Bragan applied a reasonable-child version

of the open and obvious danger doctrine to children,

the Court did so in a case involving an 11-year-old, and

the Court did not address whether the doctrine should

also be applied to younger children under the age of

seven. The age of seven is signiﬁcant because tradi-

2018] G

OODWIN V

ORTHWEST

AIR

’

159

tionally age seven has been treated as a “dividing line”

Michigan. Burhans v Witbeck, 375 Mich 253, 255;

134 NW2d 225 (1965). “Children under the age of

seven are presumptively incapable of committing neg-

ligent or criminal acts or intentional torts.” Bragan,

263 Mich App at 333-334. See also Queen Ins Co v

Hammond, 374 Mich 655, 658; 132 NW2d 792 (1965).

In comparison, the capabilities of children older than

seven pose “a question of fact for the jury, which is to

determine it on the basis of whether the child had

conducted himself as a child of his age, ability, intelli-

gence and experience would reasonably have been

expected to do under like circumstances.” Burhans,

375 Mich at 255. See also Woodman, 486 Mich at 256

(opinion by Y

OUNG

, J.). Under the tender-years rule,

the law presumes that children under seven cannot be

held accountable because they are “without discre-

tion,” Baker v Alt, 374 Mich 492, 501; 132 NW2d 614

(1965) (quotation marks and citation omitted), they are

“unconscious of the nature of their acts,” and they have

“no appreciation of attending danger to themselves or

others,” Hoover, 188 Mich at 321. See also Muscat v

Khalil, 150 Mich App 114, 122; 388 NW2d 267 (1986)

(noting that individuals in the tender-years age group

lack the “intellectual capacity” to appreciate danger

that would be obvious to older individuals). Under

these special rules for children, “the common law

protects children by creating an incentive to exercise

greater care for minors because it limits a defendant’s

ability to escape liability on the basis of the child’s

contributory negligence.” Woodman, 486 Mich at 257

(opinion by Y

OUNG

, J.). The question before us in this

case is whether the presumed incapabilities of children

under seven also preclude a ﬁnding that it is reason-

able to expect children under that age to discover a

160 325 M

ICH

129 [July

dangerous condition, appreciate the danger, and take

reasonable

measures to avoid it.

Given Michigan’s long history of treating children

under the age of seven differently under the law, we

conclude that the open and obvious danger doctrine is

inapplicable to children under the age of seven and that

children under that age cannot be expected to conform

their conduct to a reasonable-child standard. In other

words, while Bragan, 263 Mich App at 335, applied a

reasonable-child standard to children over seven, this

was consistent with long-established caselaw holding

that a child over seven is expected to conduct himself “as

a child of his age, ability, intelligence and experience

would reasonably have been expected to do under like

circumstances.” Burhans, 375 Mich at 255. The open

and obvious danger doctrine is premised on the propo-

sition that it is “reasonable to expect” the invitee to

discover the danger, Hoffner, 492 Mich at 461, and given

the capabilities of children over the age of seven, it can

be reasonably expected that children over seven will

conform their conduct to a reasonable-child standard. In

contrast, “the incapacity and irresponsibility” of chil-

dren under the age of seven have longed been recog-

nized, Queen Ins Co, 374 Mich at 658, and in view of this

incapacity, there can be no reasonably-careful-minor

standard for children under seven, see Baker, 374 Mich

at 498, 505.

Consequently, in the context of the open and obvious

danger doctrine, it is not reasonable to expect that a

child under seven will conform to a reasonable-child

standard in discovering dangers, appreciating the dan-

ger involved, and responding to those dangers. Rather,

the law presumes that a child under seven will not

appreciate the danger, and therefore a landowner

remains obligated to exercise reasonable care to pro-

2018] G

OODWIN V

ORTHWEST

AIR

’

161

tect a child under seven from open and obvious dangers

the property, even if those dangers would be open

and obvious to adults and older children. This rule is

consistent with a landowner’s obligation to exercise

greater care for minors, Bragan, 263 Mich App at 330,

and it safeguards children by placing the burden on

landowners to protect child-invitees under seven from

open and obvious dangers on the property as opposed

to expecting small children to protect themselves.

See

generally W

oodman, 486 Mich at 257 & n 73 (opinion

by Y

OUNG

, J.). Although the imposition of a bright-line

rule may seem arbitrary in some cases,

the age of

seven is the long-established “dividing line” in Michi-

gan. Adhering to this dividing line, we adopt a bright-

line rule that landowners cannot reasonably expect

children under seven to recognize a dangerous condi-

tion, to appreciate the danger, and to exercise any

degree of reasonable care in response to that condition.

Given our conclusion that the open and obvious

danger doctrine does not apply to children under

seven, it is inapplicable to Ezekiel, who was six years

old at the time of the accident. Consequently, the trial

court did not err by concluding that the open and

obvious danger doctrine did not apply to Ezekiel.

Defendant is not entitled to relief on this basis.

IV. CAMPGROUND REGULATIONS

Defendant argues that the trial court erred by

This

is not to say that a child’s conduct is irrelevant at trial. A

child’s conduct may be admissible as it relates to the question whether

a defendant breached a duty to a child. See Baker, 374 Mich at 505. We

simply hold that the incapability and irresponsibility of children under

seven precludes the conclusion that an adult landowner has no duty to

protect a tender-years invitee from an open and obvious danger.

For instance, in this case, Ezekiel was only two days shy of his

seventh birthday at the time of the accident.

162 325 M

ICH

129 [July

instructing the jury under M Civ JI 12.05 with regard

defendant’s alleged violation of Mich Admin Code, R

326.1556(8) and Mich Admin Code, R 326.1558(1).

According to defendant, these rules are irrelevant to

this case and any violation could not be considered a

proximate cause of the accident. We agree that the trial

court erred by instructing the jury under M Civ JI

12.05 with regard to the number of campsites (Rule

326.1556(8)); however, we conclude that the trial court

did not abuse its discretion in concluding that M Civ JI

12.05 was applicable with regard to the size of the

service drive (Rule 326.1558(1)).

“In Michigan, the violation of administrative rules

and regulations is evidence of negligence, and there-

fore when a violation is properly pled it may be

submitted to the jury.” Zalut v Andersen & Assoc, Inc,

186 Mich App 229, 235; 463 NW2d 236 (1990). See also

Kennedy v Great Atlantic & Paciﬁc Tea Co, 274 Mich

App 710, 720; 737 NW2d 179 (2007) (applying this rule

in a premises-liability case). Speciﬁcally, an instruction

regarding violations of regulations as evidence of neg-

ligence is set forth in M Civ JI 12.05, which states:

The [ name

state agency ] in Michigan has adopted

certain regulations pursuant to authority given to it by a

state statute. [ Rule / Rules ] ________ of [ name of state

agency ] [ provides / provide ] that [ here quote or

paraphrase applicable parts of regulation(s) as construed

by the courts ].

If you ﬁnd that defendant violated [ this regulation / one or

more of these regulations ] before or at the time of the

occurrence, such [ violation / violations ] [ is / are ] evidence

of negligence which you should consider, together with all

the other evidence, in deciding whether defendant was

negligent. If you ﬁnd that defendant was negligent, you

must then decide whether such negligence was a proxi-

mate cause of the [ injury / damage ] to plaintiff.

2018] G

OODWIN V

ORTHWEST

AIR

’

163

This instruction should only be given if: (1) the

egulation is intended to protect against the injury

involved; (2) the plaintiff is within the class intended

to be protected by the regulation; and (3) the evidence

will support a ﬁnding that the violation was a proxi-

mate cause of the injury involved. M Civ JI 12.03, use

notes; M Civ JI 12.05, use notes. “These factors are

necessary to a determination of relevance.” Klanseck

v Anderson Sales & Serv, Inc, 426 Mich 78, 87; 393

NW2d 356 (1986).

That is, “[w]hen a party is alleged

o have violated [a regulation], the court may apply

the factors above in assessing whether the claimed

violation is relevant to the facts presented at trial.”

Id. “[R]elevance must be speciﬁcally established” be-

fore evidence of a violation may be used as evidence of

negligence. Id. See also Zalut, 186 Mich App at 235.

In this case, the two regulations at issue are rules

created by the Department of Environmental Quality

under its authority to “promulgate rules regarding

sanitation and safety standards for campgrounds and

public health.” MCL 333.12511. First, under Mich

Admin Code R 326.1556(8), “[a] campground owner

shall ensure that the number of sites in a campground

is not more than the number authorized by the

license.” Regarding defendant’s compliance with this

regulation, the evidence at trial indicated that there

were 399 sites on the campgrounds and that defen-

dant only had a license for 133 campsites. Fair

organizers maintained that they had a “temporary”

permit for 399 campsites during the fair, and there

was evidence that defendant was approved for 399

sites on August 31, 2012. However, a jury could

Klanseck involved

a violation of a statute, but the factors for

assessing the relevance of a statutory violation are the same as those for

violation of a regulation.

164 325 M

ICH

129 [July

certainly reject defendant’s claim of an undocu-

ented “temporary” license and conclude that defen-

dant was in violation of Rule 326.1556(8) at the time

of the accident because defendant had more campsites

than allowed by its license.

Nevertheless, a violation of Rule 326.1556(8) is not

relevant to this case, and the jury should not have been

allowed to consider it. In particular, in the trial court,

plaintiff maintained that the excessive number of

campsites was relevant because it suggested conges-

tion or overcrowding that would have increased both

vehicular and bike trafﬁc. But, ﬁrst of all, the regula-

tion says nothing about trafﬁc, and it cannot reason-

ably be supposed that this licensing requirement is

designed to prevent trafﬁc accidents. Second, plaintiff’s

assertion that there were too many people for the

campground to handle safely is belied by the fact that

defendant was approved for 399 campsites shortly

after the accident. In other words, defendant may have

violated the regulation by failing to obtain a license for

399 sites before the fair, but the approval shortly after

the fair makes plain that it was not an issue of

insufﬁcient space or overcrowding that prevented de-

fendant from obtaining a license. Third, and perhaps

most importantly, there is no evidence that this pur-

ported overcrowding contributed to—let alone proxi-

mately caused—Ezekiel’s death. Ezekiel was killed in

an accident between a single vehicle and a single bike

rider. There was no evidence that the service drive was

overly crowded with pedestrians, bikes, or moving

vehicles at the time of the accident, and there is no

evidence that overcrowding contributed to the acci-

dent. Quite simply, the license issue was irrelevant,

and the jury should not have been allowed to consider

the issue. Accordingly, the trial court erred by instruct-

2018] G

OODWIN V

ORTHWEST

AIR

’

165

ing the jury under M Civ JI 12.05 with regard to Rule

326.1556(8).

The

second regulation at issue is Rule 326.1558(1),

which states:

A campground owner shall provide a road right-of-way

that is not less than 20 feet wide. A campground owner

shall ensure that the right-of-way is free of obstructions

and provides free and easy access to abutting sites. A

campground owner shall maintain the traveled portion of

the right-of-way in a passable and relatively dust-free

condition when the campground is in operation.

Regarding defendant’s compliance with this rule, mea-

surements

of the service drive indicated that it was

13.5 feet wide, and therefore the jury could conclude

that defendant violated its obligation to maintain a

“road right-of-way that is not less than 20 feet wide.”

Although

the trial court erred, reversal is not required on this basis.

M Civ JI 12.05 does not render defendant negligent as a matter of law;

rather, it simply allowed the jury to consider a violation of the regulation

as evidence of negligence. Even if the jury determined that defendant

was in violation of Rule 326.1556(8) on August 8, 2012, it is unlikely

such a determination would have affected the outcome of trial. The issue

of the number of licensed campsites was a relatively minor issue at trial,

and given the weighty issues involved, it seems improbable that a jury

would have held defendant liable for the death of child because defen-

dant had too many campsites, particularly when the evidence plainly

demonstrated that defendant had the space for those campsites. See

Jimkoski v Shupe, 282 Mich App 1, 9; 763 NW2d 1 (2008) (“Reversal is

not warranted when an instructional error does not affect the outcome

of the trial.”).

The evidence indicated that the “gravel” portion of the road was

13.5 feet wide. There was a witness who claimed that the “right-of-way”

was actually 16 or 20 feet wide and that the traveled portion of the road

was smaller than the right-of-way because grass had grown in on some

of the gravel. Defendant emphasizes this distinction on appeal and

asserts that, while the right-of-way must be 20-feet wide, the traveled

portion may be smaller because it is only the “traveled portion” that

must be “passable and relatively dust-free” under Rule 326.1558(1).

Even assuming that the traveled portion can be smaller than 20-feet

166 325

ICH

129 [July

Whether this potential violation was relevant is a close

question.

In terms of the injury the regulation was

designed to protect against, the regulation focuses

mainly on providing access to campsites, but the size

requirements for the road, the “free and easy” access,

the passable-road requirements, and even the “dust-

free” caveats can be read as an indication that the

regulation is intended to ensure safe road access to the

campsites and safe travel while on the road. It is true

that nothing in the regulation mentions bikes in par-

ticular, and certainly the regulations do not require

defendant to maintain a separate bike path. But, it

could nevertheless be concluded that the regulation

was intended to guard against accidents resulting from

insufﬁcient space for a motor vehicle to maneuver

while on the campgrounds. Ezekiel, as a camper using

the road to travel to and from his campsite, would be

within the class of people the road requirements were

designed to protect.

The real issue is whether the size of the road can be

considered a proximate cause of plaintiff’s injuries.

Although the question is a close one, the trial court did

not abuse its discretion by allowing the jury to consider

the issue. The claim in this premises-liability case is

that a proximate cause of Ezekiel’s injuries was defen-

dant’s alleged failure to protect Ezekiel from the un-

reasonable risks of harm posed by a dangerous condi-

tion on defendant’s land—namely, a mixed-use

roadway on which vehicles, bikes, and pedestrians

were allowed to travel. See Hoffner, 492 Mich at 460.

In this context, though only one of many potential

factors, the width of the service drive and defendant’s

wide, a 16-foot right-of-way would not comply with the regulation. See

Rule

326.1558(1). Accordingly, a jury could ﬁnd that defendant violated

this provision.

2018] G

OODWIN V

ORTHWEST

AIR

’

167

failure to abide by Rule 326.1558(1) could be signiﬁ-

cant

to a determination of whether the service drive

was unreasonably dangerous and whether defendant’s

failure to protect Ezekiel from this unreasonable dan-

ger constituted a proximate cause of his injuries. In

other words, defendant’s decision to allow mixed-use

access of the road is a “but-for” cause of Ezekiel’s

death, and the width of the road is a signiﬁcant factor

bearing on the reasonableness of defendant’s decision

and the foreseeability of the consequences of defen-

dant’s decision for purposes of determining whether

defendant may be held legally responsible. See gener-

ally Haliw, 464 Mich at 310. On the whole, the trial

court did not abuse its discretion in instructing the

jury under M Civ JI 12.05 with regard to Rule

326.1558(1).

V. TAXABLE COSTS AND PREJUDGMENT INTEREST

Finally, defendant argues, and plaintiff concedes,

that

the underlying judgment is vacated, the award

of costs and prejudgment interest in plaintiff’s favor

should also be vacated. We agree. That is, having

vacated the underlying judgment, it follows that plain-

tiff is no longer a “prevailing party,” and therefore

plaintiff is not entitled to costs under MCR 2.625. See

Ivezaj v Auto Club Ins Ass’n, 275 Mich App 349, 368;

737 NW2d 807 (2007). Likewise, absent a “judgment”

in plaintiff’s favor, there is no basis for awarding

plaintiff prejudgment interest as the prevailing party

under MCL 600.6013(8). See generally Hunt v Drielick,

322 Mich App 318, 333-334; 914 NW2d 371 (2017)

(“MCL 600.6013 is remedial and primarily intended to

compensate prevailing parties for expenses incurred in

bringing suits for money damages and for any delay in

168 325 M

ICH

129 [July

receiving those damages.”). Consequently, we also va-

cate

the award of costs and prejudgment interest.

Vacated and remanded for a new trial. We do not

retain jurisdiction.

URRAY

, P.J., and H

OEKSTRA

and G

ADOLA

, JJ., con-

curred.

2018] G

OODWIN V

ORTHWEST

AIR

’

169

OLSEN v CHIKAMING TOWNSHIP

Docket

Nos. 337724 and 337726. Submitted June 12, 2018, at Grand

Rapids. Decided July 3, 2018, at 9:05 a.m.

Jude and Reed, LLC (appellant) sought to obtain a nonuse variance

from the Chikaming Township Zoning Board of Appeals (ZBA) in

order to build a residence on a nonconforming lot it owned. Before

holding a hearing on the matter, the township notiﬁed others who

owned property within a 300-foot radius of the lot as required by

MCL 125.3103(2), and several of these landowners appeared at

the hearing to argue against the variance. After the ZBA granted

the variance, some of the neighboring landowners who had

received notice of the hearing, including Martha Cares Olsen,

Fritz Olsen, and others (appellees), appealed the ZBA’s decision

in the Berrien Circuit Court, which permitted appellant to

intervene in the circuit court action. The ZBA and appellant

moved to dismiss the action for lack of subject-matter jurisdiction,

arguing that appellees lacked standing to challenge the decision

to grant the variance because they had suffered no special

damages and were therefore not aggrieved parties for purposes of

the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq.

The court, Sterling R. Schrock, J., ruled that appellees had

standing to appeal and reversed the decision on the ground that

the ZBA lacked the authority to grant the variance under the

terms of the township’s zoning ordinance. In Docket No. 337724,

appellant sought leave to appeal the merits of the circuit court

decision on various grounds. In Docket No. 337726, appellant

appealed by right the ruling that appellees had standing. The

Court of Appeals granted the application for leave in Docket No.

337724 and consolidated the cases for appeal.

The Court of Appeals held:

1. MCL 125.3605 provides that a decision of a ZBA is ﬁnal and

that a party aggrieved by the decision may appeal in the circuit

court for the county in which the property is located. Thus, under

the MZEA, a party seeking relief from a decision of a ZBA in the

circuit court is not required to demonstrate that he or she has

standing but rather that he or she is an “aggrieved” party. The

MZEA does not deﬁne this term, but in other contexts, the Court

170 325

ICH

170 [July

of Appeals has deﬁned “aggrieved party” as “one whose legal right

invaded by an action, or whose pecuniary interest is directly or

adversely affected by a judgment or order.” In the context of

zoning, but before enactment of the MZEA, this Court held that to

be aggrieved by a zoning decision, a party must have suffered

some special damages not common to other property owners

similarly situated. Generally, a neighboring landowner alleging

increased trafﬁc volume, loss of aesthetic value, or general

economic loss has not sufﬁciently alleged special damages to

become an aggrieved party, because those generalized concerns

are not sufﬁcient to demonstrate harm different from that suf-

fered by people in the community generally. In keeping with this

interpretation, to demonstrate that one is an aggrieved party

under MCL 125.3605, a party must allege and prove that he or

she has suffered some special damages not common to other

property owners similarly situated. Incidental inconveniences

such as increased trafﬁc congestion, general aesthetic and eco-

nomic losses, population increases, or common environmental

changes are insufﬁcient to show that a party is aggrieved.

Instead, there must be a unique harm, dissimilar from the effect

that other similarly situated property owners may experience.

Mere ownership of an adjoining parcel of land is insufﬁcient to

show that a party is aggrieved, as is the mere entitlement to

notice. In this case, appellees argued before the circuit court that

they were aggrieved because they had relied on an earlier

variance denial concluding that the lot in question was unbuild-

able, they had relied on the zoning ordinance to be enforced as

written, they were entitled to receive notice of the public hearing

before the ZBA as owners of real property within 300 feet of the

lot, and they would suffer aesthetic, ecological, practical, and

other alleged harms from the grant of the zoning variance.

Because these allegations failed to show that appellees would

suffer a unique harm different from similarly situated community

members, they failed to establish that they were parties ag-

grieved by the decision of the ZBA under MCL 125.3605. Although

the circuit court noted that septic systems and setback require-

ments speciﬁcally affected the property of neighboring landown-

ers, there was no evidence that such damages were more than

speculation or anticipation of future harm.

2. The circuit court erred by ruling that appellees had stand-

ing to challenge the ZBA decision because they owned real

property within 300 feet of appellant’s lot and therefore were

entitled to notice under MCL 125.3103. Nothing in the MZEA or

in Michigan’s zoning jurisprudence supports reading “aggrieved

party” status into the MZEA’s notice requirement, and this

2018] O

LSEN V

HIKAMING

171

reading of the notice provision runs contrary to this Court’s

decisions

establishing that mere ownership of adjoining property

is insufﬁcient to establish a property owner as an aggrieved party.

Appellees’ reliance on Brown v East Lansing Zoning Bd of

Appeals, 109 Mich App 688 (1981), to support their “aggrieved”

status is misguided in light of the fact that Brown involved the

application of a previous enabling statute with a more permissive

threshold for standing.

3. Appellant did not waive the right to challenge appellees’

standing to pursue the appeal in the circuit court by not raising it

before the ZBA. Who may seek review of the ZBA decision before

the circuit court was a question for initial determination by the

circuit court, not the ZBA. Moreover, at the time of the proceed-

ings before the ZBA, the ZBA had not yet granted the variance,

and therefore any challenge to appellees’ ability to appeal that

future decision would have been premature. The cases on which

appellees relied for the contrary proposition did not involve the

MZEA and were not applicable.

4. Appellees did not have standing to challenge the decision of

the ZBA under Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487

Mich 349 (2010) (LSEA). Under LSEA, a litigant may have

standing if the litigant has a special injury or right, or substantial

interest, that will be detrimentally affected in a manner different

from the citizenry at large or if a statutory scheme implies that

the Legislature intended to confer standing on the litigant. LSEA

was inapplicable in this case, which did not involve general

notions of standing but rather application of a speciﬁc statutory

provision of the MZEA that permits appellate review of a local

unit of government’s zoning decision when review is sought by a

“party aggrieved” by the decision of that local tribunal. Even if the

LSEA analysis had been applicable, appellees would nonetheless

have lacked standing because they did not demonstrate a special

injury or right, or substantial interest, that would be detrimen-

tally affected in a manner different from the citizenry at large.

5. In light of the conclusion that appellees were not properly

able to invoke the jurisdiction of the circuit court, it was unnec-

essary to address appellant’s additional contentions of error in

the circuit court’s ruling.

Reversed and remanded for further proceedings.

1. Z

ONING —

ICHIGAN

ONING

NABLING

CT —

ECISIONS OF

ONING

OARDS

PPEALS —

PPEALS IN

IRCUIT

OURTS —

GGRIEVED

ARTIES

A party seeking relief in the circuit court from a decision of a zoning

board of appeals under MCL 125.3605 is not required to demon-

172 325 M

ICH

170 [July

strate that he or she has standing, but rather must demonstrate

that

he or she is an aggrieved party by alleging and proving that

he or she has suffered some special damages not common to other

property owners similarly situated; incidental inconveniences

such as increased trafﬁc congestion, general aesthetic and eco-

nomic losses, population increases, or common environmental

changes are insufﬁcient to show that a party is aggrieved;

instead, there must be a unique harm, dissimilar from the effect

that other similarly situated property owners may experience.

2. Z

ONING —

ICHIGAN

ONING

NABLING

CT —

ECISIONS OF

ONING

OARDS

PPEALS —

PPEALS IN

IRCUIT

OURTS —

GGRIEVED

ARTIES —

ARTIES

NTITLED TO

OTICE

The fact that a person is entitled to notice of a public hearing held

by a zoning board of appeals because the person owns land within

300 feet of the property at issue does not itself render that person

an aggrieved party who may challenge a decision of the board in

the circuit court (MCL 125.3103; MCL 125.3605).

Bloom Sluggett, PC (by Clifford

H. Bloom and James

C. Komondy) for appellant.

Miller Johnson (by Sara G. Lachman and Patrick M.

Jaicomo) and McGraw Morris PC (by Craig R. Noland)

for appellees.

Before: M

URRAY

, C.J., and H

OEKSTRA

and G

ADOLA

, JJ.

ADOLA

, J. In Docket No. 337724, appellant, Jude

and Reed, LLC, appeals by leave granted the order of

the circuit court reversing the determination of the

Chikaming Township Zoning Board of Appeals (ZBA)

granting appellant’s application for a nonuse zoning

variance. In Docket No. 337726, appellant appeals as

of right the same order of the circuit court. In both

appeals, appellant challenges whether appellees

are

Appellees,

Martha Cares Olsen, Fritz Olsen, and others, are neigh-

boring property owners. In Docket No. 337724, this Court granted the

motion of appellees Ronald DeVlam and Michelle DeVlam to be substi-

2018] O

LSEN V

HIKAMING

173

aggrieved parties who may contest the ﬁnal order of

the

ZBA. We reverse and remand.

I. FACTS AND BACKGROUND

In 1957, Preston and Doris Sweet platted a 17-lot

subdivision near Lake Michigan called the Merri-

weather Shores subdivision. In the following years, the

Sweets conveyed some of the lots to buyers, while

retaining other lots. This case involves Lot 6 of the

subdivision. Lot 6 has 118 feet of frontage along

Huntington Drive, is 82 feet deep, and has a total area

of 9,676 square feet.

The subdivision is located in Chikaming Township.

At the time Merriweather Shores was platted, the

township did not have a zoning ordinance. The town-

ship thereafter enacted a zoning ordinance in 1964,

and in 1981, it enacted a new zoning ordinance. The

parties agree that at some point after enactment of the

1981 ordinance, Lot 6 was rendered nonconforming

because the ordinance required all lots to have a

minimum area of 20,000 square feet for buildability.

Regarding nonconforming lots, § 4.02(B) of the 1981

ordinance provided:

If two or more lots or combination of lots and portions

lots

with continuous frontage in single ownership are of

record at the time of passage or amendment of this

ordinance, and if all or part of the lots do not meet the

requirements established for lot width and area, the lands

involved shall be considered to be an undivided parcel for

the purposes of this ordinance and no portion of said

parcel shall be used or sold in a manner which diminishes

compliance with lot width and area requirements estab-

tuted as successors in interest for the Zwier Family Trust. Olsen

Chikaming Twp, unpublished order of the Court of Appeals, entered

May 11, 2017 (Docket No. 337724).

174 325 M

ICH

170 [July

lished by this ordinance, nor shall any division of any

parcel

be made which creates a lot with width or area less

than the requirements stated in this ordinance.

In 1982, Doris Sweet, as survivor of Preston Sweet,

conveyed the remaining lots to herself and to David

Sweet as joint tenants with rights of survivorship. The

parties do not dispute that in 1989, David Sweet, as

survivor of Doris Sweet, conveyed Lots 8 through 10 to

unrelated parties but maintained ownership of Lots 6

and 7. In 1996, a prospective buyer, David Zilke, was

interested in purchasing Lots 6 and 7 from David

Sweet. Combined, Lots 6 and 7 had an area of 19,352

square feet, and Zilke requested a variance from the

20,000 square foot minimum for buildability and from

the rear and side setback requirements. The ZBA

denied the variance application, and Zilke declined to

purchase the property.

In 1998, the township adopted a new zoning ordi-

nance, which remained in effect at the times relevant

to this case. In 2011, the Berrien County Treasurer

foreclosed on David Sweet’s interest in Lot 7 for

nonpayment of property taxes, and T&W Holdings,

LLC, purchased Lot 7 at a tax foreclosure sale. In 2013,

the Berrien County Treasurer foreclosed on David

Sweet’s interest in Lot 6 for nonpayment of property

taxes, and appellant purchased Lot 6 at a tax foreclo-

sure sale.

Seeking to build a residential cottage on Lot 6,

appellant ﬁled an application with Chikaming Town-

ship for a nonuse variance under § 4.02(C) of the

zoning ordinance. Appellant requested a nonuse di-

mensional variance under § 14.02, which requires all

R-1 lots to have a minimum lot area of 20,000 square

feet and a rear setback of 50 feet. Lot 6 had square

footage of 9,676 and would require a rear setback of 30

2018] O

LSEN V

HIKAMING

175

feet. Appellant argued that as a nonconforming lot, Lot

was eligible for a variance pursuant to § 4.02 and

§ 4.06 of the zoning ordinance and that without the

variance, Lot 6 would be rendered unusable.

Before the ZBA held a hearing to address appellant’s

application, the township sent notice to property own-

ers who owned property within a 300-foot radius of Lot

At the ZBA hearing, some of the neighboring prop-

erty

owners appeared by counsel to argue against the

variance. Following public comment and extensive

discussion by the ZBA members, the ZBA voted to

approve the variance request.

Appellees appealed the ZBA’s decision in the circuit

court, and the circuit court permitted appellant to

intervene in the circuit court action. The ZBA moved to

dismiss the circuit court action for lack of subject-

matter jurisdiction, arguing that appellees lacked

standing to challenge the ZBA’s decision to grant the

variance. Appellant joined the ZBA in the motion.

Appellant and the ZBA argued that only an “aggrieved”

party could appeal the ZBA’s decision and that appel-

lees were not aggrieved because they could not show

that they suffered special damages. At the conclusion

of the hearing on the motion, the trial court ruled that

appellees had standing to appeal the ZBA decision to

the circuit court, explaining:

I ﬁnd in this circumstance that the Legislature has a

scheme

that

implies it intended to confer standing on

these litigants. The Zoning Enabling Act [MCL 125.3101

et seq.] provides, in section 3103, that notice shall be given

to persons—all persons who have real property that is

assessed within 300 feet of the property that is [the]

subject of the request, and it seems to me that in the

MCL

125.3103(2) requires notice of the public hearing to persons to

whom property is assessed within 300 feet of the subject property.

176 325 M

ICH

170 [July

context of the [appellees] challenging the actions of the

Zoning

Board of Appeals, I—I must ﬁnd that this notice

requirement implies that the Legislature intended to

confer standing to those individuals so as to qualify as

aggrieved part[ies] for the purposes of the appeal under

3606. . . . [W]ere this not true . . . only an applicant who’s

denied a variance would have standing to appeal save . . .

they can show themselves to otherwise have a special

interest, the door would be open to those individuals. But,

again, is that only individuals within the 300 feet, or is

that any ole person that can show some other—some other

interest . . . . [M]y interpretation is that the Legislature

wouldn’t intend that result to only confer the—the appeal

status, particularly as I said, within the context of the

Statute indicating that they must give notice to these folks

within 300 feet. And also speciﬁcally indicating what that

notice has to have when and where written comments will

be received concerning the request.

The circuit court also noted that the ordinance gener-

ally required a 50-foot setback for a septic system, and

the ZBA provided appellant with a 20-foot variance for

the septic system. The circuit court noted, “[T]hat

seems to me that arguably there may be a special

interest with respect to that, particularly with the

contiguous properties.” The circuit court denied the

motion to dismiss, concluding that “given the notice

Statute, it seems that . . . [t]he Statute implies an

intent to confer standing on [appellees].”

After further proceedings, the circuit court reversed

the ZBA’s decision. The circuit court held that the ZBA

did not have authority to grant the variance because

appellant did not satisfy § 23.04 of the township’s

zoning ordinance, which permits the ZBA to grant a

variance under speciﬁc conditions. Speciﬁcally, the

circuit court found that any hardship was self-created,

explaining:

2018] O

LSEN V

HIKAMING

177

In the instant case, this Court ﬁnds that the hardship

was

self-created. Although [appellant and the ZBA] insist

that “it was the passage of time and application of the

Zoning Ordinance to the existing lots of record that

created the hardship,” the analysis in Johnson [v Robin-

son Twp, 420 Mich 115; 359 NW2d 526 (1984)] does not

support that argument. When the 1964 Zoning Ordinance

went into effect, Lot 6 was under common ownership and

held continuous frontage with Lots 7, 8, 9 and 10 and thus,

the lots were deemed as one lot for purposes of the Zoning

Ordinance. Accordingly, Lot 6 was not a standalone lot and

could not be considered a grandfathered nonconforming

lot of record. The Sweets, the prior owners, then violated

the Zoning Ordinance when they split Lot 6 and Lot 7 from

the remaining lots and as a result, Lot 6 and Lot 7 could

not be developed as standalone building sites. Like the

plaintiff in Johnson, the zoning ordinance preceded the

division of the property . . . . Moreover, it is worth noting

that the Owner was a sophisticated buyer who was aware

of the limitation on Lot 6 when it purchased the property

for $6,054.00. The property remains available for use in

conjunction with an adjacent parcel. Therefore, the Zoning

Board of Appeals erred when they granted the variance

because the practical difﬁculty was one that was produced

by the Sweets, the Owner’s predecessor in title, and

accordingly, Section 23.04.D. was not satisﬁed.

Appellant claimed an appeal in this Court (Docket

No.

337726),

challenging the circuit court’s determina-

tion that appellees were aggrieved parties able to

appeal the decision of the ZBA to the circuit court.

Appellant also sought leave to appeal the same order of

the circuit court (Docket No. 337724), raising addi-

tional challenges to the circuit court’s ruling. This

Court granted appellant’s application for leave to ap-

peal and consolidated the appeals.

Olsen

v Chikaming Twp, unpublished order of the Court of Appeals,

entered July 14, 2017 (Docket No. 337724); Olsen v Chikaming Twp,

unpublished order of the Court of Appeals, entered July 14, 2017

(Docket No. 337726).

178 325 M

ICH

170 [July

II. ANALYSIS

Appellant

ﬁrst contends that appellees lacked

standing to challenge the decision of the ZBA before

the circuit court because they are not “aggrieved par-

ties” within the meaning of the Michigan Zoning En-

abling Act (MZEA), MCL 125.3101 et seq. We agree

that appellees are not aggrieved parties within the

meaning of the MZEA, and therefore were not able to

invoke judicial review by the circuit court of the ZBA’s

decision granting appellant a nonuse variance.

Municipalities have no inherent power to regulate

land use through zoning. Whitman v Galien Twp, 288

Mich App 672, 679; 808 NW2d 9 (2010). Our state’s

Legislature, however, has granted this authority to

municipalities through enabling legislation. Sun

Communities v Leroy Twp, 241 Mich App 665, 669; 617

NW2d 42 (2000). In 2006, our Legislature consolidated

three previous zoning enabling acts for cities and

villages, townships, and counties into the MZEA.

Whitman, 288 Mich App at 679. The MZEA grants local

units of government authority to regulate land devel-

opment and use through zoning. Maple BPA, Inc v

Bloomﬁeld Charter Twp, 302 Mich App 505, 515; 838

NW2d 915 (2013).

The MZEA also provides for judicial review of a local

unit of government’s zoning decisions. Speciﬁcally,

§ 605 of the MZEA, MCL 125.3605, provides that a

decision of a zoning board of appeals is ﬁnal, subject to

appellate review by the circuit court. The circuit court

is authorized under the MZEA to review the decision of

a ZBA to determine whether the decision of the ZBA (a)

complied with the Constitution and laws of this state,

(b) was based on proper procedure, (c) was supported

by competent, material, and substantial evidence, and

(d) represented the ZBA’s reasonable exercise of dis-

2018] O

LSEN V

HIKAMING

179

cretion. MCL 125.3606(1); Edward

C Levy Co v Marine

City Zoning Bd of Appeals, 293 Mich App 333, 340; 810

NW2d 621 (2011).

Our review of a circuit court’s decision in an appeal

from a decision of a zoning board of appeals is de novo

to determine whether the circuit court “ ‘applied cor-

rect legal principles and whether it misapprehended or

grossly misapplied the substantial evidence test to the

[ZBA’s] factual ﬁndings.’ ” Hughes v Almena Twp, 284

Mich App 50, 60; 771 NW2d 453 (2009), quoting Boyd

v Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d

342 (1996). In addition, we review de novo issues

involving the construction of statutes and ordinances.

Soupal v Shady View, Inc, 469 Mich 458, 462; 672

NW2d 171 (2003).

We also review de novo the legal question whether a

party has standing. Barclae v Zarb, 300 Mich App 455,

467; 834 NW2d 100 (2013). We note, however, that the

term “standing” generally refers to the right of a

plaintiff initially to invoke the power of a trial court to

adjudicate a claimed injury. Federated Ins Co v Oak-

land Co Rd Comm, 475 Mich 286, 290; 715 NW2d 846

(2006). In this case, appellees did not seek initially to

invoke the power of the circuit court, but rather sought

appellate review by the circuit court of the decision of

the ZBA under § 605 of the MZEA. Section 605 of the

MZEA provides:

The decision of the zoning board of appeals shall be

ﬁnal.

party aggrieved by the decision may appeal to the

circuit court for the county in which the property is located

as provided under section 606. [MCL 125.3605.]

Thus, under the MZEA, a party seeking relief from a

decision

of a ZBA is not required to demonstrate

“standing” but instead must demonstrate to the circuit

180 325 M

ICH

170 [July

court acting in an appellate context that he or she is an

“aggrieved”

party. MCL 125.3605.

In discussing the similar provision of MCR 7.203(A),

which provides that this Court has jurisdiction of an

appeal of right ﬁled by an “aggrieved party,” our

Supreme Court observed the difference between stand-

ing and the comparable interest in an appellate context

of being an “aggrieved party,” stating that “[t]o be

aggrieved, one must have some interest of a pecuniary

nature in the outcome of the case and not a mere

possibility arising from some unknown and future

contingency.” Federated Ins Co, 475 Mich at 291 (quo-

tation marks and citations omitted).

An aggrieved party is not one who is merely disappointed

over

a certain result. Rather, to have standing on appeal,

a litigant must have suffered a concrete and particular-

ized injury, as would a party plaintiff initially invoking the

court’s power. The only difference is a litigant on appeal

must demonstrate an injury arising from either the ac-

tions of the trial court or the appellate court judgment

rather than an injury arising from the underlying facts of

the case. [Id. at 291-292.]

Thus, the question in this case is more properly

framed

not whether appellees had “standing,” but

speciﬁcally whether appellees were “parties aggrieved

by the decision” of the ZBA within the meaning of the

MZEA and thereby empowered by the MZEA to invoke

appellate review of the ZBA’s decision by the circuit

court. To answer that inquiry, we look ﬁrst to the

provisions of the MZEA. Because the MZEA does not

deﬁne the term “party aggrieved,” we must engage in

statutory interpretation, adhering to the well-settled

rules governing such an inquiry. In doing so, our

“primary goal is to discern the intent of the Legislature

by ﬁrst examining the plain language of the statute.”

Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311

2018] O

LSEN V

HIKAMING

181

(2011). “Statutory provisions must be read in the

context

of the entire act, giving every word its plain

and ordinary meaning.” Id. at 247. “When the lan-

guage is clear and unambiguous, we will apply the

statute as written and judicial construction is not

permitted.” Id.

The relevant statutory language provides that a

“party aggrieved by the decision [of the ZBA] may

appeal to the circuit court . . . .” MCL 125.3605. We do

not assume that language chosen by the Legislature

was inadvertent, Bush v Shabahang, 484 Mich 156,

169; 772 NW2d 272 (2009), and when interpreting

statutory language that previously has been subject to

judicial interpretation,

we presume that the Legisla-

ture

used the words in the sense in which they previ-

ously have been interpreted, People v Wright, 432 Mich

84, 92; 437 NW2d 603 (1989); People v Powell, 280

Mich 699, 703; 274 NW 372 (1937).

In other contexts, this Court has deﬁned the term

“aggrieved party” as “one whose legal right is invaded

by an action, or whose pecuniary interest is directly or

adversely affected by a judgment or order.” Dep’t of

Consumer & Indus Servs v Shah, 236 Mich App 381,

385; 600 NW2d 406 (1999) (quotation marks and

citations omitted). In the context of zoning, but before

e emphasize that we are not referring to the doctrine of “legislative

acquiescence,” which is highly disfavored in Michigan as an indicator of

legislative intent. See Ray v Swager, 501 Mich 52, 78 n 63; 903 NW2d

366 (2017), citing Donajkowski v Alpena Power Co, 460 Mich 243, 258;

596 NW2d 574 (1999). Under the doctrine of legislative acquiescence, a

court assumes that the Legislature tacitly approves a judicial interpre-

tation if the Legislature does not thereafter correct the interpretation by

the enactment of new legislation. By contrast, we apply here the

established precept of statutory interpretation that when our Legisla-

ture enacts a statute including language that already has been subject

to judicial interpretation, the Legislature intends the established inter-

pretation of those words.

182 325

ICH

170 [July

enactment of the MZEA, this Court interpreted and

applied

the phrase “aggrieved party” in cases arising

under former zoning enabling acts. In doing so, this

Court consistently concluded that to be a “party ag-

grieved” by a zoning decision, the party must have

“suffered some special damages not common to other

property owners similarly situated[.]” Unger v Forest

Home Twp, 65 Mich App 614, 617; 237 NW2d 582

(1975), citing Joseph v Grand Blanc Twp, 5 Mich App

566, 571; 147 NW2d 458 (1967). Generally, a neighbor-

ing landowner alleging increased trafﬁc volume, loss of

aesthetic value, or general economic loss has not suf-

ﬁciently alleged special damages to become an ag-

grieved party, Village of Franklin v Southﬁeld, 101

Mich App 554, 557; 300 NW2d 634 (1980), because

those generalized concerns are not sufﬁcient to dem-

onstrate harm different from that suffered by people in

the community generally.

In Unger, the township granted a building permit

for the construction of a condominium. The appellant

appealed the decision in the circuit court, and the

circuit court dismissed the appeal because the appel-

lant was not an “aggrieved party.” This Court afﬁrmed,

explaining that the appellant had not alleged facts

sufﬁcient to show special damages, alleging only the

possibility of increased trafﬁc on the lake and an effect

on property values. Unger, 65 Mich App at 618. This

Court concluded:

In order to have any status in court to challenge the

actions

a zoning board of appeals, a party must be

“aggrieved[.]” The plaintiff must allege and prove that he

has suffered some special damages not common to other

property owners similarly situated[.]

It has been held that the mere increase in trafﬁc in the

area is not enough to cause special damages[.] Nor is proof

2018] O

LSEN V

HIKAMING

183

of general economic and aesthetic losses sufﬁcient to show

special

damages[.] [Id. at 617 (citations omitted).]

In Western Mich Univ Bd of Trustees v Brink, 81

Mich App 99; 265 NW2d 56 (1978), the Kalamazoo

Zoning Board of Appeals granted the defendant’s peti-

tion to expand a nonconforming use and for variances

to accommodate the expansion. The plaintiff university

owned property within 300 feet of the defendant, and it

sought in the circuit court to set aside the petition.

This Court afﬁrmed the circuit court’s holding that the

plaintiff was not an “aggrieved party” entitled to chal-

lenge the board’s decision, rejecting plaintiff’s argu-

ment that because it was entitled to notice under the

former zoning legislation, it had standing to challenge

the board’s decision. Id. at 102-103. This Court also

rejected the plaintiff’s argument that it had standing

because it was an adjoining property owner, stating:

We see little reason for abandoning the general rule that

third

parties

will be permitted to appeal to the courts as

persons aggrieved if they can show that . . . their property

will suffer some special damages as a result of the decision

of the board complained of, which is not common to other

property owners similarly situated. . . . If the board’s

decision does not pose a threat of unique harm to the

neighbor, then the courts would be ill-served by a rule

allowing his suit. [Id. at 103 n 1 (quotation marks and

citations omitted).]

In V

illage of Franklin, the defendant city council

approved a site plan for a residential and commercial

development. The village and a property owner chal-

lenged the decision in the circuit court, but the circuit

court granted summary disposition to the defendant

after concluding that the plaintiffs were not aggrieved

parties under the former zoning legislation. On appeal,

this Court expressly rejected the argument of the

plaintiff property owner that she had standing because

184 325 M

ICH

170 [July

she owned land that adjoined the proposed develop-

ment,

holding that the property owner “failed to allege

or prove special damages.” Village of Franklin, 101

Mich App at 557. This Court explained:

In order for a party to have standing in court to attack

the

actions of a zoning board of appeals, the party must be

an aggrieved party, and standing cannot be based solely on

the fact that such party is a resident of the city. In the

present case, the circuit court relied on MCL 125.590,

which authorizes an appeal to circuit court by a “party

aggrieved” by a board of zoning appeals decision. We agree

with the circuit court’s decision that the present plaintiffs

lacked standing because they were not aggrieved parties.

[Id. at 556-557 (citations omitted).]

Given the long and consistent interpretation of the

phrase

“aggrieved party” in Michigan zoning jurispru-

dence, we interpret the phrase “aggrieved party” in

§ 605 of the MZEA consistently with its historical

meaning. Therefore, to demonstrate that one is an

aggrieved party under MCL 125.3605, a party must

“allege and prove that he [or she] has suffered some

special damages not common to other property owners

similarly situated[.]” Unger, 65 Mich App at 617.

Incidental inconveniences such as increased trafﬁc

congestion, general aesthetic and economic losses,

population increases, or common environmental

changes are insufﬁcient to show that a party is ag-

grieved. See id.; Joseph, 5 Mich App at 571. Instead,

there must be a unique harm, dissimilar from the

effect that other similarly situated property owners

may experience. See Brink, 81 Mich App at 103 n 1.

Moreover, mere ownership of an adjoining parcel of

land is insufﬁcient to show that a party is aggrieved,

Village of Franklin, 101 Mich App at 557-558, as is the

mere entitlement to notice, Brink, 81 Mich App at

102-103.

2018] O

LSEN V

HIKAMING

185

A review of the record in this case indicates that,

contrary

to the holding of the circuit court, appellees

failed to demonstrate that they were aggrieved parties

for purposes of the MZEA. Appellees argued before the

circuit court that they were aggrieved because (1) they

relied on the 1996 variance denial concluding that Lot

6 was unbuildable, (2) they relied on the zoning ordi-

nance to be enforced as it is written, (3) they were

entitled to receive notice of the public hearing before

the ZBA as owners of real property within 300 feet of

Lot 6, and (4) they would suffer aesthetic, ecological,

practical, and other alleged harms from the grant of

the zoning variance. These alleged injuries, however,

do not establish appellees as aggrieved parties under

MCL 125.3605. Aesthetic, ecological, and practical

harms are insufﬁcient to show “special damages not

common to other property owners similarly situated[.]”

Unger, 65 Mich App at 617. Similarly, appellees’ expec-

tations that the 1998 zoning ordinance would be inter-

preted in the same manner as the 1981 zoning ordi-

nance, or that the ZBA would arrive at the same

decision as the 1996 denial of an altogether different

variance request, were not sufﬁcient to show special

damages. Because appellees failed to show that they

suffered a unique harm different from similarly situ-

ated community members, they failed to establish that

they are parties aggrieved by the decision of the ZBA.

Although the circuit court noted that septic systems

and setback requirements speciﬁcally affected the

property of neighboring landowners, there is no evi-

dence that such damages are more than speculation or

anticipation of future harm. Presumably, appellant

would not be permitted to install a septic system that

did not satisfy all the requisite county health codes and

building requirements. Thus, assuming that appellant

obtained the requisite permits, there is nothing to

186 325 M

ICH

170 [July

support the conclusion that adjoining landowners

would

suffer the harm they anticipate.

The circuit court also held that appellees had stand-

ing to challenge the issuance of the nonuse variance

because they owned real property within 300 feet of

Lot 6 and therefore were entitled to notice under the

MZEA. MCL 125.3103 provides in relevant part:

(1) Except as otherwise provided under this act, if a

local

unit of government conducts a public hearing re-

quired under this act, the local unit of government shall

publish notice of the hearing in a newspaper of general

circulation in the local unit of government not less than 15

days before the date of the hearing.

(2) Notice required under this act shall be given as

provided under subsection (3) to the owners of property

that is the subject of the request. Notice shall also be given

as provided under subsection (3) to all persons to whom

real property is assessed within 300 feet of the property

that is the subject of the request and to the occupants of all

structures within 300 feet of the subject property regard-

less of whether the property or structure is located in the

zoning jurisdiction.

This statutory notice provision does not confer the

status

aggrieved party on appellees. In Brink, this

Court addressed and rejected this argument, explain-

ing:

Plaintiff, as an owner of land located within 300 feet of

defendant Brink’s premises, was entitled to and did re-

ceive notice of the proceedings before the Zoning Board of

Appeals . . . .

However, plaintiff argues that [notice under] § 11 not

only made plaintiff a proper party to any appeal taken by

an aggrieved party, but also gave plaintiff itself standing

to institute such an appeal, regardless of whether it was

an aggrieved party.

2018] O

LSEN V

HIKAMING

187

Plaintiff cites no authority for this construction of the

statute,

and we do not ﬁnd it persuasive. The “aggrieved

party” requirement is a standard limitation in state zon-

ing acts providing for review of zoning board of appeals

decisions. This requirement has repeatedly been recog-

nized and applied in the decisions of this Court. Had the

Legislature meant to unshoulder this burden from parties

in plaintiff’s status it could have done so in simple terms.

However, § 11 does not speak in terms of standing to seek

review, but only of notice and a right to appear . . . . We do

not read this language as broadening the class of parties

privileged to begin such reviews. [Brink, 81 Mich App at

102 (citations omitted).]

As in Brink,

appellees’ entitlement to notice under

MCL 125.3103 of the ZBA proceedings does not create

“aggrieved party” status for appellees under MCL

125.3605. Nothing in the MZEA or in Michigan’s zon-

ing jurisprudence supports reading “aggrieved party”

status into the MZEA’s notice requirement. Indeed,

this reading of the notice provision runs contrary to

this Court’s decisions establishing that mere owner-

ship of adjoining property is insufﬁcient to establish a

property owner as an aggrieved party. Accordingly, the

circuit court erred by holding that appellees achieved

status as “aggrieved parties” merely because they were

entitled to notice under MCL 125.3103.

Appellees rely on Brown v East Lansing Zoning Bd

of Appeals, 109 Mich App 688; 311 NW2d 828 (1981), to

support their “aggrieved” status, but a review of that

case indicates that this argument is misguided. In

Brown, the defendant East Lansing Zoning Board of

Appeals granted the intervenor a variance to permit

the construction of a duplex. The plaintiffs were neigh-

boring landowners who objected to the construction of

the duplex, and they appealed the decision in the

circuit court. Id. at 690-691. The circuit court held that

the plaintiffs were not parties aggrieved by the deci-

188 325 M

ICH

170 [July

sion of the board. Id

. at 692-693. On appeal, this Court

held that the neighboring landowners had standing to

appeal the defendant’s grant of the variance, explain-

ing:

In V

illage of Franklin [101 Mich App at 556], this Court

expressly relied on the fact that the appeal in that case

was taken under [MCL 125.590], which requires a party to

be “aggrieved” in order to have standing to appeal. In the

present case, on the other hand, plaintiffs’ appeal was

taken under [MCL 125.585(6)], which requires only that a

person have “an interest affected by the zoning ordinance.”

The fact that plaintiffs have an interest affected by

defendant’s decision to grant the variance is manifest in

their active opposition to the variance and their partici-

pation in the different hearings. [Id. at 699 (emphasis

added).]

Brown is

unpersuasive here because it involved the

application of a more permissive threshold for standing

under a previous enabling statute that a person have

“ ‘an interest affected by the zoning ordinance.’ ” Id. In

contrast, the cases discussed earlier—Unger, 65 Mich

App at 617; Brink, 81 Mich App at 102; and Village of

Franklin, 101 Mich App at 556-557—applied the “ag-

grieved person” threshold. Because the MZEA incorpo-

rated the “aggrieved person” threshold, see MCL

125.3605, we align our decision interpreting that lan-

guage in the MZEA with the body of caselaw interpret-

ing the “aggrieved person” threshold.

We next address appellees’ contention that appel-

lant waived the issue of standing by not raising it

before the ZBA. Appellees argue that they appeared

before the ZBA together with counsel and presented

their arguments in that forum without appellant chal-

lenging their right to do so and that appellant there-

fore waived any challenge to appellees’ standing to

pursue the appeal in the circuit court. Appellees rely on

2018] O

LSEN V

HIKAMING

189

this Court’s opinion in Glen

Lake-Crystal River

Watershed Riparians v Glen Lake Ass’n, 264 Mich App

523; 695 NW2d 508 (2005), and also in Frankling v Van

Buren Charter Twp, unpublished per curiam opinion of

the Court of Appeals, issued July 15, 2008 (Docket No.

271228). We conclude that appellees’ reliance on these

cases is misplaced.

Glen Lake did not involve an appeal from a zoning

decision of a local unit of government. Rather, Glen

Lake involved a dispute under the inland-lake-levels

part of Michigan’s Natural Resources and Environ-

mental Protection Act, MCL 324.30701. In that case,

the Glen Lake Association, which earlier had been

ordered by the trial court to operate the dam in

question so as to maintain the water level of the lake at

the ordered level, completely shut off the water ﬂow

into the Crystal River while constructing a new dam. A

group of riparian property owners and a canoe livery

on the river ﬁled suit against the Glen Lake Associa-

tion. After the trial court entered its order modifying

the established lake level, the Association appealed in

this Court, arguing that the trial court lacked subject-

matter jurisdiction because the property owners did

not have standing to bring the action. Glen Lake, 264

Mich App at 526-527. This Court recognized that the

Association’s challenge was actually a challenge to the

property owners’ legal capacity to sue and that the

Association therefore should have raised the challenge

in its ﬁrst responsive pleading in the trial court, but

instead the Association had acquiesced in the proceed-

ings, then later attempted to assert the challenge. This

Court concluded that because the Association had not

challenged plaintiffs’ legal capacity to sue in its ﬁrst

responsive pleading, it had waived the issue. Id. at

528. The Glen Lake decision was thereafter cited by

this Court in its unpublished opinion in Frankling for

190 325 M

ICH

170 [July

the proposition that “[c]hallenges to standing are

waived

if not timely raised.” Id. at 3, citing Glen Lake,

264 Mich App at 528.

We ﬁnd these cases inapplicable here. Initially, we

note that neither of these cases involved application

of the MZEA or the same language used in the MZEA.

Glen Lake did not involve an appeal from a zoning

decision of a local unit of government. Frankling

involved the application of MCL 125.293a, a provision

of the now-repealed township zoning act, which pro-

vided that “a person having an interest affected by the

zoning ordinance may appeal” a decision of the board

of zoning appeals in the circuit court. Neither Glen

Lake nor Frankling persuades us that appellant in

this case was obligated to challenge appellees’ right to

appeal in the circuit court before appellees actually

appealed.

Appellees argue that appellant should have chal-

lenged their standing when they appeared before the

ZBA. Appellant, however, is not challenging the ap-

pellees’ right to appear at the public hearing before

the ZBA and make public comments; rather, appellant

is challenging the ability of appellees to thereafter

appeal the decision of the ZBA in the circuit court.

The ZBA was not the appropriate forum to address

whether appellees were empowered to appeal the

ZBA’s decision as aggrieved parties. The question who

may seek review of the ZBA decision before the circuit

court is a question for initial determination by the

circuit court, not by the ZBA. Moreover, at the time of

the proceedings before the ZBA, the ZBA had not yet

e also note that Frankling is unpublished, and this Court’s

unpublished opinions are not binding on this Court. MCR 7.215(C);

Paris Meadows, LLC v Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d

133 (2010).

2018] O

LSEN V

HIKAMING

191

granted the variance and thus any challenge to ap-

ellees’ ability to appeal that future decision would

have been premature.

So, although appellees had a

right to participate in the ZBA’s public hearing, the

issue whether appellees were parties “aggrieved by the

decision” of the ZBA under the MZEA with the right to

appeal the decision of the ZBA in the circuit court was

a question properly raised for the ﬁrst time before the

circuit court. Indeed, it could not have been raised any

earlier.

Lastly, we address appellees’ reliance on our Supreme

Court’s opinion in Lansing Sch Ed Ass’n v Lansing Bd of

Ed, 487 Mich 349; 792 NW2d 686 (2010) (LSEA).

Appellees argue that under LSEA, they have standing

to challenge the decision of the ZBA in this case. We

disagree. LSEA involved the question whether the

teachers in that case had standing to sue the school

board for refusing to expel certain students who alleg-

edly had physically assaulted the teachers. In that case,

our Supreme Court stated:

We hold that Michigan standing jurisprudence should be

restored

a limited, prudential doctrine that is consistent

with Michigan’s longstanding historical approach to

standing. Under this approach, 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 stand-

ing. A litigant may have standing in this context if the

litigant has a special injury or right, or substantial inter-

est, that will be detrimentally affected in a manner

different from the citizenry at large or if a statutory

scheme implies that the Legislature intended to confer

standing on the litigant. [Id. at 372.]

And

while before the ZBA, appellant could not possibly know of, and

object to, the entire universe of possible parties who might in the future

appeal a future decision of the ZBA.

192 325 M

ICH

170 [July

LSEA

inapplicable here. As discussed, this case

involves not general notions of standing, that is, a

plaintiff’s right to invoke the power of the trial court

regarding a claimed injury by another party, but in-

stead application of a speciﬁc statutory provision of the

MZEA that permits appellate review of a local unit of

government’s zoning decision when review is sought by

a “party aggrieved” by the decision of that local tribu-

nal. That is, the inquiry whether there is a “legal cause

of action” that would justify ﬁnding that a plaintiff has

standing to initiate an action, see id., is not relevant

where, as here, our inquiry is whether a party is

empowered to seek appellate review under a particular

statutory scheme.

But we note that even if the LSEA analysis were

applicable here, appellees would nonetheless lack

standing because, just as they have not demonstrated

that they are “aggrieved” within the meaning of the

MZEA, they have not demonstrated “a special injury or

right, or substantial interest, that will be detrimentally

affected in a manner different from the citizenry at

large” under LSEA. See id. In either situation, a party

must establish that they have special damages different

from those of others within the community. Appellees

have not done so, asserting only the complaints of

anticipated inconvenience and aesthetic disappoint-

ment that any member of the community might assert.

has been notably observed that in LSEA, our Supreme Court

overruled the previous understanding of standing in this state, estab-

lishing in its place a “ ‘limited, prudential doctrine’ that uncoupled

standing from its constitutional moorings,” thereby creating a standing

doctrine that should itself be overruled. Ader v Delta College Bd of

Trustees, 493 Mich 887, 888 (2012) (M

ARKMAN

, J., dissenting). As Justice

ORRIGAN

in her dissent in LSEA observed, the standard for standing

established in that case is a “broad and amorphous principle that

promises to be nearly impossible to apply in a society that operates

under the rule of law.” LSEA, 487 Mich at 417 (C

ORRIGAN

, J., dissenting).

2018] O

LSEN V

HIKAMING

193

But we reiterate that the inquiry here involves not

application of concepts of standing generally, but a

speciﬁc assessment of whether, under the MZEA, ap-

pellees have established their status as aggrieved

parties empowered to challenge a ﬁnal decision of the

ZBA. We conclude that appellees are not parties “ag-

grieved” under MCL 125.3605, having failed to demon-

strate special damages different from those of others

within the community. Accordingly, appellees did not

have the ability to invoke the jurisdiction of the circuit

court, and the circuit court erred by denying the

township’s and appellant’s motion to dismiss the cir-

cuit court action. In light of our conclusion that appel-

lees were not properly able to invoke the jurisdiction of

the circuit court, it is unnecessary to address appel-

lant’s additional contentions of error in the circuit

court’s ruling.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

URRAY

, C.J., and H

OEKSTRA

, J., concurred with

ADOLA

, J.

194 325 M

ICH

170 [July

VANDERCOOK v AUTO-OWNERS INSURANCE COMPANY

ocket No. 339145. Submitted May 8, 2018, at Lansing. Decided May 24,

2018. Approved for publication July 10, 2018, at 9:00 a.m.

Ryan Vandercook brought an action in the Washtenaw Circuit

Court against Auto-Owners Insurance Company, seeking to

recover personal protection insurance (PIP) beneﬁts under the

no-fault act, MCL 500.3101 et seq., for injuries he sustained in

an automobile accident; the trial court submitted the action to

case evaluation under MCR 2.403. In his case evaluation sum-

mary, plaintiff listed the disputed beneﬁts and asserted that

defendant owed approximately $93,000 for medical expenses

and attendant care. Defendant asserted, inter alia, in its sum-

mary that it had paid all PIP beneﬁts required under the

parties’ contract. The case evaluation panel awarded plaintiff

$45,000. Plaintiff accepted the award but indicated in his signed

acceptance that he accepted the award only as to the unpaid

bills he had referred to in his case evaluation summary and that

his acceptance did not include claims related to wage loss;

defendant accepted the award. Defendant moved to settle the

order and dismiss the case under MCR 2.403(M). The court,

Carol A. Kuhnke, J., denied defendant’s motion, reasoning that

the parties’ acceptance of the case evaluation award had only

resolved the claims included in plaintiff’s case evaluation sum-

mary. Defendant appealed.

The Court of Appeals held:

1. MCR 2.403(A)(1) and (3) provide that a trial court may

submit to case evaluation any civil action in which the relief

sought is primarily money damages or division of property but

that the court may exempt such actions from case evaluation

under certain circumstances. MCR 2.403(L)(1) requires each

party to ﬁle a written acceptance or rejection of the panel’s

evaluation with the alternative dispute resolution clerk within

28 days after service of the panel’s evaluation. Even if there are

separate awards on multiple claims, the party must either

accept or reject the evaluation in its entirety as to a particular

opposing party. Under MCR 2.403(M)(1), if all the parties accept

the panel’s evaluation, judgment will be entered in accordance

2018] V

ANDERCOOK V

UTO

-O

WNERS

195

with the evaluation, unless the amount of the award is paid

ithin 28 days after being notiﬁed of the acceptances, in which

case the court must dismiss the action with prejudice. The

judgment or dismissal disposes of all claims in the action, except

for cases involving the right to PIP beneﬁts for which judgment

or dismissal shall not be deemed to dispose of claims that have

not accrued as of the date of the case evaluation hearing. MCR

2.403(M)(2), however, provides that if only a part of an action

has been submitted to case evaluation pursuant to MCR

2.403(A)(3) and all the parties accept the panel’s evaluation, the

court must enter an order disposing of only those claims. The

general purpose of case evaluation is to expedite and simplify

the ﬁnal settlement of cases to avoid a trial, not to bifurcate

litigation or decide it piecemeal. Under MCR 2.403(M)(1), the

parties’ acceptance of a case evaluation means that all claims in

the action must be disposed of by entry of judgment or dismissal.

Although MCL 2.403(L)(3) gives parties the option to accept all

or part of a case evaluation award when the case involves

multiple parties with claims against each other, in an action

involving one plaintiff and one defendant, a party must submit

all claims to case evaluation and may not limit his or her

acceptance of the case evaluation award; a party’s attempt to

limit his or her acceptance in the latter situation constitutes an

acceptance of the award for purposes of MCR 2.403, not a

rejection.

2. In this case, plaintiff’s complaint did not limit the scope of

the action to the disputed beneﬁts he listed in his case evaluation

summary. The case evaluation panel considered all the issues

raised in plaintiff’s complaint because the parties submitted the

case to case evaluation, neither party objected under MCR

2.403(C) to case evaluation, and the trial court did not exempt

under MCR 2.403(A)(3) any part of plaintiff’s action from case

evaluation. Plaintiff did not have an option under MCR

2.403(L)(3) to limit his acceptance of the case evaluation award

because the action did not involve multiple parties. Accordingly,

plaintiff’s acceptance of the case evaluation award disposed of all

PIP beneﬁt disputes that had accrued before case evaluation, and

the trial court should have entered judgment on the award or

dismissed the entire action pursuant to MCR 2.403(M)(1). As a

result, the trial court erred by allowing defendant to bifurcate his

claims in order to ﬁle another lawsuit for PIP beneﬁts that

accrued before the case evaluation hearing.

Reversed and remanded for further proceedings.

196 325

ICH

195 [July

ASE

VALUATION

WARDS —

IMITED

CCEPTANCES —

LLOWED

ITHOUT

ULTIPLE

ARTIES IN

ITIGATION

Under MCR 2.403(M)(1), the parties’ acceptance of a case evalua-

tion award means that all claims in the action are deemed

disposed of by entry of judgment or dismissal; although MCL

2.403(L)(3) gives parties the option to accept all or part of a case

evaluation award when the case involves multiple parties with

claims against each other, in an action involving one plaintiff and

one defendant, a party must submit all claims to case evaluation

and may not limit his or her acceptance of the case evaluation

award; a party’s attempt to limit his or her acceptance in the

latter situation constitutes an acceptance of the award for pur-

poses of MCR 2.403, not a rejection.

Logeman, Iafrate & Logeman, PC (by Robert

Logeman and Adrienne D. Logeman) for plaintiff.

Willingham & Coté, PC (by Kimberlee A. Hillock and

Torree J. Breen) for defendant.

Before: M

ETER

, P.J., and G

ADOLA

and T

UKEL

, JJ.

URIAM

. Defendant, Auto-Owners Insurance

Company, appeals as of right the trial court’s determi-

nation that the parties’ acceptance of the case evalua-

tion award only resolved the claims that were included

in plaintiff’s case evaluation summary. Defendant as-

serts that the trial court misinterpreted MCR 2.403

and neglected to consider controlling caselaw for its

decision. We agree and, therefore, reverse and remand.

Plaintiff, Ryan Vandercook, sued defendant for

breach of a no-fault automobile insurance policy issued

by defendant, seeking to recover no-fault personal pro-

tection insurance (PIP) beneﬁts for expenses, loss of

wages, replacement services, and other beneﬁts related

to injuries sustained by plaintiff in an automobile acci-

dent on December 23, 2014. Plaintiff also sought de-

claratory relief to determine his right to PIP beneﬁts

and defendant’s right to reduction, set offs, or reim-

2018] V

ANDERCOOK V

UTO

-O

WNERS

197

bursements of paid beneﬁts. The case was submitted for

ase evaluation. Plaintiff’s case evaluation summary

listed disputed beneﬁts and asserted that defendant

owed approximately $93,000 for medical expenses and

family-provided attendant care. Defendant stated in its

case evaluation summary that it had properly paid all

PIP beneﬁts, and defendant challenged numerous cat-

egories of beneﬁts and the speciﬁc beneﬁts demanded by

plaintiff for, among other things, medical services, at-

tendant care, mileage, and wage loss. Defendant further

contended that it had overpaid for services, entitling it

to reimbursement. Defendant also claimed a right to

setoff because plaintiff received government-provided

beneﬁts and had the right to receive other government

beneﬁts that he refused to take.

The case evaluation panel considered the case and

unanimously awarded plaintiff $45,000. Plaintiff ac-

cepted the award but typed into the form that he

accepted the award “as to beneﬁts referenced in

Plaintiff’s Case Evaluation Summary only. Not in-

cluding wage loss.” Defendant also accepted the

award, which—because both parties had accepted—had

the effect of settling the case for that amount. See MCR

2.403(M). After notiﬁcation of the parties’ mutual accep-

tance, defendant moved for clariﬁcation from the trial

court as to whom the proper payees were for payment of

the case evaluation award.

Plaintiff responded by

guing that he had limited his case evaluation ac-

the time, this Court’s ruling in Covenant Med Ctr, Inc v State

Farm Mut Auto Ins Co, 313 Mich App 50, 54; 880 NW2d 294 (2015), rev’d

500 Mich 191 (2017), was in effect and provided that medical providers

had standing to bring a direct claim against an insurer for payment of

no-fault beneﬁts. Defendant explained to the trial court that it did not

want to pay plaintiff and still remain liable to plaintiff’s medical

providers if it did so. The Supreme Court did not reverse Covenant until

months later.

198 325 M

ICH

195 [July

ceptance to the unpaid bills he had referred to in his

ase evaluation summary. Plaintiff offered no legal

argument and cited no rule, statute, or caselaw for his

position.

At the hearing on defendant’s motion, defendant

argued that MCR 2.403 clearly provides that mutual

acceptance of a case evaluation award resolves all

claims in an action through the date of the case

evaluation. Plaintiff countered that he had accepted

the case evaluation award with a limited acceptance,

which purportedly precluded defendant from refusing

to pay plaintiff’s providers for those beneﬁts that had

accrued and not been in dispute before the date of case

evaluation. The trial court denied defendant’s motion,

ruling that only the claims or damages presented in

plaintiff’s case evaluation summary were subject to the

court rules regarding case evaluation sanctions. The

trial court reasoned that “[n]o-fault cases are different

because the claim continues to accrue the entire time

that the case is pending in some—in some circum-

stances . . . .” However, the court did not rely on or

even address the portion of MCR 2.403(M)(1) that

contains an exception for claims involving PIP beneﬁts

that have not accrued at the time of the case evalua-

tion. Consequently, the parties were unable to agree on

a proposed order to submit to the trial court for entry

because defendant contended that MCR 2.403 and

controlling caselaw did not permit a party to limit his

or her acceptance to anything other than the entirety

of the party’s claims asserted in the lawsuit.

The parties’ failure to agree on the order prompted

them each to ﬁle motions. Plaintiff moved to set aside

the case evaluation, and defendant moved to settle the

order and dismiss the case pursuant to MCR 2.403(M).

At some point, defendant issued and sent plaintiff a

check in the amount of the case evaluation award. At

2018] V

ANDERCOOK V

UTO

-O

WNERS

199

the hearing on the parties’ competing motions, plaintiff

announced

that on the basis of his limited acceptance

of the panel’s decision, he had ﬁled a separate lawsuit

for the PIP beneﬁts that he claimed were not resolved

by the case evaluation award. Defendant argued that

the court rule and controlling caselaw did not permit

plaintiff’s separate lawsuit. The trial court ultimately

ruled against defendant, reasoning that the parties’

case evaluation acceptance had only resolved the

claims included in plaintiff’s case evaluation summary.

Defendant now appeals.

“The proper interpretation and application of a court

rule is a question of law, which this Court reviews de

novo.” Haliw v Sterling Hts, 471 Mich 700, 704; 691

NW2d 753 (2005). The interpretation and application

of a court rule is governed by the principles of statutory

construction, commencing with an examination of the

plain language of the court rule. Id. at 704-705. “The

intent of the rule must be determined from an exami-

nation of the court rule itself and its place within the

structure of the Michigan Court Rules as a whole.” Id.

at 706. This Court has explained:

The goal of court rule interpretation is to give effect to the

intent

the drafter, the Michigan Supreme Court. The

Court must give language that is clear and unambiguous

its plain meaning and enforce it as written. Each word,

unless deﬁned, is to be given its plain and ordinary

meaning, and the Court may consult a dictionary to

determine that meaning. [Varran v Granneman, 312 Mich

App 591, 599; 880 NW2d 242 (2015) (citations omitted).]

Defendant argues that the trial court failed both to

applicable law and to apply MCR 2.403 correctly.

Defendant argues that the trial court, in so doing,

denied defendant the ﬁnality that case evaluation

should afford the parties when they mutually submit

200 325 M

ICH

195 [July

the case for case evaluation and accept the case evalu-

ation

panel’s decision. We agree.

MCR 2.403, in relevant part, provides:

(A) Scope and Applicability of Rule.

(1) A court may submit to case evaluation any civil

action in which the relief sought is primarily money

damages or division of property.

* * *

(3) A court may exempt claims seeking equitable relief

from case evaluation for good cause shown on motion or by

stipulation of the parties if the court ﬁnds that case

evaluation of such claims would be inappropriate.

* * *

(I) Submission of Summary and Supporting Docu-

ments.

* * *

(3) The case evaluation summary shall consist of a

concise summary setting forth that party’s factual and

legal position on issues presented by the action. . . .

(K) Decision.

* * *

(2) Except as provided in subrule (H)(3), the evaluation

must include a separate award as to each plaintiff’s claim

against each defendant and as to each cross-claim, coun-

terclaim, or third-party claim that has been ﬁled in the

action. For the purpose of this subrule, all such claims

ﬁled by any one party against any other party shall be

treated as a single claim.

* * *

2018] V

ANDERCOOK V

UTO

-O

WNERS

201

(L) Acceptance or Rejection of Evaluation.

(1)

Each party shall ﬁle a written acceptance or rejec-

tion of the panel’s evaluation with the [alternative dispute

resolution] clerk within 28 days after service of the panel’s

evaluation. Even if there are separate awards on multiple

claims, the party must either accept or reject the evalua-

tion in its entirety as to a particular opposing party. The

failure to ﬁle a written acceptance or rejection within 28

days constitutes rejection.

* * *

(M) Effect of Acceptance of Evaluation.

(1) If all the parties accept the panel’s evaluation,

judgment will be entered in accordance with the evalua-

tion, unless the amount of the award is paid within 28

days after notiﬁcation of the acceptances, in which case

the court shall dismiss the action with prejudice. The

judgment or dismissal shall be deemed to dispose of all

claims in the action and includes all fees, costs, and

interest to the date it is entered, except for cases involving

rights to personal protection insurance beneﬁts under

MCL 500.3101 et seq., for which judgment or dismissal

shall not be deemed to dispose of claims that have not

accrued as of the date of the case evaluation hearing.

(2) If only a part of an action has been submitted to case

evaluation pursuant to subrule (A)(3) and all of the parties

accept the panel’s evaluation, the court shall enter an

order disposing of only those claims.

The general purpose of case evaluation under MCR

2.403

“is

to expedite and simplify the ﬁnal settlement

of cases to avoid a trial.” Magdich & Assoc, PC v Novi

Dev Assoc LLC, 305 Mich App 272, 276; 851 NW2d 585

(2014) (quotation marks and citation omitted). Fur-

ther, acceptance of a case evaluation award serves as a

ﬁnal adjudication and is therefore binding on the

parties, similar to a consent judgment or settlement

agreement. Id. at 276-277.

202 325 M

ICH

195 [July

In C

AM Constr v Lake Edgewood Condo Ass’n, 465

Mich 549, 554-555; 640 NW2d 256 (2002), the Michigan

Supreme Court considered the effect of the parties’

acceptance of a case evaluation award pursuant to MCR

2.403(M) on claims that allegedly had not been pre-

sented in case evaluation. The plaintiff’s complaint

alleged four breach-of-contract claims against the defen-

dant, with the fourth based on a separate contract. Id.

at 551. The trial court summarily dismissed the fourth

count. Id. The case then went to case evaluation, and

the parties accepted the award. Id. at 551-552. Follow-

ing case evaluation, the plaintiff contended that it had

reserved the right to appeal the summary dismissal of

the fourth count and that the parties’ case evaluation

acceptance resolved only the ﬁrst three claims. Id. at

552. The Michigan Supreme Court held that pursuant

to MCR 2.403(M)(1), the parties’ acceptance resolved all

the plaintiff’s claims in the action—even those that had

been summarily disposed. Id. at 555. The Court ex-

plained that “allowing bifurcation of the claims within

such actions, as plaintiff suggests, would be directly

contrary to the language of the rule.” Id.

Importantly, the CAM Constr Court overruled this

Court’s earlier decisions that had construed MCR

2.403(M)(1) as allowing submission of less than all

issues to case evaluation.

Id.

at 556, 557. The Court

explained

that “[a]llowing the parties involved in the

case evaluation process to make such a showing has no

basis in the court rule.” Id. at 556. The Court summa-

rized that the “unambiguous language [of MCR

2.403(M)(1)] evidences our desire to avoid bifurcation

of civil actions submitted to case evaluation.” Id. at

Those

Court of Appeals cases interpreted the prior version of MCR

2.403, which the CAM Constr Court described as being “less detailed”

than the present version. CAM Constr, 465 Mich at 556.

2018] V

ANDERCOOK V

UTO

-O

WNERS

203

557. Simply put, “[i]f all parties accept the panel’s

evaluation,

the case is over.” Id. As this Court has

noted, “[T]he purpose of case evaluation is to resolve

the case, not to bifurcate litigation or decide it piece-

meal.” Magdich & Assoc, 305 Mich App at 280.

In this case, the parties agreed to submit the case to

case evaluation. Neither party objected to case evalu-

ation under MCR 2.403(C).

Further, the trial court did

not

exempt any aspect of plaintiff’s action from case

evaluation under MCR 2.403(A)(3). Therefore, the case

evaluation panel had the entire case for its consider-

ation and determination.

We hold that plaintiff’s claims in this action did not

consist of a dispute over only some, but not all, no-fault

PIP beneﬁts. Plaintiff’s complaint nowhere limited the

scope of the adjudication to a speciﬁc set or list of

disputed beneﬁts. In Count I, plaintiff sought money

damages for payment of all expenses for his care,

recovery, and rehabilitation; for wage loss; and for

replacement services and other PIP beneﬁts. In Count

II, plaintiff sought a determination of his right to

wage-loss beneﬁts, replacement-service expenses,

medical expenses, no-fault interest, attorney fees, and

other beneﬁts allegedly owed by defendant. Plaintiff

also sought determination by the trial court of whether

defendant could reduce, set off, or seek reimbursement

for overpaid PIP beneﬁts. Plaintiff’s complaint plainly

did not limit his civil action to the beneﬁts he listed in

his case evaluation summary.

Plaintiff’s contention that MCR 2.403 permitted him

to limit his acceptance lacks merit. As the Supreme

“MCR

2.403(C)(1) allows a party to ﬁle a motion to remove the matter

from case evaluation.” Magdich & Assoc, 305 Mich App at 280 (emphasis

added). Thus, even this provision would not allow plaintiff to only

submit some of his nonequitable claims to case evaluation.

204 325 M

ICH

195 [July

Court’s decision in CAM

Constr makes clear, MCR

2.403 does not permit a party in an action involving

one plaintiff against one defendant to (1) submit less

than all of his or her claims to case evaluation and (2)

limit any acceptance. Only in cases involving multiple

parties with claims against each other does MCR

2.403(L)(3) give the parties the option to accept all or

part of a case evaluation award. The form used for

acceptance and rejection also cannot be construed to

permit limited acceptances like that attempted by

plaintiff. The form very clearly tracks MCR 2.403(L).

Therefore, plaintiff had no option or right to limit his

acceptance of the case evaluation award.

MCR 2.403(M)(1) unambiguously describes the ef-

fect of acceptance of a case evaluation award. Upon

acceptance by both parties, the trial court must enter

judgment or dismiss the action with prejudice, and the

judgment or dismissal “shall be deemed to dispose of

all claims in the action . . . .” (Emphasis added.) How-

ever, for no-fault cases involving the right to PIP

beneﬁts, the trial court’s judgment may not dispose of

claims that have not accrued as of the date of the case

evaluation hearing. But all claims which have accrued

at the time of the case evaluation are, as a matter of

law, disposed of pursuant to MCR 2.403(M)(1). Accord-

ingly, plaintiff’s acceptance of the case evaluation

award in this case disposed of all disputes over PIP

beneﬁts that had accrued before the date of the case

evaluation.

Therefore, the trial court improperly allowed plain-

tiff to limit his acceptance of the case evaluation award

in contravention of the plain language of MCR 2.403.

Upon both parties’ acceptance of the case evaluation

award, MCR 2.403(M)(1) required the trial court to

enter judgment or dismiss the entire action—not re-

2018] V

ANDERCOOK V

UTO

-O

WNERS

205

view plaintiff’s case evaluation summary and allow

him

to bifurcate his claims so that he could ﬁle another

lawsuit for PIP beneﬁts that had accrued before the

date of the case evaluation hearing.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction. Defen-

dant, as the prevailing party, may tax costs pursuant to

MCR 7.219.

ETER

, P.J., and G

ADOLA

and T

UKEL

, JJ., concurred.

206 325 M

ICH

195 [July

In re RELIABILITY

PLANS OF ELECTRIC UTILITIES

FOR 2017–2021

Docket Nos. 340600 and 340607. Submitted May 9, 2018, at Lansing.

Decided July 12, 2018, at 9:00 a.m. Reversed and remanded 505

Mich ___ (2020).

In these consolidated appeals, the Association of Businesses Advo-

cating Tariff Equity (ABATE) (Docket No. 340600) and Energy

Michigan, Inc. (Docket No. 340607) appealed an order of the

Michigan Public Service Commission (MPSC) implementing MCL

460.6w. The MPSC order imposed a local clearing requirement on

individual alternative electric suppliers. The local clearing require-

ment represented the amount of capacity resources that were

required to be in the local resource zone in which the electric

supplier’s demand was served. Before MCL 460.6w was enacted,

the MPSC did not impose a local clearing requirement on indi-

vidual alternative electric suppliers; the Midcontinent Indepen-

dent System Operator (MISO)—the regional transmission organi-

zation responsible for managing the transmission of electric power

in a large geographic area—applied the local clearing requirement

as a whole to the geographic area covered by the requirement.

ABATE and Energy Michigan challenged the MPSC’s interpreta-

tion of MCL 460.6w as erroneous, and Energy Michigan further

asserted that the MPSC order improperly imposed new rules that

were not promulgated in compliance with the Administrative

Procedures Act (APA), MCL 24.201 et seq.

The Court of Appeals held:

1. An MPSC decision is ripe for review if it is a threshold

determination and resolution of the issue is not dependent on any

further decision by the MPSC. Here, the MPSC concluded that a

locational requirement on individual alternative electric suppliers

was allowed under MCL 460.6w to ensure that all providers

contribute to long-term resource adequacy in Michigan. That

decision was a threshold determination ripe for consideration

because it was not dependent on any further decision by the MPSC.

2. According to the MPSC, MCL 460.6w mandates that it

create capacity obligations with a locational requirement and the

MPSC, in setting locational capacity obligations, is allowed to

require a demonstration by individual electric providers that the

2018] In

re P

LANS OF

LECTRIC

TILITIES

207

resources that they use to meet their capacity obligations meet a

ocal clearing requirement. But while MCL 460.6w(8)(c) requires

the MPSC to determine the local clearing requirement in order to

determine capacity obligations, it does not speciﬁcally authorize

the MPSC to impose the local clearing requirement on individual

alternative electric suppliers, and the MPSC’s authority cannot be

extended by inference. Moreover, reading the statute as a whole

leads to the conclusion that the MPSC must impose a local clearing

requirement consistently with MISO—that is, on a zonal basis—

and not on individual alternative electric suppliers. MCL

460.6w(3) directs the MPSC to establish a capacity charge that a

provider must pay if it fails to satisfy the capacity obligations as

required under MCL 460.6w(8). MCL 460.6w(6), however, directs

that no capacity charge be assessed against an alternative electric

supplier who demonstrates that it can meet its capacity obligations

through owned or contractual rights to any resource that the MISO

allows to meet the capacity obligation of the electric provider. The

parties acknowledge that MISO permits an alternative electric

supplier to meet its capacity obligations, including the local clear-

ing requirement, by owning or contracting for capacity resources

located outside the applicable local resource zone and does not

require each alternative electric supplier to demonstrate a propor-

tionate share of the local clearing requirement. Similarly, MCL

460.6w(6) constrains the MPSC from assessing any capacity

charge in a manner that conﬂicts with a federal resource adequacy

tariff, and MCL 460.6w(8)(c) requires that the MPSC set any

planning reserve margin or local clearing requirements consis-

tently with federal reliability requirements. These provisions mili-

tate against the MPSC’s imposition of any local clearing require-

ments beyond what MISO has established, and instead these

provisions impose on the MPSC a continuing obligation to observe

MISO’s general practice of imposing local clearing requirements on

a zonal, not an individual, basis. In addition, even if the language

of MCL 460.6w was ambiguous and it was necessary to look

outside the statute to properly determine legislative intent, the

MPSC order conﬂicted with the legislative intent given that the

Legislature rejected statutory language imposing a local clearing

requirement on individual alternative electric suppliers in favor of

the language adopting the MISO method. Where the Legislature

has considered certain language and rejected it in favor of other

language, the resulting statutory language should not be held to

authorize what the Legislature explicitly rejected.

3. An agency should resort to formal rulemaking under the

APA when establishing policies that do not merely interpret or

explain the statutes or rules from which the agency derives its

208 325

ICH

207 [July

authority but rather establish the substantive standards that

implement

a program. Energy Michigan’s allegations that the

MPSC engaged in improper rulemaking primarily related to the

MPSC’s imposition of a local clearing requirement on individual

electric suppliers. Because the statute does not provide the MPSC

with the authority to impose a local clearing requirement on

individual alternative electric suppliers, it was unnecessary to

reach the question whether the MPSC’s decision concerning the

local clearing requirement resulted in improperly promulgated

rules.

Reversed and remanded.

UBLIC

TILITIES —

LTERNATIVE

LECTRIC

UPPLIERS —

MPOSITION OF A

OCAL

LEARING

EQUIREMENT BY THE

UBLIC

ERVICE

OMMISSION

The Michigan Public Service Commission (MPSC) has no power

that is not expressly conferred by clear and unmistakable statu-

tory language; determining that the MPSC may impose a local

clearing requirement on individual alternative electric suppliers

under MCL 460.6w would require an improper inference of such

authority.

Clark Hill PLC (by Robert

A. Strong and Michael J.

Pattwell) for the Association of Businesses Advocating

Tariff Equity.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, B. Eric Restuccia, Chief Legal Coun-

sel, Ann M. Sherman, Assistant Solicitor General, and

Steven D. Hughey, Spencer A. Sattler, and Lauren D.

Donofrio, Assistant Attorneys General, for the Michigan

Public Service Commission.

Kelly M. Hall and Gary A. Gensch, Jr., for Consum-

ers Energy Company.

Varnum, LLP (by Laura Chappelle, Tim Lundgren,

and Brion B. Doyle) for Energy Michigan, Inc.

Before: M

ETER

, P.J., and G

ADOLA

and T

UKEL

, JJ.

2018] In re P

LANS OF

LECTRIC

TILITIES

209

ADOLA

, J. In Docket No. 340600, appellant Associa-

tion of Businesses Advocating Tariff Equity (ABATE)

appeals as of right the ﬁnal order of appellee Michigan

Public Service Commission (MPSC) in its Case No.

U-18197. In Docket No. 340607, appellant Energy

Michigan, Inc. (Energy Michigan)

appeals as of right

the

same order of the MPSC. In each of these consoli-

dated cases,

appellants contend that the MPSC erred

determining that it is empowered by the Legislature

under 2016 PA 341 (Act 341) to impose a local clearing

requirement on individual alternative electric suppli-

ers. In Docket No. 340607, Energy Michigan addition-

ally contends that the MPSC’s order purports to im-

pose new rules on electric providers in this state

without the required compliance with Michigan’s Ad-

ministrative Procedures Act (APA), MCL 24.201 et seq.

We reverse and remand.

I. BACKGROUND AND FACTS

At the end of 2016, our Legislature enacted new

electric

utility

legislation that included Act 341. That

ABA

TE describes itself as “an interest group of large energy users

representing its members before regulatory and governmental bodies

and other organizations that affect Michigan’s energy pricing, reliabil-

ity, and terms and conditions of service.” ABATE Energy, About ABATE

<https://abate-energy.org> (accessed May 8, 2018) [https://perma.cc/

QE6D-DNKD].

Energy Michigan describes itself as a group devoted to the protection

and promotion of “alternative and independent power supply, cogenera-

tion, advanced energy industries and their customers . . . .” Energy

Michigan, About Energy Michigan, Inc. <https://energymichigan.org>

(accessed May 8, 2018) [https://perma.cc/LW4E-8UNB]. Energy Michi-

gan intervenes in Michigan Public Service Commission cases affecting

those industries. Id.

These appeals were consolidated on this Court’s own motion. In re

Reliability Plans of Electric Utilities for 2017–2021, unpublished order

of the Court of Appeals, entered November 15, 2017 (Docket Nos. 340600

and 340607).

210 325

ICH

207 [July

act added, among other statutory sections, MCL

460.6w

. These appeals arise from an order issued by

the MPSC as part of its implementation of MCL

460.6w.

By way of background, Michigan’s Legislature pre-

viously enacted what was known as the Customer

Choice and Electricity Reliability Act, MCL 460.10 et

seq., as enacted by 2000 PA 141 and 2000 PA 142, to

“further the deregulation of the electric utility indus-

try.” In re Application of Detroit Edison Co for 2012

Cost Recovery Plan, 311 Mich App 204, 207 n 2; 874

NW2d 398 (2015). That act permitted customers to buy

electricity from alternative electric suppliers instead of

limiting customers to purchasing electricity from in-

cumbent utilities, such as appellee Consumers Energy

Company (Consumers). Consumers Energy Co v Pub

Serv Comm, 268 Mich App 171, 173; 707 NW2d 633

(2005). Among the purposes of the act, as amended by

Act 341, is the promotion of “ﬁnancially healthy and

competitive utilities in this state.” MCL 460.10(b).

Also by way of background, the Midcontinent Inde-

pendent System Operator (MISO) is the regional

transmission organization responsible for managing

the transmission of electric power in a large geographic

area that spans portions of Michigan and 14 other

states. To accomplish this, MISO combines the trans-

mission facilities of several transmission owners into a

single transmission system. In addition to the trans-

mission of electricity, MISO’s functions include capac-

ity resource planning. MISO has established ten local

resource zones; most of Michigan’s Lower Peninsula is

located in MISO’s Local Resource Zone 7, while the

Upper Peninsula is located in MISO’s Local Resource

Zone 2.

2018] In re P

LANS OF

LECTRIC

TILITIES

211

Each year MISO establishes for each alternative

electric

supplier in Michigan the “planning reserve

margin requirement.”

MISO also establishes the “lo-

cal

clearing requirement.”

Under MISO’s system,

there generally are no geographic limitations on the

capacity resources that may be used by a particular

supplier to meet its planning reserve margin require-

ment. That is, MISO does not impose the local clearing

requirement on alternative electric suppliers individu-

ally but instead applies the local clearing requirement

to the zone as a whole. Each individual electricity

supplier is not required by MISO to demonstrate that

its energy capacity is located within Michigan, as long

as the zone as a whole demonstrates that it has

sufﬁcient energy generation located within Michigan

to meet federal requirements.

MISO also serves as a mechanism for suppliers to

buy and sell electricity capacity through an auction.

This allows for the exchange of capacity resources

across energy providers and resource zones. The MISO

auction is conducted each year for the purchase and

sale of capacity for the upcoming year. The auction

“planning reserve margin requirement” is

the amount of capacity equal to the forecasted coincident peak

demand that occurs when the appropriate independent system

operator footprint peak demand occurs plus a reserve margin that

meets an acceptable loss of load expectation as set by the

commission or the appropriate independent system operator

under subsection (8). [MCL 460.6w(12)(e).]

A “local clearing requirement” is

the amount of capacity resources required to be in the local

resource zone in which the electric provider’s demand is served to

ensure reliability in that zone as determined by the appropriate

independent system operator for the local resource zone in which

the electric provider’s demand is served and by the commission

under subsection (8). [MCL 460.6w(12)(d).]

212 325

ICH

207 [July

allows suppliers to buy and sell electricity capacity and

acquire

enough capacity to meet their planning reserve

margin requirement. The auction also allows each zone

as a whole to meet the zone’s local clearing require-

ment.

At the end of 2016, our Legislature enacted Act 341,

in part adding MCL 460.6w,

which imposes resource

adequacy

requirements on electric service providers in

Michigan and imposes certain responsibilities on the

MPSC. Under MCL 460.6w(2), the MPSC is required

under certain circumstances to establish a “state reli-

ability mechanism.” That subsection provides, in rel-

evant part:

If, by September 30, 2017, the Federal Energy Regulatory

Commission

does not put into effect a resource adequacy

tariff that includes a capacity forward auction or a pre-

vailing state compensation mechanism, then the commis-

sion shall establish a state reliability mechanism under

subsection (8). [MCL 460.6w(2).]

The parties agree that because the Federal Energy

Regulatory

Commission

did not put into effect the

MISO-proposed tariff, the MPSC is required by § 6w(2)

to establish a state reliability mechanism. A “state

reliability mechanism” is deﬁned by the statute as “a

plan adopted by the commission in the absence of a

prevailing state compensation mechanism to ensure

reliability of the electric grid in this state consistent

with subsection (8).” MCL 460.6w(12)(h). The state

reliability mechanism is to be established consistently

with § 6w(8), which provides, in relevant part, that the

MPSC shall:

(b) Require . . . that each alternative electric supplier,

cooperative

electric utility, or municipally owned electric

2016

PA 341, effective April 20, 2017.

2018] In re P

LANS OF

LECTRIC

TILITIES

213

utility demonstrate to the commission, in a format deter-

mined

by the commission, that for the planning year

beginning 4 years after the beginning of the current

planning year, the alternative electric supplier, coopera-

tive electric utility, or municipally owned electric utility

owns or has contractual rights to sufﬁcient capacity to

meet its capacity obligations as set by the appropriate

independent system operator, or commission, as appli-

cable. One or more municipally owned electric utilities

may aggregate their capacity resources that are located in

the same local resource zone to meet the requirements of

this subdivision. One or more cooperative electric utilities

may aggregate their capacity resources that are located in

the same local resource zone to meet the requirements of

this subdivision. A cooperative or municipally owned elec-

tric utility may meet the requirements of this subdivision

through any resource, including a resource acquired

through a capacity forward auction, that the appropriate

independent system operator allows to qualify for meeting

the local clearing requirement. A cooperative or munici-

pally owned electric utility’s payment of an auction price

related to a capacity deﬁciency as part of a capacity

forward auction conducted by the appropriate indepen-

dent system operator does not by itself satisfy the resource

adequacy requirements of this section unless the appro-

priate independent system operator can directly tie that

provider’s payment to a capacity resource that meets the

requirements of this subsection. By the seventh business

day of February in 2018, an alternative electric supplier

shall demonstrate to the commission, in a format deter-

mined by the commission, that for the planning year

beginning June 1, 2018, and the subsequent 3 planning

years, the alternative electric supplier owns or has con-

tractual rights to sufﬁcient capacity to meet its capacity

obligations as set by the appropriate independent system

operator, or commission, as applicable. If the commission

ﬁnds an electric provider has failed to demonstrate it can

meet a portion or all of its capacity obligation, the com-

mission shall do all of the following:

214 325

ICH

207 [July

(i) For alternative electric load, require the payment of

capacity charge that is determined, assessed, and ap-

plied in the same manner as under subsection (3) for that

portion of the load not covered as set forth in subsections

(6) and (7). [MCL 460.6w(8).]

Thus, § 6w(8)(b) requires each alternative electric

supplier

, cooperative electric utility, and municipally

owned electric utility to demonstrate to the MPSC that

it has sufﬁcient capacity to meet its “capacity obliga-

tions.” The statute does not deﬁne “capacity obliga-

tions,” but in § 6w(8)(c), the statute provides that:

MPSC

shall] request that the appropriate independent

system operator provide technical assistance in determin-

ing the local clearing requirement and planning reserve

margin requirement. If the appropriate independent sys-

tem operator declines, or has not made a determination by

October 1 of that year, the commission shall set any

required local clearing requirement and planning reserve

margin requirement, consistent with federal reliability

requirements. [MCL 460.6w(8)(c).]

Section 6w(8)(b) also provides that municipally

owned

electric

utilities are permitted to “aggregate

their capacity resources that are located in the same

local resource zone to meet the requirements of this

subdivision” and that cooperative electric utilities are

permitted to “aggregate their capacity resources that

are located in the same local resource zone to meet the

requirements of this subdivision.” Section 6w(8)(b) also

permits a cooperative or municipally owned electric

utility to “meet the requirements of this subdivision

through any resource, including a resource acquired

through a capacity forward auction, that [MISO] al-

lows to qualify for meeting the local clearing require-

ment.” Section 6w(8)(b), however, does not include a

similar provision for alternative electric suppliers and

2018] In re P

LANS OF

LECTRIC

TILITIES

215

is, in fact, silent as to whether alternative electric

suppliers

may aggregate their capacity resources that

are located in the same local resource zone to meet the

requirements of the subdivision.

MCL 460.6w(3) directs the MPSC to establish a

capacity charge that a provider must pay if it fails to

satisfy the capacity obligations established under

§ 6w(8). Section 6w(6), however, directs that a capacity

charge shall not be assessed against an alternative

electric supplier who demonstrates

that it can meet its capacity obligations through owned or

contractual

rights to any resource that the appropriate

independent system operator

[7]

allows to meet the capacity

obligation of the electric provider. The preceding sentence

shall not be applied in any way that conﬂicts with a

federal resource adequacy tariff, when applicable. [MCL

460.6w(6).]

After the enactment of Act 341, the MPSC worked

collaboratively in

a workgroup process to implement

MCL 460.6w. On September 15, 2017, the MPSC

issued an order in its Case No. U-18197, imposing new

requirements on alternative electric suppliers as part

of its implementation of MCL 460.6w. In that order, the

MPSC determined that MCL 460.6w authorizes it to

impose a local clearing requirement on individual

alternative electric suppliers.

ABATE and Energy

MCL

460.6w(12)(a) deﬁnes the “appropriate independent system

operator” as MISO.

This decision was made in the context of competing interests

between large public utilities, which contend that alternative electric

suppliers are not investing in the energy infrastructure of Michigan and

therefore are not contributing to long-term energy reliability in the

state, and smaller alternative electric suppliers, which provide lower-

cost electricity to customers by relying in part on capacity generated

outside of Michigan. Large public utilities contend that their costs are

higher because of the investment they make in long-term energy

216 325

ICH

207 [July

Michigan challenge this interpretation of MCL 460.6w

erroneous, while Consumers supports the decision

of the MPSC. Energy Michigan further challenges the

new requirements imposed by the MPSC, contending

that the requirements did not comply with the APA and

were thus improperly implemented.

II. ANALYSIS

RIPENESS

As an initial consideration, we address the assertion

by the MPSC and Consumers that the issue in these

appeals related to the imposition of a local clearing

requirement is not yet ripe for resolution by this Court.

The MPSC and Consumers contend that the Septem-

ber 15, 2017 order of the MPSC in Case No. U-18197

did not impose a local clearing requirement on indi-

vidual alternative electric suppliers but instead merely

announced that the MPSC has the authority to do so.

The MPSC and Consumers assert that until the MPSC

takes the ﬁnal step of imposing a speciﬁc local clearing

requirement on an individual alternative electric sup-

plier, the question whether the MPSC has the author-

ity to do so is not ripe for review. We disagree.

The ripeness doctrine requires that an actual injury

be sustained by the plaintiff. Van Buren Charter Twp v

Visteon Corp, 319 Mich App 538, 554; 904 NW2d 192

(2017). “The doctrine of ripeness is designed to prevent

‘the adjudication of hypothetical or contingent claims

before an actual injury has been sustained.’ ” Hunting-

ton Woods v Detroit, 279 Mich App 603, 615; 761 NW2d

production in Michigan, while alternative electric suppliers contend

that

if they are required to rely almost exclusively on capacity produced

within the state, they will be forced to leave the market in Michigan and

consumer choice for electricity will effectively be at an end.

2018] In

re P

LANS OF

LECTRIC

TILITIES

217

127 (2008), quoting Mich

Chiropractic Council v

Comm’r of the Ofﬁce of Fin & Ins Servs, 475 Mich 363,

371 n 14; 716 NW2d 561 (2006), overruled on other

grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed,

487 Mich 349, 371 (2010). “A claim is not ripe if it rests

upon contingent future events that may not occur as

anticipated, or may not occur at all.” Citizens Protect-

ing Michigan’s Constitution v Secretary of State, 280

Mich App 273, 282; 761 NW2d 210 (2008).

To determine whether an issue is ripe for review, we

assess “whether the harm asserted has matured sufﬁ-

ciently to warrant judicial intervention.” People v

Bosca, 310 Mich App 1, 56; 871 NW2d 307 (2015)

(quotation marks and citations omitted); see also Dep’t

of Social Servs v Emmanuel Baptist Preschool, 434

Mich 380, 412 n 48; 455 NW2d 1 (1990) (C

AVANAGH

, J.,

concurring). In making this assessment, this Court

must balance any uncertainty about whether a party

will actually suffer future injury against the potential

hardship of denying anticipatory relief. People v Robar,

321 Mich App 106, 128; 910 NW2d 328 (2017). This

Court will ﬁnd an issue ripe for review when it is a

“threshold determination,” the resolution of which is

not dependent on any further decision by the MPSC.

Citizens, 280 Mich App at 283; see also Mich United

Conservation Clubs v Secretary of State, 463 Mich 1009

(2001) (holding that a controversy was ripe for review

when it involved a “threshold determination” of

whether petitions met constitutional prerequisites and

was not dependent on the Board of Canvassers’ count-

ing or consideration of petitions).

A review of the MPSC’s September 15, 2017 order

demonstrates that the MPSC has not merely an-

nounced that it has the authority to impose a local

clearing requirement on individual alternative electric

218 325 M

ICH

207 [July

suppliers; it has announced its decision to assert that

uthority, leaving open only the methodology of exercis-

ing that authority. In its earlier June 15, 2017 order in

Case No. U-18197, and reiterated in its September 15,

2017 order, the MPSC stated that “the Commission

ﬁnds that a locational requirement is required under

Section 6w and that a locational requirement applicable

to individual LSEs [load serving entities] is allowed as

part of the capacity obligations set forth by the Commis-

sion pursuant to Section 6w in order to ensure all

providers contribute to long-term resource adequacy in

the state.” The MPSC’s September 15, 2017 order fur-

ther stated that “a properly designed locational require-

ment applied to individual load serving entities as part

of a demonstration that capacity obligations have been

met is consistent with [the] requirements [in the stat-

ute, the MISO tariff, and applicable caselaw].” In light

of these determinations by the MPSC, the alleged harm

in these cases does not rest on contingent future events

that may not occur as anticipated or at all; the decision

to apply a locational requirement to individual alterna-

tive electric suppliers has already been made. The only

variable remaining is the methodology the MPSC will

employ. Thus, there is little uncertainty about whether

the asserted harm will occur, and we weigh that factor

against the potential hardship of denying anticipatory

relief. Robar, 321 Mich App at 128.

We conclude that the harm asserted in these cases

warrants judicial intervention. As in Citizens, the deci-

sion of the MPSC in its September 15, 2017 order—that

it has the authority to impose a local clearing require-

ment on individual alternative electric suppliers—is a

“threshold determination” ripe for our consideration

given that the resolution of the issue is not dependent

on any further decision by the MPSC. Citizens, 280 Mich

2018] In re P

LANS OF

LECTRIC

TILITIES

219

App at 283; see also M

ich United Conservation Clubs,

463 Mich 1009. We therefore hold that the question

whether the MPSC erred by determining that it has

statutory authority to impose a local clearing require-

ment on individual alternative electric suppliers is ripe

for our review.

B. STANDARD OF REVIEW

When reviewing an order of the MPSC, this Court

generally

refers to MCL 462.25, which states:

All rates, fares, charges, classiﬁcation and joint rates

ﬁxed by the commission and all regulations, practices and

services prescribed by the commission shall be in force and

shall be prima facie, lawful and reasonable until ﬁnally

found otherwise in an action brought for the purpose

pursuant to the provisions of section 26 of this act, or until

changed or modiﬁed by the commission as provided for in

section 24 of this act.

See, e.g., Attorney

General

v Pub Serv Comm, 269 Mich

App 473, 479; 713 NW2d 290 (2006). In addition, this

Court generally notes that as a reviewing court, we

give due deference to the administrative expertise of

the MPSC. See, e.g., Attorney General v Pub Serv

Comm No 2, 237 Mich App 82, 88; 602 NW2d 225

(1999). In these appeals, however, appellants challenge

whether a speciﬁc holding of the MPSC in its ﬁnal

order in its Case No. U-18197 exceeds the authority

granted to the MPSC by law.

To be valid, a ﬁnal order of the MPSC must be

authorized by law and supported by competent, mate-

rial, and substantial evidence on the whole record.

Const 1963, art 6, § 28; Attorney General v Pub Serv

Comm, 165 Mich App 230, 235; 418 NW2d 660 (1987).

Agencies have the authority to interpret the statutes

that they administer and enforce. Clonlara, Inc v State

220 325 M

ICH

207 [July

Bd of Ed, 442 Mich 230, 240; 501 NW2d 88 (1993). We

respectfully

consider an agency’s interpretation of a

statute the agency is empowered to execute and will

not overrule that construction absent cogent reasons.

In re Complaint of Rovas Against SBC Mich, 482 Mich

90, 103; 754 NW2d 259 (2008). But the construction

the MPSC gives to a statute is not binding on the

courts. Id. Ultimately, the statutory language itself is

controlling, id. at 108, and this Court will neither

abandon nor delegate its responsibility to determine

legislative intent, Consumers Energy Co, 268 Mich App

at 174-175. Moreover, we review de novo issues of

statutory interpretation, Uniloy Milacron USA Inc v

Dep’t of Treasury, 296 Mich App 93, 96; 815 NW2d 811

(2012), including the MPSC’s determinations regard-

ing the scope of its own authority, Consumers Power Co

v Pub Serv Comm, 460 Mich 148, 157; 596 NW2d 126

(1999); In re Application of Consumers Energy to In-

crease Electric Rates (On Remand), 316 Mich App 231,

237; 891 NW2d 871 (2016). In sum, when considering

the construction given to a statute by an agency, our

ultimate concern is the proper construction of the plain

language of the statute regardless of the agency’s

interpretation, Rovas, 482 Mich at 108, and our pri-

mary obligation is to discern and give effect to the

Legislature’s intent, Coldwater v Consumers Energy

Co, 500 Mich 158, 167; 895 NW2d 154 (2017).

C. MCL 460.6w

In its September 15, 2017 order, the MPSC held that

MCL

460.6w

authorizes it to impose a local clearing

requirement on individual alternative electric suppli-

ers. ABATE and Energy Michigan contend that this

interpretation of MCL 460.6w is erroneous. We agree

with ABATE and Energy Michigan.

2018] In re P

LANS OF

LECTRIC

TILITIES

221

The MPSC has no common-law powers and pos-

sesses

only the authority granted to it by the Legisla-

ture. Consumers Power Co, 460 Mich at 155. In addi-

tion, we strictly construe the statutes that confer

power on the MPSC, and that power must be conferred

by “clear and unmistakable language.” Id. at 155-156

(quotation marks and citations omitted). Accordingly,

“powers speciﬁcally conferred on an agency cannot be

extended by inference; . . . no other or greater power

was given than that speciﬁed.” Herrick Dist Library v

Library of Mich, 293 Mich App 571, 582-583; 810

NW2d 110 (2011) (quotation marks and citations omit-

ted). In addition, when construing the statutes empow-

ering the MPSC, this Court does not weigh the eco-

nomic or public-policy factors underlying the decisions

of the MPSC; those concerns are the province of the

Legislature. Consumers Power Co, 460 Mich at 156.

Instead, our concern is the question of law presented to

us: what is “the statutory authority of the [MPSC] in

the light of the facts before us . . . .” Huron Portland

Cement Co v Pub Serv Comm, 351 Mich 255, 262; 88

NW2d 492 (1958).

The MPSC’s September 15, 2017 order provides that

the order “establishes the format and requirements for

electric providers in the state to make demonstrations

to the Commission that they have sufﬁcient electric

capacity arrangements pursuant to Section 6w of 2016

PA 341 (Act 341).” In that order, the MPSC asserts that

it is implementing a law administered by the agency,

that it has the authority to impose a methodology on

all electric load serving entities active in the state, and

speciﬁcally states that

the Commission ﬁnds that a locational requirement is

required

under

Section 6w and that a locational require-

ment applicable to individual [load serving entities] is

allowed as part of the capacity obligations set forth by the

222 325 M

ICH

207 [July

Commission pursuant to Section 6w in order to ensure all

providers

contribute to long-term resource adequacy in

the state.

In the order, the MPSC reasons that because the

statute refers to capacity obligations only in the con-

text of the obligations of individual providers, the

statute’s local clearing requirement should likewise be

understood to apply to individual providers. Quoting

its earlier order, the MPSC order provides, in relevant

part:

As deﬁned in Section 6w(12)(d), “local clearing require-

ment” means “the amount of capacity resources required

to be in the local resource zone in which the electric

provider’s demand is served to ensure reliability in that

zone as determined by the appropriate independent sys-

tem operator for the local resource zone in which the

electric provider’s demand is served and by the commis-

sion under subsection (8).” As noted above, in requesting

assistance from MISO in determining capacity obliga-

tions, the Commission is tasked with requesting technical

assistance in determining this local clearing requirement.

Section 6w(8) also requires individual electric provid-

ers to demonstrate to the Commission that they can meet

capacity obligations. The Commission is directed to re-

quire each electric provider to demonstrate that it “owns

or has contractual rights to sufﬁcient capacity to meet its

capacity obligations as set by the appropriate independent

system operator, or commission, as applicable” four years

into the future. These capacity obligations necessarily

include a local clearing requirement.

It is clear that the statute requires the Commission to

create capacity obligations, that these capacity obligations

include a locational requirement, and that the Commis-

sion, in setting locational capacity obligations, is allowed

to require a demonstration by individual electric providers

that the resources that they use to meet their capacity

obligations meet a local clearing requirement. The Com-

mission acknowledges the inter-relatedness of the MISO

2018] In

re P

LANS OF

LECTRIC

TILITIES

223

and Section 6w capacity demonstration processes, but also

points

out that these are distinct activities. These activi-

ties should be harmonized to the extent practicable, but

the fundamental responsibility of the Commission is to

meet Michigan’s statutory obligations.

Thus, the Commission ﬁnds that a locational require-

ment is required under Section 6w and that a locational

requirement applicable to individual LSEs is allowed as

part of the capacity obligations set forth by the Commis-

sion pursuant to Section 6w in order to ensure all provid-

ers contribute to long-term resource adequacy in the state.

The MPSC and Consumers urge us to read the

provisions

of MCL 460.6w as bestowing on the MPSC

the authority to impose a local clearing requirement on

individual alternative electric suppliers. They reason

that § 6w(8)(c) suggests that the “capacity obligations”

of alternative electric suppliers are required to be

based, in part, on the local clearing requirement. The

MPSC and Consumers further reason that because

§ 6w(8)(b) refers to the capacity obligations with re-

spect to each individual electric provider, it must be

inferred that the local clearing requirement was meant

to be applied to each alternative electric supplier

individually.

We cannot follow the urging of the MPSC and

Consumers, however, because a review of the statute

reveals that no provision of MCL 460.6w clearly and

unmistakably authorizes the MPSC to impose a local

clearing requirement on individual alternative electric

providers. We acknowledge that § 6w(8)(b) provides

that each electric provider must demonstrate that it

owns or has contractual rights to sufﬁcient capacity to

meet its capacity obligations as set by the appropriate

independent system operator, or the MPSC, as appli-

cable. Section 6w(8)(c) directs that “[i]n order to deter-

mine the capacity obligations,” the MPSC must “set

224 325 M

ICH

207 [July

any required local clearing requirement and planning

reserve

margin requirement, consistent with federal

reliability requirements,” and seek technical assis-

tance from MISO in doing so. But although § 6w(8)(c)

requires the MPSC to determine the local clearing

requirement in order to determine capacity obliga-

tions, it does not speciﬁcally authorize the MPSC to

impose the local clearing requirement on alternative

electric suppliers individually. Because the MPSC has

only the authority granted to it by the Legislature by

“clear and unmistakable language,” Consumers Power

Co, 460 Mich at 155-156 (quotation marks and citation

omitted), and because authority cannot be extended by

inference, Herrick Dist Library, 293 Mich App at 582-

583, we must decline the invitation to infer that the

MPSC has any additional authority.

Moreover, a review of the entire statute suggests

that the MPSC is obligated to apply the local clearing

requirement in a manner consistent with MISO. A

general principle of statutory construction is that a

statute must be read as a whole and that a seemingly

ambiguous provision may thereby be clariﬁed in the

context of the whole statute. Id. at 583. A review of the

statute as a whole reveals that MCL 460.6w(3) directs

the MPSC to establish a capacity charge that a

provider must pay if it fails to satisfy the capacity

obligations as required under § 6w(8). Section 6w(6),

however, directs that no capacity charge be assessed

against an alternative electric supplier who demon-

strates that “it can meet its capacity obligations

through owned or contractual rights to any resource

that the appropriate independent system operator

[MISO] allows to meet the capacity obligation of the

electric provider.” MCL 460.6w(6). The parties ac-

knowledge that MISO permits an alternative electric

supplier to meet its capacity obligations, including

2018] In re P

LANS OF

LECTRIC

TILITIES

225

the local clearing requirement, by owning or contract-

ng for capacity resources located outside the appli-

cable local resource zone and does not require each

alternative electric supplier to demonstrate a propor-

tionate share of the local clearing requirement.

Similarly, § 6w(6) constrains the MPSC from as-

sessing any capacity charge in a manner “that con-

ﬂicts with a federal resource adequacy tariff, when

applicable,” and § 6w(8)(c) requires that the MPSC

set any planning reserve margin or local clearing

requirements “consistent with federal reliability re-

quirements.” These provisions militate against the

MPSC’s imposition of any local clearing requirements

beyond what MISO has established and instead im-

pose on the MPSC a continuing obligation to observe

MISO’s general practice of imposing local clearing

requirements on a zonal, not an individual, basis.

Thus, reading MCL 460.6w as a whole indicates that

the MPSC must impose a local clearing requirement

on alternative electric suppliers in a manner consis-

tent with MISO—that is, on a zonal basis and not

individually.

The MPSC notes that § 6w(8)(b) allows cooperative

electric utilities to “aggregate [with other cooperative

electric utilities] their capacity resources that are

located in the same local resource zone” for purposes of

satisfying their capacity obligations. The MPSC fur-

ther notes that municipally owned electric utilities

may aggregate their capacity resources with other

municipally owned electric utilities. Those entities

may resort to “any resource, including a resource

acquired through a capacity forward auction, that

[MISO] allows to qualify for meeting the local clearing

requirement.” In its September 15, 2017 order, the

MPSC interpreted § 6w(8) as follows:

226 325 M

ICH

207 [July

This provision allowing municipally-owned and coopera-

tive

electric utilities to aggregate their resources in order

[to] meet the requirements of Section 6w(8) clearly implies

that these utilities would otherwise be required to meet

the requirements on an individual basis. The Commission

ﬁnds that it would be unreasonable to interpret the

statute such that this obligation for individual compliance

“for meeting the local clearing requirement” is placed

solely on municipally-owned and cooperative utilities un-

der Section 6w. The Commission can ﬁnd nothing in the

law, and no rational basis, to indicate an intent to place a

local clearing requirement only on non-proﬁt utilities.

Instead, the law is more logically understood to require

that all individual utilities be treated similarly in terms of

requirements, and that the aggregation option was in-

tended to assist nonproﬁt utilities (many of which are

small) to comply more easily. Thus, this language further

supports the Commission’s interpretation that a loca-

tional requirement is authorized and may be applied to

individual electric providers.

The MPSC argues that because § 6w(8)(b) is silent

as to whether an alternative electric supplier may

similarly

aggregate

its resources, the intent of the

Actually

, the law “is more logically understood” by reference to its

own terms. The more logical interpretation of those terms is that the

Legislature authorized cooperative or municipally owned electric utili-

ties to aggregate their resources in order to meet the local clearing

requirement. We will not infer from the Legislature’s failure to impose

the local clearing requirement on individual alternative electric suppli-

ers, i.e., the Legislature’s silence, that it, in fact, intended to impose the

local clearing requirement on individual alternative electric suppliers.

Given that “Michigan courts determine the Legislature’s intent from its

words, not from its silence,” Donajkowski v Alpena Power Co, 460 Mich

243, 261; 596 NW2d 574 (1999), the better understanding is, as we have

articulated it here, that the Legislature’s reference to MISO’s stan-

dards, which allow the local clearing requirement to be met on a zonal

basis, and no language imposing the local clearing requirement on

individual alternative electric suppliers, means that the MPSC is

without authority to impose such a requirement on individual alterna-

tive electric suppliers.

2018] In

re P

LANS OF

LECTRIC

TILITIES

227

statute must be to permit the imposition of a local

clearing

requirement on individual alternative electric

suppliers. Again, however, reaching this conclusion

requires the inference that § 6w permits the MPSC to

establish a capacity obligation that includes an indi-

vidual local clearing requirement contrary to that

imposed by MISO. Because we must strictly construe

the statutes that confer power on the MPSC—power

that may not be inferred but instead must be conferred

by “clear and unmistakable language”—we conclude

that MCL 460.6w does not authorize the MPSC to

impose a local clearing requirement upon individual

alternative electric suppliers. See Herrick Dist Library,

293 Mich App at 582-583.

D. LEGISLATIVE HISTORY

We further conclude that, were it necessary to look

outside

the language of the statute at issue here to

ascertain the intent of the Legislature, the order of the

MPSC conﬂicts with the intent of Act 341 as reﬂected

in that act’s legislative history. When construing a

statute, this Court is required to give effect to the

intent of the Legislature. Russell v Detroit, 321 Mich

App 628, 637; 909 NW2d 507 (2017). When statutory

language is clear, the intent of the Legislature is clear

and we will enforce the statute as written. Id. We look

outside the plain words of the statute only when

ambiguity within the statute requires it, and we do not

use legislative history to cloud clear statutory text. In

re Certiﬁed Question from the United States Court of

Appeals for the Sixth Circuit, 468 Mich 109, 116; 659

NW2d 597 (2003). A statute is ambiguous only if it

creates an irreconcilable conﬂict with another statu-

tory provision or if its language is equally susceptible

228 325 M

ICH

207 [July

to more than one meaning. V

illage of Holly v Holly

Twp, 267 Mich App 461, 474; 705 NW2d 532 (2005).

As discussed, any authority granted by statute to

the MPSC must be conferred by “clear and unmistak-

able language,” Consumers Power Co, 460 Mich at

155-156, and the “powers speciﬁcally conferred on an

agency cannot be extended by inference,” Herrick Dist

Library, 293 Mich App at 582-583 (quotation marks

and citation omitted). Here, because the language of

MCL 460.6w is unambiguous, we interpret the plain

language as reﬂecting the intent of the Legislature

without the need to consider the legislative history and

conclude that MCL 460.6w contains no clear and

unmistakable language granting the MPSC authority

to impose a local clearing requirement on individual

alternative electric suppliers. The MPSC, however,

invites us to interpret the statute as permitting it to

assume authority not explicit within the statute. We

conclude that even if it were necessary to look beyond

the language of the statute to ascertain the intent of

the Legislature, the interpretation suggested by the

MPSC conﬂicts with the Legislature’s intent when

enacting MCL 460.6w as is evident in the legislative

history of Act 341.

We note that not all legislative history is equally

valuable when attempting to ascertain the legislative

intent behind statutory language. In re Certiﬁed Ques-

tion, 468 Mich at 115 n 5. Our Supreme Court has

instructed that “the highest quality [of] legislative

history [is] that [which] relates to an action of the

Legislature from which a court may draw reasonable

inferences about the Legislature’s intent,” including

“actions of the Legislature in considering various al-

ternatives in language in statutory provisions before

settling on the language actually enacted.” Id.

2018] In re P

LANS OF

LECTRIC

TILITIES

229

Here, the legislative process leading to the passage

Act 341 lasted for almost 17 months and involved

numerous amendments and bill substitutes. Senate

Bill 437 was introduced on July 1, 2015. It proposed

substantial amendment of the Michigan Public Service

Commission Act, 1939 PA 3, and the Customer Choice

and Electricity Reliability Act, as enacted by 2000 PAs

141 and 142. The bill ultimately emerged from the

Senate as Senate Substitute 7 (S7), with a new provi-

sion that imposed on alternative electric suppliers a

capacity obligation and a demonstration process; alter-

native electric suppliers were required to own or con-

tract for enough capacity resources to meet a percent-

age of their proportionate share of the local clearing

requirement. For example, S7 provided in proposed

§ 6w(2)(C), in relevant part:

An alternative electric supplier . . . shall . . . demonstrate

the commission, in a format determined by the commis-

sion, that for the planning year, . . . the alternative elec-

tric supplier . . . owns or has contractual rights to sufﬁ-

cient dedicated and ﬁrm electric capacity to meet the

equivalent of 90% of its proportional share of the local

clearing requirement . . . .

[10]

This version of the bill passed the Senate and was

transmitted

the House. On December 15, 2016, the

House adopted H4 in place of S7. H4 removed the

speciﬁc language requiring individual alternative elec-

tric suppliers to meet a percentage of their proportion-

ate share of the local clearing requirement. H4 also

added language to proposed § 6w(6) specifying that an

alternative electric supplier could meet its overall

capacity obligation with any resource that the appro-

priate independent system operator (MISO) allows to

meet the capacity obligation. The Senate thereafter

Capitalization

altered.

230 325 M

ICH

207 [July

concurred with H4, and the bill was signed into law.

The

Legislature thereby rejected statutory language

imposing the local clearing requirement on individual

alternative electric suppliers in favor of statutory lan-

guage adopting the MISO method of not imposing the

local clearing requirement on individual electric pro-

viders.

In its September 15, 2017 order, the MPSC stated:

The Commission acknowledges that previous versions of

the

legislation included a detailed methodology relative to

determining the share of a forward locational requirement

each provider would have to demonstrate. What

changed . . . is not that a locational requirement went

away entirely, but that an explicit methodology was re-

moved and replaced with provisions that leave decisions

on the methodology of how to establish the locational

requirement up to the Commission. . . . [T]he statute gives

the Commission ﬂexibility to determine how best to estab-

lish a forward locational requirement and the resources

that qualify to meet that requirement.

On appeal, the MPSC suggests that “once the Leg-

islature

had

MISO’s . . . long-term resource adequacy

plan to use as a guide, Legislators no longer felt the

need to provide their own different plans for how to

allocate [local clearing requirements] and PRMR [the

planning reserve margin requirement],” as is apparent

from “the addition of requirements that the Commis-

sion request MISO’s assistance in setting capacity

determination and deference to MISO’s determina-

tions of what resources would qualify.” In sum, the

MPSC urges us to read into the statute an implied

grant of authority to the MPSC to impose a local

clearing requirement on individual alternative electric

suppliers even though (1) such authority is not clearly

and unmistakably granted by the statute, (2) such an

interpretation is contrary to the directive of § 6w that

2018] In re P

LANS OF

LECTRIC

TILITIES

231

the local clearing requirement be imposed in accor-

dance

with MISO’s practices, which do not impose the

local clearing requirement on individual alternative

electric suppliers, and (3) the Legislature rejected

language granting such authority to the MPSC, remov-

ing it from the ﬁnal draft of the statute ultimately

enacted. We decline the invitation to engage in these

interpretive gymnastics and return to our ultimate

concern and primary objective when reviewing an

agency decision interpreting a statute—that is, to

properly construe the statute and to discern and give

effect to the Legislature’s intent. Rovas, 482 Mich at

107-108; Coldwater, 500 Mich at 167.

“Where the Legislature has considered certain lan-

guage and rejected it in favor of other language, the

resulting statutory language should not be held to

authorize what the Legislature explicitly rejected.”

Bush v Shabahang, 484 Mich 156, 173-174; 772 NW2d

272 (2009), quoting In re MCI Telecom Complaint, 460

Mich 396, 415; 596 NW2d 164 (1999) (alteration omit-

ted). We therefore will not interpret the language

adopted in MCL 460.6w as authorizing what the Leg-

islature explicitly rejected when enacting that statute.

E. ADMINISTRATIVE PROCEDURES ACT

Energy Michigan also contends that the MPSC,

through

its

September 15, 2017 order, made a series of

decisions that are essentially a set of improperly insti-

tuted rules. An administrative rule is “an agency

regulation, statement, standard, policy, ruling, or in-

struction of general applicability that implements or

applies law enforced or administered by the

agency . . . .” MCL 24.207. An agency should resort to

formal APA rulemaking when establishing policies

that “do not merely interpret or explain the statute or

232 325 M

ICH

207 [July

rules from which the agency derives its authority,” but

rather

“establish the substantive standards imple-

menting the program.” Faircloth v Family Indepen-

dence Agency, 232 Mich App 391, 403-404; 591 NW2d

314 (1998). Under the APA, a “rule” does not include a

“rule or order establishing or ﬁxing rates or tariffs,”

MCL 24.207(c), a “determination, decision, or order in

a contested case,” MCL 24.207(f), an “interpretive

statement” or “guideline,” MCL 24.207(h), or a “deci-

sion by an agency to exercise or not to exercise a

permissive statutory power, although private rights or

interests are affected,” MCL 24.207(j). “[I]n order to

reﬂect the APA’s preference for policy determinations

pursuant to rules, the deﬁnition of ‘rule’ is to be

broadly construed, while the exceptions are to be

narrowly construed.” AFSCME v Dep’t of Mental

Health, 452 Mich 1, 10; 550 NW2d 190 (1996). An

agency, however, may not avoid the requirements for

promulgating rules by issuing its directives under

different labels. See id. at 9. Whether an agency policy

is invalid because it was not promulgated as a rule

under the APA is reviewed de novo by this Court. In re

PSC Guidelines for Transactions Between Afﬁliates,

252 Mich App 254, 263; 652 NW2d 1 (2002).

In Docket No. 340607, Energy Michigan contends

that the MPSC, in its September 15, 2017 order,

determined that it could impose a local clearing re-

quirement on individual alternative electric suppliers

and, in essence, enacted rules without complying with

the APA. Energy Michigan identiﬁes six such alleged

instances, which Energy Michigan notes is not an

all-inclusive list:

a. Establishment of a formula for determining each

electric

provider’s

“total capacity obligation that it will be

required to demonstrate that it has owned or contracted

resources to satisfy.”

2018] In

re P

LANS OF

LECTRIC

TILITIES

233

b. A restriction on the use of the MISO Planning

Resource

Auction to meet capacity needs, where the Com-

mission states that it “is also allowing electric providers to

plan on up to 5% of their portfolio to be acquired through

MISO’s annual capacity auction” where no such restric-

tion formerly existed.

c. Setting of the capacity obligation for the years 2018

to 2021 on the basis of the electric provider’s Peak Load

Contribution (“PLC”) for 2018, without any means to

adjust that obligation during the four years, by requiring

that “[t]hese PLC determinations will ultimately drive the

total amount of capacity obligation that an AES [alterna-

tive electric supplier] will be required to meet in its annual

demonstration before the Commission.”

d. Imposing a locational requirement for obtaining

capacity on individual electric providers which will be

required for the 2019 demonstration, by afﬁrming “the

Commission’s interpretation that a locational require-

ment is authorized and may be applied to individual

electric providers.”

e. Asserting authority to reinsert by administrative ﬁat

requirements that were removed from the authorizing

statute during the legislative drafting process.

f. And ordering that “[t]he Capacity Demonstration

Process and Requirements . . . are approved” without hav-

ing developed those requirements through the proper

rulemaking process. [Citations omitted.]

These allegations of inappropriate rulemaking pri-

marily

relate

to the MPSC’s imposition of a local

clearing requirement on individual alternative electric

suppliers.

Because we determine that the statute

Energy

Michigan’s challenges under the APA are tied almost

entirely to the MPSC’s imposition of the local clearing requirement on

individual electric suppliers. In its appellate brief replying to the

brieﬁng by Consumers Energy, Energy Michigan asserts that “[w]hat

Energy Michigan is disputing (setting aside the MPSC’s unlawful

process for implementing its new rules . . .) is whether or not the

Commission has the authority to go beyond MISO’s zonal LCR [local

234 325 M

ICH

207 [July

does not provide the MPSC with the authority to

impose

a local clearing requirement on individual

alternative electric suppliers, we conclude that it is

unnecessary to reach the related issue whether the

MPSC’s determination concerning the local clearing

requirement resulted in improperly promulgated

rules.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

ETER

, P.J., and T

UKEL

, J., concurred with G

ADOLA

clearing requirement] and establish a mandatory individual LCR for

each

electric provider, something that MISO has not done and that is not

present in the federal reliability requirements, but would be a new and

unique state-level innovation.” We agree with Energy Michigan that

this is the focus of the parties’ dispute and the nearly exclusive focus of

the parties’ brieﬁng. The challenges under the APA extend beyond the

question of the local clearing requirement, but we decline to reach those

issues because they are not sufﬁciently developed in light of the brevity

with which all parties treated those challenges.

2018] In

re P

LANS OF

LECTRIC

TILITIES

235

PEOPLE v LANGLOIS

ocket No. 340477. Submitted July 10, 2018, at Detroit. Decided July 12,

2018, at 9:05 a.m. Leave to appeal denied 503 Mich 933 (2018).

Bruce P. Langlois was charged in the Huron Circuit Court with

three counts of the unauthorized practice of a health profession,

MCL 333.16294, related to performing veterinary surgery in

December 2016 while his license to practice veterinary medicine

was revoked. During defendant’s preliminary examination, de-

fendant’s colleague, Dr. Duane Fitzgerald, who was a licensed

veterinarian, testiﬁed that defendant performed spay and neuter

surgeries and that he did not oversee defendant while defendant

performed those surgeries. After defendant was bound over to the

circuit court, defendant moved to quash the information on the

ground that Dr. Fitzgerald had properly delegated to defendant

the surgical tasks that he performed. In response, the prosecution

asserted that a delegation defense was unavailable as a matter of

law and moved to preclude defendant from presenting that

defense to the jury. After an evidentiary hearing, at which Dr.

Fitzgerald testiﬁed consistently with his preliminary examina-

tion testimony, the trial court denied the prosecution’s motion.

The prosecution appealed.

The Court of Appeals held:

Under MCL 333.16294 of the Public Health Code, MCL

333.1101 et seq., the unauthorized practice of a health profes-

sion, including veterinary medicine, is a felony. MCL

333.18805(3) provides that a “veterinarian” is an individual

licensed to engage in the practice of veterinary medicine, and

MCL 333.18811(1) provides that persons who are not licensed or

otherwise authorized are prohibited from practicing veterinary

medicine. MCL 333.16215 provides certain exceptions to MCL

333.16294, including that a licensee who holds a license other

than a health profession subﬁeld license may delegate to a

licensed or unlicensed individual who is otherwise qualiﬁed by

education, training, or experience the performance of selected

acts, tasks, or functions where the acts, tasks, or functions fall

within the scope of practice of the licensee’s profession and will

be performed under the licensee’s supervision; however, a li-

236 325

ICH

236 [July

censee shall not delegate an act, task, or function if the act, task,

r function, under standards of acceptable and prevailing prac-

tice, requires the level of education, skill, and judgment required

of the licensee. In this case, unrebutted expert testimony estab-

lished that the “acceptable and prevailing practice” for veteri-

nary medicine does not allow for the delegation of surgery to an

individual who is not licensed at the time. Moreover, because

defendant’s license was revoked for providing substandard care

to animals upon which he performed spay and neuter proce-

dures, defendant did not meet the requirements of a licensee

regarding “the level of education, skill, and judgment” required,

not only to practice veterinary medicine in general, but to

perform the speciﬁc task that formed the basis of the charges

against him. Additionally, MCL 333.18811(3) prohibits veteri-

nary technicians from performing as surgeons, which suggested

a legislative intent that the practice of veterinary surgery not be

delegated to individuals who are not validly licensed practitio-

ners of veterinary medicine. Accordingly, because the task of

veterinary surgery could not be delegated to defendant as a

matter of law, the trial court abused its discretion by denying

the prosecution’s motion.

Reversed and remanded for further proceedings.

EALTH —

UBLIC

EALTH

ODE —

NIMALS —

ETERINARY

EDICINE —

ELEGATION OF

ETERINARY

URGICAL

ROCEDURES

NLICENSED

NDIVIDUALS

As a matter of law, the task of performing veterinary surgery may

not be delegated to an individual who is not licensed to practice

veterinary medicine at the time the surgery is performed (MCL

333.16215(1); MCL 333.16294; MCL 333.18805(3)).

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Laura Moody, Chief Legal Counsel,

and Robert M. Hayes, Assistant Attorney General, for

the people.

Chapman Law Group (by Robert J. Andretz) for

defendant.

Before: B

ORRELLO

, P.J., and M. J. K

ELLY

and

OONSTRA

, JJ.

2018] P

EOPLE V

ANGLOIS

237

OONSTRA

, J. In this interlocutory appeal, the pros-

ecution appeals by delayed leave granted

the trial

court’s order denying the prosecution’s motion in lim-

ine to preclude defendant from presenting a delegation

defense to the jury. We reverse and remand for further

proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Because this appeal presents a question of law that

hinges

on statutory interpretation, we will only brieﬂy

discuss the factual background of this case. It is

undisputed that defendant is a formerly licensed vet-

erinarian whose license to practice veterinary medi-

cine in Michigan was revoked in November 2015.

2016,

the Michigan Bureau of Professional Licensing

received complaints that defendant had performed

“spay and neuter” surgeries without a valid license. An

investigation revealed that defendant owned a busi-

ness called “Spay Neuter Express.” Dr. Duane Fitzger-

ald, a licensed veterinarian, worked for Spay Neuter

Express as an independent contractor and was desig-

nated as its attending veterinarian. Dr. Fitzgerald

described the business as “an ambulatory service that

serves remote areas or rural areas for spaying and

neutering people’s pets . . . set up in a mobile home

that has been converted to a surgical facility.”

Defendant was charged with three counts of the

unauthorized practice of a health profession, MCL

333.16294, related to performing veterinary surgery in

December 2016 while his license to practice veterinary

People

v Langlois, unpublished order of the Court of Appeals,

entered March 15, 2018 (Docket No. 340477).

The revocation was upheld by this Court in 2017. See Dep’t of

Licensing & Regulatory Affairs v Langlois, unpublished per curiam

opinion of the Court of Appeals, issued February 14, 2017 (Docket No.

330451).

238 325 M

ICH

236 [July

medicine was revoked. During defendant’s prelimi-

ary examination, Dr. Fitzgerald testiﬁed that on

December 16, 2016, defendant performed many of the

surgeries that had been scheduled for that day and that

he and defendant performed their respective surgeries

in the same general area. Dr. Fitzgerald stated that he

did not oversee defendant; he agreed that he did nothing

to ensure that defendant was performing the proce-

dures properly and that he did not check to see how

many procedures defendant had completed. He also

believed the animals on which defendant operated were

defendant’s patients, not his. Dr. Fitzgerald was aware

that defendant’s veterinary license had been suspended

or revoked. He characterized defendant as a competent

surgeon who possessed the knowledge and skills to

perform veterinary surgery.

After defendant was bound over to the circuit court,

he moved to quash the information on the ground that

Dr. Fitzgerald, a licensed veterinarian, had properly

delegated to defendant the surgical tasks that he

performed. In response, the prosecution asserted that

a delegation defense was unavailable as a matter of

law and moved to preclude defendant from presenting

such a defense to the jury. After an evidentiary hear-

ing, at which Dr. Fitzgerald testiﬁed consistently with

his preliminary-examination testimony, the trial court

denied the prosecution’s motion, stating that there was

not “anything within the statutes or rules that say,

‘You cannot perform a surgery’ ” and that it was “a

question for the jury.”

This appeal followed. The trial court granted the

prosecution’s

motion

for a stay of proceedings pending

the resolution of this appeal.

he trial court also denied defendant’s motion to quash on July 17,

2017.

2018] P

EOPLE V

ANGLOIS

239

II. STANDARD OF REVIEW

e review for an abuse of discretion a trial court’s

ruling on a motion in limine. Bartlett v Sinai Hosp of

Detroit, 149 Mich App 412, 418; 385 NW2d 801 (1986).

However, we review de novo as a question of law

matters of statutory interpretation. People v Thomas,

263 Mich App 70, 73; 687 NW2d 598 (2004). Further,

when “delegation of authority . . . [is] a legal nullity,

the question of whether [the] defendant’s actions con-

stitute illegal conduct is one of law to be decided by the

trial court.” People v Ham-Ying, 142 Mich App 831,

836; 371 NW2d 874 (1985). A trial court abuses its

direction when it makes an error of law or operates

within an incorrect legal framework. People v Everett,

318 Mich App 511, 516; 899 NW2d 94 (2017).

III. ANALYSIS

The prosecution argues that the trial court erred by

failing

hold as a matter of law that defendant may

not present the defense of delegation in this case.

Given the speciﬁc acts alleged in this case, the undis-

puted expert testimony, and the language of the rel-

evant statutes, we agree.

“The primary goal of statutory interpretation is to

ascertain and give effect to the intent of the Legisla-

ture.” Thomas, 263 Mich App at 73 (quotation marks

and citation omitted). In order to discern legislative

intent, this Court ﬁrst looks to the language of the

statute. People v Borchard-Ruhland, 460 Mich 278, 284;

597 NW2d 1 (1999). “When construing a statute, the

court must presume that every word has some meaning

and should avoid any construction that would render

any part of the statute surplusage or nugatory,” and “[i]f

possible, effect should be given to each provision.” Id. at

240 325 M

ICH

236 [July

285. “This Court must look to the purpose of the

tatute . . . [and] the harm it is designed to remedy, and

apply a reasonable construction that accomplishes the

statute’s purpose.” People v Stone Transp, Inc, 241 Mich

App 49, 51; 613 NW2d 737 (2000).

Veterinary medicine is an occupation that falls

within the purview of the Public Health Code, MCL

333.1101 et seq. A veterinarian is “an individual li-

censed . . . to engage in the practice of veterinary medi-

cine.” MCL 333.18805(3). Persons who are not licensed

“or otherwise authorized” are prohibited from practic-

ing veterinary medicine. MCL 333.18811(1). MCL

333.18805(2) provides:

“Practice of veterinary medicine” means:

(a)

Prescribing or administering a drug, medicine,

treatment, or method of procedure; performing an opera-

tion or manipulation; applying an apparatus or appliance;

or giving an instruction or demonstration designed to alter

an animal from its normal condition.

(b) Curing, ameliorating, correcting, reducing, or modi-

fying a disease, deformity, defect, wound, or injury in or to

an animal.

mity, or defect in an animal by a test, procedure, manipu-

lation, technique, autopsy, biopsy, or other examination.

Under the Public Health Code, the unauthorized prac-

tice

a health profession, including veterinary medi-

cine, is a felony:

Except as provided in [MCL 333.16215], an individual

ho practices or holds himself or herself out as practicing a

health profession regulated by this article without a license

or registration or under a suspended, revoked, lapsed, void,

or fraudulently obtained license or registration, or outside

the provisions of a limited license or registration, or who

2018] P

EOPLE V

ANGLOIS

241

uses as his or her own the license or registration of another

erson, is guilty of a felony. [MCL 333.16294.]

MCL 333.16215 provides certain exceptions to the

statute criminalizing unlicensed practice, stating, in

relevant part:

(1) Subject to subsections (2) to (6), a licensee who holds

a license other than a health profession subﬁeld license

may delegate to a licensed or unlicensed individual who is

otherwise qualiﬁed by education, training, or experience

the performance of selected acts, tasks, or functions where

the acts, tasks, or functions fall within the scope of

practice of the licensee’s profession and will be performed

under the licensee’s supervision.

[4]

A licensee shall not

delegate an act, task, or function under this section if the

act, task, or function, under standards of acceptable and

prevailing practice, requires the level of education, skill,

and judgment required of the licensee under this article.

* * *

(7) An individual who performs acts, tasks, or functions

delegated pursuant to this section does not violate the

The

Public Health Code deﬁnes “supervision” as

the overseeing of or participation in the work of another indi-

vidual by a health professional licensed under this article in

circumstances where at least all of the following conditions exist:

(a) The continuous availability of direct communication in

person or by radio, telephone, or telecommunication between the

supervised individual and a licensed health professional.

(b) The availability of a licensed health professional on a

regularly scheduled basis to review the practice of the supervised

individual, to provide consultation to the supervised individual,

to review records, and to further educate the supervised indi-

vidual in the performance of the individual’s functions.

sional of predetermined procedures and drug protocol. [MCL

333.16109(2).]

242 325

ICH

236 [July

part that regulates the scope of practice of that health

profession.

[MCL 333.16215(1) and (7).]

Defendant argued in the trial court, and argues on

appeal, that there is no speciﬁc statute or administra-

tive rule prohibiting the delegation of veterinary tasks

(including surgery) to an individual whose license has

been suspended, noting that the Board of Veterinary

Medicine has promulgated a rule regarding delegation

that does not preclude the delegation of tasks to

unlicensed individuals. See Mich Admin Code, R

338.4911. Defendant’s argument ignores the fact that

MCL 333.16215(1) prohibits a licensee from delegating

an act, task, or function that, “under standards of

acceptable and prevailing practice, requires the level of

education, skill, and judgment required of [a] li-

censee . . . .” At the motion hearing, unrebutted expert

testimony by Dr. Dwight McNally, a licensed veterinar-

ian who sits on the State Veterinary Board and was

qualiﬁed as an expert in veterinary medicine, estab-

lished that the “acceptable and prevailing practice” for

veterinary medicine does not allow for the delegation of

surgery to an individual who is not licensed at the

time. Moreover, because defendant’s license was re-

voked for providing substandard care to animals upon

which he performed spay and neuter procedures,

determination

has

been made that defendant does not

meet the requirements of a licensee regarding “the

level of education, skill, and judgment” required, not

only to practice veterinary medicine in general, but to

perform the speciﬁc task that forms the basis of the

charges against him.

Our conclusion is supported by the fact that veteri-

nary technicians, who are deﬁned as persons who

have obtained licensure as a veterinary technician,

Langlois

, unpub op at 1-2.

2018] P

EOPLE V

ANGLOIS

243

MCL 333.18811(2), and who “practice . . . veterinary

edicine based on less comprehensive knowledge and

skill than that required of a veterinarian” under the

supervision of a veterinarian, MCL 333.18805(1), are

explicitly prohibited from performing as a surgeon,

MCL 333.18811(3). If a licensed veterinary technician

may not perform surgery under delegation, then it

follows that an unlicensed person acting as a veteri-

nary technician may not either. While we recognize

that practice as a veterinary technician is a “subﬁeld

of the practice of veterinary medicine,” MCL

333.18808, this suggests a legislative intent that the

practice of veterinary surgery not be delegated to

individuals who are not validly licensed practitioners

of veterinary medicine. See Stone Transp, Inc, 241

Mich App at 51.

This Court’s reasoning in Ham-Ying is both relevant

to our conclusion and persuasive. In Ham-Ying, 142

Mich App at 833, the question on appeal concerned “the

extent to which a licensed physician may delegate

tasks to a physician whose license has been sus-

pended.” In that case, the defendant-physician’s li-

cense had been suspended, but he continued to reﬁll

prescriptions for patients. Id. After being charged with

the unauthorized practice of medicine, MCL

333.16294, the “defendant argued that he had been

delegated proper authority by a licensed physician to

dispense reﬁll maintenance medication pursuant to

MCL 333.16215.” Id. at 834. The Ham-Ying Court held

that delegation was improper, explaining that al-

though the defendant had the requisite education,

training, and experience, the conduct that had led to

the suspension of his license demonstrated that he did

not possess the requisite judgment of a licensee and

that the licensee’s duties could not be delegated to him

as a matter of law. Id. at 836.

244 325 M

ICH

236 [July

We recognize that the Public Health Code is more

explicit

in stating that the prescribing of controlled

substances can only be done by a licensed physician

and that such substances may only be dispensed by a

licensed physician or pharmacist. See MCL 333.17751.

But we conclude that a reasonable construction of the

relevant statutory language concerning the practice of

veterinary medicine compels the same conclusion. See

Stone Transp, Inc, 241 Mich App at 51.

We also are not persuaded by defendant’s citation of

Dep’t of Consumer & Indus Servs v Hoffmann, 230

Mich App 170; 583 NW2d 260 (1998). In Hoffmann,

this Court stated without elaboration that a veterinar-

ian could delegate the practice of chiropractic medicine

on horses to a licensed chiropractor who did not pos-

sess a license to practice veterinary medicine. Id. at

179. However, the Court focused its analysis on

whether the defendant in that case had, in fact, been

properly supervised. Id. at 179-180. In any event, the

defendant in Hoffmann was a properly licensed chiro-

practor; in other words, the issue was whether a

properly licensed healthcare provider could practice

his or her form of medical treatment on animals, and

the Hoffmann Court concluded that one could, if one

was qualiﬁed to do so by education, skill, and training

and was supervised by a licensed veterinarian. Id. at

180. That a validly licensed chiropractor may possess

“the level of education, skill, and judgment” necessary

to perform chiropractic tasks delegated by a veterinar-

ian, MCL 333.16215(1), does not alter our conclusion

that defendant did not meet those criteria regarding

veterinary surgery under the circumstances of this

case. The trial court abused its discretion by denying

the prosecution’s motion in limine, because Dr. Fitzger-

ald could not, as a matter of law, delegate the task of

2018] P

EOPLE V

ANGLOIS

245

veterinary surgery to defendant. Bartlett

, 149 Mich

App at 418; Everett, 318 Mich App at 516.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

ORRELLO

, P.J., and M. J. K

ELLY

, JJ., concurred with

OONSTRA

, J.

246 325 M

ICH

236 [July

OAKLAND COUNTY v STATE OF MICHIGAN

ocket No. 341172. Submitted July 10, 2018, at Lansing. Decided July 17,

2018, at 9:00 a.m. Leave to appeal denied 503 Mich 989 (2019).

Oakland County brought an action in the Court of Claims against the

state of Michigan, the Department of Licensing and Regulatory

Affairs (LARA), and the Michigan Indigent Defense Commission,

challenging as unconstitutional the Michigan Indigent Defense

Commission Act, MCL 780.981 et seq., and the indigent criminal

defense (ICD) standards established by the commission and ap-

proved by LARA. As originally enacted, the act created the com-

mission, designated it as an autonomous entity within the judicial

branch, and tasked the commission with proposing minimum

standards for providing effective assistance of counsel for indigent

criminal defendants. To that end, in 2016, the commission submit-

ted its initial set of four standards to the Michigan Supreme Court

for its review. The Supreme Court conditionally approved those

standards, subject to and contingent on certain legislative revi-

sions of the act; the Court stated that its approval would be

withdrawn on December 31, 2016, if the Legislature did not revise

the act. The Legislature subsequently passed 2016 PA 439, which

amended the act and removed the commission from the judicial

branch and placed it within the executive branch under LARA. In

addition, 2016 PA 439 revised the deﬁnition of “ICD system” and

provided that the minimum standards established under the act

would not infringe the Supreme Court’s authority under Const

1963, art 6, §§ 4 and 5. While the Legislature amended the act to

address the Supreme Court’s concerns, the act was not effective

before the Supreme Court’s December 31, 2016 deadline. The

commission then submitted to LARA proposed standards for guar-

anteeing the delivery of ICD services: Standard 1 provided mini-

mum standards for continuing legal education (CLE), Standard 2

set standards for an attorney’s initial client interview, Standard 3

described standards for investigations and certain expert-witness

matters, and Standard 4 provided minimum standards for defense

counsel’s ﬁrst appearance and for subsequent appearances at

critical stages in the proceedings; LARA approved the commis-

sion’s proposed minimum standards in May 2017. In conjunction

with the standards, the commission published two pamphlets:

2018] O

AKLAND

O V

ICHIGAN

247

(1) A

Guide for Submission of Compliance Plans, Cost Analyses,

and Local Share Calculations (the Guide), which offered general

guidelines for compliance plans, and (2) a Compliance Plan for

Indigent Standards 1-4 (the Compliance Plan), which offered

instructions and guidelines for ﬁling a plan in compliance with the

standards. The county asserted that the act was facially unconsti-

tutional under Article 3, § 2 of Michigan’s 1963 Constitution

because it violated the Separation of Powers Clause, that the act

and the standards were facially unconstitutional under Article 6,

§§ 4 and 5 of Michigan’s 1963 Constitution because the act improp-

erly permitted LARA to regulate the conduct and minimal qualiﬁ-

cations of attorneys who represent indigent criminal defendants,

and that the commission had promulgated mandatory rules and

procedures in violation of the Administrative Procedures Act, MCL

24.201 et seq., when it published the Guide and the Compliance

Plan. The parties ﬁled competing motions for summary disposition,

and the court, C

HRISTOPHER

M. M

URRAY

, J., granted defendants’

motion and dismissed the county’s action. The county appealed.

The Court of Appeals held:

1. Article 3, § 2 of Michigan’s 1963 Constitution provides that

the powers of government are divided into three branches—

legislative, executive, and judicial—and that no person exercising

powers of one branch shall exercise powers properly belonging to

another branch except as expressly provided in the Constitution.

The Separation of Powers Clause does not require an absolute

separation of the branches of government. Instead, a sharing of

power may be constitutionally permissible if the grant of author-

ity to one branch is limited and speciﬁc and does not create

encroachment or aggrandizement of one branch at the expense of

the other. Accordingly, some overlap of powers and responsibili-

ties is constitutionally permissible.

2. Under Article 6, §§ 4 and 5 of Michigan’s 1963 Constitution,

the Michigan Supreme Court possesses the constitutional author-

ity to regulate the practice of law as well as the conduct of

attorneys and court proceedings. MCL 780.983(g) provides that

the act regulates ICD systems—that is, the local unit or units of

government that fund a trial court—rather than the trial courts

themselves. The minimum standards are only enforced on the

ICD systems, and the act does not authorize the commission to

force judiciary compliance with the standards or to control what

happens in courts. In addition, MCL 780.985(3) and MCL

780.991(3)(a) of the act speciﬁcally recognize that the Michigan

Supreme Court has constitutional authority to regulate practice

248 325

ICH

247 [July

and procedure in Michigan courts, to exercise general superin-

tending

control of the courts, and to make indigency determina-

tions. MCL 780.991(1)(a) does not divest the judiciary of its

constitutional authority to establish and enforce minimum stan-

dards for delivering effective assistance of counsel to indigent

criminal defendants. Any sharing or overlapping of functions

required by the act is sufﬁciently speciﬁc and limited such that it

does not encroach on the constitutional authority of the judiciary.

Because the act does not infringe the judiciary’s constitutional

authority over the state’s courts, the Court of Claims correctly

determined that the act was not facially unconstitutional.

3. The county abandoned its argument that Standards 1 and

2 violated the Separation of Powers Clause of Michigan’s 1963

Constitution because it failed to support its argument with

authority. The 2016 PA 439 amendment of the act transferred the

commission from the judicial branch to the executive branch

under the supervision of LARA, and it was undisputed that LARA

approved the standards. Therefore, it was irrelevant that the

Supreme Court’s conditional approval of proposed Standards 1

through 4 was automatically withdrawn when the Legislature’s

revision of the act did not take effect before December 31, 2016.

Standard 3 provides that counsel shall request the assistance of

experts when it is reasonably necessary to prepare the defense

and rebut the prosecution’s case and that reasonable requests

must be funded as required by law. Standard 3 did not conﬂict

with a trial judge’s discretion to permit the appointment of an

expert witness or interfere with a trial court’s gatekeeping

functions under MRE 702; rather, it mandated payment of fees in

accordance with the act. Accordingly, the Court of Claims cor-

rectly determined that the county had failed to establish that

Standard 3 was not authorized by law.

4. Absent a statute’s inherent conﬂict with a court rule, there

is no need to determine whether there was an infringement or

supplantation of judicial authority. Standard 4 provides that

counsel shall be assigned as soon as the defendant is determined

to be eligible for ICD services. The standard requires that the

indigency determination shall be made and counsel appointed to

provide assistance to the defendant as soon as the defendant’s

liberty is subject to restriction by a magistrate or judge. Further,

that representation includes but is not limited to the arraignment

on the complaint and warrant. While the United States Consti-

tution does not require the appointment of counsel at arraign-

ment, the Legislature is free to enact such a requirement if

Michigan’s Constitution does not prohibit it. MCR 6.005(B) re-

2018] O

AKLAND

O V

ICHIGAN

249

quires the arraigning court to determine indigency if the defen-

dant

requests a lawyer and claims a ﬁnancial inability to retain a

lawyer, and the subrule also lists factors to be considered by the

court in determining indigency. Because Standard 4 did not

expressly conﬂict with the language of MCR 6.005(B), the stan-

dard did not infringe the Supreme Court’s constitutional author-

ity over practice and procedure. Accordingly, the county’s argu-

ment that Standard 4 was not authorized by law was without

merit.

5. Rules established by an agency are subject to the promul-

gation requirements set forth in the Administrative Procedures

Act (APA), MCL 24.201 et seq. MCL 24.207(h) provides that a

“rule” does not include a form with instructions, an interpretive

statement, a guideline, an informational pamphlet, or other

material that in itself does not have the force and effect of law but

is merely explanatory. The label an agency gives to a directive is

not determinative of whether it is a rule or a guideline under the

APA. Instead, courts must examine the actual action undertaken

by the directive to see whether the policy being implemented has

the effect of being a rule. The minimum standards established by

the commission are not rules for purposes of the APA, and the

standards are therefore not subject to APA promulgation require-

ments. The Guide and the Compliance Plan were also not “rules”

for purposes of theAPA, and they were therefore not subject to the

APA’s promulgation requirements because the documents were

merely explanatory and did not contain compulsory provisions.

Accordingly, the Court of Claims correctly rejected the county’s

APA violation argument.

Afﬁrmed.

ONSTITUTIONAL

AW —

EPARATION OF

OWERS —

ICHIGAN

NDIGENT

EFENSE

OMMISSION

The Michigan Indigent Defense Commission Act, MCL 780.981 et

seq., and the indigent criminal defense standards established

under the act by the Michigan Indigent Defense Commission do

not violate the Separation of Powers Clause of Michigan’s 1963

Constitution because the act and standards do not infringe the

judiciary’s constitutional authority (Const 1963, art 3, § 2; Const

1963, art 6, §§ 4 and 5).

Keith J. Lerminiaux and Mary

Ann Jerge for Oak-

land County.

250 325 M

ICH

247 [July

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, B. Eric Restuccia, Chief Legal Coun-

sel, and Bridget K. Smith, Assistant Attorney General,

for the state of Michigan, the Department of Licensing

and Regulatory Affairs, and the Michigan Indigent

Defense Commission.

Before: R

ONAYNE

RAUSE

, P.J., and G

LEICHER

and

ETICA

, JJ.

URIAM

. Oakland County objected to the Legis-

lature’s amendment of an act creating the Michigan

Indigent Defense Commission (the MIDC Act), giving

authority to the executive branch, through the Depart-

ment of Licensing and Regulatory Affairs (LARA), to

set standards for attorneys appointed to represent

indigent clients. The bulk of the county’s argument

revolved around its claim that the MIDC Act, MCL

780.981 et seq., and the standards approved by LARA

usurped the judiciary’s power to manage and control

the court system and the legal profession. Although

there is some overlap, the limited sharing of powers

envisioned by the act does not offend the Separation of

Powers Clause of Const 1963, art 3, § 2, and the county

is not otherwise entitled to relief. We therefore afﬁrm

the Court of Claims’ summary dismissal of Oakland

County’s suit.

I. BACKGROUND

In 2011, the Governor signed an executive order

establishing an advisory commission on the defense of

indigent

criminal

defendants. Based on the commis-

sion’s report, the Legislature passed 2013 PA 93, the

MIDC Act. The act created the MIDC and designated it

Executive

Order No. 2011-12.

2018] O

AKLAND

O V

ICHIGAN

251

as an autonomous entity within the judicial branch,

tasked

with proposing minimum standards for provid-

ing effective assistance of counsel for indigent criminal

defendants.

On January 4, 2016, the MIDC submitted its initial

set of four standards to the Michigan Supreme Court

for its review. The Supreme Court conditionally ap-

proved these standards, “subject to and contingent on

legislative revision of the MIDC Act to address provi-

sions that the Court deem[ed] to be of uncertain

constitutionality.” Administrative Order No. 2016-2,

499 Mich xcviii, xcviii-xcix (2016). Speciﬁcally, the

Court was concerned that the creation of an “autono-

mous entity” within the judicial branch unconstitu-

tionally usurped its exclusive authority “to exercise

general supervisory control” over judicial-branch em-

ployees. Id. at xcix, citing MCL 780.985 and Const

1963, art 6, §§ 1, 4, and 7. The Court opined that

several of the act’s provisions “might contain

enforcement mechanisms” that usurp the

Supreme Court’s control over the court system. AO

2016-2, 499 Mich at xcix. See also Const 1963, art 6,

§ 4. Speciﬁcally, the Court expressed concern with the

act’s deﬁnition of “indigent criminal defense system”

(ICDS), which combined trial courts with nonjudicial

local governments, and with provisions allowing the

autonomous MIDC to “[d]evelop[] and oversee[] the

implementation, enforcement, and modiﬁcation of

minimum standards, rules, and procedures to ensure

that indigent criminal defense services providing effec-

tive assistance of counsel are consistently delivered to

all indigent adults in this state” and “to assure com-

pliance with the commission’s minimum standards,

rules, and procedures.” AO-2016-2, 499 Mich at xcix,

citing MCL 780.983(f); MCL 780.989(1)(a) and (b) (quo-

tation marks omitted; alterations in original). More-

over, the Court interpreted certain provisions as “ar-

252 325 M

ICH

247 [July

guably allow[ing] the MIDC to regulate the legal

profession,”

a power granted to the judiciary by Const

1963, art 6, § 5. AO 2016-2, 499 Mich at c. The Court

indicated that its conditional approval would be auto-

matically withdrawn on December 31, 2016, if the

Legislature did not act. AO 2016-2, 499 Mich at c.

The Legislature thereafter amended the MIDC Act,

effective January 4, 2017. 2016 PA 439. The Legisla-

ture removed the MIDC from the judicial branch and

placed it within LARA, an executive-branch agency.

MCL 780.985(1); MCL 780.983(b). The Legislature also

revised the deﬁnition of an ICDS to mean only the local

unit of government that funds a trial court (the fund-

ing unit), rather than the funding unit and the trial

court. MCL 780.983(g). The amendments further pro-

vided that the minimum standards enacted under the

MIDC Act shall not infringe the Supreme Court’s

authority under Const 1963, art 6, §§ 4 and 5. MCL

780.985(3); MCL 780.991(3)(a).

State Court Administrator Milton L. Mack, Jr., sub-

sequently advised the state’s chief judges that the act’s

amendments “appear to address issues of uncertain

constitutionality that were raised by the Court.” How-

ever, Mack asserted, because the legislative amend-

ments did not take effect by December 31, 2016, the

Supreme Court’s conditional approval of the MIDC’s

proposed standards had expired.

On May 22, 2017, LARA approved the MIDC’s

proposed minimum standards for guaranteeing the

delivery of indigent criminal defense (ICD) services

(substantively, the same standards that had been con-

ditionally approved by the Supreme Court). See MIDC,

Minimum Standards for Indigent Criminal Defense

Services (2017). Standard 1 provided minimum stan-

dards for continuing legal education (CLE) and attor-

2018] O

AKLAND

O V

ICHIGAN

253

ney training. Standard 2 set standards for an attor-

ey’s initial client interview. Standard 3 described

standards for investigations and for certain expert-

witness matters. Standard 4 provided minimum stan-

dards for defense counsel’s ﬁrst appearance and for

subsequent appearances at critical stages in the pro-

ceedings. The act required the ICDSs to submit plans

to comply with the act and the standards by Novem-

ber 20, 2017, and gave the MIDC 60 days to review

the plans. MCL 780.993(3) and (4); MIDC, A Guide for

Submission of Compliance Plans, Cost Analyses, and

Local Share Calculations (the Guide) (Summer,

2017), p 5.

The MIDC published the Guide “to assist with the

preparation of the cost analysis and compliance plan-

ning for delivering indigent criminal defense services.”

The Guide, p 5. The Guide provided that the ICDSs

must address “each standard individually” and offered

“General Guidelines for Compliance Plans.” Id. at 6, 8.

The MIDC also published a Compliance Plan for Indi-

gent Standards 1-4 (the Compliance Plan) (2017),

containing further “instructions” and “guidelines” re-

garding the ﬁling of a plan for compliance with the ICD

standards.

II. THE LAWSUIT

Oakland County ﬁled suit against the state of Michi-

gan,

LARA,

and the MIDC, asserting constitutional

challenges to the MIDC Act and the approved ICD

standards. As the trial court summarized the com-

plaint:

Count I alleges that the MIDC Act is “facially unconstitu-

tional”

under Const 1963, art 3, § 2—the separation of

powers clause—because “it empowers LARA to usurp the

Michigan Supreme Court’s constitutional authority to

254 325 M

ICH

247 [July

regulate and enforce minimum qualiﬁcations and profes-

sional

standards for attorneys who represent indigent

criminal defendants.” Count II alleges that both the MIDC

Act and the approved standards . . . are “facially unconsti-

tutional” under Const 1963, art 6, § 5 because “they usurp

the Michigan Supreme Court’s constitutional authority to

promulgate rules governing practice and procedure in

Michigan Courts.” Count III sounds a similar refrain, with

the exception being that it asserts the MIDC Act and the

approved standards violate Const 1963, art 6, § 4. Lastly,

Count IV alleges that the MIDC promulgated “mandatory

rules and procedures” in violation of the [Administrative

Procedures Act (APA), MCL 24.201 et seq.]. The complaint

sought declaratory relief and a stay of the enforcement of

the approved standards.

In lieu of an answer, defendants sought summary

disposition.

Defendants denied any conﬂict between

the act and standards and the Supreme Court’s consti-

tutional authority. The county asserted that the stan-

dards do not regulate the practice and procedure of

attorneys and trial courts; rather, the standards regu-

late the funding units who must pay for ICD services.

The act prohibits any minimum standards infringing

the Supreme Court’s authority, defendants continued.

Likewise, the MIDC’s minimum standards regulate

the funding unit, not the conduct and qualiﬁcations of

attorneys, the practice of law, or the administration of

justice by courts. Defendants argued that the Guide is

not subject to the APA because it is not a mandatory

rule. Defendants further contended that Oakland

County’s challenge to possible future standards was

not yet ripe.

In response to defendants’ motion and in its own

cross-motion for summary disposition, the county con-

tended that the act allows the MIDC to regulate the

legal profession, a power granted to the judicial

branch, in violation of the Separation of Powers

2018] O

AKLAND

O V

ICHIGAN

255

Clause, that is, Const 1963, art 3, § 2. The act and the

LARA-approved

minimum standards unconstitution-

ally allow an executive-branch entity to regulate prac-

tice and procedure in the courts, the county asserted.

And overall, the act and the standards infringe the

Supreme Court’s exclusive authority to supervise the

administration of justice in all state courts under

Const 1963, art 6, § 4. The county opined that Stan-

dard 4 impermissibly creates a new right to appointed

counsel at arraignment. The county alleged conﬂicts

between the Michigan Court Rules and the act and

standards regarding indigency determinations and

counsel appointments. Speciﬁcally, the county com-

plained that the act takes indigency determinations

away from the courts and places them with the funding

units. The county argued that Standard 3 usurps the

judiciary’s authority to set standards for the appoint-

ment of expert witnesses. Finally, the county con-

tended that the guidelines promulgated by the MIDC

are more than educational and contain compulsory

provisions, requiring the MIDC to follow the APA

procedures before adopting those guidelines.

In response, defendants added that Standard 4 did

not create a new right to counsel at arraignment or

conﬂict with the Michigan Court Rules. Standard 3,

which requires ICDSs to fund reasonable requests for

experts as required by law, likewise does not conﬂict

with the United States Constitution, criminal statutes,

or rules of evidence, defendants contended. Overall,

defendants emphasized, the MIDC Act was speciﬁcally

amended to address the Supreme Court’s constitu-

tional concerns.

As noted, the trial court granted summary disposi-

tion in defendants’ favor and dismissed Oakland Coun-

ty’s suit. The court rejected the county’s facial chal-

256 325 M

ICH

247 [July

lenge to the constitutionality of the MIDC Act. The

trial

court recognized the Supreme Court’s constitu-

tional authority to regulate the practice of law, the

conduct of attorneys, and the conduct of court proceed-

ings. But the court noted that Michigan’s 1963 Consti-

tution does not require an absolute separation of

powers, allowing some overlapping of functions, re-

sponsibilities, and powers between the branches. Re-

garding the county’s claim that the MIDC Act improp-

erly permits LARA to regulate the conduct and

minimum qualiﬁcations of attorneys who represent

indigent criminal defendants, the court noted that the

county merely pointed to the minimum standards.

However, the standards implemented by LARA do not

aid in determining whether the MIDC Act is facially

unconstitutional. The county’s separation-of-powers

argument lacked merit for that reason alone.

Moreover, the court continued, the MIDC Act at

most provides for a permissibly limited sharing or

overlapping of functions. The act regulates the funding

units, rather than trial courts themselves, and there-

fore does not encroach on judicial authority. The act

expressly recognizes the Supreme Court’s constitu-

tional authority over court practice and procedure. It

does not permit the MIDC to require the judiciary’s

compliance with the minimum standards and does not

attempt to control what happens in court. The MIDC

has no authority over who becomes a licensed attorney;

the act merely addresses a county-controlled system to

ascertain indigency and provides qualiﬁed attorneys to

indigent defendants. Court precedent, rather than

separate MIDC standards, would be used to determine

the quality of representation required by the ICDSs.

The trial court discerned no conﬂict between the

MIDC Act and the Michigan Court Rules. In pertinent

2018] O

AKLAND

O V

ICHIGAN

257

part, MCL 780.991(3)(a) provides that nothing in the

act

“shall prevent a court from making a determination

of indigency for any purpose consistent with [Const

1963, art 6].” Further, MCL 780.991(3)(a) states that

“[a] trial court may play a role in this [indigency]

determination as part of any [ICDS’s] compliance plan

under the direction and supervision of the supreme

court . . . .” Accordingly, courts are not prevented from

making a determination of indigency for any purpose.

In the absence of an inherent conﬂict between the act

and a court rule, the court concluded that it was

unnecessary to determine whether judicial authority

has been infringed or supplanted.

The trial court next addressed Oakland County’s

challenges to the minimum standards. In relation to

the county’s contention that Standard 4 improperly

requires a defendant to be represented at arraignment,

the court noted that the federal Constitution does not

require the appointment of counsel at the arraignment

but that nothing prohibits it. A state may afford its

citizens greater rights than those required at the

federal level. The court determined that the Legisla-

ture had done exactly this in MCL 780.991(3)(a), by

providing that a determination of indigency shall be

made “not later than at the defendant’s ﬁrst appear-

ance in court.” Hence, there was no conﬂict between

Standard 4 and the pertinent controlling authorities.

The court found no conﬂict between Standard 3 and

the judiciary’s authority to deﬁne and regulate practice

and procedure. Standard 3 provides that counsel must

request the assistance of experts when reasonably

necessary and that reasonable requests must be

funded as required by law. Because Standard 3 re-

quires funding of experts as required by law, the

funding requirement is commensurate with the very

258 325 M

ICH

247 [July

authority the county claimed that the MIDC disre-

garded.

Further, Standard 3 does not interfere with the

trial court’s gatekeeping function.

The trial court noted that the county had failed to

speciﬁcally analyze Standards 1 and 2, leaving the

court to speculate regarding its argument. In any

event, the court found no conﬂict between those stan-

dards and any statutes, court rules, or constitutional

principles.

Regarding the county’s argument that the MIDC

was considering granting additional authority to fund-

ing units to decide issues regarding the appointment of

experts and the determination of indigency, the county

had presented no evidence that the MIDC had promul-

gated standards to implement this strategy. Accord-

ingly, this challenge was not ripe for judicial review.

And regarding the county’s claim that the MIDC was

required to follow the APA, the court found the mini-

mum standards exempt. The trial court rejected that

the MIDC had promulgated compulsory rules and

procedures disguised as guidelines, accepting instead

that the Guide was explanatory, amounting to an

exempt guideline or informational pamphlet.

The county now appeals.

III. FACIAL CONSTITUTIONALITY

The county continues to contend that the MIDC Act

facially

unconstitutional because it violates the

Separation of Powers Clause of Const 1963, art 3, § 2.

The county asserts that the act impermissibly in-

fringes the constitutional authority of the Michigan

Supreme Court by granting an executive-branch

agency broad authority to regulate the minimum

qualiﬁcations, professional standards, and duties of

attorneys who represent indigent criminal defendants.

2018] O

AKLAND

O V

ICHIGAN

259

We review de novo a trial court’s resolution of a

summary-disposition

motion. Johnson v Recca, 492

Mich 169, 173; 821 NW2d 520 (2012). We also review

de novo “[w]hether a statute is unconstitutional be-

cause it violates the separation-of-powers doc-

trine . . . .” In re Petition of Tuscola Co Treasurer for

Foreclosure, 317 Mich App 688, 694; 895 NW2d 569

(2016). Underlying that consideration, we consider de

novo the trial court’s interpretation of the challenged

statutes. Klooster v City of Charlevoix, 488 Mich 289,

295; 795 NW2d 578 (2011).

“Statutes are presumed to be constitutional, and we

have a duty to construe a statute as constitutional

unless its unconstitutionality is clearly apparent.”

Tuscola Co Treasurer, 317 Mich App at 701 (quotation

marks and citation omitted).

We exercise the power to declare a law unconstitutional

with

extreme caution, and we never exercise it where

serious doubt exists with regard to the conﬂict. Every

reasonable presumption or intendment must be indulged

in favor of the validity of an act, and it is only when

invalidity appears so clearly as to leave no room for

reasonable doubt that it violates some provision of the

Constitution that a court will refuse to sustain its validity.

Therefore, the burden of proving that a statute is uncon-

stitutional rests with the party challenging it . . . . When

considering a claim that a statute is unconstitutional, the

Court does not inquire into the wisdom of the legislation.

[In re Request for Advisory Opinion Regarding Constitu-

tionality of 2011 PA 38, 490 Mich 295, 307-308; 806 NW2d

683 (2011) (quotation marks, brackets, and citations omit-

ted).]

“To make a successful facial challenge to the constitu-

tionality

a statute, the challenger must establish

that no set of circumstances exists under which the act

would be valid.” Judicial Attorneys Ass’n v Michigan,

260 325 M

ICH

247 [July

459 Mich 291, 303; 586 NW2d 894 (1998) (quotation

marks,

brackets, and citations omitted).

Const 1963, art 3, § 2 provides that “[t]he powers of

government are divided into three branches: legisla-

tive, executive and judicial. No person exercising pow-

ers of one branch shall exercise powers properly be-

longing to another branch except as expressly provided

in this constitution.” It is beyond dispute that our

Supreme Court possesses constitutional authority to

regulate the practice of law as well as the conduct of

attorneys and court proceedings. See Const 1963, art 6,

§ 4 (“The supreme court shall have general superin-

tending control over all courts . . . .”); Const 1963, art 6,

§ 5 (“The supreme court shall by general rules estab-

lish, modify, amend and simplify the practice and

procedure in all courts of this state.”). Our Supreme

Court “has the power under Const 1963, art 6, § 5, to

regulate and discipline the members of the bar of this

state,” Grievance Administrator v Lopatin, 462 Mich

235, 241; 612 NW2d 120 (2000), and possesses consti-

tutional authority to determine rules of practice and

procedure in state courts, McDougall v Schanz, 461

Mich 15, 26-27; 597 NW2d 148 (1999).

It is also recognized, however, that “the separation-

of-powers doctrine does not require an absolute sepa-

ration of the branches of government[.]” People v

Cameron, 319 Mich App 215, 232; 900 NW2d 658

(2017), oral argument on the application gtd 501 Mich

986 (2018).

“While the Constitution provides for three separate

branches

government, the boundaries between these

branches need not be airtight. In fact, in designing the

structure of our Government and dividing and allocating

the sovereign power among three co-equal branches, the

Framers of the Constitution sought to provide a compre-

hensive system, but the separate powers were not in-

2018] O

AKLAND

O V

ICHIGAN

261

tended to operate with absolute independence. The true

meaning

of the separation-of-powers doctrine is that the

whole power of one of these departments should not be

exercised by the same hands which possess the whole

power of either of the other departments; and that such

exercise of the whole would subvert the principles of a free

Constitution.” [Cameron, 319 Mich App at 232-233 (brack-

ets omitted), quoting Makowski v Governor, 495 Mich 465,

482; 852 NW2d 61 (2014).]

Therefore, “ ‘[i]f the grant of authority to one branch is

limited

and speciﬁc and does not create encroachment

or aggrandizement of one branch at the expense of the

other, a sharing of power may be constitutionally

permissible.’ ” Cameron, 319 Mich App at 233, quoting

Hopkins v Parole Bd, 237 Mich App 629, 636; 604

NW2d 686 (1999); see also Judicial Attorneys Ass’n,

459 Mich at 297 (“This Court has established that the

separation of powers doctrine does not require so strict

a separation as to provide no overlap of responsibilities

and powers.”).

It is simply impossible for a judge to do nothing but

judge;

legislator to do nothing but legislate; a governor to

do nothing but execute the laws. The proper exercise of

each of these three great powers of government necessar-

ily includes some ancillary inherent capacity to do things

which are normally done by the other departments. [Ju-

dicial Attorneys Ass’n, 459 Mich at 297 (quotation marks

and citation omitted).]

Here, any sharing or overlapping of functions re-

quired

by the MIDC Act is sufﬁciently speciﬁc and

limited that it does not encroach on the constitutional

authority of the judiciary. Importantly, the act does not

directly regulate trial courts or attorneys. Rather, the

act regulates “indigent criminal defense system[s],”

statutorily deﬁned as the local unit or units of govern-

ment that fund a trial court (funding units), rather

262 325 M

ICH

247 [July

than trial courts themselves. MCL 780.983(g). In this

respect,

as the trial court noted, the act “takes care to

not encroach on the authority of the judicial branch.”

Further, the act repeatedly recognizes the Michigan

Supreme Court’s constitutional authority to regulate

practice and procedure and to exercise general super-

intending control of Michigan courts. In that regard,

MCL 780.985(3) provides that the minimum standards

proposed by the MIDC “shall not infringe on the

supreme court’s authority over practice and procedure

in the courts of this state as set forth in [Const 1963,

art 6, § 5].” MCL 780.991(3)(a) further provides:

A trial court may play a role in this [indigency] determi-

nation

as part of any [ICDS’s] compliance plan under the

direction and supervision of the supreme court, consistent

with [Const 1963, art 6, § 4]. Nothing in this act shall

prevent a court from making a determination of indigency

for any purpose consistent with [Const 1963, art 6].

As described by the trial court, the act’s “express recog-

tion of the constitutional role of the judiciary under-

cuts (but does not preclude) a facial challenge to the

constitutionality of the act on separation-of-powers

grounds.” See Straus v Governor, 459 Mich 526, 543-

544; 592 NW2d 53 (1999) (stating that an executive

order’s express inclusion of the requirements of the

constitutional provision that the order was said to

violate weighed against ﬁnding the order unconstitu-

tional).

Reinforcing the conclusion that the MIDC Act does

not impermissibly infringe the constitutional authority

of the judiciary is that the act provides for enforcement

of the minimum standards only on the ICDSs, not on

attorneys or courts. For example, the ICDS, not attor-

neys or courts, must submit a compliance plan and cost

analysis. See MCL 780.993(3). The funding units,

2018] O

AKLAND

O V

ICHIGAN

263

rather than attorneys or courts, are statutorily required

o “comply with an approved plan under” the act. MCL

780.997(1). See also MCL 780.995 (providing procedures

for resolving a dispute between the MIDC and an

ICDS). Further, as the trial court correctly observed, the

act contains no provision authorizing the MIDC to force

the judiciary to comply with the minimum standards,

nor does the act purport to control what happens in

courts. The MIDC is granted no authority regarding the

licensure of attorneys, nor is it afforded any power to

censure or sanction attorneys or judges. Instead, the act

makes plain that with information provided by judges,

MCL 780.991(1)(a), a county-controlled system is used

to determine whether a criminal defendant is indigent

and to provide qualiﬁed attorneys to represent indigent

criminal defendants. See MCL 780.985(3); MCL

780.989(1); MCL 780.991(1). In addition, the act estab-

lishes that the quality of representation required of

appointed defense attorneys is deﬁned by caselaw re-

garding the effective assistance of counsel, not by statu-

tory or regulatory standards. See MCL 780.983(c); MCL

780.985(3); MCL 780.989(1); MCL 780.1003(1).

The county challenges the language in MCL

780.991(1)(a) stating that “[t]he delivery of [ICD] ser-

vices shall be independent of the judiciary but ensure

that the judges of this state are permitted and encour-

aged to contribute information and advice concerning

that delivery of [ICD] services.” (Emphasis added.) The

county contends that this language divests the judi-

ciary of its constitutional authority to establish and

enforce minimum standards for delivering effective

assistance of counsel to indigent criminal defendants.

Again, however, MCL 780.991(3)(a) states in its ﬁnal

sentence that “[n]othing in this act shall prevent a

court from making a determination of indigency for

any purpose consistent with [Const 1963, art 6].”

264 325 M

ICH

247 [July

MCL 780.991(3)(a) also provides that “[a] trial court

may

play a role in this [indigency] determination as

part of any [ICDS’s] compliance plan under the direc-

tion and supervision of the supreme court, consistent

with [Const 1963, art 6, § 4] . . . .” The Legislature has

thus recognized the authority of the judicial branch

with respect to indigency determinations. Although the

exact respective roles of the ICDSs and the trial courts

in making indigency determinations is not fully ad-

dressed by the parties in this case, it is sufﬁciently

clear from MCL 780.991(3)(a) that the judiciary has

not been deprived of its constitutional authority in this

area.

As the MIDC Act can be readily harmonized with

the

judiciary’s powers, the trial court properly rejected

Oakland County’s facial attack.

IV. LEGALITY OF MINIMUM STANDARDS

Oakland County also contends that the four mini-

mum standards

proposed by the MIDC and approved

The

county also refers to the MIDC’s development of a proposed

standard to make the management and delivery of ICD services inde-

pendent of the judiciary. The county acknowledges, however, that LARA

has not approved any such standard. A minimum standard proposed by

the MIDC must be approved by LARA in order to constitute “a ﬁnal

department action subject to judicial review . . . .” MCL 780.985(5). “The

doctrine of ripeness is designed to prevent the adjudication of hypotheti-

cal or contingent claims before an actual injury has been sustained. A

claim is not ripe if it rests upon contingent future events that may not

occur as anticipated, or indeed may not occur at all.” Huntington Woods

v Detroit, 279 Mich App 603, 615-616; 761 NW2d 127 (2008) (quotation

marks and citation omitted). The county’s challenge is premised on

hypothetical future events and is therefore not ripe for judicial review.

In addition, it is important to emphasize that actions taken by the MIDC

are not pertinent in determining the constitutionality of the act itself.

See Judicial Attorneys Ass’n, 459 Mich at 304 (noting that “[t]he

constitutionality of an act must rest on the provisions of the act itself”

rather than on subsequent actions taken by persons or entities that are

affected by the act).

2018] O

AKLAND

O V

ICHIGAN

265

by LARA violate the Separation of Powers Clause and

are

otherwise not authorized by law.

The county repeatedly points out that the Supreme

Court’s conditional approval of the standards was

automatically withdrawn on December 31, 2016, be-

cause the Legislature’s revisions of the MIDC Act did

not take effect by that date. But the expiration of the

Supreme Court’s conditional approval is not disposi-

tive because the MIDC was removed from the judicial

branch and placed within the executive branch. See

MCL 780.985(1); MCL 780.983(b). It is LARA, rather

than the Supreme Court, that now decides whether to

approve a minimum standard proposed by the MIDC.

See MCL 780.983(b); MCL 780.985(4) and (5). It is

undisputed that LARA approved the MIDC-proposed

standards. Given these developments, the automatic

expiration of the Supreme Court’s conditional approval

(based on the prior version of the MIDC Act) fails by

itself to establish that the minimum standards are not

authorized by law.

The county further asserts that the standards “mi-

cromanage attorneys who represent indigent defen-

dants, from their education and training to their duties

throughout the entire pendency of a case.” But the

county fails to ﬂesh out its argument that Standards 1

and 2 are not authorized by law. Instead, the county

simply quotes or summarizes portions of each standard

and then conclusorily asserts that the standard is

unconstitutional under the Separation of Powers

Clause because it usurps the Supreme Court’s author-

ity. “It is not sufﬁcient for a party simply to announce

a position or assert an error and then leave it to up this

Court to discover and rationalize the basis for his

claims, or unravel and elaborate for him his argu-

ments, and then search for authority either to sustain

266 325 M

ICH

247 [July

or reject his position.” W

ilson v Taylor, 457 Mich 232,

243; 577 NW2d 100 (1998) (quotation marks and

citation omitted). “An appellant’s failure to properly

address the merits of his assertion of error constitutes

abandonment of the issue.” Houghton v Keller, 256

Mich App 336, 339-340; 662 NW2d 854 (2003).

And the trial court correctly concluded that Oakland

County failed to establish that Standard 3 is not

authorized by law. As the court noted, “The purport-

edly offending section of Standard 3 states that ‘Coun-

sel shall request the assistance of experts where it is

reasonably necessary to prepare the defense and rebut

the prosecution’s case. Reasonable requests must be

funded as required by law.’ ” The trial court properly

explained:

This standard does not conﬂict with a trial judge’s discre-

tion

to permit the appointment of an expert witness. See

MCL 775.15; People v Tanner, 469 Mich 437, 442; 671

NW2d 728 (2003). Rather, the standard notes that experts

must be funded “as required by law.” In other words, the

request must be funded “as required by” the very author-

ity which Oakland County accuses the MIDC of disregard-

ing. Nor does Standard 3 in any way interfere with the

trial court’s gate-keeping functions under MRE 702. There

is no evident conﬂict.

The county’s remaining contentions consist of merely

neralized assertions that lack sufﬁcient elaboration.

The county again contends that the Supreme Court

did not delegate its authority to regulate professional

standards and duties of indigent defense counsel to

the legislative or executive branches. The county

suggests that the obligation to regulate attorneys and

courts has been “foisted” onto the funding units,

which, according to the county, are being statutorily

forced to act as proxies for the MIDC even though the

funding units lack constitutional authority to regu-

2018] O

AKLAND

O V

ICHIGAN

267

late the conduct of attorneys or to implement or

nforce the minimum standards. These aspects of the

county’s argument, however, challenge the provisions

of the act itself and, as already noted, the county’s

constitutional challenge lacks merit.

V. APPOINTED COUNSEL AT ARRAIGNMENTS

The county raises a more speciﬁc challenge to Stan-

dard

4, asserting that it requires the appointment of

counsel at arraignment even though neither the fed-

eral nor the state Constitution demands representa-

tion at that stage of criminal proceedings.

Standard 4 provides, in pertinent part:

Counsel shall be assigned as soon as the defendant is

determined

to be eligible for [ICD] services. The indigency

determination shall be made and counsel appointed to

provide assistance to the defendant as soon as the defen-

dant’s liberty is subject to restriction by a magistrate or

judge. Representation includes but is not limited to the

arraignment on the complaint and warrant. Where there

are case-speciﬁc interim bonds set, counsel at arraign-

ment shall be prepared to make a de novo argument

regarding an appropriate bond regardless of, and, indeed,

in the face of, an interim bond set prior to arraignment

which has no precedential effect on bond-setting at ar-

raignment.

The county again contends that this standard is not

authorized by

law, and we are again unconvinced. The

county asserts that by enacting Standard 4, “[t]he

MIDC and LARA created a new constitutional right to

counsel at arraignment . . . .” It is true that the federal

Constitution does not require the appointment of coun-

sel at arraignment. See People v Green, 260 Mich App

392, 400; 677 NW2d 363 (2004), overruled on other

grounds by People v Anstey, 476 Mich 436 (2006);

268 325 M

ICH

247 [July

People v Horton, 98 Mich App 62, 72; 296 NW2d 184

(1980).

But this does not mean that the appointment of

counsel at arraignment is constitutionally prohibited.

Absent a state constitutional prohibition, states are

free to enact legislative “protections greater than those

secured under the United States Constitution . . . .”

People v Harris, 499 Mich 332, 338; 885 NW2d 832

(2016). The Legislature did so in the MIDC Act. MCL

780.991(3)(a) provides for a determination of indi-

gency, which will lead to the appointment of counsel,

“not later than at the defendant’s ﬁrst appearance in

court.” (Emphasis added.) In addition, MCL

780.991(2)(d) provides for continuous representation

by the same defense counsel “at every court appear-

ance throughout the pendency of the case.”

See also 46

Causes

of Action, 2d, 513, § 10; Kane, 93 Mich at 490

(“It was the duty of the ofﬁcer to see that no other

articles were taken except those described in his

writ.”). Moreover, a refusal to return property can

support a claim for conversion. Aroma Wines & Equip,

Inc, 497 Mich at 352. If property is eventually returned

after a period of wrongful detention, the owner may

nevertheless be entitled to damages, including dam-

ages for the reasonable value of the property’s use

during the period of detention. See Maycroft v The

Jennings Farms, 209 Mich 187, 192-194; 176 NW 545

(1920); Central Transp, Inc v Fruehauf Corp, 139 Mich

App 536, 546; 362 NW2d 823 (1984); Jay Dee Contrac-

tors v Fattore Constr Co, 96 Mich App 519, 523; 293

NW2d 620 (1980); 18 Am Jur 2d, Conversion, § 136, pp

244-245.

In this case, whether Kellogg had a security interest

in the tank and the sprayer, and whether plaintiff

otherwise agreed to allow Kellogg to take, and retain

possession of, the tank and the sprayer, are questions

of contractual interpretation. “In interpreting a con-

tract, it is a court’s obligation to determine the intent of

the parties by examining the language of the contract

according to its plain and ordinary meaning.” In re

Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008).

Contracts must be read as a whole, and words must be

Although

nonbinding, authority from other jurisdictions may be

considered for its persuasive value. Abela v Gen Motors Corp, 469 Mich

603, 607; 677 NW2d 325 (2004).

2018] M

AGLEY V

M&W I

317

considered in context. Henderson

v State Farm Fire

& Cas Co, 460 Mich 348, 356; 596 NW2d 190 (1999).

Courts must “give effect to every word, clause, and

phrase, and a construction should be avoided that

would render any part of the contract surplusage or

nugatory.” Royal Prop Group, LLC v Prime Ins Syndi-

cate, Inc, 267 Mich App 708, 715; 706 NW2d 426 (2005).

“Inartfully worded or clumsily arranged contract terms

do not render a contract ambiguous if it fairly admits of

one interpretation.” Village of Edmore v Crystal Auto-

mation Sys, Inc, 322 Mich App 244, 262; 911 NW2d 241

(2017). Unambiguous contracts must be enforced as

written. In re Smith Trust, 480 Mich at 24.

The Loan and Security Agreement between plaintiff

and Kellogg contained the following provisions regard-

ing Kellogg’s security interest and repossession of

property:

1. THE SECURITY FOR THE LOAN – You give us

what

is known as a security interest in the property

described in the “Security” section of the Truth in Lending

Disclosure that is part of this document (“the Property”).

The security interest you give includes all accessions.

Accessions are things which are attached to or installed in

the Property now or in the future. The security interest

also includes any replacements for the Property which you

buy within 10 days of the Loan and any extensions,

renewals or reﬁnancing of the Loan. It also includes any

money you receive from selling the Property or from

insurance you have on the Property. If the value of the

Property declines, you promise to give us more property as

security if asked to do so.

* * *

9. WHAT HAPPENS IF YOU ARE IN DEFAULT –

When you are in default, we may demand immediate

payment of the outstanding balance of the Loan without

giving you advance notice and take possession of the

318 325

ICH

307 [July

Property. You agree [Kellogg] has the right to take posses-

sion

of the Property without judicial process if this can be

done without breach of the peace. If we ask, you promise to

deliver the Property at a time and place we choose. If the

property is a motor vehicle or boat, you agree that we may

obtain a key or other device necessary to unlock and

operate it, when you are in default. We will not be

responsible for any other property not covered by this

Agreement that you leave inside the Property or that is

attached to the Property. We will try to return that

property to you or make it available for you to claim.

[Italics added; boldface removed.]

In relevant part, the “Security” section of the Truth in

Lending

Disclosure identiﬁes plaintiff’s John Deere

tractor as the collateral for the loan. Under the terms

of the agreement, after taking possession of “the Prop-

erty,” Kellogg had the power to “sell it and apply the

money to any amounts” plaintiff owed Kellogg.

The security agreement does not speciﬁcally men-

tion the tank or the sprayer. However, both ¶ 1 and

¶ 9 refer to items that are “attached to” “the Property,”

and in this case the tank and the sprayer were at-

tached to the tractor when defendant arrived to repos-

sess the tractor. Signiﬁcantly, although both ¶ 1 and

¶ 9 use the word “attached,” when the contract is read

as a whole, it is clear that there are two distinct

categories of attached property and that Kellogg’s

rights with regard to these two categories of attached

property are very different. Under ¶ 1, things “attached

to” the tractor are accessions subject to a security

interest, and these accessions may be lawfully repos-

sessed and sold. See MCL 440.9609(1)(a). However,

under ¶ 9 there may be other things “attached to” the

secured property that are “not covered by” the Agree-

ment and that are not subject to a security interest.

Paragraph 9 makes plain that things attached to the

tractor that are not covered by the agreement may be

2018] M

AGLEY V

M&W I

319

incidentally taken during repossession insofar as Kel-

logg

disavows any responsibility for these items and

promises to “try to return that property to [plaintiff] or

make it available for [plaintiff] to claim.” But the fact

remains that attached property taken incidentally

under ¶ 9 is not subject to a security interest, and

Kellogg must make a good-faith attempt to return it or

make it available to plaintiff to claim.

When repos-

sessing

property on Kellogg’s behalf, defendant must

abide by these provisions and adhere to the distinction

between ¶ 1 and ¶ 9, because defendant’s actions are

only lawful to the extent that Kellogg has a legal right

to the property being repossessed.

At ﬁrst glance ¶ 1 and ¶ 9 may seem discordant

insofar as they both use the term “attached” to describe

two different categories of property. However, these

somewhat inartful provisions can be easily harmonized

when the contract is read as a whole and the use of the

word “attached” is considered in the context of each

paragraph. In particular, in ¶ 1 accessions are deﬁned

as property “attached to or installed in the Property”

(emphasis added), while in ¶ 9, the “attached” property

not covered by the agreement is grouped with property

that plaintiff “leave[s] inside the Property.” Clearly, ¶ 1

envisions a more permanent attachment, comparable

to installing something, while ¶ 9 contemplates a more

temporary attachment on par with leaving something

inside the property. Stated differently, the “attached”

or “installed” items under ¶ 1 essentially become part

of “the Property,” and thus these accessions are subject

to repossession and sale.

In contrast, property that is

Every

contract under the UCC “imposes an obligation of good faith

in its performance and enforcement.” MCL 440.1304.

Indeed, upon default, Kellogg has the right to “take possession of the

Property” (emphasis added), and “the Property” is the “property de-

320 325 M

ICH

307 [July

“attached to” or left inside the property under ¶ 9

retains

its identity, distinct from the secured property,

and it can be readily removed without damaging the

secured property; consequently, while this property

under ¶ 9 may be incidentally taken during reposses-

sion, it must be returned to plaintiff because it is not

part of the secured collateral. Fairly read, the parties’

agreement evinces an understanding of “accessions”

consistent with the general rule that “a good that is

afﬁxed to another good so that it is easily removable or

completely retains its own identity is not an accession.”

9 Lawrence’s Anderson on the Uniform Commercial

Code (3d ed, 1999 revision), § 9-314:4, p 416. See also

Fane v Detroit Library Comm, 465 Mich 68, 79; 631

NW2d 678 (2001) (concluding in a companion case that

a ramp was not an accession to a building when it could

be “readily” removed and had a “possible existence”

apart from the building); Continental Cablevision of

Mich, Inc v Roseville, 430 Mich 727, 737; 425 NW2d 53

(1988) (holding that the term “accessions” “implies a

transfer of ownership and control over the property

attached”). Whether an item is an accession to prop-

erty is generally a question of fact. See Lakeside Resort

Corp v Sprague, 274 Mich 426, 432; 264 NW 851

(1936).

On appeal, defendant attempts to ignore the distinc-

tion between accessions and nonaccessions. That is,

when moving for summary disposition in the trial

court, defendant initially argued that the tank and the

sprayer were accessions. However, at least for the

purposes of this appeal, defendant abandons its asser-

tion that the sprayer and the tank were accessions, and

scribed in the ‘Security’ section of the Truth in Lending Disclosure,” which

n this case is the tractor. Any accessions to the tractor were also properly

repossessed because they became part of “the Property” when they were

attached to or installed in the tractor.

2018] M

AGLEY V

M&W I

321

defendant instead argues that its actions regarding the

tank

and the sprayer were lawful regardless of

whether these items fall under ¶ 1 and ¶ 9. Contrary to

this argument, if the tank and the sprayer are covered

by ¶ 9, they are not subject to repossession and sale,

and, viewing the evidence in a light most favorable to

plaintiff, at a minimum, plaintiff could maintain a

conversion claim based on defendant’s refusal to re-

turn these items.

More speciﬁcally, reasonable minds could conclude

that

the tank and the sprayer were not accessions, but

separate items with their own identities that could be

readily detached without harming the tractor. Indeed,

one of the things that is troubling in this case is that

defendant disconnected the sprayer from the tractor

before transporting the tractor, and yet defendant also

loaded the unattached sprayer onto a truck and took it

to defendant’s place of business. Admittedly, by the

time defendant removed the sprayer, the tractor had

been driven off plaintiff’s property and down the road,

and from this it could be concluded that the reposses-

sion had already occurred when the sprayer was re-

moved. See Clark, 889 F Supp at 547 (“Once a repos-

session agent has gained sufﬁcient dominion over

appeal, defendant argues that plaintiff may not challenge

defendant’s postrepossession conduct on appeal—i.e., defendant’s re-

fusal to return the items—because plaintiff did not raise the issue in the

trial court. Contrary to this argument, in the trial court, plaintiff

consistently maintained that the items were not accessions and that

defendant’s actions—taking the items, refusing to return them, and

posting them for sale—constituted conversion. These issues are properly

before this Court. Defendant also argues that plaintiff has attempted to

improperly expand the record. While it is true that a litigant may not

expand the record on appeal, Sherman v Sea Ray Boats, Inc, 251 Mich

App 41, 56; 649 NW2d 783 (2002), defendant does not identify any

evidence cited by plaintiff that is not part of lower-court record, and we

see no merit to defendant’s argument.

322 325

ICH

307 [July

collateral to control it, the repossession has been

completed.”)

(quotation marks and citation omitted).

But even if the sprayer and the tank could be taken

incidentally to the repossession of the tractor, under

¶ 9, defendant had an obligation to try to return the

items or to make the items available for plaintiff to

claim. Rather than drive the sprayer to its place of

business, defendant could have returned the unat-

tached sprayer to plaintiff’s property. On the facts of

this case, reasonable minds could conclude that defen-

dant wrongfully exercised dominion over plaintiff’s

property by taking the sprayer rather than returning it

to plaintiff. Moreover, by all accounts, plaintiff con-

tacted defendant on numerous occasions demanding

the return of his property, and yet defendant refused to

return anything.

Rather than return the items, defendant reattached

the

sprayer to the tractor and posted a picture of the

n appeal, defendant contends that there is no evidence that

plaintiff speciﬁcally demanded the return of the sprayer and the tank.

This argument is legally ﬂawed because, under the agreement, defen-

dant had to try to return those items to plaintiff or to make those items

available for plaintiff to claim. The agreement says nothing that would

require plaintiff to make a demand for the return of these items. In any

event, as a factual matter, among other evidence demonstrating

plaintiff’s repeated demands for the return of his property, defendant

speciﬁcally admitted, in response to requests for admissions, that

plaintiff attempted to have the sprayer and the tank returned to him

as follows:

Request for Admission 7: Admit Plaintiff attempted to have

the implements returned to him after they were removed from his

place of business.

ANSWER: Defendant objects to this Request because the term

“farm implements” is vague, ambiguous, and subject to multiple

meanings. In an effort to be responsive, without waiving the prior

objection(s), and to the extent that “farm implements” means the

sprayer and tank that were afﬁxed to the John Deere tractor at

the time of repossession, this Request is ADMITTED. [Boldface

removed.]

2018] M

AGLEY V

M&W I

323

tractor—with the sprayer and the tank attached—as a

featured

item in an upcoming auction. Only after

plaintiff resolved his loan problem with Kellogg did

defendant release the sprayer and the tank to plaintiff,

and by that time, plaintiff had been deprived of the use

of the items for about a month. Although defendant

emphasizes that the items were eventually returned,

this does not bar plaintiff’s claims. See Baxter v Wood-

ward, 191 Mich 379, 385-386; 158 NW 137 (1916). To

the contrary, plaintiff may still maintain a claim for

conversion, and plaintiff can recover damages for the

reasonable value for the loss of use during the period

that the items were unlawfully kept from plaintiff. See

Maycroft, 209 Mich at 192; Central Transp, Inc, 139

Mich App at 546; 18 Am Jur 2d, Conversion, § 136, pp

244-245. In sum, there is no merit to defendant’s

assertion that its actions were lawful regardless of

whether the tank and the sprayer were accessions, and

defendant was not entitled to summary disposition on

this basis. Instead, questions of fact remain as to

whether the items were accessions and whether defen-

dant’s conduct regarding the items was lawful. See

Lakeside Resort Corp, 274 Mich at 432; Kane, 93 Mich

at 490. Accordingly, the trial court erred by granting

defendant’s motion for summary disposition.

Reversed and remanded for further proceedings. We

do not retain jurisdiction. Having prevailed in full,

plaintiff may tax costs under MCR 7.219.

OEKSTRA

, P.J., and M

URPHY

and M

ARKEY

, JJ., con-

curred.

324 325 M

ICH

307 [July

In re HORTON

ESTATE

Docket No. 339737. Submitted July 11, 2018, at Grand Rapids. Decided

July 17, 2018, at 9:20 a.m.

Guardianship and Alternatives, Inc. (GAI), court-appointed conser-

vator for decedent Duane F. Horton II, ﬁled a petition for probate

and appointment of a personal representative of decedent’s estate

in the Berrien County Probate Court, nominating GAI to serve as

the personal representative. GAI asserted that an electronic

document purportedly left by decedent shortly before he commit-

ted suicide qualiﬁed as his will. Decedent’s mother, Lanora Jones,

ﬁled a competing petition, nominating herself to serve as the

estate’s personal representative. Jones asserted that decedent

died intestate and that she was decedent’s sole heir. After an

evidentiary hearing, the probate court, Gary J. Bruce, J., con-

cluded that GAI had presented sufﬁcient evidence that decedent

intended the electronic note to constitute his will and that the

document was therefore a valid will under the Estates and

Protected Individuals Code, MCL 700.1101 et seq. Jones ap-

pealed.

The Court of Appeals held:

The right to make a disposition of property by means of a will

is entirely statutory. MCL 700.2502(1) sets forth the speciﬁc

formalities that are generally required to execute a valid will.

However, as expressly stated in MCL 700.2502(1), there are

several exceptions to these formal requirements, including an

exception for holographic wills under MCL 700.2502(2) and an

exception for other writings intended as wills under MCL

700.2503. Any document or writing added upon a document may

be deemed a valid will under MCL 700.2503 if the document’s

proponent establishes by clear and convincing evidence that the

decedent intended the document to constitute his or her will, even

if the document does not meet the requirements of MCL 700.2502.

MCL 700.2503 is an independent exception to the formalities

required under MCL 700.2502(1), and MCL 700.2503 does not

require a decedent to satisfy—or to attempt to satisfy—any of the

requirements for a holographic will under MCL 700.2502(2).

Further, under MCL 700.2502(3), a court may consider extrinsic

2018] In

re H

ORTON

STATE

325

evidence to discern a decedent’s intent. In this case, the trial court

did

not err by determining that decedent intended for the elec-

tronic document in question to constitute his will. The document

expressed decedent’s testamentary intent when it was written

with decedent’s death in mind and clearly dictated the distribu-

tion of his property. The extrinsic evidence also supported this

conclusion. Speciﬁcally, a handwritten journal entry directed the

reader to an electronic, ﬁnal “farewell.” Decedent left the journal

and his phone containing the electronic note in his room; he then

left the home and committed suicide. The fact that decedent

wrote a note providing for the disposition of his property in

anticipation of his impending death supports the conclusion that

it was a ﬁnal document intended to govern the disposition of his

property after his death. Overall, considering both the document

itself and the extrinsic evidence submitted at the hearing, the

trial court did not err by concluding that GAI presented clear and

convincing evidence that decedent intended the electronic note to

constitute his will, and thus the document constituted a valid will

under MCL 700.2503.

Afﬁrmed.

ILLS —

STATES AND

ROTECTED

NDIVIDUALS

ODE —

ORMAL

EQUIREMENTS

Under MCL 700.2503, a document may be deemed a valid will

under the Estates and Protected Individuals Code, MCL 700.1101

et seq., even if the document does not meet the formal require-

ments of MCL 700.2502(1) or (2) if the document’s proponent

establishes by clear and convincing evidence that the decedent

intended it to constitute his or her will.

Willis Law (by Samuel

Gilbertson) for Lanora

Jones.

Kotz Sangster Wysocki PC (by John R. Colip and

Thomas J. Vitale) for Guardianship and Alternatives,

Inc.

Before: H

OEKSTRA

, P.J., and M

URPHY

and M

ARKEY

, JJ.

URIAM

. Will contestant Lanora Jones appeals

as of right the order of the Berrien County Probate

Court recognizing an electronic document as the valid

will of her son, Duane Francis Horton II. Because the

326 325 M

ICH

325 [July

trial court did not err by concluding that Guardianship

and

Alternatives, Inc. (GAI) established by clear and

convincing evidence that decedent intended his elec-

tronic note to constitute his will, we afﬁrm.

The decedent, Duane Francis Horton II, committed

suicide in December 2015 at the age of 21. Before he

committed suicide, decedent left an undated, hand-

written journal entry. There is no dispute that the

journal entry is in decedent’s handwriting. The journal

entry stated:

I am truly sorry about this . . . My ﬁnal note, my

farewell

is on my phone. The app should be open. If not

look on evernote, “Last Note[.]”

The journal entry also provided an e-mail address and

password for Evernote.

The “farewell” or “last note” referred to in decedent’s

journal entry was a typed document that existed only

in electronic form. Decedent’s full name was typed at

the end of the document. No portion of the document

was in decedent’s handwriting. The document con-

tained apologies and personal sentiments directed to

speciﬁc individuals, religious comments, requests re-

lating to his funeral arrangements, and many self-

deprecating comments. The document also contained

one full paragraph regarding the distribution of dece-

dent’s property after his death:

Have my uncle go through my stuff, pick out the stuff

that

belonged

to my dad and/or grandma, and take it. If

there is something he doesn’t want, feel free to keep it and

do with it what you will. My guns (aside from the shotgun

that belonged to my dad) are your’s to do with what you

will. Make sure my car goes to Jody if at all possible. If at

all possible, make sure that my trust fund goes to my

half-sister Shella, and only her. Not my mother. All of my

other stuff is you’re do whatever you want with. I do ask

2018] In

re H

ORTON

STATE

327

that anything you well, you give 10% of the money to the

church,

50% to my sister Shella, and the remaining 40% is

your’s to do whatever you want with.

In addition, in a paragraph addressed directly to

decedent’s uncle, the note contained the following

statement: “Anything that I have that belonged to

either Dad, or Grandma, is your’s to claim and do

whatever you want with. If there is anything that you

don’t want, please make sure Shane and Kara McLean

get it.” In a paragraph addressed to his half-sister,

Shella, decedent also stated that “all” of his “money”

was hers.

During decedent’s lifetime, he was subject to a

conservatorship, and GAI served as his court-

appointed conservator. GAI ﬁled a petition for probate

and appointment of a personal representative, nomi-

nating itself to serve as the personal representative of

decedent’s estate. GAI maintained that decedent’s

electronic “farewell” note qualiﬁed as decedent’s will.

Jones ﬁled a competing petition for probate and ap-

pointment of a personal representative in which she

nominated herself to serve as the personal representa-

tive of decedent’s estate. In that petition, Jones alleged

that decedent died intestate and that she was dece-

dent’s sole heir. After an evidentiary hearing involving

testimony from several witnesses, the probate court

concluded that GAI presented clear and convincing

evidence that decedent’s electronic note was intended

by decedent to constitute his will. Therefore, the pro-

bate court recognized the document as a valid will

under MCL 700.2503. Jones now appeals as of right.

On appeal, Jones argues that the probate court

erred by recognizing decedent’s electronic note as a will

under MCL 700.2503. Jones characterizes decedent’s

note as an attempt to make a holographic will under

328 325 M

ICH

325 [July

MCL 700.2502(2), and Jones asserts that, while MCL

700.2503

allows a court to overlook minor, technical

deﬁciencies in a will, it cannot be used to create a will

when the document in question meets none of the

requirements for a holographic will. Alternatively, as a

factual matter, Jones argues that GAI failed to offer

clear and convincing evidence that decedent intended

the electronic note in this case to constitute his will as

required by MCL 700.2503. We disagree.

I. STANDARD OF REVIEW AND RULES OF

ATUTORY CONSTRUCTION

We review de novo the interpretation of statutes. In

re Reisman Estate, 266 Mich App 522, 526; 702 NW2d

658 (2005). The interpretation of the language used in

a will is also reviewed de novo as a question of law. In

re Bem Estate, 247 Mich App 427, 433; 637 NW2d 506

(2001). “We review the probate court’s factual ﬁndings

for clear error.” In re Koehler Estate, 314 Mich App 667,

673-674; 888 NW2d 432 (2016). “A ﬁnding is clearly

erroneous when a reviewing court is left with a deﬁnite

and ﬁrm conviction that a mistake has been made,

even if there is evidence to support the ﬁnding.” Id. at

674 (quotation marks and citation omitted).

Regarding issues of statutory construction, our

Supreme Court has explained:

The paramount rule of statutory interpretation is that

are to effect the intent of the Legislature. To do so, we

begin with the statute’s language. If the statute’s language

is clear and unambiguous, we assume that the Legislature

intended its plain meaning, and we enforce the statute as

written. In reviewing the statute’s language, every word

should be given meaning, and we should avoid a construc-

tion that would render any part of the statute surplusage or

nugatory. [Wickens v Oakwood Healthcare Sys, 465 Mich

53, 60; 631 NW2d 686 (2001) (citations omitted).]

2018] In

re H

ORTON

STATE

329

II. ANALYSIS

“The

right to make a disposition of property by

means of a will is entirely statutory.” In re Flury

Estate, 218 Mich App 211, 215; 554 NW2d 39 (1996),

mod on other grounds 456 Mich 869 (1997). The

Estates and Protected Individuals Code (EPIC), MCL

700.1101 et seq., governs wills in Michigan. The provi-

sions in EPIC must “be liberally construed and applied

to promote its underlying purposes and policies,” MCL

700.1201, including to “discover and make effective a

decedent’s intent in distribution of the decedent’s prop-

erty,” MCL 700.1201(b).

In a contested-will case, the proponent of a will

bears “the burden of establishing prima facie proof of

due execution . . . .” MCL 700.3407(1)(b). Generally, to

be valid, a will must be executed in compliance with

MCL 700.2502, which provides:

(1) Except as provided in subsection (2) and in sections

2503,

2506,

and 2513, a will is valid only if it is all of the

following:

(a) In writing.

(b) Signed by the testator or in the testator’s name by

some other individual in the testator’s conscious presence

and by the testator’s direction.

signed within a reasonable time after he or she witnessed

either the signing of the will as described in subdivision

(b) or the testator’s acknowledgment of that signature or

acknowledgment of the will.

(2) A will that does not comply with subsection (1) is

valid as a holographic will, whether or not witnessed, if it

is dated, and if the testator’s signature and the document’s

material portions are in the testator’s handwriting.

(3) Intent that the document constitutes a testator’s

will can be established by extrinsic evidence, including, for

330 325

ICH

325 [July

a holographic will, portions of the document that are not

the testator’s handwriting.

As set forth in MCL 700.2502(1), there are speciﬁc

formalities that are generally required to execute a

valid will. However, as expressly stated in MCL

700.2502(1), there are several exceptions to these for-

malities, including less formal holographic wills al-

lowed under MCL 700.2502(2) and the exception cre-

ated by MCL 700.2503.

MCL 700.2503 states:

Although a document or writing added upon a docu-

ment

was not executed in compliance with section 2502,

the document or writing is treated as if it had been

executed in compliance with that section if the proponent

of the document or writing establishes by clear and

convincing evidence that the decedent intended the docu-

ment or writing to constitute any of the following:

(a) The decedent’s will.

(b) A partial or complete revocation of the decedent’s

will.

(d) A partial or complete revival of the decedent’s

formerly revoked will or of a formerly revoked portion of

the decedent’s will.

“The plain language of MCL 700.2503 establishes that

permits

the probate of a will that does not meet the

requirements of MCL 700.2502.” In re Attia Estate, 317

Mich App 705, 711; 895 NW2d 564 (2016). Indeed,

other than requiring “a document or writing added

upon a document,” there are no particular formalities

necessary to create a valid will under MCL 700.2503.

MCL

700.2502(1) also recognizes exceptions as set forth in MCL

700.2506 and MCL 700.2513. These provisions do not apply in this case.

That is not to say that formalities, or lack thereof, are irrelevant in

a will contest involving MCL 700.2503. Formalities are considered

indicative of intent. 1 Restatement Property, 3d, Wills and Other

2018] In

re H

ORTON

STATE

331

Essentially, under MCL 700.2503, any document

writing can constitute a valid will provided that “the

proponent of the document or writing establishes by

clear and convincing evidence that the decedent in-

tended the document or writing to constitute” the

decedent’s will. MCL 700.2503. In considering the

decedent’s intent, “EPIC permits the admission of

extrinsic evidence in order to determine whether the

decedent intended a document to constitute his or her

will.” In re Attia Estate, 317 Mich App at 709. See also

MCL 700.2502(3).

In this case, it is undisputed that decedent’s typed,

electronic note, which was unwitnessed and undated,

does not meet either the formal requirements for a will

under MCL 700.2502(1) or the requirements of a

holographic will under MCL 700.2502(2). Instead, the

validity of the will in this case turns on the applicabil-

ity of MCL 700.2503 and whether the trial court erred

by concluding that GAI presented clear and convincing

evidence that decedent intended the electronic docu-

ment to constitute his will. To properly analyze this

question, we must ﬁrst brieﬂy address Jones’s charac-

terization of decedent’s note as a failed holographic

will. In particular, contrary to Jones’s attempt to

conﬂate MCL 700.2503 and the holographic-will provi-

sion, MCL 700.2503 is an independent exception to the

formalities required under MCL 700.2502(1), and MCL

700.2503 does not require a decedent to satisfy—or

attempt to satisfy—any of the requirements for a

Donative Transfers, § 3.3, comment a

. Consequently, an adherence to

some formalities, or conversely the extent of the departure from formali-

ties, can be considered when determining whether a document was

intended to be a will. See Uniform Probate Code, § 2-503, comment

(1997) (“The larger the departure from Section 2-502 formality, the

harder it will be to satisfy the court that the instrument reﬂects the

testator’s intent.”).

332 325

ICH

325 [July

holographic will under MCL 700.2502(2).

o require a

testator to meet any speciﬁc formalities notwithstand-

ing MCL 700.2503 “would render MCL 700.2503 inap-

plicable to the testamentary formalities in MCL

700.2502, which is contrary to the plain language of

the statute.” In re Attia Estate, 317 Mich App at 711.

Instead, under MCL 700.2503, while the proposed will

must be a document or writing, there are no speciﬁc

formalities required for execution of the document, and

any document or writing can constitute a will, provided

that the proponent of the will presents clear and

convincing evidence to establish that the decedent

intended the document to constitute his or her will. See

MCL 700.2503(a).

Turning to the facts of this case, we ﬁnd no error in

the probate court’s determination that decedent in-

tended for the electronic document in question to

constitute his will. See MCL 700.2503(a). In basic

terms, “[a] will is said to be a declaration of a man’s

mind as to the manner in which he would have his

property or estate disposed of after his death.” Byrne v

Hume, 84 Mich 185, 192; 47 NW 679 (1890). A will need

not be written in a particular form or use any particu-

lar words; for example, a letter or other document,

such as a deed, can constitute a will. See, e.g., In re

Jones

argues on appeal that the holographic-will statute will be

rendered meaningless if MCL 700.2503 can be used to circumvent the

necessity of all requirements for a formal will under MCL 700.2502(1) as

well as all requirements for a holographic will under MCL 700.2502(2).

Contrary to this argument, the requirements for a holographic will

under MCL 700.2502(2), like the more formal requirements for a will

under MCL 700.2502(1), remain a viable—and perhaps more

straightforward—means for expressing intent to create a will. See

Restatement, § 3.3, comment a. MCL 700.2503 simply makes plain that

other evidence clearly and convincingly demonstrating intent to adopt a

will should not be ignored simply because the decedent failed to comply

with formalities. See Restatement, § 3.3, comment b.

2018] In

re H

ORTON

STATE

333

Merritt’s Estate, 286 Mich 83, 89; 281 NW 546 (1938);

re Dowell’s Estate, 152 Mich 194, 196; 115 NW 972

(1908); In re High, 2 Doug 515, 521 (1847). However, in

order for a document to be considered a will it must

evince testamentary intent, meaning that it must

operate to transfer property “only upon and by reason

of the death of the maker . . . .” In re Boucher’s Estate,

329 Mich 569, 571; 46 NW2d 577 (1951). Moreover, the

document must be ﬁnal in nature; that is, “[m]ere

drafts” or “a mere unexecuted intention to leave by will

is of no effect.” In re Cosgrove’s Estate, 290 Mich 258,

262; 287 NW 456 (1939) (quotation marks and citation

omitted). Ultimately, in deciding whether a person

intends a document to constitute a will, the question is

whether the person intended the document to govern

the posthumous distribution of his or her property. See

In re Fowle’s Estate, 292 Mich 500, 504; 290 NW 883

(1940). As noted, whether the decedent intended a

document to constitute a will may be shown by extrin-

sic evidence. In re Attia Estate, 317 Mich App at 709;

MCL 700.2502(3).

In this case, to determine whether decedent in-

tended his farewell note to constitute a will, the

probate court considered the contents of the electronic

document

as well as extrinsic evidence relating to the

circumstances

surrounding

decedent’s death and the

discovery of his suicide note as described by witnesses

appeal, Jones argues that the probate court erred when it

accepted a copy of the purported will into evidence as opposed to

requiring an original of the document. However, Jones waived this

argument in the probate court by expressly stating that she had no

objections to the admission of the copy of the document into evidence.

See Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 545; 854

NW2d 152 (2014). “A party who waives a right is precluded from seeking

appellate review based on a denial of that right because waiver

eliminates any error.” The Cadle Co v Kentwood, 285 Mich App 240, 255;

776 NW2d 145 (2009). Therefore, we decline to address this issue.

334 325

ICH

325 [July

at the evidentiary hearing. After detailing the evidence

presented

and assessing witness credibility, the pro-

bate court concluded that the evidence “was unrebut-

ted that the deceased hand wrote a note directing the

reader to his cell phone with speciﬁc instructions as to

how to access a document he had written electronically

in anticipation of his imminent death by his own

hands.”

Regarding the language of the document

itself,

the probate court determined that the document

unequivocally set forth decedent’s wishes regarding

the disposition of his property. Finding that decedent

clearly and unambiguously expressed his testamen-

tary intent in the electronic document in anticipation

of his impending death, the probate court concluded

that decedent intended the electronic document to

constitute his will.

Reviewing the language of the document de novo, In

re Bem Estate, 247 Mich App at 433, we agree with the

trial court’s conclusion that the document expresses

Jones

argues that GAI did not present testimony that anyone saw

decedent type the suicide note and that, because it was merely in

electronic form, someone else could have typed or altered the suicide

note. The probate court rejected Jones’s argument that the document

had been written or altered by someone other than decedent as mere

speculation without supporting evidence. Jones does not dispute that

the handwritten journal entry was in decedent’s handwriting. That

journal entry directed its ﬁnder to decedent’s cell phone. One of the

individuals who found and read the electronic note on decedent’s cell

phone identiﬁed the contents of the note at the hearing. She indicated

that she “know[s]” what the notes “says” and that she would “[a]bso-

lutely” recognize if the note had been changed. The probate court

expressly found this witness’s testimony to be credible. Deferring to the

trial court’s assessment of credibility, In re Erickson Estate, 202 Mich

App 329, 331; 508 NW2d 181 (1993), we conclude that the evidence

shows that decedent wrote the electronic note and that it was not

altered by anyone else. Contrary to Jones’s arguments, the probate

court did not clearly err by concluding that the electronic note was

written by decedent.

2018] In

re H

ORTON

STATE

335

decedent’s testamentary intent. On the face of the

document,

it is apparent that the document was writ-

ten with decedent’s death in mind; indeed, the docu-

ment is clearly intended to be read after decedent’s

death. The note contains apologies and explanations

for his suicide, comments relating to decedent’s views

on God and the afterlife, ﬁnal farewells and advice to

loved ones and friends, and it contains requests re-

garding his funeral. In what is clearly a ﬁnal note to be

read upon decedent’s death, the document then clearly

dictates the distribution of his property after his death.

Cf. In re High, 2 Doug at 517-519, 521 (ﬁnding that a

letter offering parting words to family members, dis-

cussing hopes for salvation, and disposing of property

after death was a will); In re Fowle’s Estate, 292 Mich

at 504 (concluding that an instrument disposing of

property and making provision for burial was a will).

Speciﬁcally, decedent was clear that he did not want

his mother to receive the remains of the trust fund.

Decedent stated that the money in his trust fund was

for his half-sister and that he wanted his uncle to

receive any of his personal belongings that came from

his father and grandmother. He left his car to “Jody.”

All of decedent’s “other stuff” was left to the couple

with whom decedent had been living.

In short, the

appeal, Jones argues that decedent’s suicide note contains

precatory language, and, relying on Crisp v Anderson, 204 Mich 35, 39;

169 NW 855 (1918), Jones argues that language such as “if at all

possible” is insufﬁcient to demonstrate testamentary intent. The pro-

bate court rejected this argument, correctly recognizing that decedent

used unequivocal language when he used the phrase “[n]ot my mother”

and when he stated to his half-sister that “all of my money . . . is yours.”

Decedent also clearly stated that anything belonging to his grand-

mother or father was to be given to his uncle, that his car was for “Jody,”

and that all decedent’s “other stuff” was for the couple with whom he

had been living. In short, contrary to Jones’s argument, decedent clearly

provided for the disposition of his property following his death.

336 325

ICH

325 [July

note is “distinctly testamentary in character,” In

Fowle’s Estate, 292 Mich at 503, and the document

itself provides support for the conclusion that decedent

intended for the note to constitute his will.

Extrinsic evidence may also be used to discern a

decedent’s

intent, In re Attia Estate, 317 Mich App at

709, and considering the evidence presented at the

hearing, we see no clear error in the probate court’s

ﬁndings of fact regarding the circumstances surround-

ing decedent’s death and decedent’s intent for the

electronic note to constitute his will. In this regard, as

detailed by the probate court, the evidence showed that

decedent’s handwritten journal entry directed the

reader to an electronic, ﬁnal “farewell.” Decedent left

his journal and his phone containing the electronic

note in his room; he then left the home and committed

suicide. Given the surrounding circumstances, al-

though the note was undated, the probate court rea-

sonably concluded that the electronic note was written

“in anticipation of [decedent’s] imminent death by his

own hands.” The fact that decedent wrote a note

providing for disposition of his property in anticipation

of his impending death supports the conclusion that it

was a ﬁnal document to govern the disposition of

decedent’s property after his death. Cf. In re High, 2

Doug at 517-519, 521. Moreover, the evidence showed

disputing the note’s validity as a will, Jones speciﬁcally empha-

sizes that the electronic note does not contain a handwritten signature,

and Jones asserts that the document should simply be viewed as an

informal “note” rather than a “will.” However, as discussed, the formali-

ties of MCL 700.2502 are not required for a valid will under MCL

700.2503. See In re Attia Estate, 317 Mich App at 711. Moreover, we

observe that, although the electronic note does not contain a handwrit-

ten signature, decedent ended the document with the more formal use of

his full name—“Duane F. Horton II”—which added an element of

solemnity to the document, supporting the conclusion that the document

was intended as more than a casual note.

2018] In

re H

ORTON

STATE

337

that decedent had, at best, a strained relationship with

his

mother, and the probate court reasoned that

Jones’s testimony regarding her strained relationship

with decedent “actually provides an understanding of

the intent of [decedent] when he drafted the cell phone

document.” In other words, the nature of decedent’s

relationship with his mother, when read in conjunction

with his clear directive that none of his money go to his

mother, supports the conclusion that decedent in-

tended for the electronic note to govern the posthu-

mous distribution of his property to ensure that his

mother, who would otherwise be his heir, did not

inherit from him. We see no clear error in the probate

court’s factual ﬁndings, In re Koehler Estate, 314 Mich

App at 673-674, and the extrinsic evidence in this case

strongly supports the conclusion that decedent in-

tended the electronic note to constitute his will.

Overall, considering both the document itself and

the extrinsic evidence submitted at the hearing, the

probate court did not err by concluding that GAI

presented clear and convincing evidence that decedent

intended the electronic note to constitute his will, and

thus, the document constitutes a valid will under MCL

700.2503.

Afﬁrmed. Having prevailed in full, GAI may tax

costs pursuant to MCR 7.219.

OEKSTRA

, P.J., and M

URPHY

and M

ARKEY

, JJ., con-

curred.

338 325 M

ICH

325 [July

PEOPLE v MANSOUR

Docket

No. 342316. Submitted July 11, 2018, at Detroit. Decided

July 19, 2018, at 9:00 a.m.

Vanessa A. Mansour was charged in the Oakland Circuit Court with

one count of delivery or manufacture of 20 marijuana plants or

more but fewer than 200 marijuana plants, MCL

333.7401(2)(d)(ii), one count of delivery or manufacture of mari-

juana, MCL 333.7401(2)(d)(iii), and two counts of possession of a

ﬁrearm during the commission of a felony (felony-ﬁrearm), MCL

750.227b. After receiving a tip, police ofﬁcers arrived at defen-

dant’s home and asked for consent to search the basement.

Defendant asked to contact her attorney; defendant’s attorney

arrived an hour later and gave the ofﬁcers consent to search the

home. A search of the basement revealed 126 marijuana plants,

approximately 550 grams of marijuana buds on a drying rack,

digital scales, grow lights, and a watering system. The ofﬁcers

also discovered a handgun in a bedroom safe. Defendant was

charged as stated and subsequently moved to examine the

evidence that had been seized. Defendant requested that an

expert conduct an analysis to determine the weight, usability, and

moisture content of the marijuana and to determine whether the

amount defendant possessed was in compliance with the Michi-

gan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. The

court granted defendant’s motion. Defendant then moved to

assert an afﬁrmative defense, arguing that she was a medical

marijuana patient entitled to immunity under § 4 of the MMMA,

MCL 333.26424, as well as a defense under § 8 of the MMMA,

MCL 333.26428. Defendant also moved to dismiss the count of

possession with intent to deliver marijuana and the associated

felony-ﬁrearm count under § 4 of the MMMA; defendant argued

that the 550 grams of marijuana was not “usable marihuana” as

that term is deﬁned under the MMMA because it was drying, not

dried, and therefore that it must be excluded when considering

defendant’s claim of immunity under § 4 of the MMMA. The

prosecution argued that the Court of Appeals’ interpretation of

§ 4 of the MMMA in People v Carruthers, 301 Mich App 590

(2013), was controlling and that the holding of Carruthers re-

quired the trial court to consider the total amount of marijuana

2018] P

EOPLE V

ANSOUR

339

possessed by defendant, not just the total amount of usable

marijuana.

The court, Michael D. Warren, Jr., J., agreed with the

prosecution and denied defendant’s motion to dismiss. Defendant

appealed.

The Court of Appeals held:

At the time of the search of defendant’s home, § 4(a) of the

MMMA, MCL 333.26424(a), as amended by 2012 PA 512, pro-

vided, in relevant part, that a qualifying patient shall not be

subject to prosecution for the medical use of marijuana in

accordance with the MMMA, provided that the qualifying patient

possesses an amount of marijuana that does not exceed 2.5

ounces of usable marijuana, and, if the qualifying patient has not

speciﬁed that a primary caregiver will be allowed under state law

to cultivate marijuana for the qualifying patient, 12 marijuana

plants kept in an enclosed, locked facility. In Carruthers, the

Court of Appeals held that consideration must be given to the

total amount of marijuana possessed by the defendant, not just

the total amount of usable marijuana, and provided a two-prong

analysis. Under the analysis, the question of whether a possessor

of marijuana possesses an allowed quantity of usable marijuana

is only the beginning of the relevant inquiry under § 4. A further

pertinent and necessary inquiry, for purposes of a § 4 analysis, is

whether that person possesses any quantity of marijuana that

does not constitute usable marijuana under the term-of-art deﬁ-

nition of the MMMA. If so, and without regard to the quantity of

usable marijuana possessed, the person then does not possess an

amount of marijuana that does not exceed 2.5 ounces of usable

marijuana under MCL 333.26424(a) and (b)(1). Instead, he or she

then possesses an amount of marijuana that is in excess of the

permitted amount of usable marijuana. In other words, the

language establishing limited immunity in § 4 of the MMMA

expressly conditions that immunity on the person possessing no

amount of marijuana that does not qualify as usable marijuana

under the applicable deﬁnitions. Following the Court of Appeals’

decision in Carruthers, the Legislature amended the MMMA in

2016 PA 283, effective December 20, 2016. Section 4(a) of the

MMMA currently provides a qualifying patient with immunity if

the patient “possesses an amount of marihuana that does not

exceed a combined total of 2.5 ounces of usable marihuana and

usable marihuana equivalents . . . .” Therefore, the Legislature

retained the previously existing language of that section, includ-

ing interacting references to the separately deﬁned terms “mari-

huana” and “usable marihuana,” while adding a provision for

“usable marihuana equivalents” and for combining the amounts

340 325

ICH

339 [July

of usable marijuana and usable marijuana equivalents. Following

these

legislative amendments, the Court of Appeals decided

People v Manuel, 319 Mich App 291 (2017), which held that the

trial court did not clearly err when it determined that marijuana

that was drying, not dried, was not usable under the statutory

deﬁnition. However, neither the Court of Appeals in Manuel nor

the trial court in this case ever reached the second prong of the

Carruthers analysis. Although the MMMA was amended after

Carruthers to add certain protections relative to the medical use

of usable marijuana equivalents, the statutory language inter-

preted in Carruthers remains the same in all pertinent respects.

Accordingly, Carruthers was binding with respect to that statu-

tory interpretation. In this case, defendant possessed a quantity

of marijuana that, according to defendant’s own argument, did

not constitute usable marijuana. Consequently, under the plain

language of the MMMA and Carruthers, defendant was not

entitled to § 4 immunity. The trial court properly denied defen-

dant’s motion to dismiss under § 4 of the MMMA.

Afﬁrmed.

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, Thomas R. Grden, Appellate Division Chief, and

Danielle Walton, Assistant Prosecuting Attorney, for the

people.

Rockind Law (by Neil Rockind and Colin Daniels)

for defendant.

Before: B

ORRELLO

, P.J., and M. J. K

ELLY

and

OONSTRA

, JJ.

OONSTRA

, J. Defendant appeals by leave granted

the trial court’s order denying her motion to dismiss

under § 4 of the Michigan Medical Marihuana

Act

(MMMA), MCL 333.26421 et seq. We afﬁrm.

People

v Mansour, unpublished order of the Court of Appeals,

entered April 5, 2018 (Docket No. 342316).

“ ‘[B]y convention this Court uses the more common spelling “mari-

juana” in its opinions.’ ” People v Carruthers, 301 Mich App 590, 593 n 1;

2018] P

EOPLE V

ANSOUR

341

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Acting

on a tip from road patrol ofﬁcers on June 10,

2016, Troy Police Detective Daniel Langbeen and other

members of the Oakland County Narcotics Enforce-

ment Team arrived at a “ranch style home” located in

Troy. After arriving at the home, Langbeen spoke with

defendant, who told him that she lived there with “her

husband, and her two children.” Langbeen then asked

defendant “for consent to search the basement,” testi-

fying that “it was obvious to [him] at that point that

marijuana—there was marijuana growin’ down there.”

Defendant replied that “she wasn’t sure,” and she told

Detective Langbeen that she wanted to “contact her

attorney.” Approximately one hour later, defendant’s

attorney, Barton Morris, arrived at defendant’s home;

he subsequently told Langbeen that “they had consent

to search the home.”

The search revealed that the basement contained an

“indoor marijuana grow operation.” Langbeen testiﬁed

that there were “126 plants located in three different

rooms along with approximately 550 grams of mari-

juana buds on a drying rack.” Additionally, “[t]here

were two digital scales, Ziploc bags commonly used to

package narcotics for sale, grow lights, and a watering

system.” Morris subsequently gave Langbeen permis-

sion to search the rest of the house; a “Glock 19 9mm

handgun” was discovered in a bedroom safe that was

unlocked by defendant.

In August 2016, defendant was charged with one

count of delivery or manufacture of 20 marijuana

plants or more but fewer than 200 marijuana plants,

MCL 333.7401(2)(d)(ii), and one count of delivery or

837 NW2d 16 (2013), quoting P

eople v Jones, 301 Mich App 566, 569 n 1;

837 NW2d 7 (2013). Therefore, we will refer to “marijuana” by that

spelling except when quoting from the MMMA.

342 325 M

ICH

339 [July

manufacture of marijuana, MCL 333.7401(2)(d)(iii). In

October

2017, defendant was additionally charged

with two corresponding counts of possession of a ﬁre-

arm during the commission of a felony (felony-ﬁrearm),

MCL 750.227b. On November 13, 2017, defendant ﬁled

a motion “to examine evidence.” Defendant sought to

examine the marijuana and marijuana plants seized

from her home so that Dr. Frank Telewski

could

conduct

“scientiﬁc analyses” to determine “the weight,

usability, and moisture content of said marijuana; and

whether the amount possessed was in compliance with

the [MMMA].” The trial court granted the motion.

On January 8, 2018, defendant ﬁled an assertion of

afﬁrmative defense, in which she argued that she was

a medical marijuana patient entitled to immunity

under § 4 of the MMMA, MCL 333.26424, as well as a

defense under § 8 of the MMMA, MCL 333.26428.

Defendant also moved to dismiss the count of posses-

sion with intent to deliver marijuana and the associ-

ated felony-ﬁrearm count under § 4 of the MMMA.

Defendant’s motion made it clear that the “126 mari-

juana plants” seized from her home were “not being

challenged” in that motion; rather, defendant’s motion

“focus[ed] on the ‘550 grams’ of marijuana” that were

on “drying racks” in defendant’s basement. Relying on

People v Manuel, 319 Mich App 291; 901 NW2d 118

(2017), defendant argued that the 550 grams of mari-

juana was “unusable” because it was “drying,” and

therefore, the unusable marijuana “must be excluded”

when considering defendant’s claim of immunity under

§ 4 of the MMMA.

elewski holds a Ph.D. in biology.

In order to ascertain the amount of “usable marijuana,” as contem-

plated by the statute, defendant relied, in part, on an analysis conducted

by Telewski. Telewski indicated that he examined the marijuana on

2018] P

EOPLE V

ANSOUR

343

The prosecution argued that this Court’s interpreta-

tion

of § 4 of the MMMA in People v Carruthers, 301

Mich App 590, 609; 837 NW2d 16 (2013), was control-

ling and that the holding of Carruthers required the

trial court to consider the total amount of marijuana

possessed by defendant, not just the total amount of

usable marijuana. The trial court agreed with the

prosecution, ﬁnding Carruthers to be “more compre-

hensive” than Manuel. Additionally, the trial court

observed that it was “confronted with somewhat con-

tradictory binding cases” and thus would “proceed to

follow the ﬁrst case,” i.e., Carruthers, rather than

Manuel. Therefore, the trial court denied defendant’s

motion to dismiss. This appeal followed.

II. STANDARD OF REVIEW

“We review for an abuse of discretion a circuit court’s

ruling

on a motion to dismiss but review de novo the

circuit court’s rulings on underlying questions regard-

ing the interpretation of the MMMA, which the people

enacted by initiative in November 2008.” People v

Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012) (cita-

tions omitted); People v Hartwick, 498 Mich 192, 215;

870 NW2d 37 (2015) (“[Q]uestions of law surrounding

the grant or denial of § 4 immunity are reviewed de

novo.”). “An abuse of discretion occurs when the trial

court’s decision is outside the range of principled

outcomes.” People v Daniels, 311 Mich App 257, 265;

December 21, 2017, weighed it at 484.5 grams, and therefore opined

that

the marijuana was not “dried” at the time of its seizure because it

had lost 12% of its weight (through a loss of moisture) during the 18

months since the marijuana was seized. He further noted the presence

of mold on the marijuana, which also indicated that the marijuana was

not “dried” when it was seized. Telewski therefore opined that the

marijuana was not “usable marijuana” as that term is deﬁned in the

MMMA.

344 325

ICH

339 [July

874 NW2d 732 (2015). “We review questions of statu-

tory

interpretation de novo.” Carruthers, 301 Mich App

at 596.

III. ANALYSIS

On appeal, defendant argues that the trial court

erred when it denied her motion to dismiss on the basis

of this Court’s ruling in Carruthers. Rather, defendant

argues, Manuel controls.

In People v Kolanek, 491 Mich 382, 394; 817 NW2d

528 (2012), our Supreme Court explained:

The MMMA does not create

a general right for indi-

viduals to use and possess marijuana in Michigan. Pos-

session, manufacture, and delivery of marijuana remain

punishable offenses under Michigan law. Rather, the

MMMA’s protections are limited to individuals suffering

from serious or debilitating medical conditions or symp-

toms, to the extent that the individuals’ marijuana use “is

carried out in accordance with the provisions of [the

MMMA].” [Citation omitted; alteration in original.]

In Hartwick, the

Court further explained:

A defendant may claim entitlement to immunity for

any or all charged offenses. Once a claim of immunity is

made, the trial court must conduct an evidentiary hearing

to factually determine whether, for each claim of immu-

nity, the defendant has proved each element required for

immunity. These elements consist of whether, at the time

of the charged offense, the defendant:

(1) was issued and possessed a valid registry identiﬁ-

cation card,

(2) complied with the requisite volume limitations of

§ 4(a) and § 4(b),

(3) stored any marijuana plants in an enclosed, locked

facility, and

2018] P

EOPLE V

ANSOUR

345

(4) was engaged in the medical use of marijuana.

[

Hartwick, 498 Mich at 217-218 (citation omitted).]

At the time of the search of defendant’s home, § 4(a)

of the MMMA provided, in relevant part:

A qualifying patient who has been issued and possesses

a registry identiﬁcation card shall not be subject to arrest,

prosecution, or penalty in any manner, or denied any right

or privilege, including but not limited to civil penalty or

disciplinary action by a business or occupational or pro-

fessional licensing board or bureau, for the medical use of

marihuana in accordance with this act, provided that the

qualifying patient possesses an amount of marihuana that

does not exceed 2.5 ounces of usable marihuana, and, if the

qualifying patient has not speciﬁed that a primary care-

giver will be allowed under state law to cultivate mari-

huana for the qualifying patient, 12 marihuana plants

kept in an enclosed, locked facility. Any incidental amount

of seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount.

[MCL 333.26424(a), as amended by 2012 PA 512 (empha-

sis added).]

[5]

Similarly, at the time of the search of defendant’s

home,

MCL

333.26423(k), as amended by 2012 PA 512,

provided: “ ‘Usable marihuana’ means the dried leaves

and ﬂowers of the marihuana plant, and any mixture

or preparation thereof, but does not include the seeds,

stalks, and roots of the plant.” “Marihuana,” however,

was separately and more broadly deﬁned as follows:

“Marihuana” means all parts of the plant Cannabis

sativa

L., growing or not; the seeds of that plant; the resin

extracted from any part of the plant; and every compound,

Section

4(b) of the MMMA similarly provided protections for a

“primary caregiver,” but “only if the primary caregiver possesses an

amount of marijuana that does not exceed . . . 2.5 ounces of usable

marihuana for each qualifying patient . . . .” MCL 333.26424(b), as

amended by 2012 PA 512 (emphasis added).

346 325 M

ICH

339 [July

manufacture, salt, derivative, mixture, or preparation of

the

plant or its seeds or resin. Marihuana does not include

the mature stalks of the plant, ﬁber produced from the

stalks, oil or cake made from the seeds of the plant, any

other compound, manufacture, salt, derivative, mixture,

or preparation of the mature stalks, except the resin

extracted from those stalks, ﬁber, oil, or cake, or any

sterilized seed of the plant that is incapable of germina-

tion. Marihuana does not include industrial hemp grown

or cultivated, or both, for research purposes under the

industrial hemp research act. [MCL 333.26423(e); MCL

333.7106(4).]

In Carruthers, this Court concluded that while the

marijuana-infused brownies that the defendant pos-

sessed “were not usable marijuana under the MMMA,”

the defendant was not entitled to immunity under § 4 of

the MMMA because both § 4(a) and § 4(b) conditioned

immunity “on the qualifying patient’s or primary care-

giver’s possessing ‘an amount of marihuana that does

not exceed . . . 2.5 ounces of usable marihuana . . . .’ ”

Carruthers, 301 Mich App at 608-609, quoting MCL

333.26424(a) and (b)(1). In Carruthers, we went on to

state, in pertinent part:

In short, the question of whether a possessor of mari-

juana

possesses

an allowed quantity of usable marijuana

is only the beginning of the relevant inquiry under § 4. A

further pertinent and necessary inquiry, for purposes of a

§ 4 analysis, is whether that person possesses any quan-

tity of marijuana that does not constitute usable mari-

juana under the term-of-art deﬁnition of the MMMA. If so,

and without regard to the quantity of usable marijuana

possessed, the person then does not possess “an amount of

marihuana that does not exceed . . . 2.5 ounces of usable

marihuana . . . .” MCL 333.26424(a) and (b)(1) (emphasis

added). Instead, he or she then possesses an amount of

marijuana that is in excess of the permitted amount of

usable marijuana. In other words, the language establish-

ing limited immunity in § 4 of the MMMA expressly

2018] P

EOPLE V

ANSOUR

347

conditions that immunity on the person possessing no

amount

of marijuana that does not qualify as usable

marijuana under the applicable deﬁnitions. [Carruthers,

301 Mich App at 610.]

Therefore, this Court concluded that “consideration

must

be given not only to the amount of usable mari-

juana that is possessed but, additionally, to the amount

of marijuana that is possessed.” Id. at 609.

Following this Court’s decision in Carruthers, the

Legislature amended the MMMA in 2016 PA 283,

effective December 20, 2016. Currently, § 4(a) of the

MMMA provides a qualifying patient with immunity if

the patient “possesses an amount of marihuana that

does not exceed a combined total of 2.5 ounces of usable

marihuana and usable marihuana equivalents . . . .”

MCL 333.26424(a). In other words, the Legislature

retained the previously existing language of § 4(a),

including interacting references to the separately de-

ﬁned terms “marihuana” and “usable marihuana,”

while adding a provision for “usable marihuana

equivalents” and for combining the amounts of usable

marijuana and usable marijuana equivalents.

As ex-

plained

the Legislature, the amendments of the

MMMA were retroactive with respect to “clarifying the

quantities and forms of marihuana for which a person

is protected from arrest, precluding an interpretation

of ‘weight’ as aggregate weight, and excluding an

added inactive substrate component of a preparation in

determining the amount of marihuana, medical mari-

The

deﬁnition of “usable marihuana” was also amended, and MCL

333.26423(n) now provides: “ ‘Usable marihuana’ means the dried

leaves, ﬂowers, plant resin, or extract of the marihuana plant, but does

not include the seeds, stalks, and roots of the plant.” A deﬁnition was

also provided for the term “usable marihuana equivalent.” MCL

333.26423(o).

348 325

ICH

339 [July

huana, or usable marihuana that constitutes an of-

fense.”

2016 PA 283, enacting § 2.

Following these legislative amendments, this Court

decided Manuel. In Manuel, the defendant was “both a

qualifying patient and a primary caregiver for ﬁve

patients, so he was allowed . . . to possess up to 15

ounces, or approximately 425.24 grams, of usable

marijuana under the MMMA.” Manuel, 319 Mich App

at 300. The marijuana he possessed was well in excess

of that amount, however. The trial court held that “the

marijuana . . . was unusable because it was in ‘various

stages of drying.’ ” Id. at 298. It therefore ruled “that

[the] defendant was entitled to § 4 immunity and

dismissed the charges against him.” Id.

The prosecution appealed, arguing that the record

did not support the trial court’s conclusion that the

marijuana was “in various stages of drying” but rather

that it “was dried.” The prosecution therefore argued

that the marijuana constituted usable marijuana and

that because the amount was in excess of the allowed

amount of usable marijuana, the defendant was not

entitled to § 4 immunity. The defendant disagreed,

arguing that the record supported the trial court’s

conclusion that the marijuana was “drying,” not dried,

that it was therefore not usable marijuana, and that

the defendant was therefore entitled to § 4 immunity.

In support of that argument, the defendant called upon

the same Dr. Telewski whom defendant called upon in

the instant case to testify that the marijuana had

decreased in weight because of a loss of moisture.

The

parties’ respective positions were therefore counter to what one

might logically have expected. That is, the prosecution argued that the

marijuana in question constituted usable marijuana such that it was

subject to the protections of the MMMA so long as it was within allowed

quantities. Defendant argued, to the contrary, that the marijuana in

question did not constitute usable marijuana, which of course is the type

2018] P

EOPLE V

ANSOUR

349

Perhaps not surprisingly given the manner in which

the

parties had framed the issues on appeal, this Court

in Manuel deﬁned the “question” before it as “whether

this marijuana was ‘usable’ for purposes of the

MMMA.” Manuel, 319 Mich App at 301. The Court

evaluated the trial court’s factual conclusion in that

regard under a clear-error standard and held as fol-

lows:

Given Telewski’s expert testimony that the weight differ-

ential

of 127 grams was most likely due to a loss of

moisture, and defendant’s testimony that the harvested

marijuana was in various stages of drying because not all

of it had been placed in the tins at the same time and had

only been in the tins two to three days, we are not

deﬁnitely and ﬁrmly convinced that the trial court made a

mistake when it found that the marijuana was in “various

stages of drying” and therefore was not usable under the

MMMA. Put simply, the marijuana was “drying,” not

“dried,” and therefore was not usable under the statutory

deﬁnition. [Id. at 303.]

Importantly, however, neither the prosecution nor

the

defendant

in Manuel cited Carruthers. Nor, per-

haps largely for that reason, did this Court in Manuel

cite Carruthers. And, consequently, neither the parties

nor this Court in Manuel ever reached the second

prong of the Carruthers analysis:

In short, the question of whether a possessor of mari-

juana

possesses an allowed quantity of usable marijuana

is only the beginning of the relevant inquiry under § 4. A

further pertinent and necessary inquiry, for purposes of a

§ 4 analysis, is whether that person possesses any quan-

tity of marijuana that does not constitute usable mari-

juana under the term-of-art deﬁnition of the MMMA. If so,

and without regard to the quantity of usable marijuana

of marijuana with respect to which the MMMA provides protections,

provided

that it is possessed within allowed quantities.

350 325 M

ICH

339 [July

possessed, the person then does not possess “an amount of

marihuana that

does not exceed . . . 2.5 ounces of usable

marihuana . . . .” MCL 333.26424(a) and (b)(1) (emphasis

added). Instead, he or she then possesses an amount of

marijuana that is in excess of the permitted amount of

usable marijuana. In other words, the language establish-

ing limited immunity in § 4 of the MMMA expressly

conditions that immunity on the person possessing no

amount of marijuana that does not qualify as usable

marijuana under the applicable deﬁnitions. [Carruthers,

301 Mich App at 610.]

We decline defendant’s invitation to ignore the second

rong of the Carruthers analysis because we are bound

to apply it. Although the MMMA was amended after

Carruthers to add certain protections relative to the

medical use of usable marijuana equivalents, the statu-

tory language interpreted in Carruthers remains today

as it was then in all pertinent respects. Carruthers is

therefore binding with respect to that statutory inter-

pretation.

We therefore reiterate the essential holding

of Carruthers insofar as

it relates to the case before us:

[T]he language establishing limited immunity in § 4 of the

MMMA expressly conditions that immunity on the person

“A

panel of the Court of Appeals must follow the rule of law

established by a prior published decision of the Court of Appeals issued

on or after November 1, 1990, that has not been reversed or modiﬁed by

the Supreme Court, or by a special panel of the Court of Appeals as

provided in this rule.” MCR 7.215(J)(1). We conclude that there is no

conﬂict between Carruthers and Manuel because Manuel simply did not

consider the issue that is before us in this case. Manuel decided only

whether the marijuana in question was “ ‘drying,’ not ‘dried,’ ” Manuel,

319 Mich App at 303, and, therefore, whether it constituted usable

marijuana. While Manuel’s determination that the trial court’s factual

ﬁnding in that regard was not clear error is binding, id.; MCR

7.215(J)(1), we are not bound to repeat Manuel’s failure to address the

second prong of the Carruthers analysis. On that issue, Carruthers

controls; even if Carruthers were not controlling, we agree with and

adopt its rationale.

2018] P

EOPLE V

ANSOUR

351

possessing no amount

of marijuana that does not qualify

as usable marijuana under the applicable deﬁnitions.

[Carruthers, 301 Mich App at 610.]

In this case, defendant possessed a quantity of

marijuana that, according to defendant’s own argu-

ment, did not constitute usable marijuana. Conse-

quently, under the plain language of the MMMA and

Carruthers, defendant is not entitled to § 4 immunity.

The trial court was correct to follow Carruthers and

deny defendant’s motion to dismiss under § 4 of the

MMMA.

Afﬁrmed.

ORRELLO

, P.J., and M. J. K

ELLY

, J., concurred with

OONSTRA

, J.

Our

determination does not affect in any manner defendant’s

assertion of, or entitlement to, a defense under § 8 of the MMMA.

We therefore do not reach the prosecution’s alternative argument

relative to the amended deﬁnition of “usable marihuana” as set forth in

the MMMA.

352 325 M

ICH

339 [July

MARIK v MARIK

Docket

No. 333687. Submitted July 12, 2018, at Detroit. Decided

July 24, 2018, at 9:00 a.m.

Plaintiff, Kimberly M. Marik, and defendant, Peter B. Marik,

divorced in 2011 and were awarded joint legal and physical

custody of their minor children. In 2016, defendant ﬁled a motion

in the Macomb Circuit Court, Family Division, to change the

school enrollment for the children and to modify parenting time.

The court conducted a de novo hearing on June 13, 2016, at which

the parties presented their arguments on the request to change

the children’s school enrollment and the request to modify par-

enting time. During the hearing, the parties were sworn in and

questioned brieﬂy by the trial court. At the conclusion of the

hearing, the court, Kathryn A. George, J., denied defendant’s

motion; however, the court did not expressly address whether

there was an established custodial environment, whether the

requests would change that environment, or whether the re-

quests weighed in favor of the individual best-interest factors

under MCL 722.23. Defendant appealed. The Court of Appeals

dismissed the appeal in an unpublished order, entered July 12,

2016, concluding that the Court of Appeals lacked jurisdiction

because the postjudgment order denying defendant’s request to

change the children’s school enrollment could not be considered

an order affecting the custody of a minor under MCR

7.202(6)(a)(iii) and therefore was not a ﬁnal order. Defendant

moved for reconsideration, which the Court of Appeals denied.

Defendant sought leave to appeal in the Supreme Court, and the

Supreme Court ordered oral argument on the application. 500

Mich 940 (2017). The Supreme Court issued an order vacating the

Court of Appeals’ dismissal of defendant’s appeal and remanding

the case to the Court of Appeals. 501 Mich 918 (2017). On

February 23, 2018, the Court of Appeals issued an unpublished

order holding that the trial court order was a ﬁnal order appeal-

able by right, and the appeal continued as an appeal of right.

The Court of Appeals held:

1. The Child Custody Act, MCL 722.21 et seq., applies to all

circuit court child custody disputes and actions, whether original

2018] M

ARIK V

ARIK

353

or incidental to other actions. MCL 722.27(1)(c) provides, in

relevant

part, that the circuit court may, for the best interests of

the child, modify or amend its previous judgments or orders for

proper cause shown or because of a change of circumstances; MCL

722.27(1)(c) further provides that the 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 interests of the child. When deciding whether the requested

modiﬁcation is in the best interests of the child, the threshold

determination is whether an established custodial environment

exists. If an established custodial environment exists, the trial

court must determine whether the requested change would affect

the established custodial environment of the child and, depen-

dent on that outcome, ascertain the proper burden of proof to be

employed. If the proposed change alters the established custodial

environment, the party seeking the change must demonstrate by

clear and convincing evidence that the change is in the child’s

best interests. If the change does not alter the established

custodial environment, then the proponent of the change need

only demonstrate by a preponderance of the evidence that the

requested change is in the child’s best interests. The child’s best

interests are determined by evaluating the factors listed in MCL

722.23. In this case, the trial court erred by failing to conduct a

full evidentiary hearing. The court did not allow the parties the

opportunity to fully present evidence on the issue of whether

changing the children’s school was in their best interests. In-

stead, the parties’ attorneys presented their arguments, plaintiff

and defendant were placed under oath, and the trial court asked

them questions. Because the court failed to conduct a full eviden-

tiary hearing, remand was required. Furthermore, the court

failed to determine whether an established custodial environ-

ment existed and whether the change of schools would alter that

environment. The court determined that a change of schools

would not be in the children’s best interests, but the court failed

to consider any of the best-interest factors in MCL 722.23.

Therefore, remand was required.

2. Defendant’s claim that the trial court improperly dismissed

his objections on a res judicata theory was without merit. Con-

trary to defendant’s contention, the trial court did not improperly

rely on a motion to change school systems that defendant had

ﬁled in 2012, and defendant’s subsequent withdrawal of that

request did not evidence the trial court’s improper application of

the doctrine of res judicata to the issue of school enrollment.

354 325

ICH

353 [July

3. MCL 722.27(1)(c) provides, in relevant part, that changes

custody or parenting time may be modiﬁed only if the moving

party demonstrates that modiﬁcation is justiﬁed by proper cause

or because of a change of circumstances. If the requested modiﬁ-

cation, such as a motion to change custody, alters the child’s

established custodial environment, then the framework an-

nounced in Vodvarka v Grasmeyer, 259 Mich App 499 (2003),

would apply. However, if the requested modiﬁcation would not

affect the established custodial environment, such as a request to

modify parenting time, then a lesser, more ﬂexible understanding

of “proper cause” or “change of circumstances” under Shade v

Wright, 291 Mich App 17 (2010), would apply. In this case,

defendant argued that both the change in the children’s school

enrollment as well as his remarriage and the children’s relation-

ship with his wife and her daughter comprised a sufﬁcient change

of circumstances to revisit parenting time. Because the trial court

failed to determine whether an established custodial environ-

ment exists, let alone whether a modiﬁcation of parenting time

would change that environment, remand was also required on

this issue.

Vacated and remanded.

O’C

ONNELL

, J., concurring, wrote separately to propose an

Inevitable Remand Rule when the trial court fails to make a

ﬁnding regarding the established custodial environment. Under

this rule, when the trial transcript is devoid of a trial court’s

ﬁndings on which party has, or which parties share, the estab-

lished custodial environment, one of the parties should immedi-

ately ﬁle a motion to remand with the Court of Appeals. The

motion should articulate that the trial court erred and request a

remand for an evidentiary hearing for the trial court to decide

which party has, or which parties share, the established custodial

environment. This rule would expedite the current process, which

is a waste of time, damaging to children, expensive to parties, and

highly inefﬁcient.

Jaffe, Raitt, Heuer & Weiss, PC (by Susan S.

Lichterman and Brian G. Shannon) for plaintiff.

Scott Bassett for defendant.

Before: C

AMERON

, P.J., and J

ANSEN

and O’C

ONNELL

JJ.

2018] M

ARIK V

ARIK

355

AMERON

, P.J. Defendant appeals the trial court’s

order denying his request to change the school enroll-

ment for the parties’ minor children and his corre-

sponding request to modify parenting time. Defendant

asserts that the trial court erred by denying his motion

to change the minor children’s school enrollment from

a public school near plaintiff’s home to a parochial

school. Additionally, defendant challenges the trial

court’s denial of his request for an increase of 18

overnights to his parenting time. We conclude that the

trial court failed to address the children’s established

custodial environment, to describe the applicable bur-

den of proof, and to consider the statutory best-interest

factors in deciding the requests as required by our

caselaw. Therefore, we vacate and remand to the trial

court to properly address these issues.

I. BACKGROUND

The parties divorced in 2011. The judgment of divorce

arded joint legal and physical custody, with plaintiff’s

home as the minor children’s primary residence. As

support for his requests, defendant asserts that the

children will beneﬁt from attending a different school

system. Although defendant does not identify any par-

ticular deﬁciency with regard to the children’s current

educational environment or in their respective aca-

demic performances, he contends that their ability to

thrive would increase in a different school system he

contends is “better.” Defendant implies that the change

in school enrollment should also coincide with an in-

crease in his parenting time to include an additional 18

overnights with the minor children. The parties cur-

rently share joint physical and legal custody, with plain-

tiff having 55% of the parenting time with the minor

children and defendant enjoying 45% of the available

356 325 M

ICH

353 [July

PINION OF THE

OURT

parenting time. The parenting-time modiﬁcation re-

uested by defendant would equalize the amount of

time the parties have with the minor children.

The trial court conducted a de novo hearing on

June 13, 2016, at which the parties presented their

arguments on the request to change the children’s

school enrollment and the request to modify parent-

ing time. During the hearing, the parties were sworn

in and questioned brieﬂy by the trial court. At the

conclusion of the hearing, the trial court did not ex-

pressly address whether there was an established cus-

todial environment, whether the requests would change

that environment, or whether the requests weighed in

favor of the individual best-interest factors under MCL

722.23. Instead, the trial court stated that

whether or not we use the clear and convincing standard

the preponderance of the evidence standard in both

directions it is my opinion based on everything that I have

heard and read that this is something driven by [defen-

dant] who would like to create reasons.

And the reasons that you have come up with . . . really

beneﬁt you. There is no problem with your children. They

seem to be, as I indicated, thriving.

. . . They are doing well. Their grades are satisfactory.

They are young. If there were a problem, then you would

know about it.

But in the interim, this is exactly a normal life thing

that these children might be doing adequate and next year

might do superior. We don’t know.

But you are anticipating problems because you see

problems within the school system. And I agree with

[plaintiff’s counsel], ﬁnd a school system that doesn’t have

some issues.

And so you would prefer to move into Parochial. It’s

joint. Legal mother doesn’t want it. Most important you

gave up your argument years ago and so the children are

established in this school.

2018] M

ARIK V

ARIK

357

PINION OF THE

OURT

I will not interrupt their weeknights when they are

doing

the way that they are doing and those things that

you can work out, you need to work out. If you are not

hearing from the district, you will have to communicate

with them that you need to be notiﬁed of this. Obviously if

he is borderline, I think there should be an intelligent

discussion about what should occur whether or not addi-

tional schooling is a good idea.

At the conclusion of the hearing, the trial court dis-

missed

defendant’s objections. Defendant appeals,

claiming that the trial court erred when it denied his

motion to change the children’s school enrollment and

modify parenting time.

II. PRESERVATION AND STANDARDS OF REVIEW

“Generally, an issue is not properly preserved if it is

not

raised before, addressed, or decided by the circuit

court or administrative tribunal.” AFSCME Council 25

v Faust Pub Library, 311 Mich App 449, 462; 875

NW2d 254 (2015) (quotation marks and citation omit-

ted). Defendant ﬁled a motion to change the school

enrollment and modify the parenting time for the

minor children. Plaintiff ﬁled a response, and the trial

court held a hearing. The trial court denied defendant’s

motion. Accordingly, the issue is generally preserved

for appellate review. However, defendant’s argument

as to the trial court’s improper application of res

judicata is raised for the ﬁrst time on appeal and is not

preserved.

As discussed in Lieberman v Orr, 319 Mich App 68,

76-77; 900 NW2d 130 (2017):

All custody orders must be afﬁrmed on appeal unless

the

circuit

court’s ﬁndings were against the great weight

of the evidence, the circuit court committed a palpable

abuse of discretion, or the circuit court made a clear legal

error on a major issue.

358 325 M

ICH

353 [July

PINION OF THE

OURT

The great weight of the evidence standard applies

all ﬁndings of fact. A trial court’s ﬁndings regard-

ing the existence of an established custodial envi-

ronment and regarding each custody factor should

be afﬁrmed unless the evidence clearly preponder-

ates in the opposite direction. An abuse of discretion

standard applies to the trial court’s discretionary

rulings such as custody decisions. Questions of law

are reviewed for clear legal error. A trial court

commits clear legal error when it incorrectly

chooses, interprets, or applies the law.

The applicable burden of proof presents a question of law

that is reviewed de novo on appeal. [Citations and quota-

tion marks omitted.]

Unpreserved issues are reviewed “for plain error.”

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) the

error must have occurred, 2) the error was plain, i.e.,

clear or obvious, 3) and the plain error affected sub-

stantial rights.” Id. (quotation marks and citation

omitted).

III. ANALYSIS

REQUEST

TO CHANGE SCHOOLS

Defendant ﬁrst challenges the trial court’s lack of

adherence to procedural requirements in denying his

motion to change the children’s school enrollment. He

asserts that the trial court erred by failing to conduct a

full evidentiary hearing and by failing to determine

whether an established custodial environment existed

for the minor children. We agree.

“The Child Custody Act, MCL 722.21 et seq., applies

to all circuit court child custody disputes and actions,

whether original or incidental to other actions.” Pierron

2018] M

ARIK V

ARIK

359

PINION OF THE

OURT

v Pierron,

282 Mich App 222, 243; 765 NW2d 345 (2009)

(Pierron I), aff’d 486 Mich 81 (2010) (quotation marks

and citation omitted). The purpose of the Child Custody

Act is “to promote the best interests of the child and to

provide a stable environment for children that is free of

unwarranted custody changes.” Lieberman, 319 Mich

App at 78 (quotation marks and citation omitted).

Speciﬁcally, MCL 722.27 provides, in relevant part:

(1) If a child custody dispute has been submitted to the

circuit

court as an original action under this act or has

arisen incidentally from another action in the circuit court

or an order or judgment of the circuit court, for the best

interests of the child the court may do 1 or more of the

following:

* * *

previous judgments or orders for proper cause shown or

because of change of circumstances until the child reaches

18 years of age . . . . The 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.

Preliminarily, it is important to remember that the

Child

Custody

Act “provides that when parents share

joint legal custody—as the parties do here—the par-

ents shall share decision-making authority as to the

important decisions affecting the welfare of the child.

However, when the parents cannot agree on an impor-

tant decision, such as a change of the child’s school, the

court is responsible for resolving the issue in the best

interests of the child.” Pierron v Pierron, 486 Mich 81,

85; 782 NW2d 480 (2010) (Pierron II) (quotation marks

and citations omitted). The threshold determination is

whether an established custodial environment exists.

360 325 M

ICH

353 [July

PINION OF THE

OURT

Pierron I, 282 Mich App at 244. “The established

custodial

environment is the environment in which

over an appreciable time the child naturally looks to

the custodian in that environment for guidance, disci-

pline, the necessities of life, and parental comfort.”

Pierron II, 486 Mich at 85-86 (quotation marks and

citation omitted). “An established custodial environ-

ment may exist in more than one home and can be

established as a result of a temporary custody order, in

violation of a custody order, or in the absence of a

custody order.” Pierron I, 282 Mich App at 244 (quota-

tion marks and citations omitted). An important deci-

sion affecting a child’s welfare does not necessarily

mean the established custodial environment has been

modiﬁed. Pierron II, 486 Mich at 86. There is only a

change to the established custodial environment if

parenting-time adjustments change “whom the child

naturally looks to for guidance, discipline, the necessi-

ties of life, and parental comfort . . . .” Id. A court may

not change the established custodial environment “un-

less there is presented clear and convincing evidence

that it is in the best interest of the child.” Id. (quotation

marks and citation omitted). If the request to change

schools does not change the established custodial en-

vironment, “the heightened evidentiary burden is not

applicable, and [the] defendant is required to prove by

a preponderance of the evidence that the proposed

change of schools would be in the best interests of the

children . . . .” Id. at 89-90. “If, on the other hand, the

court ﬁnds that no established custodial environment

exists, then the court may change custody or enter a

new order ‘if the party bearing the burden proves by a

preponderance of the evidence that the change serves

the child’s best interests.’ ” Pierron I, 282 Mich App at

245 (citation omitted).

2018] M

ARIK V

ARIK

361

PINION OF THE

OURT

In other words, when making these determinations,

trial

courts must ﬁrst address whether an established

custodial environment exists. If it does, the trial court

must determine whether the requested change would

affect the established custodial environment of the

child and, dependent on that outcome, ascertain the

proper burden of proof to be employed. If the proposed

change alters the established custodial environment,

the party seeking the change must demonstrate by

clear and convincing evidence that the change is in the

child’s best interests. If the change does not alter the

established custodial environment, then the proponent

of the change need only demonstrate by a preponder-

ance of the evidence that the requested change is in the

child’s best interests. Pierron II, 486 Mich at 89-90.

The child’s best interests are determined by evalu-

ating the factors designated in MCL 722.23. As clari-

ﬁed in Pierron II:

MCL 722.23 requires “the sum

total of

the . . . factors to be

considered, evaluated, and determined by the court[.]”

(Emphasis added.) In Parent v Parent, 282 Mich App 152;

762 NW2d 553 (2009), the Court of Appeals addressed this

issue, also in the context of a dispute over a proposed

change of school. Recognizing that even though each of the

factors might not be relevant to the issue, MCL 722.23

requires consideration of “all” the factors, the Court held

that “[t]he trial court must at least make explicit factual

ﬁndings with regard to the applicability of each factor.” Id.

at 157 (emphasis added). We believe that this approach

complies with MCL 722.23 and allows for the proper

evaluation of whether an important decision is genuinely

in the best interests of the children, in accordance with the

Child Custody Act. Therefore, we hold that when a trial

court is considering a decision that will not modify the

established custodial environment, such as the change-of-

school issue in this case, it must consider the applicability

of all the factors. However, if the trial court determines

362 325

ICH

353 [July

PINION OF THE

OURT

that a particular factor is irrelevant to the immediate

issue,

it need not make substantive factual ﬁndings con-

cerning the factor beyond this determination, but need

merely state that conclusion on the record. [Pierron II, 486

Mich at 91 (alterations in original).]

While the trial court did not designate it as such, the

de novo hearing the court conducted on June 13, 2016,

was in essence a Lombardo

hearing. At a Lombardo

hearing, the trial court “must consider, evaluate, and

determine each of the factors listed at MCL 722.23 for

the purpose of resolving disputes concerning important

decisions affecting the welfare of the child that arise

between joint custodial parents.” Pierron I, 282 Mich

App at 247 (quotation marks and citation omitted).

Defendant initially argues that the trial court erred

by failing to conduct a full evidentiary hearing. We

agree. The record makes clear that the trial court did

not allow the parties an opportunity to fully present

evidence on the issue of whether changing the chil-

dren’s school was in their best interests. Instead, the

parties’ attorneys presented their arguments, plaintiff

and defendant were placed under oath, and the trial

court asked them questions. We have long held that

when the trial court must ﬁrst answer the threshold

question of whether there was a proper cause or

change of circumstances, “the court need not necessar-

ily conduct an evidentiary hearing on the topic.”

Corporan v Henton, 282 Mich App 599, 605; 766 NW2d

903 (2009). In this case, however, the trial court was not

required to answer this threshold question before con-

sidering a request to change schools.

Instead, the trial

Lombardo

v Lombardo, 202 Mich App 151, 160; 507 NW2d 788

(1993).

In this case, as in the Pierron cases, there was no prior order

regarding the children’s enrollment in school, and therefore, defendant

2018] M

ARIK V

ARIK

363

PINION OF THE

OURT

court was tasked with determining the children’s estab-

ished custodial environment, whether the requested

change would alter it, and whether the requested

change was in the best interests of the minor children.

This determination requires an evidentiary hearing in

the form of a Lombardo hearing. See Pierron I, 282 Mich

App at 247 (“The court must do so by holding an

evidentiary hearing and considering the relevant best-

interest factors contained in MCL 722.23.”). There was

no evidence introduced, no witnesses called, no cross-

examination by opposing counsel, and, as stated in more

detail later in this opinion, no express consideration of

the best-interest factors contained in MCL 722.23.

Therefore, we conclude that the trial court failed to

conduct a full evidentiary hearing on the request to

change the children’s school enrollment, and for that

reason, remand is required.

Furthermore, even if the hearing itself was ad-

equate, the trial court failed to properly analyze the

request to change schools consistently with the Child

Custody Act. To begin, the trial court did not determine

whether an established custodial environment exists

or whether the change of schools would alter that

environment. Our Supreme Court has directed that

“[w]hen resolving important decisions that affect the

welfare of the child, the court must ﬁrst consider

whether the proposed change would modify the estab-

lished custodial environment.” Pierron II, 486 Mich at

85. In this case, the trial court failed to consider that

question, and this legal error is sufﬁcient to require

that we vacate and remand this case to the trial court.

was not required to show proper cause or a change of circumstances as

the request to change schools. There was, however, a prior interim

order involving the 2012–2013 school year, but nothing addressing the

current or future enrollment of the minor children.

364 325

ICH

353 [July

PINION OF THE

OURT

Moreover, the trial court concluded that, regardless

the legal standard applied, a change of schools would

not be in the children’s best interests. Even if the trial

court would have made a record that the more strin-

gent clear-and-convincing evidence standard was ap-

propriate, it failed to analyze a single best-interest

factor under MCL 722.23, which requires “the sum

total of the . . . factors to be considered, evaluated, and

determined by the court[.]” Pierron II, 486 Mich at 91

(quotation marks and citation omitted; alterations in

original). “[E]ven though each of the factors might not

be relevant to the issue, MCL 722.23 requires consid-

eration of ‘all’ the factors,” and “[t]he trial court must

at least make explicit factual ﬁndings with regard to

the applicability of each factor.” Pierron II, 486 Mich at

91 (quotation marks and citation omitted). If a particu-

lar factor is irrelevant, then the trial court “need

merely state that conclusion on the record.” Id. The

trial court’s failure to address any of the factors under

MCL 722.23, let alone declare which factors were

applicable and which were not, is fatal. On remand the

trial court must ﬁrst determine the issues concerning

the established custodial environment and then con-

duct a full analysis of the best-interest factors.

Defendant’s second claim of error—that the trial

court improperly dismissed his objections on a res

judicata theory—is without merit. Contrary to defen-

dant’s contention, the trial court did not improperly

rely on a motion to change school systems that defen-

dant had ﬁled in 2012, and defendant’s subsequent

withdrawal of that request does not evidence the trial

court’s improper application of the doctrine of res

judicata

to the issue of school enrollment. Rather, the

“Michigan

law deﬁnes res judicata broadly to bar litigation in the

second action not only of those claims actually litigated in the ﬁrst

2018] M

ARIK V

ARIK

365

PINION OF THE

OURT

trial court pressed defendant during the hearing to

identify

how the requested change was in the chil-

dren’s best interests. Defendant’s previous withdrawal

of a similar motion several years earlier was used by

the trial court to question defendant about what had

changed in the four-year interim between motions to

necessitate the enrollment of the children in a different

school system. In noting that the children had been

attending their current school for four years, without

defendant challenging their current academic place-

ment, the trial court was seeking to obtain an expla-

nation of why a change was now necessary and how it

would serve the best interests of the children. The trial

court’s reference to defendant’s prior motion was not to

preclude or raise a barrier to a new motion but simply

to evaluate the merits of that new motion.

Plaintiff’s contention that the children’s “gradua-

tion” from Kenwood Elementary School at the conclu-

sion of this academic year renders the issue moot is

also mistaken. According to plaintiff, the children will

conclude ﬁfth grade at Kenwood Elementary School,

presumably within the upcoming month. Plaintiff sug-

gests that this renders defendant’s issue regarding

school enrollment moot because Kenwood Elementary

School does not have classes beyond the ﬁfth-grade

level and defendant has only taken exception to the

children’s attendance at this particular school. First,

this is a mischaracterization of defendant’s argument.

Defendant challenged the children’s attendance in

their current school district, with emphasis on issues

pertaining to Kenwood Elementary School, due to

various alleged ﬁnancial problems that both the dis-

action, but also claims arising out of the same transaction that the

parties,

exercising reasonable diligence, could have litigated but did

not.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 11; 672

NW2d 351 (2003).

366 325

ICH

353 [July

PINION OF THE

OURT

trict and school were experiencing. Second, when indi-

cating

a preference for the children’s enrollment in a

parochial school, defendant speciﬁcally observed that

their enrollment could continue in the proposed school

until high school, allegedly contributing to greater

stability and continuity. It can be anticipated, given

the history and evident animosity between plaintiff

and defendant, that the need for the children to select

a school to attend for middle school will result in new

litigation should plaintiff and defendant be unable to

agree on a school for their enrollment. However, if the

parties cannot agree on a school in which to enroll the

minor children, the issue would need to be presented to

the trial court for resolution of that speciﬁc conﬂict

between the joint legal custodians. Lombardo, 202

Mich App at 159.

B. REQUEST TO MODIFY PARENTING TIME

The ﬁnal issue to be addressed is defendant’s re-

quest

modify parenting time. Defendant argues that

the trial court applied the wrong standard when evalu-

ating his request to add 18 overnights. Speciﬁcally, he

contends that the trial court improperly relied on

Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d

847 (2003), rather than Shade v Wright, 291 Mich App

17; 805 NW2d 1 (2010).

Changes in custody or parenting time may be modi-

ﬁed only if the moving party demonstrates that modi-

ﬁcation is justiﬁed by proper cause or because of a

change of circumstances. MCL 722.27(1)(c). If the

requested modiﬁcation, such as a motion to change

custody, alters the child’s established custodial envi-

ronment, the stricter Vodvarka framework would ap-

ply. Shade, 291 Mich App at 25-26. However, “a lesser,

more ﬂexible, understanding of ‘proper cause’ or

2018] M

ARIK V

ARIK

367

PINION OF THE

OURT

‘change in circumstances’ ” is applicable to a request to

modify

parenting time. Kaeb v Kaeb, 309 Mich App

556, 570-571; 873 NW2d 319 (2015). Speciﬁcally, “the

very normal life change factors that Vodvarka ﬁnds

insufﬁcient to justify a change in custodial environ-

ment are precisely the types of considerations that

trial courts should take into account in making deter-

minations regarding modiﬁcation of parenting time.”

Shade, 291 Mich App at 30.

As more recently explicated by this Court in Kaeb,

309 Mich App at 570-571:

Because the imposition, revocation, or modiﬁcation of a

condition

on the exercise of parenting time will generally

not affect an established custodial environment or alter

the frequency or duration of parenting time, we are

persuaded that a lesser, more ﬂexible, understanding of

“proper cause” or “change in circumstances” should apply

to a request to modify or amend a condition on parenting

time. As in Shade, it is evident that even normal changes

to the lives of the parties affected by a parenting-time

order may so alter the circumstances attending the initial

imposition of a condition that a trial court would be

justiﬁed in revisiting the propriety of the condition. A

condition that was in the child’s best interests when the

child was in elementary school might not be in the child’s

best interests after he or she reaches high school. Even

ordinary changes in the parties’ behavior, status, or living

conditions might justify a trial court in ﬁnding that a

previously imposed condition is no longer in the child’s

best interests. We conclude that “proper cause” should be

construed according to its ordinary understanding when

applied to a request to change a condition on parenting

time; that is, a party establishes proper cause to revisit

the condition if he or she demonstrates that there is an

appropriate ground for taking legal action. [Citations

omitted.]

In this instance, defendant implies that a change in

the

children’s

school enrollment would also constitute

368 325 M

ICH

353 [July

PINION OF THE

OURT

a change in circumstances sufﬁcient to revisit the issue

parenting time. Defendant also suggests that his

remarriage and the children’s relationship with his

wife and her daughter comprise a sufﬁcient change in

circumstances to revisit parenting time.

Because the trial court denied defendant’s request to

alter the children’s school enrollment, there existed no

change in circumstances on this alleged basis to sup-

port defendant’s modiﬁcation of parenting time. How-

ever, because we are remanding for further proceed-

ings on the request to change schools, this issue will

need to be addressed at that time as well. See Pierron

I, 282 Mich App at 249 (acknowledging that a change

in school enrollment “might require minor modiﬁca-

tions to [the] plaintiff’s parenting time schedule”).

Defendant’s alternative basis for the modiﬁcation of

parenting time, his remarriage and the relationship of

the children with members of their stepfamily, is

sufﬁcient under Shade to meet the initial threshold of

a change of circumstances to consider the request.

Defendant contends, however, that the trial court ig-

nored Shade and applied the stricter, and inappropri-

ate, standard imposed by Vodvarka in its analysis.

Because the trial court failed to determine whether an

established custodial environment exists, let alone

whether a modiﬁcation of parenting time would change

that environment, remand is also required on this

issue.

e make clear that the trial court in no way expressed its reliance

on a referee’s analysis, wherein the referee might have properly ad-

dressed the established custodial environment and best-interest factors

at a hearing. In fact, there is no transcript of the referee’s hearing in this

case, and the trial court instead reevaluated the evidence, questioned

the parties, and made an independent decision based on the parties’

brieﬁng and the record.

2018] M

ARIK V

ARIK

369

PINION OF THE

OURT

Whether the V

odvarka or Shade standard is applied

depends on the existence of an established custodial

environment and whether the proposed parenting-

time change would alter that environment. Speciﬁ-

cally:

In a parenting-time matter, when the proposed change

would

not affect the established custodial environment,

the movant must prove by a preponderance of the evidence

that the change is in the best interests of the child.

However, . . . when the proposed parenting-time change

alters the established custodial environment, the proposal

is essentially a change in custody, and Vodvarka governs.

[Lieberman, 319 Mich App at 84 (citation omitted).]

Again, the trial court did not speciﬁcally address or

iscuss the existence of an established custodial en-

vironment for the children or the extent to which the

best-interest factors were applicable. While the judg-

ment of divorce granted joint physical and legal

custody, a trial court must not “presume an estab-

lished custodial environment by reference only to” the

most recent custody order but rather must “look into

the actual circumstances of the case.” Curless v

Curless, 137 Mich App 673, 676-677; 357 NW2d 921

(1984). This determination is required before the trial

court may make a conclusion on the best-interest

factors.

Moreover, a determination of the effect of the

parenting-time modiﬁcation on the custodial environ-

ment is necessary to determine the proper standard—

Vodvarka (clear and convincing evidence) versus

Shade (preponderance of the evidence)—to be applied

in determining the best interests of the children.

Although defendant argues that the trial court im-

properly applied the stricter Vodvarka standard, in

reality, the trial court opined that under either stan-

370 325 M

ICH

353 [July

PINION OF THE

OURT

dard the best interests of the children were not served

y the increase in overnight parenting time with

defendant. Speciﬁcally, the trial court stated, “Now,

whether or not we use the clear and convincing

standard or the preponderance of the evidence stan-

dard in both directions it is my opinion based on

everything that I have heard and read that this is

something driven by the Defendant who would like to

create reasons.” Given the trial court’s implication

that the requested parenting time would affect the

established custodial environment, application of the

Vodvarka standard would not be misplaced or consti-

tute error. However, the trial court did not reach a

conclusion as to whether the Vodvarka standard or

the Shade standard applies to this case, and the

standard dictates whether the trial court must ad-

dress each best-interest factor or may only address

those factors in dispute. See Shade, 291 Mich App at

31-32 (concluding that “[c]ustody decisions require

ﬁndings under all of the best-interest factors, but

parenting time decisions may be made with ﬁndings

on only the contested issues”).

Therefore, even though the trial court repeatedly

sought to focus on and emphasize the best interests of

the minor children, it did not expressly address any of

the best-interest factors. If, on remand, the trial court

concludes that the Shade standard applies, then it

need only make ﬁndings on the contested issues. How-

ever, if it concludes that the stricter Vodvarka standard

applies, then it must address all the best-interest

factors.

Vacated and remanded. We do not retain jurisdic-

tion.

ANSEN

, J., concurred with C

AMERON

, P.J.

2018] M

ARIK V

ARIK

371

PINION OF THE

OURT

O’C

ONNELL

, J. (concurring). I concur with Judge

AMERON

’s well-written majority opinion. I write sepa-

rately to propose an Inevitable Remand Rule. Gener-

ally speaking, the controlling issue in any child custody

case is the child’s established custodial environment

(ECE) at the time of the hearing. This is true whether

the issue presented is legal custody or physical custody

of the minor child. As I stated in Lieberman v Orr, 319

Mich App 68, 105; 900 NW2d 130 (2017) (O’C

ONNELL

J., dissenting), “the controlling consideration is the

child’s custodial environment at the time of the hear-

ing.”

When a trial court fails to articulate, with precision,

which party has, or which parties share, the ECE and

the ECE cannot be discerned from the lower-court

record, the Court of Appeals should invoke the Inevi-

table Remand Rule with the help of a motion from one

of the parties. Simply put, on appeal, when the trial

transcript is devoid of a trial court’s ﬁndings on which

party has, or which parties share, the ECE, a motion to

remand should immediately be ﬁled with the Court of

Appeals. The motion should articulate that the trial

court erred and request a remand for an evidentiary

hearing for the trial court to decide which party has, or

which parties share, the ECE. (Needless to say, the

motion should not be ﬁled if the trial court has made a

ﬁnding on the ECE and a party simply disagrees with

the trial court ﬁndings. Such a motion would be con-

sidered frivolous.)

In the present case, the trial court decided a

parenting-time issue and a school issue on June 13,

2016, without ﬁrst deciding the ECE of the minor

children. The majority opinion sets forth the frame-

work for this Court’s review of the trial court’s deci-

sion; there is no need to repeat it in this concurring

372 325 M

ICH

353 [July

ONCURRING

PINION BY

O’C

ONNELL

, J.

opinion. (Both the majority and dissenting opinions in

Lieberman

, 319 Mich App 68, have an excellent discus-

sion of this issue.) But, it is now approximately two

years since the trial court made its initial decision, and

we are remanding this case for a determination of the

ECE. Of course, the trial court can consider any change

of circumstances in the past two years. Needless to say,

for numerous reasons, such a process is a colossal

waste of time, damaging to the children, very expen-

sive to the parties, and highly inefﬁcient in deciding

child custody matters.

I write this concurring opinion simply to propose

and advocate an Inevitable Remand Rule when the

trial court fails to make a ﬁnding regarding the ECE.

2018] M

ARIK V

ARIK

373

ONCURRING

PINION BY

O’C

ONNELL

, J.

In re PORTUS

Docket

No. 337980. Submitted July 10, 2018, at Detroit. Decided

July 24, 2018, at 9:05 a.m.

In 1974, respondent, Charles F. Portus, was found not guilty by

reason of insanity of charges related to the murder of a child and

was committed to the Center for Forensic Psychiatry (CFP). On

October 19, 2016, the CFP ﬁled an annual petition in the Oakland

Probate Court for a continuing order of involuntary mental health

treatment, alleging that respondent continued to be a “person

requiring treatment” and that respondent was in need of continu-

ing hospitalization for a period of one year. The court held a

hearing regarding the petition, at which respondent’s attorney

stipulated that respondent was a person requiring treatment but

challenged “the type of hospitalization” required, arguing that

respondent should be transferred from the CFP to Harbor Point

Center. The court, Kathleen A. Ryan, J., entered an order requir-

ing respondent to undergo continuing treatment and hospitaliza-

tion at the CFP for a period not to exceed one year, subject to the

court’s later determination regarding the proper placement for

respondent’s treatment, and scheduled an evidentiary hearing to

determine the “burden of proof for placement of a person found to

be in need of treatment.” Following the hearing, the court

concluded that there was no burden of proof with respect to

determining the appropriate form of treatment to order for

respondent and denied respondent’s request to be placed at

Harbor Point Center, ordering that respondent remain at the

CFP “until further order of the court.” The court then entered an

amended continuing order for mental health treatment; the order

required respondent to be hospitalized at the CFP “until further

order of the court” but up to 365 days. Respondent appealed.

The Court of Appeals held:

1. MCL 330.1473 provides, in pertinent part, that not less

than 14 days before the expiration of a continuing order of

involuntary mental health treatment issued under MCL

330.1472a or MCL 330.1485a, a hospital director shall ﬁle a

petition for a second or continuing order of involuntary mental

health treatment if the hospital director or supervisor believes

374 325

ICH

374 [July

the individual continues to be a person requiring treatment and

that

the individual is likely to refuse treatment on a voluntary

basis when the order expires. The ﬁling of a petition under MCL

330.1473 before the expiration of a continuing order of involun-

tary mental health treatment triggers MCL 330.1472a(4), which

provides, in pertinent part, that upon receipt of the petition and

a ﬁnding that the individual continues to be a person requiring

treatment, the court shall issue another continuing order for

involuntary mental health treatment as provided in MCL

330.1472a(3) for a period not to exceed 1 year. MCL 330.1472a(3)

lists the options for involuntary mental health treatment: hospi-

talization, alternative treatment, assisted outpatient treatment,

a combination of hospitalization and alternative treatment, or a

combination of hospitalization and assisted outpatient treatment.

Therefore, the issuance of a continuing order for involuntary

mental health treatment essentially requires the probate court to

follow a two-step process: ﬁrst, the probate court must ﬁnd that

the individual continues to be a person requiring treatment, and

second, the probate court must issue another continuing order for

involuntary mental health treatment as provided in MCL

330.1472a(3) for a period not to exceed one year. In this case,

respondent conceded that he was a person requiring treatment;

therefore, the ﬁrst step was not at issue. As for the second

step—determining which treatment option under MCL

330.1472a(3) to order—the statutory framework does not explic-

itly specify an evidentiary standard or burden of proof that is

applicable to the probate court’s ﬁndings. However, MCL

330.1469a provides guidance for a probate court in making this

determination. MCL 330.1469a(1)(a) and (b) provide, in pertinent

part, that the probate court must determine (1) whether an

alternative treatment program is adequate to meet the individu-

al’s treatment needs, (2) whether an alternative treatment pro-

gram is sufﬁcient to prevent harm that the individual may inﬂict

upon himself or herself or upon others within the near future, and

(3) whether an agency or mental health professional is available

to supervise the individual’s alternative treatment program.

MCL 330.1469a(1)(c) requires that the probate court inquire

about the individual’s desires regarding alternatives to hospital-

ization. If the court ﬁnds that the requirements in MCL

330.1469a(1)(a) and (b) are met with respect to a treatment

program that is an alternative to hospitalization, then under

MCL 330.1469a(2), the court shall issue an order for alternative

treatment or combined hospitalization and alternative treatment

in accordance with MCL 330.1472a. Accordingly, if the probate

court determines that there is an adequate form of alternative

2018] In

re P

ORTUS

375

treatment that satisﬁes the standards in MCL 330.1469a(1)(a)

and

(b), then the probate court does not have the discretion to

order hospitalization as the sole form of treatment. Given that the

probate court is statutorily required to make speciﬁc determina-

tions before ordering a course of treatment, a court cannot make

these determinations in a vacuum or without referring to evi-

dence; some standard of proof is necessary to substantiate a

probate court’s determinations regarding the appropriate treat-

ment and placement. There is no indication in MCL 330.1469a

that some standard of proof other than the default

preponderance-of-the-evidence standard should apply; therefore,

MCL 330.1469a requires that a preponderance of the evidence

support the probate court’s ﬁndings with respect to its determi-

nations regarding an individual’s treatment and placement. The

proponent of a particular form of treatment or placement at a

speciﬁc facility for an individual who has been found to be a

person requiring treatment bears the burden of proving by a

preponderance of the evidence the facts necessary to persuade the

probate court to enter such an order and for the probate court to

be legally justiﬁed in entering such an order pursuant to the

statutory requirements in Chapter 4 of the Mental Health Code,

MCL 330.1400 et seq. Accordingly, the probate court erred by

ruling that there was no applicable burden of proof to its

treatment determination and issuing its treatment order without

tying it to any evidentiary standard.

2. An error is harmless if it did not affect the outcome of the

proceeding. In this case, because the probate court believed that

there was no applicable burden or standard of proof and made its

ﬁndings and conclusions while operating under that belief, the

basis on which the probate court made its ﬁndings could not be

ascertained. Therefore, the probate court’s error was not harm-

less.

3. Respondent argued that MCL 330.1468(2) applies only to

petitions ﬁled under MCL 330.1434 and that MCL 330.1468(2)

was therefore inapplicable in the instant case because the subject

petition was ﬁled pursuant to MCL 330.1473 rather than MCL

330.1434. However, MCL 330.1400(f) deﬁnes “involuntary mental

health treatment” as “court-ordered hospitalization, alternative

treatment, or combined hospitalization and alternative treatment

as described in section 468.” Because the probate court was

speciﬁcally directed to look to MCL 330.1468, which sets forth

potential treatment options, the probate court did not err by

referring to this statute.

376 325

ICH

374 [July

4. For purposes of the Mental Health Code, MCL 330.1001 et

seq

., the terms “hospital” and “psychiatric hospital” are both

deﬁned as an inpatient program operated by the Department of

Health and Human Services for the treatment of individuals with

serious mental illness or serious emotional disturbance or a

psychiatric hospital or psychiatric unit licensed under MCL

330.1137. In this case, the probate court determined that Harbor

Point Center was not a hospital, but the court did not apply any

statutory deﬁnition in making that determination. Accordingly,

the probate court was directed to determine whether the evidence

establishes that Harbor Point meets the statutory deﬁnition of

“hospital” for purposes of the Mental Health Code should the

issue arise on remand.

5. The probate court erred by ordering respondent to remain

at the CFP “until further order of the court.” MCL 330.1476(2)

and MCL 330.2050(5) expressly provide a procedural mechanism

for discharging an individual who no longer meets the criteria of

a person requiring treatment, and this procedural mechanism

does not require a court order sanctioning the discharge. There-

fore, the court’s order requiring that respondent remain at the

CFP “until further order of the court” was contrary to those

provisions.

Reversed and remanded.

ENTAL

EALTH —

ONTINUING

RDER FOR

NVOLUNTARY

ENTAL

EALTH

REATMENT —

REATMENT AND

LACEMENT

PTIONS —

TANDARD OF

ROOF

The issuance of a continuing order for involuntary mental health

treatment under MCL 330.1472a(4) essentially requires the pro-

bate court to follow a two-step process: ﬁrst, the probate court

must ﬁnd that the individual continues to be a person requiring

treatment, and second, the probate court must issue another

continuing order for involuntary mental health treatment as

provided in MCL 330.1472a(3) for a period not to exceed one year;

MCL 330.1469a provides guidance for a probate court in making

the determination of which treatment option under MCL

330.1472a(3) to order; MCL 330.1469a requires that a preponder-

ance of the evidence support the probate court’s ﬁndings with

respect to its determinations regarding an individual’s treatment

and placement; the proponent of a particular form of treatment or

placement at a speciﬁc facility for an individual who has been

found to be a person requiring treatment bears the burden of

proving by a preponderance of the evidence the facts necessary to

persuade the probate court to enter such an order and for the

probate court to be legally justiﬁed in entering such an order

2018] In

re P

ORTUS

377

pursuant to the statutory requirements in Chapter 4 of the

Mental

Health Code, MCL 330.1400 et seq.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, Thomas R. Grden, Appellate Division Chief, and

Matthew A. Fillmore, Assistant Prosecuting Attorney,

for the people.

William Lansat for Charles F. Portus.

Before: B

ORRELLO

, P.J., and M. J. K

ELLY

and

OONSTRA

, JJ.

ORRELLO

, P.J. Respondent, Charles Frederick

Portus, appeals as of right a probate court order

requiring him to remain hospitalized at the Center for

Forensic Psychiatry (CFP) and denying his request to

be transferred to Harbor Point Center for treatment.

For the reasons set forth in this opinion, we reverse

the probate court’s order and remand this matter for

further proceedings consistent with this opinion.

I. BACKGROUND

This appeal arises out of the annual petition for a

continuing

order

of involuntary mental health treat-

ment that was ﬁled by the CFP on October 19, 2016. In

this petition, it was alleged that respondent continued

to be a “person requiring treatment”

and that respon-

dent

was in need of continuing hospitalization for a

period of one year. The probate court noted that in

1974, respondent was found not guilty by reason of

insanity of the murder of a seven-year-old boy. As a

result, respondent was committed to the CFP.

See

MCL 330.1401 (deﬁning “person requiring treatment” for pur-

poses of Chapter 4 of the Mental Health Code, MCL 330.1400 et seq.).

378 325 M

ICH

374 [July

The probate court held a hearing regarding the CFP

petition

on December 9, 2016. At the hearing, respon-

dent’s attorney stipulated that respondent was a per-

son requiring treatment but challenged “the type of

hospitalization” required, arguing that respondent

should be transferred from the CFP to Harbor Point

Center. Consistently with the parties’ stipulation, the

probate court entered an order requiring respondent to

undergo continuing treatment and hospitalization at

the CFP for a period not to exceed one year, subject to

the court’s later determination regarding the proper

placement for respondent’s treatment. The probate

court scheduled an evidentiary hearing and directed

the parties to submit briefs stating, among other

things, their respective positions concerning “the bur-

den of proof for placement of a person found to be in

need of treatment.”

Responding to this directive, petitioner argued that

under the Mental Health Code, MCL 330.1001 et seq.,

“there is no burden of proof on the petitioner to show

clear and convincing evidence or a preponderance of

the evidence that [respondent] should continue to be

placed at the Center for Forensic Psychiatry.” Peti-

tioner further argued that the probate court should

exercise its discretion in weighing respondent’s “need

for treatment, the safety of the public, and what is the

less [sic] restrictive setting to accomplish those

goals.” According to petitioner, the evidentiary stan-

dard contained in MCL 330.1465, which provides that

“[a] judge or jury shall not ﬁnd that an individual is a

person requiring treatment unless that fact has been

established by clear and convincing evidence,” only

applied to determining whether an individual was a

“person requiring treatment.” Petitioner argued that

respondent had already been determined to be a

person requiring treatment pursuant to the parties’

2018] In re P

ORTUS

379

stipulation and that the Mental Health Code did not

ontain any statutorily required “burden of proof” for

determining an individual’s placement facility.

Respondent, in contrast, argued that the eviden-

tiary standard in MCL 330.1465 should carry through

to the determination regarding the appropriate place-

ment and form of treatment for a person requiring

treatment. Respondent also acknowledged that, in

the alternative, a preponderance-of-the-evidence

standard could potentially apply to the placement

determination. Respondent argued, however, that re-

gardless of the standard of proof applied, the burden

of proof should remain with petitioner to establish

that the CFP was the appropriate placement for

respondent.

The probate court addressed this issue at the outset

of the evidentiary hearing, concluding as follows:

[I]t’s really up to the judge. There is no burden of proof

with

regard

to the treatment. The burden of proof applies

only to whether the person is mentally ill or not. That’s

already been stipulated to. So now it’s just to see if this is

the most appropriate treatment.

Following the presentation of witness testimony,

exhibits,

and oral argument during the evidentiary

hearing, the probate court announced its ﬁndings and

ruling on the record. The probate court denied respon-

dent’s request to be placed at Harbor Point Center for

treatment, and it ordered that respondent would re-

main at the CFP “until further order of the court . . . .”

An amended continuing order for mental health treat-

ment was entered consistently with the probate court’s

oral ruling, which ordered respondent to be hospital-

ized at the CFP “until further order of the court” but up

to 365 days. This appeal ensued.

380 325 M

ICH

374 [July

II. STANDARD OF REVIEW

his Court “reviews for an abuse of discretion a

probate court’s dispositional rulings and reviews for

clear error the factual ﬁndings underlying a probate

court’s decision.” In re Bibi Guardianship, 315 MichApp

323, 328; 890 NW2d 387 (2016). An abuse of discretion

occurs when the probate court “chooses an outcome

outside the range of reasonable and principled out-

comes.” Id. at 329 (quotation marks and citation omit-

ted). “A probate court’s ﬁnding is clearly erroneous

when a reviewing court is left with a deﬁnite and ﬁrm

conviction that a mistake has been made, even if there

is evidence to support the ﬁnding.” Id. (quotation marks

and citation omitted). We review de novo matters of

statutory interpretation. In re Redd Guardianship, 321

Mich App 398, 404; 909 NW2d 289 (2017). The probate

court “necessarily abuses its discretion when it makes

an error of law.” Ronnisch Constr Group, Inc v Lofts on

the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113

(2016).

III. ANALYSIS

On appeal, respondent ﬁrst argues that the probate

court

erred

by ruling that there was no applicable

burden of proof with respect to determining the appro-

priate form of treatment to order for respondent. This

issue appears to be one of ﬁrst impression and presents

this Court with questions of statutory interpretation.

“When interpreting statutes, our primary goal is to

ascertain and give effect to the intent of the Legisla-

ture.” Averill v Dauterman, 284 Mich App 18, 22; 772

NW2d 797 (2009). In doing so, we ﬁrst turn to “the

speciﬁc language of the statute, considering the fair

and natural import of the terms employed, in view of

the subject matter of the law.” Id. We must “examine

2018] In re P

ORTUS

381

the statute as a whole, reading individual words and

phrases

in the context of the entire legislative scheme.”

Michigan ex rel Gurganus v CVS Caremark Corp, 496

Mich 45, 59; 852 NW2d 103 (2014) (quotation marks

and citation omitted).

Proceedings seeking an order of involuntary mental

health treatment under the Mental Health Code for an

individual on the basis of mental illness, including

when such proceedings are instituted following a not-

guilty-by-reason-of-insanity verdict, generally are re-

ferred to as “civil commitment” proceedings. See, e.g.,

People v Dobben, 440 Mich 679, 690-691; 488 NW2d

726 (1992); People v Miller, 440 Mich 631, 640; 489

NW2d 60 (1992); People v Williams, 228 Mich App 546,

556-557; 580 NW2d 438 (1998); In re KB, 221 Mich App

414, 417; 562 NW2d 208 (1997); In re Baker, 117 Mich

App 591, 592-593, 595; 324 NW2d 91 (1982); In re

Wagstaff, 93 Mich App 755, 757; 287 NW2d 339 (1979).

The speciﬁc procedures for obtaining continuing orders

of hospitalization or other forms of treatment based on

a person’s mental illness are contained in various

provisions of Chapter 4 of the Mental Health Code,

MCL 330.1400 et seq.

In the instant case, respondent’s appeal stems from

the CFP’s petition for a continuing order of involuntary

mental health treatment ﬁled pursuant to § 473, MCL

330.1473, which provides, in pertinent part, that “[n]ot

less than 14 days before the expiration of [a] . . .

continuing order of involuntary mental health treat-

ment issued under [MCL 330.1472a] or [MCL

330.1485a], a hospital director . . . shall ﬁle a petition

for a second or continuing order of involuntary mental

health treatment if the hospital director or supervisor

believes the individual continues to be a person requir-

ing treatment and that the individual is likely to refuse

382 325 M

ICH

374 [July

treatment on a voluntary basis when the order ex-

pires.”

The ﬁling of a petition under § 473 before the

expiration of a continuing order of involuntary mental

health treatment triggers MCL 330.1472a(4), which

provides, in relevant part, as follows:

Upon the receipt of a petition under section 473 before

the

expiration of a continuing order of involuntary mental

health treatment . . . and a ﬁnding that the individual

continues to be a person requiring treatment, the court

shall issue another continuing order for involuntary men-

tal health treatment as provided in [MCL 330.1472a(3)]

for a period not to exceed 1 year. The court shall continue

to issue consecutive 1-year continuing orders for involun-

tary mental health treatment under this section until a

continuing order expires without a petition having been

ﬁled under section 473 or the court ﬁnds that the indi-

vidual is not a person requiring treatment.

MCL 330.1472a(4) directs our attention to § 472a(3),

MCL

330.1472a(3), which lists the options for involun-

tary mental health treatment and imposes time limi-

tations for those orders. Section 472a(3) provides, in

relevant part, as follows:

[T]he court shall issue a continuing order for involuntary

mental health

treatment that shall be limited in duration

as follows:

(a) A continuing order of hospitalization shall not

exceed 1 year.

(b) A continuing order of alternative treatment or

assisted outpatient treatment shall not exceed 1 year.

alternative treatment or hospitalization and assisted out-

patient treatment shall not exceed 1 year. The hospital-

ization portion of a continuing order for combined hospi-

talization and alternative treatment or hospitalization

and assisted outpatient treatment shall not exceed 90

days.

2018] In

re P

ORTUS

383

Furthermore, the term “involuntary mental health

treatment”

is statutorily deﬁned for purposes of Chap-

ter 4 of the Mental Health Code as “court-ordered

hospitalization, alternative treatment, or combined

hospitalization and alternative treatment as described

in section 468.” MCL 330.1400(f). Section 468(2), MCL

330.1468(2), provides descriptions of the forms of treat-

ment that may be ordered upon a ﬁnding that an

individual is a person requiring treatment, and these

descriptions correspond to the forms of treatment

referred to in MCL 330.1472a(3). Section 468(2) pro-

vides, in relevant part, as follows:

[I]f an individual is found to be a person requiring treat-

ment,

the court shall do 1 of the following:

(a) Order the individual hospitalized in a hospital

recommended by the community mental health services

program or other entity as designated by the department.

(b) Order the individual hospitalized in a private or

veterans administration hospital at the request of the

individual or his or her family, if private or federal funds

are to be utilized and if the hospital agrees. . . .

treatment that is an alternative to hospitalization and

that is recommended by the community mental health

services program or other entity as designated by the

department.

(d) Order the individual to undergo a program of

combined hospitalization and alternative treatment or

hospitalization and assisted outpatient treatment, as rec-

ommended by the community mental health services

program or other entity as designated by the department.

(e) Order the individual to receive assisted outpatient

treatment through a community mental health services

program, or other entity as designated by the department,

capable of providing the necessary treatment and services

to assist the individual to live and function in the commu-

nity as speciﬁed in the order.

384 325

ICH

374 [July

In accordance with this statutory framework, the

issuance

of a continuing order for involuntary mental

health treatment essentially requires the probate

court to follow a two-step process. First, the probate

court must ﬁnd “that the individual continues to be a

person requiring treatment . . . .” MCL 330.1472a(4).

“A judge or jury shall not ﬁnd that an individual is a

person requiring treatment unless that fact has been

established by clear and convincing evidence.” MCL

330.1465 (emphasis added). The relevant statutory

deﬁnition of a “person requiring treatment” is con-

tained in MCL 330.1401.

In this case, respondent

MCL

330.1401 provides as follows:

(1) As used in this chapter, “person requiring treatment”

means (a), (b), (c), or (d):

(a) An individual who has mental illness, and who as a result

of that mental illness can reasonably be expected within the near

future to intentionally or unintentionally seriously physically

injure himself, herself, or another individual, and who has

engaged in an act or acts or made signiﬁcant threats that are

substantially supportive of the expectation.

(b) An individual who has mental illness, and who as a result

of that mental illness is unable to attend to those of his or her

basic physical needs such as food, clothing, or shelter that must

be attended to in order for the individual to avoid serious harm in

the near future, and who has demonstrated that inability by

failing to attend to those basic physical needs.

impaired by that mental illness that he or she is unable to

understand his or her need for treatment, and whose impaired

judgment, on the basis of competent clinical opinion, presents a

substantial risk of signiﬁcant physical or mental harm to the

individual in the near future or presents a substantial risk of

physical harm to others in the near future.

(d) An individual who has mental illness, whose understand-

ing of the need for treatment is impaired to the point that he or

she is unlikely to voluntarily participate in or adhere to treat-

ment that has been determined necessary to prevent a relapse or

harmful deterioration of his or her condition, and whose noncom-

2018] In

re P

ORTUS

385

conceded that he was a “person requiring treatment”;

hence,

the ﬁrst step is not at issue.

Second, after the probate court ﬁnds that an indi-

vidual is a person requiring treatment, the probate

court “shall issue another continuing order for invol-

untary mental health treatment as provided in [MCL

330.1472a(3)] for a period not to exceed 1 year.” MCL

330.1472a(4). Both § 472a(3) and § 468(2), which is

incorporated by reference to the statutory deﬁnition of

“involuntary mental health treatment,” describe the

potential treatment options: hospitalization, alterna-

tive treatment, assisted outpatient treatment, a com-

bination of hospitalization and alternative treatment,

or a combination of hospitalization and assisted outpa-

tient treatment. In determining which treatment op-

tion to order, there is statutory guidance for a probate

court in MCL 330.1469a,

which provides, in relevant

part, as follows:

pliance with treatment has been a factor in the individual’s

placement

in a psychiatric hospital, prison, or jail at least 2 times

within the last 48 months or whose noncompliance with treat-

ment has been a factor in the individual’s committing 1 or more

acts, attempts, or threats of serious violent behavior within the

last 48 months. An individual under this subdivision is only

eligible to receive assisted outpatient treatment.

(2) An individual whose mental processes have been weakened

or impaired by a dementia, an individual with a primary diagno-

sis of epilepsy, or an individual with alcoholism or other drug

dependence is not a person requiring treatment under this

chapter unless the individual also meets the criteria speciﬁed in

subsection (1). An individual described in this subsection may be

hospitalized under the informal or formal voluntary hospitaliza-

tion provisions of this chapter if he or she is considered clinically

suitable for hospitalization by the hospital director.

MCL 330.1468(3) also directs the probate court to consider certain

factors in “developing an assisted outpatient treatment order . . . .”

However, this provision is not implicated in the instant appeal because

there was no attempt to seek assisted outpatient treatment for respon-

dent.

386 325

ICH

374 [July

(1) Except for a petition ﬁled as described under [MCL

330.1434(6)],

[4]

before

ordering a course of treatment for

an individual found to be a person requiring treatment,

the court shall review a report on alternatives to hospital-

ization that was prepared under section 453a not more

than 15 days before the court issues the order. After

reviewing the report, the court shall do all of the following:

(a) Determine whether a treatment program that is an

alternative to hospitalization or that follows an initial

period of hospitalization is adequate to meet the individu-

al’s treatment needs and is sufﬁcient to prevent harm that

the individual may inﬂict upon himself or herself or upon

others within the near future.

(b) Determine whether there is an agency or mental

health professional available to supervise the individual’s

alternative treatment program.

alternatives to hospitalization.

(2) If the court determines that there is a treatment

program that is an alternative to hospitalization that is

adequate to meet the individual’s treatment needs and

prevent harm that the individual may inﬂict upon himself

or herself or upon others within the near future and that an

agency or mental health professional is available to super-

vise the program, the court shall issue an order for alter-

native treatment or combined hospitalization and alterna-

tive treatment in accordance with section 472a. The order

shall state the community mental health services program

or, if private arrangements have been made for the reim-

bursement of mental health treatment services in an

alternative setting, the name of the mental health agency

or professional that is directed to supervise the individu-

al’s alternative treatment program. The order may pro-

vide that if an individual refuses to comply with a psy-

chiatrist’s order to return to the hospital, a peace ofﬁcer

This

exception is not implicated by the issues raised in this appeal

because the instant matter involves a petition ﬁled under MCL 330.1473

rather than a petition ﬁled under MCL 330.1434.

2018] In re P

ORTUS

387

shall take the individual into protective custody and

transport

the individual to the hospital selected. [Empha-

sis added.]

With respect to the report, § 453a, MCL 330.1453a,

provides, in pertinent part, as follows:

[T]he court shall order a report assessing the current

availability and appropriateness for the individual of

alternatives to hospitalization, including alternatives

available following an initial period of court-ordered hos-

pitalization. The report shall be prepared by the commu-

nity mental health services program, a public or private

agency, or another individual found suitable by the court.

In deciding which individual or agency should be ordered

to prepare the report, the court shall give preference to an

agency or individual familiar with the treatment re-

sources in the individual’s home community.

Additionally, two more statutes are relevant to our

consideration

of respondent’s ﬁrst issue on appeal.

First, MCL 330.1470 provides as follows:

Prior to ordering the hospitalization of an individual,

the court

shall inquire into the adequacy of treatment to

be provided to the individual by the hospital. Hospitaliza-

tion shall not be ordered unless the hospital in which the

individual is to be hospitalized can provide him with

treatment which is adequate and appropriate to his con-

dition.

Next, MCL 330.1460 provides as follows:

Counsel for the subject of a petition shall be allowed

adequate

time for investigation of the matters at issue and

for preparation, and shall be permitted to present the

evidence that counsel believes necessary to a proper

disposition of the proceedings, including evidence as to

alternatives to hospitalization.

As noted, the statutory framework does not explic-

itly

specify an evidentiary standard or burden of proof

388 325 M

ICH

374 [July

that is applicable to the probate court’s ﬁndings during

this

second phase of the process. Agreeing with peti-

tioner, the probate court ruled that the absence of an

evidentiary standard or burden of proof meant that

none need be employed. Respondent argued in the

probate court and in this Court that, at a minimum,

the default standard in civil cases—preponderance of

the evidence—applies to the probate court’s determi-

nation of the form of treatment to order.

As an initial matter, it is necessary for this Court to

clarify that although both the parties and the probate

court generally framed the issue in terms of the re-

quired “burden of proof,” there are actually two dis-

tinct, but related, concepts at play here: the burden of

proof and the standard of proof.

Typically, the term “burden of proof” refers to “[a]

party’s duty to prove a disputed assertion or charge” or

“a proposition regarding which of two contending liti-

gants loses when there is no evidence on a question or

when the answer is simply too difﬁcult to ﬁnd.” Black’s

Law Dictionary (10th ed). “The burden of proof in-

cludes both the burden of persuasion and the burden of

production.” Id. Hence, “[i]n its strict sense the term

‘burden of proof’ refers to the necessity or duty of

afﬁrmatively proving a fact or facts in dispute on an

issue raised between the parties in a case,” and a

“secondary use of the term . . . denotes the burden of

going forward, i.e., the obligation to respond to a prima

facie case established by the opposing party.” Palenkas

v Beaumont Hosp, 432 Mich 527, 550; 443 NW2d 354

(1989) (opinion by A

RCHER

, J.); see also id. at 530

(opinion of the Court).

By contrast, the term “standard

The

majority concurred in the part of the opinion by Justice A

RCHER

from which we have quoted. Palenkas, 432 Mich at 530 (opinion of the

Court).

2018] In re P

ORTUS

389

of proof” has been deﬁned as follows: “[t]he degree or

level

of proof demanded in a speciﬁc case, such as

‘beyond a reasonable doubt’ or ‘by a preponderance of

the evidence’; a rule about the quality of the evidence

that a party must bring forward to prevail.” Black’s

Law Dictionary (10th ed). Therefore, although the

parties and the probate court focused on whether there

was an applicable “burden” of proof, we ﬁrst must

ascertain the requisite quantum of proof, i.e., the

standard of proof, on which a probate court must base

its decision regarding the form of treatment and place-

ment for an individual found to be a person requiring

treatment.

In discerning the applicable standard of proof, we

begin by noting that the relevant statutes make clear

that the probate court does not have unfettered discre-

tion to choose a form of treatment and placement for an

individual found to be a person requiring treatment.

The probate court is required to order the preparation

of a report on the availability and appropriateness of

alternatives to hospitalization for the individual and,

after reviewing that report, make particular determi-

nations related to potential alternatives to hospitaliza-

tion. MCL 330.1453a; MCL 330.1469a(1). Speciﬁcally,

the probate court must determine (1) whether an

alternative treatment program is “adequate to meet

the individual’s treatment needs,” (2) whether an al-

ternative treatment program is “sufﬁcient to prevent

harm that the individual may inﬂict upon himself or

herself or upon others within the near future,” and (3)

whether an agency or mental health professional is

“available to supervise the individual’s alternative

treatment program.” MCL 330.1469a(1)(a) and (b). The

probate court must also inquire about the “individual’s

desires regarding alternatives to hospitalization.”

MCL 330.1469a(1)(c). If the probate court ﬁnds that

390 325 M

ICH

374 [July

the requirements in MCL 330.1469a(1)(a) and (b) are

met

with respect to a treatment program that is an

alternative to hospitalization, then “the court shall

issue an order for alternative treatment or combined

hospitalization and alternative treatment in accor-

dance with section 472a.” MCL 330.1469a(2) (empha-

sis added).

Our Supreme Court has explained that “courts

should give the ordinary and accepted meaning to the

mandatory word ‘shall’ . . . unless to do so would

clearly frustrate legislative intent as evidenced by

other statutory language or by reading the statute as a

whole.” Browder v Int’l Fidelity Ins Co, 413 Mich 603,

612; 321 NW2d 668 (1982). There is no indication that

“shall” was not meant to be given its usual mandatory

meaning in MCL 330.1469a(2), and the Legislature

therefore gave the probate court a mandatory directive

to order some form of alternative treatment when that

form of treatment satisﬁes the standards set forth in

MCL 330.1469a(1)(a) and (b). See Browder, 413 Mich

at 612. Accordingly, if the probate court determines

that there is an adequate form of alternative treatment

that satisﬁes the standards in MCL 330.1469a(1)(a)

and (b), then the probate court does not have the

discretion to order hospitalization as the sole form of

treatment. Although we recognize that in those circum-

stances the probate court may have some degree of

discretion to determine the nature of alternative treat-

ment to order or how to structure a combination of

hospitalization and alternative treatment, any discre-

tion held by the probate court is certainly not without

limit. “[T]his mandatory directive indicates that a

standard giving signiﬁcant discretion to the probate

court is not the correct one to use here.” Redd, 321

Mich App at 409.

2018] In re P

ORTUS

391

Next, given that the probate court is statutorily

required

to make speciﬁc determinations before order-

ing a course of treatment, a court cannot make these

determinations in a vacuum or without referring to

evidence. In this case, the probate court, despite ruling

that there was no applicable burden of proof, clearly

understood that its decision was based on evidence: it

held an evidentiary hearing where it heard witness

testimony and admitted exhibits. The probate court

considered a report on alternatives to hospitalization,

and it explained during the course of its oral ruling

that it was considering the record evidence. However,

the question becomes one regarding the necessary

strength or persuasiveness of that evidence required to

justify the probate court’s ultimate factual ﬁndings. In

other words, there must be a “standard of proof”

because without one, a probate court could conceivably

justify a factual ﬁnding on the basis of “some” or even

a “scintilla” of evidence.

As we have previously indicated, although the Leg-

islature provided that clear and convincing evidence is

the required standard of proof for the initial ﬁnding

that an individual is a “person requiring treatment,”

MCL 330.1465, there is no standard of proof provided

in MCL 330.1469a regarding the probate court’s ﬁnd-

ings on the adequacy and suitability of alternative

treatments to hospitalization. “We must construe this

omission of a provision in one statute that is included

in another statute . . . as intentional.” Redd, 321 Mich

App at 408 (quotation marks and citation omitted;

ellipsis in original). We therefore conclude that the

clear-and-convincing-evidence standard in MCL

330.1465 does not apply to the determination regard-

ing the individual’s appropriate form of treatment and

placement. “When a statute fails to state the standard

that probate courts are to use to establish a particular

392 325 M

ICH

374 [July

fact, the default standard in civil cases—

preponderance

of the evidence—applies.” Id. at 409;

see also Mayor of Cadillac v Blackburn, 306 Mich App

512, 522; 857 NW2d 529 (2014) (“Further, because the

statute does not state the quantum of proof neces-

sary . . . , the default standard in civil cases, the pre-

ponderance of the evidence, applies.”). There is no

indication in MCL 330.1469a that some standard of

proof other than the default preponderance-of-the-

evidence standard should apply, and as we have dis-

cussed, some standard of proof is necessary to substan-

tiate a probate court’s determinations regarding the

appropriate treatment and placement to order. There-

fore, we hold that MCL 330.1469a requires that a

preponderance of the evidence support the probate

court’s ﬁndings with respect to its determinations

regarding an individual’s treatment and placement.

Having ascertained the standard of proof required

by the statute, we next turn to addressing the alloca-

tion of the burden of proof. Again, the statute is silent

on this point. Generally, the party who is the proponent

of a given position bears the burden of establishing the

facts to support that position. Blackburn, 306 Mich

App at 521. “The party alleging a fact to be true should

suffer the consequences of a failure to prove the truth

of that allegation.” Kar v Hogan, 399 Mich 529, 539;

251 NW2d 77 (1976), not followed on other grounds by

In re Karmey Estate, 468 Mich 68, 69, 73-74 (2003). In

accordance with this principle, we hold that the propo-

nent of a particular form of treatment or placement at

a speciﬁc facility for an individual who has been found

to be a person requiring treatment bears the burden of

proving by a preponderance of the evidence the facts

necessary to persuade the probate court to enter such

an order and for the probate court to be legally justiﬁed

in entering such an order pursuant to the statutory

2018] In re P

ORTUS

393

requirements in Chapter 4 of the Mental Health Code

that

we have previously discussed.

e note that respondent expressly argued for application of the

preponderance-of-the-evidence standard and, understandably, has not

argued that applying this standard to the probate court’s treatment

determination would violate his right to due process. Accordingly, we

express no opinion on that issue.

As previously stated, the involuntary hospitalization proceedings at

issue in this case are civil proceedings. In reaching this conclusion, we

draw guidance from our Supreme Court. Our Supreme Court considers

these types of proceedings, through which an individual is involuntarily

hospitalized after being found not guilty by reason of insanity of a crime,

to be civil in nature. See Dobben, 440 Mich at 691 (discussing the CFP’s

responsibility for “evaluat[ing] and ﬁl[ing] reports where civil commit-

ment is sought subsequent to a ﬁnding of not guilty by reason of

insanity”); People v Webb, 458 Mich 265, 281; 580 NW2d 884 (1998)

(explaining that MCL 330.2050, which contains procedures for involun-

tarily committing persons acquitted of a criminal charge by reason of

insanity, is a statute designed to “promote public safety” and “establish[]

a procedure for determining whether a person acquitted by reason of

insanity can safely be returned to society” because “[p]ersons acquitted by

reason of insanity, particularly where the facts are grave, cannot be

allowed simply to walk out the front door of the courthouse”). Most

importantly, our Supreme Court in People v McQuillan, 392 Mich 511,

546-547; 221 NW2d 569 (1974), held that upon completion of a “period of

temporary statutory detention” for purposes of examination and observa-

tion, “due process and equal protection require that a defendant found not

guilty by reason of insanity must have the beneﬁt of commitment and

release provisions equal to those available to those civilly committed.”

Our Michigan standard, which is now reﬂected in MCL 330.2050,

appears to provide more than the minimum constitutional due-process

protection to which a person in respondent’s circumstances is entitled

under United States Supreme Court precedent. In Jones v United

States, 463 US 354, 370; 103 S Ct 3043; 77 L Ed 2d 694 (1983), the Court

held that under the Due Process Clause, “when a criminal defendant

establishes by a preponderance of the evidence that he is not guilty of a

crime by reason of insanity, the Constitution permits the Government,

on the basis of the insanity judgment, to conﬁne him to a mental

institution until such time as he has regained his sanity or is no longer

a danger to himself or society.” The Jones Court explained that in such

a case, the initial commitment could be based on the not-guilty-by-

reason-of-insanity verdict alone without conducting an additional civil

commitment hearing. Id. at 366.

394 325

ICH

374 [July

Petitioner, in arguing that there is no burden or

standard

of proof applicable to the probate court’s

treatment determination, compares the probate court’s

decision regarding the appropriate form of treatment

to a trial court’s discretionary sentencing decision in

criminal proceedings. Petitioner relies on In re Portus,

142 Mich App 799, 803; 371 NW2d 871 (1985), in which

this Court held that there was no requirement that a

jury determine the appropriate treatment for an indi-

vidual, although the question whether that individual

continued to require treatment was submitted to the

jury pursuant to MCL 330.1458.

We reasoned that the

circumstances

of involuntary commitment were

“analogous to the criminal setting, where the jury

determines the guilt and then the trial judge decides

the sentence.” Portus, 142 Mich App at 803. But

petitioner’s reliance is misplaced because we made the

comparison in Portus for the sole purpose of rational-

izing why an individual is entitled to a jury determi-

nation regarding whether he or she continues to re-

quire treatment while not being entitled to a jury

determination of the appropriate form of treatment.

We did not state that a judge’s determination of the

appropriate form of treatment is not subject to any

standards for supporting that determination.

Moreover, a trial court’s sentencing discretion in the

criminal context is also not unlimited. For example,

although a sentencing court may exercise its discretion

to impose a sentence that represents a departure from

MCL

330.1458 currently provides, as it did at the time that Portus

was decided:

The subject of a petition may demand that the question of

whether he requires treatment or is legally incompetent be heard

by a jury. A jury shall consist of 6 persons to be chosen in the same

manner as jurors in civil proceedings.

2018] In re P

ORTUS

395

the applicable guidelines range without articulating a

substantial

and compelling reason, the sentence is still

reviewable by an appellate court for “reasonableness.”

People v Lockridge, 498 Mich 358, 392; 870 NW2d 502

(2015). When reviewing a sentence for reasonableness,

an appellate court determines whether the sentencing

court abused its discretion by violating the “principle of

proportionality,” which requires sentences to be “pro-

portionate to the seriousness of the circumstances

surrounding the offense and the offender.” People v

Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327

(2017) (quotation marks and citation omitted). A sen-

tencing court is still obligated to take the legislative

sentencing guidelines into account when sentencing,

id. at 474-475, and the trial court’s factual determina-

tions under the sentencing guidelines must be sup-

ported by a preponderance of the evidence, People v

Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Thus,

there is simply no merit in any comparison to criminal

sentencing as support for the conclusion that no stan-

dard of proof is required to support the probate court’s

treatment determination.

In sum, the probate court erred by ruling that there

was no applicable burden of proof to its treatment

determination and issuing its treatment order without

tying it to any evidentiary standard.

We cannot conclude that this error was harmless. A

lower court’s error “is not ground for granting a new

trial, for setting aside a verdict, or for vacating, modi-

fying, or otherwise disturbing a judgment or order,

unless refusal to take this action appears to the court

inconsistent with substantial justice.” MCR 2.613(A).

An error is harmless if it did not affect the outcome of

the proceeding. In re Sprint Communications Co, LP,

Complaint, 234 Mich App 22, 42; 592 NW2d 825 (1999).

396 325 M

ICH

374 [July

In this case, because the probate court believed that

there

was no applicable burden or standard of proof

and made its ﬁndings and conclusions while operating

under that belief, we cannot ascertain on what basis

the probate court made its ﬁndings. Therefore, the

probate court’s error was not harmless. Id. Moreover,

we “defer to the probate court on matters of credibility,

and will give broad deference to ﬁndings made by the

probate court because of its unique vantage point

regarding witnesses, their testimony, and other inﬂu-

encing factors not readily available to the reviewing

court.” In re Brody Conservatorship, 321 Mich App 332,

336; 909 NW2d 849 (2017) (quotation marks and

citation omitted). Additionally, when a trial court fails

to apply the proper legal standards, normally the

appropriate appellate remedy is to remand to that trial

court for application of the proper legal standards. See

People v Barritt, 501 Mich 872 (2017).

Respondent also raises three other distinct claims of

error on appeal that we must address in order to

provide guidance to the probate court on remand.

First, respondent argues that the probate court

erred by indicating that after determining respondent

was a person requiring treatment, the probate court

would look to MCL 330.1468(2) to determine the type

of treatment to order. Respondent maintains, and

petitioner agrees on appeal, that MCL 330.1468(2)

applies only to petitions ﬁled under § 434, MCL

330.1434, and that § 468(2) is therefore inapplicable in

the instant case because the subject petition was ﬁled

pursuant to MCL 330.1473 rather than MCL 330.1434.

The parties are incorrect. Admittedly, MCL

330.1468(2), which we have previously set forth more

completely, begins as follows: “For a petition ﬁled

under section 434, if an individual is found to be a

2018] In re P

ORTUS

397

person requiring treatment, the court shall do 1 of the

following

. . . .” (Emphasis added.) As we have already

explained, a petition ﬁled under MCL 330.1473 before

the expiration of a continuing order triggers MCL

330.1472a(4), which provides that once such a petition

has been received and an individual has been found to

be a person requiring treatment, “the court shall issue

another continuing order for involuntary mental health

treatment as provided in subsection (3) for a period not

to exceed 1 year.” (Emphasis added.) However, the

term “involuntary mental health treatment” is statu-

torily deﬁned to mean “court-ordered hospitalization,

alternative treatment, or combined hospitalization and

alternative treatment as described in section 468.”

MCL 330.1400(f) (emphasis added). Thus, the probate

court was speciﬁcally directed to look to MCL

330.1468, which sets forth these potential treatment

options, and the probate court did not err by referring

to this statute.

Next, respondent argues that the probate court

red by concluding that Harbor Point was not a

“hospital.” With respect to its determination on this

point, the probate court stated as follows during the

course of announcing its ﬁnal ruling from the bench:

[T]he court rejects the stipulation of the prosecutor to the

characterization of Harbor Point Center as a hospital,

because one, it is not a hospital, it is a direct community

e acknowledge that the relevant portion of MCL 330.1468(2) at

issue—“For a petition ﬁled under section 434”—was the result of an

amendment that took effect on February 14, 2017, shortly before the

evidentiary hearing in this matter. 2016 PA 320. However, this change

to the statute does not negate the fact that the forms of treatment

described in MCL 330.1468(2) are still expressly incorporated into

MCL 330.1472a(4) through the statutory deﬁnition of “involuntary

mental health treatment” contained in MCL 330.1400(f).

398 325 M

ICH

374 [July

placement pursuant to the October 13th, 2016 letter of

Joseph

Corso of the Center for Forensic Psychiatry.

For purposes of the Mental Health Code, the terms

“hospital” and “psychiatric hospital” are both deﬁned

as “an inpatient program operated by the department

for the treatment of individuals with serious mental

illness or serious emotional disturbance or a psychiat-

ric hospital or psychiatric unit licensed under [MCL

330.1137].” MCL 330.1100b(7); MCL 330.1100 (stating

that the deﬁnitions in MCL 330.1100a to MCL

330.1100d apply to the Mental Health Code unless

otherwise required by the context). A “psychiatric unit”

is “a unit of a general hospital that provides inpatient

services for individuals with serious mental illness or

serious emotional disturbance,” and as used in this

deﬁnition, “ ‘general hospital’ means a hospital as

deﬁned in section 20106 of the public health code, 1978

PA 368, MCL 333.20106.”

MCL 330.1100c(8). “ ‘De-

partment’

means

the department of health and human

services.” MCL 330.1100a(21). “ ‘Hospitalization’ or

‘hospitalize’ means to provide treatment for an indi-

vidual as an inpatient in a hospital.” MCL

330.1100b(9).

We cannot ﬁnd where the probate court applied

these statutory deﬁnitions in determining whether

MCL

333.20106(5) has recently been amended, but the changes are

not substantive. 2017 PA 167. MCL 333.20106(5) currently provides as

follows:

“Hospital” means a facility offering inpatient, overnight care,

and services for observation, diagnosis, and active treatment of

an individual with a medical, surgical, obstetric, chronic, or

rehabilitative condition requiring the daily direction or supervi-

sion of a physician. Hospital does not include a mental health

hospital licensed or operated by the department of health and

human services or a hospital operated by the department of

corrections.

2018] In

re P

ORTUS

399

Harbor Point was a “hospital” for purposes of the

ental Health Code. Should this issue arise on remand,

the probate court must determine whether the evidence

establishes that Harbor Point meets the statutory deﬁ-

nition of “hospital” for purposes of the Mental Health

Code, because that affects whether placement at Harbor

Point is actually “an alternative to hospitalization” or

“alternative treatment” under MCL 330.1468(2) and

MCL 330.1469a(1) and (2). (Emphasis added.) It is also

important to make proper a determination whether a

given facility—Harbor Point in this case—is a “hospital”

because under MCL 330.1471, “[p]reference between

the department designated hospital and other available

hospitals shall be given to the hospital which is located

nearest to the individual’s residence except when the

individual requests otherwise or there are other com-

pelling reasons for an order reversing the preference.”

Lastly, respondent argues that the probate court’s

order that respondent would remain at the CFP “until

further order of the court” was contrary to certain

statutory provisions in the Mental Health Code that

pertain to the release of patients, speciﬁcally MCL

330.2050(5) and MCL 330.1476 to MCL 330.1479.

MCL 330.2050(5) provides as follows:

The release provisions of [MCL 330.1476 to MCL

330.1479]

this act shall apply to a person found to have

committed a crime by a court or jury, but who is acquitted

by reason of insanity, except that a person shall not be

discharged or placed on leave without ﬁrst being evalu-

ated and recommended for discharge or leave by the

department’s program for forensic psychiatry, and autho-

rized leave or absence from the hospital may be extended

for a period of 5 years.

Thus, MCL 330.2050(5) expressly incorporates the

elease provisions found in MCL 330.1476 to

400 325 M

ICH

374 [July

MCL 330.1479. Of those provisions, the only one that is

applicable

to respondent at this juncture is MCL

330.1476, which provides, in relevant part:

(2) The hospital director shall discharge a patient

hospitalized by court order when the patient’s mental

condition is such that he or she no longer meets the

criteria of a person requiring treatment.

(3) If a patient discharged under subsection (1) or (2)

has been hospitalized by court order, or if court proceed-

ings are pending, the court shall be notiﬁed of the dis-

charge by the hospital.

“ ‘Discharge’ means an absolute, unconditional release

an individual from a facility by action of the facility

or a court.” MCL 330.1100a(27). “ ‘Hospital director’

means the chief administrative ofﬁcer of a hospital or

his or her designee.” MCL 330.1100b(8).

These statutes provide a procedural mechanism for

discharging an individual who “no longer meets the

criteria of a person requiring treatment,” without re-

quiring a court order sanctioning the discharge. MCL

330.1100a(27); MCL 330.1100b(8); MCL 330.1476(2);

MCL 330.2050(5). Therefore, the probate court erred

by ordering respondent to remain at the CFP “until

further order of the court.” This language is contrary to

MCL 330.1476(2) and MCL 330.2050(5) despite the

fact that the probate court’s order otherwise complied

with the time limitation in MCL 330.1472a(3)(a) by

indicating that respondent would be hospitalized for

up to 365 days.

On remand, if the probate court determines that

respondent must remain hospitalized at the CFP, the

probate court shall not include language ordering re-

spondent to remain “until further order of the court.”

See People v Carson, 169 Mich App 343, 344, 346-347;

425 NW2d 548 (1988) (holding that the circuit court’s

2018] In re P

ORTUS

401

order was contrary to law when the order restrained the

FP from discharging an individual who had been

acquitted by reason of insanity until after a petition had

been ﬁled in the circuit court and the individual had

been found not to require treatment pursuant to a

hearing on the matter).

IV. CONCLUSION

Under the provisions of the Mental Health Code

applicable

to obtaining continuing orders of involun-

tary mental health treatment, a probate court’s treat-

ment determination must be supported by a prepon-

derance of the evidence. Because the probate court did

not apply this standard and instead determined that

no evidentiary standard applied, it erred. On remand,

the probate court must resolve conﬂicts in the evidence

and make the necessary factual ﬁndings under the

preponderance-of-the-evidence standard of proof with

each party retaining the burden of persuasion with

respect to the placement and form of treatment each

seeks.

Reversed and remanded. We do not retain jurisdic-

tion.

M. J. K

ELLY

and B

OONSTRA

, JJ., concurred with

ORRELLO

, P.J.

402 325 M

ICH

374 [July

TOTAL ARMORED CAR SERVICE, INC v DEPARTMENT

TREASURY

Docket No. 340495. Submitted July 10, 2018, at Lansing. Decided

July 24, 2018, at 9:10 a.m.

Total Armored Car Service, Inc. (TACS) ﬁled a petition in the

Michigan Tax Tribunal, challenging the Department of Trea-

sury’s disallowance of certain deductions and credits for the

years 2009 through 2011. The department conducted an audit

and determined that TACS had underpaid its taxes for those tax

years by $144,924. The department determined, in part, that the

underpayment resulted from a misclassiﬁcation of items as

materials and supplies for deduction under MCL 208.1113(6)(c)

and from a miscalculation of the employee compensation credit

under MCL 208.1403(2). With regard to materials and supplies,

the department determined that TACS had improperly included

costs related to operating leases, contract labor, purchased

transportation, and outside courier services in that category.

With regard to the compensation credit, the department con-

cluded that TACS had erred by calculating the credit on the

basis of compensation paid to Michigan residents instead of on

the basis of compensation paid to employees for work performed

in this state. In its petition, TACS objected to those determina-

tions. TACS additionally argued in the tribunal that its tax

liability was not calculated correctly because it had ﬁled its

taxes as part of a unitary business group with seven sister

corporations when, under LaBelle Mgt, Inc v Dep’t of Treasury,

315 Mich App 23 (2016), it was actually a single tax entity. The

tribunal granted the department’s motion for summary disposi-

tion, and TACS appealed.

The Court of Appeals held:

1. The Michigan Business Tax Act (the BTA), MCL 208.1101

et seq., imposes a business income tax, MCL 208.1202, and a

modiﬁed-gross-receipts tax, MCL 208.1203, against taxpayers

who have business activity in Michigan. MCL 208.1113(6)(c)

provides that a business may modify its gross-receipts tax base

by deducting purchases from other ﬁrms, including purchases of

inventory acquired during the year, assets acquired during the

2018] T

OTAL

RMORED V

REAS

’

403

tax year that are eligible for depreciation for federal tax pur-

oses, or any other materials and supplies not included in either

inventory or depreciable property. Given the dictionary deﬁni-

tions of the terms “material” and “supplies,” and that the

nonexhaustive list of items of “materials or supplies” in MCL

208.1113(6)(c) contains only tangible and physical examples, the

phrase “materials and supplies” means tangible personal prop-

erty only and does not include services. In this case, the

department correctly disallowed certain deductions for materi-

als and supplies under MCL 208.1113(6)(c) because the disal-

lowed items—costs related to operating leases, contract labor,

purchased transportation, and outside courier services—were

not tangible property. The tribunal correctly afﬁrmed the de-

partment’s calculation of the gross-receipts deduction for mate-

rials and supplies.

2. MCL 208.1403(2) provides that for the 2009 tax year and

each year after 2009, a taxpayer may claim a credit against the

tax imposed by the BTA equal to 0.370% of the taxpayer’s

compensation in this state. MCL 208.1107(2) provides that the

term “compensation” means all wages, salaries, fees, bonuses,

commissions, other payments made in the tax year on behalf of

or for the beneﬁt of employees, ofﬁcers, or directors of the

taxpayers, and any earnings that are net earnings from self-

employment. Because the Legislature deﬁned the term “compen-

sation” in the BTA as wages, salaries, commissions, and other

such payments, the phrase “compensation in this state” means

remuneration received in return for services rendered or work

performed in this state; the compensation deduction is not

calculated on the basis of whether the employee is a resident of

the state. In this case, the tribunal reached the correct result by

afﬁrming the department’s method of calculating TACS’s com-

pensation credit under MCL 208.1403(2).

3. The tribunal effectively allowed TACS to amend its petition

to address its LaBelle argument that it was not a unitary

business group and that it should have been taxed as a single tax

entity. The tribunal correctly denied TACS’s request for relief

under LaBelle. The procedural posture of the case was inapposite,

and TACS failed to challenge the tribunal’s stated reasons for not

applying the case. Regardless, TACS did not have standing to

raise the argument because the company never attempted to ﬁle

an individual tax return, and, as a result, the department had

never addressed the issue.

Afﬁrmed.

404 325

ICH

403 [July

1. T

AXATION —

ROSS

-R

ECEIPTS

EDUCTION —

ORDS AND

HRASES —

“M

ATERIALS AND

UPPLIES

.”

MCL 208.1113(6) provides that a business may modify its gross-

receipts tax base by deducting purchases from other ﬁrms,

including purchases of inventory acquired during the year, assets

acquired during the tax year that are eligible for depreciation for

federal tax purposes, or any other materials and supplies not

included in either inventory or depreciable property; under MCL

208.1113(6)(c), the phrase “materials and supplies” means tan-

gible personal property, not services.

2. T

AXATION —

OMPENSATION

REDIT —

ORDS AND

HRASES —

“C

OMPENSATION

HIS

TATE

.”

MCL 208.1403(2) provides that for the 2009 tax year and each year

after 2009, a taxpayer may claim a credit against the tax imposed

by the Michigan Business Tax Act, MCL 208.1101 et seq., equal to

0.370% of the taxpayer’s compensation in this state; the phrase

“compensation in this state” means remuneration received by an

employee in return for services rendered or work performed in

this state; the credit is not calculated on the basis of whether the

employee is a resident of the state.

Bill Schuette,

ttorney General, Aaron D. Lindstrom,

Solicitor General, B. Eric Restuccia, Chief Legal Coun-

sel, and Scott L. Damich, Assistant Attorney General,

for the Department of Treasury.

Fraser Trebilcock Davis & Dunlap, PC (by Paul V.

McCord) for Total Armored Car Service, Inc.

Before: R

ONAYNE

RAUSE

, P.J., and G

LEICHER

and

ETICA

, JJ.

URIAM

. Following an audit, the Department of

Treasury determined that Total Armored Car Services,

Inc. (TACS) had underpaid its taxes in three tax years.

TACS ﬁled a petition in the Michigan Tax Tribunal

(MTT), challenging the department’s disallowance of

certain deductions and credits and later adding a claim

that it should be treated as a lone tax unit rather than

2018] T

OTAL

RMORED V

REAS

’

405

as a collective taxpayer. The MTT summarily dis-

missed

the petition. We discern no error in the MTT’s

judgment and afﬁrm.

I. BACKGROUND

In November 2012, the department conducted an

audit of TACS’s business tax returns for 2008 through

2011 and determined that TACS had underpaid by

$144,924 for tax years 2009, 2010, and 2011. Part of

this underpayment arose from the misclassiﬁcation of

items as materials and supplies for deduction under

MCL 208.1113(6)(c), and part was due to miscalcula-

tion of the employee compensation credit provided in

MCL 208.1403(2). TACS challenged the auditor’s con-

clusions to no avail. It then ﬁled a petition with the

MTT. In addition to the objections raised directly to the

audit, TACS noted before the MTT hearing that it had

ﬁled its taxes as part of a unitary business group

(UBG) with seven sister corporations but that it actu-

ally counted as a single tax entity pursuant to LaBelle

Mgt, Inc v Dep’t of Treasury, 315 Mich App 23; 888

NW2d 260 (2016). Accordingly, TACS generally as-

serted that its tax liability was no longer accurately

calculated.

The MTT ultimately granted summary disposition

in the department’s favor and ordered TACS to pay its

tax liability with interest. TACS now appeals.

II. STANDARD OF REVIEW

We review de novo the MTT’s decision on a motion

for

summary

disposition. Moshier v Whitewater Twp,

277 Mich App 403, 407; 745 NW2d 523 (2007). We also

review de novo the MTT’s interpretation of statutory

provisions. Id. However, generally, our review is “lim-

406 325 M

ICH

403 [July

ited to determining whether the tribunal erred in

applying

the law or adopted a wrong principle . . . .” Id.

The MTT’s “factual ﬁndings are conclusive if supported

by competent, material, and substantial evidence on

the whole record.” Klooster v City of Charlevoix, 488

Mich 289, 295; 795 NW2d 578 (2011) (quotation marks

and citation omitted).

III. MATERIALS AND SUPPLIES DEDUCTION

In tax year 2010, TACS deducted from its gross

receipts

$12,712,186 in materials and supplies, and it

deducted $24,567,291 for tax year 2011.

According to

the

audit report, these deductions included the cost of

“repairs and maintenance, gas and oil, parts, rental

equipment, lease contract, outside courier services,

contract labor and purchased transportation.” The

department determined that costs “related to operat-

ing leases, contract labor, purchased transportation,

and outside courier services” were improperly included

in this category and adjusted the deductions for 2010

and 2011 accordingly.

TACS contends that the disallowed items are “ma-

terials and supplies” deductible from gross receipts

under MCL 208.1113(6). The Michigan Business Tax

Act (BTA), MCL 208.1101 et seq., imposes a business

income tax, MCL 208.1201, and a modiﬁed-gross-

receipts tax, MCL 208.1203, against taxpayers with

business activity in Michigan. A business’s modiﬁed-

gross-receipts tax base may be reduced by certain

credits and deductions. One deduction is for “pur-

chases from other ﬁrms,” MCL 208.1113(6), which

includes:

its appellate brief, TACS asserts, contrary to the audit report,

that it claimed a deduction of $12,712,186 in 2009 and $24,567,291 in

2010.

2018] T

OTAL

RMORED V

REAS

’

407

(a) Inventory acquired during the tax year, including

freight,

shipping, delivery, or engineering charges in-

cluded in the original contract price for that inventory.

(b) Assets, including the costs of fabrication and instal-

lation, acquired during the tax year of a type that are, or

under the internal revenue code will become, eligible for

depreciation, amortization, or accelerated capital cost re-

covery for federal income tax purposes.

ciable property, materials and supplies, including repair

parts and fuel.

The auditor determined that “Materials and Sup-

plies

means tangible personal property,” not services

such as those reported by TACS. This is consistent

with the plain language of MCL 208.1113(6).

Our goal when interpreting statutes is to ascertain

the Legislature’s intent. Cook v Dep’t of Treasury, 229

Mich App 653, 658-659; 583 NW2d 696 (1998). The best

indicator of that intent is the plain language of the

statute. Ferguson v Lincoln Park, 264 Mich App 93, 95;

694 NW2d 61 (2004). If the language is clear and

unambiguous, we must apply the statute as written. Id.

at 95-96. In reading and applying the plain language of

a statute, we must give effect “to every phrase, clause,

and word in the statute. The statutory language must

be read and understood in its grammatical context,

unless it is clear that something different was in-

tended.” Sun Valley Foods Co v Ward, 460 Mich 230,

237; 596 NW2d 119 (1999) (citation omitted). And when

deﬁning words in a statute, “we must consider both the

plain meaning of the critical word or phrase as well as

its placement and purpose in the statutory scheme.”

Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570

(2008) (quotations marks and citation omitted).

When read as a whole, MCL 208.1113(6) deﬁnes the

purchases-from-other-ﬁrms deduction as inventory ac-

408 325 M

ICH

403 [July

quired in the tax year; assets acquired during the tax

year

that are eligible for depreciation for federal tax

purposes; or any other materials and supplies, such as

repair parts or fuel, not included in either inventory or

depreciable property. While Subdivisions (a) and (b)

include services related to the acquisition of inventory

or assets (costs for installation, shipping and engineer-

ing); Subdivision (c) includes only tangible items of

property not included in inventory or depreciable prop-

erty. The BTA does not deﬁne “materials and supplies.”

When the Legislature does not provide a deﬁnition for

the words used in a statute, we may look to dictionary

deﬁnitions. Grifﬁth v State Farm Mut Auto Ins Co, 472

Mich 521, 526; 697 NW2d 895 (2005). The terms

“materials and supplies,” when used in their noun form

as in the statute, are deﬁned as physical items. “Ma-

terial” means “relating to, derived from, or consisting

of matter” and “being of a physical or worldly nature[.]”

Merriam-Webster’s Collegiate Dictionary (11th ed),

p 765. “Supplies,” in its noun form, means “

PROVISIONS

”

or “

STORES

.” Id. at p 1256.

Moreover, the qualifying clause immediately follow-

ing “materials and supplies”—“including repair parts

and fuel”—indicates an intent to limit materials and

supplies to tangible property. This phrase, when read

in context, provides examples of the type of tangible

property that may be included within the meaning of

“materials and supplies.” While the term “including”

suggests a nonexhaustive list of items within the

category of “materials or supplies,” the examples are

both tangible and physical. “Under the statutory con-

struction doctrine known as ejusdem generis, where a

ACS relies on the verb form of “supply” to interpret the statute as

including services within the deﬁnition of “materials and supplies.”

TACS thereby takes the word out of its grammatical context.

2018] T

OTAL

RMORED V

REAS

’

409

general term follows a series of speciﬁc terms, the

general

term is interpreted to include only things of

the same kind, class, character, or nature as those

speciﬁcally enumerated.” Neal v Wilkes, 470 Mich 661,

669; 685 NW2d 648 (2004) (quotation marks and

citation omitted). Accordingly, the type of property

included in the deﬁnition of “materials and supplies” is

limited to tangible items.

Given the plain language of MCL 208.1113(6), we

discern no error in the MTT’s dismissal of TACS’s

challenge to the department’s audit.

IV. COMPENSATION CREDIT

The department also determined that TACS over-

tated the compensation earned by employees of E.L.

Hollingsworth (another member of the UBG) in 2009

and 2010. In 2009, TACS reported a compensation

credit of $12,575,339, and in 2010, TACS reported a

$10,897,553 compensation credit.

These ﬁgures were

sed solely on the residencies of the employees, not “on

actual work (miles driven) performed within the state of

Michigan.” The auditor reasoned that TACS was only

entitled to 100% of the compensation credit if 100% of a

particular employee’s miles were driven in Michigan. By

implication, TACS was entitled to a reduced credit when

an employee earned a portion of his or her compensation

while driving within Michigan but also earned compen-

sation while driving out of state.

The BTA provides a tax credit to reduce a taxpayer’s

liability for compensation in this state. Speciﬁcally,

“[f]or the 2009 tax year and each tax year after 2009, . . .

The

compensation credit ﬁgures cited by TACS in its appellate brief

do not match the ﬁgures provided in the audit report for the tax years in

question.

410 325 M

ICH

403 [July

a taxpayer may claim a credit against the tax imposed

y this act equal to 0.370% of the taxpayer’s compensa-

tion in this state.” MCL 208.1403(2). The phrase “com-

pensation in this state” is not deﬁned by statute.

Contrary to the MTT’s ruling, the phrase “compen-

sation in this state” is not ambiguous. MCL

208.1107(2) deﬁnes “compensation” as “all wages, sala-

ries, fees, bonuses, commissions, other payments made

in the tax year on behalf of or for the beneﬁt of

employees, ofﬁcers, or directors of the taxpayers, and

any earnings that are net earnings from self-employ-

ment . . . .” “Wages,” “salaries,” and “commissions,” by

their plain meanings, are payments for work or ser-

vices performed. See, e.g., Black’s Law Dictionary

(10th ed) (deﬁning “wages” as “[p]ayment for labor or

services” and “salary” as “compensation for services”).

By deﬁning “compensation” as wages, salaries, com-

missions, and other such payments, the Legislature

recognized that “compensation” is essentially remu-

neration received in return for services rendered or

work performed.

But what did the Legislature intend in using the

phrase “compensation in this state”? Giving effect to

every word of the statute and with the statutory

deﬁnition of “compensation” in mind, it is clear that the

Legislature intended for the credit to apply only to

work or services performed in the state of Michigan.

When the deﬁnition of “compensation” is inserted into

the phrase “compensation in this state,” it provides

that the credit is available for “[remuneration for

services or work performed] in this state.” Following

TACS’s proposal, on the other hand, would require us

to add terms and conditions into the statute. The

statute makes no reference to the residency of the

subject employees, nor do the deﬁnitions of the speciﬁc

words used. Ultimately, although the MTT’s reasoning

2018] T

OTAL

RMORED V

REAS

’

411

was ﬂawed, it reached the correct result. TACS is

therefore

not entitled to relief. See Taylor v Laban, 241

Mich App 449, 458; 616 NW2d 229 (2000).

TACS further argues, for the ﬁrst time on appeal,

that the services rendered by an employee should “be

sourced based upon single items of income,” meaning

that “[i]f transportation services [were] performed pur-

suant to an annual or long term contract, the compen-

sation was generated at the time of the creation of the

contract and therefore sourced to the state in which the

contract was entered.” Under this theory, further dis-

covery would be necessary to ascertain where the

subject employees entered into their contracts.

We review unpreserved challenges for plain error. To

establish an entitlement to relief based on plain error,

the injured party “must show (1) that an error occurred,

(2) that the error was plain, and (3) that the plain error

affected [its] substantial rights.” Henderson v Dep’t of

Treasury, 307 Mich App 1, 9; 858 NW2d 733 (2014)

(quotations marks and citation omitted). To merit relief,

the injured party must show prejudice, i.e., that the

error affected the outcome of the MTT proceedings. Id.

No error occurred in this regard. The “single items of

income” concept simply is not the law of Michigan.

Rather, TACS culled it from model regulations drafted

by the Multistate Tax Commission. Moreover, TACS

has made no calculations to show how this reformation

of the law would impact its tax liability. Accordingly, it

cannot show that it suffered any prejudice.

V. UBG STATUS

TACS ﬁnally challenges the MTT’s failure to apply

Belle to deconstruct its UBG and then to order TACS

and the department to restart the tax ﬁling process for

the years in question.

412 325 M

ICH

403 [July

LaBelle was

issued on March 31, 2016, three months

before TACS ﬁled its petition, but the opinion’s effect

was stayed until disposition of the department’s appli-

cation for leave to appeal in the Supreme Court.

LaBelle Mgt, Inc v Dep’t of Treasury, unpublished order

of the Court of Appeals, entered May 5, 2016 (Docket

No. 324062). The Supreme Court denied leave on

January 24, 2017. LaBelle Mgt, Inc v Dep’t of Treasury,

500 Mich 931 (2017). The department sought summary

disposition in this case approximately three months

after the Supreme Court’s LaBelle decision.

TACS contends that the MTT “reversibly erred in

denying what, in practical effect, amounted to [its]

motion for leave to amend its Petition” to apply

LaBelle. TACS does not deny that it never directly

requested to ﬁle an amended petition. It did, however,

raise its claims under LaBelle in its prehearing state-

ment. The department sought to strike TACS’s argu-

ment as it had not been raised in the petition. The MTT

denied the motion to strike, ordered supplemental

brieﬁng on the issue, and actually considered TACS’s

claim before entering its ﬁnal judgment. In “practical

effect,” the MTT allowed TACS “to amend its Petition”

as it fully considered the claim.

The MTT also did not err by denying TACS relief

under LaBelle. In LaBelle, 315 Mich App at 30, this

Court considered how to deﬁne the phrase “owns or

controls . . . indirectly” as used in MCL 208.1117(6),

the BTA provision deﬁning a UBG. Speciﬁcally, MCL

208.1117(6) deﬁnes a UBG as

a group of United States persons, other than a foreign

operating

entity

, 1 of which owns or controls, directly or

indirectly, more than 50% of the ownership interest with

voting rights or ownership interests that confer compa-

rable rights to voting rights of the other United States

persons, and that has business activities or operations

2018] T

OTAL

RMORED V

REAS

’

413

which result in a ﬂow of value between or among persons

included

in the [UBG] or has business activities or opera-

tions that are integrated with, are dependent upon, or

contribute to each other. For purposes of this subsection,

ﬂow of value is determined by reviewing the totality of

facts and circumstances of business activities and opera-

tions.

In LaBelle, 315 Mich App at 37, this Court held that

indirect ownership means ownership “through an in-

termediary, not ownership by operation of legal ﬁc-

tion . . . .” (Emphasis omitted.) It followed that because

neither the plaintiff nor the related entities owned

through an intermediary or otherwise more than 50%

of any other entity, the department had improperly

characterized the plaintiff as part of a UBG. Id. at

37-38.

The procedural posture of LaBelle is distinguishable

from the case now before us. In that case, the plaintiff

corporation had ﬁled an individual business tax re-

turn, and during an audit, the department determined

that it should have ﬁled a combined return as part of a

UBG with two related entities. Id. at 26-27. The Court

of Claims afﬁrmed the tax deﬁciency, but this Court

reversed because insufﬁcient indirect ownership ex-

isted to characterize the plaintiff as part of a UBG. Id.

at 28, 37-38. Here, TACS sought reconsideration of the

MTT’s ruling, arguing that the MTT should have

ordered it to ﬁle amended individual tax returns for

the years in question and ordered the department to

accept those ﬁlings. As the MTT sagely concluded,

however, TACS never requested such relief and it was

not the MTT’s duty to direct TACS on how to prove its

case. And TACS’s failure to ﬁle amended returns, or

even to present amended tax returns to the MTT,

meant it could not establish prejudice.

414 325 M

ICH

403 [July

The MTT further opined that other pragmatic rea-

sons

existed for not applying LaBelle. For example,

TACS’s seven sister corporations were not parties to

the lawsuit, and the MTT was hesitant to allow TACS

to speak as a representative of all. The other entities

may be harmed by the separation, creating a conﬂict of

interest. There was no record indication that any of the

other UBG members had taken steps to exhaust their

administrative remedies. Moreover, no member of the

UBG had attempted to ﬁle an individual tax return.

Their individual tax liabilities, like TACS’s individual

tax liability, were hypothetical only. TACS has chal-

lenged none of these reasons.

Even if TACS had properly developed its argument,

it would not be entitled to relief as its claim is not ripe

for adjudication. As TACS has never attempted to ﬁle

an individual tax return, the department has never

determined whether TACS could be an individual

taxpayer or whether it must ﬁle as part of a UBG.

TACS has yet to be aggrieved by the department in this

regard. And only aggrieved parties have standing to

pursue claims. Manuel v Gill, 481 Mich 637, 643; 753

NW2d 48 (2008).

We afﬁrm.

ONAYNE

RAUSE

, P.J., and G

LEICHER

and L

ETICA

, JJ.,

concurred.

2018] T

OTAL

RMORED V

REAS

’

415

VERMILYA v DELTA COLLEGE BOARD OF TRUSTEES

Docket

No. 341229. Submitted July 10, 2018, at Lansing. Decided

July 31, 2018, at 9:00 a.m.

Harlan Vermilya and Ann Anklam brought an action in the Saginaw

Circuit Court against the Delta College Board of Trustees, alleg-

ing multiple violations of the Open Meetings Act (OMA), MCL

15.261 et seq. Defendant passed a motion to enter closed session

“for the purpose of discussing speciﬁc pending litigation with

legal counsel” under MCL 15.268(e). Plaintiffs brought suit,

alleging, in part, that defendant had failed to name the pending

litigation it planned to discuss. Defendant moved for summary

disposition, arguing that MCL 15.268(e) has no such require-

ment. Plaintiff responded that defendant’s meeting minutes

failed to show the “purpose” for holding a closed-session meeting

as required by MCL 15.267(1) and MCL 15.269(1). The court,

Robert L. Kaczmarek, J., granted partial summary disposition in

favor of plaintiffs under MCR 2.116(I)(2), holding that defen-

dant’s failure to identify the “speciﬁc pending litigation” it would

be discussing in closed session violated MCL 15.267(1) and MCL

15.269(1). Defendant appealed.

The Court of Appeals held:

Under the OMA, public bodies must conduct their meetings,

make all of their decisions, and conduct their deliberations—

when a quorum is present—at meetings open to the public.

However, a public body may meet in a closed session for certain

enumerated purposes. Under MCL 15.268(e), a public body may

meet in a closed session to consult with its attorney regarding

trial or settlement strategy in connection with speciﬁc pending

litigation, but only if an open meeting would have a detrimental

ﬁnancial effect on the litigating or settlement position of the

public body. MCL 15.267(1) lists certain procedural requirements

that must be met for a public body to commence a closed session,

and MCL 15.269(1) requires, in part, that each public body keep

minutes of each meeting showing the purpose or purposes for

which a closed session is held. Accordingly, a public body must

state on the record the purpose of the closed session before

initiating the session. Examining MCL 15.267(1), MCL 15.268(e),

416 325

ICH

416 [July

and MCL 15.269(1) together, the Legislature intended for the

public

body to identify the speciﬁc litigation it would be discuss-

ing in justifying its decision to close its meeting to the public.

While a case name in and of itself may not provide much

information, it alerts the public to the existence of litigation and

allows for further inquiry. If the Legislature did not intend for the

public body to disclose the particular case or cases it would be

discussing, there would be no reason for the phrase “speciﬁc

pending litigation” to contain the word “speciﬁc,” as the word has

no practical effect on the permissible substance of the public

body’s discussion in a closed session. Accordingly, in this case,

defendant violated MCL 15.267(1) and MCL 15.269(1) by not

articulating the purpose for calling a closed session in accordance

with MCL 15.268(e). The trial court correctly granted plaintiffs

summary disposition under MCR 2.116(I)(2).

Afﬁrmed.

TATUTES —

PEN

EETINGS

CT —

LOSED

ESSIONS —

DENTIFICATION OF

PECIFIC

ENDING

ITIGATION

Under MCL 15.268(e) of the Open Meetings Act, MCL 15.261 et

seq., a public body may meet in a closed session to consult with its

attorney regarding trial or settlement strategy in connection with

speciﬁc pending litigation, but only if an open meeting would

have a detrimental ﬁnancial effect on the litigating or settlement

position of the public body; a public body must name the pending

litigation before entering a closed session.

Kim A. Higgs for plaintiffs.

ummings, McClorey, Davis & Acho, PLC (by

Elizabeth Rae-O’Donnell and Douglas J. Curlew) and

Braun Kendrick Finkbeiner, PLC (by Ellen E. Crane)

for defendant.

Before: R

ONAYNE

RAUSE

, P.J., and G

LEICHER

and

ETICA

, JJ.

URIAM

. In this action alleging multiple viola-

tions of the Open Meetings Act (OMA), MCL 15.261 et

seq., the trial court issued an opinion and order grant-

ing in part and denying in part defendant’s motion for

summary disposition pursuant to MCR 2.116(C)(8)

2018] V

ERMILYA V

ELTA

OLLEGE

417

(failure to state a claim) and (C)(10) (no genuine issue

material fact). Relevant to this appeal, the court also

granted plaintiffs summary disposition in part under

MCR 2.116(I)(2) (nonmoving party entitled to judg-

ment), ruling that defendant’s failure to identify the

“speciﬁc pending litigation” it would be discussing in

closed session violated MCL 15.267(1) and MCL

15.269(1). Defendant appeals by right. We afﬁrm.

This case arises out of a January 12, 2016 meeting in

which defendant passed a motion to enter closed ses-

sion “for the purpose of discussing speciﬁc pending

litigation with legal counsel” pursuant to MCL

15.268(e). Plaintiffs brought suit, alleging, in part, that

defendant violated the OMA by failing to name the

pending litigation it planned to discuss. Defendant

moved the trial court for summary disposition, arguing

that MCL 15.268(e) had no such requirement. Plain-

tiffs’ position was that defendant’s meeting minutes

failed to show the “purpose” for holding a closed-

session meeting as required by MCL 15.267(1) and

MCL 15.269(1). The trial court agreed with plaintiffs.

We review de novo a trial court’s decision to grant

summary disposition. Local Area Watch v Grand

Rapids, 262 Mich App 136, 142; 683 NW2d 745 (2004).

We also review de novo questions of statutory inter-

pretation. Speicher v Columbia Twp Bd of Trustees,

497 Mich 125, 133; 860 NW2d 51 (2014).

The foundational principles of statutory interpreta-

tion are well established:

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. To

do so, we begin by examining the most reliable evidence of

that intent, the language of the statute itself. If the

language of a statute is clear and unambiguous, the

418 325

ICH

416 [July

statute must be enforced as written and no further judicial

construction

is permitted. Effect should be given to every

phrase, clause, and word in the statute and, whenever

possible, no word should be treated as surplusage or

rendered nugatory. Only when an ambiguity exists in the

language of the statute is it proper for a court to go beyond

the statutory text to ascertain legislative intent.

[Whitman v City of Burton, 493 Mich 303, 311-312; 831

NW2d 223 (2013) (citations omitted).]

Additionally, statutory language “cannot be read in a

vacuum” and instead “must be read in context with

the entire act, and the words and phrases used there

must be assigned such meanings as are in harmony

with the whole of the statute . . . .” G C Timmis & Co

v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d

710 (2003) (quotation marks and citation omitted;

ellipsis in original).

It is now well established that “the purpose of the

OMA is to promote governmental accountability by

facilitating public access to ofﬁcial decision making

and to provide a means through which the general

public may better understand issues and decisions of

public concern.” Kitchen v Ferndale City Council, 253

Mich App 115, 125; 654 NW2d 918 (2002), overruled on

other grounds by Speicher, 497 Mich 125, citing Booth

Newspapers, Inc v Univ of Mich Bd of Regents, 444

Mich 211, 231; 507 NW2d 422 (1993). See also

Manning v East Tawas, 234 Mich App 244, 250; 593

NW2d 649 (1999), overruled on other grounds by

Speicher, 497 Mich 125. “To further the OMA’s legis-

lative purposes, the Court of Appeals has historically

interpreted the statute broadly, while strictly constru-

ing its exemptions and imposing on public bodies the

burden of proving that an exemption exists.” Booth

Newspapers, Inc, 444 Mich at 223.

2018] V

ERMILYA V

ELTA

OLLEGE

419

“Under the OMA, public bodies must conduct their

meetings,

make all of their decisions, and conduct their

deliberations (when a quorum is present) at meetings

open to the public.” Speicher, 497 Mich at 134-135,

citing MCL 15.263. However, a public body may meet

in a closed session

for certain enumerated purposes.

MCL

15.268. Pertinent to this case, a public body may

meet in a closed session “[t]o consult with its attorney

regarding trial or settlement strategy in connection

with speciﬁc pending litigation, but only if an open

meeting would have a detrimental ﬁnancial effect on

the litigating or settlement position of the public body.”

MCL 15.268(e). This Court has concluded “that [MCL

15.268(e)] exists for the obvious purpose of allowing a

public body to prepare for litigation without having to

broadcast its trial or settlement strategy to the oppo-

sition along with the rest of the general public.”

Manning, 234 Mich App at 251.

Certain procedural requirements must be met for a

public body to commence a closed session.

roll call vote of members elected or appointed and

serving is required to call a closed session, except for the

closed sessions permitted under section 8(a), (b), (c), (g),

(i), and (j). The roll call vote and the purpose or purposes

for calling the closed session shall be entered into the

minutes of the meeting at which the vote is taken. [MCL

15.267(1).]

Similarly, MCL 15.269(1) requires, in part, that

“

[e]ach public body shall keep minutes of each meet-

ing showing . . . the purpose or purposes for which

a closed session is held.” Accordingly, a public body

must “state on the record the purpose of the closed

session before initiating the closed session.”

“

‘Closed session’ means a meeting or part of a meeting of a public

body that is closed to the public.” MCL 15.262(c).

420 325 M

ICH

416 [July

Herald Co, Inc v Tax Tribunal, 258 Mich App 78, 86;

669

NW2d 862 (2003), overruled on other grounds by

Speicher, 497 Mich 125.

Defendant argues, and we agree, that MCL

15.268(e) does not in and of itself require the public

body to name the pending litigation it will be discuss-

ing in closed session. But statutory language cannot be

read in isolation and must be construed in a way that

harmonizes the entire act. G C Timmis, 468 Mich at

421. Indeed, plaintiffs argued, and the trial court

agreed, that defendant violated MCL 15.267(1) and

MCL 15.269(1), not MCL 15.268(e), when it failed to

identify the “speciﬁc pending litigation” it would be

discussing. When examining MCL 15.267(1), MCL

15.268(e), and MCL 15.269(1) together, it is clear that

the Legislature intended for public bodies to name the

pending litigation before entering a closed session.

First, we note that defendant’s argument that the

OMA requires only that there be speciﬁc pending

litigation would render the word “speciﬁc,” as used in

MCL 15.268(e), redundant and mere surplusage—a

result we must avoid whenever possible. See Whitman,

493 Mich at 311. When a public body meets to discuss

pending litigation, it will necessarily discuss speciﬁc

cases. Therefore, if the Legislature did not intend for

the public body to disclose the particular case or cases

it would be discussing, there would be no reason for the

phrase “speciﬁc pending litigation” to contain the word

“speciﬁc,” as the word has no practical effect on the

permissible substance of the public body’s discussion in

a closed session.

To avoid that interpretation, MCL 15.268(e) must be

read in light of the statutory provisions providing that

the public body must indicate the “purpose” for calling

a closed session. MCL 15.267(1) and MCL 15.269(1).

Those provisions contemplate that a public body will

2018] V

ERMILYA V

ELTA

OLLEGE

421

inform the public of the reason for entering a closed

session,

which requires the public body to identify the

applicable closed-session exemption in MCL 15.268.

Under MCL 15.268(e), the public body may only meet

to discuss “speciﬁc pending litigation.” Reading the

OMA broadly to further the purpose of government

accountability, see Booth Newspapers, Inc, 444 Mich at

223, we conclude that the Legislature intended for the

public body to identify the speciﬁc litigation it would be

discussing in justifying its decision to close its meeting

to the public.

This Court reached a similar conclusion in discuss-

ing a different closed-session exemption in Herald Co,

Inc, 258 Mich App 78. That case concerned MCL

15.268(h), which allows a public body to meet in a

closed session “[t]o consider material exempt from

discussion or disclosure by state or federal statute.” Id.

at 84. The corresponding state statute was the provi-

sion of the Freedom of Information Act (FOIA), MCL

15.231 et seq., that exempts from disclosure “[t]rade

secrets or commercial or ﬁnancial information” if cer-

tain requirements are met. Id. at 84-85, quoting MCL

15.243(1)(f). After reviewing the requirements of MCL

15.267(1) and MCL 15.269(1) concerning closed ses-

sions, this Court determined that

the plain language of these statutes instruct that when

faced

with

FOIA exempt material as applied to the OMA,

the [public body] must state on the record those documents

it deems exempt under the FOIA together with the asso-

ciated FOIA exemption justifying the document’s nondis-

closure, describe those documents unless description

would defeat the purpose of the nondisclosure, and com-

plete this process on the record in open session before

conducting the closed hearing. [Herald Co, Inc, 258 Mich

App at 86-87 (emphasis added).]

422 325

ICH

416 [July

In other words, this Court determined that the public

body

had to identify the exempt material and appli-

cable statute before entering a closed session, even

though such a requirement is not found in the appli-

cable exemption provision alone. This Court impliedly

determined that merely reciting the statutory lan-

guage of the pertinent exemption was insufﬁcient.

There is a stronger case for reaching that conclusion

with respect to MCL 15.268(e), given that the Legisla-

ture only exempted closed-session discussion of “spe-

ciﬁc pending litigation.” (Emphasis added.)

The Attorney General’s OMA handbook further sup-

ports that conclusion. The handbook suggests that every

motion to enter a closed session should refer to an

exempt purpose set forth in MCL 15.268, and the

handbook provides the following example of an appro-

priate motion: “I move that the Board meet in closed

session under section 8(e) of the Open Meetings Act, to

consult with our attorney regarding trial or settlement

strategy in connection with [the name of the speciﬁc

lawsuit].” Ofﬁce of the Attorney General, Open Meetings

Act Handbook, p 11 (emphasis added; brackets in

original), available at <https://www.michigan.gov/

documents/ag/OMA_handbook_287134_7.pdf> (access-

ed July 27, 2018) [https://perma.cc/4RYB-LDS7]. We

acknowledge that the handbook is not binding author-

ity. Still, as the trial court reasoned, it is telling that the

Attorney General naturally read the OMA as requiring

the public body to name the speciﬁc lawsuit it would be

discussing in a closed session.

To the extent the OMA is ambiguous on this issue,

“[t]he resolution of an ambiguity or vagueness that

achieves a statute’s purpose should be favored over the

resolution that frustrates its purpose.” City of Fraser v

Almeda Univ, 314 Mich App 79, 95; 886 NW2d 730

2018] V

ERMILYA V

ELTA

OLLEGE

423

(2016) (quotation marks and citation omitted). Allow-

ing

a public body to call for a closed session by merely

reciting the language of MCL 15.268(e) would not

further the purpose of government accountability be-

cause the public is given no indication of the “issues

and decisions of public concern” that will be addressed

in the closed session. See Kitchen, 253 Mich App at 125.

While a case name in and of itself may not provide

much information, it alerts the public to the existence

of litigation and allows for further inquiry. For those

reasons, defendant violated MCL 15.267(1) and

15.269(1) by not articulating the purpose for calling a

closed session in accordance with MCL 15.268(e).

The

trial

court correctly granted plaintiffs summary dispo-

sition under MCR 2.116(I)(2) on this issue.

Afﬁrmed.

ONAYNE

RAUSE

, P.J., and G

LEICHER

and L

ETICA

, JJ.,

concurred.

Given

our resolution of this issue, we decline to examine the caselaw

from sister states identiﬁed by the parties addressing similar, but

distinct, statutory exceptions to holding open meetings.

424 325

ICH

416

PEOPLE v PATTON

Docket

No. 341105. Submitted May 8, 2018, at Grand Rapids. Decided

August 2, 2018, at 9:00 a.m.

In 2009, Nicholas J. Patton pleaded guilty to second-degree crimi-

nal sexual conduct, MCL 750.520c(2)(b). Because of the convic-

tion, defendant was subject to the registration requirements of

the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. In

2017, defendant was charged with violating MCL 28.727(1)(h) for

failing to register his cellular telephone number and with violat-

ing MCL 28.727(1)(i) for failing to report the e-mail address or

addresses assigned to him. Defendant moved to dismiss the

charges in the Berrien County Trial Court, arguing that the

provisions were unconstitutionally vague and that retroactive

application of the provisions violated the Ex Post Facto Clauses of

the United States and Michigan Constitutions. The court, Scott

Schoﬁeld, J., denied the motion. Defendant appealed by leave

granted.

The Court of Appeals held:

1. A statute is unconstitutionally vague under the United

States and Michigan Constitutions if (1) the statute does not

provide fair notice of the conduct proscribed, (2) the statute

confers on the trier of fact unstructured and unlimited discretion

to determine whether an offense has been committed, or (3) the

statute’s coverage is overly broad and impinges on First Amend-

ment freedoms. A statute is not unconstitutionally vague when

the meaning of the words in controversy can be fairly ascertained

by referring to judicial decisions, the common law, dictionaries,

treatises, or their generally accepted meaning. The correct in-

quiry is whether the statute is vague as applied to the conduct

alleged in the case, not whether the statute may be susceptible to

impermissible interpretations. MCL 8.5 provides that acts are

severable; that is, if any portion of an act or the application

thereof to any person or circumstances is found to be invalid by a

court, such invalidity does not affect the remaining portions or

applications of the act which can be given effect without the

invalid portion or application.

EOPLE V

ATTON

425

2. MCL 28.727(1)(h) provides that an individual subject to

SORA

must register all telephone numbers registered to the

individual or routinely used by the individual. MCL 28.727(1)(i)

similarly provides that an individual subject to SORA must

tinely used by the individual and all login names or other

identiﬁers used by the individual when using any e-mail address

or instant-messaging system. In People v Solloway, 316 Mich App

174 (2016), the Court of Appeals concluded that the MCL

28.727(1)(h) and (i) language requiring a registrant to report all

“routinely used” telephone numbers and e-mail addresses was

unconstitutionally vague and that the defendant could therefore

not be prosecuted under that portion of the statute. The Solloway

holding does not extend to the remainder of those provisions

because the Legislature’s use of the disjunctive term “or”—which

separates the phrases “registered to” and “assigned to” from the

phrase “routinely used”—indicates that there are two ways to

violate those provisions. Given the common meaning and diction-

ary deﬁnitions of “registered to” and “assigned to,” the remainder

of Subdivisions (h) and (i) provide fair notice of the conduct

proscribed; the remaining provisions are not so overly broad that

they infringe a defendant’s First Amendment freedoms, and they

are not unconstitutionally vague. Solloway did not control the

outcome of the case because defendant was prosecuted for failing

to register his personal telephone number and e-mail address or

addresses, not for failing to register those that he routinely used.

The trial court correctly severed the “routinely used” language

from MCL 28.727(1)(h) and (i) and correctly concluded that the

remaining language in Subdivisions (h) and (i) is constitutionally

valid.

3. Under US Const, art I, § 10 and Const 1963, art 1, § 10,

Michigan may not enact an ex post facto law. A law violates the Ex

Post Facto Clauses of the United States and Michigan Constitu-

tions when the law changes the legal consequences of acts

completed before its effective date. In examining a sex-offender

registry law, the determinative question is whether the Legisla-

ture meant to establish civil proceedings, rather than to impose

punishment, when enacting the statute. If the intention was to

enact a regulatory scheme that is civil and nonpunitive, a court

must further examine whether the statutory scheme is so puni-

tive either in purpose or effect as to negate the state’s intention to

deem it civil. Clear proof is necessary to override the stated intent

and transform what has been denominated a civil remedy into a

criminal penalty.

426 325

ICH

425 [Aug

4. SORA is a civil and nonpunitive regulatory scheme that

provides

law enforcement and the public with tools to monitor sex

offenders. Although SORA contains criminal sanctions for offend-

ers who do not comply with the act’s requirements, the sanctions

are not so punitive either in purpose or effect as to negate the

Legislature’s intent to deem it civil; the reporting of telephone

numbers and e-mail addresses required by Subdivisions (h) and

(i) has not traditionally been regarded in history as punishment.

The provisions do not impose an afﬁrmative disability or re-

straint; rather, Subdivisions (h) and (i) further the proper regu-

latory scheme of providing tools to monitor sex offenders. The

provisions have a rational connection to a nonpunitive purpose,

and the telephone and e-mail registration requirements are not

excessive with respect to the act’s stated civil nonpunitive pur-

pose. Accordingly, the MCL 28.727(1)(h) and (i) requirements that

offenders register telephone numbers and e-mail addresses

owned or belonging to the offender do not violate the Ex Post

Facto Clauses of the United States and Michigan Constitutions.

Does # 1–5 v Snyder, 834 F 3d 696 (CA 6, 2016), which held that

the retroactive application of the SORA provisions restricting

where offenders could live, work, and loiter and categorizing

them into tiers violates the federal Ex Post Facto Clause, was not

persuasive because the provisions challenged in Does # 1–5 were

punitive—that is, they were similar to banishment and public

shaming and included geographical restrictions—unlike the non-

intrusive restrictions at issue in this case. The trial court cor-

rectly rejected defendant’s ex post facto challenge.

Afﬁrmed.

1. C

RIMINAL

AW —

ENALTIES —

FFENDERS

EGISTRATION

CT —

EGIS-

TRATION —

ROCESS —

AGUENESS

MCL 28.727(1)(h) provides that an individual subject to the Sex

Offenders Registration Act (SORA), MCL 28.721 et seq., must

routinely used by the individual, and MCL 28.727(1)(i) similarly

provides that an individual subject to SORA must register all

e-mail addresses assigned to the individual or routinely used by

the individual and all login names or other identiﬁers used by the

individual when using any e-mail address or instant-messaging

system; while the “routinely used” language in Subdivisions (h)

and (i) is unconstitutionally vague, the remainder of the provi-

sions’ reporting requirements—that is, telephone numbers “reg-

istered to” an offender and e-mail addresses “assigned to” an

offender—are constitutionally valid after severing the “routinely

used” language from the provisions.

2018] P

EOPLE V

ATTON

427

2. C

RIMINAL

AW —

FFENDERS

EGISTRATION

CT —

ETROACTIVE

PPLI-

CATION —

OST

ACTO

HALLENGE

The retroactive application of MCL 28.727(1)(h) and (i) does not

violate the Ex Post Facto Clauses of the United States and

Michigan Constitutions (US Const, art I, § 10; Const 1963, art 1,

§ 10).

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Michael J. Sepic, Prosecuting Attor-

ney, and Aaron J. Mead, Assistant Prosecuting Attor-

ney, for the people.

Stephanie Farkas for defendant.

Before: R

ONAYNE

RAUSE

, P.J., and M

ARKEY

and

IORDAN

, JJ.

ARKEY

, J. Defendant appeals by leave granted the

trial court’s order denying his motion to dismiss two

counts of violating the Sex Offenders Registration Act

(SORA), MCL 28.721 et seq., on the basis that MCL

28.727(1)(h) (requiring reporting “[a]ll telephone num-

bers registered to the individual or routinely used by the

individual”) and MCL 28.727(1)(i) (requiring reporting

“[a]ll electronic mail addresses and instant message

addresses assigned to the individual or routinely used

by the individual”) are unconstitutionally vague. Fol-

lowing a preliminary examination, defendant was

bound over for trial on the charged offenses. After

brieﬁng and argument of the parties on the motion to

dismiss, the trial court ruled that the SORA require-

ments at issue are not unconstitutionally vague. The

trial court also determined that defendant’s ex post

facto challenge was meritless and issued an order deny-

ing defendant’s motion to dismiss. We afﬁrm.

Defendant is subject to the requirements of SORA

based on his conviction by guilty plea on November 18,

428 325 M

ICH

425 [Aug

2009, to second-degree criminal sexual conduct, MCL

50.520c(2)(b); the offense allegedly occurred on

June 26, 2009. According to testimony at the prelimi-

nary examination in this case, while defendant was on

parole for that offense, his parole agent, Jeanice

McConomy, received information that defendant had a

cellular telephone that he was using to access the

Internet, which was a violation of his parole conditions.

During a home visit by McConomy on February 16,

2017, defendant initially denied having a cellular tele-

phone. A search of defendant’s person, however, re-

vealed a cellular telephone in defendant’s pocket that

defendant then admitted was his. Defendant admitted

that the cellular telephone could access the Internet,

but he claimed that he only accessed the Internet to play

games. Defendant denied accessing the Internet on the

cellular telephone to visit pornographic websites. Defen-

dant also admitted to McConomy that he did not regis-

ter the cellular telephone or the cellular telephone

number as required by SORA, although he did update

his address and his employment. McConomy seized the

cellular telephone and contacted the police to arrest

defendant for a parole violation. McConomy turned the

cellular telephone over to Detective Cory Peek of the

Berrien County Sheriff’s Department.

Detective Peek was received at the preliminary

examination as an expert witness qualiﬁed in the area

of forensic examination of electronic devices. Detective

Peek conﬁrmed that the cellular telephone was a

“smart phone” that was capable of accessing the Inter-

net. He used a program called Cellebrite to extract

information from the cellular telephone. Detective

Peek testiﬁed that he found “selﬁes” of defendant on

the cellular telephone. He also discovered porno-

graphic pictures, several hundred e-mails—some of

which were from dating websites—and an e-mail ac-

2018] P

EOPLE V

ATTON

429

count with the name Nicholas Patton associated with

it.

Detective Peek also discovered a second e-mail

address on the cellular telephone. After this testimony,

the trial court, sitting as examining magistrate, bound

defendant over on both counts.

In defendant’s motion to dismiss the charges, he

claimed that the SORA provisions that mandated his

registration of cellular telephone numbers registered

to him or routinely used by him and of any e-mail

accounts assigned to him or routinely used by him

violated his state and federal due-process rights be-

cause the mandates were unconstitutionally vague. He

also claimed that the SORA provisions were unconsti-

tutional because they violated the Ex Post Facto

Clauses of the federal and state Constitutions.

The prosecution argued that it was not relying on

that part of the statutory prohibition of “routinely

used” that this Court recently found unconstitutionally

vague. See People v Solloway, 316 Mich App 174, 187;

891 NW2d 255 (2016). Rather, the prosecution argued

that the phrase “routinely used” could be judicially

severed from the statute to save it from constitutional

inﬁrmity. Thus, the prosecution argued that it was only

proceeding under the “register[ed] to” and “assigned

to” language of MCL 28.727(1)(h) and (i). The prosecu-

tion also argued that the SORA provisions did not

violate the Ex Post Facto Clauses because SORA was

not punitive. Rather, the prosecution argued, the pro-

visions are part of a civil remedy or protection.

The trial court agreed with the prosecution’s argu-

ments, noting “that particular subsection of the statute

should not be tossed out because one portion was found

to be unconstitutionally vague. So I have no problem

with allowing the prosecution to go forward on the

portion of the statute . . . that is not unconstitutionally

430 325 M

ICH

425 [Aug

vague.” The trial court also concluded that the statute

was

not an unconstitutional ex post facto law because

the SORA provisions that defendant was accused of

violating did not reveal a criminal purpose. Accord-

ingly, the trial court entered its order denying defen-

dant’s motion to dismiss. Defendant now appeals by

leave granted.

I. STANDARD OF REVIEW

A trial court’s decision regarding a motion to dismiss

s reviewed for an abuse of discretion, People v Herndon,

246 Mich App 371, 389; 633 NW2d 376 (2001), which

occurs when the court chooses an outcome that is

outside the range of reasonable and principled out-

comes, People v Bass, 317 MichApp 241, 256; 893 NW2d

140 (2016). This Court reviews de novo the meaning of

a statute, People v Pfafﬂe, 246 Mich App 282, 295; 632

NW2d 162 (2001), and also reviews de novo constitu-

tional issues, Solloway, 316 Mich App at 184.

II. DISCUSSION

DUE

PROCESS

We conclude that the trial court properly severed the

unconstitutionally vague phrase “routinely used” from

MCL 28.727(1)(h) and (i). Consequently, the trial court

correctly ruled that the prosecution could continue

under the “registered to” and “assigned to” portions of

those SORA requirements, which were not unconstitu-

tionally vague. We further hold that the statutory

provisions did not violate the Ex Post Facto Clauses of

the federal and state Constitutions.

Defendant was charged with violating the reporting

requirements of SORA under MCL 28.727, which

states, in pertinent part:

2018] P

EOPLE V

ATTON

431

(1) . . . All of the following information shall be obtained

otherwise provided for registration purposes:

* * *

(h) All telephone numbers registered to the individual

or routinely used by the individual.

(i) All electronic mail addresses and instant message

addresses assigned to the individual or routinely used by

the individual and all login names or other identiﬁers

used by the individual when using any electronic mail

address or instant messaging system.

Our Supreme Court in People

v Moreno, 491 Mich

38, 45; 814 NW2d 624 (2012), described pertinent

principles of statutory construction applicable in all

cases:

When interpreting statutes, this Court must ascertain

and

give effect to the intent of the Legislature. The words

used in the statute are the most reliable indicator of the

Legislature’s intent and should be interpreted on the basis

of their ordinary meaning and the context within which

they are used in the statute. In interpreting a statute, this

Court avoids constructions that would render any part of

the statute surplusage or nugatory. [Quotation marks and

citations omitted.]

Defendant ﬁrst argues that MCL 28.727(1)(h) and (i)

are

unconstitutionally

vague under the Due Process

Clauses of the United States and Michigan Constitu-

tions. US Const, Am XIV; Const 1963, art 1, § 17. When

reviewing a constitutional challenge to a statute, this

Court must construe it to be constitutional unless its

unconstitutionality is clearly apparent. Solloway, 316

Mich App at 184. A statute is unconstitutionally vague

if “(1) it does not provide fair notice of the conduct

proscribed, (2) it confers on the trier of fact unstruc-

tured and unlimited discretion to determine whether

432 325 M

ICH

425 [Aug

an offense has been committed, or (3) its coverage is

overly

broad and impinges on First Amendment Free-

doms.” People v Vronko, 228 Mich App 649, 652; 579

NW2d 138 (1998). A statute is not unconstitutionally

vague when “the meaning of the words in controversy

can be fairly ascertained by reference to judicial deter-

minations, the common law, dictionaries, treatises, or

their generally accepted meaning.” Id. at 653. Further,

a statute may survive constitutional scrutiny when its

words have more than one meaning, and a statute need

not deﬁne an offense with mathematical precision.

People v Lawhorn, 320 Mich App 194, 200; 907 NW2d

832 (2017). “The proper inquiry is not whether the

statute may be susceptible to impermissible interpre-

tations, but whether the statute is vague as applied to

the conduct” alleged in the instant case. Vronko, 228

Mich App at 652.

The Legislature has speciﬁcally provided for the use

of severability when any part of a statute is deter-

mined to be invalid if appropriate to avoid rendering

the remaining parts of the statute meaningless. To that

end, MCL 8.5 states:

In the construction of the statutes of this state the

following

rules

shall be observed, unless such construction

would be inconsistent with the manifest intent of the

legislature, that is to say:

If any portion of an act or the application thereof to any

person or circumstances shall be found to be invalid by a

court, such invalidity shall not affect the remaining por-

tions or applications of the act which can be given effect

without the invalid portion or application, provided such

remaining portions are not determined by the court to be

inoperable, and to this end acts are declared to be sever-

able.

In this case, defendant argues, as he did in his

motion

to dismiss, that on the basis of this Court’s

2018] P

EOPLE V

ATTON

433

holding in Solloway

, 316 Mich App at 187, this Court

should hold that the part of SORA defendant was

charged with violating should be held unconstitution-

ally vague. The prosecution responded to defendant’s

motion to dismiss and now argues that Solloway is

distinguishable because the Solloway Court only ad-

dressed the words “routinely used” as used in the

statute, not the terms “registered to” or “assigned to”

as used in MCL 28.727(1)(h) and (i). The prosecution

argues that the charges against defendant are based

only on the “registered to” and “assigned to” portions of

the statute, not the alternative “routinely used” lan-

guage, and that the trial court properly severed the

invalid portions of the statute from the valid remain-

der to allow the prosecution against defendant to

continue. Like the trial court, we agree with the

prosecution’s argument.

In Solloway, the defendant was on probation be-

cause of a conviction of fourth-degree criminal sexual

conduct, and as a result, he was required to be regis-

tered under SORA. Solloway, 316 Mich App at 179.

The police searched the defendant’s house and found a

cellular telephone that was registered in a relative’s

name. Id. The defendant also admitted that he had an

e-mail account in his father’s name that he also had not

registered. Id. at 180. The Solloway Court found per-

suasive the case of Doe v Snyder, 101 F Supp 3d 672,

688-713 (ED Mich, 2015),

which addressed, inter

alia

the phrase “routinely used” in MCL 28.727(1)(h) and

(i). Solloway, 316 Mich App at 185-186. After discuss-

ing Doe, this Court held:

Opinions

of the lower federal courts and foreign jurisdictions are not

binding but may be considered persuasive. See Abela v Gen Motors Corp,

469 Mich 603, 607; 677 NW2d 325 (2004); People v Campbell, 289 Mich

App 533, 535; 798 NW2d 514 (2010).

434 325 M

ICH

425 [Aug

In this case, the phrase “routinely used,” as found in

MCL

28.727(1)(h) and (i) renders those statutory provi-

sions vague. We ﬁnd the analysis in Doe, 101 F Supp 3d at

688-713, persuasive. Given the dictionary deﬁnition of

“routinely,” as discussed in that case, id. at 688, it is

evident that law enforcement ofﬁcers and judges could

hold different views of how often a telephone number or

e-mail address must be used by an individual to be

“routinely used” under the statute. We thus agree with the

holding in Doe and ﬁnd that the provisions under which

defendant was convicted are unconstitutionally vague.

Therefore, defendant’s convictions for failing to comply

with SORA are vacated. [Id. at 187.]

Thus, the Solloway Court

only held unconstitution-

ally vague the alternative part of MCL 28.727(1)(h)

and (i) requiring registration of “telephone numbers”

and “electronic mail addresses and instant message

addresses” that are “routinely used” by the person

subject to the requirements of SORA. The Solloway

Court did not address or hold unconstitutionally vague

the portions of MCL 28.727(1)(h) and (i) requiring

registration of “telephone numbers” and “electronic

mail addresses and instant message addresses” that

are “registered to” or “assigned to” the person subject

to the requirements of SORA. This view of Solloway is

buttressed by the fact that the Court found Doe per-

suasive, which also only addressed the “routinely used”

alternative language of MCL 28.727(1)(h) and (i).

Moreover, our interpretation is further supported by

the fact that the evidence against the defendant in

Solloway consisted of a cellular telephone that was

registered to a relative, not to the defendant, and an

e-mail account that was registered to the defendant’s

father, not to the defendant. Therefore, the prosecution

in Solloway could only proceed against the defendant

under the “routinely used” alternative language of

MCL 28.727(1)(h) and (i). Consequently, Solloway is

2018] P

EOPLE V

ATTON

435

distinguishable from the facts of the instant case

because

the evidence showed that defendant person-

ally purchased the cellular telephone; in addition,

there were selﬁes of defendant on the cellular tele-

phone, and at least one of the e-mail addresses found

on the cellular telephone was registered in defendant’s

name. The present case is in direct contrast to the

prosecution in Solloway, which relied entirely on the

“routinely used” alternative language of MCL

28.727(1)(h) and (i), and the evidence only showed that

a telephone belonged to a family member and an e-mail

account was registered in the name of the defendant’s

father.

This reasoning is further supported by the language

of the statute. It uses the term “or” in separating the

phrases “registered to” and “assigned to” from the

phrase “routinely used.” MCL 28.727(1)(h) and (i). The

Legislature’s use of the disjunctive term “or” evidences

that there are two ways to violate the statute. See

People v Kowalski, 489 Mich 488, 499; 803 NW2d 200

(2011). That is, defendant could violate MCL

28.727(1)(h) by failing to register a telephone number

registered to him; he could separately violate the

statute by failing to register a telephone number that

he routinely used. The same analysis applies to Sub-

division (i) regarding e-mail and instant-message ad-

dresses. To conclude that this Court’s decision in

Solloway applied to all the provisions of MCL

28.727(1)(h) and (i) despite being separated by the

disjunctive term “or” would render the portions of the

statute stating “registered to” and “assigned to” “sur-

plusage or nugatory.” Moreno, 491 Mich at 45. It would

also run contrary to the Legislative directive to sever

invalid parts of a statute from the remainder whenever

possible. MCL 8.5.

436 325 M

ICH

425 [Aug

The trial court in this case properly severed the

invalid

parts of the statute after it concluded that the

“routinely used” language of MCL 28.727(1)(h) and (i)

was unconstitutionally vague but that the “registered

to” and “assigned to” language of the statute regarding

phone numbers and e-mail and instant-message ac-

counts was valid. See MCL 8.5; People v McMurchy,

249 Mich 147, 158; 228 NW 723 (1930) (explaining that

when one part of a statute is held unconstitutional, the

remainder of the statute remains valid unless all parts

of the statute are so interconnected in meaning that

the Legislature would likely not have passed the one

part without the other). We conclude that the trial

court’s ruling was not error. Only a portion of MCL

28.727(1)(h) and (i) is unconstitutionally vague,

Solloway, 316 Mich App at 187, and the invalid portion

articulates a separate, alternative method of violating

the statute. The invalid portion is not so intercon-

nected with the other portions as to render them also

invalid. Thus, the trial court properly severed the

invalid portions and saved the remainder. So, we

conclude that the remaining portions of the statute,

speciﬁcally the “registered to” and “assigned to” lan-

guage under which the present prosecution is brought,

are constitutionally valid. See MCL 8.5; McMurchy,

249 Mich at 158.

Moreover, Merriam-Webster’s dictionary deﬁnes

“registered” as “having the owner’s name entered in a

Webster’s Collegiate Dictionary (11th ed). The same

source deﬁnes “assign” as “to consider to belong to.” Id.

When one applies these deﬁnitions to the terms as

used in MCL 28.727(1)(h) and (i), it is clear that an

offender subject to the SORA reporting requirements

must report any telephone number that the offender is

the “recorded owner of” or for which the offender’s

2018] P

EOPLE V

ATTON

437

name is “entered” as the owner. In this case, as

discussed

above, defendant admitted that he person-

ally purchased the cellular telephone with money he

had earned. Accordingly, defendant was the recorded

owner of the cellular telephone number or had his

name entered as the owner of the cellular telephone

number. Also, defendant must report any e-mail ad-

dresses “consider[ed] to belong to” him. See MCL

28.727(1)(i) and Merriam-Webster’s Collegiate Diction-

ary (11th ed) (deﬁning the term “assign”). In this case,

there was at least one e-mail address speciﬁcally

registered to defendant by name, which must be con-

sidered to belong to defendant.

When the terms of MCL 28.727(1)(h) and (i) on

which the prosecution in this case is based are consid-

ered in light of their common meaning or in consulta-

tion with dictionary deﬁnitions, it is clear that those

portions of the statute are not unconstitutionally

vague. See Solloway, 316 Mich App at 185; see also

Vronko, 228 Mich App at 653 (“A statute is not vague if

the meaning of the words in controversy can be fairly

ascertained by reference to judicial determinations,

the common law, dictionaries, treatises, or their gen-

erally accepted meaning.”). Defendant was provided

fair notice of the conduct proscribed—that he must

corded owner of, or that his name was entered as the

owner of, and he must register any e-mail address

assigned to him that would be considered to belong to

him. The terms at issue did not provide the trier of fact

with unstructured or unlimited discretion to determine

whether an offense had been committed. The trier of

fact would need to determine only if defendant were

the owner of or had his name entered as the owner of

any telephone numbers or if any e-mail addresses were

considered to belong to defendant.

438 325 M

ICH

425 [Aug

Finally, the scope of MCL 28.727(1)(h) and (i) after

severing

the phrase “routinely used” is not so overly

broad as to infringe defendant’s First Amendment

freedoms. Subdivision (h) only applies to telephone

numbers owned or entered as being owned by defen-

dant. And Subdivision (i) only applies to e-mail ad-

dresses considered to belong to defendant. Considering

these factors in light of the facts—(1) that defendant

admitted that the cellular telephone was his, (2) that

he purchased the cellular telephone with his own

money from his employment, (3) that there were selﬁes

of defendant on the cellular telephone, and (4) that at

least one e-mail address was directly linked to defen-

dant by name—we conclude that the trial court cor-

rectly ruled that the prosecution in this case could be

continued based on the “registered to” and “assigned

to” terms of MCL 28.727(1)(h) and (i) without applica-

tion of the “routinely used” provisions of the statute.

We hold that because the “registered to” and “assigned

to” provisions of MCL 28.727(1)(h) and (i) are separate,

severable provisions, they are not unconstitutionally

vague.

B. EX POST FACTO LAW

Defendant next argues that application of MCL

28.727(1)(h)

and

(i) violated the Ex Post Facto Clauses

of the United States and Michigan Constitutions. US

Const, art I, § 10 states, in relevant part, “No State

shall . . . pass any . . . ex post facto Law . . . .” Mich

Const 1963, art 1, § 10 states, “No bill of attainder, ex

post facto law or law impairing the obligation of

contract shall be enacted.”

There are four categories of ex post facto laws: (1)

any law that punishes an act that was innocent when

the act was committed, (2) any law that makes an act

2018] P

EOPLE V

ATTON

439

a more serious criminal offense than when committed,

(3)

any law that increases the punishment for a crime

committed before the law was passed, or (4) any law

that allows the prosecution to convict a defendant on

less evidence than was required when the act was

committed. People v Callon, 256 Mich App 312, 317;

662 NW2d 501 (2003), citing Calder v Bull, 3 US 386,

390; 1 L Ed 648; 3 Dall 386 (1798) (opinion by Chase,

J.). “All ex post facto laws share two elements: (1) they

attach legal consequences to acts before their effective

date, and (2) they work to the disadvantage of the

defendant.” Callon, 256 Mich App at 318, citing Weaver

v Graham, 450 US 24, 29; 101 S Ct 960; 67 L Ed 2d 17

(1981). The crucial question in determining whether a

law violates the Ex Post Facto Clause “ ‘is whether the

law changes the legal consequences of acts completed

before its effective date.’ ” Callon, 256 Mich App at 318,

quoting Carmell v Texas, 529 US 513, 520; 120 S Ct

1620; 146 L Ed 2d 577 (2000), in turn quoting Weaver,

450 US at 31 (quotation marks omitted).

In this case, defendant originally became subject to

SORA after his conviction for second-degree criminal

sexual conduct in 2009. MCL 28.727(1)(h) and (i) were

added to SORA by 2011 PA 18 and became effective

July 1, 2011. The 2011 amendments required defen-

dant, who was already subject to SORA, to comply with

its new requirements. 2011 PA 17; 2011 PA 18. Thus,

the 2011 amended SORA requirements retroactively

applied to defendant. See Does #1-5 v Snyder, 834 F3d

696, 698 (CA 6, 2016). So, the question becomes

whether the retroactive application of new SORA re-

quirements violates the Ex Post Facto Clauses of the

United States and Michigan Constitutions.

The United States Supreme Court in Smith v Doe,

538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003),

440 325 M

ICH

425 [Aug

discussing Alaska’s sex-offender registry law, set forth

two-step inquiry for determining whether retroactive

application of a law violates the Ex Post Facto Clause

of the federal Constitution.

Under that two-step in-

quiry

, a court must determine

whether the [L]egislature meant the statute to establish

civil proceedings. If the intention of the [L]egislature was

to impose punishment, that ends the inquiry. If, however,

the intention was to enact a regulatory scheme that is civil

and nonpunitive, we must further examine whether the

statutory scheme is so punitive either in purpose or effect

as to negate [the Legislature’s] intention to deem it civil.

[Id. (quotation marks and citations omitted).]

Defendant cites People

v Temelkoski, 307 Mich App

241; 859 NW2d 743 (2014), rev’d 501 Mich 960 (2018),

as potentially providing insight to this issue. But that

case is clearly distinguishable from the instant case.

In Temelkoski, our Supreme Court concluded that

the retroactive application of SORA to the defendant

was contrary to principles of due process developed in

the context of plea bargaining. Temelkoski, 501 Mich at

961, citing Santobello v New York, 404 US 257, 262; 92

S Ct 495; 30 L Ed 2d 427 (1971). The defendant pleaded

guilty in 1994 to one count of second-degree criminal

sexual conduct and was sentenced as a youthful

trainee under the Holmes Youthful Trainee Act

(HYTA), MCL 762.11 et seq. The version of HTYA in

effect when the defendant entered his guilty plea

provided that a trainee would not suffer any civil

disability or loss of right or privilege because of that

assignment. After his plea, the Legislature adopted

SORA, which clearly imposes a civil disability.

Temelkoski, 501 Mich at 961. The Court held that the

“Michigan

does not interpret its constitutional provision more ex-

pansively than its federal counterpart.” Callon, 256 Mich App at 317.

2018] P

EOPLE V

ATTON

441

“retroactive application of SORA deprived defendant of

the

beneﬁts under HYTA to which he was entitled and

therefore violated his constitutional right to due pro-

cess.” Id. The Court reasoned that retroactive applica-

tion of SORA would “disturb[] settled expectations

based on the state of the law” at the time of the

defendant’s plea, resulting in “manifest injustice” and

violating due process. Id. (quotation marks and cita-

tion omitted). Because the Temelkoski Court did not

rely on the Ex Post Facto Clause or caselaw applying

its principles, it is distinguishable from the instant

case.

Applying the principles developed under the United

States and Michigan Ex Post Facto Clauses, and spe-

ciﬁcally guided by Smith, 538 US 84, the 2011 amend-

ment at issue in this case is not an ex post facto law.

First, the Legislature did not intend SORA to be a

criminal punishment. MCL 28.721a provides, in rel-

evant part, “The registration requirements of this act

are intended to provide law enforcement and the

people of this state with an appropriate, comprehen-

sive, and effective means to monitor those persons who

pose such a potential danger.” Thus, the Legislature’s

intent by enacting the registration requirements of

SORA was to “enact a regulatory scheme that is civil

and nonpunitive” by providing law enforcement and

the public with tools to monitor sex offenders. Smith,

538 US at 92. Thus, although SORA contains criminal

sanctions for registrants who violate the act, it is not so

different from the Alaska sex-offender registry law

reviewed in Smith, 538 US 84, to conclude that the

intent of Michigan’s SORA is punitive. See Snyder, 834

F3d at 700-701.

Second, we conclude that MCL 28.727(1)(h) and (i)

are not “so punitive either in purpose or effect as to

442 325 M

ICH

425 [Aug

negate [the Legislature’s] intention to deem it civil.”

Smith

, 538 US at 92. Defendant urges with respect to

this second prong of the Smith test that this Court

adopt the reasoning of the Sixth Circuit Court of

Appeals in Snyder, 834 F3d 696. We conclude, however,

that Snyder is distinguishable from the instant case

with regard to this part of the Smith test.

In Snyder, the Sixth Circuit Court of Appeals ad-

dressed whether provisions of SORA constituted pun-

ishment in violation of the Ex Post Facto Clause of the

United States Constitution. Id. at 699-700. The Snyder

court conducted the two-step inquiry that the Supreme

Court applied when analyzing whether the Alaska

sex-offender registry law violated the Ex Post Facto

Clause. “[T]he test we must apply . . . is quite ﬁxed: an

ostensibly civil and regulatory law, such as SORA, does

not violate the Ex Post Facto clause unless the plaintiff

can show ‘by the clearest proof’ that ‘what has been

denominated a civil remedy’ is, in fact, ‘a criminal

penalty[.]’ ” Id. at 700, quoting Smith, 538 US at 92.

The court ﬁrst determined that SORA did not evince a

punitive intent. Snyder, 834 F3d at 700. It then ana-

lyzed whether, despite its lack of punitive intent,

SORA had the effect of being punitive. Id. at 701. The

Snyder Court then reviewed the ﬁve “most relevant”

factors as stated in Smith, 538 US at 97: (1) whether

the law inﬂicts what has been regarded in our history

and traditions as punishment, (2) whether the law

imposes an afﬁrmative disability or restraint, (3)

whether the law promotes the traditional aims of

punishment, (4) whether the law has a rational con-

nection to a nonpunitive purpose, and (5) whether the

law is excessive with respect to its purpose. Snyder,

834 F3d at 701. After its review, the court concluded

that “Michigan’s SORA imposes punishment,” which

“may never be retroactively imposed or increased.” Id.

2018] P

EOPLE V

ATTON

443

at 705. Consequently, the court held that “[t]he retro-

active

application of SORA’s 2006 and 2011 amend-

ments” to the plaintiffs in that case was an unconsti-

tutional violation of the Ex Post Facto Clause. Id. at

706.

In reaching its conclusion that SORA’s 2006 and

2011 amendments were ex post facto laws, the Snyder

court observed:

A regulatory regime that severely restricts where

people can live, work, and “loiter,” that categorizes them

into tiers ostensibly corresponding to present dangerous-

ness without any individualized assessment thereof, and

that requires time-consuming and cumbersome in-person

reporting, all supported by—at best—scant evidence that

such restrictions serve the professed purpose of keeping

Michigan communities safe, is something altogether dif-

ferent from and more troubling than Alaska’s ﬁrst-

generation registry law. SORA brands registrants as

moral lepers solely on the basis of a prior conviction. It

consigns them to years, if not a lifetime, of existence on the

margins, not only of society, but often, as the record in this

case makes painfully evident, from their own families,

with whom, due to school zone restrictions, they may not

even live. It directly regulates where registrants may go in

their daily lives and compels them to interrupt those lives

with great frequency in order to appear in person before

law enforcement to report even minor changes to their

information. [Id. at 705.]

The instant case is distinguishable from Snyder

because, unlike the plaintiffs in Snyder,

defendant

this case only challenges the reporting of telephone

“Although

state courts are bound by the decisions of the United

States Supreme Court construing federal law, there is no similar

obligation with respect to decisions of the lower federal courts.” Abela,

469 Mich at 606 (citation omitted). The decisions of lower federal courts

may be considered if the court’s analysis and conclusions are persuasive.

Id. at 607.

444 325

ICH

425 [Aug

numbers and e-mail addresses. As the above quotation

from Snyder indicates,

the court considered additional

provisions of SORA—most importantly, the restriction

on where offenders could live, work, and loiter, as well

as the tier classiﬁcation based on crime of

conviction—to determine that SORA had a punitive

effect. In concluding that SORA was akin to punish-

ment, the court noted that SORA, as amended by 2011

PA 18, includes provisions that have “much in common

with banishment and public shaming,” employ geo-

graphical restrictions, “and ha[ve] a number of simi-

larities to parole/probation.” Id. at 701, 703. Defendant

in this case does not challenge the restrictions on

where he can live, work, or visit. Nor does defendant

challenge the tier system. He only challenges the

portion of the 2011 amendments that requires the

reporting of telephone numbers and e-mail addresses.

The mandated reporting of telephone numbers regis-

tered to him and e-mail addresses assigned to him does

not have anything in common with banishment, public

shaming, or employing geographical restrictions;

therefore, we conclude that the provisions of SORA

that defendant challenges in this case are not what has

been regarded in our history and tradition as punish-

ment.

Additionally, MCL 28.727(1)(h) and (i) do not impose

an afﬁrmative disability or restraint. Those subdivi-

sions do not prevent or restrain defendant from having

a cellular telephone number or an e-mail address—

they only mandate that defendant register them if he

does. Further, the subdivisions do not promote the

traditional aims of punishment such as incapacitation,

retribution, and speciﬁc and general deterrence. See

Snyder, 834 F3d at 704. Again, the reporting require-

ments of Subdivisions (h) and (i) do not deter an

offender from having a cellular telephone or an e-mail

2018] P

EOPLE V

ATTON

445

address; they only require that an offender register

phones

owned or entered as being owned by the of-

fender and any e-mail addresses belonging to the

offender. These requirements simply further the

proper civil regulatory scheme of “provid[ing] law en-

forcement and the people of this state with an appro-

priate, comprehensive, and effective means to monitor

those persons who pose such a potential danger.” MCL

28.721a; see also Snyder, 834 F3d at 700-701.

As just noted, with respect to the fourth “most

relevant” factor, see Snyder, 834 F3d at 701, citing

Smith, 538 US at 97, Subdivisions (h) and (i) have a

rational connection to a nonpunitive purpose. As stated

by the Legislature’s statement of intent, the purpose of

the telephone number and e-mail address reporting

requirements is to give law enforcement and the public

the tools necessary to help monitor an offender’s be-

havior. MCL 28.721a. We conclude that registration of

phones owned or entered as being owned by an of-

fender and registration of e-mail addresses belonging

to an offender are not punitive. As the trial court in this

case analogized, every driver in this state must regis-

ter his or her motor vehicle with the state. Although

these requirements may be unpleasant or cause mo-

mentary interruption, they are not a punishment for a

citizen’s choice to own and drive a motor vehicle.

Similarly, the same could be said for registering tele-

phone numbers and e-mail addresses to comply with

the requirements of MCL 28.727(1)(h) and (i). So,

simply requiring registration of telephone numbers

and e-mail addresses does not evidence a punitive

intent or effect.

The last of the “most relevant” factors, Smith, 538

US at 97, is whether the registration requirements are

excessive with respect to their stated nonpunitive

446 325 M

ICH

425 [Aug

purpose? We conclude that they are not. Again, the

purpose

of MCL 28.727(1)(h) and (i) is to provide tools

for monitoring an offender. An offender is required to

owned or belonging to the offender. Generally speak-

ing, people do not frequently obtain a new telephone

number or e-mail address. Thus, we ﬁnd that the

registration requirements of MCL 28.727(1)(h) and (i)

are not excessive with respect to SORA’s stated civil

nonpunitive purpose. Because defendant in this case

only challenges the registration requirements for tele-

phone numbers and e-mail addresses, as opposed to

the living and working restrictions and the tier system

as did the plaintiffs in Snyder, we conclude that Snyder

provides little guidance to this Court regarding the

retroactive application of the requirements of MCL

28.727(1)(h) and (i). We therefore decline to adopt the

analysis of Snyder as defendant urges.

III. CONCLUSION

In summation, we conclude that the “registered to”

and

“assigned

to” portions of MCL 28.727(1)(h) and (i)

are separate provisions that operate independently

from the invalid “routinely used” portions of the stat-

ute. See MCL 8.5; McMurchy, 249 Mich at 158. The

“registered to” and “assigned to” portions of MCL

28.727(1)(h) and (i) provide fair notice of the conduct

proscribed, do not confer on the trier of fact unstruc-

tured and unlimited discretion to determine whether

an offense has been committed, and their scope is not

so overly broad as to infringe constitutional rights.

Accordingly, we conclude that the “registered to” and

“assigned to” provisions of MCL 28.727(1)(h) and (i) are

not unconstitutionally vague. Therefore, the prosecu-

tion of this case under MCL 28.727(1)(h) and (i), as

2018] P

EOPLE V

ATTON

447

interpreted, may proceed under the constitutionally

valid

portions of the statute.

We further hold that although MCL 28.727(1)(h) and

(i) applied retroactively to defendant, those provisions

further a civil regulatory scheme and are not punitive

in effect. Therefore, we hold that the “registered to”

and “assigned to” provisions of MCL 28.727(1)(h) and

(i) do not violate the Ex Post Facto Clauses of the

federal and state Constitutions. See Smith, 538 US at

92, 97, 105-106.

We afﬁrm and remand for further proceedings. We

do not retain jurisdiction.

ONAYNE

RAUSE

, P.J., and R

IORDAN

, J., concurred

with M

ARKEY

, J.

448 325 M

ICH

425 [Aug

PEOPLE v CZUPRYNSKI

Docket

No. 336883. Submitted May 9, 2018, at Lansing. Decided

August 2, 2018, at 9:05 a.m. Leave to appeal denied 503 Mich

1040 (2019).

Edward M. Czuprynski was convicted following a jury trial in the

Bay Circuit Court, M. Randall Jurrens, J., of committing a motor

vehicle moving violation and thereby causing a serious impair-

ment of a body function, MCL 257.601d(2). Defendant was driving

when he struck a person with his vehicle. A police ofﬁcer testiﬁed

that immediately after the accident, defendant seemed drowsy

and was slow with his responses. Defendant stated at trial that

he had taken a pill to help him “relax” and that it was a “sleeping

aid” but “not a sleeping pill.” It also was not disputed that

defendant had consumed some beer before driving that night.

However, the accident victim was dressed in dark clothing, and

witnesses stated that the accident victim tried to rush across the

street in front of defendant’s car. The accident victim also had a

0.19% blood alcohol level. An analysis of the crash-data-retrieval

system from defendant’s car revealed that defendant had been

traveling at a speed of 41 miles per hour, without hitting the

brakes, before the crash. The speed limit before the intersection

was 35 miles per hour. In addition, the road on which defendant

was driving had a blinking yellow light at the time of the crash.

The court sentenced defendant to 18 months’ probation. Defen-

dant appealed.

The Court of Appeals held:

1. MCL 257.601d(2) provides that a person who commits a

moving violation while operating a vehicle upon a highway or

other place open to the general public, including, but not limited

to, an area designated for the parking of motor vehicles, that

causes serious impairment of a body function to another person is

guilty of a misdemeanor punishable by imprisonment for not

more than 93 days or a ﬁne of not more than $500, or both. The

ﬁrst part of MCL 257.601d(2) has two predicates to the causation

requirement because “operating a vehicle” is tied to “moving

violation” through the word “while.” Therefore, neither a moving

violation alone nor the operation of a vehicle alone satisﬁes the

statute; rather, both of those predicates must be present in

2018] P

EOPLE V

ZUPRYNSKI

449

conjunction with each other—a moving violation while operating

vehicle. MCL 257.601d(2) also has a causation requirement: a

moving violation “while operating” a vehicle must “cause” the

“serious impairment of a body function.” A causal link must exist

between the moving violation and the injury, not simply a causal

link between the operation of the vehicle and the injury. Accord-

ingly, MCL 257.601d(2) requires that a moving violation together

with the operation of a motor vehicle cause the serious impair-

ment of a body function.

2. A criminal defendant is entitled to have a properly in-

structed jury consider the evidence against him or her. Jury

instructions must include all elements of the charged offenses

and any material issues, defenses, and theories if there is

evidence to support them. An omission, or an incomplete instruc-

tion, is less likely to be prejudicial than a misstatement of the law.

M Crim JI 15.19 provides the jury instruction deﬁning a moving

violation causing serious impairment of a body function. M Crim

JI 15.19 correctly deﬁnes factual and proximate causation, but it

misapplies proximate causation to MCL 257.601d(2). MCL

257.601d(2) requires that the moving violation together with

operation of the vehicle be the proximate cause of the bodily

injury; however, M Crim JI 15.19 tells the jury that operation of

the vehicle alone must be the proximate cause. Therefore, the

instruction is incorrect because criminal liability arises if and

only if a moving violation, while driving, causes serious impair-

ment of a body function. In this case, the trial court’s instruction

to the jury was a verbatim recitation of the model instruction, M

Crim JI 15.19, modiﬁed to include the speciﬁc moving violations

charged in this case, as well as the name of the accident victim.

The instruction given to the jury in this case relieved the

prosecution of proving that the moving violation caused the

accident and instead required only that the operation of the motor

vehicle caused the accident. Accordingly, the instruction was

erroneous.

3. When an error is a preserved, nonconstitutional error, the

defendant’s conviction will not be reversed unless, after examin-

ing the nature of the error in light of the weight and strength of

the untainted evidence, it afﬁrmatively appears that it is more

probable than not that the error was outcome-determinative. In

this case, the jury was confused by the model instruction that the

trial court gave and asked the trial court, during the course of

deliberations, whether a moving violation would be a criminal

offense in all cases. The trial court responded, instructing the jury

that one of the elements of the offense was “a moving violation

450 325

ICH

449 [Aug

that is committed that causes a serious impairment of a body

unction” and referring the jury back to M Crim JI 15.19.

Accordingly, the trial court’s supplemental instruction told the

jury to refer back to an incorrect answer and told the jury that

the incorrect portion of the answer deﬁnes an element of the

offense. Because the jury is obliged to follow the law as given to

it by the trial court, the jury necessarily applied an erroneous

statement of the law. And in this case, the error almost certainly

was outcome-determinative: the model instruction and supple-

mental instruction relieved the prosecution of the obligation of

showing that the moving violation—rather than the mere op-

eration of the vehicle—caused the serious injury, which was a

misstatement of the law that was more prejudicial than an

omission or incomplete instruction might have been. Even more

signiﬁcantly, the evidence that the moving violation was a factor

in causing the injury was controverted in many areas, which

created clear factual questions for the jury. It was undisputed

that defendant had consumed some beer, that he was speeding

through the intersection, and that he had taken a sleeping pill

that, although not a controlled substance under Michigan law,

causes drowsiness. On the other hand, there was evidence from

which a properly instructed fact-ﬁnder could have found that the

moving violations were not the cause of the accident. The accident

took place after sunset, the accident victim had a blood alcohol

level of 0.19% and was dressed in black, and witnesses reported

that the accident victim ran or rushed into the street ahead of

defendant’s car before being struck. There was strongly contro-

verted evidence as to the cause of the accident, and the jury was

not properly instructed as to the law regarding causation.

4. Defendant asserted that the jury instructions regarding

MCL 257.601d(2) failed to require unanimity regarding the

moving violation and that the jury should have been instructed

that a conviction should have required a mens rea reﬂecting

criminal culpability, which were issues that were unpreserved

because defendant did not challenge them in the trial court.

Unpreserved issues are reviewed for plain error affecting sub-

stantial rights. Under People v Nicolaides, 148 Mich App 100

(1985), People v Fullwood, 51 Mich App 476 (1974), and People v

Goold, 241 Mich App 333 (2000), when a crime is charged under

one statute but there are different possible aggravating elements,

the prosecutor must charge a defendant under a single count

using alternative theories, but the prosecutor does not have to

elect one theory over the other. In this case, defendant was

charged with the violation of a single statute: MCL 257.601d(2).

Therefore, in light of Nicolaides, Fullwood, and Goold, a general

2018] P

EOPLE V

ZUPRYNSKI

451

verdict as to a moving violation, without requiring jury unanim-

ity

, was sufﬁcient in this case. Additionally, People v Pace, 311

Mich App 1 (2015), analyzed the mens rea applicable to a violation

of MCL 257.601d(2) and held that negligence need not be proved

for a conviction under the statute because the Legislature in-

tended to dispense with the criminal-intent element of commit-

ting a moving violation causing serious impairment of a body

function and intended to make such a violation a strict-liability

offense. Accordingly, because Pace was directly on point, defen-

dant’s argument that a conviction should have required a mens

rea reﬂecting criminal culpability was rejected.

5. Deference is granted to a magistrate’s determination of

probable cause to issue a search warrant. Only when material

misstatements or omissions necessary to the ﬁnding of probable

cause have been made should a search warrant be invalidated.

Reliance on a warrant is reasonable even if the warrant is later

invalidated for lack of probable cause, except under three circum-

stances: (1) if the issuing magistrate or judge is misled by

information in the afﬁdavit that the afﬁant either knew was false

or would have known was false except for his or her reckless

disregard of the truth; (2) if the issuing judge or magistrate

wholly abandons his or her judicial role; or (3) if an ofﬁcer relies

on a warrant based on a “bare bones” afﬁdavit so lacking in

indicia of probable cause as to render ofﬁcial belief in its existence

entirely unreasonable. In this case, defendant argued that the

afﬁdavit in support of the search warrant for defendant’s blood

draw contained false information and omitted other exculpatory,

relevant information such that the blood-draw results should

have been suppressed. Defendant’s arguments were rejected. The

facts that defendant identiﬁed as being “exculpatory,” which he

claimed should have been included in the afﬁdavit, would not

have negated a ﬁnding of probable cause. Moreover, the ofﬁcer’s

reliance on the issuing judge’s ﬁnding of probable cause never-

theless was objectively reasonable and thus the fruits of the

search nevertheless would not be suppressed. The afﬁant did not

mislead the issuing judge, so that exception was not applicable

here. There was no argument that the issuing judge in any way

abandoned his judicial role. Finally, the afﬁdavit provided more

than enough information to render reasonable ofﬁcial belief in the

existence of probable cause.

Reversed and remanded for a new trial before a properly

instructed jury.

ETER

, P.J., concurring in part and dissenting in part, con-

curred in all aspects of the majority opinion aside from the

452 325 M

ICH

449 [Aug

analysis and conclusion concerning the effect of the trial court’s

supplemental

jury instruction regarding causation. To the extent

that the trial court’s instructions allowed the jurors to convict

defendant if they found that he committed a moving violation and

then also found that his operation of the vehicle, aside from the

moving violation, caused the serious impairment of a body

function, this error was adequately rectiﬁed when the trial court

reinstructed the jurors. By way of its supplemental instruction,

the court properly informed the jury that to convict defendant, it

needed to ﬁnd that the moving violation caused a serious impair-

ment of a body function. While the court referred the jurors back

to its initial instruction, the court clariﬁed and added to this

initial instruction by explicitly stating, two times in the course of

its short reply, that the answer to the jurors’ question was that a

criminal offense involves a moving violation that causes a serious

impairment of a body function. Accordingly, Judge M

ETER

would

have afﬁrmed defendant’s conviction because the jury instruc-

tions as a whole fairly presented the issues to be tried and

sufﬁciently protected defendant’s rights.

RIMINAL

AW —

OTOR

EHICLES —

OVING

IOLATIONS

AUSING

ERIOUS

MPAIRMENT OF A

ODY

UNCTION

MCL 257.601d(2) provides that a person who commits a moving

violation while operating a vehicle upon a highway or other place

open to the general public, including, but not limited to, an area

designated for the parking of motor vehicles, that causes serious

impairment of a body function to another person is guilty of a

misdemeanor punishable by imprisonment for not more than 93

days or a ﬁne of not more than $500, or both; MCL 257.601d(2)

requires that a moving violation together with the operation of a

motor vehicle cause the serious impairment of a body function.

Bill Schuette,

ttorney General, Aaron D. Lindstrom,

Solicitor General, David S. Leyton, Prosecuting Attor-

ney, and Rebecca Jurva-Brinn, Assistant Prosecuting

Attorney, for the people.

F. Randall Karfonta for defendant.

Before: M

ETER

, P.J., and G

ADOLA

and T

UKEL

, JJ.

UKEL

, J. Defendant appeals as of right his convic-

tion by a jury of committing a motor vehicle moving

2018] P

EOPLE V

ZUPRYNSKI

453

PINION OF THE

OURT

violation and thereby causing a serious impairment of

body function, MCL 257.601d(2). The trial court

sentenced him to 18 months’ probation. We reverse

defendant’s conviction and remand for a new trial.

I. FACTS

Defendant was driving on Center Avenue in Hamp-

ton

Township on June 16, 2015, approaching Scheur-

mann Road, when he struck James Stivenson with his

vehicle. Stivenson broke his legs in eight places, suf-

fered a head injury, and now has difﬁculty walking. A

police ofﬁcer testiﬁed that immediately after the acci-

dent, defendant seemed “sleepy, drowsy, . . . [and]

acted slow with his responses.” The ofﬁcer testiﬁed

that defendant did not know what he had hit and

“thought somebody had thrown a bag of garbage at

him.” Defendant stated at trial that he had taken a pill

to help him “relax” and that it was a “sleeping aid” but

“not a sleeping pill.” It also is not disputed that

defendant had consumed some beer before driving that

night. However, Stivenson was dressed in dark cloth-

ing, and witnesses stated that Stivenson tried to rush

across the street in front of defendant’s car. Stivenson

also had a 0.19% blood alcohol level.

An analysis of the crash-data-retrieval system from

defendant’s car revealed that defendant had been

traveling at a speed of 41 miles per hour, without

hitting the brakes, before the crash. The speed limit

before the intersection was 35 miles per hour. In

addition, Center Avenue had a blinking yellow light at

the time of the crash. A police ofﬁcer explained that

when a driver is faced with a ﬂashing yellow light, he

or she is “supposed to proceed with caution . . . and

continue through if it’s . . . clear.”

454 325 M

ICH

449 [Aug

PINION OF THE

OURT

Two charges were submitted to the jury: “operating

motor vehicle while visibly impaired causing serious

impairment of a body function to another person”

(Count I) and “committing a moving violation causing

serious impairment of a body function” (Count II). The

jury acquitted defendant on Count I but convicted him

on Count II, and this appeal followed.

II. PROPRIETY OF MICHIGAN CRIMINAL JURY INSTRUCTION 15.19

Defendant argues that one of the instructions given

the jury—M Crim JI 15.19, deﬁning “moving viola-

tion causing serious impairment of a body function”—

was erroneous. Defendant also argues that the trial

court compounded the error in M Crim JI 15.19, in

answer to a jury question during deliberations, when it

emphasized the erroneous portion of the instruction.

We agree.

We review the proper interpretation of a statute de

novo. People v Barrera, 278 Mich App 730, 735; 752

NW2d 485 (2008). “[J]ury instructions that involve

questions of law are also reviewed de novo.” People v

Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006) (quo-

tation marks and citation omitted). When interpreting

a statute, it is the court’s duty to give effect to the

intent of the Legislature as expressed in the actual

language used in the statute. People v Calloway, 500

Mich 180, 184; 895 NW2d 165 (2017). “It is the role of

the judiciary to interpret, not write, the law.” People v

Schaefer, 473 Mich 418, 430; 703 NW2d 774 (2005). If

the statutory language is clear and unambiguous, the

statute is to be enforced as written. People v Laney, 470

Mich 267, 271; 680 NW2d 888 (2004). In those circum-

stances, judicial construction is neither necessary nor

permitted because it is presumed that the Legislature

2018] P

EOPLE V

ZUPRYNSKI

455

PINION OF THE

OURT

intended the clear meaning it expressed. People

Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).

“The right to a trial by a jury is one of the lodestar

concepts of Anglo-American jurisprudence and has his-

torical roots that grow as deep as the Magna Carta of

1215.” People v Antkoviak, 242 Mich App 424, 441; 619

NW2d 18 (2000). “A criminal defendant is entitled to

have a properly instructed jury consider the evidence

against him.” People v Riddle, 467 Mich 116, 124; 649

NW2d 30 (2002). 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 Jackson (On Reconsideration),

313 Mich App 409, 421; 884 NW2d 297 (2015), citing

People v Reed, 393 Mich 342, 349-350; 224 NW2d 867

(1975). Absent proper instruction, a defendant might be

convicted of an “offense” that our Legislature has not, in

fact, criminalized. And perhaps most importantly for

this case, “[a]n omission, or an incomplete instruction, is

less likely to be prejudicial than a misstatement of the

law.” Henderson v Kibbe, 431 US 145, 155; 97 S Ct 1730;

52 L Ed 2d 203 (1977).

At issue is whether the provided jury instruction

adequately informed the jury of what the statute

requires for a defendant to have caused the serious

impairment of a body function under MCL 257.601d(2).

A. MCL 257.601d(2)

The statute under which defendant was convicted,

MCL

257.601d(2),

provides:

A person who commits a moving violation while oper-

ating a vehicle upon a highway or other place open to the

general public, including, but not limited to, an area

designated for the parking of motor vehicles, that causes

serious impairment of a body function to another person is

456 325

ICH

449 [Aug

PINION OF THE

OURT

guilty of a misdemeanor punishable by imprisonment for

not

more than 93 days or a ﬁne of not more than $500.00,

or both.

The trial court instructed the jury that to prove the

charge, the prosecution had to establish beyond a

reasonable doubt the following:

First, that the defendant committed one or more of the

following moving violations: Failing to proceed through a

ﬂashing yellow signal with caution or failing to observe an

authorized speed or trafﬁc control sign, signal, or device;

second, that the defendant’s operation of the vehicle

caused a serious impairment of a body function to James

Scott Stivenson. Again, to cause such injury, the defen-

dant’s operation of a vehicle must have been a factual

cause of the injury. That is, but for the defendant’s

operation of the vehicle, the injury would not have oc-

curred. In addition, operation of the vehicle must have

been a proximate cause of the injury, that is, the injury

must have been a direct and natural result of operating

the vehicle. [Emphasis added.]

The trial court’s instruction was a verbatim recitation

the

model instruction, modiﬁed to include the spe-

ciﬁc moving violations charged in this case, as well as

the name of the accident victim. See M Crim JI 15.19.

The ﬁrst part of MCL 257.601d(2) has two predi-

cates to the causation requirement because “operating

a vehicle” is tied to “moving violation” through the

word “while.” Therefore, neither a moving violation

alone nor the operation of a vehicle alone satisﬁes the

statute; rather, both of those predicates must be pres-

ent in conjunction with each other—a moving violation

while operating a vehicle.

The statute then has a causation requirement. The

causation requirement is potentially ambiguous. What

is it that must “cause” the injury: the conjoined “mov-

ing violation” while “operating a vehicle,” or is merely

2018] P

EOPLE V

ZUPRYNSKI

457

PINION OF THE

OURT

“operating a vehicle . . . that causes serious impair-

ment

of a body function” sufﬁcient? This issue is

critical because M Crim JI 15.19 addresses causation

as it relates to the operation of a vehicle but does not do

so as to the moving violation.

The general rule is that, based on common grammati-

cal usage, “a modifying clause will be construed to

modify only the last antecedent unless some language in

the statute requires a different interpretation.” People v

Small, 467 Mich 259, 263; 650 NW2d 328 (2002). If read

that way, “causes serious impairment of a body func-

tion” would modify only “operating a motor vehicle” and

would not modify “commits a moving violation.” If that

is the correct reading, then the moving-violation re-

quirement would not play a part in the causation

analysis; that is, the statute would not require that the

moving violation give rise to or cause the accident.

In Schaefer, 473 Mich 418, our Supreme Court inter-

preted a different statute as not requiring that the ﬁrst

predicate of that statute, being under the inﬂuence of

alcohol, be a cause of an accident resulting in an injury.

The statute at issue in Schaefer, MCL 257.625, ad-

dresses Michigan’s so-called “OUIL causing death stat-

ute,” found in Subsection (4). Id. at 427-428. MCL

257.625(4) provides that “[a] person, whether licensed

or not, who operates a motor vehicle in violation of

[various subsections relating to alcohol or controlled

substances] and by the operation of that motor vehicle

causes the death of another person is guilty of a crime.”

(Emphasis added.) On the basis of that language, the

Schaefer Court held that the statute has “no causal link

between the defendant’s intoxication and the victim’s

death.” Id. at 431. “Accordingly, it is the defendant’s

operation of the motor vehicle that must cause the

victim’s death, not the defendant’s ‘intoxication.’ ” Id.

458 325 M

ICH

449 [Aug

PINION OF THE

OURT

The operative language of the statute at issue in

Schaefer is

quite different from the language of the

statute at issue here. The present statute links the

moving violation to the operation of the vehicle and

thus requires that those linked elements cause the

injury; the statute at issue in Schaefer, by contrast,

unlinked a defendant’s alcohol or drug use from the

operation of the vehicle. As the Supreme Court noted in

Schaefer: “Section 625(4) plainly requires that the

victim’s death be caused by the defendant’s operation

of the vehicle, not the defendant’s intoxicated opera-

tion. Thus, the manner in which the defendant’s intoxi-

cation affected his or her operation of the vehicle is

unrelated to the causation element of the crime.” Id. at

433. Here, by contrast, a moving violation “while

operating” a vehicle must “cause” the “serious impair-

ment of a body function.” MCL 257.601d(2).

Moreover, if the ﬁrst requirement, the moving vio-

lation, does not play a part in the causation analysis,

then its occurrence in any particular case could be

merely coincidental to the serious impairment of a

body function, and yet a defendant would still be guilty

of the offense. In other words, it would be the operation

of the vehicle that would constitute the critical compo-

nent of causation, but a defendant nevertheless would

not be guilty of an offense unless, at a minimum, it just

so happened that he or she also committed a moving

violation. Of course, in some cases, such a moving

violation could be completely unrelated to the resulting

accident and injury. That lack of a causation require-

ment made sense as part of the overall statutory

scheme in Schaefer because the Legislature sought to

criminalize a status crime—driving while intoxicated.

See id. at 433 n 46. The provision at issue in Schaefer

is tailored to the conduct (that is, operating a motor

vehicle when the driver has the status of being intoxi-

2018] P

EOPLE V

ZUPRYNSKI

459

PINION OF THE

OURT

cated) that the Legislature wished to deter even absent

causation requirement tied to the intoxication.

In this case, however, violation of the statute is not

tied to a status offense. Rather, the statute requires

that a defendant have committed a particular predi-

cate act—a moving violation. Therefore, on the basis of

its language, the statute supports an interpretation

that the moving violation and operation of the motor

vehicle together must cause the serious bodily injury,

rather than reading it such that the statute requires

only that the operation of the vehicle cause the injury.

The statute’s punctuation also supports the idea

that the moving violation must be part of the cause of

the accident. As the Supreme Court noted in Small,

467 Mich at 263, the last-antecedent rule of construc-

tion generally controls “unless some language in the

statute requires a different interpretation.” See also

People v Pinkney, 501 Mich 259, 283; 912 NW2d 535

(2018) (holding that canons of construction can be

overcome if the language of a statute is clear enough).

One situation in which the last-antecedent rule of

construction is overcome by the drafting of a statute is

when the “modifying word or phrase” is “set off by

commas.” Small, 467 Mich at 263 n 4.

In this case, the Legislature set the moving violation

and operation requirements apart from the causation

clause of MCL 257.601d(2) through a comma immedi-

ately preceding the phrase “that causes serious impair-

ment of a body function . . . .” Therefore, under the

last-antecedent rule, this causation phrase does not

solely apply to the last antecedent. See id. As a result,

the language and structure of the statute support

reading it in this manner:

A person who, while operating a vehicle upon a high-

way

other place open to the general public, including,

460 325

ICH

449 [Aug

PINION OF THE

OURT

but not limited to, an area designated for the parking of

motor

vehicles, commits a moving violation which in

combination with the operation of the vehicle causes

serious impairment of a body function to another person,

is guilty of a misdemeanor punishable by imprisonment

for not more than 93 days or a ﬁne of not more than

$500.00, or both.

On the basis of the analysis set forth, we hold that

MCL 257.601d(2) requires that a moving violation

together with the operation of a motor vehicle cause

the serious impairment of a body function. Thus, the

statute plainly requires a causal link between the

moving violation and the injury, not simply a causal

link between the operation of the vehicle and the

injury.

B. CAUSATION

[I]n

the criminal law context, the term “cause” has ac-

quired a unique, technical meaning. Speciﬁcally, the term

and concept have two parts: factual causation and proxi-

mate causation. Factual causation exists if a ﬁnder of fact

determines that “but for” defendant’s conduct the result

would not have occurred. A ﬁnding of factual causation

alone, however, is not sufﬁcient to hold an individual

criminally responsible. The prosecution must also estab-

lish that the defendant’s conduct was a proximate cause

of, in this case, the accident or the victim’s death.

Proximate causation is a legal construct designed to

prevent criminal liability from attaching when the result

of the defendant’s conduct is viewed as too remote or

unnatural. [People v Feezel, 486 Mich 184, 194-195; 783

NW2d 67 (2010) (quotation marks and citations omitted).]

M Crim JI 15.19 correctly deﬁnes factual and proxi-

mate

causation,

but it misapplies proximate causation

to the statute at issue. MCL 257.601d(2) requires that

the moving violation together with operation of the

2018] P

EOPLE V

ZUPRYNSKI

461

PINION OF THE

OURT

vehicle be the proximate cause of the bodily injury.

However

, the model instruction tells the jury that

operation of the vehicle alone must be the proximate

cause:

Again, to cause such injury, the defendant’s operation of a

vehicle

must have been a factual cause of the injury. That

is, but for the defendant’s operation of the vehicle, the

injury would not have occurred. In addition, operation of

the vehicle must have been a proximate cause of the injury,

that is, the injury must have been a direct and natural

result of operating the vehicle. [Emphasis added.]

That instruction clearly is incorrect. Operation of a

vehicle

simply means driving. But it is not mere

driving, or even driving while committing a moving

violation, that triggers criminal liability under the

statute. Rather, criminal liability arises if and only if a

moving violation, while driving, causes serious impair-

ment of a body function.

Put simply, the instruction here relieved the pros-

ecution of proving that the moving violation caused the

accident and instead required only that “the operation

of the motor vehicle” caused the accident. The instruc-

tion thus created a de facto strict-liability offense in

which any person who is involved in an accident

resulting in a serious injury and who has committed a

moving violation is automatically guilty of the criminal

offense charged here because, by deﬁnition in each case

in which that crime is charged, there will have been an

accident in which a defendant operated a motor ve-

hicle.

C. HARMLESS ERROR

Because the instruction was erroneous, we must

consider

whether

it was harmless error. See Schaefer,

473 Mich at 441-442, citing MCL 769.26. As a pre-

462 325 M

ICH

449 [Aug

PINION OF THE

OURT

served, nonconstitutional error, “[t]he defendant’s con-

viction

will not be reversed unless, after examining the

nature of the error in light of the weight and strength

of the untainted evidence, it afﬁrmatively appears that

it is more probable than not that the error was outcome

determinative.” Riddle, 467 Mich at 124-125. Applying

that standard here, the error deprived defendant of a

fair trial.

The jury was confused by the model instruction that

was given. In the course of deliberations, the jury

asked the trial court, “Would a moving violation be a

criminal offense in all cases? What makes this crimi-

nal?” The trial court responded:

When a moving violation causes a serious impairment

a body function, seems to answer your question.

I would redirect you back to Criminal Jury Instruction

15.19, which is the full instruction on Count 2, which

includes in particular, after deﬁning the two moving

violations, what—what constitutes that element of the

charge. So, in response to your questions seems to me, a

moving violation that is committed that causes a serious

impairment of a body function.

The trial court thus instructed the jury that one of the

elements

that offense is “a moving violation [which]

causes a serious impairment of a body function,” or “a

moving violation that is committed that causes a

serious impairment of a body function.”

If the trial court had limited its supplemental in-

struction to the ﬁrst and last sentences that it gave,

the instruction arguably would have cured the prior

error by clarifying that the prosecution was not re-

lieved of proving that the moving violation played at

least a part in causing the injury. However, the trial

court also referred the jury back to M Crim JI 15.19,

which the court identiﬁed as “the full instruction on

2018] P

EOPLE V

ZUPRYNSKI

463

PINION OF THE

OURT

Count 2, which includes . . . what constitutes that ele-

ment

of the charge.” In light of the trial court’s supple-

mental instruction, what we are left with is a mostly

correct answer to a jury question but which also tells

the jury to refer back to an incorrect answer, and it

further tells the jury that the incorrect portion of the

answer deﬁnes an element of the offense.

The jury was duty-bound to accept the instructions

given by the trial court. See M Crim JI 2.1 (oath of

jurors). However, a “clariﬁcation” that incorporates

both a correct and an incorrect statement of the law is

no clariﬁcation at all. Just as we are duty-bound not to

focus on one particular instruction out of context,

People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67

(2001), so too was the jury required to “consider all of

[the trial court’s] instructions as a connected series.

Taken all together, they are the law [the jury] must

follow,” M Crim JI 2.24; see also Grifﬁn v United

States, 502 US 46, 59; 112 S Ct 466; 116 L Ed 2d 371

(1991) (“Jurors are not generally equipped to deter-

mine whether a particular theory of conviction submit-

ted to them is contrary to law . . . . When, therefore,

jurors have been left the option of relying upon a

legally inadequate theory, there is no reason to think

that their own intelligence and expertise will save

them from that error. Quite the opposite is true,

however, when they have been left the option of relying

upon a factually inadequate theory, since jurors are

well equipped to analyze the evidence.”). Being obliged

to follow the law as given to it by the trial court, the

jury here necessarily applied an erroneous statement

of the law.

The question, then, is what effect the error had

“after examining the nature of the error in light of the

weight and strength of the untainted evidence.”

464 325 M

ICH

449 [Aug

PINION OF THE

OURT

Riddle, 467 Mich at 125. As noted, in conducting that

analysis,

“[a]n omission, or an incomplete instruction,

is less likely to be prejudicial than a misstatement of

the law.” Kibbe, 431 US at 155. In this case, the error

almost certainly was outcome-determinative. During

deliberations, the jury asked under what circum-

stances a moving violation could violate the statute at

issue, thus showing that the jury was at a minimum

struggling with whether the moving violation here

qualiﬁed. As noted, the model instruction and the

supplemental instruction then relieved the prosecution

of the obligation of showing that the moving violation,

rather than the mere operation of the car, caused the

serious injury. In the words of the Kibbe Court, this

was “a misstatement of the law,” which likely was more

prejudicial than an omission or incomplete instruction

might have been.

Even more signiﬁcantly, the evidence that the mov-

ing violation was a factor in causing the injury was

controverted in many areas, which created clear fac-

tual questions for the jury. It was undisputed that

defendant had consumed some beer, that he was speed-

ing through the intersection, and that he had taken a

sleeping pill that, although not a controlled substance

under Michigan law, causes drowsiness. On the other

hand, there was evidence from which a properly in-

structed fact-ﬁnder could have found that the moving

violations were not the cause of the accident.

The

accident

took

place on June 16, 2015. Video evidence

showed that the accident occurred at 10:24 p.m., so

even in mid-June it would have been about an hour

and a half after sunset. The accident victim, who had a

blood alcohol level of 0.19%, was dressed in black. One

, at a minimum, that there was reasonable doubt that a moving

violation caused the accident and injuries.

2018] P

EOPLE V

ZUPRYNSKI

465

PINION OF THE

OURT

witness reported that the accident victim ran or rushed

into

the street ahead of defendant’s car before being

struck. Another witness, a passenger in a car that was

in the lane next to defendant’s car, testiﬁed that she

never saw the accident victim and that if defendant

had not struck him, she believed that the car in which

she was riding would have hit him instead.

What we are left with, then, is strongly contro-

verted evidence as to the cause of the accident. The

jury was not properly instructed as to the law regard-

ing causation. Therefore, under the circumstances

presented here, defendant did not receive a fair trial

on that issue, and we reverse defendant’s conviction

and remand for a new trial before a properly in-

structed jury.

III. ADDITIONAL CLAIMS OF ERROR

We address defendant’s other claims of error be-

cause

they

could be important in a new trial.

A. OTHER CHALLENGES TO THE JURY INSTRUCTIONS

Defendant argues that the jury instructions regard-

ing MCL 257.601d(2) failed to require unanimity re-

garding the moving violation. In other words, defen-

dant asserts that the instructions failed to require that

all jurors agree regarding which moving violation—

failing to proceed through a ﬂashing yellow signal with

caution; or failing to observe an authorized speed or

trafﬁc-control sign, signal, or device; or both—

defendant committed. Defendant contends that this

was erroneous and unconstitutional. We disagree.

Defendant did not preserve this issue by challenging

this aspect of the jury instructions in the trial court.

This Court reviews unpreserved issues for plain error

466 325 M

ICH

449 [Aug

PINION OF THE

OURT

affecting substantial rights. People

v Danto, 294 Mich

App 596, 605; 822 NW2d 600 (2011).

In People v Nicolaides, 148 Mich App 100, 101; 383

NW2d 620 (1985), the prosecutor charged the defen-

dant, under the version of MCL 257.625 then in effect,

with two counts: (1) operating a motor vehicle under

the inﬂuence of intoxicating liquor and (2) operating a

motor vehicle while having a blood alcohol content of

0.10% or higher. The defendant argued that the pros-

ecutor needed to elect between the two counts.

Nicolaides, 148 Mich App at 101. This Court ruled that

the ﬁling of a two-count complaint was “improper, since

only one statute is involved.” Id. at 103. The Court

stated, “What the prosecutor may do, however, in the

context of a single-count complaint, is to list alterna-

tive theories.” Id. The Court concluded, “At trial, the

trier of fact, judge or jury, may then return a general

verdict regarding the charged violation of § 625 of the

Michigan Vehicle Code.” Id. at 104 (emphasis added).

In making its conclusion, the Nicolaides Court relied

on People v Fullwood, 51 Mich App 476, 481; 215 NW2d

594 (1974). Nicolaides, 148 Mich App at 104. In

Fullwood, 51 Mich App at 481, this Court stated:

The information, charging alternative counts of pre-

meditated

and

felony murder, went to the jury. The jury

returned a verdict of murder in the ﬁrst degree. Defendant

claims he was entitled to know upon which theory the jury

convicted to insure his right to a unanimous verdict and

avoid double jeopardy problems. We do not agree.

The Court additionally stated:

[The] defendant [was not] deprived of his right to a

unanimous

jury verdict. A general verdict of guilty is

erroneous when the offenses charged are separate and

distinct in character, provable by substantially different

evidence, and punishable by different penalties. The pen-

2018] P

EOPLE V

ZUPRYNSKI

467

PINION OF THE

OURT

alty for felony and premeditated murder, both species of

ﬁrst-degree

murder, is the same. Substantially similar

evidence proves both crimes, except that a showing of

murder in the perpetration of an enumerated felony

supplies the premeditation element which the prosecution

must otherwise prove. Further, the charged counts are not

mutually exclusive; they can and do arise in the same

transaction. [Id. at 481-482 (citation omitted).]

In People

v Goold, 241 Mich App 333, 342-343; 615

NW2d 794 (2000), the Court noted that when criminal

sexual conduct is charged under one statute but there

are different possible aggravating elements, “the pros-

ecutor must charge a defendant under a single count

using alternative theories, but the prosecutor does not

have to elect one theory over the other.”

Defendant was charged with the violation of a single

statute: MCL 257.601d(2). Therefore, in light of

Nicolaides, Fullwood, and Goold, a general verdict as

to a moving violation, without requiring jury unanim-

ity, was sufﬁcient in this case.

Defendant next argues that the jury should have

been instructed that a conviction in this case should

have required a mens rea reﬂecting criminal culpabil-

ity, such as negligence or recklessness, and that to

allow otherwise offends principles of fairness and due

process. Defendant did not challenge this aspect of the

jury instructions in the trial court, and our review of

this unpreserved issue is for plain error affecting

substantial rights. Danto, 294 Mich App at 605.

In People v Pace, 311 Mich App 1, 4-12; 874 NW2d

164 (2015), this Court analyzed the mens rea appli-

cable to a violation of MCL 257.601d(2). The Court

unambiguously concluded that negligence need not be

proved for a conviction under the statute. Pace, 311

Mich App at 12. The Court noted that “the Legislature

intended to dispense with the criminal intent element

468 325 M

ICH

449 [Aug

PINION OF THE

OURT

of committing a moving violation causing serious im-

pairment

of a body function, and . . . intended to make

such a violation a strict liability offense.” Id. at 9. The

Court found the statute constitutional, even when

interpreted in such a manner. Id. at 11-12. Accordingly,

because Pace is directly on point, we must reject

defendant’s argument. See MCR 7.215(J)(1) (discuss-

ing the precedential effect of Court of Appeals opin-

ions).

B. VALIDITY OF THE SEARCH WARRANT

Defendant argues that Hampton Township Police

Ofﬁcer

Bryan Benchley made material misstatements

and omissions in the afﬁdavit in support of the search

warrant for defendant’s blood draw. Defendant con-

tends that when the afﬁdavit is corrected, it provides

no probable cause for the blood draw.

We disagree.

We grant deference to a magistrate’s determination

of probable cause to issue a search warrant. People v

Russo, 439 Mich 584, 604; 487 NW2d 698 (1992). The

Russo Court stated:

In sum, a search warrant and the underlying afﬁdavit

are

be read in a common-sense and realistic manner.

Affording deference to the magistrate’s decision simply

requires that reviewing courts ensure that there is a

substantial basis for the magistrate’s conclusion that

there is a fair probability that contraband or evidence of a

Although

the prosecutor argues that this issue is moot in light of the

acquittal on Count I, we review it because of the chance that the jurors

used the blood-test results in weighing their decision about a moving

violation. The intoxication charge submitted to the jury had “visible

impairment” as a required element. It is possible that the jurors found

no visible impairment but nonetheless found the blood-test results to

have some probative value regarding whether defendant committed a

moving violation, i.e., whether the drug in defendant’s system affected

his ability to proceed through the blinking yellow light with caution.

2018] P

EOPLE V

ZUPRYNSKI

469

PINION OF THE

OURT

crime will be found in a particular place. [Id. (quotation

marks

and citation omitted).]

Defendant’s blood draw revealed the presence of a

benzodiazepine, speciﬁcally, “321 nanograms per mil-

liliter of [t]emazepam [Restoril].” Benchley testiﬁed at

trial that, at the scene, he smelled alcohol on defendant

and noticed that defendant’s eyes were “bloodshot and

glossy.” Because defendant refused a voluntary blood

draw, Benchley obtained a search warrant for a blood

sample. Benchley admitted that his afﬁdavit in sup-

port of the warrant erroneously attributed to him

observations that in fact were made by other ofﬁcers.

Defendant claims that Benchley made misrepresen-

tations in his afﬁdavit such that the blood-draw results

should have been suppressed. In particular, defendant

argues that the afﬁdavit contained false information

and omitted other exculpatory, relevant information.

We reject defendant’s arguments. Assuming that the

afﬁdavit did

contain some incorrect information, defen-

dant ignores the fact that the “correct” information

contained in the afﬁdavit was sufﬁcient to support a

ﬁnding of probable cause. Further, the facts that de-

fendant has identiﬁed as being “exculpatory,” which he

claims should have been included in the afﬁdavit,

would not have negated a ﬁnding of probable cause.

Benchley noted in the afﬁdavit that defendant was

observed (1) “swaying,”

(2) emitting a “slight” “[o]dor of

discussing the search warrant, defendant has relied on the

preliminary-examination transcripts. However, he has not submitted

these transcripts to this Court. An appellant bears the burden of

“furnishing the reviewing court with a record to verify the factual basis

of any argument upon which reversal [is] predicated.” People v Elston,

462 Mich 751, 762; 614 NW2d 595 (2000). At any rate, it is possible for

us to review this issue even in light of the absence of transcripts.

Defendant contends that the statement about “swaying” was a lie, but

the court speciﬁcally noted that Sergeant Jeff Short had testiﬁed about

470 325 M

ICH

449 [Aug

PINION OF THE

OURT

alcohol,” and (3) having “bloodshot” and “glassy” eyes.

he afﬁdavit also noted that defendant admitted to

taking an “unknown sleeping pill prior to driving” and

admitted that he drove a car that struck a pedestrian.

These remaining facts still provided a substantial basis

for the magistrate’s conclusion regarding a fair prob-

ability that evidence of a crime would be found by way of

the blood draw. See Russo, 439 Mich at 604. Impor-

tantly, only when material misstatements or omissions

necessary to the ﬁnding of probable cause have been

made should a search warrant be invalidated. People v

Mullen, 282 Mich App 14, 23-24; 762 NW2d 170 (2008).

Moreover, even if we were to determine on appeal

that the search warrant did not establish probable

cause, the ofﬁcer’s reliance on the issuing judge’s

ﬁnding of probable cause nevertheless was objectively

reasonable and, thus, the fruits of the search neverthe-

less would not be suppressed. See People v Goldston,

470 Mich 523; 682 NW2d 479 (2004).

defendant’s swaying, and defendant does not deny as much on appeal,

tating only that Short did not observe defendant “falling asleep” or

“falling over.” In effect, defendant does not challenge the ﬁnding that

Short testiﬁed about swaying. While it is presumably true that Benchley

did not personally observe the swaying and, to be completely accurate,

should have mentioned that the observation of swaying was made by a

fellow ofﬁcer, it is notable that Benchley was using a preprinted form that

allowed for check-mark answers for categories such as “[o]dor of alcohol”

and “[b]alance,” and the checklist was preceded by the following words:

“Afﬁant has probable cause to believe the above named individual was

under the inﬂuence of alcohol or controlled substances based on the

following observations and/or tests[.]” Benchley was ﬁlling out a pre-

printed form on the basis of his and other ofﬁcers’ observations, and he

checked the word “swaying” for the “[b]alance” category. As noted in

Franks v Delaware, 438 US 154, 165; 98 S Ct 2674; 57 L Ed 2d 667 (1978),

“probable cause may be founded upon hearsay.” See also People v Harris,

191 Mich App 422, 425; 479 NW2d 6 (1991). We cannot agree with

defendant’s implication that if the afﬁdavit had spelled out that another

ofﬁcer had made the “swaying” observation, probable cause would have

been negated, given that the other ofﬁcer had directly observed defendant

just as Benchley had.

2018] P

EOPLE V

ZUPRYNSKI

471

PINION OF THE

OURT

Reliance on a warrant is reasonable even if the

arrant is later invalidated for lack of probable

cause, except under three circumstances: (1) if the

issuing magistrate or judge is misled by information

in the afﬁdavit that the afﬁant either knew was false

or would have known was false except for his or her

reckless disregard of the truth; (2) if the issuing judge

or magistrate wholly abandons his or her judicial role;

or (3) if an ofﬁcer relies on a warrant based on a “bare

bones” afﬁdavit so lacking in indicia of probable cause

as to render ofﬁcial belief in its existence entirely

unreasonable. United States v Leon, 468 US 897, 915,

923; 104 S Ct 3405; 82 L Ed 2d 677 (1984); Goldston,

470 Mich at 531. We already have rejected the claim

that the afﬁant misled the issuing judge, so that

exception cannot be applicable here. There is no

argument, nor is any possible, that the issuing judge,

74th District Court Judge Timothy Kelly, in any way

abandoned his judicial role (in fact, defendant’s briefs

in this Court and in the trial court never even

identiﬁed Judge Kelly as the issuing judge, let alone

sought to impugn his judicial role). Finally, the afﬁ-

davit provided more than enough information to ren-

der ofﬁcial belief in the existence of probable cause

reasonable. Therefore, even if the afﬁdavit failed to

establish probable cause, Leon and Goldston never-

theless mandate upholding the search conducted pur-

suant to it.

IV. CONCLUSION

For the reasons stated, we reverse defendant’s con-

viction

and

remand for a new trial before a properly

instructed injury. We do not retain jurisdiction.

ADOLA

, J., concurred with T

UKEL

, J.

472 325 M

ICH

449 [Aug

PINION OF THE

OURT

ETER

, P.J. (concurring in part and dissenting in

part). I concur in all aspects of the majority opinion

aside from the analysis and conclusion concerning the

effect of the trial court’s supplemental jury instruction

regarding causation. Because I believe that the jury

instructions as a whole fairly presented the issues to be

tried and sufﬁciently protected defendant’s rights, see

People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67

(2001), I would afﬁrm defendant’s conviction.

MCL 257.601d(2), the statute under which defen-

dant was convicted, states:

A person who commits a moving violation while oper-

ating

a vehicle upon a highway or other place open to the

general public, including, but not limited to, an area

designated for the parking of motor vehicles, that causes

serious impairment of a body function to another person is

guilty of a misdemeanor punishable by imprisonment for

not more than 93 days or a ﬁne of not more than $500.00,

or both.

The statute requires a punishable violation to involve

moving

violation that causes a serious impairment of

a body function to another person. The trial court,

following M Crim JI 15.19, instructed the jury as

follows with regard to MCL 257.601d(2):

The defendant is also charged with the crime of com-

mitting

a moving violation causing serious impairment of

a body function. To prove this charge, the prosecutor must

prove each of the following elements beyond a reasonable

doubt: First, that the defendant committed one or more of

the following moving violations: Failing to proceed

through a ﬂashing yellow signal with caution or failing to

observe an authorized speed or trafﬁc control sign, signal,

or device; second, that the defendant’s operation of the

vehicle caused a serious impairment of a body function to

James Scott Stivenson. Again, to cause such injury, the

defendant’s operation of a vehicle must have been a

2018] P

EOPLE V

ZUPRYNSKI

473

PINION BY

ETER

, P.J.

factual cause of the injury. That is, but for the defendant’s

operation

of the vehicle, the injury would not have oc-

curred. In addition, operation of the vehicle must have

been a proximate cause of the injury, that is, the injury

must have been a direct and natural result of operating

the vehicle. [Emphasis added.]

To the extent that these instructions allowed the

jurors to convict defendant if they found that he

committed a moving violation and then also found that

his operation of the vehicle, aside from the moving

violation, caused the serious impairment of a body

function, this error was adequately rectiﬁed when the

trial court reinstructed the jurors. After the start of

deliberations, the jury posed the following question:

“Would [a] moving violation be a criminal offense in all

cases[?] What makes this criminal[?]” The court re-

plied:

You have another question for us: Would a moving

violation

a criminal offense in all cases? What makes

this criminal? When a moving violation causes a serious

impairment of a body function, seems to answer your

question.

I would redirect you back to Criminal Jury Instruction

15.19, which is the full instruction on Count 2, which

includes in particular, after deﬁning the two moving

violations, what—what constitutes that element of the

charge. So, in response to your questions seems to me [sic],

a moving violation that is committed that causes a serious

impairment of a body function. [Emphasis added.]

We review jury instructions “in

their entirety to

determine if error requiring reversal occurred.”

Aldrich, 246 Mich App at 124 (emphasis added). “The

instructions must not be extracted piecemeal to estab-

lish error.” Id. (quotation marks and citation omitted).

By way of its supplemental instruction, the court

properly informed the jury that to convict defendant, it

474 325 M

ICH

449 [Aug

PINION BY

ETER

, P.J.

needed to ﬁnd that the moving violation caused a

serious

impairment of a body function. While it is true

that the court referred the jurors back to its initial

instruction on Count II, the court clariﬁed and added

to this initial instruction by explicitly stating, two

times in the course of its short reply, that the answer to

the jurors’ question was that a criminal offense in-

volves a moving violation that causes a serious impair-

ment of a body function. The initial, poorly worded

instruction indicated that a conviction would require

that defendant’s operation of the vehicle caused the

injury, and the court, by way of its response, clariﬁed

that this “operation” must have consisted of the mov-

ing violation. I do not view this situation as one

involving a court’s having given two conﬂicting instruc-

tions and ordering the jury to follow both. Instead, I

view it as a situation in which the court deﬁned and

clariﬁed an element of the crime as previously set

forth. In other words, the court, in essence, explained

that the “operation” of the vehicle as discussed in M

Crim JI 15.19 refers to the moving violation. The

instructions could have been worded in a more

straightforward fashion, but, in my opinion, they

“fairly presented the issues to be tried and sufﬁciently

protected . . . defendant’s rights.” Aldrich, 246 Mich

App at 124.

I would afﬁrm.

2018] P

EOPLE V

ZUPRYNSKI

475

PINION BY

ETER

, P.J.

In re RHEA

BRODY LIVING TRUST (ON REMAND)

Docket No. 330871. Submitted July 2, 2018, at Lansing. Decided

August 7, 2018, at 9:00 a.m. Vacated in part 504 Mich 882

(2019).

Cathy B. Deutchman petitioned the Oakland County Probate Court

to remove Robert Brody, her father, from his position as successor

trustee for her mother’s revocable trust—the Rhea Brody Living

Trust. As both the successor trustee and a beneﬁciary of the trust,

Robert allegedly took actions that were detrimental to the trust;

that were contrary to Rhea’s intent; and that favored Jay Brody

(who was Cathy’s brother and Robert and Rhea’s child) and Jay’s

heirs, to the detriment of Cathy and her heirs. The court, Daniel A.

O’Brien, J., granted Cathy’s motion for partial summary disposi-

tion, declaring Rhea disabled under the terms of the trust, remov-

ing Robert as successor trustee, ordering that speciﬁc actions be

taken regarding the two family businesses, and granting Robert’s

request that the case be stayed pending appeal in the Court of

Appeals or further order of the probate court. Robert and Jay

appealed in the Court of Appeals and argued that Cathy did not

have standing to request adjudication of the issues in her petition.

The Court of Appeals, O’B

RIEN

, P.J., and J

ANSEN

, and M

URRAY

, JJ.,

ruled that Cathy had standing and had properly petitioned the

probate court for relief. 321 Mich App 304 (2017). Robert and Jay

sought leave to appeal in the Supreme Court. In lieu of granting

leave to appeal, the Supreme Court vacated Part II of the Court of

Appeals’ opinion and remanded the case to the Court of Appeals for

reconsideration of the standing analysis. 501 Mich 1094 (2018).

On remand, the Court of Appeals held:

1. MCL 700.1105(c) and MCR 5.125 demonstrate that the

identiﬁcation of interested persons in a trust estate is decidedly

ﬂexible and fact-speciﬁc. MCL 700.1105(c) indicates that identi-

ﬁcation of interested persons may vary and shall be determined

by the particular purposes of a proceeding and the matters

involved in it and by the rules of the Michigan Supreme Court.

MCR 5.125 is captioned, “Interested Persons Deﬁned,” and the

rule identiﬁes who must be served with notice of speciﬁc proceed-

ings. MCR 5.125(D) provides that the court shall make a speciﬁc

determination of interested persons if those individuals are not

476 325

ICH

476 [Aug

deﬁned by statute or court rule, and MCR 5.125(E) expressly

authorizes

the court, in the interest of justice, to order additional

persons to be served with notice of a proceeding even though the

individuals do not qualify as interested persons under any of the

statutory deﬁnitions or under MCR 5.125. In this case, under

MCR 5.125(B)(2), Cathy qualiﬁed as an interested person because

she was a “trust beneﬁciary” whose interest remained unsatisﬁed

and to whom notice of speciﬁc proceedings had to be given under

MCR 5.125(C). MCR 5.125(C)(33)(g) states that if the petitioner

has a reasonable basis to believe the settlor is an incapacitated

individual, notice must be given to those persons who are en-

titled, under MCL 700.7603(2), to be reasonably informed of the

trust’s administration. In light of MCR 5.125(C)(33)(g) and MCL

700.7603(2) and the facts of this case, Cathy was an interested

person with standing to ﬁle the petition.

2. Resolution of the question whether Cathy was an “interested

person” with standing to petition for the relief she requested

rendered moot the issue concerning whether the phrase “and any

other person that has a property right in or claim against a trust

estate” modiﬁed the terms “child” and “beneﬁciary” that precede

the phrase in MCL 700.1105(c). However, because the Supreme

Court expressly stated that the Court of Appeals “should consider”

the issue, the “rule of mandate” applied. The “rule of mandate” is

the well-accepted principle that a lower court must strictly comply

with, and may not exceed the scope of, a remand order. The phrase

and the terms at issue appear in the ﬁrst sentence of MCL

700.1105(c) but cannot be construed in a vacuum. In light of the

second sentence of MCL 700.1105(c), whether a “child” or a

“beneﬁciary” is interested in a trust proceeding is dependent on the

particular purposes of and matters involved in the proceeding

under the facts as they exist at the time that standing is deter-

mined. Whether an individual is an interested person does not

depend on whether the “child” or “beneﬁciary” has a property right

in or claim against the trust estate. To interpret MCL 700.1105(c)

in a way that reads the phrase in question as modifying “child” and

“beneﬁciary” in every case would be unduly restrictive and would

directly contravene the legislative intent expressed by the second

sentence of the statute. The second sentence of MCL 700.1105(c)

demonstrates that the Legislature wished to leave to the sound

discretion of the probate court the fact-speciﬁc inquiry into who

qualiﬁes as an interested person in a probate proceeding. Applica-

tion of the last-antecedent rule further supports the conclusion

that the phrase “and any other person that has a property right in

or claim against a trust estate” does not modify “child” or “beneﬁ-

ciary.” The last antecedent to the phrase is the word “beneﬁciary,”

2018] In

re B

RODY

IVING

RUST

) 477

but “beneﬁciary” is part of the same dependent clause as the

hrase in question, separated from the rest of the sentence by

commas or semicolons. Therefore, without evidence of a contrary

legislative intent, it would be inappropriate to construe the phrase

as modifying the word “child,” a word that appears before “beneﬁ-

ciary” in the clause. In fact, in grammatical context, the phrase

seems to represent a catchall category and not adjectival language

intended to modify terms preceding it. The doctrine of ejusdem

generis also supports this interpretation. The doctrine of ejusdem

generis states that when general words follow a designation of

particular subjects, the general words are ordinarily presumed to

be restricted by the particular designation as including only things

of the same kind, class, character, or nature as those speciﬁcally

enumerated. In this case, if anything, the terms “child” and

“beneﬁciary” should be construed as modifying the meaning of the

catchall phrase, not the other way around. Whether a “child” or a

“beneﬁciary” is interested in a trust proceeding is dependent on the

particular purposes of and matters involved in the proceeding

under the facts as they exist at the time that standing is deter-

mined and not on whether the “child” or the “beneﬁciary” has a

property right in or a claim against the trust estate.

Afﬁrmed.

RUSTS —

EVOCABLE

RUSTS —

NTERESTED

ERSONS

Under MCL 700.1105(c), identiﬁcation of interested persons may

vary from time to time and shall be determined according to the

particular purposes of, and matter involved in, a proceeding and

by the Supreme Court rules; MCR 5.125 indicates that the

deﬁnition of “interested persons” is ﬂexible and fact-speciﬁc.

Hertz Schram PC (by Kenneth F. Silver and Daniel

W. Rucker) for Cathy B. Deutchman.

Giarmarco, Mullins & Horton, PC (by William H.

Horton and Christopher J. Ryan) for Robert Brody.

Kemp Klein Law Firm (by Alan A. May, Joseph P.

Buttiglieri, and Richard Bisio) for Jay Brody.

Amicus Curiae:

Warner Norcross & Judd LLP (by David L. J. M.

Skidmore and Conor B. Dugan) for the Probate & Estate

Planning Section of the State Bar of Michigan.

478 325 M

ICH

476 [Aug

ON REMAND

Before:

O’B

RIEN

, P.J., M

URRAY

, C.J., and J

ANSEN

, J.

URIAM

. In an order dated June 8, 2018, the

Michigan Supreme Court vacated Part II of this

Court’s prior opinion in this case, In re Brody Living

Trust, 321 Mich App 304; 910 NW2d 348 (2017) (Brody

I), and remanded this case to this Court for reconsid-

eration “of its standing analysis.” In re Brody Living

Trust, 501 Mich 1094 (2018) (Brody II). Our Supreme

Court directed this Court to “consider whether the

terms ‘child’ and ‘beneﬁciary’ in MCL 700.1105 are

modiﬁed by the phrase ‘and any other person that has

a property right in or claim against a trust estate.’ If

so, then [this Court] shall consider whether Cathy

Deutchman is an ‘interested person’ under this reading

of the statute.” Brody II, 501 Mich at 1094. Addition-

ally, our Supreme Court instructed that this Court may

consider the arguments made in the Supreme Court by

the Probate and Estate Planning Section of the State

Bar of Michigan regarding whether Cathy has stand-

ing “in light of MCR 5.125(C)(33)(g) and MCL

700.7603(2) and is a present (not contingent) beneﬁ-

ciary of the trust.” Id. We again afﬁrm our prior

conclusion that the trial court did not err by concluding

that Cathy had standing as a petitioner in this action.

This case arose out of a family dispute involving the

Rhea Brody Living Trust. Rhea’s husband, Robert

Brody, originally appealed the order granting partial

summary disposition in favor of Rhea and Robert’s

daughter, Cathy. As this Court originally articulated in

Brody I, “the order resolved claims relating to two

family businesses, Brody Realty No I, LLC, and Ma-

comb Corporation, declared Rhea Brody disabled pur-

suant to the terms of the trust, and removed Robert as

2018] In re B

RODY

IVING

RUST

) 479

successor trustee of the trust.” Brody

I, 321 Mich App

at 308. The convoluted factual background of this case

can best be boiled down to the fact that Rhea became

mentally incapacitated as a result of dementia, and

Robert, who is also a beneﬁciary of the trust, began

acting as successor trustee. Allegations were made

that Robert took actions that were detrimental to the

trust, contrary to Rhea’s intent, and favored Jay Brody

and his heirs

to the detriment of Cathy and her heirs.

their original appeal to this Court, Robert and

Jay argued that Cathy “did not have standing (i.e., she

was not a proper party) to request adjudication of the

issues in her petition, including Robert’s removal as

trustee of the Rhea Trust and reversal of actions taken

by Robert as trustee.” Id. at 314. Previously, we con-

cluded that Cathy did have standing under MCL

700.7201 as an “interested person,” which is deﬁned in

MCL 700.1105(c), because

[t]here is no dispute that Cathy is Rhea’s child. In addi-

tion, Cathy

is a “beneﬁciary.” Under MCL 700.1103(d)(i), a

beneﬁciary includes a “trust beneﬁciary,” deﬁned in MCL

700.7103(l)(i) as a person with “a present or future ben-

eﬁcial interest in a trust, vested or contingent.” The term

“beneﬁcial interest” is deﬁned as follows: “A right or

expectancy in something (such as a trust or an estate), as

opposed to legal title to that thing. For example, a person

with a beneﬁcial interest in a trust receives income from

the trust but does not hold legal title to the trust property.”

Black’s Law Dictionary (10th ed), p 934. The plain lan-

guage of the trust indicates that Cathy has a future (upon

Rhea’s death), contingent (assuming no revocation or

amendment) interest in the trust property. See Restate-

ment Trusts, 1st, § 56, illustration 7, p 172 (an intervivos

trust in which the death of a settlor is a condition

precedent establishes a “contingent equitable interest in

Jay

is the son of Rhea and Robert.

480 325 M

ICH

476 [Aug

remainder”). Speciﬁcally, Cathy will receive Rhea’s cloth-

ing

and jewelry. In addition, if Robert predeceases Rhea,

then a subtrust composed of 50% of the Rhea Trust’s

remaining assets is created for Cathy. If Rhea predeceases

Robert, then a marital trust and a family trust are

created, and under the marital trust, Rhea’s descendants

are each entitled to net income distributions and any

principal necessary for education, health, support, and

maintenance. [Brody I, 321 Mich App at 317-318.]

We have been directed by our Supreme Court to

reexamine

our original standing analysis. In particu-

lar, our Supreme Court indicated that this Court

“should consider whether the terms ‘child’ and ‘beneﬁ-

ciary’ in MCL 700.1105[(c)] are modiﬁed by the phrase

‘and any other person that has a property right in or

claim against a trust estate.’ ” Brody II, 501 Mich at

1094. Our Supreme Court further instructed that if

this Court answers that question in the afﬁrmative,

this Court should then consider whether Cathy quali-

ﬁes as an “interested person” under such an interpre-

tation of MCL 700.1105(c). Id. Finally, our Supreme

Court noted that this Court “may also consider” the

arguments in an amicus curiae brief submitted in our

Supreme Court by the Probate and Estate Planning

Section (the Probate Section) of the State Bar of

Michigan. Because we ﬁnd the Probate Section’s argu-

ments persuasive, we will consider them ﬁrst, in the

interest of clarity.

Given the broad scope of the Estates and Protected

Individuals Code (EPIC), MCL 700.1101 et seq., which

codiﬁes several complex areas of law, the act contains

many statutory deﬁnitions. Such deﬁnitions are not

consolidated in any one portion of EPIC, are not

universally applicable, sometimes overlap or super-

sede other deﬁnitions within the act, and often contain

terms or phrases that are also statutorily deﬁned. See,

e.g., MCL 700.1102 (“The deﬁnitions contained in this

2018] In re B

RODY

IVING

RUST

) 481

part apply throughout this act unless the context

requires

otherwise or unless a term deﬁned elsewhere

in this act is applicable to a speciﬁc article, part, or

section.”). Accordingly, as a foundational matter, sev-

eral relevant statutory deﬁnitions must be set forth

before approaching the principal analysis.

Under MCL 700.7103(l)(i), the term “trust beneﬁ-

ciary” is deﬁned, in relevant part, as a person who “has

a present or future beneﬁcial interest in a trust, vested

or contingent.” On the other hand, the phrase “quali-

ﬁed trust beneﬁciary” is deﬁned under MCL

700.7103(g), in pertinent part, as:

a trust beneﬁciary to whom 1 or more of the following

apply

on the date the trust beneﬁciary’s qualiﬁcation is

determined:

(i) The trust beneﬁciary is a distributee or permissible

distributee of trust income or principal.

* * *

(iii) The trust beneﬁciary would be a distributee or

permissible distributee of trust income or principal if the

trust terminated on that date. [Emphasis added.]

In turn, “distributee” is deﬁned at MCL 700.1103(o), in

relevant

part,

as “a person that receives . . . trust prop-

erty from the trustee other than as a creditor or

purchaser.”

The phrase “permissible distributee” is not deﬁned

within EPIC, and we are unable to locate any previous

authority construing that term. However, in context,

the plain meaning seems apparent without resorting to

dictionary deﬁnitions. See Bloomﬁeld Twp v Kane, 302

Mich App 170, 175; 839 NW2d 505 (2013) (“[R]ecourse

to dictionary deﬁnitions is unnecessary when the Leg-

islature’s intent can be determined from reading the

statute itself.”) (quotation marks and citation omitted).

482 325 M

ICH

476 [Aug

We conclude that the plain meaning expressed is that

“permissible distributee” is a person who is permit-

ted, not entitled, to receive trust property from the

trustee other than as a creditor or purchaser.

In its brief, the Probate Section posits that this Court

reached the correct outcome concerning standing in

Brody I but did so for the wrong reasons.

Speciﬁcally,

the Probate Section contends that this Court

made the following errors:

• Disregard[ed] the second sentence of MCL 700.1105(c)

and its reference to the importance of considering both

“the particular purposes of, and matter[s] involved in,

[the] proceeding” and the “supreme court rules.”

• Overlook[ed] MCR 5.125 entirely.

• Overlook[ed] MCL 700.7603(1) and (2) entirely.

• Fail[ed] to consider whether Cathy was “a person en-

titled to be reasonably informed, as referred to in MCL

700.7603(2),” for purposes of MCR 5.125(C)(33).

• Determin[ed] that Cathy was an “interested person”

based solely on the fact that she qualiﬁed for two of the

categories included in the ﬁrst sentence of MCL

700.1105(c) (“child” and “beneﬁciary”)[.]

The Probate Section also argues that Brody

I will

have

unintended downstream consequences. According to

the Probate Section, this Court’s

determination that a “child” or a “beneﬁciary” is always an

interested

person with standing to commence trust pro-

ceedings before the probate court is an erroneous con-

struction of EPIC and the Michigan Trust Code that can

be expected to interfere seriously with the administration

of private citizens’ estate planning and trust administra-

tion. In light of this published decision, “children” and

e note that the arguments raised by the Probate Section were not

previously raised by the parties in this Court.

2018] In re B

RODY

IVING

RUST

) 483

“beneﬁciaries” (who would not otherwise qualify as “inter-

ested

persons” under MCL 700.1105(c), MCR 5.125, and

MCL 700.7603(2)) can be expected to rely on [Brody I] to

pursue trust-related litigation which would not have been

permitted prior to [that] decision.

[3]

The second sentence of MCL 700.1105(c) provides,

“Identiﬁcation

of interested persons may vary from

time to time and shall be determined according to the

particular purposes of, and matter involved in, a pro-

ceeding, and by the supreme court rules.” (Emphasis

added.) Within Subchapter 5.100 of our court rules,

which sets forth rules of pleading and practice that

apply in probate court, our Supreme Court has promul-

gated MCR 5.125, which is captioned, “Interested

Persons Deﬁned.” In pertinent part, MCR 5.125 pro-

vides:

(B) Special Conditions for Interested Persons.

* *

(2) Devisee. Only a devisee whose devise remains

unsatisﬁed, or a trust beneﬁciary whose beneﬁcial interest

remains unsatisﬁed, need be notiﬁed of speciﬁc proceed-

ings under subrule (C).

* * *

other words, the practical concern of the Probate Section is that

Brody I’s construction of MCL 700.1105(c) will undercut several of the

characteristics that make revocable grantor trusts desirable as an

estate planning tool. The Probate Section is concerned that grantor-

settlors who use revocable grantor trusts (or “living” trusts) solely as an

estate planning mechanism—seeking to avoid probate, to minimize tax

liabilities, and to keep private ﬁnancial affairs from becoming a matter

of public record—will suddenly have to answer to beneﬁciaries, during

the grantor-settlors’ lifetimes, for the management of “trust” assets

that, for all practical purposes, still belong to the grantor-settlors and

are funded into the “trust” only to avoid the need to probate unfunded

assets (via a pour-over will) after death.

484 325

ICH

476 [Aug

and

MCR 5.105(E),

[4]

the following provisions apply. When

a single petition requests multiple forms of relief, the

petitioner must give notice to all persons interested in

each type of relief:

* * *

(33) Subject to the provisions of Part 3 of Article VII of

the Estates and Protected Individuals Code,

[5]

the persons

interested in a proceeding affecting a trust other than

those already covered by subrules (C)(6), (C)(28), and

(C)(32)

[6]

are:

(a) the qualiﬁed trust beneﬁciaries affected by the relief

requested,

* * *

(d) in a proceeding to appoint a trustee, the proposed

trustee,

* * *

(g) if the petitioner has a reasonable basis to believe the

settlor is an incapacitated individual, those persons who

are entitled to be reasonably informed, as referred to in

MCL 700.7603(2).

(D) The court shall make a speciﬁc determination of the

interested persons if they are not deﬁned by statute or

court rule. [Emphasis added.]

Because

MCR 5.105(E) concerns “unborn or unascertained inter-

ested persons not represented by a ﬁduciary or guardian ad litem,” it is

not relevant in this case.

Part 3 of Article VII of EPIC concerns the representation of parties

involved in the proceeding.

Those listed subrules are not seemingly relevant here. Subrule

(C)(6) involves proceedings “for examination or approval of an account of

a ﬁduciary,” Subrule (C)(28) concerns petitions “for approval of a trust

under MCR 2.420,” and Subrule (C)(32) addresses “modiﬁcation or

termination of a noncharitable irrevocable trust[.]”

2018] In

re B

RODY

IVING

RUST

) 485

Read in concert, MCL 700.1105(c) and MCR 5.125

demonstrate

that the interested-person inquiry is de-

cidedly ﬂexible and fact-speciﬁc. The identity of the

interested persons can change not only over time but

also depends on the nature of the proceedings and the

relief requested. Moreover, MCR 5.125(D) unambigu-

ously provides that there may be circumstances in

which a probate court must determine whether an

individual—one who does not qualify as an interested

person under any of the statutory deﬁnitions or under

the other subparts of MCR 5.125—nevertheless quali-

ﬁes as an interested person under the facts presented

in the given case.

In this case, Cathy petitioned for several distinct

forms of relief: (1) Robert’s removal as successor

trustee with Cathy’s appointment in his stead, or the

appointment of an independent trustee to manage the

trust’s real estate interests; (2) delivery of all trust

records to the new successor trustee along with a full

accounting; (3) partial supervision of the trust during

the pendency of this action; (4) the rescission of all

allegedly improper acts taken by Robert as successor

trustee following Rhea’s disability, with the funds from

such rescinded transactions held in a constructive

trust; (5) an order enjoining Robert from committing

any future breaches of trust; (6) Robert’s removal as

manager of Brody Realty, which is owned by the trust;

(7) an award of damages to the trust and Brody Realty;

(8) surcharge of Robert and Jay for Cathy’s attorney

fees in this action; and (9) an order enjoining Robert

and Jay from wasting or dissipating trust assets. With

regard to each of those items of relief requested, we

agree with the Probate Section that Cathy qualiﬁed as

an interested person under MCR 5.125(C)(33)(g) (“if

the petitioner has a reasonable basis to believe the

486 325 M

ICH

476 [Aug

settlor is an incapacitated individual, those persons

who

are entitled to be reasonably informed, as referred

to in MCL 700.7603(2)”).

MCL 700.7603(2) provides:

If the trustee reasonably believes that the settlor of a

revocable trust is an incapacitated individual,

[7]

the

trustee shall keep the settlor’s designated agent or, if

there is no designated agent or if the sole agent is a trustee,

each beneﬁciary who, if the settlor were then deceased,

would be a qualiﬁed trust beneﬁciary informed of the

existence of the trust and reasonably informed of its

administration. [Emphasis added.]

In this case, there is no dispute that when Robert—

who

was acting as Rhea’s agent under a durable power

of attorney—formally accepted his role as successor

trustee in May 2013, he had reason to believe that

Rhea was an “incapacitated individual” as a result of

her dementia. Nor is there any evidence that she was

no longer an incapacitated individual at the time that

Cathy instituted these proceedings. Moreover, had

Rhea been deceased at that time, Cathy would have

been a “qualiﬁed trust beneﬁciary” under MCL

700.7103(g)(i) (“The trust beneﬁciary is a distributee

or permissible distributee of trust income or princi-

pal.”). Under such circumstances, Cathy would also

have been entitled to the speciﬁc gift of Rhea’s jewelry

and clothing, and Cathy would also have been entitled

to receive a portion of the trust’s net income. There-

fore, Cathy would qualify as a “distributee” under

MCL

700.1105(a) provides:

“Incapacitated individual” means an individual who is im-

paired by reason of mental illness, mental deﬁciency, physical

illness or disability, chronic use of drugs, chronic intoxication, or

other cause, not including minority, to the extent of lacking

sufﬁcient understanding or capacity to make or communicate

informed decisions.

2018] In

re B

RODY

IVING

RUST

) 487

MCL 700.1103(o). And because she would qualify as a

distributee

of both trust income and principal in the

event of Rhea’s death, she would also become a “quali-

ﬁed trust beneﬁciary” under those circumstances. As a

result, Cathy would be entitled to be reasonably in-

formed of the trust and its administration under MCL

700.7603(2), which means she would qualify as an

interested person under the deﬁnition set forth in MCR

5.125(C)(33)(g).

Consequently, the Probate Section is correct that

Cathy qualiﬁes as an interested person in this matter

under MCR 5.125(C)(33)(g) and MCL 700.1105(c). As

an interested person, she had standing to institute

these proceedings. See In re Rottenberg Living Trust,

300 Mich App 339, 355; 833 NW2d 384 (2013) (holding,

in the context of trust litigation, that an “interested

person” had “statutory standing . . . to invoke the pro-

bate court’s jurisdiction with respect to the adminis-

tration of [the trust at issue]”). Therefore, even assum-

ing, arguendo, that the construction of MCL

700.1105(c) announced in Brody I was erroneous, the

proper conclusion regarding Cathy’s standing was nev-

ertheless reached.

In light of the foregoing analysis, we would ordinar-

ily decline to address whether the phrase “and any

other person that has a property right in or claim

against a trust estate” in MCL 700.1105(c) modiﬁes the

terms “child” and “beneﬁciary” because the issue would

be moot. See Garrett v Washington, 314 Mich App 436,

449; 886 NW2d 762 (2016) (“A matter is moot if this

Court’s ruling cannot for any reason have a practical

legal effect on the existing controversy.”) (quotation

marks and citations omitted). However, given the cir-

cumstances at bar, we will nevertheless address and

decide the issue. See Int’l Business Machines Corp v

488 325 M

ICH

476 [Aug

Dep’t of Treasury, 316 Mich App 346, 352; 891 NW2d

880

(2016), in which this Court articulated that the

“rule of mandate” reﬂects “the well-accepted principle

in our jurisprudence that a lower court must strictly

comply with, and may not exceed the scope of, a

remand order.” The Supreme Court’s remand instruc-

tions indicated that this Court “should consider” this

issue, and when viewed in context, the Supreme

Court’s use of “should” does not seem permissive.

We conclude that the proposed construction of MCL

700.1105(c) would erroneously restrict the ﬂexible

meaning of “interested person” that is conveyed by the

statutory language. In pertinent part, the portion of

MCL 700.1105(c) that is at issue—the ﬁrst of its two

sentences—provides:

“Interested person” . . . includes, but is not limited to,

the

incumbent ﬁduciary; an heir, devisee, child, spouse,

creditor, and beneﬁciary and any other person that has a

property right in or claim against a trust estate or the

estate of a decedent, ward, or protected individual; a

person that has priority for appointment as personal

representative; and a ﬁduciary representing an interested

person. [Emphasis added.]

Such language must not be construed in a vacuum,

heedless

context. See Koontz v Ameritech Servs, Inc,

466 Mich 304, 318; 645 NW2d 34 (2002) (noting that

potential ambiguities in statutory language may be

resolved by contextual considerations). As noted ear-

lier, the second sentence of MCL 700.1105(c) expressly

states that the “[i]dentiﬁcation of interested persons

may vary from time to time and shall be determined

according to the particular purposes of, and matter

involved in, a proceeding, and by the supreme court

rules.” Moreover, in MCR 5.125(D), our Supreme Court

has taken a decidedly ﬂexible approach as well. In light

2018] In re B

RODY

IVING

RUST

) 489

of the several broad legal areas that EPIC covers, such

approach is prudent. It would be unduly restrictive

to conclude that the terms “child” and “beneﬁciary” in

MCL 700.1105(c) are necessarily modiﬁed—in every

case—by the phrase “any other person that has a

property right in or claim against a trust estate . . . .”

Doing so would directly contravene the legislative

intent expressed by the second sentence of MCL

700.1105(c), which demonstrates that the Legislature

wished to leave the fact-speciﬁc inquiry of who quali-

ﬁes as an interested person in a given probate proceed-

ing to the sound discretion of the probate court.

That same conclusion is also supported by funda-

mental principles of grammar, including the last-

antecedent rule. “Because the Legislature is presumed

to know the rules of grammar, . . . statutory language

must be read within its grammatical context unless

something else was clearly intended . . . .” Niles Twp v

Berrien Co Bd of Comm’rs, 261 Mich App 308, 315; 683

NW2d 148 (2004). “Proper syntax provides that com-

mas usually set off words, phrases, and other sentence

elements that are parenthetical or independent.” Dale

v Beta-C, Inc, 227 Mich App 57, 69; 574 NW2d 697

(1997). Moreover, “[i]t is a general rule of grammar and

of statutory construction that a modifying word or

clause is conﬁned solely to the last antecedent, unless

a contrary intention appears.” Sun Valley Foods Co v

Ward, 460 Mich 230, 237; 596 NW2d 119 (1999).

The “last antecedent” of a given term or phrase is

“ ‘the last word, phrase, or clause that can be made an

antecedent without impairing the meaning of the sen-

tence . . . .’ ” People v English, 317 Mich App 607, 614;

897 NW2d 184 (2016) (opinion by W

ILDER

, P.J.), quot-

ing 2A Singer & Singer, Sutherland Statutory Con-

struction (7th ed), § 47:33, pp 494-497. In this instance,

490 325 M

ICH

476 [Aug

the last word, phrase, or clause that can be made an

antecedent

of the phrase “and any other person that

has a property right in or claim against a trust estate”

is the word “beneﬁciary.” Moreover, from a grammati-

cal standpoint, the word “beneﬁciary” appears in the

same dependent clause as the phrase in question,

separated from the rest of the sentence by commas or

semicolons. Therefore, lacking any clear evidence of a

contrary legislative intent—and we ﬁnd none—it

would be inappropriate to construe the phrase “and

any other person that has a property right in or claim

against a trust estate” as modifying the word “child.”

On the contrary, in grammatical context, the phrase

in question seems to represent an independent catchall

category, not adjectival language that was meant to

modify the terms preceding it. Under the canon of

construction ejusdem generis, when “general words

follow a designation of particular subjects, the mean-

ing of the general words will ordinarily be presumed to

be and construed as restricted by the particular desig-

nation and as including only those things of the same

kind, class, character or nature as those speciﬁcally

enumerated.” Benedict v Dep’t of Treasury, 236 Mich

App 559, 564; 601 NW2d 151 (1999) (quotation marks

and citation omitted). Therefore, “[w]hen construing a

catch-all phrase, courts will interpret it to include only

those things of the same type as the preceding speciﬁc

list.” Sebring v City of Berkley, 247 Mich App 666, 674;

637 NW2d 552 (2001). In other words, if anything, the

terms “child” and “beneﬁciary” should be construed as

modifying the meaning of the catchall phrase “any

other person that has a property right in or claim

against a trust estate,” not the other way around.

For those reasons, we reject the proposed construc-

tion of MCL 700.1105(c) under which the phrase “any

2018] In re B

RODY

IVING

RUST

) 491

other person that has a property right in or claim

against

a trust estate” would be construed as modify-

ing the preceding terms “child” and “beneﬁciary.” In

light of the second sentence of MCL 700.1105(c), it

seems that whether a “child” or a “beneﬁciary” is

interested in a given trust proceeding is dependent on

the particular purposes of, and matters involved in, the

proceeding—under the facts as they exist at the time

that standing is determined—not whether the given

“child” or “beneﬁciary” has a property right in or claim

against the trust estate.

We again afﬁrm our prior conclusion that the trial

court did not err by concluding that Cathy had stand-

ing as a petitioner in this action.

O’B

RIEN

, P.J., M

URRAY

, C.J., and J

ANSEN

, J., con-

curred.

492 325 M

ICH

476 [Aug

PEOPLE v VANDERPOOL

ocket No. 337686. Submitted July 13, 2018, at Detroit. Decided

August 7, 2018, at 9:05 a.m. Reversed and remanded 505 Mich

___ (2020).

In June 2013, John D. Vanderpool pleaded no contest in the Tuscola

Circuit Court to the charge of assaulting a police ofﬁcer, MCL

750.81d(1), a felony offense. The court, Amy Gierhart, J., sen-

tenced defendant to a two-year term of probation; the probation

sentence expired in June 2015, but the court did not enter an

order discharging defendant from probation. In September 2015,

the trial court extended defendant’s probation to June 2016 to

account for the time during which warrants had been issued for

his arrest for failure to appear at probation appointments and to

allow defendant additional time to pay court-ordered costs and

fees. During a probation-compliance check in December 2015,

defendant was found in possession of heroin; defendant subse-

quently pleaded no contest to possession of less than 25 grams of

a controlled substance, MCL 333.7403(2)(a)(v), second or subse-

quent offense, MCL 333.7413(2), and pleaded guilty of a proba-

tion violation. The court sentenced defendant for the two charges

and revoked defendant’s probation. Defendant sought leave to

appeal, which the Court of Appeals granted.

The Court of Appeals held:

MCL 771.2(1) provides that a probation sentence for a felony

conviction may not exceed ﬁve years. Under MCL 771.2(5), a trial

court has authority to ﬁx and determine the period and conditions

of probation, and the court may amend the order in form or

substance at any time; a defendant is not entitled to a hearing

before the trial court can amend, modify, or extend an order of

probation. In contrast, MCL 771.4 provides that probation-

revocation proceedings must commence during the probation

period, that is, during the speciﬁc probation term that the

sentencing court imposed on a particular defendant, not the

statutory maximum term of probation; during the probation

period, a probation order is revocable by the sentencing court for

any violation or attempted violation of a probation condition that

the court considers applicable. Unlike revocations under MCL

771.4, MCL 771.2(5) allows probation orders to be modiﬁed at any

2018] P

EOPLE V

ANDERPOOL

493

time and does not refer to the probation period. Accordingly, a

trial

court retains jurisdiction to modify and extend a probation

order at any time within the maximum ﬁve-year period allowed

under MCL 771.2(1), even after the original probation period

expires. While defendant’s original probation term had already

expired when the trial court extended his probation in September

2015, the one-year probation extension was within the ﬁve-year

maximum period allowed for felony convictions under MCL

771.2(1). Accordingly, the trial court had jurisdiction to modify

defendant’s probation in September 2015; the probation-

compliance check in December 2015 was therefore proper, and

defendant violated the terms of his probation by possessing

heroin. The trial court had jurisdiction to revoke defendant’s

probation because the court initiated the probation-revocation

proceedings while the new probation order was in effect.

Afﬁrmed.

O’C

ONNELL

, J., concurring, wrote separately to emphasize that,

contrary to the dissent’s argument, the characteristics unique to

probation proceedings did not support extending the due-process

principles governing a criminal trial, which has a more stringent

burden of proof, to a postconviction extension of probation.

Similarly, while due process requires—because of loss-of-liberty

concerns—a preliminary hearing and a ﬁnal hearing before

parole can be revoked, such procedural protections are not

required in a hearing to modify or extend probation because there

is not a comparable loss of liberty; that is, extending or modifying

probation only places a constraint on a defendant’s liberty.

ANSEN

, J., concurring in part and dissenting in part, agreed

with the majority that the trial court had jurisdiction under MCL

771.2(5) to extend defendant’s probationary period but disagreed

with the majority’s conclusion that the trial court correctly

extended and later revoked defendant’s probation. Due process

requires that a criminal defendant is entitled to reasonable notice

of the charges against him or her and is entitled to an opportunity

to have those charges proved beyond a reasonable doubt by the

prosecution. Similarly, a defendant is entitled to a preliminary

hearing and a ﬁnal hearing before the trial court can revoke

probation or parole. Because there is no reason not to do so, the

due-process principles applicable to criminal prosecutions and

probation-revocation hearings—that is, a preliminary hearing

and a ﬁnal hearing—should extend to postconviction proceedings

to amend, modify, or extend a probation period. Judge J

ANSEN

would have vacated the trial court’s orders extending and subse-

quently revoking defendant’s probation and would have re-

494 325 M

ICH

493 [Aug

manded to the trial court for further proceedings on the petition

extend defendant’s probation.

RIMINAL

AW —

ROBATION —

MENDMENT OR

ODIFICATION OF

ROBATION —

URISDICTION

MCL 771.2(1) provides that a probation sentence for a felony

conviction may not exceed ﬁve years; under MCL 771.2(5), a trial

court has authority to ﬁx and determine the period and conditions

of probation, and the court may amend the order in form or

substance at any time; a trial court retains jurisdiction to modify

and extend a probation order at any time within the maximum

ﬁve-year period allowed under MCL 771.2(1), even after the

original probation period expires.

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Mark E. Reene, Prosecuting Attorney,

and Eric F. Wanink, Chief Assistant Prosecuting Attor-

ney, for the people.

Kufchock & Associates PLC (by Liane M. Kufchock)

for defendant.

Before: C

AMERON

, P.J., and J

ANSEN

and O’C

ONNELL

JJ.

AMERON

, P.J. Defendant, John David Vanderpool,

appeals the sentences imposed following his conviction

of possession of less than 25 grams of a controlled

substance (heroin), MCL 333.7403(2)(a)(v), second or

subsequent offense, MCL 333.7413(2), and for a proba-

tion violation. Vanderpool was sentenced to 18 months

to 8 years’ imprisonment for the possession conviction,

with credit for 271 days served, and to 459 days’

imprisonment for the probation violation,

also with

credit

for time served. On appeal, Vanderpool contends

that his conviction and sentences are invalid because

the trial court lacked jurisdiction to modify and extend

The

trial court revoked defendant’s probation.

2018] P

EOPLE V

ANDERPOOL

495

PINION BY

AMERON

, P.J.

probation three months after his initial term of proba-

tion

had expired. We conclude that the trial court had

jurisdiction to modify and extend probation up to the

statutory maximum term even after Vanderpool’s

original probationary period expired. Therefore, we

afﬁrm.

I. BACKGROUND

In June 2013, the trial court sentenced Vanderpool

a two-year term of probation after he pleaded nolo

contendere to assaulting a police ofﬁcer, MCL

750.81d(1), a felony offense. Vanderpool’s probation

prohibited him from possessing controlled substances

and authorized probation agents to conduct compli-

ance checks and search his property. While on proba-

tion, Vanderpool did not consistently report as directed

to the probation department and did not pay his

court-ordered ﬁnes and costs. His probation was set to

expire in June 2015, but the trial court did not enter an

order discharging him from probation. In September

2015, approximately three months after Vanderpool’s

probation sentence had expired, Vanderpool’s proba-

tion ofﬁcer ﬁled a petition with the trial court to extend

probation one year “to allow for the time [Vanderpool]

was on warrant status

[2]

. . . and time to pay his Court

ordered

ﬁnes

and fees.” Because Vanderpool had not

successfully completed probation, the trial court ex-

tended Vanderpool’s probation to June 2016. On De-

cember 30, 2015, probation agents conducting a

probation-compliance check found Vanderpool in pos-

session of heroin, resulting in the heroin conviction

and the probation revocation at issue in this appeal.

“W

arrant status” appears to refer to the period of time during which

Vanderpool stopped reporting to the probation department and was

subject to a warrant because of his failure to appear.

496 325 M

ICH

493 [Aug

PINION BY

AMERON

, P.J.

II. DISCUSSION

anderpool argues that the trial court did not have

jurisdiction to modify and extend his probationary

term in September 2015 because his probation had

expired in June 2015. Vanderpool maintains that be-

cause his probation was not modiﬁed and extended

before its expiration, the trial court could not later

reinstate his probation and extend the probation pe-

riod. We disagree. We review de novo questions regard-

ing the trial court’s subject-matter jurisdiction and

issues of statutory interpretation. People v Glass, 288

Mich App 399, 400; 794 NW2d 49 (2010).

A probation sentence for a felony conviction may not

exceed ﬁve years. MCL 771.2(1). Under MCL 771.2(5),

[t]he court shall, by order to be entered in the case as the

ourt directs by general rule or in each case, ﬁx and

determine the period and conditions of probation. The order

is part of the record in the case. The court may amend the

order in form or substance at any time. [Emphasis added.]

Our Supreme Court addressed the exact issue now

before

this

Court, albeit under the prior version of the

probation statute. See People v Marks, 340 Mich 495,

498-502; 65 NW2d 698 (1954). The probation statute

then read:

The court shall by order, to be ﬁled or entered in the cause

s the court may direct by general rule or in each case ﬁx

and determine the period and conditions of probation and

such order, whether it is ﬁled or entered, shall be consid-

ered as part of the record in the cause and shall be at all

times alterable and amendable, both in form and in sub-

stance, in the court’s discretion. [Id. at 499, quoting 1948

CL 771.2 (quotation marks omitted; emphasis added).]

After interpreting this provision, the Marks Court

concluded

that trial courts retain jurisdiction to modify

2018] P

EOPLE V

ANDERPOOL

497

PINION BY

AMERON

, P.J.

probation at any time within the ﬁve-year statutory

period,

even after the original probation period ex-

pires. Id. at 501. (“[W]e therefore hold that defendant’s

rights were not impinged by the alteration in the

probation order made within the statutory 5-year pe-

riod, even though the conditions of the original order

had not been violated and its term had expired.”). We

are now tasked with interpreting the current version of

MCL 771.2(5) in light of Marks.

The initiation of probation-revocation proceedings

under MCL 771.4 and the modiﬁcation of probation

orders under MCL 771.2(5) differ signiﬁcantly. Proba-

tion revocation proceedings must commence during the

“probation period.” Glass, 288 Mich App at 408. The

“probation period” is deﬁned as “the speciﬁc probation

term that the sentencing court has imposed on a

particular defendant,” not the statutory maximum

term of probation. Id. at 405. During the “probation

period,” a probation order is “revocable in any manner

the court that imposed probation considers applicable

either for a violation or attempted violation of a pro-

bation condition . . . .” MCL 771.4. Unlike revocations,

MCL 771.2(5) authorizes the modiﬁcation of probation

“at any time,” does not refer to the “probation period,”

and in no way requires that modiﬁcation occur within

that period. If the Legislature has included language in

one part of a statute and omitted it from another part,

courts should assume that the omission was inten-

tional. Griswold Props, LLC v Lexington Ins Co, 276

Mich App 551, 565; 741 NW2d 549 (2007). We conclude

that the omission of the term “probation period” from

MCL 771.2(5) was intentional, and we see no conﬂict

between Marks and Glass.

Therefore, we hold that a

e also fail to see how Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756;

36 L Ed 2d 656 (1973), calls Marks into question. Gagnon, id. at 782,

498 325 M

ICH

493 [Aug

PINION BY

AMERON

, P.J.

trial court has the authority to modify and extend

probation

at any time within the statutory maximum

period, even after the initial probation period expires.

In this case, the trial court had jurisdiction to extend

Vanderpool’s probation. The original probation term

had expired when the trial court extended Vander-

pool’s probation, but the one-year extension of proba-

tion was within the ﬁve-year statutory maximum pe-

riod allowed for felony convictions under MCL

771.2(1). Importantly, the trial court had not entered

an order discharging Vanderpool from probation pur-

suant to MCL 771.6. Instead, the trial court modiﬁed

probation two months before the compliance check, so

the terms of Vanderpool’s original probation were still

in effect at that time. Therefore, the compliance check

was proper, and Vanderpool’s possession of heroin

violated his probation. The trial court initiated

probation-revocation proceedings after the discovery of

the heroin but before Vanderpool’s extended probation-

ary period expired. Accordingly, the trial court had

jurisdiction to revoke Vanderpool’s probation.

The dissent claims that Vanderpool’s due-process

rights were violated because he was not given notice

that his probation was extended or an opportunity to

challenge that a probation extension was justiﬁed.

This assertion is not supported by the record. The court

ﬁle demonstrates that Vanderpool was given notice

held that a defendant has a due-process right to a preliminary probable-

cause

hearing regarding an alleged probation violation and a ﬁnal

hearing before the revocation of probation. This procedure, which is

distinct from the procedure to extend probation, was afforded to defen-

dant when he was arraigned on the probation violation and later waived

his right to a hearing and pleaded guilty to violating his probation.

Gagnon cannot be read to create a new substantive due-process right

that an evidentiary hearing must take place before a trial judge can

modify or extend a probation order.

2018] P

EOPLE V

ANDERPOOL

499

PINION BY

AMERON

, P.J.

that his probation had been extended because he

reported

to his probation agent after his probation

extension. The court ﬁle reveals that on November 12,

2015—after the probation extension but before the

search of his house—Vanderpool’s probation agent

petitioned the trial court for a bench warrant because

Vanderpool violated his probation by testing positive

for opiates. A subsequent probation-violation warrant

issued on December 3, 2015, further reveals that after

Vanderpool was arrested for an unspeciﬁed offense on

November 18, 2015, he stopped “report[ing] on a

weekly basis to the probation ofﬁce” and “[h]is where-

abouts [were] unknown at [that] time.” Vanderpool’s

conduct of reporting to his probation agent demon-

strates that he was provided notice that he was still on

probation when he was later caught with heroin.

Moreover, the dissent claims Vanderpool was en-

titled

to an evidentiary hearing before the trial court

was able to make any “amendment, modiﬁcation, or

extension of probation.” In other words, the dissent

would have this Court establish a rule that probation

modiﬁcations are to be treated the same as probation

violations and revocations, which require an eviden-

tiary hearing. Our courts have continually rejected this

position. See, e.g., Marks, 340 Mich at 501; People v

Britt, 202 Mich App 714, 716; 509 NW2d 914 (1993);

People v Kendall, 142 Mich App 576, 579; 370 NW2d

Further

, courts speak through their written orders, and Vanderpool

remained under the jurisdiction of the trial court until he completed the

terms and conditions of his probation, until he was ofﬁcially discharged,

or until the expiration of the ﬁve years. Vanderpool was never dis-

charged from probation, and he never completed the terms and condi-

tions of his probation. In fact, Vanderpool was informed that his

probation was being extended. Rather than ﬁnd a probation violation,

the trial court extended Vanderpool’s probation to allow him to satisfac-

torily complete the terms and conditions of his probation.

500 325

ICH

493 [Aug

PINION BY

AMERON

, P.J.

631 (1985). In short, because the trial court modiﬁed

anderpool’s probation within the ﬁve-year statutory

limit and the revocation occurred while the new pro-

bation order was in effect, the trial court had jurisdic-

tion to modify and subsequently revoke Vanderpool’s

probation.

Afﬁrmed.

O’C

ONNELL

, J. (concurring). I concur with Judge

Cameron’s well-written opinion. I write separately to

draw attention to the legal insufﬁciency of the dissent-

ing opinion.

The dissent agrees that the trial court had the

authority to extend probation but takes issue with the

procedure for doing so. The dissent contends that the

majority failed to address Vanderpool’s due-process

rights. Neither defendant, John David Vanderpool, nor

the dissent identiﬁes a constitutional inadequacy in

the procedure for extending or amending probation.

First, the dissent overextends the legal concept

stated in People v Eason, 435 Mich 228, 233; 458 NW2d

17 (1990), that due process requires the prosecution to

provide a defendant with notice of the criminal charges

and to prove the statutory elements of the offense

beyond a reasonable doubt. This principle is unques-

tionably true for obtaining a conviction. After a defen-

dant has been convicted, however, “[p]robation is a

matter of legislative grace.” People v Glenn-Powers,

296 Mich App 494, 502; 823 NW2d 127 (2012). Even in

a probation-revocation proceeding, a defendant has

limited constitutional rights compared to a criminal

trial. People v Breeding, 284 Mich App 471, 481; 772

NW2d 810 (2009).

In addition, the probation ofﬁcer, not the prosecu-

tion, ﬁled the petition to extend probation, and the

2018] P

EOPLE V

ANDERPOOL

501

ONCURRING

PINION BY

O’C

ONNELL

, J.

burden of proof for obtaining a conviction is more

stringent

than the burden of proving a probation

violation. A probation ofﬁcer’s primary function is to

oversee the probationer’s rehabilitation. Gagnon v

Scarpelli, 411 US 778, 784; 93 S Ct 1756; 36 L Ed 2d

656 (1973). In this case, the probation ofﬁcer extended

probation to account for the time Vanderpool was

subject to a bench warrant for failing to participate in

a presentence investigation interview after pleading

nolo contendere to assaulting a police ofﬁcer, MCL

750.81d(1). Soon after the trial court signed off on the

petition to extend probation, the probation ofﬁcer re-

quested four bench warrants in two months for numer-

ous violations of probation, including possession of

heroin, a scale for distribution, and other drug para-

phernalia. Only after the probation ofﬁcer obtained

these bench warrants did the prosecution attend hear-

ings regarding the probation violations.

Moreover, the

prosecution

bears the burden of proving a probation

violation by a preponderance of the evidence. Breeding,

284 Mich App at 487. These characteristics unique to

probation do not support the extension of due-process

principles governing a criminal trial to a postconvic-

tion extension of probation.

Finally, the difference between the loss of liberty,

following revocation of probation, and a constraint on

liberty, imposed by the continuation of probation, is

signiﬁcant. In Gagnon, 411 US at 781-782, the ruling

The

prosecution also ﬁled new charges for possession of less than 25

grams of heroin, MCL 333.7403(2)(a)(v), and possession with intent to

deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv). Vander-

pool waived his rights, including the right to a hearing on the probation

violations, before pleading guilty to a single probation violation and

possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(v).

Further, when Vanderpool pleaded guilty to the probation violation, he

agreed that he was on probation during the relevant period.

502 325 M

ICH

493 [Aug

ONCURRING

PINION BY

O’C

ONNELL

, J.

that due process required a preliminary hearing and a

ﬁnal

hearing before probation could be revoked arose

out of a concern for the defendant’s loss of liberty. By

contrast, extending probation does not give rise to a

comparable loss of liberty. Applying the procedural

protections for a probationer facing revocation to an

extension or amendment of probation is unwarranted.

Due process is a balancing act. See Morrissey v

Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484

(1972). The procedure for extending or amending pro-

bation already satisﬁes due process. See People v

Marks, 340 Mich 495, 501; 65 NW2d 698 (1954).

ANSEN

, J. (concurring in part and dissenting in

part). Although I agree with the majority that the trial

court had the authority under MCL 771.2(5) to extend

defendant’s probationary period, I write separately

because I believe due process required defendant have

notice and an opportunity to be heard before his

probationary period was extended.

MCL 771.2(5) permits a trial court to amend, modify,

or extend a defendant’s probation period. Accordingly,

in this case, the trial court had the authority to extend

defendant’s probation period so long as it did not

exceed the ﬁve-year statutory maximum period al-

lowed for defendant’s felony conviction under MCL

771.2(1). I therefore concur with the majority’s opinion

in that regard. However, simply because MCL 771.2(5)

vests the trial court with the authority to extend his

probation period does not mean that defendant is no

longer entitled to due process. Because the majority

opinion fails to address defendant’s due-process rights,

I dissent.

Due process for a criminal defendant generally re-

quires reasonable notice of the charges against him or

2018] P

EOPLE V

ANDERPOOL

503

PINION BY

ANSEN

, J.

her and an opportunity to have those charges proved

beyond

a reasonable doubt by the prosecution. People v

Eason, 435 Mich 228, 233; 458 NW2d 17 (1990). I

believe these principles extend to a postconviction

proceeding in which the prosecution ﬁles a petition in

the trial court seeking to amend, modify, or extend a

probation period, particularly if that probation period

has technically already expired, as is the case here.

Even though a trial court has authority to extend a

defendant’s

probation period under MCL 771.2(5),

there must be some reason for doing so: there must be

some allegation against the defendant that warrants

an amendment, modiﬁcation, or extension. Therefore,

a defendant should be entitled to notice of those

allegations and an opportunity to have those allega-

tions proved, or at a minimum substantiated.

I ﬁnd defendant’s reliance on Gagnon v Scarpelli,

411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), to be

compelling. As the United States Supreme Court ar-

ticulated in Scarpelli:

Both the probationer or parolee and the State have

interests

the accurate ﬁnding of fact and the informed

use of discretion—the probationer or parolee to insure

that his liberty is not unjustiﬁably taken away and the

The

majority takes the position that the record indicates defendant

knew he was still on probation. The majority bases its position on the

following: (1) that defendant was aware that he had not yet paid all

court-ordered costs and fees; (2) that after his probation had been

extended, but before the December 2015 search, defendant’s probation

agent had petitioned the trial court for a bench warrant because

defendant had tested positive for opiates; and (3) that a subsequent

bench warrant issued on December 3, 2015, revealed that defendant had

been arrested on November 18, 2015, after he stopped reporting to his

probation agent on a weekly basis. These facts do not, however, sway my

position that due process required that defendant have notice and a

hearing before the trial court’s entry of an order extending his proba-

tion.

504 325

ICH

493 [Aug

PINION BY

ANSEN

, J.

State to make certain that it is neither unnecessarily

interrupting

a successful effort at rehabilitation nor im-

prudently prejudicing the safety of the community. [Id. at

785.]

By extending defendant’s probation period, the trial

court extended the constraint on his liberty. In my

view, due process requires that defendant be made

aware of the extension of that constraint before the

extension occurs and that the extension is justiﬁed.

In Scarpelli, id. at 786, the United States Supreme

Court reiterated that in Morrissey v Brewer, 408 US

471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), it had

announced that a defendant is entitled to a prelimi-

nary hearing and a ﬁnal hearing before the trial court

can revoke probation or parole. In particular, the

Supreme Court determined that:

At the preliminary hearing, a probationer or parolee is

entitled

to notice of the alleged violations of probation or

parole, an opportunity to appear and to present evidence

in his own behalf, a conditional right to confront adverse

witnesses, an independent decision maker, and a written

report of the hearing. The ﬁnal hearing is a less summary

one because the decision under consideration is the ulti-

mate decision to revoke rather than a mere determination

of probable cause, but the “minimum requirements of due

process” include very similar elements:

(a) written notice of the claimed violations of [pro-

bation or] parole; (b) disclosure to [the probationer]

or parolee of evidence against him; (c) opportunity to

be heard in person and to present witnesses and

documentary evidence; (d) the right to confront and

cross-examine adverse witnesses (unless the hear-

ing ofﬁcer speciﬁcally ﬁnds good cause for not allow-

ing confrontation); (e) a “neutral and detached”

hearing body such as a traditional parole board,

members of which need not be judicial ofﬁcers or

lawyers; and (f) a written statement by the factﬁnd-

2018] P

EOPLE V

ANDERPOOL

505

PINION BY

ANSEN

, J.

ers as to the evidence relied on and reasons for

revoking

[probation or] parole. [Scarpelli, 411 US at

786, citing and quoting Morrissey, 408 US at 487,

489 (citation omitted).]

I ﬁnd no reason why these principles should not also

apply

to the amendment, modiﬁcation, or extension of

probation or parole under MCL 771.2(5).

In light of the foregoing, I would vacate the trial

court’s orders extending and subsequently revoking

defendant’s probation and remand for proceedings on

the petition to extend defendant’s probation period

that are consistent with defendant’s right to due pro-

cess.

506 325 M

ICH

493 [Aug

PINION BY

ANSEN

, J.

PEOPLE v McFARLANE

Docket

No. 336187. Submitted June 5, 2018, at Grand Rapids. Decided

June 19, 2018. Approved for publication August 7, 2018, at 9:10

a.m.

Anthony R. McFarlane, Jr., was convicted after a jury trial in the

Allegan Circuit Court of ﬁrst-degree child abuse, MCL

750.136b(2), in connection with injuries suffered by his nine-

week-old child that were described by an expert witness for the

prosecution as “abusive head trauma.” The court, Kevin W.

Cronin, J., sentenced defendant to serve 15 to 25 years in prison.

Defendant appealed.

The Court of Appeals held:

1. The prosecutor presented sufﬁcient evidence to support

defendant’s conviction of ﬁrst-degree child abuse. To establish the

elements of ﬁrst-degree child abuse, the prosecution had to prove,

in relevant part, that defendant knowingly or intentionally

caused serious physical harm to the victim. MCL 750.136b(1)(f)

deﬁnes “serious physical harm” as “any physical injury to a child

that seriously impairs the child’s health or physical well-being,

including, but not limited to, brain damage, a skull or bone

fracture, subdural hemorrhage or hematoma, dislocation, sprain,

internal injury, poisoning, burn or scald, or severe cut.” In this

case, the victim’s ﬁve-year-old half-sister testiﬁed that she heard

the victim crying and saw defendant shaking her around the time

the injuries were alleged to have been inﬂicted, and an expert

who specialized in pediatric child abuse testiﬁed that the victim

had blood between her brain and her skull, a suspected tibia

fracture, and retinal hemorrhages, which could have been caused

by someone violently shaking her or throwing her onto a soft

surface. The evidence that defendant shook the victim and that

his shaking caused her injuries was sufﬁcient to establish that

defendant acted intentionally and caused her serious physical

harm. Viewing this testimony in the light most favorable to the

prosecution, the evidence was sufﬁcient to permit a rational trier

of fact to ﬁnd that each element of ﬁrst-degree child abuse had

been proved beyond a reasonable doubt.

2018] P

EOPLE V

ARLANE

507

2. The trial court plainly erred to the extent that it allowed a

prosecution

expert to use the phrase “abusive head trauma” to

label the victim’s diagnosis, and it erred by allowing the expert to

agree that the victim’s injuries amounted to “child abuse.” How-

ever, this error did not require reversal. Under MRE 702, a trial

court may permit testimony by an expert witness if the court

determines that “scientiﬁc, technical, or other specialized knowl-

edge will assist the trier of fact to understand the evidence or to

determine a fact in issue,” that the expert’s testimony is relevant,

and that the testimony should not be excluded under MRE 403.

This case required expert medical testimony because it was

beyond the ken of ordinary persons to evaluate the medical

evidence and assess the nature and extent of the victim’s injuries,

the timing of those injuries, and the possible mechanisms of

injury implicated by the medical evidence in determining

whether defendant intentionally injured the victim by inﬂicting

trauma to her brain. Because there was no external evidence of

injury to the victim, her injuries involved a diagnosis of shaken-

baby syndrome or abusive head trauma. The American Academy

of Pediatrics adopted the term “abusive head trauma” in 2009 and

deﬁned it to mean the “constellations of injuries that are caused

by the directed application of force to an infant or young child,

resulting in physical injury to the head and/or its contents.” Thus,

by deﬁnition, the diagnosis involves trauma caused by human

agency, which theAmerican Academy of Pediatrics labels abusive.

Although a minority of physicians and other scientists believes it

is impossible to reliably conclude that a particular child’s injuries

were the result of inﬂicted trauma, courts continue to allow

experts to offer such a diagnosis on the ground that it is accepted

and reliable. It is necessary for an expert to testify about the

types of injuries typically observed with head trauma in children

and to describe the possible mechanisms of injury involved.

Further, a diagnosis that a child’s head injuries were not acciden-

tal may be made on the basis of physical examination and

scientiﬁc evidence rather than solely on the history provided by

the complainant. Accordingly, a physician may properly offer an

opinion that, when the medical evidence is considered along with

the child’s history, the child’s injuries were inﬂicted rather than

caused by accident or disease, because a jury is unlikely to be able

to assess the medical evidence. However, in cases involving

allegations of abuse, an expert goes too far when he or she

diagnoses the injury as “abusive head trauma” or opines that the

inﬂicted trauma amounted to child abuse. The ordinary under-

standing of the term “abuse”—as opposed to neglect or

carelessness—implies a level of willfulness and moral culpability

508 325

ICH

507 [Aug

that implicates the defendant’s intent or knowledge when per-

forming

the act that caused the head trauma. An expert may not

offer an opinion on the intent or criminal responsibility of the

accused. In this case, the prosecution’s expert did not limit her

diagnosis to her belief that the victim’s injuries were best ex-

plained as inﬂicted or not accidental; rather, she opined that this

case involved a “deﬁnite case of abusive head trauma.” It was also

evident from her testimony that “abusive head trauma” meant

child abuse. This testimony strongly suggested that it was the

expert’s opinion that whoever inﬂicted the injuries on the victim

did so with culpable state of mind; that is, her testimony plainly

implicated whether defendant “knowingly or intentionally”

caused serious physical harm to the victim within the meaning of

MCL 750.136b(2). Because the expert was in no better position

than the jury to assess the intent that defendant had when he

acted, her belief that his actions were abusive or amounted to

child abuse were irrelevant and inadmissible as a matter of law.

Consequently, the trial court plainly erred to the extent that it

allowed the expert to use the phrase “abusive head trauma” to

label her diagnosis rather than a less prejudicial label, such as

inﬂicted or nonaccidental head trauma, and erred by allowing her

to agree that the victim’s injuries amounted to “child abuse.”

However, the totality of the evidence strongly supported a con-

clusion that defendant became angry with the victim, violently

shook her out of frustration, and caused the injuries at issue.

Given the strength of the evidence, to the extent that the trial

court plainly erred by allowing the expert to use the labels

“abusive head trauma” and “child abuse,” it was unlikely that the

error affected the outcome of the trial. Therefore, the error did not

warrant relief.

3. Defense counsel’s failure to object to the prosecution’s

expert testimony did not amount to ineffective assistance of

counsel. In his closing argument, defense counsel portrayed the

expert as biased and untrustworthy, arguing that her testimony

was ﬂawed, that she ignored important medical details, that she

discounted evidence that led to a contrary diagnosis, and that her

testimony was nothing more than her own untrustworthy opin-

ion. Given defense counsel’s argument, he might reasonably have

refrained from objecting to the expert’s diagnosis of abusive head

trauma and her references to abuse because her claim that she

could diagnose child abuse furthered his argument that she was

partial and not worthy of credibility. Because there was a plau-

sible and legitimate strategic reason for defense counsel’s deci-

sion not to object, it cannot be said that the failure to object fell

below an objective standard of reasonableness under prevailing

2018] P

EOPLE V

ARLANE

509

professional norms. Additionally, it was unlikely that the expert’s

use

of the label “abusive head trauma” affected the outcome of the

trial. Accordingly, even if defense counsel should have objected,

his failure to do so does not amount to ineffective assistance that

warrants a new trial.

4. Defense counsel was not ineffective for failing to object to

the evidence regarding the victim’s possible tibia fracture as

inadmissible under MRE 404(b) and improper for the prosecutor

to mention during closing arguments. The evidence that the

victim might have suffered a leg fracture at some point before the

events at issue was likely inadmissible under MRE 402 or MRE

403. However, defense counsel did not necessarily provide inef-

fective assistance by failing to object to its admission. The

evidence of a fracture was weak, and defense counsel elicited

expert testimony that the evidence did not show a fracture or that

the fracture was irrelevant to the diagnosis of the symptoms that

the victim exhibited on the day at issue. The one defense expert

who acknowledged the fracture stated that that type of fracture

could have an innocent origin. Defense counsel also used the

inconsistent and weak evidence of a fracture to challenge the

credibility of the prosecution’s experts. On this record, it appears

that defense counsel had a legitimate strategic reason for not

objecting to testimony about the fracture: he had strong evidence

to contradict the evidence, and it allowed him to challenge the

credibility of the prosecution’s experts. Defendant has not over-

come the presumption that counsel employed sound trial strategy.

5. The trial court did not clearly err by ﬁnding that the

evidence supported a score of 25 points for Offense Variable (OV)

3. Under MCL 777.33(1)(c), a trial court must assess 25 points for

OV 3 if it ﬁnds that life-threatening or permanent incapacitating

injury occurred to a victim. Although there was no expert testi-

mony about the long-term effects of the victim’s brain injuries,

there was evidence that her injuries were life-threatening. The

record showed that she had signiﬁcant subdural bleeding, re-

peated seizures, and retinal hemorrhages and that these injuries

were severe enough that she was airlifted to a larger hospital.

6. The trial court clearly erred to the extent it relied on

evidence that the victim had suffered a leg fracture when scoring

OV 7; however, the score of 50 points was supported by the trial

court’s ﬁnding that defendant had used excessive brutality in the

commission of the offense. Under MCL 777.37(1)(a), the trial

court must assess 50 points under OV 7 if it ﬁnds that a “victim

was treated with sadism, torture, excessive brutality or simi-

larly egregious conduct designed to substantially increase

510 325

ICH

507 [Aug

the fear and anxiety a victim suffered during the offense.”

Because

the Legislature provided that the brutality must be

excessive, the trial court could only assign 50 points if it found

that the abuse involved in this case exceeded the brutality that

normally encompasses ﬁrst-degree child abuse. The trial court

clearly erred to the extent that it relied on the evidence of a leg

fracture in scoring this variable because there was no record

evidence tending to connect defendant to the fracture and the jury

speciﬁcally found that the injury that defendant caused was

abusive head trauma. However, the trial court did not clearly err

to the extent that it found that the victim was subjected to

excessive brutality in the commission of the ﬁrst-degree child

abuse. Under MCL 750.136b(2), to be guilty of the charge,

defendant had to cause serious physical harm to the victim, which

means any physical injury that seriously impaired her health or

physical well-being. Although serious physical harm necessarily

includes subdural hemorrhages, a person can commit ﬁrst-degree

child abuse without causing such an injury. And in this case, there

was evidence, albeit disputed, that defendant had to have vio-

lently shaken or thrown the victim to cause the subdural hema-

tomas and other injuries. The severity of the injuries supported a

ﬁnding that the victim was treated with brutality in excess of that

which necessarily accompanies the commission of ﬁrst-degree

child abuse.

7. The trial court erred by assigning 25 points for OV 13, and

this error entitled defendant to resentencing. Under MCL

777.43(1)(c), 25 points are to be assessed for OV 13 if a defen-

dant’s offense was part of a “pattern of felonious criminal activity

involving 3 or more crimes against a person.” Defendant was on

bond for felonious assault when he committed the present offense,

which, when counted with the sentencing offense, constituted two

offenses against a person. The trial court did not make any

speciﬁc ﬁndings with regard to a third felony offense, so it is

unclear how it arrived at the score of 25 points for this OV. On this

record, the trial court clearly erred to the extent that it found that

defendant had committed three felony offenses against a person

within the past ﬁve years, and subtracting 25 points from

defendant’s total OV score results in a lower minimum sentence

range. Because this error was not preserved for appellate review,

defendant could not ordinarily have shown that he was entitled to

be resentenced except through a claim of ineffective assistance of

counsel during sentencing. On appeal, defendant asserted that

his trial counsel was ineffective to the extent that he failed to

raise any of the errors he now asserts on appeal. Had defense

counsel raised this issue at sentencing, the trial court would have

2018] P

EOPLE V

ARLANE

511

had to recalculate the total OV score and sentence within the

appropriate

range. Therefore, defendant established that defense

counsel’s failure to raise this claim at sentencing fell below an

objective standard of reasonableness and prejudiced his sentenc-

ing. Accordingly, defendant was entitled to resentencing with zero

points assessed under OV 13. Because defendant’s remaining

claims on appeal were without merit, defense and appellate

counsel cannot be faulted for failing to raise those claims.

Conviction afﬁrmed; case remanded for resentencing.

RIMINAL

AW —

VIDENCE —

HILD

BUSE —

XPERT

ESTIMONY —

EAD

NJURIES —

IAGNOSES —

BUSIVE

EAD

RAUMA

At a criminal trial of a defendant accused of child abuse, an expert

witness may properly offer an opinion that, when the medical

evidence is considered along with the child’s history, the child’s

injuries were inﬂicted rather than caused by accident or disease;

however, an expert may not diagnose the child’s injuries as

“abusive head trauma” or opine that the inﬂicted trauma

amounted to child abuse (MCL 750.136b(2); MRE 702).

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Myrene K. Koch, Prosecuting Attor-

ney, and Jonathan K. Blair, Assistant Prosecuting At-

torney, for the people.

Ronald D. Ambrose for defendant.

Anthony R. McFarlane, Jr., in propria persona.

Before: M

URRAY

, C.J., and M

ARKEY

and T

UKEL

, JJ.

URIAM

. Defendant, Anthony Ray McFarlane,

Jr., appeals by right his jury conviction of ﬁrst-degree

child abuse involving his then nine-week-old infant,

KM. See MCL 750.136b(2). The trial court sentenced

defendant to serve 15 to 25 years in prison for his

conviction. On appeal, defendant raises several claims

of error that he argues warrant a new trial or resen-

tencing. For the reasons explained below, we afﬁrm

defendant’s conviction but remand for resentencing.

512 325 M

ICH

507 [Aug

I. SUFFICIENCY OF THE EVIDENCE

STANDARD OF REVIEW

Defendant ﬁrst argues that the prosecution pre-

sented insufﬁcient evidence to support his conviction of

ﬁrst-degree child abuse. This Court reviews a chal-

lenge to the sufﬁciency of the evidence by examining

the “record evidence de novo in the light most favorable

to the prosecution to determine whether a rational

trier of fact could have found that the essential ele-

ments of the crime were proved beyond a reasonable

doubt.” People v Roper, 286 Mich App 77, 83; 777 NW2d

483 (2009). This Court must resolve all conﬂicts in the

evidence in favor of the prosecution. See People v

Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).

B. ANALYSIS

To establish the elements of ﬁrst-degree child abuse,

the

prosecution

had to prove—in relevant part—that

defendant “knowingly or intentionally cause[d] serious

physical . . . harm” to KM. MCL 750.136b(2). Serious

physical harm means “any physical injury to a child

that seriously impairs the child’s health or physical

well-being, including, but not limited to, brain damage,

a skull or bone fracture, subdural hemorrhage or

hematoma, dislocation, sprain, internal injury, poison-

ing, burn or scald, or severe cut.” MCL 750.136b(1)(f).

Because the Legislature provided that the perpetrator

must “knowingly or intentionally” cause the serious

physical harm, it is not sufﬁcient for the prosecution to

prove that a defendant intended to commit the act that

caused the physical harm; the prosecution must prove

that the “defendant intended to cause serious physical

harm or knew that serious physical harm would be

2018] P

EOPLE V

ARLANE

513

caused by [his or] her act.” People

v Maynor, 470 Mich

289, 291; 683 NW2d 565 (2004).

In this case, the prosecution presented evidence that

tended to suggest that defendant injured KM at some

point on December 6, 2013, or early in the day on

December 7, 2013.

KM’s half-sister, KD, who was ﬁve years old on the

day at issue, testiﬁed that she wanted defendant to play

with her, but he wanted to play video games. After she

began to cry, defendant became angry with her, pun-

ished her, and eventually spanked her. She said she

went to her room but peeked into the living room when

she heard KM crying. She saw defendant shaking KM.

Defendant suggests that KD’s testimony was im-

probable because her timing was off and she failed to

earlier disclose the shaking incident. When reviewing

challenges to the sufﬁciency of the evidence, this Court

must not interfere with the fact-ﬁnder’s role in decid-

ing the weight and credibility to give to a witness’s

testimony—“no matter how inconsistent or vague that

testimony might be.” People v Mehall, 454 Mich 1, 6;

557 NW2d 110 (1997); see also People v Lemmon, 456

Mich 625, 646-647; 576 NW2d 129 (1998). Rather, this

Court must view the evidence in the light most favor-

able to the prosecution and uphold the verdict if a

reasonable ﬁnder of fact could have found that the

elements were proved beyond a reasonable doubt. See

People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748

(1992), amended 441 Mich 1201 (1992). Therefore, we

cannot disregard KD’s testimony; instead, we must

make every reasonable inference from her testimony in

favor of the verdict. See id.

KD’s testimony about the timing was not entirely

clear. She did at ﬁrst imply that the shaking incident

occurred sometime immediately before defendant took

514 325 M

ICH

507 [Aug

her to his mother’s house, which would have been early

Saturday, December 7, 2013. The children’s mother,

Dakota Chitwood, testiﬁed that KM was already show-

ing signs of fussiness and pain by that time, and

Chitwood was home and would likely have been in a

position to witness the discipline had it occurred Sat-

urday morning. However, KD later testiﬁed that the

discipline occurred after she got home from school and

before her mother got home from work. From KD’s

testimony a reasonable ﬁnder of fact could infer that

the shaking incident occurred on Friday.

The prosecution also presented expert testimony

that KM had several injuries. Sarah Brown, D.O., a

child abuse pediatrician, testiﬁed that KM had blood in

the “space between her brain and her skull”—the

“subdural space.” The bleeding was “all over both sides

of her brain.” She also had a suspected tibia fracture,

and Brown stated that an ophthalmologist observed

bleeding in the back of KM’s eye, which was referred to

as retinal hemorrhages. Brown stated that KM’s inju-

ries could have been caused by someone violently

shaking KM or by throwing her onto a couch or other

soft surface. Brown acknowledged that KM had had a

prenatal stroke, which caused the left hemisphere of

KM’s brain to shrink substantially. But she opined that

KM’s subdural hematomas and retinal hemorrhages

were not attributable to her stroke. There was also

testimony that the latter injuries arose during the time

frame set forth in KD’s testimony. Thus, when Brown’s

testimony is considered with KD’s testimony that she

saw defendant shake KM, a jury could reasonably infer

that defendant violently shook KM and that his acts

caused her to suffer the identiﬁed injuries.

Further, it does not matter that the ﬁnder of fact

must make multiple inferences to establish these ele-

2018] P

EOPLE V

ARLANE

515

ments. When considering the sufﬁciency of the evi-

dence,

this Court must consider the inferences that can

be fairly drawn from the evidence, and “it does not

matter that the evidence gives rise to multiple infer-

ences or that an inference gives rise to further infer-

ences.” People v Hardiman, 466 Mich 417, 428; 646

NW2d 158 (2002). Finally, the Legislature speciﬁcally

deﬁned serious physical harm to include subdural

hematoma. See MCL 750.136b(1)(f). Therefore, the

prosecution presented sufﬁcient evidence to establish

defendant’s identity as the person who inﬂicted an act

that caused a serious physical injury to KM. See People

v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008)

(noting that “identity is an element of every offense”).

The only remaining issue is whether the prosecution

presented sufﬁcient evidence to establish that defen-

dant intended to cause serious physical harm or knew

that serious physical harm would result. See Maynor,

470 Mich at 291, 295.

Because it is difﬁcult to prove an actor’s state of

mind, the prosecution may rely on minimal circum-

stantial evidence to prove that the defendant had the

required mental state. See People v Unger, 278 Mich

App 210, 223; 749 NW2d 272 (2008). The evidence that

defendant shook KM and that his shaking caused her

injuries was sufﬁcient to establish that defendant

acted intentionally and caused her serious physical

harm. Brown further opined that the acts that caused

KM’s injuries had to be violent. There was expert

opinion to the contrary, but this Court must resolve

that dispute in the prosecution’s favor. Wilkens, 267

Mich App at 738. A reasonable ﬁnder of fact could ﬁnd

Brown’s testimony credible and ﬁnd that defendant

shook KM violently. It could then further infer from the

violence of the act that he either intended to cause her

516 325 M

ICH

507 [Aug

serious injury or knew that it was likely to do so. See

Unger

, 278 Mich App at 223.

The prosecution presented sufﬁcient evidence to

permit a rational trier of fact to ﬁnd that each element

of ﬁrst-degree child abuse had been proved beyond a

reasonable doubt. See Roper, 286 Mich App at 83.

II. INVADING THE PROVINCE OF THE JURY

STANDARD OF REVIEW

Defendant next argues that the trial court erred

when it allowed Brown to testify that she diagnosed

KM with “deﬁnite pediatric physical abuse.” He main-

tains that Brown’s testimony amounted to an opinion

that he was guilty. This Court generally reviews a

trial court’s decision to allow the admission of testi-

mony for an abuse of discretion. See Roper, 286 Mich

App at 90. However, it is an abuse of discretion to

allow testimony that is inadmissible as a matter of

law. See People v Bynum, 496 Mich 610, 623; 852

NW2d 570 (2014).

This Court reviews de novo whether the trial court

properly interpreted and applied the rules of evidence.

See People v Duncan, 494 Mich 713, 723; 835 NW2d

399 (2013). This Court also reviews de novo constitu-

tional questions, People v Shaﬁer, 483 Mich 205, 211;

768 NW2d 305 (2009), such as whether the trial court

improperly allowed a witness to invade the province of

the jury. Because defendant did not object to Brown’s

testimony on this basis before the trial court, this

Court’s review is limited to determining whether there

was a plain error that affected defendant’s substantial

rights. See People v Carines, 460 Mich 750, 763; 597

NW2d 130 (1999). To establish plain error that war-

rants relief, the defendant must show that the error

2018] P

EOPLE V

ARLANE

517

was plain or obvious and affected the outcome of the

lower

-court proceedings. Id.

B. ANALYSIS

A trial court may permit testimony by a “witness

qualiﬁed as an expert by knowledge, skill, experience,

training, or education” if the court determines that

“scientiﬁc, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence

or to determine a fact in issue . . . .” MRE 702. An

expert may offer an opinion at trial if his or her

testimony “is based on sufﬁcient facts or data,” if the

testimony “is the product of reliable principles and

methods,” and if the witness “has applied the prin-

ciples and methods reliably to the facts of the case.”

MRE 702. The trial court must also ensure that the

expert’s testimony is relevant. Bynum, 496 Mich at

624. Even when an expert’s testimony is relevant, it

remains subject to the limits imposed by MRE 403.

Id.

635

n 43.

This case required expert medical testimony be-

cause it was beyond the ken of ordinary persons to

evaluate the medical evidence and assess the nature

and extent of KM’s injuries, the timing of those inju-

ries, and the possible mechanisms of injury implicated

by the medical evidence. See People v Kowalski, 492

Mich 106, 121-122; 821 NW2d 14 (2012) (opinion by

ARY

ETH

ELLY

, J.); id. at 152 (M

ARKMAN

, J., concur-

ring in part and dissenting in part) (agreeing that

proposed expert testimony must involve a matter be-

MRE

403 states that “[a]lthough relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by consid-

erations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

518 325 M

ICH

507 [Aug

yond common understanding to be admissible under

MRE

702). Moreover, if an expert’s opinion is otherwise

admissible, it does not become objectionable merely

because “it embraces an ultimate issue to be decided by

the trier of fact.” MRE 704; see also People v Smith, 425

Mich 98, 106; 387 NW2d 814 (1986). Nevertheless,

there are limits on an expert’s authority to offer an

opinion that embraces an ultimate issue:

Although the ultimate issue rule no longer stands in

the way of expert testimony stating opinions on crucial

questions to be decided by the trier of fact, it is important

that the expert witness not be permitted to testify about

the requirements of law which apply to the particular

facts in the case or to phrase his opinion in terms of a legal

conclusion. In the former case, the claim is that the

province of the judge is invaded, while in the latter, the

contention is that the province of the jury is invaded.

[People v Drossart, 99 Mich App 66, 75; 297 NW2d 863

(1980).]

As our Supreme Court explained in P

ople v Peterson,

450 Mich 349, 374; 537 NW2d 857 (1995), amended

450 Mich 1212 (1995), quoting People v Beckley, 434

Mich 691, 721-722; 456 NW2d 391 (1990) (opinion by

RICKLEY

, J.), when a jury has been confronted with

one of society’s most heinous offenses, there is a

signiﬁcant danger that the jury will give extra weight

to an expert’s testimony:

“The use of expert testimony in the prosecution of

criminal

sexual conduct cases is not an ordinary situation.

Given the nature of the offense and the terrible conse-

quences of a miscalculation—the consequences when an

individual, on many occasions a family member, is falsely

accused of one of society’s most heinous offenses, or,

conversely, when one who commits such a crime would go

unpunished and a possible reoccurrence of the act would

go unprevented—appropriate safeguards are necessary.

To a jury recognizing the awesome dilemma of whom to

2018] P

EOPLE V

ARLANE

519

believe, an expert will often represent the only seemingly

objective

source, offering it a much sought-after hook on

which to hang its hat.” [Emphasis added by Peterson.]

This case involved whether defendant intentionally

injured KM by inﬂicting trauma to her brain. Because

there was no external evidence of injury, her injuries

involved a classic diagnosis of shaken-baby syndrome

or abusive head trauma. See Sissoko v State, 236 Md

App 676, 717-725; 182 A3d 874 (2018) (tracing the

history of the “shaken baby” and “abusive head

trauma” diagnoses from 1860 to the present and dis-

cussing at length the modern controversy surrounding

the diagnoses). The American Academy of Pediatrics

adopted the term “abusive head trauma” in 2009 and

deﬁned it to mean the “constellations of injuries that

are caused by the directed application of force to an

infant or young child, resulting in physical injury to

the head and/or its contents.” Id. at 720 (quotation

marks and citations omitted). Thus, by deﬁnition, the

diagnosis involves trauma caused by human agency,

which the American Academy of Pediatrics labels abu-

sive.

It remains the prevailing view in the medical com-

munity that there are “some internal ﬁndings that are

highly correlated with abusive head trauma . . . .” Id.

at 722. In keeping with this view, a physician may

employ a differential diagnosis and conclude that the

child’s injuries were the result of abusive head trauma:

[T]he consensus is that no single ﬁnding or combination of

ﬁndings

pathognomonic for abusive head trauma.

Rather, a differential diagnosis must be made based upon

the totality of the circumstances in each individual case. A

congruence of multiple ﬁndings, each of which indepen-

dently correlates with abusive head trauma, narrows the

ﬁeld of potential diagnoses signiﬁcantly, however, and

absent a clinical history of accidental trauma or evidence

520 325

ICH

507 [Aug

of a disease process consistent with those ﬁndings, a

diagnosis

of abusive head trauma may be made. [Id. at

723.]

A minority of physicians and other scientists have

identiﬁed changes in the understanding of the biome-

chanics of shaking and evidence that subdural hema-

tomas, retinal hemorrhages, and brain swelling are not

unique to head trauma caused by human agency. For

that reason, those physicians and scientists believe it

is impossible to reliably conclude that a particular

child’s injuries were the result of inﬂicted trauma. Id.

at 725. Although there is a debate about the reliability

of such a diagnosis, courts continue to allow experts to

offer the diagnosis on the ground that it is accepted

and reliable. Id. at 726-728 (collecting cases that have

generally upheld the admissibility of expert testimony

opining that injuries of this nature were inﬂicted by

human agency).

Our Supreme Court has recognized the debate

within the medical community about the reliability of a

diagnosis of shaken-baby syndrome or abusive head

trauma. People v Ackley, 497 Mich 381, 391-392; 870

NW2d 858 (2015). It has not, however, considered

whether there are any limits on an expert’s ability to

diagnose abusive head trauma. Still, it has provided

general guidance on the limits of expert testimony in

analogous circumstances.

As a result of the danger that a jury might give too

much weight to an expert’s opinion on a matter involv-

ing an ultimate issue, our Supreme Court has imposed

strict limits on expert testimony that “comes too close”

to ﬁndings that are left exclusively to the jury. Peterson,

450 Mich at 374. For example, in cases involving

criminal sexual conduct, an expert may not offer an

opinion that the alleged victim had in fact been sexu-

2018] P

EOPLE V

ARLANE

521

ally abused, may not offer testimony that vouches for

the

victim’s veracity, and may not offer an opinion that

the defendant is guilty. See id. at 352. The same is true

for expert testimony on “battered woman syndrome”:

the expert may not opine that the complainant was in

fact a battered woman, may not testify that the defen-

dant is guilty, and may not comment on the complain-

ant’s veracity. See People v Christel, 449 Mich 578, 580;

537 NW2d 194 (1995). Although an expert may be

necessary to explain characteristics of gang culture,

the expert may not offer an opinion that a particular

gang member acted in conformity with character traits

commonly associated with gang members and may not

offer an opinion on the defendant’s intent when he

acted. See Bynum, 496 Mich at 630-634.

It is necessary for an expert to testify about the

types of injuries typically observed with head trauma

in children and to describe the possible mechanisms of

injury involved. See Kowalski, 492 Mich at 121-122

(opinion by M

ARY

ETH

ELLY

, J.); id. at 152 (M

ARKMAN

J., concurring in part and dissenting in part). Further,

unlike the case with a diagnosis of sexual assault

based on the emotional state and statements of the

complainant, see Smith, 425 Mich at 112, a diagnosis

that a child’s head injuries were not accidental may be

made on the basis of physical examination and scien-

tiﬁc evidence rather than solely on the history provided

by the complainant, see Sissoko, 236 Md App at 723.

Accordingly, contrary to defendant’s contention on ap-

peal, a physician may properly offer an opinion that,

when the medical evidence is considered along with the

child’s history, the child’s injuries were inﬂicted rather

than caused by accident or disease because a jury is

unlikely to be able to assess the medical evidence. See

Smith, 425 Mich at 106 (recognizing that whether an

expert is needed depends on whether an untrained

522 325 M

ICH

507 [Aug

layman would be qualiﬁed to determine the issue

without

the aid of an expert); Drossart, 99 Mich App at

79-82 (stating that the expert may not tell the jury how

to decide the case, but may offer an opinion on an

ultimate issue if the expert’s experience and training is

in an area that is largely unfamiliar to the jury).

Expressing an opinion that the trauma was inﬂicted or

not accidental does not impermissibly invade the prov-

ince of the jury because the expert is not expressing an

opinion regarding the defendant’s guilt or whether the

defendant had a culpable state of mind, which the

expert may not do. See Bynum, 496 Mich at 630-633;

Peterson, 450 Mich at 374; Christel, 449 Mich at 580.

Instead, the expert is interpreting the medical evi-

dence and offering the opinion that the trauma was

caused by human agency, and the jury is free to reject

that opinion on the basis of the evidence adduced at

trial, including a contrary opinion by another expert.

See Drossart, 99 Mich App at 81.

Notwithstanding the propriety of a diagnosis of

inﬂicted trauma, we conclude that in cases involving

allegations of abuse, an expert goes too far when he or

she diagnoses the injury as “abusive head trauma” or

opines that the inﬂicted trauma amounted to child

abuse. The ordinary understanding of the term

“abuse”—as opposed to neglect or carelessness—

implies a level of willfulness and moral culpability that

implicates the defendant’s intent or knowledge when

performing the act that caused the head trauma. An

expert may not offer an opinion on the intent or

criminal responsibility of the accused. Bynum, 496

Mich at 630-633.

Brown—who was admitted as an expert in child

abuse pediatrics—testiﬁed generally about the nature

of KM’s condition and injuries. She described the

2018] P

EOPLE V

ARLANE

523

possible mechanisms that could cause the injuries and

then

stated that KM’s injuries were inﬂicted rather

than accidental or the result of her preexisting condi-

tion. Brown did not limit her diagnosis to her belief

that KM’s injuries were best explained as inﬂicted or

not accidental; she opined that this case involved a

“deﬁnite case of abusive head trauma.” It was also

evident from her testimony that “abusive head

trauma” meant child abuse. She repeatedly told the

jury that KM’s injuries were “caused by deﬁnite pedi-

atric physical abuse,” and she stated that “we know

that abusive head trauma” causes these injuries be-

cause people confess to hospital staff and investigators

or other family members after inﬂicting the injuries.

She also agreed that KM had suffered previous abuse

even though she was only nine weeks old. She further

told the prosecutor that she was correct when the

prosecutor noted that Brown looked at the totality of

the circumstances before concluding that this case

involved “child abuse.”

Brown’s testimony that KM’s injuries were caused

by “abusive head trauma” or otherwise amounted to

“child abuse” strongly suggested that it was her opin-

ion that whoever inﬂicted the injuries on KM did so

with culpable state of mind; that is, her testimony

plainly implicated whether defendant “knowingly or

intentionally” caused serious physical harm to KM

within the meaning of MCL 750.136b(2). Because

Brown was in no better position than the jury to assess

the intent that defendant had when he acted, her belief

that his actions were abusive or amounted to child

abuse were irrelevant and inadmissible as a matter of

law. See Drossart, 99 Mich App at 79-80. Consequently,

the trial court plainly erred to the extent that it

allowed Brown to use the phrase “abusive head

trauma” to label her diagnosis rather than a less

524 325 M

ICH

507 [Aug

prejudicial label, such as inﬂicted or nonaccidental

head

trauma, and erred by allowing her to agree that

KM’s injuries amounted to “child abuse.” See Carines,

460 Mich at 763. However, a plain error will not

warrant relief unless the defendant demonstrates that

the error affected the outcome of the lower-court

proceedings. See id.

Although Brown opined that KM’s injuries were

caused by deﬁnite pediatric physical abuse, she con-

ceded that she could not say what actually happened to

KM. She also testiﬁed that there were some people who

felt that abusive head trauma was misdiagnosed.

Moreover, defense counsel called three witnesses who

testiﬁed that they did not agree with Brown’s diagno-

sis: Julie Mack, M.D., who was a pediatric radiologist;

Douglas Smith, M.D., who was a retired pathologist;

and Joseph Sheller, M.D., who was a pediatric neurolo-

gist. The experts informed the jury that they did not

believe that a medical professional could diagnose

abuse. Mack testiﬁed that the medical records might

give rise to a suspicion of abuse but opined that a

medical professional cannot diagnose abuse. Smith

also testiﬁed that the diagnoses of shaken-baby syn-

drome or abusive head trauma were founded on ﬂawed

studies and that there was great controversy over

whether a medical professional could make such diag-

noses. Sheller similarly testiﬁed that the presence of

the symptoms seen in KM would cause a reasonable

pediatrician to be concerned about the potential for

abuse, but that a suspicion does not mean abuse

actually occurred. Sheller stated that the symptoms at

issue were not an absolute sign of abuse. Given this

testimony, the jury was well aware of the limits on

Brown’s opinion. Any prejudice occasioned by her char-

acterization of the acts was minimal.

2018] P

EOPLE V

ARLANE

525

Although the prosecutor mentioned in her closing

argument

that Brown had characterized the symptoms

as having been caused by abuse, she did not argue that

the jury should rely on Brown’s opinion when deciding

whether defendant had the requisite intent to estab-

lish ﬁrst-degree child abuse. Instead, she argued that

KD’s account of events, the severity of the injuries, and

defendant’s subsequent actions tended to prove defen-

dant’s guilt.

There was evidence that KM became symptomatic

while in defendant’s care, and KD testiﬁed that she

saw defendant shake KM at around that same time.

The timing and eyewitness account permitted an in-

ference that KM manifested her symptoms at that time

because they were inﬂicted at that moment. A detective

also reported that KD had reported that she had heard

defendant yell “shut up” to KM. KD stated that defen-

dant punished her when she cried at a time when he

wanted to play video games. The evidence tended to

suggest that defendant could become angry and frus-

trated by crying children. Brown also testiﬁed that

KM’s injuries were consistent with having been vio-

lently shaken. There was also testimony that defen-

dant warned KD not to tell anyone and threatened to

come after a neighbor if she or her husband said

anything wrong about his statements to investigators.

Defendant’s statements suggest that he was conscious

of his guilt. See People v Sholl, 453 Mich 730, 740; 556

NW2d 851 (1996).

The totality of the evidence strongly supported that

defendant became angry with KM, violently shook her

out of frustration, and caused the injuries at issue.

Given the strength of the evidence, to the extent that

the trial court plainly erred by allowing Brown to use

the labels “abusive head trauma” and “child abuse,” we

526 325 M

ICH

507 [Aug

ﬁnd it unlikely that the error affected the outcome of

the

trial. See Carines, 460 Mich at 763. Therefore, the

error does not warrant relief. Id.

C. INEFFECTIVE ASSISTANCE

Defendant also argues that defense counsel’s failure

to object to Brown’s testimony amounted to ineffective

assistance. Because the trial court did not hold an

evidentiary hearing on defendant’s claim that he did

not receive the effective assistance of counsel, there are

no factual ﬁndings to which this Court must defer, and

this Court’s review is for mistakes that are apparent on

the record alone. Unger, 278 Mich App at 253. This

Court reviews de novo whether defense counsel’s acts

or omissions fell below an objective standard of reason-

ableness under prevailing professional norms and

whether, without the error, the result of the proceed-

ings would have been different. Yost, 278 Mich App at

387. Counsel has wide discretion in matters of trial

strategy, and a defendant must overcome a strong

presumption that defense counsel represented him

competently. Unger, 278 Mich App at 242.

In his closing argument, defense counsel portrayed

Brown as biased and untrustworthy. He argued to the

jury that Brown’s testimony was ﬂawed and that she

ignored important medical details and discounted evi-

dence that led to a contrary diagnosis because she

wanted to “sustain her beliefs.” He also stated that

Brown’s testimony was nothing more than “her opin-

ion,” which could not be trusted because she deliber-

ately left out information.

Given defense counsel’s argument, he might reason-

ably have refrained from objecting to Brown’s diagno-

sis of abusive head trauma and her references to abuse

because her claim that she could diagnose child abuse

2018] P

EOPLE V

ARLANE

527

furthered his argument that she was partial and not

worthy

of credibility. Because there was a plausible

and legitimate strategic reason for defense counsel’s

decision not to object, it cannot be said that the failure

to object fell below an objective standard of reasonable-

ness under prevailing professional norms. See id. Ad-

ditionally, as already explained, it is unlikely that

Brown’s use of the label “abusive head trauma” af-

fected the outcome of the trial. Accordingly, even if

defense counsel should have objected, his failure to do

so does not amount to ineffective assistance that war-

rants a new trial. See id.

Defendant has not established plain error or ineffec-

tive assistance that warrants a new trial.

III. EVIDENCE OF TIBIA FRACTURE

On appeal, defendant argues that defense counsel

should

have objected to the evidence regarding a pos-

sible tibia fracture that KM may have had. He states

that the testimony constituted improper other-acts

evidence barred by MRE 404(b) and maintains that

defense counsel’s failure to object to the admission of

the evidence amounted to ineffective assistance of

counsel. Although defendant states that the testimony

was inadmissible, he has not offered any substantive

analysis of the evidence at issue. He also implies that

the prosecutor’s use of the evidence in closing was

improper, but again he has not offered any meaningful

analysis. To the extent that defendant might be argu-

ing that the trial court plainly erred by allowing the

evidence or that the prosecutor engaged in misconduct

by arguing the evidence, defendant has abandoned

those claims on appeal. See People v Martin, 271 Mich

App 280, 315; 721 NW2d 815 (2006). For that reason,

we limit our analysis to determining whether defen-

528 325 M

ICH

507 [Aug

dant has established that defense counsel’s handling of

this

testimony and evidence amounted to ineffective

assistance.

At trial, Brown testiﬁed that she examined KM’s

x-rays from her admission to Bronson Hospital and

had some concern. She ordered a new bone survey on

December 17, 2013. She testiﬁed that the new bone

survey revealed that KM had a spiral tibia fracture.

Although she acknowledged that the report from Bron-

son stated that KM’s bone survey was normal, Brown

stated that she recalled from memory that a physician

from Bronson diagnosed KM with two fractures, but

she could not forensically conﬁrm one fracture. Brown

did not otherwise offer any opinion as to when or how

the fracture occurred. The prosecution rested after

Brown’s testimony.

The defense experts thereafter disagreed about

whether the x-rays showed a fracture. Mack testiﬁed

that the x-rays did not reveal a fracture and that even

if she were to hypothesize that the ﬁlms showed a

fracture, she would have concluded that the fracture

was “weeks old” by the time of the x-rays. Smith did

not offer an opinion on the x-rays other than to observe

that the interpretations were inconsistent and de-

pended on evidence of a periosteal reaction that was

normally found in children who are growing because

the periosteum was an active tissue that helps shape

the bone during growth. Sheller, by contrast, agreed

that the images showed a fracture, but he disregarded

it in his opinion because it occurred before the date of

the injuries at issue and was for that reason not

relevant to his diagnosis.

The evidence that KM might have suffered a frac-

ture at some point before the events at issue was

inadmissible under MRE 402, which prohibits the

2018] P

EOPLE V

ARLANE

529

admission of irrelevant evidence. In the absence of

evidence

connecting the fracture to defendant, it did

not have “any tendency to make the existence of any

fact that is of consequence to the determination of the

action more probable or less probable than it would be

without the evidence.” MRE 401. Indeed, without evi-

dence from which a jury could reasonably ﬁnd that KM

suffered the injury while under defendant’s care and

that the nature of the injury was consistent with

having been inﬂicted by human agency, the evidence

was not even relevant to prove conduct in conformity

with character, which would ordinarily be improper

under MRE 404(b). See People v VanderVliet, 444 Mich

52, 68 & n 20; 508 NW2d 114 (1993) (recognizing that,

under MRE 104(a), the trial court must make a pre-

liminary determination that a jury could reasonably

ﬁnd that the defendant committed the other act by a

preponderance of the evidence before allowing the

admission of the other-acts evidence for a proper pur-

pose). Even to the extent that the evidence might be

admissible because Brown relied on it as a component

of her differential diagnosis of abusive head trauma,

the evidence was likely inadmissible under MRE 403

because it invited speculation by the jury, and the

danger of unfair prejudice outweighed whatever mar-

ginal relevance the evidence might have had for pur-

poses of the diagnosis. Nevertheless, even though this

evidence was likely inadmissible, it does not follow

that defense counsel provided ineffective assistance by

failing to object to its admission.

As already discussed, this Court must afﬁrmatively

entertain the range of possible reasons that defense

counsel might not have objected. See Unger, 278 Mich

App at 242. Defendant must overcome the strong

presumption that trial counsel’s strategy was reason-

able. Id.

530 325 M

ICH

507 [Aug

In this case, the evidence of a tibia fracture was

weak,

and defense counsel elicited expert testimony

that the evidence did not show a fracture or that the

fracture was irrelevant to the diagnosis of the symp-

toms KM exhibited on the day at issue. The one

defense expert who acknowledged the fracture stated

that that type of fracture could have an innocent

origin. Defense counsel also used the inconsistent and

weak evidence of a fracture to challenge the credibility

of the prosecution’s experts. He suggested that the

images that showed there was no fracture were delib-

erately excluded because it did not ﬁt the prosecution’s

theory of the case.

On this record, it appears that defense counsel had a

legitimate strategic reason for not objecting to testi-

mony about the fracture: he had strong evidence to

contradict the evidence, and it allowed him to chal-

lenge the credibility of the prosecution’s experts. De-

fendant has not overcome the presumption that coun-

sel employed sound trial strategy. See id.

IV. OFFENSE VARIABLES 3 AND 7

ANDARD OF REVIEW

Defendant next argues the evidence did not show

that KM’s injuries were life-threatening or permanent,

or that he treated her with sadism, torture, excessive

brutality, or conduct designed to substantially increase

her fear and anxiety. Accordingly, he maintains, the

trial court erred when it assigned 25 points under

Offense Variable (OV) 3 and assigned 50 points under

OV 7.

This Court reviews for clear error a trial court’s

ﬁndings in support of a particular score under the

sentencing guidelines but reviews de novo whether the

2018] P

EOPLE V

ARLANE

531

trial court properly interpreted and applied the sen-

tencing

guidelines to the ﬁndings. People v Hardy, 494

Mich 430, 438; 835 NW2d 340 (2013).

B. ANALYSIS

“When calculating the sentencing guidelines, a court

may consider all record evidence, including the con-

tents of a [presentence investigation report (PSIR)],

plea admissions, and testimony presented at a prelimi-

nary examination.” People v McChester, 310 Mich App

354, 358; 873 NW2d 646 (2015). It may also consider a

victim-impact statement in a PSIR or other statement

or letter submitted to the court for consideration on

sentencing. See, e.g., People v Earl, 297 Mich App 104,

109-110; 822 NW2d 271 (2012). Further, the trial court

may rely on inferences that arise from the record

evidence when making the ﬁndings underlying its

scoring of offense variables. Id. at 109.

A trial court must assess 25 points under OV 3 if it

ﬁnds that “[l]ife threatening or permanent incapacitat-

ing injury occurred to a victim.” MCL 777.33(1)(c). The

trial court found that a score of 25 points was appro-

priate for OV 3. The trial court mentioned the possi-

bility that the leg fracture might be permanently

incapacitating but then indicated that there was not

enough testimony to know whether the leg fracture or

other injuries would amount to incapacitating injuries.

Nevertheless, it found that there were permanently

incapacitating injuries to the brain and that the injury

to the brain was potentially life-threatening.

To the extent that the trial court found that defen-

dant’s actions caused a permanent incapacitating in-

jury to KM, we ﬁnd it clearly erred. See Hardy, 494

Mich at 438. There was no expert testimony about the

long-term effects of the injury to KM’s brain caused by

532 325 M

ICH

507 [Aug

her subdural hematomas. The prosecution’s own ex-

pert,

Brown, testiﬁed that she did not think they would

“ever know if she’s having neurological problems” as a

result of the injuries she sustained on the day at issue

because it “would be very difﬁcult to ﬁgure out”

whether the effects were from her “prenatal stroke” or

from her head injury. She also opined that there would

be no long-term effects from the tibia fracture or from

her retinal hemorrhage. Nevertheless, there was evi-

dence that KM’s injuries were life-threatening.

The record shows that KM had signiﬁcant subdural

bleeding, repeated seizures, and retinal hemorrhages

and that these injuries were severe enough that the

treating physicians at the hospital where she ﬁrst

reported had her airlifted to a larger hospital. Accord-

ingly, the trial court did not clearly err when it found

that KM’s injuries were life-threatening and assigned

25 points under OV 3. See MCL 777.33(1)(c).

The trial court also found that defendant used

excessive brutality in the commission of the offense.

Speciﬁcally, it noted the leg fractures and the extent of

KM’s brain injuries. For that reason, it assigned 50

points under OV 7.

The trial court had to assess 50 points under OV 7 if

it found that a “victim was treated with sadism,

torture, excessive brutality, or similarly egregious con-

duct designed to substantially increase the fear and

anxiety a victim suffered during the offense.” MCL

777.37(1)(a). Because the Legislature provided that

the brutality must be—in relevant part—excessive, the

trial court could only assign 50 points if it found that

the abuse involved in this case exceeded the brutality

that normally encompasses ﬁrst-degree child abuse.

See Hardy, 494 Mich 442-443 (noting that a trial court

may normally consider conduct inherent in the crime,

2018] P

EOPLE V

ARLANE

533

but holding that the Legislature’s use of the phrase

“designed

to substantially increase fear” required a

showing that the actor engaged in conduct to increase

the victim’s fear beyond that normally involved in the

crime); People v Steanhouse (On Remand), 322 Mich

App 233, 240; 911 NW2d 253 (2017) (stating that

excessive brutality requires savagery beyond that

usual for the crime).

The trial court clearly erred to the extent that it

relied on the evidence of a leg fracture in scoring this

variable. Even if the trial court found that KM actually

suffered a leg fracture, as already discussed, there was

no record evidence tending to connect defendant to the

fracture. And the jury speciﬁcally found that the injury

that defendant caused was “abusive head trauma.”

However, the trial court did not clearly err to the

extent that it found that KM was subjected to excessive

brutality in the commission of the ﬁrst-degree child

abuse. To be guilty of the charge, defendant had to

cause serious physical harm to KM, see MCL

750.136b(2), which means “any physical injury to a

child that seriously impairs the child’s health or physi-

cal well-being,” MCL 750.136b(1)(f). Although serious

physical harm necessarily includes subdural hemor-

rhages, a person can commit ﬁrst-degree child abuse

without causing such an injury. And in this case, there

was evidence—albeit disputed—that defendant had to

have violently shaken or thrown KM to cause the

subdural hematomas and other injuries. The severity

of the injuries supported a ﬁnding that KM was treated

with brutality in excess of that which necessarily

accompanies the commission of ﬁrst-degree child

abuse. See MCL 777.37(1)(a).

The trial court did not err when it scored OV 3 and

OV 7.

534 325 M

ICH

507 [Aug

V. CLAIMS SUBMITTED UNDER STANDARD 4

inally, defendant submitted a brief on his own

behalf under Administrative Order No. 2004-6, Stan-

dard 4, 471 Mich c, cii (2004), in which he raised

numerous claims of error. Defendant did not raise any

of the claims before the trial court. Therefore, they

are all unpreserved. See People v Bass, 317 Mich App

241, 272; 893 NW2d 140 (2016). We review unpre-

served claims of error for plain error that affected

defendant’s substantial rights. Carines, 460 Mich at

763. To establish a plain error that warrants relief, a

defendant must show that the error was plain or

obvious and affected the outcome of the lower-court

proceedings. Id. To the extent that defendant also

argues that his trial and appellate counsel provided

ineffective assistance, the trial court did not hold an

evidentiary hearing. Therefore, this Court’s review is

limited to mistakes apparent on the record alone.

Unger, 278 Mich App at 253.

Defendant argues that the trial court erred by

relying on inadmissible evidence to score the sentenc-

ing variables. A sentencing hearing is not a criminal

trial, and many of the constitutional requirements for

criminal trials do not apply to sentencing. For ex-

ample, the rules of evidence do not apply to sentenc-

ing. See People v Uphaus (On Remand), 278 Mich App

174, 183-184; 748 NW2d 899 (2008); MRE 1101(b)(3).

As a result, the trial court could properly rely on any

and all record evidence in sentencing defendant,

including the contents of his presentence investiga-

tion report. See McChester, 310 Mich App at 358.

Defendant also maintains that the trial court erred

by making judicial fact-ﬁndings, and he claims that

he is entitled to a remand for a hearing as described

in People v Lockridge, 498 Mich 358, 395-399; 870

2018] P

EOPLE V

ARLANE

535

NW2d 502 (2015). The trial court sentenced defen-

ant under the now advisory sentencing guidelines.

Id. at 399. For that reason, it could make ﬁndings of

fact not found by the jury without violating his rights

under the Sixth Amendment. See People v Biddles,

316 Mich App 148, 158-161; 896 NW2d 461 (2016).

Further, defendant necessarily does not qualify for a

remand hearing because those procedures apply only

to sentences imposed on or before July 29, 2015. See

Lockridge, 498 Mich at 397.

Defendant next argues that the trial court erred

when it scored OV 10 and OV 13. He claims that there

was no evidence to support either score. With regard to

OV 10, he also states that victim vulnerability is

necessarily subsumed within the offense of child abuse

and, for that reason, should not be scored.

The trial court had to assess 10 points under OV 10

if it found that defendant “exploited a victim’s physi-

cal disability, mental disability, youth or agedness, or

a domestic relationship, or the offender abused his or

her authority status.” MCL 777.40(1)(b). The fact that

the offense of ﬁrst-degree child abuse applies to

children, see MCL 750.136b(1)(a), does not mean that

the trial court may not consider the victim’s youth for

purposes of scoring OV 10; it should unless the

Legislature provided otherwise. See Hardy, 494 Mich

at 441-442. The Legislature did not provide that MCL

777.40(1)(b) does not apply to crimes against children.

Accordingly, the trial court could properly consider

KM’s youthfulness for purposes of scoring OV 10.

There was record evidence permitting an inference

that defendant violently shook or threw KM when she

was just nine weeks of age. That evidence supported a

score of 10 points under MCL 777.40.

536 325 M

ICH

507 [Aug

As for OV 13, the trial court had to assign 25 points

nder that variable if it found that defendant’s of-

fense was part of a “pattern of felonious criminal

activity involving 3 or more crimes against a person.”

MCL 777.43(1)(c). The trial court must count all

crimes that occurred within a ﬁve-year period, which

includes the sentencing offense; further, the court

must count all offenses even if the offense did not

result in a conviction. MCL 777.43(2)(a). As noted in

defendant’s PSIR, he was on bond for felonious as-

sault when he committed the present offense, which,

when counted with the sentencing offense, consti-

tuted two offenses against a person. The trial court

did not make any speciﬁc ﬁndings with regard to a

third felony offense, so it is unclear how it arrived at

the score of 25 points for this OV. On this record, the

trial court clearly erred to the extent that it found

that defendant had committed three felony offenses

against a person within the past ﬁve years. See

Hardy, 494 Mich at 438.

The trial court calculated defendant’s total OV score

to be 110, which placed him in cell VI/C of the sentenc-

ing grid with a minimum sentence range of 135 to 225

months. See MCL 777.62. After subtracting 25 points,

the new score would place him in cell V/C and the new

range would be 126 to 210 months. MCL 777.62. The

trial court sentenced defendant to serve a minimum

sentence of 180 months in prison, which was within the

range provided under cell V/C. Because the error was

not preserved for appellate review, defendant cannot

show that he is entitled to be resentenced unless he does

so through a claim of ineffective assistance of counsel

during sentencing. See People v Francisco, 474 Mich 82,

89 & n 8; 711 NW2d 44 (2006). On appeal, defendant

asserts that his trial counsel was ineffective to the

extent that he failed to raise any of the errors he now

2018] P

EOPLE V

ARLANE

537

asserts on appeal.

Had

defense counsel raised this

issue at sentencing, the trial court would have had to

recalculate the total OV score and sentence within the

appropriate range. Therefore, defendant has estab-

lished that defense counsel’s failure to raise this claim

at sentencing fell below an objective standard of rea-

sonableness and prejudiced his sentencing. See Yost,

278 Mich App at 387. Accordingly, on this record, we

agree that defendant is entitled to resentencing with

zero points assessed under OV 13. See Francisco, 474

Mich at 92.

Defendant also asserts that his sentence was not

proportionate and amounted to cruel and unusual

punishment. Because defendant’s sentence was

within the range provided under the advisory sen-

tencing guidelines, his sentence was “presumptively

proportionate, and a proportionate sentence is not

cruel or unusual.” People v Bowling, 299 Mich App

552, 558; 830 NW2d 800 (2013). To overcome the

presumption, defendant had to show that there was

something unusual about the circumstances of his

case that made the sentence disproportionate. Id. He

has not identiﬁed any unusual circumstances beyond

arguing that his sentence was invalid as a result of

ﬂaws in his trial and sentencing. In any event, defen-

dant can raise this issue before the trial court on

remand for resentencing.

Defendant also suggests that the trial court erred

when it allowed KD to testify by video in violation of

his right to confront the witnesses against him. De-

fense counsel, however, told the trial court that he

Because

we have concluded that defendant’s remaining claims were

without merit, defense and appellate counsel cannot be faulted for

failing to raise those claims. See People v Riley, 468 Mich 135, 142; 659

NW2d 611 (2003).

538 325 M

ICH

507 [Aug

had agreed with the prosecutor to allow certain

itnesses—lay and expert—to testify via electronic

communications. Moreover, defense counsel agreed

that one of the witnesses was the mother of KM and

KD, Chitwood, who had relocated out of state and was

having transportation difﬁculties. So, he had to have

understood that the child witness would also be

testifying by video. By agreeing that the witnesses

could testify by “any means that is available to allow

them to testify,” defense counsel waived any claim of

error with regard to that procedure. See People v

Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). See

also People v Buie, 491 Mich 294, 315; 817 NW2d 33

(2012) (“[I]f the decision constitutes reasonable trial

strategy, which is presumed, the right of confronta-

tion may be waived by defense counsel as long as the

defendant does not object on the record.”).

Defendant also asserts that the trial court erred

when it allowed Brown to testify because she was

biased, her opinion was not premised on sound sci-

ence, and she was improperly allowed to offer an

opinion on defendant’s guilt. As already discussed,

although there is disagreement within the medical

community about the diagnosis of abusive head

trauma, Brown could offer an opinion as to whether

KM’s injuries were inﬂicted by human agency. Fur-

ther, while Brown’s use of the term “abusive” to

describe the head trauma may have been improper,

that error did not warrant relief. Finally, whether

Brown held a personal or professional bias was a

proper subject for cross-examination; it was not

grounds to preclude her from testifying. See People v

Layher, 464 Mich 756, 764; 631 NW2d 281 (2001)

(noting that “evidence of bias is ‘almost always rel-

evant’ ”) (citation omitted).

2018] P

EOPLE V

ARLANE

539

VI. CONCLUSION

e afﬁrm but remand for resentencing consistent

with this opinion. We do not retain jurisdiction.

URRAY

, C.J., and M

ARKEY

and T

UKEL

, JJ., con-

curred.

540 325 M

ICH

507 [Aug

TOWNSHIP OF WILLIAMSTOWN v SANDALWOOD RANCH, LLC

ocket No. 337469. Submitted May 1, 2018, at Lansing. Decided June 19,

2018. Approved for publication August 7, 2018, at 9:15 a.m. Leave

to appeal denied 503 Mich 1032 (2019).

Williamstown Township ﬁled suit in the Ingham Circuit Court

against Sandalwood Ranch, LLC; the owners of Sandalwood

Ranch, Alec and Sarah Kolenda; and property owner Love

Advertising, Inc., seeking to enjoin the use of an accessory

apartment located on the second ﬂoor of a barn on the property.

The township alleged that the apartment violated a local zoning

ordinance and was, therefore, a nuisance per se. A default was

entered against Love Advertising. Sandalwood Ranch and the

Kolendas answered the complaint, alleging that the apartment

was protected under the Right to Farm Act (RTFA), MCL

286.471 et seq. In the alternative, they raised estoppel and

laches as afﬁrmative defenses, claiming that the township was

aware of the apartment when it granted the building permit

more than two decades earlier and should be estopped from

enforcing the ordinance. The township moved for summary

disposition and involuntary dismissal. After an evidentiary

hearing, the court, Rosemarie E. Aquilina, J., granted the

township’s motions for summary disposition and involuntary

dismissal and entered a permanent injunction prohibiting use of

the apartment as an accessory dwelling. Sandalwood Ranch and

the Kolendas appealed.

The Court of Appeals held:

1. To assert an afﬁrmative defense under the RTFA, a party

must prove that the challenged condition or activity constitutes a

farm or farm operation and that the farm or farm operation

conforms to the relevant generally accepted agricultural or man-

agement practices. Under MCL 286.472(a), the RTFA deﬁnes the

term “farm” as the land, plants, animals, buildings, structures,

including ponds used for agricultural or aquacultural activities,

machinery, equipment, and other appurtenances used in the

commercial production of farm products. Although the barn

containing the apartment was protected under the deﬁnition of

“farm,” that conclusion did not mean that every activity occurring

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

541

in the building was shielded from local regulation. Rather, the

question

was whether use of the apartment in connection with

the boarding of horses was a “farm operation,” which the RTFA

deﬁnes in MCL 286.472(b) as the operation and management of a

farm or a condition or activity that occurs at any time as necessary

on the farm in connection with the commercial production,

harvesting, and storage of farm products. In this case, Sandal-

wood Ranch and the Kolendas failed to establish that use of the

apartment by a tenant, who could check on the horses at night,

was necessary to the horse-boarding business. At best, they

showed that having farm assistants living on-site was conve-

nient. Therefore, the trial court properly concluded that use of the

apartment as an accessory dwelling did not qualify as a farm

operation.

2. Under MCR 2.111(F)(3), a party asserting estoppel or

laches must state and provide supporting evidence of the facts

that constitute the defense. When a party merely avers the

supporting facts but does not provide evidence, the defenses fail.

The attorney for Sandalwood Ranch and the Kolendas ﬁled an

afﬁdavit attesting to certain facts and referring to certain docu-

ments but did not provide the supporting documents themselves.

The evidence proffered did not support the allegations that the

township gave permission to build the apartment and that the

township was aware of the apartment for years and did not object

to its use, and there was no evidence of prejudice as the result of

any delay in enforcing the zoning regulation. Therefore, the trial

court properly rejected the estoppel and laches defenses.

Afﬁrmed.

ONING —

IGHT TO

ARM

CT —

ARM

PERATION —

ECESSITY —

CCESSORY

WELLINGS

To assert an afﬁrmative defense under the Right to Farm Act, MCL

286.471 et seq., a party must prove that the challenged condition

or activity constitutes a farm or farm operation and that the farm

or farm operation conforms to the relevant generally accepted

agricultural or management practices; the act deﬁnes the term

“farm operation” in MCL 286.472(b) as the operation and man-

agement of a farm or a condition or activity that occurs at any

time as necessary on the farm in connection with the commercial

production, harvesting, and storage of farm products; use of an

accessory apartment by a tenant, who could check on the horses

at night, is not necessary to the horse-boarding business and,

therefore, does not qualify as a farm operation.

542 325

ICH

541 [Aug

Murphy & Spagnuolo, PC (by Gary

L. Bender) for

Williamstown Township.

Dickinson Wright PLLC (by Dennis C. Kolenda) for

Sandalwood Ranch, LLC, Alec Kolenda, and Sarah

Kolenda.

Before: S

HAPIRO

, P.J., and M. J. K

ELLY

and O’B

RIEN

JJ.

URIAM

. Defendants appeal the trial court’s

order granting plaintiff’s motion to dismiss pursuant to

MCR 2.504(B)(2) and MCR 2.517, granting plaintiff’s

motion for summary disposition pursuant to MCR

2.116(C)(9) and (10), and entering a permanent injunc-

tion pursuant to MCR 3.310. For the reasons set forth

below, we afﬁrm.

I. FACTS AND PROCEDURAL HISTORY

Defendant Sandalwood Ranch, LLC, operates a com-

rcial horse-boarding facility and riding arena in

Williamstown Township (the Township). Defendants

Sarah and Alec Kolenda are the principal owners of

Sandalwood Ranch.

The property contains a house in

hich the Kolendas reside and a barn with 26 stalls and

a riding arena. On a second ﬂoor of the barn, above the

riding arena, there is an apartment that has three

bedrooms, a living room, bathrooms with showers, a

dining room, and a kitchen. Defendants rented the

apartment to other occupants, who provided some care

for the horses.

The

property is owned by defendant Love Advertising, which pur-

chased the property at a sheriff’s sale and thereafter leased the property

to Sandalwood Ranch. Love Advertising was defaulted at the trial court

level for failing to answer the complaint and is not a party to this appeal.

As used in this opinion, the term “defendants” refers only to Sandalwood

Ranch and the Kolendas.

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

543

In December 2014, the Township notiﬁed the Kolen-

das

that the use of the apartment as a second dwelling

violated the Williamstown Township Zoning Ordi-

nance. The letter mistakenly referred to “Section

2.03(7) of the Zoning Ordinance,” but it was later made

clear that the Township was referring to § 18.02(A)(3),

which permits only one farm dwelling per farm.

Later,

the

Township also claimed reliance on § 8.02(AA)(3)(j),

which bars living quarters in an arena building. De-

fendants responded that because the apartment fell

within the protections of the Right to Farm Act (RTFA),

MCL 286.471 et seq., it was not subject to the ordi-

nance. The Township then ﬁled this lawsuit seeking

injunctive relief, claiming that because the apartment

violates the ordinance, it is a nuisance per se. Follow-

ing defendants’ answer, the Township moved for sum-

mary disposition, asserting that the apartment did not

fall within the categories protected by the RTFA.

Noting that there were factual matters relevant to

its ruling, the trial court scheduled an evidentiary

hearing. Defendants presented evidence that the

Kolendas each work full-time jobs off the farm but that

each morning, they spend three hours on the farm

performing the morning tasks of feeding, cleaning, and

turning out the horses. Ms. Kolenda testiﬁed that

when she returns from work around 5:00 or 6:00 p.m.,

she brings the horses in, and that they hire stable

workers to oversee the operation and the horses during

the day while she is at work. She explained that it is

also necessary to conduct a “night check” at about

10:00 p.m. This check does not involve any care of the

horses but is necessary to ensure that the horses are

eating and defecating properly and not in distress.

Section

18.02(A)(16) provides for a limited exception to the one-

dwelling rule, but defendants have not asserted that it is applicable.

544 325 M

ICH

541 [Aug

According to Ms. Kolenda, they rented the apartment

under

an agreement whereby the tenant would per-

form the night checks in exchange for a reduction in

rent. The tenant also agreed to report any unusual

sounds or activities during the night that might re-

quire attention.

As it relates to this case, the two categories pro-

tected by the RTFA are “farms” and “farm operations.”

Section 2(a) of the RTFA, MCL 286.472(a), deﬁnes

“farm” as

the land, plants, animals, buildings, structures, including

ponds

used for agricultural or aquacultural activities,

machinery, equipment, and other appurtenances used in

the commercial production of farm products.

The second category, “farm operation,” is deﬁned in

2(b) of the RTFA, MCL 286.472(b), as

the operation and management of a farm or a condition or

activity that occurs at any time as necessary on a farm in

connection with the commercial production, harvesting,

and storage of farm products . . . . [Emphasis added.]

The trial court quickly dispensed with the ﬁrst issue,

noting

that

the Township has not sought to prevent the

use of the building that comprises the barn and arena

and that, therefore, Subsection (a) is not implicated.

The court concluded that the controlling issue is how

the building is used and whether using part of the

building as a residence was a protected “farm opera-

tion.”

Following the hearing, the court found that the

apartment was “not necessary in the commercial farm-

ing of Sandalwood Ranch.” The court issued an opinion

from the bench stating, in part, as follows:

[T]he statute says what it says. . . . I’m ruling in regard to

necessary

. . . . [S]o one of the things that I did in this case

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

545

is looked at the word necessary in Black’s Law Dictionary,

and

when you read necessary, much of what you found in

the statute the legislature pulled from Black’s Law Dic-

tionary, so I’m going to read a little bit of it to you.

[3]

I’m

not going to belabor the point. You’ll be out of here in a few

minutes, but I’d like to make my record so whichever of

you wishes, you may appeal me.

[“]Necessary. This word must be considered in the

connection in which it is used as it is a word susceptible of

various meanings. It may import absolute physical neces-

sity or inevitability or it may import that which is only

convenience [sic: convenient], useful, appropriate, suit-

able, proper, or conducive to the end sought. It is an

adjective expressing degrees and may express mere con-

venience or that which is indispensable or an absolute

physical necessity. It may mean something which in the

accomplishment of a given object cannot be dispensed with

or it may mean something reasonably useful and proper

and of greater or lesser beneﬁt or convenience and its force

and meaning must be determined with relation to the

particular object sought,[”] and that part that I under-

lined, which I think has particular meaning to me was

where it says, [“]or that which is indispensable or an

absolute physical necessity.[”]

The testimony that I heard here today was very inter-

esting to me because something or someone is useful or

convenient does not mean they are necessary, so I have to

look, I have to ask, is it reasonably needed? Is it neces-

sary? So listening to the testimony, this apartment, how

it’s used doesn’t appear to me that there’s any account-

ability, there’s any real regularity, that there’s a back-up

plan for if a tenant has plans of their own. They certainly

do not account to the lessor. If they go away for the

holidays, if they’re sick, if they go visiting, if they’re out to

dinner, they’re not checking on horses. This is too loose of

an arrangement to say that it must be. It’s a verbal

agreement that does not contain anything about the

horses, so if there’s a dispute, it becomes a he said/she said

The

language quoted is from Black’s Law Dictionary (6th ed).

546 325 M

ICH

541 [Aug

or she said/she said. It may very well be a contract, and we

all

know there are such things as verbal contracts. This

goes beyond a month to month living arrangement. It has

other parts of a contract; the care of a horse. It’s not just

one horse. It’s 20 to 30, maybe more at times.

* * *

The problem here is that this apartment is not a

necessity. You have two women who come in between

certain hours for feeding the animals. That’s a necessity.

You have a speciﬁc arrangement with them. You can call

them independent contractors, but I bet if you called them

to come in at night, you could have your dinner with your

husband, you could have a vacation with your parents, or

Christmas dinner, whatever it is you wanted, as your

back-up plan. This apartment is not a necessity. It’s not

necessary in the commercial farming operation of Sandal-

wood Ranch.

II. ANALYSIS

A. STATUTORY CONSTRUCTION

On appeal, defendants ﬁrst argue that the trial

court

erred

by concluding that MCL 286.472(b) applied

in this case and not MCL 286.472(a). We disagree.

The

trial court’s ultimate decision on a motion for involuntary

dismissal under MCR 2.504(B)(2) is reviewed de novo, and the under-

lying ﬁndings of fact are reviewed for clear error. Samuel D Begola

Servs, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995).

Clear error “occurs when the reviewing court is left with a deﬁnite and

ﬁrm conviction that a mistake has been made.” Douglas v Allstate Ins

Co, 492 Mich 241, 256-257; 821 NW2d 472 (2012) (quotation marks and

citation omitted). Although plaintiff’s motion was brought under both

MCR 2.116(C)(9) and (10), we review the motion under MCR

2.116(C)(10) because it is clear that the trial court considered evidence

outside the pleadings when it ruled on plaintiff’s summary-disposition

motion. See Innovation Ventures v Liquid Mfg, 499 Mich 491, 506-507;

885 NW2d 861 (2016). When reviewing a motion under MCR

2.116(C)(10), this Court “must consider the pleadings, afﬁdavits, depo-

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

547

Defendants do not dispute that Article 18 of the

illiamstown Township Zoning Ordinance permits one

dwelling per farm, which serves as the principal resi-

dence of the owner, operator, or employee(s) of the

farm, nor do they dispute that Article 8 of ordinance

prohibits living quarters in an arena building.

The RTFA was enacted in 1981 to establish circum-

stances under which a farm and its operation may not

be deemed a public or private nuisance. Northville Twp

v Coyne, 170 Mich App 446, 448; 429 NW2d 185 (1988);

see also Scholma v Ottawa Co Rd Comm, 303 Mich App

12, 22; 840 NW2d 186 (2013). The RTFA provides, in

relevant part, that “a farm or farm operation shall not

be found to be a public or private nuisance if the farm

or farm operation alleged to be a nuisance conforms to

generally accepted agricultural and management prac-

tices according to policy determined by the Michigan

commission of agriculture.” MCL 286.473(1). The

RTFA also expressly preempts local laws, including

zoning ordinances, that conﬂict with the RTFA or

applicable generally accepted agricultural and man-

agement practices (GAAMPs). MCL 286.474(6). The

RTFA is an afﬁrmative defense, and to successfully

assert it as a defense, a party must prove two condi-

tions: (1) the challenged condition or activity consti-

tutes a “farm” or “farm operation,” and (2) the farm or

sitions, admissions, and other documentary evidence in favor of the

party

opposing the motion.” Baker v Arbor Drugs, Inc, 215 Mich App

198, 202; 544 NW2d 727 (1996). The motion is properly granted if (1)

there is no genuine issue related to any material fact and (2) the moving

party is entitled to judgment as a matter of law. See Klein v HP Pelzer

Auto Sys, Inc, 306 Mich App 67, 75; 854 NW2d 521 (2014). “A genuine

issue of material fact exists when the record, giving the beneﬁt of

reasonable doubt to the opposing party, leaves open an issue upon which

reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177,

183; 665 NW2d 468 (2003).

548 325

ICH

541 [Aug

farm operation conforms to the relevant GAAMPs.

Lima

Twp v Bateson, 302 Mich App 483, 496; 838

NW2d 898 (2013).

As stated earlier, § 2(a) of the RTFA deﬁnes “farm”

the land, plants, animals, buildings, structures, including

ponds

used for agricultural or aquacultural activities,

machinery, equipment, and other appurtenances used in

the commercial production of farm products.

Defendants contend that the apartment is part of the

arena

building and that any use of the building falls

within the deﬁnition of “farm” under § 2(a). Defen-

dants misconstrue the statute. The building itself is

protected under § 2(a) given its use as a barn and

arena, uses that are plainly agricultural activities.

However, this does not mean that every activity within

the building is necessarily shielded from local regula-

tion. Such a holding would immunize unlawful activity

simply because it occurs in a farm building. Accord-

ingly, like the trial court, we hold that the proper

inquiry is whether the use of the apartment in connec-

tion with the business of boarding horses is a protected

“farm operation” under § 2(b).

Indeed, there is no dispute that the structure itself

is not in violation of the ordinance or that the structure

was within the deﬁnition of “farm” under § 2(a). In

dispute, however, is the use of the structure as a

residence, which violates the Township ordinance;

therefore, to avoid a ﬁnding that the use is a nuisance,

that use must qualify as a farm operation under the

RTFA—that is, it must be “necessary on a farm in

connection with the commercial production, harvest-

ing, and storage of farm products,” MCL 286.472(b).

Accordingly, § 2(b), not § 2(a), is implicated.

Next, defendants argue that even if § 2(b) applies,

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

549

the trial court erred by ﬁnding that the use of the

apartment

as a second dwelling on the farm was not

necessary in connection with the boarding of horses.

We disagree.

With respect to statutory interpretation,

this Court

s required to give effect to the Legislature’s intent.

Van Buren Co Ed Ass’n & Decatur Ed Support Personnel

Ass’n, MEA/NEA v Decatur Pub Sch, 309 MichApp 630,

643; 872 NW2d 710 (2015). The Legislature is presumed

to intend the meaning clearly expressed, and this Court

must give effect to the plain, ordinary, or generally

accepted meaning of the Legislature’s terms. Lorencz v

Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844

(1992). If a statute deﬁnes a word or phrase, that

deﬁnition is controlling. Orthopaedic Assoc of Grand

Rapids, PC v Dep’t of Treasury, 300 Mich App 447, 451;

833 NW2d 395 (2013). “A statutory provision is ambigu-

ous only if it irreconcilably conﬂicts with another provi-

sion, or when it is equally susceptible to more than a

single meaning.” People v Fawaz, 299 Mich App 55, 63;

829 NW2d 259 (2012) (quotation marks and citation

omitted). Only when ambiguity exists does the Court

turn to common canons of construction for aid in con-

struing a statute’s meaning. People v Borchard-

Ruhland, 460 Mich 278, 284-285; 597 NW2d 1 (1999).

There are no published cases interpreting the deﬁ-

nition of the word “necessary” as used in the RTFA.

Defendants ask us to interpret the word broadly to

mean “useful or proper,” while plaintiff asks us to

interpret the word narrowly to mean “absolutely essen-

tial, indispensable, or vital.”

The testimony elicited at the evidentiary hearing

reveals that the use of the apartment as a second

e review questions of statutory interpretation de novo. In re Wayne

Co Treasurer Petition, 478 Mich 1, 6; 732 NW2d 458 (2007).

550 325 M

ICH

541 [Aug

dwelling by a tenant, who can perform the 10:00 p.m.

heck on the horses, is not necessary to defendants’

horse-boarding business. Defendants’ ﬁrst tenant, who

rented the apartment in 2013, performed the nightly

checks and moved out in the summer of 2013. After-

ward, a second tenant stayed in the apartment for a

year or a year and a half but did not perform the nightly

checks on the horses. Ms. Kolenda testiﬁed that they

rented the apartment to this second tenant, without a

discount, for $950 because they needed the income.

After the second tenant moved out, defendants rented

out the apartment to tenants who performed the nightly

checks until April 2016, when they stopped. The Kolen-

das’ testimony establishes that use of the apartment as

a second dwelling by a tenant is a matter of conve-

nience. While we do not accept the plaintiff’s contention

that “necessary” should be read to mean “absolutely

necessary,” it is clear that in this case, the rental of the

apartment was intended to induce a third party to

perform work that defendants had performed in the

past and for which they could hire workers without

providing a rental apartment. The fact that having a

person other than themselves perform the night check

provided the Kolendas with a desirable degree of ﬂex-

ibility and time off does not mean that such a tenant is

“necessary” for farm operations under the RTFA. And

use of the apartment as a source of non-farm income is

clearly not an activity necessary to the farming opera-

tion. Put simply, defendants’ use of the apartment as a

second dwelling on the farm is not the type of activity

that the RTFA was intended or designed to protect.

Accordingly, the trial court properly determined that

the use of the apartment as a second dwelling was not

necessary to the operation and management of the

farm.

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

551

B. AFFIRMATIVE DEFENSES

Next,

defendants argue that the equitable doctrines

of estoppel and laches preclude plaintiff’s case. We hold

that the equitable doctrines are inapplicable to the

present case where defendants failed to provide factual

support for the defenses.

An afﬁrmative defense must state the facts consti-

uting such a defense. MCR 2.111(F)(3). Therefore, a

party must assert its defenses and has the burden of

providing evidence in support. Attorney General ex rel

Dep’t of Environmental Quality v Bulk Petroleum

Corp, 276 Mich App 654, 664; 741 NW2d 857 (2007).

Only after such evidence has been introduced does the

burden shift to the plaintiff to produce “clear and

decisive evidence to negate” the defense. Palenkas v

Beaumont Hosp, 432 Mich 527, 550; 443 NW2d 354

(1989) (opinion by A

RCHER

, J.).

Defendants raised the defenses of estoppel and

laches in their answer to the complaint. With respect

to the defense of estoppel, defendants argued that the

Township “is estopped from asserting that the use of

the subject apartment violates any provision of its

zoning ordinance because the Township, fully aware

that the arena would contain the apartment now

there, granted to the then-owner of the premises

permission to build the arena inclusive of the apart-

ment at issue.” With respect to the defense of laches,

defendants asserted that the Township “has known

for many years, since its construction and before, of

the presence of the apartment at issue, but has not,

for those many years, taking [sic] any action to

restrain the same. Now is much too late.”

his Court reviews de novo the application of equitable doctrines.

Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364

(2005).

552 325

ICH

541 [Aug

In L

yon Charter Twp v Petty, 317 Mich App 482, 490;

896 NW2d 477 (2016), vacated in part on other grounds

500 Mich 1010 (2017), this Court stated:

The doctrine of laches is founded upon long inaction to

assert a right, attended by such intermediate change of

conditions as renders it inequitable to enforce the right.

The application of the doctrine of laches requires the

passage of time combined with a change in condition that

would make it inequitable to enforce the claim against

the defendant. To merit relief under this doctrine, the

complaining party must establish prejudice as a result of

the delay. Proof of prejudice is essential. [Quotation

marks and citations omitted.]

Equitable estoppel arises when:

(1) a party by representation, admissions, or silence,

intentionally or negligently induces another party to

believe facts; (2) the other party justiﬁably relies and

acts on this belief; and (3) the other party will be

prejudiced if the ﬁrst party is permitted to deny the

existence of the facts. [Howard Twp Bd of Trustees v

Waldo, 168 Mich App 565, 575; 425 NW2d 180 (1988)

(quotation marks and citation omitted).]

“The general rule is that zoning authorities will not be

estopped

from

enforcing their ordinance absent excep-

tional circumstances.” Id. “Just as with a laches de-

fense, prejudice is a mandatory element.” Lyon Charter

Twp, 317 Mich App at 491.

In support of their allegations, defendants relied on

an afﬁdavit from their counsel and two handwritten

sketches attached to the afﬁdavit. Defendants’ counsel

averred that he had received documents “pertaining to

the parcel of land on which sits the structure at issue

in this case” pursuant to a Freedom of Information Act

(FOIA) request, that he had reviewed the materials,

and that he was “competent to authenticate the docu-

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

553

ments” attached to the afﬁdavit. He averred in perti-

nent

part as follows:

4. Also included among the documents provided in

response to the FOIA request were multiple documents

showing the title history of the property at issue, which

history is summarized at the beginning of the brief sub-

mitted by Sandalwood Ranch, LLC, in opposition to the

Township’s motion for summary disposition.

5. Two handwritten sketches from the Township’s ﬁle

appear to be part of an application for a permit to build on

the premises at issue a barn with an arena. Notations on

it indicate that the permit application was from late

1992-1993. The sketches, which appear to have been

drafted in the same hand as dated the permit application,

make reference to an “upper apartment” with dimensions

of 36 x 24 feet and show the placement in the proposed

arena of a “24 x 36 apt on 2nd ﬂr.” Said sketches are

attached hereto as Exhibits B and C.

6. Nothing in the documents provided by the Township

indicates that the apartment was excepted from the permit

granted by the Township, nor does anything indicate that,

until the Township threatened Sandalwood Ranch with a

civil infraction ticket in the Fall of 2014, any township

ofﬁcial had expressed any concerns within the township

government about the apartment known to be in the

arena/barn or that anyone from the Township ever commu-

nicated to Sandalwood Ranch, its principals, the owner of

the land and structures at issue, or any of that owner’s

predecessors that the apartment in the arena was of

questionable validity under the Township’s zoning ordi-

nance.

Although defense counsel averred that he had re-

viewed

documents

related to the title history of the

property, defendants did not produce the documents.

Counsel did produce the handwritten sketches, but he

merely provided his interpretation of what the

sketches “appeared to be.” Defendants did not produce

evidence that would support the allegation that plain-

554 325 M

ICH

541 [Aug

tiff “was fully aware that the arena would contain the

apartment

now there, granted to the then owner of the

premises permission to build the arena inclusive of the

apartment at issue,” nor did they produce evidence to

support the allegation that the Township “has known

for many years, since its construction and before, of the

presence of the apartment at issue, but has not, for

those many years, taking [sic] any action to restrain

the same.” Further, defendants made no allegation

regarding prejudice as a result of any delay.

Therefore, defendants failed to meet the burden of

producing evidence to support the afﬁrmative defenses

of estoppel and laches.

Afﬁrmed. No costs may be taxed pursuant to MCR

7.319.

HAPIRO

, P.J., and M. J. K

ELLY

and O’B

RIEN

, JJ.,

concurred.

2018] W

ILLIAMSTOWN

WP V

ANDALWOOD

ANCH

555

PEOPLE v BARRITT

ocket No. 341984. Submitted July 10, 2018, at Detroit. Decided

August 9, 2018, at 9:00 a.m. Leave to appeal denied 504 Mich

888 (2019).

John E. Barritt was charged with multiple offenses in the Genesee

Circuit Court in connection with the death of his girlfriend, Amy

Wienski. In response to a report that Wienski was missing, the Mt.

Morris Township Police Department executed a search warrant at

the house where she lived with defendant. During the search,

defendant arrived at the house in a car driven by Ron Greenway.

After initially questioning defendant at the house about Wienski,

Calhoun County Sheriff’s Department Deputy Brian Gandy re-

quested that defendant go to the police station in Homer for further

questioning, rather than continuing the discussions by the house.

Deputy Kevin Mahan drove defendant in his police car to the police

station. Defendant’s hands were unrestrained, but he sat in the

back of the police car; the deputies did not tell defendant that he

could drive to the department’s ofﬁce with Greenway, even though

Greenway also drove to the department’s ofﬁce for questioning at

the deputies’ request. Police ofﬁcers escorted defendant from the

back of Mahan’s police car to the interview room. Gandy and

Detective Steve Hinkley interviewed defendant for 90 minutes,

and at the end of the interview, defendant was handcuffed and

transported to the Mt. Morris Township Police Department. De-

fendant moved to suppress the statement he made during the

interview, arguing that he was in custody at the time he made the

statement and that the statement was taken without the provision

of the warnings required by Miranda v Arizona, 384 US 436 (1966).

The court, Geoffrey L. Neithercut, J., granted defendant’s motion

and suppressed the statements, concluding that because defen-

dant’s interrogation occurred at a police station, he was in custody

for purposes of Miranda. The Court of Appeals granted the

prosecution’s application for leave to appeal, and the Court,

HAPIRO

and G

LEICHER

, JJ. (K. F. K

ELLY

, P.J., dissenting), afﬁrmed,

concluding that although the trial court had applied incorrect legal

standards, defendant’s statements were correctly suppressed be-

cause they were taken while he was in custody but without the

provision of Miranda warnings. 318 MichApp 662 (2017). In lieu of

granting the prosecution’s application for leave to appeal, the

556 325

ICH

556 [Aug

Supreme Court vacated that part of the Court of Appeals’ holding

hat had concluded that defendant was subjected to custodial

interrogation, and the Supreme Court remanded the case to the

trial court for application of the correct legal standards. 501 Mich

872 (2017). On remand, the trial court applied those legal stan-

dards and again granted defendant’s motion to exclude his state-

ments, concluding that defendant was in custody for Miranda

purposes when he made the statements. The prosecution appealed

by leave granted.

The Court of Appeals held:

1. The Fifth Amendment of the United States Constitution

and Article 1, § 17 of the 1963 Michigan Constitution guarantee

all persons the privilege against self-incrimination. To protect a

defendant’s privilege against self-incrimination, the police must

provide Miranda warnings to a defendant before he or she is

taken into custody for interrogation. To determine whether a

person was in custody for purposes of Miranda analysis, a court

must consider whether, in light of the objective circumstances of

the interrogation, a reasonable person would have felt he or she

was not at liberty to terminate the interrogation and leave. To

that end, a court must examine the totality of the circumstances

surrounding the interrogation, including the location of the

questioning, the duration of the questioning, statements made

during the interview, the presence or absence of physical re-

straints during the questioning, and the release of the inter-

viewee at the end of the questioning. With regard to location,

while a police station constitutes a police-dominated atmosphere,

Miranda warnings are not required simply because a person is

questioned in such a location or because the questioned person is

a suspect. Instead, Miranda warnings are only required when

there has been such a restriction on a person’s freedom as to

render him or her in custody. Not all restraints on an individual’s

freedom of movement are tantamount to custody for purposes of

deciding whether a person has been subjected to custodial inter-

rogation under Miranda. Accordingly, a reviewing court must

determine whether the relevant environment presents the same

inherently coercive pressures as the type of stationhouse ques-

tioning at issue in Miranda.

2. The trial court did not clearly err when it found that the

location of the questioning weighed in favor of defendant being in

custody when he was questioned because defendant was asked to

go to the station for further questioning, defendant was driven to

the station in the back of a police car after not being given the

option of driving there with Greenway, defendant was escorted

2018] P

EOPLE V

ARRITT

557

into the station by armed police ofﬁcers, and he was questioned in

small ofﬁce at the station in an increasingly hostile atmosphere.

The trial court did not clearly err by concluding that the duration

of the 90-minute interview was a neutral factor when determin-

ing whether defendant was in custody when he was questioned.

With regard to statements made during the interview, the trial

court did not clearly err when it determined that the accusatory

nature of the questioning and the fact that defendant was not

informed he was not under arrest until after most of the interview

was completed weighed in favor of a ﬁnding of custody. Defen-

dant’s statements also made it clear that he did not think that he

was free to leave during the interview. With regard to the

physical-restraint factor, while defendant was not handcuffed for

almost the entire interview, he was driven to the station in a

marked police car, escorted into the station by armed police

ofﬁcers, and interviewed by armed detectives, all of which consti-

tuted restraints on defendant’s freedom of movement. In addi-

tion, the fact that defendant was not released at the end of the

interview weighed in favor of a ﬁnding that he was in custody

during the interview. Given the totality of the circumstances, a

reasonable person in defendant’s position would not have felt free

to terminate the interview and leave. Because the environment in

which defendant was interviewed also presented the same coer-

cive pressure as the type of stationhouse questioning in Miranda,

defendant was in custody during the interview and his Fifth

Amendment rights were violated when he was interviewed with-

out ﬁrst being advised of his Miranda rights.

Afﬁrmed.

OONSTRA

, J., dissenting, disagreed with the majority’s conclu-

sion that defendant was in custody during the interview. The trial

court’s description of the nature and tone of the interview was

ﬂawed because it failed to review the video recording of the

interview and instead relied only on the transcript. The conver-

sation between defendant and the police ofﬁcers was casual and

friendly for over half the interview. Defendant’s references to a

need for counsel were equivocal, and defendant did not request

that the interview end. While the trial court properly concluded

that the lack of handcuffs and unlocked doors in the interview

room weighed toward defendant not being in custody, the court

erred by relying on other factors—e.g., that defendant was driven

in a police car to the station, that he was escorted by armed police

ofﬁcers into the station, that he was always in the presence of at

least one police ofﬁcer during the interview, that the interview

became heated, and that a police dog was used as a coercive

558 325

ICH

556 [Aug

tactic—to conclude that the purpose of the ofﬁcers’ actions was to

discourage

defendant’s movement and force him to talk. The mere

fact that defendant was not released after the initial questioning

did not override the noncustodial nature of the initial question-

ing. Accordingly, in light of all the objective circumstances sur-

rounding defendant’s interrogation, a reasonable person would

not have felt that he or she was not at liberty to terminate the

interrogation and leave, and the environment surrounding the

interrogation was not inherently coercive. Therefore, defendant

was not in custody when he was interviewed. Judge B

OONSTRA

would have reversed the trial court’s order granting defendant’s

motion to suppress.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, David S. Leyton, Prosecuting Attor-

ney, and Michael A. Tesner, Assistant Prosecuting At-

torney, for the people.

Jeffrey R. Skinner and Neil C. Szabo for defendant.

Before: B

ORRELLO

, P.J., and M. J. K

ELLY

and

OONSTRA

, JJ.

ORRELLO

, P.J. The prosecution appeals by leave

granted

the trial court’s opinion and order, following

remand from the Michigan Supreme Court, which

granted defendant’s motion to suppress statements

made during a custodial interrogation without being

advised of his Miranda

rights. For the reasons set

forth

in this opinion, we afﬁrm.

I. BACKGROUND

This case arises out of the death of Amy Wienski,

defendant’s

alleged girlfriend. This matter was ini-

tially before this Court when the prosecution ﬁled an

People

v Barritt, unpublished order of the Court of Appeals, entered

February 22, 2018 (Docket No. 341984).

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

2018] P

EOPLE V

ARRITT

559

PINION OF THE

OURT

interlocutory appeal of the trial court’s decision to

grant

defendant’s motion to suppress his statements,

and this Court afﬁrmed on different grounds. People v

Barritt, 318 Mich App 662, 671; 899 NW2d 437 (2017),

vacated in part 501 Mich 872 (2017). The prosecution

ﬁled an application for leave to appeal this Court’s

prior decision in the Michigan Supreme Court, and in

lieu of granting leave to appeal, the Michigan Supreme

Court vacated the holding of this Court that defendant

was “in custody.” People v Barritt, 501 Mich 872 (2017).

The Michigan Supreme Court determined that this

Court had properly concluded that when deciding

whether defendant was in custody, the trial court had

applied the wrong legal standards. Our Supreme Court

remanded the matter to the trial court for application

of the correct standards, directing the trial court

to determine, in light of all of the objective circumstances

surrounding

the interrogation: (1) whether a reasonable

person would have felt that he was not at liberty to

terminate the interrogation and leave; and (2) whether

the environment presented the same inherently coercive

pressures as the type of station house questioning in-

volved in [Miranda]. See Howes v Fields, 565 US 499, 509;

132 S Ct 1181; 182 L Ed 2d 17 (2012); Yarborough v

Alvarado, 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d

938 (2004); People v Elliott, 494 Mich 292, 308[; 833 NW2d

284] (2013). [Barritt, 501 Mich at 872.]

On remand, the trial court granted defendant’s

motion

exclude his statements and suppressed the

evidence, ﬁnding that defendant was in custody for

purposes of Miranda under the standards set forth in

the Michigan Supreme Court order. This interlocutory

appeal by the prosecution followed.

On appeal, the prosecution argues that the trial

court erred when it granted defendant’s motion to

suppress because defendant was not in custody for

560 325 M

ICH

556 [Aug

PINION OF THE

OURT

purposes of Miranda when

he made the statements

and that, therefore, what the prosecution describes as

his voluntary, uncoerced, and noncustodial statements

are admissible at trial. The prosecution argues that

defendant was not in custody for Miranda purposes

because he voluntarily agreed to accompany the police

in a marked vehicle to the station, he voluntarily

provided information about the victim, the room where

defendant was interviewed was unlocked with people

coming and going, the interview only lasted 90 min-

utes, and defendant continued to speak after he was

told he could stop the interview.

II. ANALYSIS

“ ‘The ultimate question whether a person was “in

custody”

for purposes of Miranda warnings is a mixed

question of fact and law, which must be answered

independently by the reviewing court after review de

novo of the record.’ ” People v Coomer, 245 Mich App

206, 219; 627 NW2d 612 (2001) (citations omitted).

This Court reviews for clear error the trial court’s

factual ﬁndings concerning the circumstances sur-

rounding statements to the police. Id. “A ﬁnding is

clearly erroneous if, after reviewing the entire record,

an appellate court is left with a deﬁnite and ﬁrm

conviction that a mistake has been made.” Id.

Every person has a constitutional right against

self-incrimination. US Const, Am V; Const 1963, art 1,

§ 17. To effectuate this right, the police must warn a

defendant of his or her constitutional rights if the

defendant is taken into custody for interrogation.

People v Cortez (On Remand), 299 Mich App 679, 691;

832 NW2d 1 (2013) (opinion by M

ETER

, J.). Statements

made by a defendant to the police during a custodial

interrogation are not admissible unless the defendant

2018] P

EOPLE V

ARRITT

561

PINION OF THE

OURT

voluntarily, knowingly, and intelligently waives the

constitutional

right against self-incrimination. People

v Tierney, 266 Mich App 687, 707; 703 NW2d 204

(2005).

It is undisputed that defendant was not advised of

his Miranda rights when he was questioned by the

detectives. The issue now before this Court is whether

defendant was in custody for Miranda purposes and

whether the statements he made to police are, there-

fore, inadmissible given the lack of Miranda warnings.

A. FREEDOM OF MOVEMENT

The Supreme Court has stated that “custody” is a

term

of art that speciﬁes circumstances that are

thought generally to present a serious danger of coer-

cion. In determining whether a person is in custody in

this sense, the initial step is to ascertain whether, in

light of “the objective circumstances of the interroga-

tion,” Stansbury v California, 511 US 318, 323, 325;

114 S Ct 1526; 128 L Ed 2d 293 (1994), a “reasonable

person [would] have felt he or she was not at liberty to

terminate the interrogation and leave,” Thompson v

Keohane, 516 US 99, 112; 116 S Ct 457; 133 L Ed 2d

383 (1995); Fields, 565 US at 509. Further, we have

been instructed by the Supreme Court that in order to

determine how a suspect would have “gauge[d]” his or

her “freedom of movement,” courts must examine “all

of the circumstances surrounding the interroga-

tion . . . .” Stansbury, 511 US at 322, 325. The relevant

circumstances are as follows: (1) the location of the

questioning, see Maryland v Shatzer, 559 US 98,

105-107; 130 S Ct 1213; 175 L Ed 2d 1045 (2010); (2)

the duration of the questioning, Berkemer v McCarty,

468 US 420, 437-438; 104 S Ct 3138; 82 L Ed 2d 317

(1984); (3) statements made during the interview,

562 325 M

ICH

556 [Aug

PINION OF THE

OURT

Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50

Ed 2d 714 (1977); Yarborough v Alvarado, 541 US

652, 665; 124 S Ct 2140; 158 L Ed 2d 938 (2004);

Stansbury, 511 US at 325; (4) the presence or absence

of physical restraints during the questioning, New York

v Quarles, 467 US 649, 655; 104 S Ct 2626; 81 L Ed 2d

550 (1984); and (5) the release of the interviewee at the

end of the questioning, California v Beheler, 463 US

1121, 1122-1123; 103 S Ct 3517; 77 L Ed 2d 1275 (1983)

(as quoted in Fields, 565 US at 509). These cases stress

that no one circumstance is controlling; rather, a

reviewing Court must consider the totality of the cir-

cumstances when deciding whether an individual was

subjected to custodial interrogation under Miranda.

Fields, 565 US at 517. Hence, we begin our analysis by

going through each of the circumstances set forth in

Supreme Court caselaw to determine whether defen-

dant was subjected to custodial interrogation. Fields,

565 US at 509.

1. LOCATION

In this case, the trial court found, and the parties

agreed,

that

defendant was questioned at a police

station. From the descriptions provided by the ques-

tioning ofﬁcers and from what can be gleaned from the

taped interview, defendant was questioned in a small

police ofﬁce located within a larger governmental

building in Homer, MI. The trial court described it as a

“satellite ofﬁce of the Calhoun County Sheriff’s Depart-

ment . . . .” A police station is a “police-dominated at-

mosphere” as contemplated by Miranda. Miranda, 384

US at 445. However, in Mathiason, 429 US at 492,

494-496, the Supreme Court reversed the Oregon Su-

preme Court’s conclusion that because defendant’s

questioning had taken place in a police station, the

2018] P

EOPLE V

ARRITT

563

PINION OF THE

OURT

interrogation took place in a coercive environment and

that

defendant was therefore subjected to custodial

interrogation. In Mathiason, the defendant was a sus-

pect in a burglary. Id. At 493. An ofﬁcer attempted to

make contact with the defendant, eventually leaving

his card at the defendant’s apartment and requesting

that the defendant call him, which the defendant did.

Id. When the defendant called, the ofﬁcer asked where

the defendant would like to meet, and after the defen-

dant offered no preference, the ofﬁcer suggested the

state patrol ofﬁce. Id. The defendant met there with

the ofﬁcer who, on arrival, told the defendant that he

was not under arrest but that he should be truthful. Id.

The defendant confessed after being (wrongfully) told

by the ofﬁcer that his ﬁngerprints were found at the

scene. Id. In reversing the Oregon Supreme Court’s

conclusion that the defendant was subjected to custo-

dial interrogation, the United States Supreme Court

held:

In the present case, however, there is no indication that

the

questioning

took place in a context where respondent’s

freedom to depart was restricted in any way. He came

voluntarily to the police station, where he was immedi-

ately informed that he was not under arrest. At the close

of a

-hour interview respondent did in fact leave the

police station without hindrance. It is clear from these

facts that Mathiason was not in custody “or otherwise

deprived of his freedom of action in any signiﬁcant way.”

Such a noncustodial situation is not converted to one in

which Miranda applies simply because a reviewing court

concludes that, even in the absence of any formal arrest or

restraint on freedom of movement, the questioning took

place in a “coercive environment.” Any interview of one

suspected of a crime by a police ofﬁcer will have coercive

aspects to it, simply by virtue of the fact that the police

ofﬁcer is part of a law enforcement system which may

ultimately cause the suspect to be charged with a crime.

564 325

ICH

556 [Aug

PINION OF THE

OURT

But police ofﬁcers are not required to administer Miranda

warnings

to everyone whom they question. Nor is the

requirement of warnings to be imposed simply because the

questioning takes place in the station house, or because

the questioned person is one whom the police suspect.

Miranda warnings are required only where there has been

such a restriction on a person’s freedom as to render him

“in custody.” It was that sort of coercive environment to

which Miranda by its terms was made applicable, and to

which it is limited. [Id. at 495.]

In this case, the trial court acknowledged that in

light

of Mathiason, the fact that interrogation occurred

at a police station was not dispositive. However, the

court also stated:

Still, the location of the questioning in the instant

ase weighs in favor of a ﬁnding that Defendant was in

custody. Police ofﬁcers have an inherent authority that

generally elicits respect from the public. The average

person that is summoned to a police station to talk with

a detective would not feel comfortable leaving the station

until the discussion was terminated by that detective. In

this case, Defendant was taken to the station house in

the back of a police car. He was not allowed to travel to

the station with [Ron] Greenway, the person Defendant

had ridden with to Wienski’s house despite the fact that

Greenway too was driving to the station. Defendant was

removed from the car and escorted into the station by

armed ofﬁcers. He was then placed in a room for ques-

tioning with only police present and a police dog in close

proximity. A reasonable person in that situation would

not have felt comfortable leaving the station without

clear permission from an ofﬁcer, permission that Defen-

dant never received.

This Court has recognized that “[a] person who is

‘cut

off

from his normal life and companions,’ and

abruptly transported from the street into a ‘police-

dominated atmosphere,’ may feel coerced into answer-

ing questions.” Cortez, 299 Mich App at 695 (quotation

2018] P

EOPLE V

ARRITT

565

PINION OF THE

OURT

marks and citations omitted). In Y

arborough, 541 US

at 664, the United States Supreme Court concluded

that the state court had reasonably determined that

the defendant was not in custody for Miranda purposes

because the defendant was not transported to the

stationhouse by police.

Contrary to the facts set forth in Yarborough, here,

defendant was transported to the police station by

armed police ofﬁcers, a fact on which the trial court

placed a great deal of emphasis. The prosecution

argues that this factor does not weigh in favor of

ﬁnding that defendant was in custody because defen-

dant agreed to speak with the police ofﬁcers at a

location different from Wienski’s house. According to

the prosecution, defendant arrived at Wienski’s house

as the passenger in a vehicle driven by another indi-

vidual, identiﬁed as Ron.

Defendant asserted that he

met

Ron the day before and that Ron drove defendant

home in exchange for a generator. According to the

prosecution, Detective Bryan Gandy asked defendant

if he would go to the police station to talk in a “better

area” than on the lawn at Wienski’s home, and defen-

dant agreed. Deputy Kevin Mahan then “had defen-

dant take a seat” in the back of his patrol vehicle to

transport defendant to the satellite ofﬁce. Mahan did

not force defendant into the car or place defendant

under arrest. Defendant was not handcuffed during

the ride. However, as noted by the trial court, defen-

dant was not offered the opportunity to ride with Ron

to the police station. According to the prosecution, the

detectives offered defendant a ride “out of conve-

nience,” and defendant accepted.

Although

not speciﬁcally stated, it appears that Ron is referred to in

the trial court’s opinion by his last name, Greenway.

566 325 M

ICH

556 [Aug

PINION OF THE

OURT

The prosecution further argues that despite ques-

ioning occurring at the police station, the doors to the

ofﬁce where the questioning took place remained

unlocked, which also weighs against a ﬁnding of

custody. Gandy testiﬁed that the ofﬁce doors locked

from the outside, “like a school,” so an individual

could exit the ofﬁce freely but that entrance into the

ofﬁce was restricted. During the interrogation video, a

knock is heard on the door behind defendant, and one

of the detectives stood up, opened the door, and was

seemingly handed the drink that defendant was of-

fered. Gandy did not lock the doors once defendant

was inside the ofﬁce. Other people entered and exited

the room freely. Defendant is seen in the video watch-

ing people enter and exit through the door located

behind him. There are sounds of doors being opened

and closed in the background of the interrogation

video. There were two doors in the ofﬁce that exited

the room and another door to an attached ofﬁce.

Gandy testiﬁed that defendant sat next to a door that

exited the ofﬁce. A door is visible in the interrogation

video behind defendant and to his right, but the

actual door knob is not within the camera’s frame for

the entirety of the video. At one point, Gandy said

that he needed to step out for a minute. In the

interrogation video, a uniformed individual left

through the door behind defendant, but only the back

of his body from the shoulders down is visible. Pre-

sumably, this was Gandy. From the background sound

of the video, it did not sound like Gandy had to use a

key or badge to open the door behind defendant.

Gandy returned to the interrogation room, and then

Detective Steve Hinkley stepped out.

Although there is evidence that the ofﬁce doors

were unlocked, this does not outweigh the fact that

questioning occurred in an ofﬁce at the police station,

2018] P

EOPLE V

ARRITT

567

PINION OF THE

OURT

in the constant presence of armed police ofﬁcers, or

hat defendant was escorted into the room by armed

police ofﬁcers after being transported in a marked

police car. It is unlikely that a reasonable person

would believe that they were free to terminate the

interview and leave after being transported to the

station in a marked vehicle, escorted into the building

by armed police ofﬁcers, and questioned by armed

police ofﬁcers who used an increasingly hostile tone.

Additionally, the fact that the police knew that defen-

dant did not have his own vehicle and insisted that he

be driven in a police vehicle supports the trial court’s

ﬁnding that the police took defendant into custody off

his front lawn.

We recognize that the facts presented in this case

are certainly subject to interpretation. However, the

prosecution seems to place too great an emphasis on

the subjective intent of the ofﬁcers and defendant in

asking us to ﬁnd that the trial court clearly erred by

ﬁnding that the evidence favored a ﬁnding that defen-

dant was in custody relative to the issue of where the

questioning took place. However, caselaw dictates that

“the initial determination of custody depends on the

objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating

ofﬁcers or the person being questioned.” Stansbury,

511 US at 323. This Court has made similar legal

pronouncements. In People v Zahn, 234 Mich App 438,

449; 594 NW2d 120 (1999), we wrote, “The determina-

tion of custody depends on the objective circumstances

of the interrogation rather than the subjective views

harbored by either the interrogating ofﬁcers or the

person being questioned.” See also, Coomer, 245 Mich

App at 219-220. Applying that standard, we cannot

conclude that the trial court clearly erred when it

found that the totality of the factors regarding the

568 325 M

ICH

556 [Aug

PINION OF THE

OURT

location of the questioning weighed in favor of a ﬁnding

that

defendant was in custody.

2. DURATION

Gandy testiﬁed that the interview lasted approxi-

mately 90 minutes, the same amount of time as the

interrogation video. The trial court determined that

this was a neutral factor in making a custody determi-

nation, a ﬁnding in which we concur. The Yarborough

Court determined that a two-hour interview weighed

in favor of a ﬁnding of custody. Yarborough, 541 US at

665. Conversely, in Mathiason, the United States

Supreme Court determined that a half-hour interview

did not constitute a custodial interrogation. Mathiason,

429 US at 495. In People v Mendez, 225 Mich App 381,

383; 571 NW2d 528 (1997), the defendant was also

interviewed for 90 minutes. This Court concluded that

the defendant was not in custody for Miranda purposes,

likening the facts of the case to Mathiason because the

defendant voluntarily went to the police station, was

informed that he was not under arrest, and was

permitted to leave at the end of the interview. Id.

Lastly, in Fields, the defendant was questioned for

ﬁve to seven hours; the Supreme Court—while stat-

ing that the interrogation length lent some support to

the defendant’s argument that the interrogation was

custodial—nonetheless ultimately concluded that the

reaching this conclusion, we reject the trial court’s assertion that

“[t]he average person that is summoned to a police station to talk with

a detective would not feel comfortable leaving the station until the

discussion was terminated by that detective.” In this case, the trial court

seems to infer that questioning a suspect in a police station, by itself,

can provide a legal basis for a ﬁnding that a person is in custody. That

conclusion runs afoul of Mathiason, and we therefore reject that portion

of the trial court’s analysis. Mathiason, 429 US at 494.

2018] P

EOPLE V

ARRITT

569

PINION OF THE

OURT

interrogation length was not controlling as to whether

the

defendant was subjected to custodial interrogation.

Fields, 565 US at 515.

3. STATEMENTS

In Yarborough, 541 US at 665, the Supreme Court

held that failure to tell a suspect that he or she is free

to leave is one factor that can contribute to a ﬁnding

that a suspect was in custody. The Court stated,

“Unlike the ofﬁcer in Mathiason, [the ofﬁcer] did not

tell [defendant] that he was free to leave . . . . These

facts weigh in favor of the view that [defendant] was in

custody.” Id. This factor was also acknowledged by

Justice M

ARKMAN

when he wrote for the majority in

Elliott, 494 Mich at 309; however, he concluded that

the lack of a similar statement was not pertinent to the

defendant because he was already incarcerated. Un-

like the facts presented to our Supreme Court in

Elliott, here, defendant was taken from his front lawn

to the back of a patrol car and ultimately to a police

station. Hence we ﬁnd the issue of whether defendant

was told he was free to leave relevant in our determi-

nation of whether defendant was subjected to custodial

interrogation.

Gandy did not recall telling defendant that he was

free to leave. He believed that he told defendant that

they could ﬁnish the interview at any time. However, it

was not until the end of the interview and after

defendant stated that he needed a lawyer that Hinkley

told defendant that he was not under arrest and could

ﬁnish any time. This weighs in favor of a ﬁnding of

custody. Id.

In addition to ﬁnding that the police did not initially

tell defendant that he was not under arrest or that he

could leave at any time, the trial court also found that

570 325 M

ICH

556 [Aug

PINION OF THE

OURT

the increasingly accusatory nature of the interview

weighed

in favor of a ﬁnding of custody. See Tankleff v

Senkowski, 135 F3d 235, 244 (CA 2, 1998) (holding

that the ofﬁcers’ increasingly hostile questioning

transformed an interrogation into custodial interroga-

tion before the defendant was advised of his Miranda

rights). And, as we noted earlier in this opinion, “the

initial determination of custody depends on the objec-

tive circumstances of the interrogation, not on the

subjective views harbored by either the interrogating

ofﬁcers or the person being questioned.” Stansbury,

511 US at 323. However, “an ofﬁcer’s views concerning

the nature of an interrogation, or beliefs concerning

the potential culpability of the individual being ques-

tioned, may be one among many factors that bear upon

the assessment whether that individual was in cus-

tody,” if the ofﬁcer’s views were “somehow manifested

to the individual under interrogation and would have

affected how a reasonable person in that position

would perceive his or her freedom to leave.” Id. at 325.

Gandy described the interview as relaxed, and cer-

tainly in the beginning phases of the interview that

appears to be an accurate description. Again, however,

we note that while the subjective understandings of

the police and suspect can be relevant, they are not

controlling. Later in the interview, Gandy testiﬁed that

there was a point when he started to feel like defen-

dant was not telling the detectives everything that

defendant knew. Hinkley asked defendant if he told

them everything that he could think of, and defendant

said that he did and that “[i]f there’s anything else you

can think of, please ask.” Gandy remembered Hinkley

saying “no bull****” to defendant, but asserted that

this was not confrontational. The change in tone of the

detectives occurred about 53 minutes into the inter-

view. At that point, Hinkley told defendant that he

2018] P

EOPLE V

ARRITT

571

PINION OF THE

OURT

thought that defendant loved Wienski, but he did not

want

defendant to “bull****,” and that he thought

something else had happened. Although Hinkley did

not raise his voice, he became increasingly more ag-

gressive toward defendant:

Detective Hinkley:

So, here’s the deal. Whatever petty

bull****, and it’s probably petty bull****, we don’t care,

but you got to be up front with me, man.

* * *

Detective Hinkley: And let me be honest with ya. You

know that I know a lot more than what I’m saying. Okay?

I do. All right? I ain’t gonna bull**** ya. . . . I don’t think

you did anything to her. But, dude, there’s some things

that you’re not telling me or there’s some things you’re not

telling me accurate. All I ask of you is be straight up with

me. If it’s petty bull****, I don’t give a f*** about it. It can

go in the wind. It can go in the wind. I don’t give a s***.

Hinkley asserted that the police knew that defendant

had

been

driving Wienski’s car over the past few days,

but defendant denied it. Hinkley said that he did not

believe defendant and that the detectives had “been

around the block 100 times.” Hinkley also said that

defendant had “been around the block” because he had

been “in the system,” referring to defendant’s criminal

history.

The detectives continued to assert that defen-

dant

was being untruthful, even though he said he was

“being straight up.”

[Defendant]:

I don’t have anything on my chest. That’s

just it. That’s why I’m saying how can I help you? It’s like

you’re trying to tell me I’m doing something or did

something or know something. I don’t want to do nothin’

but try to help to get her back.

Defendant

told the detectives that he had been to court that day on

a charge of possession of stolen property.

572 325 M

ICH

556 [Aug

PINION OF THE

OURT

The detectives continued to disbelieve defendant

and

asked if defendant would pass a lie-detector test.

Defendant said that he would pass but that he would

not take one because the detectives were “pointing

ﬁngers” at him. After approximately 1 hour and 14

minutes of questioning, defendant said, “Well, I think I

need a lawyer now.” Hinkley replied that defendant

was not under arrest.

[Defendant]:

So, if that’s the case, we can ﬁnish then?

Detective Hinkley: We can ﬁnish any time. But, what

I’m saying to you is, here’s the thing, you can ﬁnish any

time you want. But, what I’m saying to you is . . .

[Defendant]: I don’t want to not ﬁnish if it’s going to

hurt her, but I’m not gonna continue down this path.

At this point, Hinkley accused defendant of lying

several

times and told defendant to “man up.” After an

hour and 17 minutes, defendant said:

I don’t like where this is going, with—it looks like I’m

going to

have to get a lawyer, because you guys are trying

to put something on me and I’m not gonna say anything

that would incriminate me for anything.

We concur with the trial court’s conclusion that the

accusatory nature of the questioning of defendant

weighs in favor of a ﬁnding of custody. Tankleff, 135

F3d at 244. The detectives interrogated defendant by

asking questions and making statements that they

knew were reasonably likely to elicit an incriminating

response. See People v White, 493 Mich 187, 195; 828

NW2d 329 (2013). Defendant’s statements make it

clear that he did not think that he was at liberty to

leave. He initially asked how he could help, but after

defendant believed that the detectives were accusing

him, he asked if they could ﬁnish. Seemingly, defen-

2018] P

EOPLE V

ARRITT

573

PINION OF THE

OURT

dant asked the detectives if they were ﬁnished so he

would

get their permission to leave.

Clearly, Gandy considered defendant a suspect be-

fore meeting with him. Although not used as a basis for

the trial court’s ﬁndings, when the police ﬁrst came

upon defendant, they were searching Wienski’s home,

where defendant stated he resided, pursuant to a

search warrant. Although the record is somewhat

vague as to the time outline, it does appear that before

defendant arrived at the home, Gandy had procured a

search warrant of Wienski’s home, in part, by naming

defendant as a suspect who burned her car. Hence,

before Gandy met defendant, he had already identiﬁed

defendant as a suspect, a fact that may explain the

nature and tenor of the questioning. While we ac-

knowledge that Gandy’s beliefs are relevant “only to

the extent they would affect how a reasonable person

in the position of the individual being questioned

would gauge the breadth of his or her ‘freedom of

action,’ ” Stansbury, 511 US at 325, we conclude that

the accusatory tone of the questioning would lead a

reasonable person to perceive that they were not free to

leave until the police approved their departure from

the interview. Again, while recognizing that the sub-

jective opinions of the ofﬁcers do not bear on our

determination of whether defendant was in custody, if

the ofﬁcers’ views were “somehow manifested to the

individual under interrogation[, those views] would

have affected how a reasonable person in that position

would perceive his or her freedom to leave.” Id.

After reviewing the facts surrounding the state-

ments by the police and defendant in their totality, we

are not left with a deﬁnite and ﬁrm conviction that a

mistake was made by the trial court’s ﬁnding that a

reasonable person would not have believed they were

574 325 M

ICH

556 [Aug

PINION OF THE

OURT

at liberty to terminate the interview without incident

and

would, therefore, have reasonably and objectively

believed themselves to be in police custody. Coomer,

245 Mich App at 219.

4. PHYSICAL RESTRAINTS

There is no dispute that defendant was not initially

andcuffed during the interview, and there is no

dispute that he was handcuffed at minute 88 of the

90-minute interview for transport from the Calhoun

County Sheriff’s Department satellite ofﬁce to the

Mount Morris Township Police Department. Before he

was handcuffed, defendant had not been formally

placed under arrest by the Calhoun County detec-

tives. Generally, the lack of handcuffs weighs against

a ﬁnding of custody, see Mathiason, 429 US at 495;

Yarborough, 541 US at 664, and the trial court so

found. However, after making this ﬁnding, the trial

court found that there were other restraints present

in this case. The trial court noted that defendant’s

having to ride to the police station in the back of a

patrol car and being escorted into the police station by

armed police ofﬁcers were forms of restraint. Addi-

tionally, the trial court noted that defendant appeared

to be in the presence of at least one armed police

ofﬁcer at all times. Finally, the trial court noted that

after the tone of the interview became more heated,

another ofﬁcer told defendant that his police dog,

which was present in the room, could “blow you right

off your feet” if the ofﬁcer “sen[t]” him. We examine

each of these ﬁndings in order.

It is undisputed that defendant was driven to the

satellite ofﬁce in a police vehicle. As found by the trial

court, this mode of transportation implies a physical

restraint regardless of whether the prosecution’s as-

2018] P

EOPLE V

ARRITT

575

PINION OF THE

OURT

sertion that defendant voluntarily accepted the ride is

ccurate. No one unambiguously testiﬁed that defen-

dant was “escorted” into the station. However, Mahan

testiﬁed that he let defendant out of the backseat of

his car at the station and that defendant “went inside

the ofﬁce with [the] detectives.” Gandy testiﬁed that

he and Hinkley brought defendant inside. There is no

indication in the record that the detectives threatened

defendant or brandished any weapons during the

interview; however, Gandy testiﬁed that he and Hin-

kley were armed during the interview. In viewing the

totality of the circumstances, riding to a police station

in a marked vehicle, being walked in by armed

detectives, and then being interviewed by armed

police ofﬁcers constituted physical restraints on de-

fendant’s freedom of movement, and a reasonable

person would not feel at liberty to terminate the

conversation and leave under such circumstances.

The prosecution asserts that the presence of the

canine ofﬁcer and police dog did not present any

restraints on defendant’s movement. Seemingly, Hin-

kley asked Sergeant Brad Hall

to enter the ofﬁce so

at he could step out to speak to Gandy. Hinkley

asked defendant if he cared about the police dog

entering the room, and defendant responded: “No. I

like dogs.” Hall entered the room with the police dog.

Defendant engaged in casual conversation with Hall

regarding the police dog:

Sergeant [H

all]: He’s a good boy. He’s pretty friendly.

[Defendant]: I bet he has his moments where he isn’t.

Sergeant [Hall]: Oh, he’ll blow you right off your feet if

I send him.

Although

referred to as “Sergeant Brad” in the interview transcript,

Mahan identiﬁed the canine ofﬁcer as Brad Hall at the evidentiary

hearing.

576 325 M

ICH

556 [Aug

PINION OF THE

OURT

[Defendant]: Right. I bet.

Sergeant [

Hall]: Yeah. But, no, he’s a good boy.

They continued to talk about the dog’s toy, and how

Hall used the dog for tracking. However, Hall then told

defendant how important it was for defendant to tell

the truth:

Sergeant [H

all]: So, that’s why it’s really important.

Sometimes people go all hardcore and whatever, and

they—they wait until the very last second and it kind of

makes ‘em look really bad. So, it’s best to—best to—to, I

don’t know, I guess you just want to make sure that—you

seem like a really nice guy. You want to make sure that

you’re as truthful as possible because—because you

know, it’s going to be rough otherwise. You see what I

mean?

[Defendant]: Um-hum.

Sergeant [Hall]: So, I don’t know, that’s just the only

advice that I can give ya. It’s always, always—it’s always,

always, no matter what situation you’re in, it’s always

best to tell the truth. It’s hard to stick with a lie.

After Gandy returned to the ofﬁce and said that the

Mount

Morris

Township Police Department wished to

speak with defendant, Hall asked defendant if there

was anything else that he wanted to say after their

conversation. Hall said, “I know you got something else

there. I can see it written all over your face.” And he

told defendant: “Just got to say—say the truth. Say

what happened.”

Some context to the conversation is important to

note. The statement regarding the dog being able to

“blow defendant off his feet” was made in response to a

statement by defendant that the dog could really do

some harm. After defendant made that statement, Hall

told defendant that the dog would only do what he,

2018] P

EOPLE V

ARRITT

577

PINION OF THE

OURT

Hall, told the dog to do. We cannot ﬁnd anything from

the

tape or the transcripts which would lead us to

conclude that the dog was placed in the room as a

means of physical control over defendant. Additionally,

under these limited facts, we cannot conclude that a

reasonable person would believe that the dog was

present in the room as a means of physical control.

Accordingly, we reject the trial court’s ﬁnding that the

presence of the police dog imposed a physical restraint

on defendant’s freedom to move. Even if we were to

conclude, as suggested by defendant’s counsel, that the

police brought the dog into the room because defendant

was “soft on dogs,” we cannot conclude that the dog in

any manner imposed a restraint on defendant’s free-

dom. However, we do conclude that the trial court did

not clearly err by ﬁnding that other physical restraints

were placed on defendant, the degree to which favors a

ﬁnding that defendant was in custody.

5. RELEASE

In M

athiason,

429 US at 495, the Supreme Court

used the fact that the defendant was allowed to leave

the police station at the end of the interview as one of

the circumstances that led them to conclude that the

defendant had not been in custody. In this case, at the

end of defendant’s interview, Gandy said that the Mount

Morris Township Police Department wanted to talk to

defendant, so at that time, Mahan handcuffed defen-

dant and returned defendant to Mahan’s patrol car for

transport. After that, the following colloquy took place:

[Defendant]:

Am I under arrest?

Detective Gandy: We’re transporting you to another

department and that’s going to be up to them. But, we

can’t transport you without being restrained, for safety

reasons.

578 325 M

ICH

556 [Aug

PINION OF THE

OURT

[Defendant]: He said yeah, so I am being arrested?

Unidentiﬁed

Speaker: I didn’t say yeah.

[Defendant]: I thought you said yeah.

Unidentiﬁed Speaker: I didn’t say nothin’.

[7]

The prosecution argues that this factor weighs

against

a ﬁnding of custody because defendant was not

arrested by the sheriff’s department that conducted

the interview. However, the prosecution also asserts

that at the time the handcuffs were placed on defen-

dant, he was in custody for purposes of Miranda.

Defendant was not released upon termination of the

questioning

but, rather, was placed in handcuffs and

transported to another police department. Because

defendant was not released at the end of questioning,

this factor weighs in favor of a ﬁnding of custody.

Yarborough, 541 US at 664-665; Mathiason, 429 US at

495.

Given the totality of the circumstances surrounding

these factors and this Court’s review for clear error of

the trial court’s factual ﬁndings concerning the circum-

stances surrounding statements to the police, we are

not left with a deﬁnite and ﬁrm conviction that a

mistake has been made relative to the trial court’s

factual ﬁndings. Coomer, 245 Mich App at 219. Fur-

ther, with regard to the issue of whether defendant was

in custody at the time of his interrogation, based on our

Our

review of the audio recording leads us to believe that someone

said “yeah” in response to defendant’s question of whether he was under

arrest.

Presuming an issue exists relative to whether defendant invoked his

right to counsel, that issue was outside the scope of remand and was not

considered by the trial court. Consequently, there is no record that

would permit our review of the issue. Accordingly, we express no opinion

as to whether, or when, defendant exercised his right for the presence of

counsel.

2018] P

EOPLE V

ARRITT

579

PINION OF THE

OURT

review of the totality of the circumstances, we concur

with

the trial court that a reasonable person in defen-

dant’s position would not have felt free to terminate

the interview and leave. Fields, 565 US at 509; Cortez,

299 Mich App at 692. Accordingly, defendant was in

custody at the time of his interrogation.

B. COERCIVE ENVIRONMENT

As our Supreme Court and the United States

Supreme

Court have stated, determining whether an

individual’s freedom of movement was curtailed is the

ﬁrst step in the analysis, not the last. Elliott, 494 Mich

at 308; Fields, 565 US at 509. This point is best

illustrated by the Supreme Court’s ruling in Berkemer,

468 US 420. In Berkemer, the Supreme Court held that

the roadside questioning of a motorist who was pulled

over in a routine trafﬁc stop did not constitute custo-

dial interrogation. Id. at 423, 441-442. The Supreme

Court held “that ‘a trafﬁc stop signiﬁcantly curtails the

“freedom of action” of the driver and the passengers,’

and that it is generally ‘a crime either to ignore a

policeman’s signal to stop one’s car or, once having

stopped, to drive away without permission.’ ” Fields,

565 US at 510, quoting Berkemer, 468 US at 436.

“[F]ew motorists would feel free either to disobey a

directive to pull over or to leave the scene of a trafﬁc

stop without being told they might do so.” Berkemer,

468 US at 436. Nevertheless, the Supreme Court held

that a person detained as a result of a trafﬁc stop is not

in Miranda custody because such detention does not

“sufﬁciently impair [the detained person’s] free exer-

cise of his privilege against self-incrimination to re-

quire that he be warned of his constitutional rights.”

Id. at 437. Hence, the temporary, and what the

Supreme Court characterized as “relatively nonthreat-

580 325 M

ICH

556 [Aug

PINION OF THE

OURT

ening,” detention that follows a T

erry

stop was insuf-

ﬁcient for a ﬁnding of custody under Miranda. Id.

What follows then is the idea that not all restraints on

an individual’s freedom of movement are tantamount

to custody for purposes of deciding whether a person

has been subjected to custodial interrogation under

Miranda. The often-quoted statement from Berkemer

makes the point: “[The Supreme Court] ha[s] decline[d]

to accord talismanic power” to the freedom-of-

movement inquiry. Id. at 437. In all such cases, a

reviewing Court must ask the additional question

whether the relevant environment presents the same

inherently coercive pressures as the type of station-

house questioning at issue in Miranda. Fields, 565 US

at 509.

Our Supreme Court remanded this case, instructing

the trial court to consider its decision in Elliott, 494

Mich 292. Barritt, 501 Mich 872. In Elliott, Justice

ARKMAN

, writing for the majority, concluded that the

defendant was not “in custody” for Miranda purposes.

Elliott, 494 Mich at 295-296. The defendant was incar-

cerated for a parole violation, and he was taken to the

jail library by a deputy where he was questioned by a

parole ofﬁcer for 15 to 25 minutes. Id. at 299, 308. The

defendant was not physically restrained, but he was

never told that he was free to leave the meeting and

return to his jail cell. Id. at 308, 309. On the basis of

these facts, as well as other considerations, Justice

ARKMAN

concluded that the inherently coercive pres-

sures present in Miranda were not present in Elliott.

Id. at 311. The defendant was not questioned for an

extended time by armed police ofﬁcers using a sharp

tone and profanity; rather, the parole ofﬁcer visited the

defendant as part of her job. Id. at 311-312. The

erry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

2018] P

EOPLE V

ARRITT

581

PINION OF THE

OURT

defendant did not indicate that he did not want to

speak

to the parole ofﬁcer. Id. at 312. Justice M

ARKMAN

concluded that these circumstances were “hardly the

sort of incommunicado, police-dominated atmosphere

involving custodial interrogation and the ‘overbearing’

of the subject’s will toward which Miranda was di-

rected.” Id. at 313.

We acknowledge that Gandy testiﬁed that, in his

opinion, the police did not coerce defendant to talk. In

fact, throughout the beginning of the interrogation

video, defendant maintains a relaxed tone and posture,

often laughing throughout the conversation. He light-

heartedly told a story about Wienski’s mom thinking

that he had stolen one of her spoons on Thanksgiving.

Defendant was asked what he wanted to drink, and he

jokingly responded, “Beer. Coke.” However, the subjec-

tive opinions of the ofﬁcer aside, the facts as a whole

demonstrate that the environment presented what the

trial court correctly labeled as “the same inherently

coercive pressures as the type of station house ques-

tioning at issue in Miranda.” Unlike the defendant in

Elliott who was incarcerated, from the time the ofﬁcers

saw defendant at Wienski’s home, he was always in the

company of at least one armed ofﬁcer. Defendant was

on his front lawn when he was told by the police to get

into the back of a police car. Defendant’s dog had been

forcibly removed from the home by animal-control

ofﬁcers, and he had no idea where the dog had been

taken or how he would be able to secure the dog’s

return. He was not able to drive to the police station in

the same car that brought him to the house, despite the

fact that the police had told defendant’s driver to drive

to the very same police station. When the police car

stopped, testimony indicated that armed detectives led

defendant from the police car into the police station.

Also, from the testimony of the ofﬁcers and review of

582 325 M

ICH

556 [Aug

PINION OF THE

OURT

the video, we conclude that there was never a time

when

defendant was not being watched by an armed

police ofﬁcer. Defendant did not get to arrange the time

of the interview, the place of the interview, or when the

interview would conclude. Rather, defendant was told

when he was being interviewed, where he was being

interviewed, and the tenor of the interview. At the end

of the interview defendant was handcuffed and placed

in another police vehicle. In sum, defendant was never

“free” to any signiﬁcant degree. Rather, his freedom of

movement, along with his choices, had been taken from

him by police ofﬁcers from the time he was told to get

into the back of the patrol vehicle.

Hence, this is not a case in which defendant was

already in police custody or incarcerated or one in

which the defendant was allowed by the police to

schedule a time or place for the interview or even select

the mode of transportation to the interview. As alluded

to in Elliott, it is difﬁcult to imagine a setting other

than prison in which an individual’s freedom of move-

ment is more controlled by outside factors. Defendant

was not initially told he could leave or terminate the

interview. Within a short time of being told he could

end the interview at any time, defendant was hand-

cuffed and placed inside another police vehicle for

transportation to a different police station. The inter-

view became increasingly accusatory as the detectives

asserted that defendant was lying and that he did not

tell them everything that he knew. The detectives

asked defendant if he would pass a lie detector test, a

statement indicative of psychological intimidation. An

additional canine ofﬁcer entered the room, again ap-

pealed to defendant’s sense of honesty, and encouraged

him to tell the truth. Taken together, these facts

indicate a coercive environment. “Fidelity to the doc-

trine announced in Miranda requires that it be en-

2018] P

EOPLE V

ARRITT

583

PINION OF THE

OURT

forced strictly, but only in those types of situations in

which

the concerns that powered the decision are

implicated.” Berkemer, 468 US at 437. Ultimately, it

becomes apparent that this case is the type of situation

that compels Miranda warnings be given.

Accordingly, we conclude that the trial court did not

clearly err by ﬁnding that a reasonable person in

defendant’s position would have felt that he was not at

liberty to terminate the interrogation and leave, and

the environment presented the same coercive pres-

sures as the type of stationhouse questioning in

Miranda. Therefore, defendant was “in custody,” and

his Fifth Amendment rights were violated when he

was not advised of his Miranda rights.

Afﬁrmed.

M. J. K

ELLY

, J., concurred with B

ORRELLO

, P.J.

OONSTRA

, J. (dissenting). I respectfully dissent. I

conclude from my review of the record that, consider-

ing the totality of the circumstances, People v Coomer,

245 Mich App 206, 219; 627 NW2d 612 (2001), defen-

dant was not in “custody” at the time of his interroga-

tion. Therefore, I am left with a deﬁnite and ﬁrm

conviction that a mistake has been made, id., and

would reverse the trial court’s order granting defen-

dant’s motion to suppress.

As the majority notes, our Supreme Court vacated

this Court’s prior holding that defendant was in cus-

tody and remanded the matter to the trial court

to determine, in light of all of the objective circumstances

urrounding the interrogation: (1) whether a reasonable

person would have felt that he was not at liberty to

terminate the interrogation and leave; and (2) whether

the environment presented the same inherently coercive

584 325

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

pressures as the type of station house questioning in-

olved in Miranda v Arizona, 384 US 436; 86 S Ct 1602;

16 L Ed 2d 694 (1966). See Howes v Fields, 565 US 499,

509; 132 S Ct 1181; 182 L Ed 2d 17 (2012); Yarborough v

Alvarado, 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d

938 (2004); People v Elliott, 494 Mich 292, 308[; 833

NW2d 284] (2013). [People v Barritt, 501 Mich 872

(2017).]

On remand, the trial court again found defendant to

have

been in custody, and the majority afﬁrms. I agree

with much of what the majority gleans from the record,

and I agree that certain factors tend to favor a ﬁnding

that defendant was in custody while other factors tend

to favor a ﬁnding that defendant was not in custody.

But I disagree with certain of the trial court’s descrip-

tions and characterizations (some of which are adopted

by the majority), and this ultimately compels me to

reach a different conclusion.

For example, and as the majority accurately notes,

with respect to the “location of the questioning” factor,

defendant agreed to speak with police ofﬁcers at the

police station rather than in the yard of his missing

girlfriend’s home; defendant was transported to the

station, unrestrained, in the backseat of a police

vehicle. Moreover, the prosecution indicated that de-

tectives offered defendant a ride “out of convenience”

and that he accepted. However, the trial court

stressed not only that defendant “was not given the

opportunity” to ride with Ron Greenway,

but even

re signiﬁcantly, that defendant “was not allowed to

travel to the station with Greenway.” (Emphasis

added.) In my judgment, this verbiage pejoratively

suggests—without support in the record—that police

ofﬁcers denied a request by defendant to travel to the

Greenway

had driven defendant to the house that day.

2018] P

EOPLE V

ARRITT

585

ISSENTING

PINION BY

OONSTRA

, J.

station with Greenway. What the record instead indi-

ates is that ofﬁcers offered defendant a ride, and he

accepted the offer—nothing more, nothing less. De-

fendant did not have a vehicle of his own, and he did

not even know Greenway. Defendant also could have

reasonably believed that a ride with Greenway would

not have been free of charge. Defendant had just met

Greenway the day before and knew him as someone

who drove people places for money—or in defendant’s

case, for a generator. I therefore glean little from the

mere fact that defendant traveled to the station with

the ofﬁcers. The trial court further pejoratively char-

acterized defendant’s arrival at the police station—

again without support in the record—as having been

“removed from the car and escorted into the station by

armed ofﬁcers.” Defendant was not, however, forcibly

dragged from the police vehicle at gunpoint; to the

contrary, after accepting the ofﬁcers’ offer of a ride, he

then exited the vehicle upon arrival and accompanied

them into the building. Again, nothing more, nothing

less.

The trial court additionally acknowledged that the

subsequent interview took place in an unlocked room

(which, as the majority notes, had multiple doors from

which people entered and exited freely) and that de-

fendant’s freedom of movement within the room was

not restrained in any way. The majority properly

discounts the balance of the trial court’s analysis of

this factor. Speciﬁcally, it rejected the trial court’s

suggestion that a police dog was used to intimidate

defendant; to the contrary, the record reﬂects that

defendant was a lover of dogs, that the dog became a

subject of friendly conversation, and that defendant

had a positive interaction with the dog. The majority

also states:

586 325 M

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

[W]e reject the trial court’s assertion that: “[t]he average

person

that is summoned to a police station to talk with a

detective would not feel comfortable leaving the station

until the discussion was terminated by that detective.” In

this case, the trial court seems to infer that questioning a

suspect in a police station, by itself, can provide a legal

basis for a ﬁnding that a person is in custody. That

conclusion runs afoul of [Oregon v Mathiason, 429 US 492,

97 S Ct 711, 50 L Ed 2d 714 (1977)], and we therefore

reject that portion of the trial court’s analysis. Mathiason,

429 US at 494-495.

I conclude that, absent the taint left by the trial

court’s pejorative characterizations, there is little left

of the “location of the questioning” factor that would

weigh in favor of a ﬁnding of custody, except for that

which the majority has itself rejected.

With regard to the duration of the questioning, the

trial court purported to conclude that the 90-minute

duration of the interview “does not weigh heavily in

either direction,” a ﬁnding with which the majority

concurs. However, the trial court qualiﬁed its ﬁnding

by stating as follows: “What this Court does ﬁnd

concerning about the duration of Defendant’s question-

ing is that it persisted after Defendant twice men-

tioned a need for an attorney and requested that the

interview end.”

For reasons that I will elaborate upon

later

this statement does not, in my judgment, accu-

rately characterize the circumstances or the record.

But the fact that the trial court found this “concerning

about the duration of [the] questioning” suggests to me

that the trial court did not in fact weigh the duration

factor neutrally.

The

majority similarly characterizes defendant as having “stated

that he needed a lawyer.” The majority does not, however, conclude or

suggest that defendant unequivocally asserted or was denied his right to

counsel.

2018] P

EOPLE V

ARRITT

587

ISSENTING

PINION BY

OONSTRA

, J.

With regard to the supposedly inculpatory state-

ments

made during the interview,

I note that I am

unable to discern from either the transcript or the

video of the interview that defendant confessed to

anything or even made a material admission, leaving

me wondering whether this is much ado about nothing.

I also must place the interview in context. At the time

of defendant’s interview, it had not been determined

that any crime had been committed. To the contrary,

the Calhoun County Sheriff’s Department conducted a

wellness check at the Calhoun County home of defen-

dant’s girlfriend, Amy Wienski, after her vehicle was

discovered burned and abandoned in Genesee County.

Although ofﬁcers suspected foul play and executed a

search warrant at the home, the fate and whereabouts

of Wienski were then unknown. While ofﬁcers were

present at the home, defendant (who also lived there)

arrived in a vehicle driven by Greenway. Defendant

and the ofﬁcers began conversing in the yard of the

home and, as noted, defendant agreed to continue that

conversation at the police station.

The trial court acknowledged that defendant was

never told during the interview that he was not free to

leave and that he was told—albeit late in the

interview—that he was not under arrest and that the

interview could end at any time. However, the trial

court stated:

The transcript of the interview suggests that the initial

questioning

was

not confrontational. However, as the

interview progressed, the hostility in the room quickly

escalated as the detectives repeatedly accused Defendant

of being untruthful and demanded he change his state-

ment.

Except

as noted, the ofﬁcers present during the interview were

Detective Steve Hinkley and Detective Bryan Gandy, although each of

them stepped out of the interview room at times.

588 325

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

The trial court additionally described the interview as

becoming

“heated” and referred to “the aggressive

nature of the questioning.” Not exactly.

It is noteworthy in my mind that the trial court

made its judgment about the interview based solely on

the transcript of the interview and that the trial court

opted not to view the video of the interview. The trial

court thus denied itself the beneﬁt of the full ﬂavor of

the interview, inasmuch as the written transcript does

not reﬂect such factors as tone, volume, atmosphere,

and inﬂection. In my judgment, the failure to view the

video of the interview contributed to the trial court

errantly describing the nature of the interview.

The video of the interview demonstrates that for in

excess of 53 minutes of its 90-minute duration (equat-

ing to 56 pages of a 90-page transcript), the discussion

between defendant and the police ofﬁcers was entirely

casual, conversational, and even friendly. They dis-

cussed such topics as dogs, cars, Wienski’s animals

(including a coatimundi, a baby mouse, and raccoons),

ticks, insulation, and online dating sites, and defen-

dant jokingly responded, “Beer. Coke.” when asked

what he would like to drink. Defendant repeatedly

expressed a desire to help the ofﬁcers. At the 53:20

mark (page 55) of the interview, defendant stated that

he had told the ofﬁcers everything he could think of,

and he told Detective Hinkley, “If there’s anything else

you [Detective Hinkley] can think of, please ask.”

(Emphasis added.) Detective Hinkley then expressed

the view that defendant loved Wienski but that some-

thing had happened to her and that he believed that

defendant had some idea about what had happened.

Hinkley later indicated at approximately the 59-

minute mark (page 63) of the interview that he had

reason to believe that defendant had driven Wienski’s

2018] P

EOPLE V

ARRITT

589

ISSENTING

PINION BY

OONSTRA

, J.

vehicle that weekend and that defendant was not being

truthful

about whether he had driven the vehicle. But

even then the tone and tenor of the conversation

remained calm, measured, and at times so soft-spoken

that it was difﬁcult to hear on the recording of the

interview.

It was not aggressive in tone, hostile, de-

manding,

or accusatory of a crime. Rather, ofﬁcers

expressed a belief that defendant had not done any-

thing purposefully to harm Wienski but that perhaps

something had happened accidentally and that defen-

dant knew something about what had happened.

As noted, the trial court also indicated that defen-

dant twice “requested a lawyer,” and that he “re-

quested that the interview end,” but that ofﬁcers

instead “continued to question Defendant” and to “ac-

cuse Defendant of lying.” The inaccuracy of that de-

scription is best revealed, I think, by quoting from the

transcript of the interview beginning at the 74:34

minute mark (page 79 of the 90-page transcript):

Mr. Barritt:

ell, I think I need a lawyer now. You guys

are trying to . . .

Detective Hinkely: You’re not under arrest or anything.

You’re not under arrest.

Mr. Barritt: Well, then why am I here then? I told you

everything.

Detective Hinkley: Yeah, you’re not under arrest for

anything.

Mr. Barritt: So, if that’s the case, we can ﬁnish then?

Detective Hinkley: We can ﬁnish any time. But what I’m

saying to you is, here’s the thing, you can ﬁnish any time

you want. But, what I’m saying to you is . . .

Even

when ofﬁcers used profanity, they did so in a soft-spoken and

conversational manner, not in an in-your-face or confrontational man-

ner.

590 325 M

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

Mr. Barritt

: I don’t want to not ﬁnish it if it’s going to

hurt her, but I’m not gonna continue down this path.

Detective Hinkley: Well, here’s the deal. You did some-

thing? Either you did something to her or an accident

happened to her. That’s what all this comes down to. It’s

an accident or you did it on purpose. Okay? I don’t think

you did it on purpose. I’m pretty sure you didn’t do it on

purpose because I’m pretty good at reading people. Okay?

So, you’re in the car, so you’re lying about the car. You’re

lying about the car. Lying, lying, lying. Okay. That’s just it,

period. Okay? I mean, I know enough, I’m so positive

about that, I will call you a liar to your face, and I don’t do

that to people. Okay? You lied, lied, lied. Okay? So, that

means to me either you did something on purpose to her or

something accidentally happened to her. Okay? Now, this

is a real simple choice for you. Okay? All right? This is an

accident or it’s on purpose. Okay? You—you got to man up

sometime in your life. You’ve got to man up and you’ve got

to come to some type of reasonable situation from this.

Something happened. You know it happened. I know it

happened. I know you’re lying about the car, dude. I know

you’re lying about the car. I—you’re lying about the car,

dude. I mean, I’d frickin’ put my paycheck—I know you’re

lying about the car. Okay? So, that makes me—that

troubles me about her. I don’t think you did it on purpose.

I think it was an accident. All right, dude? I’m—I’m telling

you, I’m pretty sure it was an accident. All right. You know

it was an accident. I know it was an accident. What

happened to her?

Mr. Barritt: I don’t know.

Detective Hinkley: You do know.

Mr. Barritt: I don’t know.

Detective Hinkley: You deﬁnitely know.

Mr. Barritt: No, I don’t.

Detective Gandy: John . . .

Detective Hinkley: Just a second. I got to . . .

Detective Gandy: All right.

2018] P

EOPLE V

ARRITT

591

ISSENTING

PINION BY

OONSTRA

, J.

Mr. Barritt

: I don’t like where this is going, with—it

looks like I’m going to have to get a lawyer, because you

guys are trying to put something on me and I’m not gonna

say anything that would incriminate me for anything.

[5]

Detective Gandy: Okay. (Talking on phone)

[Emphasis added.]

The next approximately 7 minutes of the interview

(and

4 pages of the transcript) consists not of continued

questioning but of delays (ﬁlled with silence or side

conversations) and casual discussion between defen-

dant and Sergeant Brad Hall

relating to Hall’s police

dog

and defendant’s dog. Eventually, the following

exchange occurred:

Sergeant Brad: Yeah. Well, sometimes you got to get the

other thing taken out. I mean, dogs are pretty important,

make sure they’re safe. But, probably the most important

thing here is that—that we get this taken care of. Right?

Mr. Barritt: Well, yeah, absolutely. I did my part.

Sergeant Brad: Yeah. Well, so, you been helping those

guys out pretty good?

Mr. Barritt: Yeah. As best I can.

Sergeant Brad: They’re pretty good guys. I’ll tell you

what, if—if anybody can ﬁnd her, they can. So, you know,

The

United States Supreme Court has stated that “[f]idelity to the

doctrine announced in Miranda requires that it be enforced strictly, but

only in those types of situations in which the concerns that powered the

decision are implicated.” Berkemer v McCarty, 468 US 420, 437; 104 S Ct

3138; 82 L Ed 2d 317 (1984). These concerns involved the impairment of

a defendant’s “free exercise of his privilege against self-incrimination.”

Id. The statement from defendant actually exercising that privilege

shows that although the interview took place at a police station,

defendant did not appear to believe that “questioning [would] continue

until he provide[d] his interrogators the answers they seek.” Id. at 438.

Sergeant Hall was not present for the earlier portion of the interview

but entered the interview room to sit with defendant while Detective

Hinkley stepped out of the room to speak to Detective Gandy.

592 325 M

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

they work hard and do a really good job. So, they’re

working—working

for her and doing the best they can to

ﬁnd her and to straighten these things out. So, I been here

for a lot of these kind of things. Never in charge—I’m not

in charge of nothing. I just stand around, do things, sit

here with you while they—while they, you know, discuss

other information and things that might’ve come in, you

know, in between and hang out. But, I’ll tell you what, the

truth always comes out.

Mr. Barritt: Um-hum.

Sergeant Brad: You know what I mean? So, I guess it’s

one of those things if you—the sooner the truth comes out,

the easier it is to—to deal with, you know what I mean?

Mr. Barritt: Um-hum.

Sergeant Brad: So, that’s why it’s really important.

Sometimes people go all hardcore and whatever, and

they—they wait until the very last second and it kind of

makes ‘em look really bad. So, it’s best to—best to—to, I

don’t know, I guess you just want to make sure that—you

seem like a really nice guy. You want to make sure that

you’re as truthful as possible because—because you know,

it’s going to be rough otherwise. You see what I mean?

Mr. Barritt: Um-hum.

Sergeant Brad: So, I don’t know, that’s just the only

advice that I can give ya. It’s always, always, no matter

what situation you’re in, it’s always best to tell the truth.

It’s hard to stick with a lie.

Mr. Barritt: Um-hum.

Sergeant Brad: And then a lot of things, you know what

I mean, when they’re in here—when they’re in here

talking to you, they—they know the answer to 75 percent

of the questions they ask.

Mr. Barritt: Um-hum.

Sergeant Brad: So, then they’re kind of judging—

judging your truthfulness or things that they can verify.

Mr. Barritt: Um-hum.

2018] P

EOPLE V

ARRITT

593

ISSENTING

PINION BY

OONSTRA

, J.

Sergeant Brad: So—and if you’re being truthful, you

got

nothing to worry about. If not, then you—I don’t know,

you got something else you need to say, you probably

ought—probably ought to get it out.

Mr. Barritt: Um-hum.

Sergeant Brad: Okay? So, there’s only one way to

straighten these things out, you know? So . . .

At the 87:25 mark (page 87) of the interview, Detec-

tive

Gandy re-entered the room, and the following

colloquy ensued:

Detective Gandy: All right. Well, we got a phone call

from Mt. Morris PD. And they want to talk to you.

Mr. Barritt: Okay.

Detective Gandy: All right?

Mr. Barritt: Yup.

Detective Gandy: You are—we’re going to meet Mt.

Morris PD.

Mr. Barritt: All right. Where?

Detective Gandy: 94 near—and you’re going to go with

them.

Mr. Barritt: All right.

Sergeant Brad: Listen, John, before you go, is there

anything else that you want to tell ‘em? We talked for a

second. I know you got something else there. I can see it

written all over your face.

Mr. Barritt: No.

Sergeant Brad: You can’t stick with it forever, bud. You

can’t even say it.

Mr. Barritt: I don’t know what more to say.

Sergeant Brad: Just got to say—say the truth. Say

what happened.

Mr. Barritt: I don’t know what happened.

Sergeant Brad: Okay.

594 325 M

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

At that point, defendant was handcuffed

for

pur-

poses of transporting him to the Mt. Morris Township

Police Department for further questioning.

The record thus reﬂects that defendant’s references

to a need for counsel were equivocal, that defendant

did not request that the interview end, and that

defendant in fact indicated that he did not wish for the

interview to end if it would hurt Wienski. And, in any

event, other than Detective Hinkley asking defendant

what had happened (in the context of Detective Hin-

kley’s expressed belief that defendant knew more than

he was saying) and Sergeant Hall later advising defen-

dant to tell the truth and asking defendant whether

there was anything else he wanted to say, ofﬁcers did

not “continue to question” defendant. Rather, the in-

terview ended.

With regard to the presence or absence of physical

restraints

during the questioning, the trial court prop-

erly found that “the lack of handcuffs and unlocked

doors weigh toward a ﬁnding that Defendant was not

in custody.” However, the court went beyond the con-

tours of the factor itself to reiterate its view that

defendant had been “required” to ride in the police

vehicle, that he was “escorted” into the station “by

armed ofﬁcers,” that during the interview he was

always “in the presence of at least one armed ofﬁcer,”

that the interview became “heated,” and that the police

Detective

Gandy stated, “[W]e can’t transport you without being

restrained, for safety reasons.”

In any event, the prosecution asserts that “[t]he People do not seek

to admit any statements made by Defendant after the point that

defendant was restrained or at which he asserted his rights to cease

questioning or to have an attorney present. Nonetheless, the statements

made by Defendant up to that point in time were voluntary and he was

not restrained or in custody. It is those initial statements that the People

seek to admit in their case in chief against Defendant.”

2018] P

EOPLE V

ARRITT

595

ISSENTING

PINION BY

OONSTRA

, J.

ofﬁcers had used a police dog as a coercive tactic. The

trial

court therefore concluded that “[w]hile not tech-

nically a (physical) restraint, there was an obvious

threat of force employed by the ofﬁcers” and that it was

reasonable to believe that “the purpose of this threat of

force was to discourage Defendant’s movement and

force him to talk.” For the reasons already described, I

disagree with those characterizations and therefore

with the trial court’s employment of them in assessing

the “physical restraint” factor.

Finally, the trial court accurately notes that after

the interview, “Defendant was handcuffed and trans-

ported to the Mt. Morris Police Department where he

was formally arrested.” And indeed, whether an inter-

viewee is released at the end of the questioning is

considered under the caselaw to be one of the factors to

consider in assessing whether the interviewee was “in

custody.” See, e.g., Howes, 565 US at 509; Yarborough,

541 US at 664. However, I agree with our concurring

colleague in this Court’s ﬁrst review of this case that

this factor “seems somewhat anomalous, as it does not

touch on the events of the interrogation itself.” See

People v Barritt, 318 Mich App 662, 683-684; 899

NW2d 437 (2017) (G

LEICHER

, J., concurring),

citing

Pettinato, The Custody Catch-22: Post-Interrogation

Release as a Factor in Determining Miranda Custody,

65 Ark L Rev 799, 818 (2012) (“One oddity that has

resulted from the general lack of clarity in Miranda

custody jurisprudence is the consideration of post-

interrogation arrest or release in the totality-of-the-

circumstances test.”). I also do not believe that the

mere fact that an interviewee is not released after

initial questioning (so that the questioning may con-

acated in part 501 Mich 872 (2017).

596 325 M

ICH

556 [Aug

ISSENTING

PINION BY

OONSTRA

, J.

tinue in another jurisdiction) should override the non-

custodial

nature of the initial questioning.

For all these reasons and viewing the entirety of the

record, I conclude that in light of all the objective

circumstances surrounding defendant’s interrogation,

a reasonable person would not have felt that he or she

was not at liberty to terminate the interrogation and

leave. Barritt, 501 Mich at 872. Moreover, I conclude

that the environment surrounding the interrogation

did not present the same inherently coercive pressures

as the type of stationhouse questioning involved in

Miranda. Id.

Accordingly, I would reverse the trial court’s order

granting defendant’s motion to suppress.

2018] P

EOPLE V

ARRITT

597

ISSENTING

PINION BY

OONSTRA

, J.

PEOPLE v CRAFT

Docket

No. 337754. Submitted August 7, 2018, at Detroit. Decided

August 16, 2018, at 9:00 a.m. Leave to appeal denied 503 Mich

949 (2019).

Torrey Craft was convicted following a jury trial in the Wayne

Circuit Court of two counts of assault with intent to do great

bodily harm less than murder, MCL 750.84; one count of carrying

a dangerous weapon with unlawful intent (carrying with intent),

MCL 750.226; and one count of possession of a ﬁrearm during the

commission of a felony (felony-ﬁrearm), MCL 750.227b, in con-

nection with a shooting in 2016. When he was interviewed by the

police at the scene, Kevin Hollis identiﬁed defendant as the

shooter, and two other people later identiﬁed defendant as the

shooter in a six-person police lineup. Defendant was charged with

three counts of assault with intent to commit murder, MCL

750.83, and one count each of carrying with intent and felony-

ﬁrearm. Defendant moved to suppress the lineup identiﬁcation,

arguing that the lineup was impermissibly suggestive and re-

quested an expanded evidentiary hearing on the issue in accor-

dance with United States v Wade, 388 US 218 (1967). The court,

Vonda R. Evans, J., denied the motion, concluding that although

there were some physical differences between the lineup partici-

pants, the lineup was not impermissibly suggestive. After the

close of proofs, the prosecutor and defense counsel approved the

proposed jury instructions without realizing that instructions

related to the carrying-with-intent and felony-ﬁrearm charges

were omitted. After the omission was questioned by the jury

during deliberations, the court reinstructed the jury on all ﬁve

counts. Defendant appealed.

The Court of Appeals held:

1. MCR 2.512(C), which provides that a party may assign as

error the giving of or the failure to give an instruction only if the

party objects on the record before the jury retires to consider the

verdict, acts as a restriction on appeal; that is, if a party fails to

object to a trial court’s instruction, the objection is not preserved

for appellate review. However, MCR 2.512(C) does not bar a party

from altering its position on the appropriateness of jury instruc-

tions during trial proceedings, and a party may argue in favor of

598 325

ICH

598 [Aug

supplemental instructions during trial proceedings even when

the

party acquiesced to the original instructions.

2. A trial court must instruct the jury on the applicable law,

and the instructions must include all elements of the offenses

charged against the defendant and any material issues, defenses,

and theories that are supported by the evidence. The court rules

reﬂect that a trial court’s initial jury instructions are not neces-

sarily written in stone and may need to be supplemented. In that

regard, MCR 2.512(B)(1) provides that at any time during the

trial, the trial court may, with or without request, instruct the

jury on a point of law if the instruction will materially aid the jury

in understanding the proceeding and arriving at a just verdict.

MCR 2.513(N)(1) similarly provides that after jury deliberations

begin, the court may give additional instructions that are appro-

priate. Accordingly, before a jury returns its verdict, the trial

court has authority to supplement its original instructions as long

as the instruction is consistent with the accurate determination

of the charges; a party’s acquiescence to the original instructions

does not bar the trial court from supplementing the instructions

in such a manner. In this case, the trial court did not abuse its

discretion when it reinstructed the jury by rereading all of the

instructions it had previously given and by adding the instruc-

tions for the two unintentionally omitted offenses; the court

averted structural constitutional error by instructing the jury on

the two omitted offenses.

3. Defendant was not entitled in the trial court or on appeal to

an expanded evidentiary hearing under Wade regarding the

lineup; defendant failed to explain why the photograph and his

lineup counsel’s testimony were insufﬁcient for the trial court to

decide the issues and failed to explain why the trial testimony of

two eyewitnesses—both of whom identiﬁed defendant at the

lineup as the shooter—was insufﬁcient to address the issue on

appeal. The lineup was not impermissibly suggestive because the

physical differences between the lineup participants and defen-

dant were not so dramatic as to render it impermissibly sugges-

tive.

Afﬁrmed.

URY

NSTRUCTIONS —

UPPLEMENTAL

NSTRUCTIONS —

ARTY

’

CQUIESCENCE TO

RIGINAL

NSTRUCTIONS

OT A

AR TO

UPPLEMENTAL

NSTRUCTIONS

Before a jury returns its verdict, the trial court has authority to

supplement its original instructions as long as the supplemental

instructions are consistent with the accurate determination of the

2018] P

EOPLE V

RAFT

599

charges; a party’s acquiescence to the original instructions does

not

bar the trial court from supplementing the instructions in

such a manner.

Bill Schuette,

Attorney General, Aaron D. Lindstrom,

Solicitor General, Kym L. Worthy, Prosecuting Attorney,

Jason W. Williams, Chief of Research, Training, and

Appeals, and Valerie M. Steer, Assistant Prosecuting

Attorney, for the people.

Cecelia Quirindongo Baunsoe for defendant.

Before: S

WARTZLE

, P.J., and C

AVANAGH

and M. J.

ELLY

, JJ.

WARTZLE

, P.J. It is not uncommon for a trial court to

supplement its jury instructions during jury delibera-

tions. In fact, our court rules speciﬁcally authorize

supplemental instructions. Yet, what is not common is

for a trial court to fail initially to give any instruction

on two entire counts, and then to supplement with full

instructions on those counts. While not common, such

a circumstance is not unconstitutional if corrected

before a jury returns its verdict, and a party is not

barred from asking for supplemental instructions even

if the party had earlier acquiesced to the original,

incomplete instructions.

Concluding that the trial court did, in fact, timely

correct its initial oversight and ﬁnding no other revers-

ible error, we afﬁrm.

I. BACKGROUND

The events leading to defendant’s convictions had as

their

origin

a dispute between him and his girlfriend in

the summer of 2016. During trial, Kevin Hollis testi-

ﬁed that he witnessed the dispute and tried to inter-

600 325 M

ICH

598 [Aug

vene on the girlfriend’s behalf. Defendant became

angry

at Hollis and expressed a desire to ﬁght with

him, but no ﬁght ensued.

Instead, the next day, Hollis was playing catch

outside with Calvin Arnold, Jr., and Arnold’s stepsons,

seven-year-old Amir and nine-year-old Antonio, while

Bianca Primm, the boys’ mother, watched. Hollis heard

someone call his nickname (Bam) and say, “You still

wanna[] ﬁght?” and “You still talkin’ that scrap shit?”

Hollis testiﬁed that he recognized defendant and no-

ticed that another man was with defendant, though he

could not identify him because his face was covered.

Hollis saw defendant produce a riﬂe and shoot one

round toward him. Instead of hitting Hollis, the bullet

struck Amir. Defendant and the other man then ran to

a waiting vehicle—a “gold, or beige,” or “silver” Trail-

blazer, according to Hollis—and drove away. Amir was

taken to the hospital and underwent several surgeries,

eventually recovering from his injuries.

Hollis, who had known defendant for more than

three years, gave defendant’s name to the police and

later identiﬁed him from a photograph. Police ofﬁcers

went to defendant’s last-known address and observed

defendant parking a silver Trailblazer. The ofﬁcers

attempted to stop defendant, but he ﬂed in the vehicle

and escaped by ditching the vehicle and continuing his

ﬂight on foot. Shortly thereafter, ofﬁcers caught up

with defendant and took him into custody.

While in custody, and within two days of the shoot-

ing, defendant participated in a live, six-man lineup.

Defendant was assigned legal counsel for purposes of

the lineup, and his counsel did not object to any portion

of the lineup. After viewing the assembled men, both

Arnold and Primm identiﬁed defendant as the assail-

ant. Defendant was charged with three counts of

2018] P

EOPLE V

RAFT

601

assault with intent to commit murder, MCL 750.83;

one

count of carrying a dangerous weapon with unlaw-

ful intent (carrying with intent), MCL 750.226; and one

count of possession of a ﬁrearm during the commission

of a felony (felony-ﬁrearm), MCL 750.227b.

Defendant’s trial counsel moved to suppress the

lineup identiﬁcation. Defense counsel argued that,

notwithstanding the lack of objection by the lineup

counsel, the lineup was impermissibly suggestive be-

cause: (1) defendant was shorter and smaller than the

other men; (2) he had a lighter complexion than the

others; and (3) he was one of only two men who wore an

orange jumpsuit. Defense counsel requested an ex-

panded evidentiary hearing to present testimony from

his lineup counsel, Arnold, Primm, and four detectives.

This type of hearing is commonly referred to as a Wade

hearing, referencing the federal Supreme Court’s deci-

sion in United States v Wade, 388 US 218; 87 S Ct 1926;

18 L Ed 2d 1149 (1967).

The trial court held an evidentiary hearing but lim-

ited the scope to testimony from the lineup counsel.

After hearing the testimony, reviewing a photograph of

the lineup, and considering argument from counsel, the

trial court held that defendant had not overcome the

presumption that the lineup was valid. Referring to the

lineup photograph, the trial court noted “that [there]

wasn’t anything that was signiﬁcantly off” and that,

while there were some physical differences among the

lineup participants, “[t]here are height differences that

are allowed, and clothing.” The trial court concluded, “I

cannot ﬁnd, as a matter of law, that there was anything

impermissibly suggestive as to give rise to a substantial

likelihood of misidentiﬁcation.”

The trial proceeded before a jury. During trial,

Arnold, Primm, and Hollis testiﬁed that defendant was

602 325 M

ICH

598 [Aug

the person who shot Amir. Although Arnold testiﬁed

that

he had seen defendant’s name on television fol-

lowing the lineup, both Arnold and Primm testiﬁed

that their identiﬁcation of defendant was based on

their memory of his face at the time of the shooting,

rather than any other outside inﬂuence. Arnold was

asked whether defendant’s attire during the lineup

factored into his identiﬁcation, and Arnold denied that

it had.

At the close of proofs, the trial court prepared to

instruct the jury. Both the prosecutor and defense

counsel approved the proposed instructions, although

no one appears to have noticed that there were no

instructions for the two ﬁrearm-related counts—

carrying with intent and felony-ﬁrearm. Shortly after

the jury began deliberating, it asked the trial court in

writing: “There are 5 counts only 3 are in the back of the

binder. We thought the last two were dropped. Are we

voting on all 5? The verdict form has 5.” Recognizing its

error, the trial court asked counsel to research whether

it could provide instructions to the jury on the omitted

counts or, instead, it had to dismiss those counts. After

hearing argument, the trial court determined that it

could provide the omitted instructions, and the trial

court proceeded to reinstruct the jury, this time on all

ﬁve counts. The jury eventually returned a verdict of

guilty on two counts of assault with intent to do great

bodily harm less than murder, MCL 750.84 (a lesser-

included offense to assault with intent to commit mur-

der), as well as on the two ﬁrearm-related counts.

This appeal followed.

II. ANALYSIS

Defendant makes two claims on appeal. First, he

asserts

that

the trial court committed a structural

2018] P

EOPLE V

RAFT

603

constitutional error by instructing the jury on the two

omitted

counts. Second, he argues that the trial court

reversibly erred when it narrowed the Wade hearing

and held that the lineup was not impermissibly sug-

gestive. We consider each claim in turn.

A. SUPPLEMENTING THE JURY INSTRUCTIONS

Defendant’s ﬁrst claim centers on how the trial court

instructed

the jury. “We review a claim of instructional

error involving a question of law de novo, but we

review the trial court’s determination that a jury

instruction applies to the facts of the case for an abuse

of discretion.” People v Everett, 318 Mich App 511, 528;

899 NW2d 94 (2017) (cleaned up).

An abuse of discre-

tion

occurs when the trial court’s decision is outside the

range of reasonable and principled outcomes. Id. at

516. Our court rules authorize a trial court to supple-

ment its original instructions to the jury, and we

review interpretation of these rules de novo. People v

Lacalamita, 286 Mich App 467, 472; 780 NW2d 311

(2009).

Defendant maintains that the trial court lacked

authority to supplement its earlier jury instructions

with instructions on the two omitted counts. By agree-

ing to the original instructions, the prosecutor waived

any subsequent argument that the original instruc-

tions were somehow lacking or deﬁcient, according to

defendant. And by agreeing with the prosecutor and

supplementing its earlier instructions, the trial court

This

opinion uses the new parenthetical (cleaned up) to improve

readability without altering the substance of the quotation. The paren-

thetical indicates that nonsubstantive clutter such as brackets, internal

quotation marks, alterations, and unimportant citations have been

omitted from the quotation. See Metzler, Cleaning Up Quotations, 18 J

App Pract & Process 143 (2017).

604 325

ICH

598 [Aug

committed an instructional error, which, according to

defendant,

is a structural constitutional error requir-

ing reversal and a new trial. We reject both conten-

tions.

Waiver Is an Appellate Matter. In acquiescing to the

original, incomplete instructions, defendant argues

that the prosecutor thereby waived the ability subse-

quently to take the position before the trial court that

supplemental instructions were needed. This argu-

ment misreads our waiver jurisprudence. Defendant

cites as support MCR 2.512(C), which provides, in part,

that “[a] party may assign as error the giving of or the

failure to give an instruction only if the party objects

on the record before the jury retires to consider the

verdict.” Yet, the “assign as error . . . only if” provision

in the court rule does not act as a bar to proceedings in

the trial court, but rather as a restriction on appeal.

See People v Gonzalez, 256 Mich App 212, 225; 663

NW2d 499 (2003). If a party fails to object to the trial

court’s instructions, then the party has failed to pre-

serve the objection for appellate review. Id. The court

rule says nothing about whether, during trial court

proceedings, a party can alter its position on the

appropriateness of jury instructions when a question is

subsequently raised.

Defendant’s reliance on our Supreme Court’s deci-

sion in People v Carter, 462 Mich 206; 612 NW2d 144

(2000) is similarly unconvincing. The Carter decision

involved the distinction between waiving and forfeiting

an issue in trial court proceedings and how that waiver

or forfeiture, as the case may be, would affect appellate

review of that issue. See id. at 214-216. The decision

did not involve the position that defendant asserts

here, i.e., that by agreeing to the trial court’s original

instructions, the prosecutor waived any argument in

2018] P

EOPLE V

RAFT

605

the trial court proceedings that the

trial court could

supplement its own instructions. Defendant’s other

waiver-based authority is similarly unavailing. See,

e.g., Moore v Detroit Entertainment, LLC, 279 Mich

App 195, 224; 755 NW2d 686 (2008) (concluding that a

party’s expression of satisfaction with the trial court’s

instructions constituted a waiver that precluded appel-

late review). Thus, the prosecutor did not waive nor

was she otherwise estopped from arguing in favor of

the supplemental instructions simply because she ac-

quiesced to the original ones.

The Trial Court Averted a Structural Constitutional

Error. Defendant next argues that the trial court erred

by supplementing its original instructions with in-

structions on the two omitted counts, and, by doing so,

the trial court committed structural constitutional

error. While not entirely clear, it appears that defen-

dant’s argument is four-fold: (1) the trial court was

purportedly barred from providing supplemental in-

structions on the two counts; (2) had the trial court not

supplemented its instructions on the two counts, the

jury would have been left with a complete lack of

instruction on those counts; (3) any conviction on the

hypothetically “uninstructed” counts would have been

a structural constitutional error requiring automatic

reversal; and (4) because the trial court should not

have instructed on those counts, this Court should

treat the trial court’s supplemental instructions and

the jury’s subsequent convictions on the two counts as

a structural constitutional error. While creative, the

argument is ultimately unavailing.

One of the essential roles of the trial court is to

present “the case to the jury and to instruct it on the

applicable law” with instructions that include “all the

elements of the offenses charged against the defendant

606 325 M

ICH

598 [Aug

and any material issues, defenses, and theories that

are

supported by the evidence.” People v Dobek, 274

Mich App 58, 82; 732 NW2d 546 (2007). Our court rules

reﬂect that a trial court’s initial jury instructions are

not necessarily written in stone and that the instruc-

tions may need to be supplemented. Speciﬁcally, MCR

2.512(B)(1) provides, “At any time during the trial, the

court may, with or without request, instruct the jury on

a point of law if the instruction will materially aid the

jury in understanding the proceedings and arriving at

a just verdict.” MCR 2.513(N)(1) further states, “After

jury deliberations begin, the court may give additional

instructions that are appropriate.” Thus, the court

rules give the trial court broad authority to carry out

its duty to instruct the jury properly, and this authority

extends to instructing the jury even during delibera-

tions. There is nothing in the court rules that precludes

the trial court from supplementing its original instruc-

tions with instructions for an entire count, nor is there

anything in the rules to suggest that a party’s acqui-

escence to the original instructions somehow acts as a

bar to the trial court supplementing its instructions.

Indeed, our court rules are intended to give trial courts

the appropriate tools to avoid errors in the ﬁrst place,

and correct them in the second place. See Prentis

Family Foundation, Inc v Barbara Ann Karmanos

Cancer Institute, 266 Mich App 39, 52-53; 698 NW2d

900 (2005) (noting that “a trial court has unrestricted

discretion to review its previous decision” absent an

appellate court’s prior holding to the contrary).

As for defendant’s argument that the trial court

committed a structural constitutional error by in-

structing the jury on the two counts, we conclude just

the opposite—with its supplemental instructions, the

trial court did not commit a structural constitutional

error, but rather averted one. It was clear from the

2018] P

EOPLE V

RAFT

607

outset that defendant was being tried on ﬁve criminal

counts.

This was highlighted in the verdict form, which

indicated that the jury had to render verdicts on three

separate counts of assault with intent to commit mur-

der, one count of carrying with intent, and one count of

felony-ﬁrearm. Yet, when the jury reviewed the written

instructions, it could not ﬁnd anything covering the

latter two counts. It therefore asked the trial court for

guidance concerning their deliberations on the latter

two counts: Was it to presume those counts had been

dismissed or was the omission unintentional?

In response, the trial court concluded that it was

appropriate to reinstruct the jury by rereading all of

the instructions it had previously given and adding the

speciﬁc instructions for the two omitted offenses. The

supplemental instructions were “responsive to the

jury’s request and did not serve to mislead the jury in

any manner.” People v Katt, 248 Mich App 282, 311;

639 NW2d 815 (2001). In fact, the trial court could

have chosen to give only the instructions on the two

omitted offenses, but rather it chose to reinstruct the

jury on all of the charges to avoid any prejudice that

might have resulted from piecemeal consideration. Id.

Had the jury returned a guilty verdict on either of the

two counts without the additional instructions, the

omission would have been a structural error likely

warranting reversal. People v Duncan, 462 Mich 47,

48; 610 NW2d 551 (2000); cf. People v Traver, 502 Mich

23, 40 n 7; 917 NW2d 260 (2018) (noting that it is an

open question whether a defendant can waive appel-

late review of a structural error resulting from convic-

tion on a charge for which there was a complete failure

to instruct).

The trial court’s decision to reinstruct the jury—one

which was made after considerable input from the

608 325 M

ICH

598 [Aug

parties—was reasonably calculated to protect defen-

dant’s

right to a properly instructed jury while avoid-

ing the time and costs of a new trial. Given this, the

trial court’s decision was within the range of reason-

able and principled outcomes and was not an abuse of

its discretion.

B. THE PRETRIAL LINEUP

Defendant also argues that Arnold and Primm’s

identiﬁcations

of defendant should have been excluded

at trial because the pretrial lineup was impermissibly

suggestive. Defendant argues that the trial court

should have granted his request for a Wade evidentiary

hearing and that such a hearing would have conﬁrmed

the impropriety of the identiﬁcation procedure.

While we review the trial court’s decision whether to

hold an evidentiary hearing for an abuse of discretion,

People v Unger, 278 Mich App 210, 216-217; 749 NW2d

272 (2008), the trial court’s decision to admit or deny

identiﬁcation evidence is reviewed for clear error,

People v Hornsby, 251 Mich App 462, 466; 650 NW2d

700 (2002). “Clear error exists when the reviewing

court is left with a deﬁnite and ﬁrm conviction that a

mistake was made.” Id. Defendant was represented by

counsel at the pretrial lineup and therefore he “bears

the burden of showing that the lineup was impermis-

sibly suggestive.” People v McElhaney, 215 Mich App

269, 286; 545 NW2d 18 (1996).

First, we conclude that defendant has not met his

burden to show an entitlement to an expanded eviden-

tiary hearing under Wade. The trial court did conduct

an evidentiary hearing regarding the lineup, during

which a photograph of the lineup was admitted as

evidence and defendant’s lineup counsel testiﬁed to her

impression of the procedure. On appeal, defendant

2018] P

EOPLE V

RAFT

609

does not identify any other evidence that was neces-

sary

to a determination of the lineup’s suggestibility.

While defendant’s motion before the trial court indi-

cated that he wished to present testimony from Arnold

and Primm, as well as four police detectives, both

Arnold and Primm testiﬁed at trial, and, on appeal,

defendant has not explained what testimony he wished

to elicit from the detectives. Defendant does not ex-

plain why the photograph and his lineup counsel’s

testimony were insufﬁcient for the trial court to decide

the issue, nor does defendant explain why the trial

testimony of Arnold and Primm is insufﬁcient for this

Court to address the suggestibility of the lineup on

appeal. Accordingly, we conclude that defendant was

not entitled to an expanded evidentiary hearing when

originally requested, nor is he now entitled to this

hearing postconviction. See People v Payne, 285 Mich

App 181, 195; 774 NW2d 714 (2009).

Second, we conclude that defendant has not shown

that the identiﬁcation was impermissibly suggestive.

Defendant focuses on several factors that he insists

rendered the identiﬁcation procedure impermissibly

suggestive. He claims that he was smaller than the

other lineup participants, he was one of only two

participants in an orange jail jumpsuit, and he had a

lighter complexion than the other participants. “Physi-

cal differences among the lineup participants do not

necessarily render the procedure defective and are

signiﬁcant only to the extent that they are apparent to

the witness and substantially distinguish the defen-

dant from the other lineup participants.” Hornsby, 251

Mich App at 466. Generally, physical differences affect

the weight of an identiﬁcation, not its admissibility. Id.

Here, the physical differences were not so dramatic

as to render the lineup impermissibly suggestive. De-

610 325 M

ICH

598 [Aug

fendant has attached to his appellate brief the

“Showup

& Photo Identiﬁcation Record” from the

lineup. According to this form, defendant was 5’ 6” tall

and weighed 150 pounds. The other participants in the

lineup were, respectively (Participant 1) 5’ 5” tall and

195 pounds; (Participant 2) 6’ tall and 180 pounds;

(Participant 3) 5’ 9” tall and 150 pounds; (Participant

4) 6’ tall and 185 pounds; and (Participant 5) 5’ 9” tall

and 135 pounds. While there was some variance be-

tween the participants’ heights and weights, it was not

the type of variance that would make defendant stick

out from the grouping. Indeed, defendant ranks some-

where in the lower-middle of the sample based on

height and weight. Regarding defendant’s complexion,

the photograph does not depict any marked differences

in complexion among the participants. Moreover, we

note no marked variance in the physical build of the

subjects in the photograph.

While it is generally preferable to present lineup

participants in attire that is not indicative of their

conﬁnement (or alternatively to present all lineup

participants in jailhouse attire, see, e.g., United States

v Erickson, 797 F Supp 1387, 1394 (ND Ill, 1992)), in

this case, defendant was not the only person in the

lineup wearing an orange jumpsuit. Furthermore, both

Arnold and Primm testiﬁed that their identiﬁcation of

defendant was based solely on his facial features, not

on clothing or other physical characteristics. Arnold

speciﬁcally testiﬁed that his identiﬁcation of defendant

was not based on defendant’s jumpsuit. In sum, defen-

dant has not shown that the lineup was so suggestive

as to distinguish substantially defendant from the

other participants.

To the extent that defendant argues that Arnold’s

and Primm’s identiﬁcations were based upon factors

2018] P

EOPLE V

RAFT

611

external to the lineup, he has not provided evidence in

support

of that assertion. While defendant argues that

Arnold saw defendant’s picture on television before

making his identiﬁcation, Arnold’s testimony makes

clear that he only viewed defendant’s name on the

news after the lineup was conducted. Thus, defendant

has provided no evidence of any inﬂuence that would

render the lineup impermissibly suggestive.

Finally, even if defendant had shown that the lineup

was impermissibly suggestive, he has not shown that

the error undermined the reliability of the jury’s ver-

dict. MCR 2.613(A). Several other pieces of evidence

presented at trial tended to establish defendant’s iden-

tity as the shooter. First, Hollis testiﬁed that he had

known defendant for three years before the shooting,

the two had a disagreement the day before the shoot-

ing, and defendant asked Hollis if he wanted to ﬁght

before starting to shoot, calling Hollis by his nickname

when doing so. On appeal, defendant has not chal-

lenged Hollis’s identiﬁcation. Moreover, the record

indicates that defendant was seen in a vehicle match-

ing the description of the get-away vehicle shortly after

the shooting. The evidence further shows that defen-

dant ﬂed when questioned by police. Defendant’s ﬂight

is relevant circumstantial evidence of his conscious-

ness of guilt. Unger, 278 Mich App at 226.

Given this evidence of defendant’s identity, we con-

clude that any error in the admission of Arnold’s and

Primm’s identiﬁcation of defendant would have been

harmless. To the extent that defendant argues that his

lineup counsel was ineffective for failing to object to the

lineup procedure, because defendant has not shown

that the lineup was impermissibly suggestive or that

any suggestiveness undermines the reliability of the

jury’s verdict, defendant has failed to show that his

612 325 M

ICH

598 [Aug

lineup counsel was ineffective. People

v Sabin (On

Second Remand), 242 Mich App 656, 659; 620 NW2d 19

(2000).

III. CONCLUSION

Before the jury returns its verdict, the trial court

may

supplement its instructions in any manner con-

sistent with the accurate determination of the charges.

Thus, in the situation presented here, when the trial

court unintentionally omitted any instruction on two

entire counts, the trial court did not abuse its discre-

tion by providing accurate supplemental instructions

addressing each of the charged counts. Because defen-

dant’s remaining claim of error is similarly without

merit, we afﬁrm his convictions.

AVANAGH

and M. J. K

ELLY

, JJ., concurred with

WARTZLE

, P.J.

2018] P

EOPLE V

RAFT

613

WAYNE COUNTY v AFSCME LOCAL 3317

Docket

No. 339493. Submitted August 8, 2018, at Lansing. Decided

August 28, 2018, at 9:00 a.m.

AFSCME Local 3317 (the union) ﬁled unfair labor practice (ULP)

complaints with the Michigan Employment Relations Commis-

sion (MERC) against Wayne County for activities that occurred

over a three-year period, beginning in 2015. Wayne County

entered into a collective-bargaining agreement with the union for

the period October 1, 2011, through September 30, 2014. In July

2014, the union ﬁled with MERC ULP Charge 1, alleging a failure

to bargain in good faith in 2014 as required by MCL 423.215(1) of

the public employment relations act (PERA), MCL 423.201 et seq.

In May 2015, the union again alleged that Wayne County had

failed to bargain in good faith in April 2015 (ULP Charge 2).

Because it was experiencing a ﬁnancial emergency, on August 21,

2015, Wayne County entered into a consent agreement with the

State Treasurer under the Local Financial Stability and Choice

Act (Act 436), MCL 141.1541 et seq., as enacted by 2012 PA 436.

The consent agreement exempted Wayne County from mandatory

collective bargaining under PERA for a period of three years (the

collective-bargaining suspension period). That period commenced

on September 20, 2015, after a 30-day window had passed that

allowed for continued negotiations; the parties did not reach a

collective-bargaining agreement during that 30-day period, and

the county executive imposed employment terms and conditions

on union members on September 21, 2015. In February 2016, the

union ﬁled ULP Charge 3 with MERC, alleging that Wayne

County had failed to engage in good-faith bargaining during the

30-day window from August 21, 2015 through September 20,

2015. On October 18, 2016, the State Treasurer notiﬁed Wayne

County that the county had satisﬁed the terms of the consent

agreement and that it was released from the agreement. How-

ever, because the release date occurred after the start of Wayne

County’s then current ﬁscal year, under the consent agreement

and MCL 141.1561, the Act 436 protections remained in place for

the 2017 and 2018 two-year budgetary period; as a result, Wayne

County’s duty to participate in collective bargaining would not be

reinstated until October 1, 2018. In November 2016, the union

614 325

ICH

614 [Aug

ﬁled ULP Charge 4, alleging that Wayne County had refused to

engage

in collective bargaining after the October 2016 release. In

tandem with ULP Charge 4, the union also petitioned MERC for

mediation, seeking to force Wayne County to reopen collective-

bargaining negotiations. Wayne County moved for summary

disposition of the four ULP charges, arguing that Act 436 de-

prived MERC of authority and jurisdiction to hear and resolve

ULP Charges 1 through 4, regardless of whether the alleged

violations occurred before or during the collective-bargaining

suspension period. The administrative law judge recommended

denying Wayne County’s motion, concluding that Wayne County

was subject to mandatory collective bargaining after the October

2016 release and that MERC had jurisdiction to adjudicate ULP

charges brought under MCL 423.15(1) of PERA for conduct that

occurred during the collective-bargaining suspension period.

MERC subsequently dismissed the union’s mediation petition,

concluding that because the collective-bargaining suspension

period was extended to October 1, 2018, MERC was precluded

from ordering Wayne County to participate in collective bargain-

ing. With regard to the ULP charges, the ALJ subsequently

recommended dismissing ULP Charge 1, noting that it had

jurisdiction over the charge and concluding that the union had

failed to establish a PERA violation. Before the ALJ reached that

decision, Wayne County moved for reconsideration of MERC’s

earlier decision that had dismissed the union’s mediation peti-

tion. On reconsideration, MERC denied the motion, reasoning

that nothing in Act 436, PERA, or the consent agreement ex-

empted Wayne County from liability for ULPs, the commission

retained jurisdiction over ULP charges against a public employer

during a collective-bargaining suspension period, and the ULP

charges were properly before the ALJ to determine whether the

charges stated a claim upon which relief could be granted. Wayne

County appealed MERC’s determination that it had jurisdiction

to adjudicate the ULP charges.

The Court of Appeals held:

1. MCL 423.215(1) mandates that a public employer must

bargain collectively with the representatives of its employees and

that the employer may make and enter into collective-bargaining

agreements with those representatives. Violations of MCL

423.210, which sets forth a list of prohibitions and conditions

related to public employment, constitute ULPs remediable by

MERC because MCL 423.216 vests MERC with exclusive juris-

diction over ULPs.

2018] W

AYNE

O V

AFSCME L

OCAL

3317 615

2. Act 436 was enacted to address ﬁnancial emergencies

involving

local governmental units and to provide ﬁscal stability

and accountability for those entities. Under the act, after a

multi-tiered review process of a governmental unit’s ﬁnances is

conducted, the governor may declare that a ﬁnancial emergency

exists in that governmental unit. When the governor declares a

ﬁnancial emergency, under MCL 141.1547(1)(a), the governmen-

tal unit may enter into a consent agreement with the state

treasurer. If the parties are unable to agree on a collective-

bargaining agreement within 30 days of the consent agreement,

the local government’s chief administrative ofﬁcer may impose

employment terms and conditions on the union members. In that

regard, both Act 436 and PERA contain provisions excluding the

local governmental unit from mandatory collective bargaining for

the term of the consent agreement.

3. The subject-matter jurisdiction of an administrative

agency to hear and resolve a particular cause or matter is deﬁned

by statute. The power and authority conferred on an agency by

statute must be by clear and unmistakable language; similarly,

the Legislature’s divestiture of subject-matter jurisdiction must

also be stated clearly and unambiguously in a statute. Under

MCL 423.216, MERC has exclusive authority and power to

adjudicate ULP charges; the plain language of Act 436 does not

divest MERC of that jurisdiction during a ﬁnancial emergency

but instead simply curtails a union’s ability to force collective

bargaining during that suspension period. Accordingly, MERC

has authority to adjudicate ULP charges before, during, and after

a collective-bargaining suspension period, regardless of whether

the ULP charges concern conduct occurring within or outside the

suspension period or whether the charges assert a failure to

bargain; any Act 436 limitation on available remedies for ULP

violations does not affect MERC’s jurisdiction to adjudicate ULP

charges. In this case, MERC had jurisdiction to hear all the

union’s ULP charges even if no remedy existed because of the

suspension of mandatory collective bargaining under Act 436,

PERA, and the consent agreement.

Afﬁrmed.

DMINISTRATIVE

AW —

ICHIGAN

MPLOYMENT

ELATIONS

OMMISSION —

UBJECT

-M

ATTER

URISDICTION

The Local Financial Stability and Choice Act (Act 436), MCL

141.1541 et seq., and the public employment relations act (PERA),

MCL 423.201 et seq., both contain provisions excluding a local

governmental unit from mandatory collective bargaining for the

616 325 M

ICH

614 [Aug

term of a consent agreement during a ﬁnancial emergency (the

collective-bargaining

suspension period); the Michigan Employ-

ment Relations Commission (MERC) has exclusive authority and

power to adjudicate unfair labor practice (ULP) charges; the plain

language of Act 436 does not divest MERC of jurisdiction to hear

ULP charges during a ﬁnancial emergency but instead simply

curtails a union’s ability to force collective bargaining during that

suspension period; any Act 436 limitation on available remedies

for ULP violations does not affect MERC’s jurisdiction to adjudi-

cate the charges before, during, and after a collective-bargaining

suspension period, regardless of whether the ULP charges con-

cern conduct occurring within or outside the suspension period or

whether the charges assert a failure to bargain.

Bruce A. Campbell,

Assistant Corporation Counsel,

for Wayne County.

Jamil Akhtar, PC (by Jamil Akhtar) for AFSCME

Local 3317.

Before: M

URPHY

, P.J., and G

LEICHER

and L

ETICA

, JJ.

URPHY

, P.J. In the midst of a ﬁnancial emergency,

respondent, Wayne County (the County), entered into

a consent agreement with Michigan’s treasurer (the

State Treasurer) under the Local Financial Stability

and Choice Act (Act 436), MCL 141.1541 et seq., as

enacted by 2012 PA 436. Pursuant to the consent

agreement, the County was temporarily given a re-

prieve from being subject to mandatory collective bar-

gaining under the public employment relations act

(PERA), MCL 423.201 et seq., for a period that will

ultimately span approximately three years, ending

October 1, 2018. The County’s position is that the

Michigan Employment Relations Commission (MERC)

did not and does not have subject-matter jurisdiction to

adjudicate unfair labor practice (ULP) charges against

the County during the three-year period. Petitioner,

AFSCME Local 3317 (the Union), ﬁled various ULP

2018] W

AYNE

O V

AFSCME L

OCAL

3317 617

charges with MERC against the County, all of which,

while

ﬁled at different times and pertaining to differ-

ent conduct occurring before and during the three-year

period, were pending after the County’s obligation to

engage in collective bargaining ceased. MERC ruled

that the administrative law judge (ALJ) hearing the

ULP charges has subject-matter jurisdiction to enter

recommended orders on the charges. MERC further

concluded that if a particular ULP charge concerned a

failure to collectively bargain during the time frame

when the County had no obligation to bargain, the

proper remedy would be dismissal for failure to state a

claim, which is a matter for the ALJ to decide in the

ﬁrst instance, with MERC becoming involved only

upon the ﬁling of an exception. The County appeals

MERC’s decision regarding subject-matter jurisdic-

tion. We hold that nothing in the language of Act 436

reveals a legislative intent to divest MERC of its

subject-matter jurisdiction to hear and resolve ULP

charges during the period in which a local government

is not subject to the requirement that it participate in

collective bargaining. Accordingly, we afﬁrm.

Because an understanding of the statutes impli-

cated in this case is necessary to understand the

history and background of the litigation between the

parties, we begin our discussion by examining the

relevant statutory schemes.

I. PUBLIC EMPLOYMENT RELATIONS ACT (PERA)

“The legislature may enact laws providing for the

resolution

disputes concerning public employees,

except those in the state classiﬁed civil service.” Const

1963, art 4, § 48. Our Legislature enacted PERA, and

“[t]he supremacy of the provisions of the PERA is

predicated on the Constitution . . . and the apparent

618 325 M

ICH

614 [Aug

legislative intent that . . . PERA be the governing law

for

public employee labor relations.” Rockwell v Crest-

wood Sch Dist Bd of Ed, 393 Mich 616, 630; 227 NW2d

736 (1975); see also Bank v Mich Ed Ass’n-NEA, 315

Mich App 496, 500; 892 NW2d 1 (2016) (“PERA governs

public-sector labor relations . . . .”). PERA drastically

altered labor relations in Michigan with respect to

public employees, reﬂecting legislative goals to protect

public employees against ULPs and to provide reme-

dial access to a state-level administrative agency with

specialized expertise in ULPs. Macomb Co v AFSCME

Council 25 Locals 411 & 893, 494 Mich 65, 78; 833

NW2d 225 (2013).

Section 10 of PERA, MCL 423.210, sets forth a list of

prohibitions and conditions related to public employ-

ment,

and “[v]iolations of the provisions of section 10

shall

be deemed to be unfair labor practices remediable

by [MERC],” MCL 423.216. See St Clair Intermediate

Sch Dist v Intermediate Ed Ass’n/Mich Ed Ass’n, 458

Mich 540, 550; 581 NW2d 707 (1998) (noting that

MCL

423.210(1) provides:

A public employer or an ofﬁcer or agent of a public employer

shall not do any of the following:

(a) Interfere with, restrain, or coerce public employees in the

exercise of their rights guaranteed in [MCL 423.209].

(b) Initiate, create, dominate, contribute to, or interfere with

the formation or administration of any labor organization. . . . A

public employer may permit employees to confer with a labor

organization during working hours without loss of time or pay.

employment to encourage or discourage membership in a labor

organization.

(d) Discriminate against a public employee because he or she

has given testimony or instituted proceedings under this act.

(e) Refuse to bargain collectively with the representatives of its

public employees . . . . [Emphasis added.]

2018] W

AYNE

O V

AFSCME L

OCAL

3317 619

violations of MCL 423.210 constitute ULPs under MCL

23.216). MCL 423.216 vests “MERC with exclusive

jurisdiction over unfair labor practices.” St Clair

Intermediate, 458 Mich at 550 (emphasis added); see

also Detroit Bd of Ed v Parks, 417 Mich 268, 283; 335

NW2d 641 (1983); Lamphere Sch v Lamphere Federa-

tion of Teachers, 400 Mich 104, 118; 252 NW2d 818

(1977); Rockwell, 393 Mich at 630; Bank, 315 Mich App

at 500.

The litigation between the parties in MERC impli-

cated § 15(1) of PERA, MCL 423.215(1), which pro-

vides as follows:

A public employer shall bargain collectively with the

epresentatives of its employees as described in section 11

and may make and enter into collective bargaining agree-

ments with those representatives. Except as otherwise

provided in this section, for the purposes of this section, to

bargain collectively is to perform the mutual obligation of

the employer and the representative of the employees to

meet at reasonable times and confer in good faith with

respect to wages, hours, and other terms and conditions of

employment, or to negotiate an agreement, or any question

arising under the agreement, and to execute a written

contract, ordinance, or resolution incorporating any agree-

ment reached if requested by either party, but this obliga-

tion does not compel either party to agree to a proposal or

make a concession.

For purposes of § 15(1) of PERA, “[a]fter the parties

ve met in good faith and bargained over the manda-

tory subjects placed upon the bargaining table, they

have satisﬁed their statutory duty.” Detroit Police Ofﬁ-

cers Ass’n v Detroit, 391 Mich 44, 55; 214 NW2d 803

(1974).

Accordingly, absent contemplation of Act 436, the

County has a mandatory obligation to bargain collec-

tively with unions representing county employees,

doing so in good faith with respect to the terms and

620 325 M

ICH

614 [Aug

conditions of employment, and any ULP charge falls

within

the exclusive jurisdiction of MERC.

II. LOCAL FINANCIAL STABILITY AND CHOICE ACT (ACT 436)

Act 436 was designed to address ﬁnancial emergen-

ies involving local governmental units and to provide

ﬁscal stability and accountability for those entities.

MCL 141.1543. Under Act 436, the State Treasurer,

acting as the “state ﬁnancial authority” for “municipal

governments,” which by statutory deﬁnition include

counties,

may conduct, under certain enumerated cir-

umstances, preliminary reviews in order to help deter-

mine whether a county is experiencing probable ﬁnan-

cial stress. MCL 141.1544(1); MCL 141.1542(n) and

(u)(i). The preliminary-review process entails written

notiﬁcation to a county before the review is commenced,

an interim and ﬁnal report by the State Treasurer, and

then a determination by a “local emergency ﬁnancial

assistance loan board” whether “probable ﬁnancial

stress exists for the” county. MCL 141.1544(3).

If probable ﬁnancial stress is found, Michigan’s gov-

ernor (the Governor) is required to appoint a “review

team” for the county. MCL 141.1544(4). The review

team then examines the county’s ﬁnancial condition and

prepares a written report, which must include statuto-

rily speciﬁed information and state whether a “ﬁnancial

emergency” exists in the county. MCL 141.1545(1) to (4).

After receiving the report and taking certain designated

procedural steps, the Governor must determine

whether a ﬁnancial emergency exists in the county.

MCL 141.1546(1) and (2).

If the Governor determines that a ﬁnancial emer-

gency exists, a county may appeal that decision in the

e shall limit our discussion of Act 436 to its application to

ﬁnancially distressed counties.

2018] W

AYNE

O V

AFSCME L

OCAL

3317 621

Court of Claims, but only when

of the members of

the county’s governing body adopt a resolution to

appeal. MCL 141.1546(3). A county has various options

to consider when faced with a determination that a

ﬁnancial emergency exists in the county, including, as

relevant here, the option of entering into a “consent

agreement.” MCL 141.1547(1)(a). MCL 141.1548 pro-

vides details with respect to consent agreements, and

Subsection (11), MCL 141.1548(11), states:

Unless the state treasurer determines otherwise, be-

ginning

30 days after the date a local government enters

into a consent agreement under this act, that local gov-

ernment is not subject to section 15(1) of 1947 PA 336,

MCL 423.215 [that is, mandatory collective bargaining],

for the remaining term of the consent agreement.

A reciprocal provision in PERA is MCL 423.215(9),

which

provides that “[a] unit of local government that

enters into a consent agreement under the local ﬁnan-

cial stability and choice act . . . is not subject to subsec-

tion (1) [mandatory collective bargaining] for the term

of the consent agreement, as provided in the local

ﬁnancial stability and choice act . . . .”

III. CONSENT AGREEMENT

In light of severe ﬁnancial distress, the County

itiated and participated in proceedings under Act

436. And on August 21, 2015, upon the determination

that a ﬁnancial emergency existed in the County,

the County entered into a consent agreement with

the State Treasurer.

Paragraph 2 of the consent

agreement

provided, in pertinent part:

reﬂected in the agreement, the legislative authority of the County

is vested in a county commission, and the County’s elected county

executive (the County Executive) is the chief administrative ofﬁcer of

the County. See MCL 141.1542(b)(iv).

622 325

ICH

614 [Aug

(b) Consistent with [MCL 141.1548(11)] of Act 436,

eginning 30 days after the effective date of this agree-

ment the County is not subject to section 15(1) of [PERA],

MCL 423.215, for the remaining term of this agreement.

agreement, if a collective bargaining agreement has

expired, the County Executive may exercise the powers

prescribed for emergency managers under [MCL

141.1552(1)(ee)] of Act 436 to impose by order matters

relating to wages, hours, and other terms and conditions

of employment, whether economic or noneconomic, for

County employees previously covered by the expired

collective bargaining agreement.

Taking into consideration the 30-day window in the

consent

agreement, the County’s PERA obligation to

engage in collective bargaining with the Union was

suspended starting September 20, 2015. A collective-

bargaining agreement that had existed between the

parties expired in September 2014, and despite nego-

tiations, a new collective-bargaining agreement could

not be reached by September 20, 2015, although the

County did enter into collective-bargaining agree-

ments by that date with all other county-afﬁliated

unions. The County Executive, exercising the powers

of an emergency manager, proceeded to impose em-

ployment terms and conditions on Union members on

September 21, 2015.

On October 18, 2016, the State Treasurer provided

the County with written notiﬁcation that the County

had satisﬁed the terms of the consent agreement and

that it was therefore released from the agreement.

However, for purposes of clariﬁcation and by letter

dated November 10, 2016, the State Treasurer in-

formed the County that as required by the consent

agreement, the County had to adopt a two-year bud-

get beginning the ﬁrst ﬁscal year after the release.

2018] W

AYNE

O V

AFSCME L

OCAL

3317 623

The State Treasurer recognized that the release on

ctober 18, 2016, occurred 18 days after the start of

the County’s current ﬁscal year, but the State Trea-

surer indicated that the two-year budget contem-

plated by the Treasury Department at the time of the

release was for ﬁscal years 2017 and 2018. As gleaned

by reading Paragraphs 2(d), 10, and 11 of the consent

agreement and § 21 of Act 436, MCL 141.1561, the

protections of Act 436 remain in place for the two-year

budgetary period, including suspension of the Coun-

ty’s obligation to engage in collective bargaining un-

der MCL 423.215(1). Thus—given the State Treasur-

er’s notiﬁcation of release, the State Treasurer’s letter

of clariﬁcation, provisions in the consent agreement,

and Act 436—the County’s duty to participate in

collective bargaining will not be reinstated until

October 1, 2018 (the beginning of ﬁscal year 2019).

Accordingly, from September 20, 2015, until October 1,

2018, the County was and is not subject to MCL

423.215(1), i.e., PERA’s mandatory collective-

bargaining provision. We shall refer to this time frame

as “the collective-bargaining suspension period.”

scussed later in this opinion, there was a dispute

between the parties whether the collective-bargaining

suspension period actually ended upon the release in

mid-October 2016, as urged by the Union, or whether

it ran until at least October 1, 2018, as urged by the

County. The ALJ found in the Union’s favor, but

MERC agreed with the County, and MERC’s ruling

has not been challenged.

or purposes of the remainder of this opinion, when we refer to “a

collective-bargaining suspension period,” we mean, generally speak-

ing, a period in which a local government has no legal obligation to

engage in collective bargaining because of a ﬁnancial emergency under

Act 436.

624 325 M

ICH

614 [Aug

IV. LITIGATION BETWEEN THE PARTIES

The

procedural history of MERC litigation between

the parties is extensive and dizzying. For our purposes,

we shall attempt to keep it simple, focusing only on the

relevant procedural facets of the litigation. The County

and the Union entered into a collective-bargaining

agreement that was effective from October 1, 2011,

through September 30, 2014. In July 2014, the Union

ﬁled a ULP charge with MERC against the County,

alleging that in 2014 the County had engaged in

bad-faith bargaining under PERA. The ULP charge

covered negotiations and conduct by the County that

occurred before the collective-bargaining suspension

period. We shall refer to this ULP charge as ULP

Charge 1. In May 2015, the Union sought to amend

ULP Charge 1 to add new allegations of PERA viola-

tions relative to actions taken by the County in April

2015, which was also before the collective-bargaining

suspension period. The ALJ allowed the Union to

pursue the new ULP charge, but bifurcated it from

ULP Charge 1, effectively creating ULP Charge 2

based on the County’s conduct in April 2015.

As indicated earlier, on August 21, 2015, after a

ﬁnancial-emergency determination had been made,

the County and the State Treasurer executed the

consent agreement, which allowed for 30 more days of

mandatory collective bargaining before the collective-

bargaining suspension period commenced on Septem-

ber 20, 2015. In February 2016, the Union ﬁled ULP

Charge 3 with MERC against the County, alleging a

failure to engage in good-faith bargaining in violation

of PERA with respect to the County’s negotiations and

conduct from August 21, 2015, up to September 20,

2015 (the consent agreement’s 30-day window).

2018] W

AYNE

O V

AFSCME L

OCAL

3317 625

Finally, in November 2016, the Union ﬁled ULP

Charge

4 with MERC against the County, alleging that

despite the consent agreement expiring when the State

Treasurer notiﬁed the County in October 2016 of a

“release” from the agreement, the County nevertheless

refused to engage in collective bargaining following the

release. Other ULP accusations were also part of ULP

Charge 4. As noted earlier, because a two-year budget-

ary period had to essentially be tacked on to the date of

the release, the collective-bargaining suspension pe-

riod did not terminate in October 2016 but will do so at

the end of September 2018. Relevant here, in Novem-

ber 2016, aside from ﬁling ULP Charge 4, the Union

also ﬁled a petition with MERC for mediation, as part

of an effort to reopen collective-bargaining negotia-

tions with the County and as a prerequisite to binding

arbitration under 1969 PA 312, MCL 423.231 et seq.,

commonly referred to as “Act 312.” See Oakland Co v

Oakland Co Deputy Sheriff’s Ass’n, 282 Mich App 266,

268; 765 NW2d 373 (2009), vacated in part on other

grounds 483 Mich 1133 (2009). This mediation peti-

tion, like ULP Charge 4, was premised on the Union’s

faulty position that the freeze on collective bargaining

ended when the State Treasurer notiﬁed the County in

October 2016 that it was released from the consent

agreement.

To recap, ULP Charges 1 through 3 concerned al-

leged PERA violations that took place before the

collective-bargaining suspension period commenced,

while ULP Charge 4 was in regard to conduct that

occurred during the collective-bargaining suspension

period, although the Union did not view it that way.

The Union’s mediation petition sought to force collec-

tive bargaining during the collective-bargaining sus-

pension period. The dispute between the parties took

two different tracks, one pertaining to all four ULP

626 325 M

ICH

614 [Aug

charges ﬁled by the Union and one concerning the

Union’s

mediation petition.

With respect to the four ULP charges, the County

ﬁled a motion for summary disposition with the ALJ,

arguing, in pertinent part, that the consent agreement

and Act 436 deprived MERC of authority and jurisdic-

tion to hear and resolve the ULP charges that were

based on violations of PERA’s mandatory, good-faith

collective-bargaining provision, § 15(1), regardless of

whether the alleged violations occurred before or dur-

ing the collective-bargaining suspension period. The

County’s position was that MERC could not adjudicate

§ 15(1) ULP charges during the pendency of the

collective-bargaining suspension period. The ALJ

agreed with the Union that the consent agreement no

longer protected the County following the release no-

tiﬁcation by the State Treasurer in mid-October 2016.

Additionally, the ALJ concluded that MERC did not

lose its jurisdiction to adjudicate ULP charges brought

under § 15(1) of PERA when the conduct at issue

occurred while the County was still subject to § 15(1).

The ALJ recognized the County’s burden of having to

litigate § 15(1) ULP charges during the collective-

bargaining suspension period, which is why the ALJ

had held the proceedings in abeyance. The ALJ deter-

mined, however, that nothing in Act 436 could “be read

to stand for the premise that past transgressions are

immediately unassailable because of a consent agree-

ment.” Accordingly, the ALJ issued a recommended

order denying the County’s motion for summary dispo-

sition of the four ULP charges.

Within two months of the ALJ’s decision, MERC, the

full commission, issued a decision and order on a

motion by the County to dismiss the Union’s mediation

petition. MERC dismissed the petition after ﬁnding

2018] W

AYNE

O V

AFSCME L

OCAL

3317 627

that the collective-bargaining suspension period in-

deed

extended to October 1, 2018, precluding MERC

from ordering the County to participate in mediation

for purposes of forming a new collective-bargaining

agreement. The Union has not challenged that deci-

sion. In its decision and order, MERC mentioned that

the parties had referred to the earlier contrary deter-

mination by the ALJ that the consent agreement no

longer permitted the County to avoid its obligation to

engage in collective bargaining as of mid-October 2016.

However, while recognizing that the ALJ had ruled

differently, MERC observed that the ALJ’s decision

“did not dismiss or sustain either of the four unfair

labor practice charges in their entirety,” and therefore

any review by MERC had to “await the ﬁling of

exceptions to the ALJ’s decision and recommended

order . . . .” Apparently, no exceptions to the ALJ’s

recommended order were ever ﬁled.

Within two weeks of MERC’s decision, the ALJ

issued a decision and recommended order with respect

to ULP Charge 1, which, as noted, pertained to nego-

tiations and conduct by the County in 2014—that is,

before the collective-bargaining suspension period. In

the decision, the ALJ acknowledged MERC’s ruling

that the collective-bargaining suspension period was

not scheduled to end until October 1, 2018, and stated

that he intended to follow that decision. The ALJ

concluded, however, that nothing in MERC’s decision

precluded the ALJ from exercising jurisdiction over

ULP Charge 1, or any of the ULP charges, except for a

portion of ULP Charge 4 that claimed a failure to

engage in collective bargaining. The ALJ proceeded to

substantively address ULP Charge 1, ﬁnding that the

Union had failed to establish a PERA violation by the

County. The ALJ entered a recommended order to

dismiss ULP Charge 1.

628 325 M

ICH

614 [Aug

Shortly before the ALJ issued its decision regarding

ULP

Charge 1 and its authority to exercise jurisdiction

over the ULP charges, the County had ﬁled a motion

for reconsideration with respect to MERC’s earlier

ruling dismissing the Union’s mediation petition. In a

decision on the reconsideration motion, MERC stated

that although the County had prevailed on the media-

tion issue, the County was asking MERC “to reconsider

our decision and to instruct [the ALJ] to dismiss four

unfair labor practice charge cases that were pending

between the parties at that time.” MERC acknowl-

edged that the ALJ had, in the meantime, recom-

mended dismissal of ULP Charge 1. MERC ruled:

The County has based its motion for reconsideration on

its

assertion that the ALJ . . . has no jurisdiction over the

unfair labor practice charges before him because the

County is not currently subject to the duty to bargain. The

County argues that Act 436, . . . PERA, and the Consent

Agreement not only authorize the suspension of the Coun-

ty’s duty to bargain, but also exempt it from responsibility

for any alleged unfair labor practices that may have

occurred prior to or during the term of the Consent

Agreement.

For the reasons that follow, we ﬁnd no basis to conclude

that either Act 436, . . . PERA, or the Consent Agreement

exempt the County from responsibility for unfair labor

practices. Beside the references to § 15(1) of PERA in Act

436, there are no other references in Act 436 to any

provision of PERA. With the exception of the references to

Act 436 in § 15(7), (8), & (9) of PERA, there are no

references in PERA to Act 436. Nothing in the language of

Act 436 discusses unfair labor practices or the Commis-

sion’s subject matter jurisdiction.

The suspension of a public employer’s duty to bargain

does not affect the Commission’s jurisdiction over unfair

labor practice charges against that public employer. As

explained in further detail below, the effect of the suspen-

sion of a public employer’s duty to bargain under Act 436

2018] W

AYNE

O V

AFSCME L

OCAL

3317 629

is to limit the kinds of actions or inaction by that employer

that

could constitute an unfair labor practice. If a public

employer whose duty to bargain has been suspended is

charged with an unfair labor practice prior to or during

the term of the suspension, the Commission is responsible

for determining whether the alleged unfair labor practice

has been committed.

MERC proceeded to rule that a ULP charge can be

based on conduct other than a failure to bargain

collectively or a failure to do so in good faith, citing

MCL 423.210(1)(a) to (d). See note 1 of this opinion.

Therefore, the suspension of the County’s duty to

bargain would have no bearing on such claims. MERC

then observed “that the issue of whether an ALJ can

adjudicate an unfair labor practice charge against the

County is not determined by whether the County is

subject to § 15(1) of PERA.” MERC next stated that an

ALJ has the authority to assess whether a ULP charge

states a claim upon which relief can be granted under

PERA and that, if not, the ALJ should recommend

dismissal of the charge. But if a ULP charge does state

a claim, the ALJ has the authority to determine

whether material facts are in dispute and to hold an

evidentiary hearing if there is a material factual dis-

pute. MERC noted that if a ULP charge is brought

alleging that a public employer refused to bargain

during a period in which the duty to bargain was

suspended, the charge would not state a claim upon

which relief could be granted. This statement reﬂected

that MERC would still have subject-matter jurisdic-

tion over such a charge.

MERC found that the County’s motion for reconsid-

eration did not indicate that the Union’s ULP charges

were limited to claims that the County “breached its

duty to bargain between September 20, 2015, and

October 1, 2018.” MERC then explained:

630 325 M

ICH

614 [Aug

If the charges before [the ALJ] allege that the County

violated

its duty to bargain before the County’s duty to

bargain was suspended, those matters would be within

the subject matter jurisdiction of this Commission and

would be properly before [the ALJ]. Moreover, if the

charges before [the ALJ] allege that the County violated

provisions of PERA other than § 10(1)(e) or § 15(1) [the

collective-bargaining requirement], those matters would

be within the subject matter jurisdiction of this Commis-

sion and would be properly before [the ALJ].

This passage seems to suggest a view that a ULP

charge

of a failure to engage in collective bargaining

during a period of suspension is not within MERC’s

subject-matter jurisdiction; however, that construction

would contradict MERC’s earlier observation that such

a charge would simply reﬂect a failure to state a claim

upon which relief can be granted. And later in its

ruling, MERC stated that “[i]f the County simply failed

to bargain during the period in which the County has

no duty to bargain, that failure to bargain is not an

unfair labor practice. However, it currently remains

within the jurisdiction of [the ALJ] to determine

whether an alleged unfair labor practice has been

committed by the County.”

MERC next determined that the County’s motion for

reconsideration failed to identify the dates on which

the County was alleged to have engaged in ULPs and

that the County had “not asserted anything to indicate

that any of the unfair labor practice charges fail[ed] to

state a claim . . . .” But MERC then explained that

even had the County asserted that the Union’s ULP

charges did not state a claim upon which relief could be

granted, MERC “could not consider the matter unless

and until exceptions were ﬁled to [the] ALJ’s decision

and recommended order addressing the matter.”

MERC stated that “[e]ven if we thought it was appro-

2018] W

AYNE

O V

AFSCME L

OCAL

3317 631

priate under the circumstances of this case to review

the

ALJ’s rulings, which we do not, we could not legally

act in a manner contrary to the requirements of § 16 of

PERA and Commission Rule 161(7).” Section 16(b) of

PERA, MCL 423.216(b), provides, in relevant part:

If the evidence is presented before a commissioner of the

commission, or before examiners thereof, the commis-

sioner, or examiners shall issue and cause to be served on

the parties to the proceeding a proposed report, together

with a recommended order, which shall be ﬁled with the

commission, and if an exception is not ﬁled within 20 days

after service thereof upon the parties, or within such

further period as the commission may authorize, the

recommended order shall become the order of the commis-

sion and become effective as prescribed in the order.

And Mich Admin Code, R 423.161(7) provides:

Rulings by an administrative law judge on any motion,

except

a motion resulting in a ruling dismissing or sus-

taining the unfair labor practice charge in its entirety,

shall not be appealed directly to the commission, but shall

be considered by the commission only if raised in excep-

tions or cross exceptions to the proposed decision and

recommended order ﬁled under R 423.176.

MERC concluded that the ULP charges were prop-

erly

before

the ALJ for determination of whether the

charges stated a claim upon which relief could be

granted and, if so, to decide whether the Union had

established the charges at an evidentiary hearing.

The County ﬁled a claim of appeal in this Court on

August 1, 2017, and on November 17, 2017, the Union

ﬁled a motion to dismiss the appeal, arguing that this

Court lacked jurisdiction to decide the appeal because

it did not fall within the parameters of MCL

423.216(e).

The motion was denied by a panel of this

MCL

423.216(e) provides, in part:

632 325 M

ICH

614 [Aug

Court. W

ayne Co v AFSCME Local 3317, unpublished

order of the Court of Appeals, entered December 21,

2017 (Docket No. 339493).

V. ANALYSIS

A. STANDARDS OF REVIEW

In AFSCME Council 25, 494 Mich at 77, the Michi-

gan Supreme Court recited the standards of review

applicable to a decision by MERC, stating:

In a case on appeal from the MERC, the MERC’s

factual ﬁndings are conclusive if supported by competent,

material, and substantial evidence on the whole record.

Legal questions, which include questions of statutory

interpretation and questions of contract interpretation,

are reviewed de novo. As a result, an administrative

agency’s legal rulings are set aside if they are in violation

of the constitution or a statute, or affected by a substantial

and material error of law. [Quotations marks and citations

omitted.]

This Court reviews de novo issues concerning subject-

matter

jurisdiction. W

inkler v Marist Fathers of

Detroit, Inc, 500 Mich 327, 333; 901 NW2d 566 (2017).

B. PRINCIPLES OF STATUTORY CONSTRUCTION

The primary task in construing a statute is to

discern and give effect to the Legislature’s intent, and

in doing so, we start with an examination of the

Any party aggrieved by a ﬁnal order of the commission

granting

or denying in whole or in part the relief sought may

within 20 days of such order as a matter of right obtain a review

of the order in the court of appeals by ﬁling in the court a petition

praying that the order of the commission be modiﬁed or set aside,

with copy of the petition ﬁled on the commission, and thereupon

the aggrieved party shall ﬁle in the court the record in the

proceeding, certiﬁed by the commission.

2018] W

AYNE

O V

AFSCME L

OCAL

3317 633

language of the statute, which constitutes the most

eliable evidence of legislative intent. City of Coldwater

v Consumers Energy Co, 500 Mich 158, 167; 895 NW2d

154 (2017). When the language of a statutory provision

is unambiguous, we must conclude that the Legislature

intended the meaning that was clearly expressed, re-

quiring enforcement of the statute as written, without

any additional judicial construction. Id. Only when an

ambiguity in a statute exists may a court go beyond the

statute’s words to ascertain legislative intent. Id. We

must give effect to every word, phrase, and clause in a

statute, avoiding a construction that would render any

part of the statute nugatory or surplusage. Id. at 167-

168.

An agency charged with executing a statute is

entitled to respectful consideration of its construction

of that statute and should not be overruled absent

cogent reasons; however, an agency’s interpretation

cannot bind the courts or conﬂict with the Legislature’s

intent as expressed in the statutory language. In re

Rovas Complaint Against SBC Mich, 482 Mich 90, 103;

754 NW2d 259 (2008).

C. DISCUSSION AND RESOLUTION

We hold that MERC has subject-matter jurisdiction

adjudicate

ULP charges and that nothing in the

language of Act 436 alters that jurisdiction. The juris-

diction extends to ULP charges ﬁled before, during,

and after a collective-bargaining suspension period,

regardless of whether the ULP charges concern con-

duct occurring within or outside a collective-

bargaining suspension period. MERC retains subject-

matter jurisdiction to adjudicate ULP charges during a

collective-bargaining suspension period. The County’s

position to the contrary reﬂects a fundamental misun-

634 325 M

ICH

614 [Aug

derstanding of subject-matter jurisdiction. As a start-

ing

point, an excellent discussion of subject-matter

jurisdiction in general is found in Altman v Nelson, 197

Mich App 467, 472-473; 495 NW2d 826 (1992), wherein

this Court explained:

Jurisdiction of the subject matter is the right of the court

exercise judicial power over a class of cases, not the

particular case before it; to exercise the abstract power to

try a case of the kind or character of the one pending. The

question of jurisdiction does not depend on the truth or

falsity of the charge, but upon its nature: it is determin-

able on the commencement, not at the conclusion, of the

inquiry. Jurisdiction always depends on the allegations

and never upon the facts. When a party appears before a

judicial tribunal and alleges that it has been denied a

certain right, and the law has given the tribunal the power

to enforce that right if the adversary has been notiﬁed, the

tribunal must proceed to determine the truth or falsity of

the allegations. The truth of the allegations does not

constitute jurisdiction.

There is a wide difference between a want of jurisdic-

tion, in which case the court has no power to adjudicate at

all, and a mistake in the exercise of undoubted jurisdic-

tion, in which case the action of the trial court is not void,

although it may be subject to direct attack on appeal. . . .

When there is a want of jurisdiction over the parties or the

subject matter, no matter what formalities may have been

taken by the trial court, the action is void because of its

want of jurisdiction. . . .

Where jurisdiction of the subject matter and the parties

exist, errors or irregularities in the proceedings, however

grave, although they may render the judgment erroneous

and subject to be set aside in a proper proceeding for that

purpose, do not render the judgment void; until the

judgment is set aside, it is valid and binding for all

purposes and cannot be collaterally attacked. Once juris-

diction of the subject matter and the parties is established,

any error in the determination of questions of law or fact

upon which the court’s jurisdiction in the particular case

2018] W

AYNE

O V

AFSCME L

OCAL

3317 635

depends is error in the exercise of jurisdiction. Jurisdic-

tion

to make a determination is not dependent upon the

correctness of the determination made. [Citations omit-

ted.]

ULP cases or charges constitute the “class of cases”

over which MERC has the authority to exercise powers

of adjudication. MCL 423.210; MCL 423.216.

With respect to administrative agencies, subject-

matter jurisdiction poses the question whether an

agency has the authority to hear and resolve a particu-

lar cause or matter. Detroit Pub Sch v Conn, 308 Mich

App 234, 242; 863 NW2d 373 (2014). Administrative

agencies are creatures of the Legislature, and their

authority is governed by statute; there are no common-

law agency powers. Id. The Legislature may confer on

an administrative agency the power to conduct hear-

ings, ﬁnd facts, and exercise discretion, but the power

and authority conferred on the agency must be by clear

and unmistakable language. Id. at 242-243. And as a

general proposition, the divestiture of subject-matter

jurisdiction must also be stated clearly and unambigu-

ously. See Campbell v St John Hosp, 434 Mich 608,

614; 455 NW2d 695 (1990); Leo v Atlas Indus, Inc, 370

Mich 400, 402; 121 NW2d 926 (1963) (“The divestiture

of jurisdiction . . . is a serious matter and cannot be

done except under clear mandate of law.”); Crane v

Reeder, 28 Mich 527, 532-533 (1874) (“[I]t is very

natural and reasonable to suppose that the Legisla-

ture, in so far as they should think it needful to

authorize interruptions and the shiftings of jurisdic-

tion, would express themselves with clearness and

leave nothing for the play of doubt and uncertainty.”).

The Legislature conferred on MERC the power and

authority to adjudicate ULP charges, MCL 423.216,

and it did not withdraw that power in Act 436 within

636 325 M

ICH

614 [Aug

the setting of ﬁnancial emergencies. Instead, under Act

436,

the Legislature simply curtailed a union’s ability

to force collective bargaining during a collective-

bargaining suspension period. Any effort by a union to

seek redress in MERC because of a failure to bargain

during that period will not be sustainable, but it is left

to MERC, in the exercise of its subject-matter jurisdic-

tion, to render that ruling. Under the plain and unam-

biguous language of Act 436, and speciﬁcally MCL

141.1548(11), which is mirrored in ¶ 2(b) of the consent

agreement, the County is not subject to the require-

ment or mandate to engage and participate in collec-

tive bargaining during the collective-bargaining sus-

pension period. But the Legislature did not express in

Act 436 that local governments are not subject to ULP

charges during a collective-bargaining suspension pe-

riod or that MERC cannot exercise its subject-matter

jurisdiction over ULP charges during that time frame.

Had the Legislature intended to afford such greater

protection to a ﬁnancially distressed local government,

it could easily have done so in plain, unambiguous, and

understandable language.

Especially confounding is the County’s position that

MERC lacks subject-matter jurisdiction with respect to

ULP charges that relate to conduct occurring before a

county facing a ﬁnancial emergency is even relieved of

its duty to collectively bargain with a union and with

respect to ULP charges that have nothing to do with

the obligation to bargain, e.g., discriminating against

an employee in regard to conditions of employment,

MCL 423.210(1)(c). In either scenario, a duty or obli-

gation would exist—i.e., to collectively bargain or to

not discriminate, either of which would support a ULP

charge upon a violation, MCL 423.210(1)(c) and (e)—

yet under the County’s stance, no adjudication could be

2018] W

AYNE

O V

AFSCME L

OCAL

3317 637

sought in MERC proceedings. There is simply no

language

in Act 436 or PERA that supports this view.

The County contends that the express language of

Act 436 exempts the County from any ULP charge

based on the duty to bargain for the entirety of the

collective-bargaining suspension period. The County

relies on the “not subject to” language in MCL

141.1548(11), arguing that the textual focus is on the

“local government” and not on the date when a dispute

may have arisen. This argument is unavailing. When

MCL 141.1548(11) of Act 436 is examined in conjunc-

tion with MCL 423.215(1) of PERA, the meaning is

clear: during the relevant period, a “local government

is not subject to” the requirement to “bargain collec-

tively with the representatives of its employees.” The

County effectively seeks an interpretation that during

the relevant period a “local government is not subject

to” any MERC litigation regarding the requirement to

“bargain collectively with the representatives of its

employees.” The emphasized language in the preced-

ing sentence, or even words to that effect, are not found

in Act 436 or PERA. “[A] court may read nothing into

an unambiguous statute that is not within the mani-

fest intent of the Legislature as derived from the words

of the statute itself.” Roberts v Mecosta Co Gen Hosp,

466 Mich 57, 63; 642 NW2d 663 (2002).

The County favorably cites Martin v Murray, 309

Mich App 37, 49; 867 NW2d 444 (2015), in which this

Court explained that Act 436 “exists to provide speciﬁc

tools for resolving ﬁnancial emergencies within local

governments that are not available under more gen-

eral legislation.” Relying on Martin, the County argues

that “[i]t is clear that [Act] 436 was intended to

remove . . . bargaining obstacles and allow necessary

and durable ﬁnancial changes, not hold them in some

638 325 M

ICH

614 [Aug

long term limbo.” Act 436 did remove bargaining ob-

stacles

for the ﬁnancially strapped County, allowing

the County Executive to unilaterally impose employ-

ment terms and conditions in regard to Union employ-

ees for the duration of the collective-bargaining sus-

pension period. Further, Act 436 and the consent

agreement plainly drove other unions representing

county employees hurriedly to the bargaining table

after the consent agreement was inked in order to

avoid the extreme power that the County Executive

would be able to wield after the agreement’s 30-day

window expired. The fact that the Union complained to

MERC about conduct that primarily took place before

the collective-bargaining suspension period, while pos-

sibly giving rise to some uncertainty or a state of limbo,

is ultimately irrelevant to whether Act 436 deprives

MERC of subject-matter jurisdiction. Act 436 simply

does not encompass collective bargaining that tran-

spires before the commencement of a collective-

bargaining suspension period, and it does not speak to

the issue of subject-matter jurisdiction relative to any

point in time, before, during, or after a collective-

bargaining suspension period.

The County additionally maintains “that if there is

no duty to bargain[,] there is and can no longer be a

breach of a non-existent duty and therefore no ULP

hearings would be authorized or necessary.” The prob-

lem with the County’s argument is that it does not

translate to a lack of subject-matter jurisdiction. Dur-

ing a collective-bargaining suspension period, there

clearly is no duty to bargain and, therefore, there can

be no breach of the duty to engage in collective bar-

gaining within that time span. But that does not mean

that ULP hearings are not authorized or that MERC

has no subject-matter jurisdiction and cannot adjudi-

cate a ULP dispute during the collective-bargaining

2018] W

AYNE

O V

AFSCME L

OCAL

3317 639

suspension period. It is necessary for an arbiter to ﬁnd

hat there was no duty, even if it is clear that no duty

exists for purposes of a particular ULP charge, and that

arbiter is MERC. MCL 423.216; St Clair Intermediate,

458 Mich at 550 (MERC has “exclusive jurisdiction over

unfair labor practices”).As aptly recognized by MERC, if

a ULP charge claims a failure to participate in good-

faith collective bargaining during a collective-

bargaining suspension period, the charge is subject to

dismissal for failure to state a claim, not for lack of

subject-matter jurisdiction. The County’s argument is

akin to a defendant property owner arguing that a

circuit court lacks subject-matter jurisdiction in a

premises-liability action seeking over $25,000 in dam-

ages because the suing plaintiff did not allege facts or

submit evidence showing that a legal “duty” was owed

by the property owner to the plaintiff. The absence of a

duty would not deprive the circuit court of subject-

matter jurisdiction; it would merely provide a basis for

summary dismissal of the premises-liability action un-

der MCR 2.116(C)(8) or (10).

To an extent, the County’s argument entails an

exercise in procedural gymnastics: should an ALJ

recommend summary dismissal for failure to state a

claim or summary dismissal for lack of subject-matter

jurisdiction? However, there is, of course, an indisput-

able difference between MCR 2.116(C)(4) and (8). And

while Act 436 can plainly serve as a basis under MCR

2.116(c)(8) to dismiss a ULP charge for failure to state

a claim, Act 436 cannot serve as a basis under MCR

2.116(c)(4) to dismiss for lack of subject-matter juris-

diction because there is nothing in the plain language

of Act 436 that lends itself to such a construction.

Moreover, once again, there was a duty to engage in

collective bargaining before the collective-bargaining

640 325 M

ICH

614 [Aug

suspension period commenced. The County desires a

period

free of PERA litigation, but Act 436 does not

provide that relief.

We next examine Baumgartner v Perry Pub Sch, 309

Mich App 507; 872 NW2d 837 (2015), upon which the

County places great weight. The Baumgartner panel

held that the State Tenure Commission (STC) did not

have jurisdiction to hear the claims of the petitioners,

who were teachers that had been laid off by the

respondent school districts, and that therefore the STC

lacked the authority to instruct ALJs to hear the

petitioners’ suits. As explained by the Court, before

legislative amendments were passed in 2011, teacher

layoffs were a mandatory subject of collective bargain-

ing and almost all collective-bargaining agreements

employed seniority as the method for determining the

prioritization of layoffs. Id. at 511. The Court explained

the effect of the amendments in 2011, stating:

In 2011, this all changed when, for the ﬁrst time in

Michigan

history

, the Legislature exercised its constitu-

tional role and decided that the Legislature and local

school boards, not the unions or administrative agencies,

would decide which teachers should be retained and which

should be laid off in the event of a reduction in force. The

key to this historic change was to remove the subject of

teacher layoffs from the realm of collective bargaining.

Doing so had the twofold effect of (1) removing the unions

as decision-makers on layoff-related issues and (2) by

deﬁnition, making it unnecessary for MERC to review

layoff-related cases because they no longer implicated

public-sector labor laws.

To implement this dramatic shift in the law of teacher

layoffs, the Legislature also mandated that Michigan’s

several hundred school boards make layoff decisions on

the basis of merit, through the development of a man-

dated, comprehensive evaluation system for public school

teachers. To make it perfectly clear that these decisions

2018] W

AYNE

O V

AFSCME L

OCAL

3317 641

would be made by the local school boards, and not be

sidetracked

by administrative agencies, the Legislature

took the additional and somewhat unusual precaution of

explicitly saying how and by whom the layoff decisions

could be reviewed.

As stated, MERC obviously would no longer have any

reason to address this subject, and thus assert jurisdic-

tion. And because the [STC] had, before the 2011 Amend-

ments, asserted jurisdiction over a few teacher-layoff

suits—wrongfully, in our view, and on the basis of a now

nonbinding 1975 decision of our Court—the Legislature

again took the unusual, but prudent, precaution of amend-

ing the teacher tenure act (TTA) to remove the slim

statutory basis that the STC claimed gave it jurisdiction

over layoff-related actions. Finally, to make it absolutely

clear that no administrative agency may review a school

board’s layoff decisions, the Legislature provided that a

teacher’s “sole and exclusive remedy” is to appeal the

decision to the courts. [Id. at 512-513 (citations omitted;

emphasis added).]

This Court observed that MCL 380.1248 explicitly

identiﬁes

the

sole remedy for laid-off teachers, provid-

ing that a “ ‘teacher’s sole and exclusive remedy shall be

an order of reinstatement commencing 30 days after a

decision by a court of competent jurisdiction.’ ” Id. at

532, quoting MCL 380.1248(3).

There is no language in Act 436 that even remotely

approaches the plain and unambiguous language of

MCL 380.1248(3) that divests MERC of jurisdiction

with respect to adjudicating teacher layoffs. The Coun-

ty’s assertion that Baumgartner supports the proposi-

tion that the elimination of the duty to bargain in

ﬁnancial emergencies in Act 436 equates with elimi-

nating MERC’s subject-matter jurisdiction is devoid of

merit. And the County’s claims that MERC eviscerated

Act 436 in this case and that MERC’s decision regard-

ing subject-matter jurisdiction was “[a]bsolutely law-

642 325 M

ICH

614 [Aug

less” do not stand scrutiny. Indeed, Baumgartner sup-

ports

MERC’s ruling in this case, considering that it

reveals that the Legislature, if it intends to divest an

adjudicative body or agency of its jurisdiction, even for

a limited period, is more than familiar with the word-

ing or language needed to accomplish that intended

goal. And the Legislature did not employ such lan-

guage in Act 436.

Finally, we conclude that any limitations that might

be imposed by Act 436 on available remedies for ULP

violations with respect to providing relief during a

collective-bargaining suspension period have no rel-

evancy to MERC’s subject-matter jurisdiction to adju-

dicate ULP charges. MCL 423.216(b) provides, in per-

tinent part:

If upon the preponderance of the testimony taken the

commission

is of the opinion that any person named in the

complaint has engaged in or is engaging in the unfair

labor practice, then it shall state its ﬁndings of fact and

shall issue and cause to be served on the person an order

requiring him to cease and desist from the unfair labor

practice, and to take such afﬁrmative action including

reinstatement of employees with or without back pay, as

will effectuate the policies of this act.

If MERC ﬁnds that a ULP charge is true in regard to

claim

that a public employer refused to engage in

collective bargaining or failed to do so in good faith,

MERC “has the discretionary power to issue an order

to bargain in good faith . . . .” Detroit Police Ofﬁcers,

391 Mich at 56-57. Act 436 would plainly prohibit

MERC from ordering a local government to participate

in collective bargaining during a collective-bargaining

suspension period, which is why MERC dismissed the

Union’s mediation petition. Without commenting on

the nature or propriety of possible available remedies

for a ULP violation occurring before the commence-

2018] W

AYNE

O V

AFSCME L

OCAL

3317 643

ment of a collective-bargaining suspension period, we

conclude

that MERC has subject-matter jurisdiction to

adjudicate ULP charges, even assuming no remedy

existed. As indicated at the outset of our discussion,

subject-matter jurisdiction concerns the authority of a

court or adjudicative body to exercise power “over a

class of cases” or “to exercise the abstract power to try

a case of the kind or character of the one pending.”

Altman, 197 Mich App at 472. The Union presented

four ULP charges, and MERC has the exclusive power,

authority, and jurisdiction to adjudicate such charges,

regardless of whether a particular remedy might not

be available.

In sum, we hold that nothing in the language of Act

436, let alone clear and unambiguous language, re-

veals a legislative intent to divest MERC of its subject-

matter jurisdiction to adjudicate ULP charges during a

collective-bargaining suspension period.

Afﬁrmed. Because the Union fully prevailed on

appeal, we award taxable costs to it under MCR 7.219.

LEICHER

and L

ETICA

, JJ., concurred with M

URPHY

P.J.

644 325 M

ICH

614 [Aug

PEOPLE v FAIREY

Docket

No. 333805. Submitted May 9, 2018, at Detroit. Decided

August 28, 2018, at 9:05 a.m.

Frank Shepard Fairey was charged in the 36th District Court with

one count of malicious destruction of a building, $20,000 or more,

MCL 750.380(2)(a), and two counts of malicious destruction of

property, bridges/railroads/locks, MCL 750.379. Fairey, an inter-

nationally acclaimed artist best known for creating a poster of

President Barack Obama entitled Hope, was hired to design and

create three large murals on buildings in downtown Detroit.

Local media covered the visit, and a Detroit police sergeant

watched a television interview in which Fairey was asked

whether he would be “leaving anything behind uncommissioned”

when he left the city. Fairey responded, “[Y]ou’ll just have to keep

your eyes peeled.” Additionally, a newspaper article quoted Fairey

as saying: “I still do stuff on the street without permission. I’ll be

doing stuff on the street when I’m in Detroit.” The police sergeant

found a 2013 YouTube video in which Fairey admitted to putting

up posters in illegal locations, an activity known as “tagging,”

although the video never mentioned Detroit. The sergeant then

went on a hunt for illegal artwork in Detroit and found posters

containing Fairey’s signature icon, the “Obey Giant,” or a related

icon, “Misﬁt,” in 14 places around Detroit, mostly on abandoned

buildings or bridge and railroad abutments. The district court,

Kenneth J. King, J., bound Fairey over to the Wayne Circuit

Court for trial. The circuit court, Cynthia G. Hathaway, J.,

quashed the information and dismissed the charges, ﬁnding that

the prosecution failed to present evidence establishing Fairey’s

identity as the person who installed the posters. The prosecution

appealed.

The Court of Appeals held:

To warrant a bindover, the prosecution must produce evidence

that a crime was committed and that probable cause exists to

believe that the charged defendant committed it. Probable cause

is established if the evidence would persuade a careful and

reasonable person to believe in the defendant’s guilt. Evidence

supporting that the defendant perpetrated the crime may be

2018] P

EOPLE V

AIREY

645

circumstantial but must nevertheless demonstrate reasonable

grounds

to suspect the defendant’s personal guilt. In this case,

the prosecution presented no facts establishing when the illegal

posters were installed or the length of time they had been present

before the sergeant spotted them. The sergeant conceded that the

artwork could have been on the walls long before her hunt for

evidence implicating Fairey revealed them. Additionally, no wit-

nesses saw Fairey post any illegal art during his sojourn in

Detroit, and the prosecution brought forward no evidence that

Fairey had an opportunity or the means to travel around the city

tagging buildings while also working on the commissioned mu-

rals. Although the illegal art bore Fairey’s signature imagery,

Fairey’s art easily could be purchased on the Internet. None of the

illegal art was painted by hand; all were removable posters.

Finally, Fairey’s statements in the media might have been

enough to convince a person of ordinary prudence and caution

that Fairey wanted to tag some buildings while he was in Detroit,

but a person of ordinary prudence and caution could not infer that

Fairey carried out his veiled threats to tag absent any actual

evidence linking Fairey to the acts of tagging. Accordingly, the

district court abused its discretion in binding Fairey over for trial

by failing to distinguish between a suspicion of guilt and a

reasonable belief that Fairey was the person who committed the

crime.

Afﬁrmed.

Bill Schuette,

ttorney General, Aaron D. Lindstrom,

Solicitor General, Kym L. Worthy, Prosecuting Attorney,

Melvin Butch Hollowell, Corporation Counsel, and

Sheri L. Whyte, Senior Assistant Corporation Counsel

and Special Assistant Prosecuting Attorney, for the

people.

Walter J. Piszczatowski, Bradley J. Friedman, and

Rosemary Gordon Pánuco for Frank Shepard Fairey.

Before: C

AMERON

, P.J., and F

ORT

OOD

and G

LEICHER

JJ.

LEICHER

, J. Frank Shepard Fairey is an interna-

tionally acclaimed artist best known for creating a red,

646 325 M

ICH

645 [Aug

white, and blue poster of then presidential candidate

Barack

Obama, entitled Hope. Fairey launched his

career by designing stickers that adorned skateboards

and t-shirts. Over the years, his artistic repertoire

expanded to include posters, prints, and larger works,

including murals. Fairey’s work combines elements of

grafﬁti and pop culture; his themes often thumb a nose

at authority and champion dissent. Anyone can buy

Fairey’s portable artworks (including posters and

stickers) from his website, www.obeygiant.com.

Fairey’s signature image is a cartooned face that he

as dubbed “Obey Giant.” Fairey has boasted of his

exploits in applying posters and stickers sporting Obey

Giant in public places without the permission of the

owners. See Schjeldahl, Hope and Glory: A Shepard

Fairey Moment, The New Yorker (February 23, 2009),

pp 79-80, available at <https://www.newyorker.com/

magazine/2009/02/23/hope-and-glory> (accessed Aug-

ust 20, 2018). This activity is known as “tagging.”

In 2015, Bedrock Properties hired Fairey to design

and create three large murals on its downtown Detroit

buildings. Fairey arrived in Detroit sometime in May of

that year; the exact dates of his stay are unknown. Local

media commemorated his visit with interviews and

articles about Fairey’s life and works. Detroit Police

Sergeant Rebecca McKay watched a television inter-

view that month in which Fairey was asked whether he

would be “leaving anything behind uncommissioned”

when he left the city. Fairey responded, “[Y]ou’ll just

have to keep your eyes peeled.” A newspaper article

quoted Fairey as saying: “ ‘I still do stuff on the street

without permission. I’ll be doing stuff on the street

when I’m in Detroit.’ ” Stryker, Street Artist Shepard

Fairey Ready to Tag Detroit, Detroit Free Press (May 16,

https://perma.cc/AZV5-VY83.

2018] P

EOPLE V

AIREY

647

2015), p 7A, available at <https://www.freep.com/

tory/entertainment/arts/2015/05/16/shepherd-fairey-

detroit-mural/27459223/> (accessed August 20, 2018).

McKay did some Internet research about Fairey. She

came across a 2013 YouTube video in which Fairey

admitted to putting up posters in illegal locations (he

never mentioned Detroit). The video offers aspiring

taggers a blueprint of the process. On May 22, 2015,

McKay went on a hunt for illegal art containing the

Obey Giant or other Shepard Fairey-esque images. She

found posters harboring the icon (or a related one, called

“Misﬁt”) in 14 places around the city, mostly abandoned

buildings or bridge and railroad abutments.

McKay decided that Fairey must have put up the

illegal posters while he was in town. She had no evi-

dence linking him to the posters and readily admitted

that she had no idea when the illegal posters were

installed. In McKay’s estimation, the fact that the

posters included the Obey Giant image and that Fairey

had threatened to “do stuff on the street without per-

mission” while in Detroit meant that he was responsible

for the tagging. An examining magistrate agreed and

bound Fairey over for trial on one count of malicious

destruction of a building, $20,000 or more, MCL

750.380(2)(a), and two counts of malicious destruction of

property, bridges/railroads/locks, MCL 750.379.

The circuit court quashed the information and dis-

missed the charges, ﬁnding (among other things) that

the prosecution failed to present evidence establishing

Fairey’s identity as the tagger. We agree, and afﬁrm.

I. GUIDING LEGAL PRINCIPLES

At a preliminary examination, the prosecution must

esent evidence establishing that the defendant com-

mitted the charged offense, and the district court must

648 325 M

ICH

645 [Aug

ﬁnd that probable cause exists to bind over a defendant

or trial. People v Shami, 501 Mich 243, 250-251; 912

NW2d 526 (2018). To satisfy this burden, the prosecu-

tion must present evidence of each and every element of

the charged offense, or enough evidence from which an

element may be inferred. People v Seewald, 499 Mich

111, 116; 879 NW2d 237 (2016). Identity is an essential

element of every crime. People v Oliphant, 399 Mich

472, 489; 250 NW2d 443 (1976). Accordingly, to warrant

a bindover, the prosecution must produce evidence that

a crime was committed and that probable cause exists to

believe that the charged defendant committed it.

Probable cause is established if the evidence would

persuade a careful and reasonable person to believe in

the defendant’s guilt. People v Yost, 468 Mich 122, 126;

659 NW2d 604 (2003). Evidence supporting that the

defendant perpetrated the crime may be circumstan-

tial, but must nevertheless demonstrate reasonable

grounds to suspect the defendant’s personal guilt.

People v Tower, 215 Mich App 318, 320; 544 NW2d 752

(1996). The evidence considered must be legally admis-

sible. People v Walker, 385 Mich 565, 575-576; 189

NW2d 234 (1971), overruled on other grounds by

People v Hall, 435 Mich 599 (1990).

We review a district court’s bindover decision for an

abuse of discretion. Seewald, 499 Mich at 116. An

abuse of discretion occurs when the district court’s

decision “ ‘falls outside the range of principled out-

comes.’ ” Id., quoting Epps v 4 Quarters Restoration

LLC, 498 Mich 518, 528; 872 NW2d 412 (2015).

II. ANALYSIS

The prosecution failed to establish probable cause

that

Fairey

tagged the 14 buildings bearing the Obey

Giant or other signature images.

2018] P

EOPLE V

AIREY

649

We must review the evidence in the light most

favorable

to the prosecution, and we will assume that

all of the prosecution’s evidence was legally admis-

sible. Even with the beneﬁt of these presumptions, the

prosecution failed to paint a picture suggesting that

Fairey committed the crimes.

Several holes in the prosecution’s evidentiary can-

vas doom its case. The prosecution presented no facts

establishing when the illegal posters were installed or

the length of time they had been present before McKay

spotted them. McKay conceded that the artwork could

have been on the walls long before her hunt for

evidence implicating Fairey revealed them. No wit-

nesses saw Fairey post any illegal artwork during his

sojourn in Detroit, and the prosecution brought for-

ward no evidence that Fairey had an opportunity or

the means to travel around the city tagging buildings

while also working on the commissioned murals. Al-

though the prosecution makes much of the fact that the

illegal art bore Fairey’s signature imagery, McKay tes-

tiﬁed that the tags were all removable posters; the

damage occasioned by their removal underlies the pros-

ecutor’s malicious-destruction charges. Proving that a

piece of art was created by a particular artist usually

requires expert testimony. See Greenberg Gallery, Inc v

Bauman, 817 F Supp 167, 170-174 (D DC, 1993). That is

not a signiﬁcant concern here, though, because none of

the tags were painted by hand and, as we have men-

tioned, Fairey’s posters and stickers are easy to pur-

chase on the Internet.

The district court judge gave short shrift to these

evidentiary deﬁciencies and instead focused on

Fairey’s statements to the press. The judge declared

that the media comments “all amount[] to one big fat

admission.”

650 325 M

ICH

645 [Aug

Precisely what Fairely “admitted” in these inter-

views

is difﬁcult to discern. Telling an audience that

“you’ll just have to keep your eyes peeled” for illegal art

and that he anticipated “do[ing] stuff on the street

without permission” sounds like an artist playing a

street-smart scoundrel. These statements might con-

vince a person of ordinary prudence and caution that

Fairey wanted to tag some buildings while he was in

Detroit. What is missing is evidence that Fairey did

tag the buildings.

In one of his best-known opinions, Justice Robert

Jackson elegantly explained that a crime consists of a

“concurrence of an evil-meaning mind with an evil-

doing hand . . . .” Morissette v United States, 342 US

246, 251; 72 S Ct 240; 96 L Ed 288 (1952). A wrongful

act is an essential element of the malicious-

destruction-of-property crimes with which Fairey

stands charged. It is not a crime to fantasize (even

publicly) about putting up posters on property that

does not belong to you. Vincent van Gogh said, “I

dream of painting and then I paint my dream.”

Fairey

dreamed

aloud,

but no evidence exists that Fairey’s

hands painted his dreams or even touched the 14

tagged buildings.

The district court abused its discretion in binding

Fairey over for trial by failing to distinguish between a

suspicion of guilt and a reasonable belief that Fairey

was the person who committed the crime. True, a

district court may also rely on inferences to establish

probable cause for a bindover. But a person of ordinary

prudence and caution could not infer that Fairey

carried out his veiled threats to tag absent any actual

evidence linking Fairey to the acts of tagging. Mere

incent van Gogh: Paintings, Drawings, Quotes, and Biography

<https://www.vincentvangogh.org/> [https://perma.cc/WXA9-GJ9H].

2018] P

EOPLE V

AIREY

651

suspicion is not the same as probable cause, and the

record

gives us nothing more. People v Nunez, 242

Mich App 610, 624; 619 NW2d 550 (2000) (O’C

ONNELL

J., concurring).

We afﬁrm.

AMERON

, P.J., and F

ORT

OOD

, J., concurred with

LEICHER

, J.

652 325 M

ICH

645

In re BEERS/LeBEAU-BEERS

Docket

Nos. 341100 and 341101. Submitted August 8, 2018, at Lansing.

Decided September 11, 2018, at 9:00 a.m.

Respondent-mother’s and respondent-father’s parental rights to

two minor children, TB and OL, were terminated in the Eaton

Circuit Court, Family Division, by Thomas K. Byerley, J., under

MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to

exist) and (g) (failure to provide proper care or custody). The

Department of Health and Human Services (DHHS), driven by

respondents’ severe addiction to opiates, petitioned for the termi-

nation of respondents’ parental rights to TB and OL. Respondent-

mother was a member of the Cheyenne River Sioux Tribe of South

Dakota (the tribe); therefore, TB and OL were Indian children

under the federal Indian Child Welfare Act (ICWA), 25 USC 1901

et seq., the Michigan Indian Family Preservation Act (MIFPA),

MCL 712B.1 et seq., and MCR 3.977(G). Respondent-father was

not of Indian descent. He had signed an afﬁdavit of parentage for

TB but did not execute one for OL. Therefore, DHHS proceeded

against respondent-father as OL’s putative father. The court

applied the heightened standards under ICWA and MIFPA that

were necessary to terminate respondent-mother’s parental rights

to the children, but the court failed to apply the same standards

to the termination of respondent-father’s parental rights, osten-

sibly because he was not of Indian descent. In Docket No. 341100,

respondent-father appeals as of right the termination of his

parental rights to TB, but he expressly declined to challenge the

termination order involving OL. In Docket No. 341101,

respondent-mother appeals as of right the orders terminating her

parental rights to both children. The cases were consolidated.

The Court of Appeals held:

1. Congress enacted ICWA to establish minimum federal

standards for the removal of Indian children from their families

in order to promote the stability and security of Indian tribes and

families. MIFPA represents Michigan’s standards for child wel-

fare and adoption proceedings involving Indian children. Under

25 USC 1912(d) and MCL 712B.15(3), an Indian child cannot

rightfully be removed from his or her Indian family unless clear

In re B

EERS

EBEAU

-B

EERS

653

and convincing evidence shows that active efforts have been made

provide the child’s parents with services and programs aimed

at preventing the breakup of the Indian family and that these

efforts have been unsuccessful. In addition, under 25 USC 1912(f)

and MCL 712B.15(4), the parental rights of an Indian child’s

parent must not be terminated unless evidence beyond a reason-

able doubt, including the testimony of an expert witness, shows

that the continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical

damage to the child. To terminate a parent’s parental rights to an

Indian child, at least one state statutory ground for termination

must be proved by clear and convincing evidence. In this case, the

trial court determined that petitioner had established that ter-

mination was proper under MCL 712A.19b(3)(c)(i) and (g) and

that termination was in the children’s best interests. The trial

court did not, however, as it did concerning the respondent-

mother’s parental rights, apply ICWA or MIFPA protections to the

proceedings involving the respondent-father. The trial court did

note that respondent-father’s housing situation was “totally un-

known,” that he last visited with TB approximately 10 months

before the hearing, that he had done nothing to address his

emotional instability, that he would disappear for long periods,

that he had not participated in the offered services, and that he

had not progressed with regard to his substance-abuse issues.

Notwithstanding respondent-father’s failures, respondent-

father’s parental rights should not have been terminated absent

compliance with ICWA, MIFPA, and MCR 3.977(G), even though

respondent-father himself is not of Indian descent, because TB is

an Indian child and respondent-father is TB’s biological parent.

That is, ICWA, MIFPA, and MCR 3.977(G) must be applied

whenever the child involved is of Indian descent, regardless of the

individual parent’s heritage.

2. Termination of the parental rights of a parent of an Indian

child requires a court to ﬁnd that active efforts at reuniﬁcation

had been taken and, according to 25 USC 1912(d) and (f), MCL

712B.15(3) and (4), and MCR 3.977(G), that the “continued

custody” of the child by that parent would likely result in serious

emotional or physical damage to the child. Because no court

proceedings regarding custody had been initiated between re-

spondents following TB’s birth and execution of the afﬁdavit of

parentage, respondent-mother was treated under MCL 722.1006

as having sole physical and legal custody of TB. Although

respondent-father had no custodial rights, the heightened stan-

dards of ICWA, MIFPA, and MCR 3.977(G) applied to respondent-

father because, when the petition was ﬁled, he had been living

654 325

ICH

653 [Sept

with TB and TB’s mother as a family unit. The instant case was

distinguishable

from Adoptive Couple v Baby Girl, 570 US 637

(2013), in which the Court ruled that the evidentiary requirement

in 25 USC 1912(f)—damage to children as a result of continued

custody—did not apply to a parent who had never had legal or

physical custody of the Indian child because there was no custody

to continue. In Adoptive Couple, the father had never spent any

time with, cared for, or resided with the child. In contrast,

respondent-father in the instant case lived with and cared for TB

for the approximately three months between TB’s birth and his

removal from respondents’ home. In re SD, 236 Mich App 240

(1999), was also distinguishable. In that case, the petitioner

sought to terminate the non-Indian father’s parental rights. He

and the Indian mother had broken up before the petition against

the father was ﬁled, and no DHHS petition was ﬁled against the

mother. The mother continued living with the children after the

breakup. Further, the father was not involved in the children’s

lives, and the father had sexually abused one child. In re SD did

not apply in this case because the family in In re SD had already

broken up by the time the termination proceedings were initiated,

whereas in this case, the petition was authorized and reuniﬁca-

tion efforts began while respondents and TB were living together

as an Indian family, which ended only upon TB’s removal from

the home. Under the particular facts of the instant case, the

heightened standards for termination that appear in ICWA,

MIFPA, and MCR 3.977(G) applied to respondent-father because

he had, in practice, established a custodial relationship with the

Indian child.

3. Generally, unpreserved claims of error in termination pro-

ceedings are reviewed for plain error. To avoid forfeiture under

the plain-error rule, a respondent must establish that a clear or

obvious error occurred that affected substantial rights, that is,

that the error affected the outcome of the proceedings. The

parties agreed that the trial court erred by failing to apply MIFPA

and ICWA standards when determining whether to terminate his

parental rights to TB. Notwithstanding the error, petitioner

argued that the plain-error standard of review applied to the

father’s rights because respondent-father did not raise this issue

in the trial court. However, petitioner’s forfeiture argument was

fatally ﬂawed because under MCR 2.517(A)(7) respondent-father

was not required to object to or otherwise challenge the trial

court’s ruling from the bench in order to preserve this issue for

appeal. Accordingly, the order was conditionally reversed and

2018] In

re B

EERS

EBEAU

-B

EERS

655

remanded for the trial court to address and resolve the issues that

arose

under ICWA and MIFPA, 25 USC 1912(d) and (f), and MCL

712B.15(3) and (4), respectively.

4. Termination of parental rights to an Indian child requires,

among other things, that the petitioner present clear and con-

vincing evidence that active efforts were made to provide services

designed to prevent the breakup of an Indian family. Respondent-

mother claimed that petitioner failed to provide the speciﬁc active

efforts set forth in MCL 712B.3(a)(i), (iv), (vi), and (x), all of which

involve the participation of the Indian child’s tribe. Under MCL

712B.3(a), “active efforts” are actions to provide remedial services

and rehabilitative programs designed to prevent the breakup of

the Indian family and to reunify the Indian child with the Indian

family. Active efforts require more than the standard reasonable-

efforts approach. In this case, evidence showed that petitioner

properly mailed notices of all hearings to the tribe but that the

tribe did not initially conﬁrm or deny tribal membership. A

caseworker testiﬁed that she made phone contact with tribal

caseworkers but that they initially seemed uninterested. Evi-

dence also showed that petitioner offered or provided respondent-

mother with a plethora of services and programs, including

assessments, treatment, counseling, drug screens, substance

abuse services, psychological evaluations, parenting time, in-

home services, and various family programs. The qualiﬁed tribal

expert witness testiﬁed that she had received reports and updates

from petitioner and that she had been included in treatment

plans, had been able to provide input for services, and had

participated in family team meetings. However, the record re-

vealed that respondent-mother was resistant to petitioner’s ef-

forts and did not cooperate or beneﬁt from the services provided

to her. There was clear and convincing evidence that petitioner

had made active efforts to prevent the breakup of the Indian

family, that the efforts were unsuccessful, and that termination

was proper.

5. In addition to establishing that active efforts were made at

reuniﬁcation, petitioner must also have established by proof

beyond a reasonable doubt, including the testimony of an expert

witness, that respondent-mother’s continued custody of TB and

OL would likely result in serious emotional or physical damage to

TB or OL. Respondent-mother’s counselor testiﬁed that

respondent-mother had been actively engaged in therapy, that

she had been working through her communication issues, and

that she had not used heroin for about a year. The trial court

noted, however, that although a few things had changed for the

656 325

ICH

653 [Sept

better—employment and housing, for example—other things had

not

undergone any appreciable change, especially substance

abuse and emotional stability. In deciding to terminate

respondent-mother’s parental rights, the trial court considered

(1) her failure to cooperate with and beneﬁt from substance-abuse

services, (2) her failure to acknowledge that she had a substance-

abuse problem, (3) her resistance to therapy and the need for

another 18 to 24 months of intensive therapy, (4) her failure to

take personal responsibility for the fact that her children were in

care, and (5) her missed parenting times. Finally, the trial court

considered the tribal expert’s testimony that the tribe’s board of

directors believed that it was in the children’s best interests to

terminate respondent-mother’s parental rights. The trial court

did not clearly err by concluding that proof beyond a reasonable

doubt supported its ﬁnding that the children would likely suffer

serious emotional or physical damage if they remained in

respondent-mother’s custody.

Docket No. 341101 afﬁrmed. Docket No. 341100 conditionally

reversed and remanded.

ARENT AND

HILD —

NDIAN

HILD —

ERMINATION OF

ARENTAL

IGHTS —

PPLICATION OF

NDIAN

HILD

ELFARE

CT AND

ICHIGAN

NDIAN

AMILY

RESERVATION

CT TO

-I

NDIAN

ARENT

The heightened requirements for termination of parental rights to

an Indian child are found in the Indian Child Welfare Act (ICWA),

25 USC 1901 et seq., the Michigan Indian Family Preservation

Act (MIFPA), MCL 712B.1 et seq., and MCR 3.977(G); the

heightened requirements apply whenever the child is of Indian

descent, without regard to whether the parent whose parental

rights are at issue is of Indian descent.

Douglas R. Lloyd,

Prosecuting Attorney, and Brent

E. Morton, Senior Assistant Prosecuting Attorney, for

the Department of Health and Human Services.

Stull & Associates (by Robert K. Ochodnicky) for

respondent-father.

Farhat & Story, PC (by Linda L. Widener) for

respondent-mother.

Before: M

URPHY

, P.J., and G

LEICHER

and L

ETICA

, JJ.

2018] In re B

EERS

EBEAU

-B

EERS

657

URPHY

, P.J. The trial court terminated the parental

rights of respondent-mother and respondent-father to

the two minor children, TB and OL, under MCL

712A.19b(3)(c)(i) (conditions of adjudication continue

to exist) and (g) (failure to provide proper care or

custody).

The proceedings were driven by respondents’

severe drug addictions, primarily involving the abuse

of opiates. In these consolidated appeals, respondent-

father appeals as of right the termination of his paren-

tal rights to TB in Docket No. 341100; he expressly

declines to challenge the termination order as it per-

tains to OL. And in Docket No. 341101, respondent-

mother appeals as of right the termination of her

parental rights to both minor children. Respondent-

mother is a member of the Cheyenne River Sioux Tribe

of South Dakota (the tribe), and there is no dispute

that TB and OL are Indian children for purposes of the

federal Indian Child Welfare Act (ICWA), 25 USC 1901

et seq., the Michigan Indian Family Preservation Act

(MIFPA), MCL 712B.1 et seq., and MCR 3.977(G).

ICWA and MIFPA, along with MCR 3.977(G), set forth

various procedural and substantive protections, mostly

duplicative of each other, which are triggered when an

Indian child is the subject of a child protective proceed-

ing. These protections go beyond the burdens generally

applicable to child protective proceedings. The trial

court applied the appropriate heightened standards or

burdens when terminating respondent-mother’s pa-

rental rights, but it failed to apply them when termi-

nating the parental rights of respondent-father, osten-

sibly because the Indian heritage of the children is

solely through their mother’s bloodline.

Respondents

were not married and, with respect to OL, respondent-

father did not execute an afﬁdavit of parentage, so the case proceeded

against him as OL’s putative father. Respondent-father did sign an

afﬁdavit of parentage with regard to TB.

658 325

ICH

653 [Sept

Respondent-father argues that ICWA and MIFPA

standards

govern the termination of his parental

rights, considering that TB is his biological child and

an Indian child, regardless of respondent-father’s per-

sonal heritage. We agree and conditionally reverse the

termination of respondent-father’s parental rights to

TB and remand for proceedings consistent with ICWA

and MIFPA, as well as MCR 3.977(G).

Respondent-mother contends that the trial court

erred by terminating her parental rights because peti-

tioner, the Department of Health and Human Services

(DHHS), and the tribe failed to make the required

“active efforts” at preventing the breakup of her family

and because the evidence did not establish beyond a

reasonable doubt that her continued custody of TB and

OL was likely to result in serious emotional or physical

damage to the children. We disagree and afﬁrm the

trial court’s ruling terminating respondent-mother’s

parental rights to the children.

I. TERMINATION OF PARENTAL RIGHTS—MICHIGAN LAW

GENERAL

PRINCIPLES

Under Michigan law, if a trial court ﬁnds that a

single statutory ground for termination of parental

rights has been established by clear and convincing

evidence and that it has also been proved by a

preponderance of the evidence that termination of

parental rights is in the best interests of a child, the

court is required to terminate a respondent’s parental

rights to that child. MCL 712A.19b(3) and (5); In re

Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re

Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In

re Ellis, 294 Mich App 30, 32-33; 817 NW2d 111

(2011). The two statutory grounds implicated in this

2018] In re B

EERS

EBEAU

-B

EERS

659

case are MCL 712A.19b(3)(c)(i)

and (g), which provide

for termination under the following circumstances:

brought under this chapter, 182 or more days have elapsed

since the issuance of an initial dispositional order, and the

court, by clear and convincing evidence, ﬁnds either of the

following:

(i) The conditions that led to the adjudication continue

to exist and there is no reasonable likelihood that the

conditions will be rectiﬁed within a reasonable time con-

sidering the child’s age.

* * *

(g) The parent, without regard to intent, fails to provide

proper care or custody for the child and there is no

reasonable expectation that the parent will be able to

provide proper care and custody within a reasonable time

considering the child’s age.

[2]

B. MIFPA AND THE MICHIGAN COURT RULE

In 2012, the Legislature enacted MIFPA, which was

made

effective

January 2, 2013. See 2012 PA 565.

“[T]he Legislature adopted MIFPA to establish state

law standards for child welfare and adoption proceed-

ings involving Indian children.” In re Williams, 501

Mich 289, 298; 915 NW2d 328 (2018). MIFPA was

designed to protect the best interests of Indian chil-

dren, to promote the security and stability of Indian

tribes and families, and to ensure that the DHHS

Pursuant

to 2018 PA 58, effective June 12, 2018, Subsection (3)(g)

now provides as follows:

The parent, although, in the court’s discretion, ﬁnancially able

to do so, fails to provide proper care or custody for the child and

there is no reasonable expectation that the parent will be able to

provide proper care and custody within a reasonable time consid-

ering the child’s age.

660 325

ICH

653 [Sept

employs practices that are in accord with ICWA,

MIFP

A itself, and other applicable law, the goal of

which is to prevent removal of Indian children or, if

removal is necessary, to place an Indian child in an

environment that reﬂects the unique values of the

child’s tribal culture. MCL 712B.5(a) and (b); Williams,

501 Mich at 298. In child custody proceedings, and in

consultation with an Indian child’s tribe, these policy

directives or goals must be considered when determin-

ing the best interests of the Indian child. MCL 712B.5.

As part of MIFPA, MCL 712B.15 provides, in pertinent

part:

(3) A party seeking a termination of parental rights

an Indian child under state law must demonstrate to the

court’s satisfaction that active efforts have been made to

provide remedial services and rehabilitative programs

designed to prevent the breakup of the Indian family and

that the active efforts were unsuccessful.

(4) No termination of parental rights may be ordered in

a proceeding described in this section without a determi-

nation, supported by evidence beyond a reasonable doubt,

including testimony of at least 1 qualiﬁed expert witness

as described in section 17, that the continued custody of

the Indian child by the parent or Indian custodian is likely

to result in serious emotional or physical damage to the

Indian child.

[3]

[Emphasis added.]

In W

illiams, 501 Mich at 300-302, our Supreme Court, citing MCL

712B.15(1) to (4), provided a summary of the heightened evidentiary

and procedural burdens required of the state under MIFPA, observing:

For example: (1) the state must give notice of the pending

proceeding to the Indian tribe; (2) before removal or to continue

removal, the state must prove by clear and convincing evidence

that active efforts were made to provide remedial services and

rehabilitative programs designed to prevent the breakup of the

Indian family, that the active efforts were unsuccessful, and that

the continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical

2018] In

re B

EERS

EBEAU

-B

EERS

661

Respondent-father is alleging a violation of MCL

712B.15(3)

and (4).

And MIFPA deﬁnes “parent” as

“any biological parent . . . of an Indian child or any

person who has lawfully adopted an Indian child . . . .”

MCL 712B.3(s) (emphasis added). But “parent” “does

not include the putative father if paternity has not

been acknowledged or established.” Id. With respect to

TB, an Indian child, there is no dispute that

respondent-father is a biological parent—he signed the

afﬁdavit of parentage regarding TB. See MCL

722.1003(1) (“If a child is born out of wedlock, a man is

considered to be the natural father of that child if the

man joins with the mother of the child and acknowl-

edges that child as his child by completing a form that

is an acknowledgment of parentage.”). As reﬂected in

the deﬁnition of “parent,” even adoptive parents of an

Indian child, regardless of the parents’ heritage, enjoy

the beneﬁts of the heightened burdens that seek to

protect Indian children from family disruptions.

The fact that a parent, as deﬁned in MCL 712B.3(s),

is afforded protection under MIFPA is further spelled

out in MCL 712B.39, which provides:

Any Indian child who is the subject of an action for

foster

care

placement or termination of parental rights

damage to the child; (3) when seeking termination, the state must

demonstrate

that active efforts were made to prevent the breakup

of the Indian family and that the efforts were unsuccessful; and

(4) any termination of parental rights must be supported by

evidence beyond a reasonable doubt and by the testimony of at

least one qualiﬁed expert who knows about the child-rearing

practices of the Indian child’s tribe.

“We review de novo issues involving the interpretation and applica-

tion of MIFPA.” In re Detmer, 321 Mich App 49, 59; 910 NW2d 318

(2017). When construing a statute, our goal is to discern the intent of the

Legislature, looking ﬁrst to the language of the statute, and if the

statutory language is clear and unambiguous, we must enforce it as

written. Id. at 59-60.

662 325

ICH

653 [Sept

under state law, any

parent or Indian custodian from

whose custody an Indian child was removed, and the

Indian child’s tribe may petition any court of competent

jurisdiction to invalidate the action upon a showing that

the action violated any provision of sections 7, 9, 11, 13,

15, 21, 23, 25, 27, and 29 of this chapter. [Emphasis

added.]

As indicated earlier, respondent-father is alleging a

violation

of Subsections (3) and (4) of § 15 of MIFPA.

In addition to MIFPA, MCR 3.977, which is the court

rule addressing the termination of parental rights,

provides in Subrule (G):

In addition to the required ﬁndings in this rule, the

parental

rights of a parent of an Indian child must not be

terminated unless:

(1) the court is satisﬁed that active efforts as deﬁned in

MCR 3.002 have been made to provide remedial service

and rehabilitative programs designed to prevent the

breakup of the Indian family and that these efforts have

proved unsuccessful, and

(2) the court ﬁnds evidence beyond a reasonable doubt,

including testimony of at least one qualiﬁed expert wit-

ness as described in MCL 712B.17, that parental rights

should be terminated because continued custody of the

child by the parent or Indian custodian will likely result in

serious emotional or physical damage to the child. [Em-

phasis added.]

MCR 3.002 includes, in part, the deﬁnitions taken from

MCL

712B.3,

thereby reiterating that a “parent” is

“any biological parent . . . of an Indian child . . . .” MCR

3.002(20).

The “active efforts” referred to in MIFPA and MCR

3.977(G)(1) must be proved by clear and convincing

evidence. In re England, 314 Mich App 245, 258-259;

887 NW2d 10 (2016). “Active efforts” are deﬁned as

“actions to provide remedial services and rehabilitative

2018] In re B

EERS

EBEAU

-B

EERS

663

programs designed to prevent the breakup of the

Indian

family and to reunify the Indian child with the

Indian family.” MCL 712B.3(a); see also MCR 3.002(1).

MIFPA and the court rule provide an extensive list of

actions and efforts that must be undertaken by the

state in order to satisfy the “active efforts” require-

ment. MCL 712B.3(a)(i) to (xii); MCR 3.002(1)(a) to (l).

We also note that MIFPA requirements are in addition

to the mandate that petitioner prove a statutory

ground for termination by clear and convincing evi-

dence. England, 314 Mich App at 253; see also MCR

3.977(G) (“In addition to the required ﬁndings in this

rule, the parental rights of a parent of an Indian child

must not be terminated unless . . . .”) (emphasis

added).

II. TERMINATION OF PARENTAL RIGHTS—FEDERAL LAW—ICWA

“In 1978, Congress enacted ICWA in response to

growing

concerns

over ‘abusive child welfare practices

that resulted in the separation of large numbers of

Indian children from their families and tribes through

adoption or foster care placement, usually in non-

Indian homes.’ ” In re Morris, 491 Mich 81, 97-98; 815

NW2d 62 (2012), quoting Mississippi Band of Choctaw

Indians v Holyﬁeld, 490 US 30, 32; 109 S Ct 1597; 104

L Ed 2d 29 (1989). The United States Congress, in 25

USC 1902, stated:

The Congress hereby declares that it is the policy of this

ation to protect the best interests of Indian children and

to promote the stability and security of Indian tribes and

families by the establishment of minimum Federal stan-

dards for the removal of Indian children from their families

and the placement of such children in foster or adoptive

homes which will reﬂect the unique values of Indian

culture, and by providing for assistance to Indian tribes in

the operation of child and family service programs.

664 325

ICH

653 [Sept

Section 1912(d) of ICWA provides that “[a]ny party

seeking

. . . termination of parental rights to an Indian

child under State law shall satisfy the court that active

efforts have been made to provide remedial services

and rehabilitative programs designed to prevent the

breakup of the Indian family and that these efforts

have proved unsuccessful.” 25 USC 1912(d) (comma

omitted). As with “active efforts” under MIFPA, “active

efforts” for purposes of ICWA must also be proved by

clear and convincing evidence. England, 314 Mich App

at 258-259. Next, 25 USC 1912(f) provides that “[n]o

termination of parental rights may be ordered in such

proceeding in the absence of a determination, sup-

ported by evidence beyond a reasonable doubt, includ-

ing testimony of qualiﬁed expert witnesses, that the

continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or

physical damage to the child.” Comparable to the

deﬁnition of “parent” found in MCR 3.002(20) and

§ 3(s) of MIFPA, 25 USC 1903(9) deﬁnes “parent” as

“any biological parent or parents of an Indian child or

any Indian person who has lawfully adopted an Indian

child, including adoptions under tribal law or custom.”

ICWA also has a provision similar to § 39 of MIFPA

in 25 USC 1914:

Any Indian child who is the subject of any action for

foster

care

placement or termination of parental rights

under State law, any parent or Indian custodian from

whose custody such child was removed, and the Indian

child’s tribe may petition any court of competent jurisdic-

tion to invalidate such action upon a showing that such

action violated any provision of sections 1911, 1912, and

1913 of this title. [Emphasis added.]

Finally, “in addition to ﬁnding that at least one state

tatutory ground for termination was proven by clear

2018] In re B

EERS

EBEAU

-B

EERS

665

and convincing evidence, the trial court must also make

ﬁ

ndings in compliance with ICWA before terminating

parental rights.” In re Payne/Pumphrey/Fortson, 311

Mich App 49, 58; 874 NW2d 205 (2015).

III. TERMINATION OF RESPONDENT-FATHER’S PARENTAL RIGHTS

At the close of the termination hearing, which

espondent-father did not attend,

the trial court

began its ruling from the bench by indicating that

because the children are Indian children, it was

required to apply a beyond-a-reasonable-doubt stan-

dard “to terminate the parental rights as to the

mother.” The court then noted that respondent-father

“does not have any Native American heritage[.]” The

trial court found that respondent-father had done

nothing to perfect paternity with regard to OL, but

the court did recognize him as TB’s “legal father.” The

trial court further found, as to respondent-father, that

his housing situation was “totally unknown,” that his

last visitation with TB was approximately 10 months

earlier, that he had done nothing to address his

emotional instability, that he would disappear for

long periods, that he had not participated in services,

and that he had not progressed with regard to his

substance-abuse issues. Accordingly, the trial court

determined that petitioner had established MCL

712A.19b(3)(c)(i) and (g) by clear and convincing

evidence. The trial court then reviewed various best-

interest factors and concluded that termination of

respondent-father’s parental rights was in the chil-

Respondent-father

was, however, represented by counsel at the

termination hearing and throughout the lower-court proceedings.

Respondent-father’s attorney informed the court at the termination

hearing that he last had “face-to-face contact” with respondent-father

approximately a year before the hearing.

666 325 M

ICH

653 [Sept

dren’s best interests. The court did not apply any of

he protections, burdens, or standards set forth in

ICWA, MIFPA, and MCR 3.977(G).

The trial court entered an order terminating the

parental rights of both respondents to the two chil-

dren. The order, on a standard court form, had boxes

checked indicating that the children were Indian

children, that there existed clear and convincing

evidence of a statutory basis for termination, and that

termination of parental rights was in the best inter-

ests of the children. Another checked box on the order

provided:

Active efforts have been made to provide remedial

services

and rehabilitative programs designed to prevent

the breakup of the Indian family. These efforts have

proved unsuccessful and there is evidence beyond a

reasonable doubt, including qualiﬁed expert witness tes-

timony, that continued custody of the child(ren) by the

parent(s) or Indian custodian will likely result in serious

emotional or physical damage to the child(ren).

The trial court made no such ruling from the bench

relation

to respondent-father, and it is clear that

this provision in the order applied solely to respondent-

mother, especially considering that the court had also

checked the box regarding the generally applicable

“reasonable efforts” language, presumably in reference

to respondent-father.

On appeal, respondent-father argues that the trial

court erred by failing to apply MIFPA and ICWA

standards when assessing whether to terminate his

parental rights to TB. More speciﬁcally, respondent-

father claims a violation of the “active efforts” and

“beyond a reasonable doubt” provisions of MIFPA,

respectively MCL 712B.15(3) and (4), and those same

provisions in ICWA, respectively 25 USC 1912(d) and

2018] In re B

EERS

EBEAU

-B

EERS

667

(f).

Petitioner

concedes that the trial court was re-

quired to apply MIFPA and ICWA burdens and protec-

tions with respect to respondent-father and failed to do

so. Petitioner, however, urges us to afﬁrm the termina-

tion of respondent-father’s parental rights under plain-

error review. Petitioner contends that respondent-

father’s argument is “nothing more than an appellate

after-thought” and “[a] means to raise a technical

violation in an attempt to obtain a result that

[respondent-father] has done nothing to earn.” Peti-

tioner further maintains that even if the trial court

had considered respondent-father’s efforts, which were

essentially nonexistent, under the enhanced ICWA and

MIFPA burdens, his “parental rights still would have

been properly terminated.” While we are somewhat

sympathetic to petitioner’s sentiments, considering the

record of respondent-father’s noninvolvement, we can-

not oblige petitioner.

Because TB is an Indian child and respondent-

father is TB’s biological parent, we hold that

respondent-father’s parental rights should not have

been terminated absent compliance with MIFPA,

ICWA, and MCR 3.977(G), even though respondent-

father himself is not of Indian descent. 25 USC

1903(9); 25 USC 1912(d) and (f); MCL 712B.3(s); MCL

712B.15(3) and (4); MCR 3.002(20); MCR 3.977(G).

Respondent-father

does not argue that the trial court erred by

ﬁnding that clear and convincing evidence established the statutory

grounds for termination under MCL 712A.19b(3)(c)(i) and (g). We also

note that respondent-father does not raise an issue concerning the

adjudicative phase of the proceedings, when in December 2015 he

entered a plea of admission to the allegations in the DHHS’s petition.

We are not aware of any published opinion that has expressly held

that the demands of ICWA, MIFPA, and MCR 3.977(G) govern termi-

nation of the parental rights of a non-Indian, biological parent of an

Indian child. However, the principle can be implied from the existing

caselaw. See, e.g., In re Jones, 316 Mich App 110; 894 NW2d 54 (2016)

668 325 M

ICH

653 [Sept

Accordingly, the trial court erred by terminating

respondent-father’s

parental rights to TB. However,

before addressing petitioner’s plain-error argument

and the proper remedy for the error, it is incumbent on

us to address an issue not raised by the parties.

When respondents signed the afﬁdavit of parentage,

respondent-mother, by operation of MCL 722.1006,

received legal and physical custody of TB. Sims v

Verbrugge, 322 Mich App 205, 214; 911 NW2d 233

(2017). MCL 722.1006 provides:

After a mother and father sign an acknowledgment of

parentage,

the mother has initial custody of the minor

child, without prejudice to the determination of either

parent’s custodial rights, until otherwise determined by

the court or otherwise agreed upon by the parties in

writing and acknowledged by the court. This grant of

initial custody to the mother shall not, by itself, affect the

rights of either parent in a proceeding to seek a court order

for custody or parenting time.

TB was born on August 14, 2015, and respondents

executed

the

afﬁdavit of parentage on August 15th. TB

remained in the hospital until August 24th, the day on

which the DHHS ﬁled its petition requesting that the

court take jurisdiction of TB, although it was “recom-

mended that the child remain in the home with [his]

parents” and the court followed the recommendation.

With petitioner providing a variety of services,

respondent-mother, respondent-father, and TB lived

together as a family unit. The trial court authorized

TB’s removal from the home on November 13, 2015.

Subsequent hearings in November and December

2015, as well as in January 2016, revealed that respon-

(conditionally reversing termination as to the mother because of the

failure

to notify the tribe to which the child might belong, even though

the possible Indian heritage was through the father alone).

2018] In

re B

EERS

EBEAU

-B

EERS

669

dents still resided together and were a couple. Because

court proceedings regarding custody had been ini-

tiated between respondent-father and respondent-

mother, following TB’s birth and the execution of the

afﬁdavit of parentage, respondent-mother was treated

under the law as having sole physical and legal custody

of TB. Respondent-father had no custodial rights,

despite physically residing with the child for approxi-

mately three months.

As indicated earlier, 25 USC 1912(f) provides that

[n]o termination of parental rights may be ordered in such

proceeding

in the absence of a determination, supported

by evidence beyond a reasonable doubt, including testi-

mony of qualiﬁed expert witnesses, that the continued

custody of the child by the parent or Indian custodian is

likely to result in serious emotional or physical damage to

the child. [Emphasis added.]

MIFPA, speciﬁcally MCL 712B.15(4), and MCR

3.977(G)(2)

have

the same “continued custody” lan-

guage. The question that we raise sua sponte is

whether the heightened standards of ICWA, MIFPA,

and MCR 3.977(G) should apply to the termination of

respondent-father’s parental rights when he never had

legal or physical custody rights with regard to TB.

In Adoptive Couple v Baby Girl, 570 US 637; 133 S

Ct 2552; 186 L Ed 2d 729 (2013), the United States

Supreme Court addressed a situation in which a child

was conceived by an unwed couple, and the father was

of Indian heritage. The couple separated before the

child’s birth, and the mother decided before the birth to

place the child up for adoption. Id. at 643. A prospective

adoptive couple emotionally and ﬁnancially supported

the mother during her pregnancy, and the father did

not provide any support. Id. at 644. Four months after

the child’s birth, the prospective adoptive couple

670 325 M

ICH

653 [Sept

served the father with notice of the pending adoption,

and

the father executed papers indicating that he

would not contest the adoption, although he later

claimed that he believed that he was relinquishing his

rights in favor of the mother, not the prospective

adoptive couple. Id. at 644-645. During the adoption

proceedings, the father, whose paternity had been

conﬁrmed by biological testing, challenged the adop-

tion and sought custody of the child. Id. at 645. The

family court in South Carolina determined that the

prospective adoptive couple did not satisfy the height-

ened burden under 25 USC 1912(f) of establishing

beyond a reasonable doubt that the child would suffer

serious emotional or physical damage if the father

were given custody. Id. The adoption petition was

denied, the father was awarded custody and, at the age

of 27 months, the child was handed over to the father,

whom the child had never met. Id. The case made its

way to the United States Supreme Court, which held

that neither 25 USC 1912(f) nor 25 USC 1912(d)

(active efforts) barred termination of the father’s pa-

rental rights. Id. at 656.

The Court ruled that the phrase “continued custody”

necessarily envisions a situation in which a parent,

who is a party to child protective proceedings, has

custody of an Indian child or had custody of an Indian

child at some point before the proceedings were initi-

ated. Id. at 648. According to the Court, § 1912(f) is not

applicable when a parent never had custody of an

Indian child because there is no custody to continue.

Id. The Court held that “when, as here, the adoption of

an Indian child is voluntarily and lawfully initiated by

a non-Indian parent with sole custodial rights, the

ICWA’s primary goal of preventing the unwarranted

removal of Indian children and the dissolution of

2018] In re B

EERS

EBEAU

-B

EERS

671

Indian families is not implicated.” Id

. at 649 (emphasis

added). Moving on to the “active efforts” provision,

§ 1912(d), the Court held:

Consistent with the statutory text, we hold that

§ 1912(d) applies only in cases where an Indian family’s

“breakup” would be precipitated by the termination of the

parent’s rights. The term “breakup” refers in this context

to the discontinuance of a relationship . . . or an ending as

an effective entity . . . . But when an Indian parent aban-

dons an Indian child prior to birth and that child has

never been in the Indian parent’s legal or physical custody,

there is no “relationship” that would be discontinued—and

no effective entity that would be ended—by the termina-

tion of the Indian parent’s rights. In such a situation, the

“breakup of the Indian family” has long since occurred,

and § 1912(d) is inapplicable. [Adoptive Couple, 570 US at

651-652 (some quotation marks, citations, and brackets

omitted).]

The Court observed that the various provisions in

1912

“strongly suggest[] that the phrase ‘breakup of

the Indian family’ should be read in harmony with the

‘continued custody’ requirement.” Id. at 652.

Justice Alito wrote the majority opinion, and he was

joined by two justices who wrote separate concurrences

and two justices who did not write separately; there

were four dissenting justices. Justice Thomas con-

curred in “the Court’s opinion in full but wr[o]te

separately to explain why constitutional avoidance

compels [the] outcome.” Id. at 656 (Thomas, J., concur-

ring). He opined that “the Constitution does not grant

Congress power to override state law whenever that

law happens to be applied to Indians”; therefore, “ap-

plication of the ICWA to these child custody proceed-

ings would be unconstitutional.” Id. at 666. But Justice

Thomas concurred with the outcome “[b]ecause the

Court’s plausible interpretation of the relevant sec-

672 325 M

ICH

653 [Sept

tions of the ICWA avoids these constitutional prob-

lems.”

The other concurrence, by Justice Breyer, pro-

vided, in full, as follows:

I join the Court’s opinion with three observations.

First, the statute does not directly explain how to treat an

absentee Indian father who had next-to-no involvement

with his child in the ﬁrst few months of her life. That

category of fathers may include some who would prove

highly unsuitable parents, some who would be suitable,

and a range of others in between. Most of those who fall

within that category seem to fall outside the scope of the

language of 25 U.S.C. §§ 1912(d) and (f). Thus, while I

agree that the better reading of the statute is, as the

majority concludes, to exclude most of those fathers, I also

understand the risk that, from a policy perspective, the

Court’s interpretation could prove to exclude too many.

Second, we should decide here no more than is neces-

sary. Thus, this case does not involve a father with

visitation rights or a father who has paid all of his child

support obligations. Neither does it involve special cir-

cumstances such as a father who was deceived about the

existence of the child or a father who was prevented from

supporting his child. The Court need not, and in my view

does not, now decide whether or how §§ 1912(d) and (f)

apply where those circumstances are present.

Third, other statutory provisions not now before us may

nonetheless prove relevant in cases of this kind. Section

1915(a) grants an adoptive “preference” to “(1) a member of

the child’s extended family; (2) other members of the Indian

child’s tribe; or (3) other Indian families . . . in the absence

of good cause to the contrary.” Further, § 1915(c) allows the

“Indian child’s tribe” to “establish a different order of

preference by resolution.” Could these provisions allow an

absentee father to reenter the special statutory order of

preference with support from the tribe, and subject to a

court’s consideration of “good cause”? I raise, but do not

here try to answer, the question. [Adoptive Couple, 570 US

at 666-667 (Breyer, J., concurring) (some quotation marks

omitted; citations omitted).]

2018] In

re B

EERS

EBEAU

-B

EERS

673

This concurrence essentially indicates that, for pur-

poses

of the case then before the Court, the “continuing

custody” analysis by Justice Alito was ﬁne, but there

may be other cases in which it would not be.

Given the equivocal nature of Justice Breyer’s con-

currence, it cannot truly be said that a majority of the

United States Supreme Court created an inﬂexible

rule for purposes of the “continuing custody” analysis

under § 1912(f), as well as the analysis under

§ 1912(d). And even assuming the contrary, it certainly

is not clear whether the Supreme Court would impose

the rule based solely on whether a parent had physical

custody, in the strictest sense of the term under the

law, where a custodial-like environment existed on a

practical level absent any technical custodial rights.

The father in Adoptive

Couple did not have legal or

physical custody of the child; the mother had sole legal

and physical custody, and the father had never spent

any time with, cared for, or resided with the child. The

Court found that the father “never had physical cus-

tody of” the child. Adoptive Couple, 570 US at 650. Nor

did the father have “legal custody,” given that South

Carolina law provided, “ ‘Unless the court orders oth-

erwise, the custody of an illegitimate child is solely in

the natural mother . . . .’ ” Id., quoting S.C. Code Ann

§ 63-17-20(B) (2010). The Court’s reference to “physi-

cal” custody did not suggest that the Court equated

physical custody only to custody that arises by opera-

tion of law or court order, as opposed to a scenario

For

example, if the father and mother of an Indian child were unwed

but lived together for years as a family despite the mother having sole

legal and physical custody of the child by operation of law or court order,

we cannot imagine the Supreme Court holding that the father, espe-

cially if he had Indian heritage, could have his parental rights termi-

nated without application of heightened burdens merely because he did

not have legal or physical custody rights under the law.

674 325 M

ICH

653 [Sept

in which a parent simply provides a custodial environ-

ment

for a child.

We hold that under the particular facts of the

instant case—which are entirely dissimilar to those in

Adoptive Couple, in which the father effectively aban-

doned the child from birth and even in utero—the

beyond-a-reasonable-doubt standard applied to the

termination of respondent-father’s parental rights, al-

though he never had legal or physical custody rights as

those terms are legally employed. When DHHS’s peti-

tion was ﬁled in August 2015 and for a period thereaf-

ter, respondent-father, respondent-mother, and TB

lived together as a family unit and respondent-father

provided some care for and shared custody of TB. And

petitioner was providing reuniﬁcation services. The

family unit dissolved only when TB was removed by

court order, although respondents remained together.

The removal of TB discontinued the custodial arrange-

ment that had existed with respect to both respondents

and TB—if not in law, in practice.

We also note that, as alluded to earlier, MCL

722.1006 provides that “[a]fter a mother and father sign

an acknowledgment of parentage, the mother has initial

custody of the minor child, without prejudice to the

determination of either parent’s custodial rights . . . .”

(Emphasis added.) Allowing the operation of MCL

722.1006 to negate the protections of ICWA, MIFPA,

and MCR 3.977(G) in cases in which the father of an

Indian child is providing or has provided care and

custody for the Indian child, absent legally recognized

custodial rights, could certainly be viewed as being

prejudicial to the father’s custodial rights.

In assessing the impact of Adoptive Couple, our

reasoning in rejecting application of the Supreme

Court’s “continuing custody” analysis to the particular

2018] In re B

EERS

EBEAU

-B

EERS

675

facts of this case applies equally to the state and federal

“

active efforts” provisions. There was an existing intact

Indian family and an existing relationship between

respondent-father and TB when petitioner intervened

for the protection of TB, began providing services, and

then removed TB by court order. The breakup of the

Indian family had not yet occurred when the petition

was ﬁled and TB was removed. But we must go one step

further and examine this Court’s opinion in In re SD,

236 Mich App 240; 599 NW2d 772 (1999). There, this

Court addressed a situation in which the non-Indian

father and the Indian mother of the Indian children had

separated, the children were residing with their mother,

the father was not involved in the children’s lives, and

he had sexually abused one child. The mother was not

the subject of any DHHS petition. This Court accepted

that the state had to prove beyond a reasonable doubt

that custody of the children by the father would likely

result in damage to the children, and it also determined

that active efforts to provide services to the father to

prevent the breakup of the Indian family under ICWA

were unnecessary. Id. at 244-246.

The panel reasoned that “the family had already

broken up by the time the termination proceedings

were initiated” and that an “Indian family” was not

being broken up because the children’s mother was the

parent with the Indian heritage, and she remained

with the children. Id. at 244-245. As with Adoptive

Couple, we conclude that In re SD is factually distin-

guishable from the instant case. Here, a petition for

jurisdiction had been authorized, and the DHHS com-

menced providing reuniﬁcation services while respon-

dents and TB were living together as an Indian family,

which ended only when TB was removed from the

home at petitioner’s behest. Both respondents were

subject to parallel protective proceedings, their paren-

676 325 M

ICH

653 [Sept

tal rights were terminated at the same time, and

respondent-mother

did not remain with TB as an

intact Indian family. Thus, In re SD is inapplicable.

We now address petitioner’s plain-error argument

and the issue of the proper remedy. Generally speak-

ing, in termination proceedings, we review unpre-

served claims under the plain-error rule. In re Van-

Dalen, 293 Mich App 120, 135; 809 NW2d 412 (2011);

In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253

(2008). To avoid forfeiture under the plain-error rule,

the proponent must establish that a clear or obvious

error occurred and that the error affected substantial

rights. VanDalen, 293 Mich App at 135. “[A]n error

affects substantial rights if it caused prejudice, i.e., it

affected the outcome of the proceedings.” Utrera, 281

Mich App at 9. The fatal ﬂaw in petitioner’s plain-error

argument is that respondent-father was not required

to object to or otherwise challenge the trial court’s

ruling from the bench in order to preserve the issues

for appeal. See MCR 2.517(A)(7) (addressing ﬁndings

in a bench trial and stating that “[n]o exception need be

taken to a ﬁnding or decision”). Moreover, were we to

apply a plain-error analysis, we would effectively have

to conclude that active efforts at reuniﬁcation were

demonstrated relative to respondent-father and that

there was evidence beyond a reasonable doubt that

respondent-father’s custody of TB would likely result

in serious emotional or physical damage to TB. 25 USC

1912(d) and (f); MCL 712B.15(3) and (4); MCR 3.977(G).

These criteria were not examined and the standards

were not employed by the trial court, and we would be in

danger of engaging in improper appellate fact-ﬁnding if

we attempted to decide the matters on the basis of the

existing record. See People v Thompson, 314 Mich App

703, 712 n 5; 887 NW2d 650 (2016).

2018] In re B

EERS

EBEAU

-B

EERS

677

Respondent-father seeks reversal of the trial court’s

ermination order and remand of the case for entry of an

order releasing TB to respondent-father, or at least

awarding respondent-father parenting time and addi-

tional services. We hold that the proper remedy in this

case is to conditionally reverse the order terminating

respondent-father’s parental rights to TB and remand

the case for the trial court to address and resolve the

issues regarding active efforts and the potential of

serious emotional or physical damage to TB if custody

continued with respondent-father, as analyzed under

the beyond-a-reasonable-doubt standard. See In re

McCarrick/Lamoreaux, 307 Mich App 436, 469; 861

NW2d 303 (2014) (“We conditionally reverse and

remand for the trial court to determine whether

McCarrick’s continued custody would result in seri-

ous emotional or physical damage to the children.”).

Stated otherwise, we reverse and remand to the trial

court for compliance with 25 USC 1912(d) and (f),

MCL 712B.15(3) and (4), and MCR 3.977(G). Given

the record regarding respondent-father, there clearly

could be a risk of harm or danger to TB were we to

order the trial court to release TB to respondent-

father. See McCarrick/Lamoreaux, 307 Mich App at

469 (“[W]e decline to automatically reverse the trial

court’s order in this case because doing so could place

the child in danger . . . .”). The trial court is of course

free to enter any interim orders pending the trial

court’s compliance with this opinion.

IV. TERMINATION OF RESPONDENT-MOTHER’S PARENTAL RIGHTS

Respondent-mother argues that petitioner failed to

esent clear and convincing evidence that active efforts

were made to provide services designed to prevent the

breakup of her Indian family. She contends that peti-

678 325 M

ICH

653 [Sept

tioner did not utilize resources available through the

ribe or otherwise engage the tribe in the case until 15

months after the original petition was ﬁled.

Respondent-mother complains that the tribe took a

passive role in the proceedings. She further maintains

that petitioner failed to provide “active efforts” under

the deﬁnitional requirements set forth in MCL

712B.3(a)(i), (iv), (vi), and (ix).

Respondent-mother ar-

ues that there was no evidence that petitioner did

anything more than make “reasonable efforts” at reuni-

ﬁcation, thereby failing to satisfy the heightened “active

efforts” burden.

Under

MCL 712B.3(a), “active efforts” include the following:

(i) Engaging the Indian child, child’s parents, tribe, extended

family members, and individual Indian caregivers through the

utilization of culturally appropriate services and in collaboration

with the parent or child’s Indian tribes and Indian social services

agencies.

* * *

(iv) Requesting representatives designated by the Indian child’s

tribe with substantial knowledge of the prevailing social and

cultural standards and child rearing practice within the tribal

community to evaluate the circumstances of the Indian child’s

family and to assist in developing a case plan that uses the

resources of the Indian tribe and Indian community, including

traditional and customary support, actions, and services, to ad-

dress those circumstances.

* * *

(vi) Identifying, notifying, and inviting representatives of the

Indian child’s tribe to participate in all aspects of the Indian child

custody proceeding at the earliest possible point in the proceeding

and actively soliciting the tribe’s advice throughout the proceeding.

* * *

(ix) Offering and employing all available family preservation

strategies and requesting the involvement of the Indian child’s

tribe to identify those strategies and to ensure that those strat-

egies are culturally appropriate to the Indian child’s tribe.

2018] In

re B

EERS

EBEAU

-B

EERS

679

For purposes of ICWA and MIFPA, active efforts

must

be proved by clear and convincing evidence.

England, 314 Mich App at 258-259. The factual ﬁnd-

ings by the trial court are reviewed for clear error, and

any issue regarding the interpretation and application

of the relevant federal and state statutory provisions is

reviewed de novo. In re Johnson, 305 Mich App 328,

331; 852 NW2d 224 (2014). As observed earlier, “active

efforts” are deﬁned as “actions to provide remedial

services and rehabilitative programs designed to pre-

vent the breakup of the Indian family and to reunify

the Indian child with the Indian family.” MCL

712B.3(a); see also MCR 3.002(1). “Active efforts” re-

quire afﬁrmative, as opposed to passive, efforts, and

“active efforts” require more than the standard “rea-

sonable efforts” approach. In re JL, 483 Mich 300, 321;

770 NW2d 853 (2009). “Active efforts require more

than a referral to a service without actively engaging

the Indian child and family.” MCL 712B.3(a); MCR

3.002(1). “Active efforts” involve a caseworker who

takes a client through the steps of a treatment plan

rather than requiring the client to perform the plan on

his or her own. In re JL, 483 Mich at 321.

Respondent-mother acknowledges that petitioner

mailed notices of all hearings to the tribe, but she

argues that there is no evidence that petitioner made

meaningful efforts to involve the tribe. There is no

dispute that petitioner provided proper notice to the

tribe and that the tribe did not initially conﬁrm or deny

tribal membership. Nonetheless, notices of every hear-

ing and copies of the petitions and reports were pro-

vided to the tribe. A Michigan caseworker assigned to

respondent-mother’s case testiﬁed that she made

phone contact with tribal caseworkers, but they ini-

tially seemed uninterested. However, once the tribe

expressed its intent to intervene, petitioner withdrew

680 325 M

ICH

653 [Sept

the termination petition, and the tribe participated in

all

subsequent hearings by telephone.

Evidence was presented that petitioner offered or

provided respondent-mother with assessments, treat-

ment, counseling, drug screens, and services related to

her substance abuse issues.

Psychological evalua-

tions,

therapy, parenting time, in-home services, and

various family programs were also offered or provided.

Family team meetings were held to address

respondent-mother’s barriers to reuniﬁcation and to

assist her in complying with court orders. The qualiﬁed

expert witness from the tribe who was assigned to the

case testiﬁed that she had received reports and up-

dates from petitioner, that she had been included in

treatment plans, that she had been able to provide

input for services, and that she had participated in

family team meetings. The tribal expert additionally

testiﬁed that while the tribe itself did not have many

services available, those services appropriate to the

situation were offered to respondent-mother, but she

failed to contact the tribe to take advantage of the

services. The record reveals that respondent-mother

was resistant to petitioner’s efforts and did not coop-

erate or beneﬁt from the services that were provided to

her. She refused to acknowledge that she had a drug

problem. The tribal expert testiﬁed that she could not

think of any relevant service that had not been offered

to respondent-mother and, in the expert’s opinion,

“active efforts” had been made to reunite respondent-

mother with her children.

In light of this evidence, respondent-mother’s argu-

ment that petitioner failed to make the requisite active

efforts is unavailing. The trial court did not clearly err

had tested positive for various opiates and benzodiazepines at

birth.

2018] In re B

EERS

EBEAU

-B

EERS

681

by ﬁnding that there was clear and convincing evi-

dence

that active efforts were made to prevent the

breakup of the Indian family and that the efforts were

unsuccessful.

Respondent-mother next argues that the trial court

erred by terminating her parental rights when the

evidence did not support a ﬁnding beyond a reasonable

doubt that her custody of the children would likely

result in serious emotional or physical damage to

them. On the basis of her previous argument that

petitioner failed to make “active efforts” to prevent the

breakup of the family, respondent-mother contends

that the evidence presented by petitioner did not

amount to proof beyond a reasonable doubt. Her appel-

late brief again discusses the purported lack of services

provided to her. As already held, the “active efforts”

argument lacks merit. Respondent-mother further

maintains that the evidence was insufﬁcient to meet

the high evidentiary burden because her current coun-

selor testiﬁed at the termination hearing that

respondent-mother was actively engaged in therapy

and was working through her communication issues

and because respondent-mother had been off of heroin

for

about

a year.

The trial court concluded that the evidence, which

included the testimony of the tribal expert, established

beyond a reasonable doubt that continued custody of

the children with respondent-mother would likely re-

sult in serious emotional or physical damage to the

children. The trial court explained:

[F]rom the things that I’ve summarized in this case,

based

on emotional stability and substance abuse factors,

that the efforts that have been provided and offered have

not made any appreciable change other than some

The

counselor had met with respondent-mother for seven sessions.

682 325

ICH

653 [Sept

changes regarding employment, which has been great,

and

housing, which has been great, but as far [as] under-

lying issues, which are substance abuse and emotional

stability, those just have not changed to any great degree.

The factors considered by the trial court included (1)

respondent-mother’s failure to cooperate with and ben-

eﬁt from services designed to address her substance

abuse, (2) her failure to acknowledge that she had a

substance-abuse problem, (3) her resistance to therapy

and the need for another 18 to 24 months of intensive

therapy to address her emotional instability, (4) her

failure to take personal responsibility for her children

being in care, and (5) her missed parenting times. The

trial court also considered the tribal expert’s testimony

that the tribe’s board of directors believed that it was

in the best interests of the children to terminate

respondent-mother’s parental rights. In light of the

tribal expert’s testimony and the other evidence pre-

sented at the hearing, we cannot conclude that the

trial court clearly erred by ﬁnding beyond a reasonable

doubt that custody of the children by respondent-

mother would likely result in serious emotional or

physical damage to them. 25 USC 1912(f); MCL

712B.15(4); MCR 3.977(G)(2).

V. CONCLUSION

In summary, in Docket No. 341100, respondent-

father argues

that ICWA and MIFPA standards govern

the termination of his parental rights considering that

TB is his biological child and is an Indian child,

regardless of respondent-father’s personal heritage.

We agree. Therefore, we conditionally reverse the

termination of respondent-father’s parental rights to

TB and remand for proceedings consistent with ICWA

and MIFPA, as well as MCR 3.977(G). In Docket No.

2018] In re B

EERS

EBEAU

-B

EERS

683

341101, respondent-mother contends that the trial

court

erred by terminating her parental rights because

petitioner and the tribe failed to make the required

active efforts at preventing the breakup of her family.

Respondent-mother also asserts that the evidence did

not establish beyond a reasonable doubt that her

continued custody of TB and OL was likely to result in

serious emotional or physical damage to the children.

We disagree. Therefore, we afﬁrm the trial court’s

ruling terminating respondent-mother’s parental

rights to the children.

Docket No. 341101 afﬁrmed, and Docket No. 341100

conditionally reversed and remanded for proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

LEICHER

and L

ETICA

, JJ., concurred with M

URPHY

P.J.

684 325 M

ICH

653 [Sept

MAURER v FREMONT INSURANCE COMPANY

Docket

No. 336514. Submitted February 9, 2018, at Detroit. Decided

September 18, 2018, at 9:00 a.m.

Dale Maurer, as conservator for his wife, Rachel A. Maurer, brought

this action in the Tuscola Circuit Court against defendant,

Fremont Insurance Company, for payment of personal protection

insurance (PIP) beneﬁts under the no-fault act, MCL 500.3101 et

seq., after Rachel was catastrophically injured in a motor vehicle

accident in 2012 while using her vehicle to deliver mail as a

part-time relief driver for the United States Postal Service.

According to Dale, when he initially purchased the insurance

policy for Rachel’s vehicle from an agent in 2006, he noted that

the agent had incorrectly indicated on the application that the

vehicle was not used for business, including mail delivery, but

when he told the agent that Rachel did occasionally use the

vehicle in this manner, the agent responded that it was unneces-

sary to change the application. Dale accepted automatic renewal

of this policy by continuing to pay the premiums when he received

renewal notices. Dale testiﬁed that in early 2012, when he

informed the insurance agent that Rachel had purchased a

different vehicle, he again told the agent that this vehicle would

occasionally be used to deliver mail. In 2014, nearly two years

after the accident, Fremont advised Dale that it was rescinding

the policy retroactively to 2006 because of this misrepresentation

in the application and that it therefore had no obligation to pay

for any of Rachel’s medical treatment, replacement services, or

wage loss related to the accident. Dale sought a declaratory

judgment stating that Rachel was entitled to PIP beneﬁts from

Fremont, and Fremont ﬁled a counterclaim for rescission. The

parties ﬁled competing motions for summary disposition, and the

trial court, Amy Gierhart, J., ruled in Dale’s favor, having

determined that Fremont’s rescission claim was not ﬁled within

the statutory period of limitations indicated in MCL 600.5813 and

that the innocent-third-party doctrine prevented Fremont from

withdrawing insurance coverage from Rachel because she had not

participated in the fraud. However, the innocent-third-party

doctrine had been abrogated in Bazzi v Sentinel Ins Co, 315 Mich

App 763, 781 (2016) (Bazzi I), rev’d in part by Bazzi v Sentinel Ins

2018] M

AURER V

REMONT

685

Co, 502 Mich 390 (2018) (Bazzi II). In light of Bazzi

I’s holding,

the trial court allowed Fremont to ﬁle a delayed motion for

reconsideration. At the same time, Fremont also ﬁled an untimely

motion to amend its afﬁrmative defenses to add a claim alleging

that plaintiff was not entitled to coverage under MCL 500.3113(b)

because Dale purchased the policy and Rachel was the vehicle’s

titleholder and registrant. The parties again ﬁled competing

motions for summary disposition, and the trial court again

granted summary disposition to plaintiff. The trial court denied

for lack of merit Fremont’s motion to amend its afﬁrmative

defenses. Fremont appealed.

The Court of Appeals held:

1. The trial court did not err by granting Dale’s motion for

summary disposition. Claims of fraud are governed by the six-

year limitations period in MCL 600.5813. According to MCL

600.5827, a claim generally accrues at the time the wrong on

which the claim is based was done without regard to the time

damage results. Dale argued that Fremont’s counterclaim for

rescission was barred by the statute of limitations because the

claim arose in 2006 when he ﬁrst completed the application for

insurance. In its response to Dale’s motion for summary disposi-

tion, Fremont argued, contrary to its letter of rescission, that

rescission was based on Dale’s failure to advise Fremont of the

business use of Rachel’s vehicle when the policy renewed in 2012.

However, the declaration sheet accompanying the 2012 policy

renewal unambiguously directed the policyholder to provide

notice to the insured’s agent, not to Fremont, of any error or

change concerning coverage. Therefore, Dale fulﬁlled his contrac-

tual obligation when he again advised the agent in 2012 that

Rachel used the vehicle to deliver mail, and Fremont did not

contest Dale’s testimony that he had advised his agent of the car’s

use. Accordingly, because the wrong on which Fremont’s claim

rested was Dale’s submission of the initial application that

contained a misrepresentation, Fremont’s claim accrued in 2006,

and its counterclaim for rescission was untimely.

2. MCL 500.3101(1) states that the owner or the registrant of

a motor vehicle required to be registered in Michigan shall

maintain security for payment of no-fault insurance beneﬁts on

the vehicle. MCL 500.3113(b) states that a person is not entitled

to be paid PIP beneﬁts for accidental bodily injury if at the time

of the accident the person was the owner or the registrant of a

motor vehicle involved in the accident and the vehicle was

without the security required by MCL 500.3101(1). Fremont ﬁled

an untimely motion to amend its afﬁrmative defenses to include

686 325

ICH

685 [Sept

the argument that Rachel was not entitled to coverage under

MCL

500.3113(b) because she was the owner and registrant of the

vehicle but Dale was the policyholder. However, in Iqbal v Bristol

West Ins Group, 278 Mich App 31 (2008), the Court applied the

last-antecedent rule to the plain language of MCL 500.3113(b)

and held that, for purposes of determining whether the security

required by MCL 500.3101 was in effect, the critical question was

whether the vehicle was insured, not whether the owner or

registrant of the vehicle had purchased the insurance policy.

Therefore, the trial court properly denied Fremont’s motion to

amend its afﬁrmative defenses in this respect.

Afﬁrmed.

ANSEN

, J., dissenting, would have reversed the trial court’s

ruling denying Fremont’s motion for summary disposition and its

motion to amend its afﬁrmative defenses and would also have

reversed the trial court’s grant of Dale’s motion for summary

disposition. When Dale renewed his no-fault policy with Fremont

in September 2012, he effectively entered into a new, separate,

and distinct contract. Because Dale’s assertions in the renewal

contract materially misrepresented the use and driver of the

vehicle at issue, Fremont was entitled to rescind the policy, and

Fremont had six years from September 2012 in which to do so.

Therefore, Fremont’s counterclaim for rescission was timely ﬁled

on January 5, 2015, and the trial court erred by ruling otherwise.

Judge J

ANSEN

would also have held that the trial court abused its

discretion when it denied Fremont’s motion to amend its afﬁrma-

tive defenses to include a defense that Dale’s claim was barred by

MCL 500.3113(b). An individual is excluded from receiving PIP

beneﬁts if at the time of the accident that person was the owner

or registrant of an involved motor vehicle for which the security

required was not in effect. Dale obtained no-fault insurance for

the car, but he was not the owner or registrant of the vehicle. The

sole titleholder and registrant was Rachel. Therefore, the vehicle

driven by Rachel was not covered by the required security

because Rachel did not obtain the insurance as MCL 500.3101(1)

prescribes. As a result, Rachel was barred from recovering PIP

beneﬁts from Fremont. Finally, the three equitable defenses

raised by Dale—laches, the innocent-third-party doctrine, and

the availability of an adequate remedy at law—were not persua-

sive.

1. S

TATUTE OF

IMITATIONS —

ONTRACTS

NVOLVING

RAUD —

HEN A

LAIM

RISES —

ENEWAL

ONTRACTS

A motion to rescind a contract on the basis of fraud must be

brought within the six-year period of limitations prescribed by

2018] M

AURER V

REMONT

687

MCL 600.5813; under MCL 600.5827, a claim generally accrues

the time the wrong on which the claim is based was done

without regard to the time damage results; when there is an

initial contract and a renewal contract and rescission of the

contract is sought because of a wrong committed at the time the

initial contract was executed, the claim accrued at the time of the

initial execution—and the statutory period of limitations began to

run at that time—even if the wrong continued at the time the

contract was renewed.

2. I

NSURANCE —

-F

AULT

UTOMOBILE

NSURANCE —

EQUIRED

ECURITY FOR A

EHICLE —

UST

URCHASE THE

OLICY

Whether a vehicle is insured pursuant to MCL 500.3101(1) is the

critical question when determining whether an individual injured

in an accident involving that vehicle may receive personal pro-

tection insurance (PIP) beneﬁts; a vehicle is insured, and the

vehicle’s titleholder or registrant is entitled to PIP beneﬁts,

whenever the vehicle is covered by a valid no-fault insurance

policy, regardless of who purchased the policy; that is, the

titleholder or the registrant may receive PIP beneﬁts when

injured in an accident involving the insured vehicle, even when

the titleholder or the registrant is not the named policyholder.

Law Ofﬁces of Robert June, PC (by Robert

June)

for plaintiff.

Sullivan, Ward, Asher & Patton (by David L. Delie,

Jr.) and James G. Gross, PLC (by James G. Gross) for

defendant.

Before: J

ANSEN

, P.J., and S

ERVITTO

and S

HAPIRO

, JJ.

HAPIRO

, J. In December 2012, plaintiff Rachel Amy

Maurer

was catastrophically injured in an automobile

accident. Her car, along with all the family cars, had

been insured with defendant Fremont Insurance Com-

pany since 2006. In October 2014, almost two years

after the accident, Fremont advised plaintiff’s hus-

Dale

Maurer is Rachel’s conservator, and he ﬁled this case on her

behalf. He did not bring any claim in his own right. “Plaintiff” as used

in this opinion refers to Rachel.

688 325 M

ICH

685 [Sept

PINION OF THE

OURT

band, Dale Maurer, who was the policyholder, that the

policy

was being rescinded by the company retroactive

to 2006 and that it therefore had no obligation to pay

for any of plaintiff’s medical treatment, replacement

services, or wage loss related to the 2012 accident.

Plaintiff sought a declaratory judgment stating that

she was entitled to personal protection insurance (PIP)

beneﬁts from Fremont under the no-fault act, MCL

500.3101 et seq. Fremont ﬁled a counterclaim for

rescission. The parties ﬁled competing motions for

summary disposition. The trial court ruled in plain-

tiff’s favor, determining that Fremont’s rescission

claim was not ﬁled within the statutory period of

limitations. Fremont appealed, and for the reasons set

forth below, we afﬁrm.

I. FACTS

PREACCIDENT EVENTS

In 2006, Mr. Maurer contacted an insurance agent to

purchase no-fault

insurance for the three family ve-

hicles. Shortly after, Mr. Maurer received a copy of the

Fremont application that had been prepared by the

agent, and the agent told him to sign and send it to

Fremont. The vehicle in question was a 1992 Buick

Regal that was used primarily by plaintiff. She was

employed part-time by the United States Postal Ser-

vice (USPS) as a clerk and delivered mail for half a day

on some Saturdays as a relief driver when other

drivers took time off. The application listed several

questions about the use of the vehicles. One of these

questions asked: “Any vehicles used in any business?

This includes but is not limited to snowplowing, sales,

artisan use, delivery of newspapers, food, mail or any

other items.” Next to that question, the agent had

2018] M

AURER V

REMONT

689

PINION OF THE

OURT

entered “No.” Mr. Maurer testiﬁed that he noticed this

answer

and advised the agent that plaintiff sometimes

used the car for mail deliveries on Saturdays. The

agent told him not to worry about it and that it was not

necessary to change the answer. The agent was inde-

pendent but had authority from Fremont to bind it to

policies.

No evidence was presented that plaintiff partici-

pated in completing the application or was aware of

what answers were provided to the questions on the

application.

Throughout the next several years, Mr. Maurer

accepted automatic renewal of the policy by continuing

to pay the premiums for all the vehicles when renewal

notices were sent to him. In early 2012, Mr. Maurer

contacted the insurance agent to advise him that the

1992 Buick Regal was being replaced with a 2004

Buick Century. Mr. Maurer provided uncontradicted

testimony that when he did so, he again informed the

agent that the vehicle used primarily by his wife, now

the Buick Century, was being used, in part, to deliver

mail.

B. POSTACCIDENT EVENTS

The auto accident in which plaintiff was injured

occurred on December 3, 2012. Fremont promptly

According

to her physician’s report, plaintiff suffered a traumatic

brain injury, respiratory failure, multiple internal injuries, and multiple

orthopedic injuries. In March 2016, her physician reported that she

continues to suffer from

severe neurologic deﬁcits that impair her both physically and

mentally. At this time, she is not able to make informed decisions.

Her comprehension and cognition [are] severely limited. She has

very little insight and is unable to communicate consistently.

690 325

ICH

685 [Sept

PINION OF THE

OURT

learned of the accident, including the fact that plaintiff

had

been delivering mail at the time. On December 14,

2012, an application for no-fault beneﬁts was submit-

ted to Fremont. The application indicated that plaintiff

was employed with the USPS as a mail carrier and

that the accident occurred when she was working. The

police report also indicated that plaintiff was deliver-

ing mail when the accident happened.

A suit was ﬁled on plaintiff’s behalf against the

at-fault driver in 2013. Fremont was informed of this

third-party tort case and monitored its progress. Be-

cause plaintiff was delivering mail when she was

injured, her medical expenses were paid pursuant to

the Federal Employees’ Compensation Act, 5 USC

8101 et seq. However, under 5 USC 8132, USPS was

entitled to reimbursement from any judgment ob-

tained in plaintiff’s third-party action, and USPS as-

serted a lien in anticipation of that event. After the

third-party action was resolved, USPS’s lien was sat-

isﬁed from the tort recovery, and Fremont, as plaintiff’s

no-fault carrier, became liable to reimburse her for that

amount. See Sibley v Detroit Auto Inter-Ins Exch, 431

Mich 164, 170-171; 427 NW2d 528 (1988). Fremont did

not agree to reimburse plaintiff the sum she paid to the

federal government to reimburse it for the cost of her

medical care. In January 2014, plaintiff ﬁled suit

seeking a judgment declaring that Fremont had to do

so.

Although the accident occurred on December 3,

2012, Fremont did not seek to rescind the no-fault

policy until after the tort suit concluded, nearly two

. . . She has right sided weakness involving both the arm and

the

leg . . . . She has severe spasticity and tone in the right arm

and leg. She is totally dependent on others for all aspects of her

care throughout the day. She will likely require assistance for the

rest of her life.

2018] M

AURER V

REMONT

691

PINION OF THE

OURT

years later. On October 27, 2014, Fremont sent a letter

captioned

as “Rescission of Policy” to Mr. Maurer. It

stated that Fremont was rescinding the policy on the

ground that in the 2006 application Mr. Maurer inac-

curately answered the question regarding the business

use of the vehicle. Fremont’s letter described this as

“material misrepresentations regarding driver infor-

mation, usage of an insured vehicle and miles

driven . . . .” According to the letter, “[u]pon rescission,

the policy is void as of inception such that there is no

coverage applicable for the claim ﬁled by you . . . .”

Consistent with Fremont’s assertion of rescission, the

letter included a check to Mr. Maurer for a refund of all

premiums paid since 2006. Mr. Maurer returned the

check to Fremont. In January 2015, Fremont ﬁled a

counterclaim for rescission in which it asked the trial

court to declare that the policy issued to the Maurers

was rescinded and void ab initio and to award “other

equitable relief as is proper under the facts and cir-

cumstances . . . .”

The rescission letter did not assert that Fremont

would have declined to insure the vehicle had it known

that it was being used for occasional mail delivery. The

letter stated that the policy was being rescinded be-

cause “[h]ad we been informed of the [business] use of

the vehicles on the policy we would have adjusted the

rate accordingly resulting in an increase of premium,

and issued a different insurance contract to you with

applicable endorsements under the circumstances.”

The

parties dispute the amount of the premium increase that would

have been applied. Plaintiff, based on documents produced by Fremont

in discovery, claims that the difference would have been $4 per policy

term. Fremont relies on other documents showing that if the car had

been listed as primarily used for business the premium would have been

approximately $170 higher. Fremont would also have issued a policy

692 325

ICH

685 [Sept

PINION OF THE

OURT

And, although Fremont repeatedly refers to a contrac-

tual

right to rescind in the case of fraud, the policy

contained no rescission provision. The policy did, how-

ever, contain two relevant provisions.

First, the policy provided how the insurer could

address errors or misrepresentations in the application

for insurance coverage. It provided that Fremont could

adjust its premiums retroactively if it discovered that

the use category of the car was in error or had been

changed. It stated that the change in premium would be

made “at the time of such changes or when we become

aware of the changes, if later.” There is nothing in the

record, however, to indicate that during the 22 months

between the accident and the rescission letter Fremont

sought any backpayment or increased its premiums.

Second, the contract contained a provision that spe-

ciﬁcally addressed intentional misrepresentation, i.e.,

fraud. That provision narrowly referred to an exclusion

to be applied only to the person who committed the

fraud. It read: “We will not cover any person seeking

coverage under this policy who has intentionally con-

cealed or misrepresented any material fact, made

fraudulent statements, or engaged in fraudulent con-

duct with respect to the procurement of this policy . . . .”

The parties ﬁled cross-motions for summary dispo-

sition,

and

the trial court ruled that Fremont’s rescis-

sion claim was barred by both the statute of limitations

endorsement entitled “Federal Employees Using Autos in Government

Business,”

which would have limited Fremont’s liability exposure in the

event plaintiff caused an accident while delivering mail. That circum-

stance is not present here because although the accident occurred when

plaintiff was delivering mail, she was not at fault in the accident.

The application also contained an “anti-fraud” warning that anyone

making false statements in the application with intent to defraud was

“guilty of insurance fraud.” It did not, however, contain any language

regarding rights or remedies.

2018] M

AURER V

REMONT

693

PINION OF THE

OURT

and the innocent-third-party doctrine. The innocent-

third-party

doctrine provided a bright-line rule that if

the policyholder fraudulently provided false informa-

tion on the application, any rescission based on that

fraud would not apply to other persons covered by the

policy who did not participate in the fraud. After the

trial court’s ruling, this Court held that the innocent-

third-party doctrine had been abrogated. Bazzi v

Sentinel Ins Co, 315 Mich App 763, 781; 891 NW2d 13

(2016) (Bazzi I), rev’d in part by Bazzi v Sentinel Ins Co,

502 Mich 390; 919 NW2d 20 (2018) (Bazzi II).

In light

that decision, the trial court allowed Fremont to ﬁle

a delayed motion for reconsideration. With that mo-

tion, Fremont also ﬁled an untimely motion to amend

its afﬁrmative defenses to add a claim alleging that

plaintiff was not entitled to coverage under MCL

500.3113(b) because Mr. Maurer purchased the policy

and plaintiff was the titleholder to and registrant of

the vehicle. The parties again ﬁled competing motions

for summary disposition, and the trial court again

granted summary disposition to plaintiff based on the

statute of limitations. Fremont’s motion to amend

afﬁrmative defenses was denied for lack of merit.

II. ANALYSIS

Fremont raises two issues on appeal: (1) whether the

trial

court

erred by concluding that its rescission claim

was untimely, and (2) whether MCL 500.3113(b) pre-

e held this appeal in abeyance pending the Supreme Court’s

resolution of Bazzi. Maurer v Fremont Ins Co, unpublished order of the

Court of Appeals, entered May 31, 2018 (Docket No. 336514). Recently,

the Supreme Court afﬁrmed this Court’s ruling that the innocent-third-

party doctrine had been abrogated but reversed this Court’s conclusion

that the insurer was automatically entitled to rescission. Bazzi II, 502

Mich at 407. The Court explained that rescission is an equitable remedy

to be awarded in the trial court’s discretion. Id. at 409-410.

694 325 M

ICH

685 [Sept

PINION OF THE

OURT

cluded plaintiff from recovering no-fault beneﬁts. We

review

de novo a trial court’s grant or denial of sum-

mary disposition. Batts v Titan Ins Co, 322 Mich App

278, 284; 911 NW2d 486 (2017).

III. STATUTE OF LIMITATIONS

Actionable fraud, also known as fraudulent misrep-

resentation, T

itan Ins Co v Hyten, 491 Mich 547, 555;

817 NW2d 562 (2012), requires that

(1) the [party] made a material representation; (2) the

representation was false; (3) when the [party] made the

representation, the [party] knew that it was false, or made

it recklessly, without knowledge of its truth as a positive

assertion; (4) the [party] made the representation with the

intention that the [opposing party] would act upon it; (5)

the [opposing party] acted in reliance upon it; and (6) the

[opposing party] suffered damage. [M&D, Inc v McConkey,

231 Mich App 22, 27; 585 NW2d 33 (1998) (quotation

marks and citation omitted).]

Silent fraud, also known as fraudulent concealment,

acknowledges

that

“suppression of a material fact,

which a party in good faith is duty-bound to disclose, is

equivalent to a false representation and will support

an action in fraud.” Id. at 28-29 (quotation marks and

citations omitted). But in order for silent fraud to be

actionable, the party having a legal or equitable duty

to disclose must have concealed the material fact with

an intent to defraud. Id.; Titan, 491 Mich at 557.

Fremont’s counterclaim asserted that the Maurers

engaged in a material and fraudulent misrepresenta-

tion. Before the trial court, the parties agreed that

claims of fraud are governed by the six-year limitations

period in MCL 600.5813. Adams v Adams (On Recon-

sideration), 276 Mich App 704, 709-710; 742 NW2d 399

(2007). They disagreed, however, about whether the

2018] M

AURER V

REMONT

695

PINION OF THE

OURT

claim accrued in 2006 when the initial application was

inaccurately

completed or in 2012 when the policy was

last renewed before the accident.

Generally, “[a] claim accrues at the time the wrong

upon which the claim is based was done regardless of

the time when damage results.” MCL 600.5827. Plain-

tiff argues that Fremont’s counterclaim for rescission

was ﬁled after the expiration of the six-year limitations

period because the claim for rescission accrued in 2006

when the alleged intentional misrepresentation was

made. Plaintiff points out that Fremont’s letter re-

scinding the insurance policy explicitly stated that the

reason for the rescission was Mr. Maurer’s failure to

disclose the business use of the vehicle in the 2006

application for insurance. Further, Fremont sought to

return all premiums paid since the policy was ﬁrst

issued in 2006, demonstrating its belief that the fraud

occurred at the initial application. Accordingly, plain-

tiff argues, the wrongful act underlying the fraudulent

misrepresentation claim occurred in 2006.

In its response to plaintiff’s motion for summary

disposition, Fremont developed a new position, arguing,

contrary to its letter of rescission, that the rescission

was not based on the 2006 application but rather on the

failure of Mr. Maurer to advise Fremont of the business

use of the vehicle when the policy renewed in 2012.

Fremont argued that at that time, Mr. Maurer violated

his

duty

to disclose that the vehicle was being used for

business purposes. However, any such duty to disclose

was deﬁned, or at least modiﬁed, by Fremont’s state-

ment on the 2012 declaration sheet that unambigu-

ously directed the policyholder to provide notice of any

renewal policy is considered to be a new contract. See Russell v

State Farm Mut Auto Ins Co, 47 Mich App 677, 680; 209 NW2d 815

(1973).

696 325 M

ICH

685 [Sept

PINION OF THE

OURT

error or change concerning coverage to the insured’s

agent,

not to Fremont. The precise wording was, “If the

covered autos are not used as indicated above, contact

your agent.” (Emphasis added; capitalization omitted.)

Thus, as to the 2012 renewal, Mr. Maurer fulﬁlled his

contractual responsibility when he again advised the

agent of the car’s use for mail delivery.

Fremont

does not concede that Mr. Maurer informed the agent of the

vehicle’s use, but it does not offer any evidence to contradict Mr.

Maurer’s testimony. Nor has Fremont produced any proof of fraudulent

intent. An insurance policy can be rescinded for fraud, but there must be

an intentional misrepresentation of a material fact. Bazzi II, 502 Mich

at 408. As noted, in order for fraudulent concealment to be actionable,

the party having a legal or equitable duty to disclose must have

concealed the material fact with an intent to defraud. Titan Ins Co, 491

Mich at 557. However, Fremont offers no proof of intentional misrepre-

sentation and no proof that either plaintiff or Mr. Maurer acted with

fraudulent intent. Indeed, the evidence is unrebutted that Mr. Maurer

twice advised his agent—once in 2006 and again in 2012—that the

vehicle was used to deliver mail. These actions are inconsistent with the

actions of a person engaging in fraud or intentional misrepresentation.

The application was submitted after the agent told Mr. Maurer that the

answer to the question did not matter and to not worry about it.

The dissent reads the declaration sheets, speciﬁcally the sheet

pertaining to the September 2012 renewal, as though Mr. Maurer was

making representations regarding the use of the vehicles. However, this

argument misunderstands the insurance renewal process. Deposition

testimony from one of Fremont’s claims managers established that

Fremont prepared the declaration sheets and sent them to Mr. Maurer

for review. Mr. Maurer was obligated to contact his insurance agent, not

Fremont, to correct errors regarding the use of the vehicles. Again, there

is no evidence contradicting Mr. Maurer’s testimony that he informed

his agent that plaintiff used the vehicle to deliver mail. If the agent

failed to contact Fremont in turn, that does not support a fraud claim

against the Maurers. Further, the dissent’s focus on the declaration

sheet identifying the Maurers’ daughter as the driver of the vehicle is

misplaced because it is undisputed that this mistake was attributable to

Fremont.

In sum, Fremont has not proffered any evidence that Mr. Maurer set

out to induce Fremont to sell him a policy with a lower premium or that

he knew that the answer to the question at issue would result in a lower

2018] M

AURER V

REMONT

697

PINION OF THE

OURT

We conclude that Fremont’s claim for rescission

accrued

in 2006 when Mr. Maurer submitted the

application containing the misrepresentation. That

was the wrong on which Fremont’s claim rests. The

allegation that Mr. Maurer failed to disclose the vehi-

cle’s use in 2012 fails, at least for purposes of summary

disposition, because the evidence is uncontested that

he complied with the directive on the declaration sheet

to “contact your agent” in the event of any changes to

or inaccuracies in the description of the vehicle’s use.

Thus, we afﬁrm the trial court’s conclusion that Fre-

mont’s counterclaim for rescission was untimely and

that plaintiff was entitled to summary disposition.

premium. It is well settled that fraud “is not to be lightly presumed, but

must

be clearly proved by clear, satisfactory and convincing evidence”

and that “trial courts should ensure that these standards are clearly

satisﬁed with regard to all of the elements of a fraud claim.” Cooper v

Auto Club Ins Ass’n, 481 Mich 399, 414; 751 NW2d 443 (2008) (quotation

marks and citations omitted). For those reasons, Fremont failed to

establish a question of fact as to fraudulent intent.

Given our ruling, we need not address the parties’ equitable argu-

ments regarding rescission in this case. We note, however, that Fremont

argues in its reply brief that it is seeking a legal, not an equitable,

rescission. But Fremont does not argue that a different limitations

period applies to legal rescissions. Further, we note that there is no

rescission clause in the policy. We also question whether the distinction

drawn by Fremont is still meaningful after the merger of law and equity.

According to one respected treatise:

In considering the availability and scope of judicial rescission, it

is necessary to bear in mind that the great bulk of cases have

been decided under the dual-court system of separate courts of

law and of equity, with judicial rescission being historically an

equitable remedy. This means that currently, in view of the

widespread fusion of law and equity, many of the decided cases

have no current value except to point to the existence of certain

“equitable” principles which would still be followed by a court in

determining whether rescission should be granted, although it

was not a court of “equity.” [2 Couch, Insurance, 3d, § 31:65,

p 31-117.]

698 325

ICH

685 [Sept

PINION OF THE

OURT

III. MCL 500.31

Fremont ﬁled an untimely motion to amend its

afﬁrmative defenses to add a defense based on MCL

500.3113(b). On appeal, Fremont pursues this defense

but its statement of questions presented does not

assert that the trial court erred by denying the motion

to amend. “Independent issues not raised in the state-

ment of questions presented are not properly pre-

sented for appellate review.” Bouverette v Westinghouse

Electric Corp, 245 Mich App 391, 404; 628 NW2d 86

(2001). Accordingly, whether the trial court so erred is

not properly before us, and because the afﬁrmative

defense was never ﬁled, Fremont may not seek to

assert it on appeal. Nonetheless, we choose to address

this unpreserved issue because it involves a question of

law and the relevant facts are undisputed. Smith v

Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711

NW2d 421 (2006).

Fremont’s new argument is that plaintiff is not

entitled to coverage under MCL 500.3113(b) because

plaintiff was the titleholder and registrant of the

vehicle but her husband was the policyholder. MCL

500.3113 provides, in part, that

[a] person is not entitled to be paid personal protection

surance beneﬁts for accidental bodily injury if at the time

of the accident any of the following circumstances existed:

* * *

(b) The person was the owner or registrant of a motor

vehicle or motorcycle involved in the accident with respect

to which the security required by [MCL 500.3101] . . . was

not in effect.

MCL 500.3101(1) provides that “[t]he owner or regis-

trant

of a motor vehicle required to be registered in

2018] M

AURER V

REMONT

699

PINION OF THE

OURT

this state shall maintain security for payment of ben-

eﬁts

under personal protection insurance, property

protection insurance, and residual liability insurance.”

The seminal case interpreting MCL 500.3113(b) is

Iqbal v Bristol West Ins Group, 278 Mich App 31; 748

NW2d 574 (2008). In that case, we considered the plain

text of MCL 500.3113(b) and concluded that the critical

question was whether the vehicle was insured, not

whether the owner or registrant had been the pur-

chaser of the policy.

[T]he phrase “with respect to which the security required

section 3101 . . . was not in effect,” § 3113(b), when read

in proper grammatical context, deﬁnes or modiﬁes the

preceding reference to the motor vehicle involved in the

accident, here the BMW, and not the person standing in

the shoes of an owner or registrant. The statutory lan-

guage links the required security or insurance solely to

the vehicle. Thus, the question becomes whether the

BMW, and not plaintiff, had the coverage or security

required by MCL 500.3101. As indicated above, the cover-

age mandated by MCL 500.3101(1) consists of “personal

protection insurance, property protection insurance, and

residual liability insurance.” While plaintiff did not obtain

this coverage, there is no dispute that the BMW had the

coverage, and that is the only requirement under MCL

500.3113(b), making it irrelevant whether it was plain-

tiff’s brother who procured the vehicle’s coverage or plain-

tiff. Stated differently, the security required by MCL

500.3101(1) was in effect for purposes of MCL 500.3113(b)

as it related to the BMW. [Id. at 39-40.]

In sum, Iqbal followed

the

last-antecedent rule

based on the plain language of the statute. “The ‘last

antecedent’ rule of statutory construction provides

that a modifying or restrictive word or clause con-

tained in a statute is conﬁned solely to the immediately

preceding clause or last antecedent, unless something

in the statute requires a different interpretation.”

700 325 M

ICH

685 [Sept

PINION OF THE

OURT

Stanton v Battle Creek, 466 Mich 611, 616; 647 NW2d

508

(2002). Thus, the phrase “with respect to which the

security required by [MCL 500.3101] . . . was not in

effect” modiﬁes only the last antecedent or clause,

which is “motor vehicle or motorcycle involved in the

accident.” See MCL 500.3113(b). The words “owner or

registrant” are not part of the last antecedent.

Six years after Iqbal was decided, a panel of this

Court read that decision as holding that at least one of

the vehicle’s owners had to obtain the policy in order

“to avoid the consequences” of MCL 500.3113(b).

Barnes v Farmers Ins Exch, 308 Mich App 1, 8-9; 862

NW2d 681 (2014).

We do not read Iqbal so

narrowly

and note that Barnes never addressed the plain text of

the statute, which by the rules of grammar and the

canons of legal interpretation

attaches the need for a

policy

to the vehicle and not the owner. Were the ruling

in Barnes controlling under the facts of this case, we

would declare a conﬂict with it. However, that is not

necessary here because Barnes is plainly distinguish-

able. In that case, the purchaser of the insurance was

neither a relative nor a resident of the same household

as the plaintiff. In this case, the policy was purchased

by plaintiff’s husband, a wholly different situation.

would

very difﬁcult to articulate any reason why the

The

Supreme Court has granted leave to appeal in a separate case to

determine whether Barnes was rightly decided. See Dye v Esurance

Prop & Cas Ins Co, 501 Mich 944 (2017).

See Scalia & Garner, Reading Law: The Interpretation of Legal

Texts (St. Paul: Thomson/West, 2012), p 152 (“When the syntax involves

something other than a parallel series of nouns or verbs, a prepositive or

postpositive modiﬁer normally applies only to the nearest reasonable

referent.”) (formatting altered).

Moreover, the relevant exclusion in the insurance policy itself is

consistent with Iqbal and inconsistent with Barnes because it turned on

whether the vehicle was insured and not who procured it. That provision

provided that Fremont would not pay PIP beneﬁts for bodily injury

2018] M

AURER V

REMONT

701

PINION OF THE

OURT

Legislature, by adopting MCL 500.3113, would have

intended

to prevent a spouse from procuring insurance

on a family car when the vehicle was registered to the

other spouse, or to completely deprive the spouse

owning the car from no-fault beneﬁts simply because

the car owner let his or her spouse procure the policy.

Certainly Fremont has not articulated a basis to ﬁnd

such

intent. In the absence of a compelling reason to do

so, we will not interpret MCL 500.3113(b) in a way that

would undermine both the purpose of the no-fault act

and the institution of marriage.

“[s]ustained to the owner or registrant of an auto or motorcycle

involved

in the accident and for which the security required under

Michigan no-fault is not in effect.”

When interpreting statutes, our goal is to discern the Legislature’s

intent. Batts, 322 Mich App at 284. “[S]tatutes should be construed so as

to prevent absurd results, injustice, or prejudice to the interests of the

public.” Liberty Mut Ins Co v Mich Catastrophic Claims Ass’n, 248 Mich

App 35, 45; 638 NW2d 155 (2001).

“The purpose of the Michigan no-fault act is to broadly provide

coverage for those injured in motor vehicle accidents without regard to

fault.” Iqbal, 278 Mich App at 37 (quotation marks and citation omitted).

Our dissenting colleague essentially concludes that if anyone other

than an owner of a vehicle procures the policy, the owner(s) may not

recover no-fault beneﬁts under MCL 500.3113(b). Our colleague cites no

authority for this position. The dissent does not address the holding of

Iqbal, which rejects that view. We presume that our colleague is relying

on Barnes, which we have distinguished because this case involves

spouses.

We also question the dissent’s conclusion that Mr. Maurer does not

qualify as an owner of the vehicle. The no-fault act deﬁnes owner, in

part, as “[a] person renting a motor vehicle or having the use of a motor

vehicle, under a lease or otherwise, for a period that is greater than 30

days.” MCL 500.3101(l)(i). Mr. Maurer testiﬁed that he did not drive

plaintiff’s vehicle, but there was no testimony or other evidence suggest-

ing that Mr. Maurer did not have the right to use the vehicle. And to

determine if he is an owner of the vehicle for purposes of the no-fault act,

the focus is on the nature of his right to use the vehicle. Twichel v MIC

Gen Ins Corp, 469 Mich 524, 530; 676 NW2d 616 (2004). However, given

our disposition of the matter, we need not resolve whether Mr. Maurer

is an owner of the vehicle.

702 325 M

ICH

685 [Sept

PINION OF THE

OURT

Afﬁrmed. As the prevailing party, plaintiff may tax

costs.

MCR 7.219(A).

ERVITTO

, J., concurred with S

HAPIRO

, J.

ANSEN

, P.J. (dissenting). Defendant appeals as of

right the trial court’s amended ﬁnal order closing the

case in this ﬁrst-party no-fault action. However, the

crux of defendant’s appeal is actually a challenge to the

trial court’s order granting summary disposition in

favor of plaintiff, denying defendant’s motion to amend

its afﬁrmative defenses, and denying defendant’s mo-

tion for summary disposition. Because I would reverse,

I respectfully dissent.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

On December 3, 2012, plaintiff, Rachel Amy Maurer,

was

catastrophically injured in a motor vehicle acci-

dent. At the time of the collision, plaintiff was driving

her personal vehicle, a Buick Century, within the

course and scope of her employment with the United

States Postal Service (USPS). Accordingly, plaintiff’s

medical expenses were paid pursuant to the Federal

Employees’ Compensation Act (FECA), 5 USC 8101 et

seq. Plaintiff also successfully pursued a tort action,

which sought third-party no-fault beneﬁts pursuant to

MCL 500.3135, against the driver who caused the

collision, as well as the driver’s employer.

At the time of the accident, plaintiff’s car was

insured by a no-fault insurance policy that plaintiff’s

husband, Dale Maurer, had obtained through defen-

dant. On January 3, 2014, plaintiff ﬁled a complaint for

declaratory relief against defendant after the USPS

had “asserted a lien claiming a right of reimbursement

for expenses paid under FECA[.]” Plaintiff asked the

2018] M

AURER V

REMONT

703

ISSENTING

PINION BY

ANSEN

, P.J.

trial court to enter a declaratory judgment ordering

defendant

to reimburse the USPS in the event that she

obtained a tort recovery.

On December 5, 2014, after plaintiff succeeded in

obtaining a tort recovery, she ﬁled an amended com-

plaint in which she claimed that the USPS had, in fact,

asserted a lien for reimbursement of expenses paid

under FECA, and she asked the trial court to enter a

declaratory judgment against defendant for personal

protection insurance (PIP) beneﬁts, together with

costs, interest, and attorney fees. Plaintiff also added a

second breach-of-contract claim, alleging that despite

having reasonable proof of her loss, defendant unrea-

sonably refused to pay PIP beneﬁts to her.

On January 5, 2015, defendant ﬁled a counterclaim

for rescission of the no-fault insurance policy issued to

Mr. Maurer on the basis that Mr. Maurer had made

material misrepresentations in his application for no-

fault insurance on September 6, 2006, regarding the

use of the Buick Century. Defendant claimed that Mr.

Maurer’s material misrepresentations increased its

risk of loss by “impairing its ability to make a reasoned

and informed underwriting decision relative to the

policy that was issued.” Accordingly, defendant claimed

it was entitled to rescind ab initio the no-fault policy

issued to Mr. Maurer.

On July 20, 2015, plaintiff moved for summary

disposition of defendant’s counterclaim for rescission,

arguing that the innocent-third-party doctrine pro-

tected plaintiff’s right of recovery, that defendant’s

rescission claim was time-barred by the six-year stat-

ute of limitations, or that alternatively, the doctrine of

laches precluded defendant’s claim. In an opinion and

order dated September 29, 2015, the trial court

granted plaintiff’s motion for summary disposition,

704 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

concluding that because Mr. Maurer was the one to ﬁle

the

application for insurance, plaintiff was protected

by the innocent-third-party rule. Additionally, the trial

court determined that the six-year statute of limita-

tions in MCL 600.5813 barred defendant’s rescission

claim because the alleged misrepresentation occurred

on September 6, 2006, which meant that defendant

should have ﬁled its claim before September 6, 2012.

Following this Court’s decision in Bazzi v Sentinel Ins

Co, 315 Mich App 763; 891 NW2d 13 (2016) (Bazzi I),

rev’d in part by Bazzi v Sentinel Ins Co, 502 Mich 390;

919 NW2d 20 (2018) (Bazzi II), defendant was permit-

ted to ﬁle a motion for summary disposition on its

rescission claim. Defendant argued that rescission was

appropriate because Mr. Maurer had made material

misrepresentations regarding the use of the Buick Cen-

tury, namely that he failed to indicate that the vehicle

was, in fact, being used for business purposes. Addition-

ally, defendant argued that because plaintiff was in-

jured “in a motor vehicle accident involving a vehicle

which she owned, but for which she did not purchase the

required no-fault insurance,” coverage was precluded

under MCL 500.3113(b). Defendant also argued that the

statute of limitations, the doctrine of laches, and the

innocent-third-party rule did not bar its claim for rescis-

sion. Finally, defendant ﬁled a motion to amend its

afﬁrmative defenses to include plaintiff’s failure to com-

ply with MCL 500.3113(b).

Plaintiff ﬁled her own motion for summary disposi-

tion pursuant to MCR 2.116(C)(10). Plaintiff argued

that defendant’s “only justiﬁcation for refusing [to pay

PIP beneﬁts to plaintiff] [was] a legal theory that [had]

already been rejected” by the trial court, i.e., rescis-

sion. Accordingly, plaintiff further argued that there

was no justiﬁable reason for defendant to refuse to pay

2018] M

AURER V

REMONT

705

ISSENTING

PINION BY

ANSEN

, P.J.

plaintiff PIP beneﬁts, and summary disposition in

favor

of plaintiff should have been granted with re-

spect to plaintiff’s claims for work-loss beneﬁts and the

itemized allowable expenses claimed.

In a written opinion and order entered on October 12,

2016, the trial court granted plaintiff’s motion for sum-

mary disposition, denied defendant’s motion to amend

its afﬁrmative defenses, and denied defendant’s motion

for summary disposition. The trial court found that the

six-year statute of limitations in MCL 600.5813 barred

defendant’s rescission claim. Accordingly, the court did

not ﬁnd it necessary to address defendant’s arguments

regarding the doctrine of laches or the innocent-third-

party rule. Likewise, the court denied defendant’s mo-

tion to amend its afﬁrmative defenses, stating that the

court had “reviewed the argument, and . . . it [was]

without merit . . . .”

Conversely, plaintiff’s motion for summary disposi-

tion was granted. The trial court noted that plaintiff

had requested entry of a judgment in the amount of

$1,434,628.54 and that because defendant did not

dispute the amount of damages, a judgment in that

amount would be entered. This appeal followed.

II. STATUTE OF LIMITATIONS

Defendant ﬁrst argues that the trial court errone-

ously

denied

its motion for summary disposition on the

basis that its claim for rescission was brought after the

six-year period of limitations found in MCL 600.5813

had expired. More speciﬁcally, defendant argues that

because each renewal of Mr. Maurer’s insurance policy

formed a new contract, defendant’s rescission claim

accrued on September 6, 2012, the effective date of the

policy in effect at the time of the underlying accident,

and therefore, its rescission claim was timely. I agree.

706 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

This Court reviews de novo a trial court’s decision

egarding a motion for summary disposition. Lowrey v

LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344

(2016). A motion for summary disposition brought

under MCR 2.116(C)(10) “tests the factual sufﬁciency

of the complaint,” Shinn v Mich Assigned Claims

Facility, 314 Mich App 765, 768; 887 NW2d 635

(2016), and should be granted when “there is no

genuine issue regarding any material fact and the

moving party is entitled to judgment as a matter of

law,” West v Gen Motors Corp, 469 Mich 177, 183; 665

NW2d 468 (2003).

“The moving party has the initial burden to support

its claim for summary disposition by afﬁdavits, depo-

sitions, admissions, or other documentary evidence.”

McCoig Materials, LLC v Galui Constr, Inc, 295 Mich

App 684, 693; 818 NW2d 410 (2012). The court must

consider all the admissible evidence in the light most

favorable to the nonmoving party. Liparoto Constr, Inc

v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d

801 (2009). However, the party opposing summary

disposition under MCR 2.116(C)(10) “may not rely on

mere allegations or denials in pleadings, but must go

beyond the pleadings to set forth speciﬁc facts showing

that a genuine issue of material fact exists.” Oliver v

Smith, 269 Mich App 560, 564; 715 NW2d 314 (2006)

(quotation marks and citation omitted). “A genuine

issue of material fact exists when the record, giving the

beneﬁt of reasonable doubt to the opposing party,

leaves open an issue upon which reasonable minds

might differ.” Bahri v IDS Prop Cas Ins Co, 308 Mich

App 420, 423; 864 NW2d 609 (2014) (quotation marks

and citation omitted).

It is well settled that a no-fault insurer is entitled to

rescind ab initio an insurance policy on the basis that

2018] M

AURER V

REMONT

707

ISSENTING

PINION BY

ANSEN

, P.J.

the insured made a material misrepresentation in his

her application for no-fault insurance. 21st Century

Premier Ins Co v Zufelt, 315 Mich App 437, 446; 889

NW2d 759 (2016). “ ‘Rescission is justiﬁed without

regard to the intentional nature of the misrepresenta-

tion, as long as it is relied upon by the insurer. Reliance

may exist when the misrepresentation relates to the

insurer’s guidelines for determining eligibility for cov-

erage.’ ” Id., quoting Lake States Ins Co v Wilson, 231

Mich App 327, 331; 586 NW2d 113 (1998). However, an

insurer must assert any claim for rescission within six

years after the claim accrues. MCL 600.5813. A claim

for rescission accrues when the wrong, in this case

fraud or misrepresentation, is done, regardless of when

the damage results. MCL 600.5827.

The issue here boils down to when defendant’s

rescission claim accrued. Plaintiff argues that the

claim accrued on September 6, 2006, when Mr. Maurer

ﬁrst submitted an application for no-fault insurance,

and therefore, defendant’s counterclaim for rescission

was untimely, as it was ﬁled after September 6, 2012.

Conversely, defendant argues that its rescission claim

arose on September 6, 2012, when Mr. Maurer renewed

the insurance policy, and therefore could be brought

any time before September 6, 2018.

This Court has previously determined that a re-

newal contract is “a new or separate contract.” 21st

Century, 315 Mich App at 443-444 (quotation marks

and citation omitted). Accordingly, when Mr. Maurer

renewed his no-fault policy with defendant on Septem-

ber 6, 2012, he effectively entered into a new, separate,

and distinct contract. In obtaining that contract, Mr.

Maurer made the following representations regarding

the use of vehicles covered under the policy:

708 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

1 PRIVATE PASSENGER PICKUP DRIVEN TO

WORK

OR SCHOOL 5 DAYS PER WEEK A DISTANCE

[OF] OVER 3 MILES BUT LESS THAN 15 MILES ONE

WAY BY A 54 YEAR OLD MALE

2 PRIVATE PASSENGER CAR DRIVEN TO WORK

OR SCHOOL 5 DAYS PER WEEK A DISTANCE [OF] 3

MILES OR LESS ONE WAY BY A 52 YEAR OLD FE-

MALE

3 PRIVATE PASSENGER CAR USED FOR PLEA-

SURE DRIVEN BY A 54 YEAR OLD MALE

4 PRIVATE PASSENGER CAR DRIVEN TO WORK

OR SCHOOL 5 DAYS PER WEEK A DISTANCE [OF] 3

MILES OR LESS ONE WAY BY A 17 YEAR OLD FE-

MALE

The policy identiﬁed Mr. Maurer’s and plaintiff’s

daughter

as the principal or occasional driver of the

Buick Century. Clearly, however, the Buick Century

was driven by plaintiff, not her daughter, and was not

simply a “private passenger car.” Indeed, it is undis-

puted that at the time of the accident, plaintiff drove

the Buick Century for business purposes.

Further, Mr. Maurer agreed to contact his agent “if

the covered autos [were] not used as indicated above[.]”

The policy contained an antifraud provision, providing

that defendant would not

cover any person seeking coverage under this policy who

has

intentionally

concealed or misrepresented any mate-

rial fact, made fraudulent statements, or engaged in

fraudulent conduct with respect to the procurement of this

policy or to any accident or loss for which coverage is

sought.

Put simply, the new contract entered into by Mr.

Maurer

on September 6, 2012, provided that defendant

would be entitled to rescind Mr. Maurer’s no-fault

policy if he had made any material misrepresentations

in order to procure no-fault coverage. Accordingly, the

2018] M

AURER V

REMONT

709

ISSENTING

PINION BY

ANSEN

, P.J.

misrepresentation with respect to the contract in effect

the time plaintiff was injured occurred on Septem-

ber 6, 2012, when the renewal contract was entered

into and took effect. Subject to any equitable defenses,

defendant had until September 6, 2018, to bring a

claim for rescission. MCL 600.5813. Therefore, I would

conclude that defendant’s counterclaim for rescission

was timely ﬁled on January 5, 2015, and that the trial

court committed error requiring reversal by ﬁnding

otherwise.

Further, I note that in my view, the majority’s con-

clusion that defendant’s rescission claim accrued in

2006 and is therefore now time-barred not only ignores

the precedent previously set by this Court—that a

renewal contract is “a new or separate contract,” 21st

Century, 315 MichApp at 444—but it sets a terrible new

precedent. In effect, the majority has given carte

blanche to plaintiff, Mr. Maurer, or anyone else who

makes material misrepresentations in an application

for no-fault insurance. Moving forward, the majority

has made it so that as long as an individual can avoid an

accident for six years, they may make whatever fraudu-

lent claims they please in order to obtain insurance, and

still receive PIP beneﬁts if an accident subsequently

occurs. I cannot support such a conclusion.

III. MCL 500.31

(b)

Second, defendant argues that the trial court abused

its discretion by denying its motion to amend its

afﬁrmative defenses to include that plaintiff’s claim

was barred by MCL 500.3113(b), and likewise, that the

trial court erroneously denied defendant’s motion for

summary disposition. The basis of defendant’s argu-

ment is that although plaintiff was the titleholder of

the Buick Century, she was not the named insured on

710 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

the no-fault policy: Mr. Maurer was, and Mr. Maurer

does

not qualify as an owner for purposes of the

no-fault act. Accordingly, plaintiff is not entitled to

recover from defendant because plaintiff was driving

an uninsured motor vehicle at the time of the accident.

Again, I agree.

This Court reviews for an abuse of discretion a trial

court’s decision to grant or deny a motion to amend

afﬁrmative defenses. Weymers v Khera, 454 Mich 639,

654; 563 NW2d 647 (1997). Leave to amend “shall be

freely given when justice so requires.” MCR 2.118(A)(2).

Amendment is generally a matter of right. In re Kostin

Estate, 278 Mich App 47, 52; 748 NW2d 583 (2008).

“Leave to amend should ordinarily be denied only for

particularized reasons such as undue delay, bad faith or

dilatory motive, repeated failures to cure by amend-

ments previously allowed, or futility.” Id.; Ostroth v

Warren Regency, GP, LLC, 263 MichApp 1, 5; 687 NW2d

309 (2004) (holding that leave to amend should not be

granted when amendment would cause opposing party

undue prejudice). As noted, this Court reviews de novo a

trial court’s determination on a motion for summary

disposition. Lowrey, 500 Mich at 5-6.

No-fault insurers are required to pay PIP beneﬁts

for accidental bodily injuries to the named insured, the

named insured’s spouse, and “a relative of either

domiciled in the same household, if the injury arises

from a motor vehicle accident.” MCL 500.3114(1). De-

fendant, through the deposition testimony of Pete

Buhl, admitted as much when he testiﬁed that as Mr.

Maurer’s spouse, plaintiff was “pulled in . . . essen-

tially [as] a named insured.” Accordingly, if plaintiff

had been driving a vehicle owned or titled to Mr.

Maurer at the time of the accident, she would have

been covered by the policy.

2018] M

AURER V

REMONT

711

ISSENTING

PINION BY

ANSEN

, P.J.

However, an individual is excluded from receiving

PIP

beneﬁts if, at the time of the accident, that person

“was the owner or registrant of a motor vehicle . . .

involved in the accident with respect to which the

security required by [MCL 500.3101] was not in effect.”

MCL 500.3113(b). Although Mr. Maurer obtained no-

fault insurance for the Buick Century, the vehicle

involved in the accident, he testiﬁed in his deposition

that he was not the registrant; plaintiff was. The sole

titleholder of the Buick Century was plaintiff. In fact,

the policy states, in no uncertain terms, “IF THE

COVERED AUTOS ARE NOT TITLED TO THE

NAMED INSURED IDENTIFIED ABOVE, CONTACT

YOUR AGENT.” Accordingly, the relevant inquiry be-

comes whether Mr. Maurer was an owner for purposes

of the no-fault act.

MCL 500.3101(2)(k)(i) deﬁnes an “owner” as “[a]

person renting a motor vehicle or having the use of a

motor vehicle, under a lease or otherwise, for a period

that is greater than 30 days.”

There may be multiple

owners

a motor vehicle, Ardt v Titan Ins Co, 233

Mich App 685, 691; 593 NW2d 215 (1999), and “it is not

necessary that a person actually have used the vehicle

for a thirty-day period before a ﬁnding may be made

that the person is the owner. Rather, the focus must be

on the nature of the person’s right to use the vehicle.”

Twichel v MIC Gen Ins Corp, 469 Mich 524, 530; 676

NW2d 616 (2004).

In my view, the record is clear that Mr. Maurer does

not qualify as an owner for purposes of the no-fault act.

During his deposition, Mr. Maurer testiﬁed that plain-

tiff was the only titled owner of the Buick Century and

that the only person to ever drive the Buick Century

Effective

October 30, 2017, the deﬁnition of “owner” appears in MCL

500.3101(2)(l)(i). See 2017 PA 140.

712 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

besides plaintiff was the Maurers’ daughter, whose

usage

was characterized as occasional. Accordingly, I

would conclude that plaintiff is barred from recovering

PIP beneﬁts from defendant because the Buick Cen-

tury lacked the necessary security. MCL 500.3113(b).

Based on the foregoing, I would conclude that the

trial court abused its discretion by refusing to allow

defendant to amend its afﬁrmative defenses to include

MCL 500.3113(b). Additionally, the foregoing analysis

makes it clear that plaintiff’s recovery is barred re-

gardless of the outcome of defendant’s counterclaim for

rescission, and summary disposition in favor of defen-

dant is appropriate.

IV. ALTERNATIVE GROUNDS FOR AFFIRMANCE

Finally, plaintiff argues as alternative grounds for

afﬁrmance

that even if the statute of limitations did

not bar defendant’s counterclaim for rescission, several

other equitable defenses do. Speciﬁcally, plaintiff cites

the doctrine of laches, the innocent-third-party doc-

trine, and the fact that when an insurance contract

contains a remedy provision, rescission is unavailable

in light of an adequate remedy at law.

The three issues raised by plaintiff as alternative

grounds for afﬁrmance were either not raised in the

trial court or were purposely not addressed by the

trial court. Accordingly, these issues are unpreserved.

Mouzon v Achievable Visions, 308 Mich App 415, 419;

864 NW2d 606 (2014). However, because “the is-

sue[s] . . . concern[] a legal question and all of the facts

necessary for [their] resolution are present,” Dell v

Citizens Ins Co of America, 312 Mich App 734, 751 n

40; 880 NW2d 280 (2015), this Court has the authority

to address the issues. Although “[a]n appellee may

argue alternative grounds for afﬁrmance without ﬁling

2018] M

AURER V

REMONT

713

ISSENTING

PINION BY

ANSEN

, P.J.

a cross-appeal if the appellee does not seek a more

favorable

decision,” Hanton v Hantz Fin Servs, Inc, 306

Mich App 654, 669; 858 NW2d 481 (2014), I would

conclude that none of plaintiff’s alternative grounds for

afﬁrmance is persuasive.

First, plaintiff’s laches argument fails. A party seek-

ing an equitable remedy must ﬁrst offer to do equity,

and because laches is an equitable doctrine, a party

with unclean hands may not assert the defense.

Attorney General v PowerPick Player’s Club of Mich,

LLC, 287 Mich App 13, 52; 783 NW2d 515 (2010).

When determining whether a party entered equity

with unclean hands, the relevant inquiry is whether

the party seeking the remedy sought to mislead the

other. Isbell v Brighton Area Sch, 199 Mich App 188,

190; 500 NW2d 748 (1993).

Even if MCL 500.3113(b) did not bar plaintiff’s

claim, based on the evidence placed before the trial

court by both parties, reasonable minds could not differ

on the fact that plaintiff cannot establish clean hands

because of the material misrepresentations made by

Mr. Maurer to obtain the insurance policy. Therefore,

laches is unavailable as a defense to defendant’s rescis-

sion claim. At his deposition, Mr. Maurer testiﬁed that

he was aware that the insurance policy did not accu-

rately reﬂect plaintiff’s use of the Buick Century;

however, on the advice of his insurance agent,

Mr. Maurer did not correct the misrepresentation.

Rather, Mr. Maurer testiﬁed that he relied on his

agent’s suggestion, “when we cross that bridge, we’ll

worry about it then.” Further, the policy itself states

that Mr. Maurer and plaintiff’s daughter were the only

drivers of the Buick Century, when in fact Mr. Maurer

clearly testiﬁed that the Buick Century was titled to

plaintiff and was only used by plaintiff as her “mail

car.”

714 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

Additionally, even if plaintiff came to equity with

clean

hands, defendant pleaded rescission as an afﬁr-

mative defense on February 21, 2014, in response to

plaintiff’s original complaint. At this point plaintiff had

not yet prevailed in her tort action, and therefore any

recovery was speculative at best. Although defendant

did not ﬁle its counterclaim for rescission until 2015, it

put plaintiff on notice of its intent to rescind the

contract through its afﬁrmative defenses, and by re-

turning to Mr. Maurer via check the insurance premi-

ums he had paid. Plaintiff is therefore unable to

establish any unreasonable delay on behalf of defen-

dant. See Yankee Springs Twp v Fox, 264 Mich App

604, 611; 692 NW2d 728 (2004) (in which this Court

previously determined that for the doctrine of laches to

apply, there must be an “unreasonable delay that

results in ‘circumstances that would render inequi-

table any grant of relief to the dilatory plaintiff’ ”)

(citation omitted).

Second, plaintiff argued that this Court incorrectly

decided Bazzi I and that plaintiff is entitled to the

protection of the innocent-third-party doctrine. Since

this case was argued, our Supreme Court decided

Bazzi and held that its decision in Titan Insurance Co

v Hyten, 491 Mich 547; 817 NW2d 562 (2012), “abro-

gated the innocent-third-party rule . . . .” Bazzi II, 502

Mich at 396. Our Supreme Court went on to conclude

that although an insurer is entitled to seek rescission

of an insurance contract based on a policyholder’s

fraud in the application for insurance, the insurer is

not automatically entitled to rescission by operation of

law. Bazzi II, 502 Mich at 408-412. Rather, when a

third party is involved, the trial court must balance the

equities to determine whether the third party is “en-

titled to the relief he or she seeks.” Id. at 410 (quota-

tion marks and citation omitted). However, in this

2018] M

AURER V

REMONT

715

ISSENTING

PINION BY

ANSEN

, P.J.

case, plaintiff does not qualify as a third party, and

therefore Bazzi

II is inapplicable. As discussed, plain-

tiff was the owner of the Buick Century, MCL

500.3101(2)(k)(i),

but failed to obtain the necessary

security

required by the no-fault statute. Accordingly,

plaintiff is barred from recovering PIP beneﬁts, MCL

500.3113(b), and remand under Bazzi II is not re-

quired.

Finally, plaintiff argues that the insurance contract

at issue contains a remedy provision, and equitable

rescission is unavailable in light of an adequate rem-

edy at law. However, in light of the fact that MCL

500.3113(b) bars plaintiff’s recovery, the insurance

contract at issue is inapplicable to plaintiff, and this

argument is without merit.

I would reverse and remand for the trial court to

vacate its October 12, 2016 order and grant summary

disposition in favor of defendant.

Now

MCL 500.3101(2)(l)(i).

716 325 M

ICH

685 [Sept

ISSENTING

PINION BY

ANSEN

, P.J.

PARKS v NIEMIEC

Docket

No. 337823. Submitted September 12, 2018, at Detroit. Decided

September 18, 2018, at 9:05 a.m. Leave to appeal denied 503 Mich

1019 (2019).

In 1992, the Department of Social Services brought an action on

behalf of Bonnie M. Parks in the Macomb Circuit Court, Family

Division, against John D. Niemiec over the paternity of his oldest

child. Defendant acknowledged paternity, and the trial court

entered an order of ﬁliation. The trial court also ordered defen-

dant to pay child support for that child, who was born in 1987,

and for his second child, who was born in 1989. Over the next 12

years, Parks sought to enforce the support order. In June 2007,

the trial court temporarily suspended defendant’s support obliga-

tion because of his incarceration. Defendant was released from

prison in December 2016, and in February 2017, defendant asked

the trial court to discharge the unpaid support, arguing that the

statute of limitations barred enforcement. The court, Rachel

Rancilio, J., denied his motion to cancel the unpaid support,

holding that no statute of limitations barred recovery of unpaid

child support in a civil case. Defendant appealed.

The Court of Appeals held:

MCL 600.5809(4) provides, in relevant part, that a civil

action to enforce a child support order is subject to a 10-year

statutory limitations period that runs from the date that the last

support payment is due under the support order regardless of

whether the last payment is made. Generally, the date that the

last support payment is due is the child’s 18th birthday. Under

MCL 600.5856(a) and (b), a statute of limitations is tolled when

a complaint is properly ﬁled or at the time jurisdiction over the

defendant is otherwise acquired. Under MCL 722.720(a) and (b),

a trial court has continuing jurisdiction over proceedings

brought under the Paternity Act, MCL 722.711 et seq., to change

the amount of child support or to enforce a support order. In this

case, it was undisputed that defendant’s oldest child turned 18

on December 25, 2005, and that his younger child turned 18 on

May 21, 2007. The statutory limitations periods for recovery of

unpaid support in a civil case for each child would have expired

on December 25, 2015, and May 21, 2017, respectively. However,

2018] P

ARKS V

IEMIEC

717

the statutory limitations periods were tolled by the trial court’s

ontinuing jurisdiction. The trial court began exercising juris-

diction in 1992 when it entered a judgment of ﬁliation and a

support order, and the court continued to exercise jurisdiction by

entering orders for defendant to show cause for failure to pay

support, issuing multiple bench warrants and enforcement

orders, and temporarily suspending defendant’s support obliga-

tion beginning in June 2007 while he was in prison. The

suspension of defendant’s support obligation for the nearly 10

years of his incarceration did not affect the tolling of the

limitations periods because Parks had already sought to recover

unpaid support numerous times long before either child turned

18. Therefore, although the trial court erred when it held that no

statute of limitations barred recovery of unpaid support in a

civil case, the court nevertheless reached the correct result

because the court’s continuing jurisdiction in this proceeding

tolled the limitations periods.

Afﬁrmed.

ARENT AND

HILD —

IMITATION OF

CTIONS —

IVIL

CTIONS TO

NFORCE A

HILD

UPPORT

RDER

MCL 600.5809(4) provides, in relevant part, that a civil action to

enforce a child support order is subject to a 10-year statutory

limitations period that runs from the date that the last support

payment is due under the support order regardless of whether

the last payment is made; under MCL 600.5856(a) and (b), a

statute of limitations is tolled when a complaint is properly ﬁled

or at the time jurisdiction over the defendant is otherwise

acquired; under MCL 722.720(a) and (b), a trial court has

continuing jurisdiction over proceedings brought under the

Paternity Act, MCL 722.711 et seq., to change the amount of

child support or to enforce a support order; a trial court’s

continuing jurisdiction tolls the statutory limitations period for

civil actions to enforce a child support order.

John D. Niemiec in

propria

persona.

Before: O’C

ONNELL

, P.J., and C

AVANAGH

and S

ERVITTO

JJ.

URIAM

. In this domestic-relations action, defen-

dant, John D. Niemiec, appeals by delayed leave

718 325 M

ICH

717 [Sept

granted

the

trial court’s order denying his motion to

discharge unpaid child support owed for his two chil-

dren. In 1992, the Department of Social Services

brought a paternity action against Niemiec over the

paternity of his oldest child. Niemiec acknowledged

paternity, and the trial court entered an order of

ﬁliation. The trial court also ordered Niemiec to pay

child support for his two children, who were born in

1987 and 1989. Over the next 12 years, plaintiff,

Bonnie M. Parks, sought to enforce the support order.

By 2004, Niemiec owed around $40,000 in unpaid

support. In June 2007, the trial court temporarily

suspended Niemiec’s support obligation because of his

incarceration. Niemiec was released from prison in

December 2016. In February 2017, Niemiec asked the

trial court to discharge the unpaid support, arguing

that the statute of limitations barred enforcement. The

trial court rejected Niemiec’s argument and denied his

motion to cancel the unpaid support. We afﬁrm.

On appeal, Niemiec contends that the statutory

limitations period for enforcement of the support order

has run. We disagree. We review de novo the legal

questions of statutory interpretation and the applica-

tion of a statute of limitations to undisputed facts.

O’Leary v O’Leary, 321 Mich App 647, 651-652; 909

NW2d 518 (2017). “The primary goal of judicial inter-

pretation of statutes is to ascertain and give effect to

the intent of the Legislature.” Cox v Hartman, 322

Mich App 292, 298; 911 NW2d 219 (2017) (quotation

marks and citation omitted). “We read the statutory

language in context and as a whole, considering the

plain and ordinary meaning of every word.” O’Leary,

321 Mich App at 652 (quotation marks and citation

Parks

v Niemiec, unpublished order of the Court of Appeals, entered

August 23, 2017 (Docket No. 337823).

2018] P

ARKS V

IEMIEC

719

omitted). “If the statute’s language is unambiguous,

udicial construction is not permitted.” Sims v

Verbrugge, 322 Mich App 205, 210; 911 NW2d 233

(2017).

A civil action to enforce a child support order is

subject to a 10-year statutory limitations period. MCL

600.5809(4); People v Monaco, 474 Mich 48, 54-55; 710

NW2d 46 (2006). For this reason, the trial court’s

reasoning that no statute of limitations barred recov-

ery of unpaid support in a civil case was erroneous.

Nonetheless, we afﬁrm the trial court’s order because

the statutory limitations periods were tolled by the

trial court’s continuing jurisdiction.

The 10-year statutory period of limitations to enforce

a support order in a civil proceeding runs “from the date

that the last support payment is due under the support

order regardless of whether or not the last payment is

made.” MCL 600.5809(4). Generally, the “date that the

last support payment is due” is the child’s 18th birthday.

Rzadkowolski v Peﬂey, 237 Mich App 405, 411; 603

NW2d 646 (1999). A statute of limitations is tolled when

a complaint is properly ﬁled or “[a]t the time jurisdiction

over the defendant is otherwise acquired.” MCL

600.5856(a) and (b). Pertinent to this case, a trial court

“has continuing jurisdiction over proceedings brought

under” the PaternityAct, MCL 722.711 et seq., to change

the amount of child support or to enforce a support

order. MCL 722.720(a) and (b).

In this case, it is undisputed that Niemiec’s oldest

child turned 18 on December 25, 2005, and that his

younger child turned 18 on May 21, 2007. The statu-

tory limitations periods for recovery of unpaid support

in a civil case for each child would have expired on

December 25, 2015, and May 21, 2017, respectively.

The statutory limitations periods were tolled, however,

720 325 M

ICH

717 [Sept

by the trial court’s continuing jurisdiction. The trial

court

began exercising jurisdiction in 1992 when it

entered a judgment of ﬁliation and a support order.

The trial court continued to exercise jurisdiction by

entering orders for Niemiec to show cause for failure to

pay support, issuing multiple bench warrants and

enforcement orders, and temporarily suspending Ni-

emiec’s support obligation beginning in June 2007

while he was in prison. Further, the suspension of

Niemiec’s support obligation for the nearly 10 years of

his incarceration did not affect the tolling of the

limitations periods because Parks had already sought

to recover unpaid support numerous times long before

either child turned 18. That temporary suspension

merely reﬂected the trial court’s continuing jurisdic-

tion. Therefore, even after the statutory limitations

periods began to run in December 2005 and May 2007,

respectively, they were tolled by the trial court’s con-

tinuing jurisdiction. In sum, although the trial court

erred when it determined that no statute of limitations

applied to civil proceedings to enforce a child support

order, it nevertheless reached the correct result be-

cause the trial court’s continuing jurisdiction in this

proceeding tolled the limitations periods. See Mich Ed

Employees Mut Ins Co v Karr, 228 Mich App 111, 115

n 1; 576 NW2d 728 (1998) (declining to “reverse when

the trial court reaches the correct result regardless of

the reasoning employed”). Therefore, Niemiec remains

liable for unpaid child support in this civil proceeding.

We afﬁrm.

O’C

ONNELL

, P.J., and C

AVANAGH

and S

ERVITTO

, JJ.,

concurred.

2018] P

ARKS V

IEMIEC

721