Alexander v. City of Detroit

418 N.W.2d 113, 164 Mich. App. 502

• Court: Michigan Court of Appeals
• Decided: November 16, 1987
• Docket: Docket No. 100345
• Status: Published

Opinion

Per Curiam.

By order of the Supreme Court dated May 4, 1987, we revisit this case solely to determine "whether the trial court erred in classifying the instant action as spurious in nature.” Alexander v Detroit, 428 Mich 896; 405 NW2d 877 (1987). We conclude that it did not.

The nature of the rights asserted by plaintiffs in this case were several and distinct, connected only because of common questions of law or fact. As stated by plaintiffs in their 1969 complaint:

That the character of the right sought to be enforced in this suit is several and this suit involves questions of law and fact that are common to all owners of multiple dwellings of more than four units in the City of Detroit in connection with waste, trash, rubbish and garbage removal.

The trial court thus did not err in concluding that the instant class action is spurious in nature. See GCR 1963, 208.1(3); Grigg v Michigan National Bank, 405 Mich 148, 172, 174; 274 NW2d 752 (1979).

The Supreme Court by its order of May 4, 1987, held that, if this class action is spurious, then unlocated class members in this case who did not opt in were not entitled to a portion of the judgment.

After indicating in the order that this Court had previously held that the unlocated class members had become entitled to the unclaimed portion of the fund by virtue of the claim filed on their behalf by the public administrator appointed by the probate court, the Supreme Court noted that both the statute authorizing appointment of a public administrator, MCL 567.33; MSA 26.1053(23),¹ and the order entered by the probate court limits the appointment to administering the rights of the "owners of abandoned property.”

The Supreme Court’s order then stated that the issue whether the unlocated class members in this case were the owners of abandoned property turns on the nature of the class action involved. Citing Grigg, supra, the Court determined that, if, in fact, this were a spurious class action, the unlocated class members who did not opt in would not be entitled to a portion of the judgment and consequently would not be the "owners of abandoned property” for which a public administrator could be appointed.

Although we are compelled pursuant to the order of remand to affirm the trial court, we do so reluctantly, for we do not believe that the unlocated class members’ status as "owners” for purposes of MCL 567.33; MSA 26.1053(23) is determined by the nature of the class action involved.

As described in Grigg, supra, a spurious class action has been considered to be a liberal permissive joinder device. 405 Mich 172. A judgment in such an action only binds those who opt in. Id.

Under the Michigan Code of Escheats, MCL 567.11 et seq.; MSA 26.1053(1) et seq., "owner” is defined as a person having legal or equitable title to property. MCL 567.15(c); MSA 26.1053(5)(c). In this case, the names of the owners of the property were known. The question as we see it then becomes whether the actions of the public administrator, who filed a written claim before the cutoif deadline for opting in on behalf of the owners of the property who could not be located, bound the unlocated owners in this action.

Notwithstanding our assessment of this issue, we must rule in accordance with the order of remand. The trial court is, therefore, affirmed.

Affirmed.

1 MCL 567.33; MSA 6.1053(23) provides in relevant part:

The attorney general, or the state public administrator, may cause appropriate proceedings to be instituted in the probate court of the proper county of this state for the administration of the estate of any person who is the owner of abandoned property discovered as provided for in this act or of which he otherwise has knowledge.