Consumers Energy Company v. Brian Storm

CourtMichigan Court of Appeals
DecidedNovember 19, 2020
Docket350617
StatusPublished

This text of Consumers Energy Company v. Brian Storm (Consumers Energy Company v. Brian Storm) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consumers Energy Company v. Brian Storm, (Mich. Ct. App. 2020).

Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

CONSUMERS ENERGY COMPANY, FOR PUBLICATION November 19, 2020 Plaintiff-Appellant, 9:10 a.m.

v No. 350617 Kalamazoo Circuit Court BRIAN STORM and ERIN STORM, LC No. 2019-000160-CC

Defendants-Appellees,

and

LAKE MICHIGAN CREDIT UNION,

Defendant.

Before: O’BRIEN, P.J., and BECKERING and CAMERON, JJ.

O’BRIEN, P.J.

In this takings case, plaintiff appeals as of right the trial court’s order dismissing the case and awarding attorney fees to defendants.1 For the reasons explained in this opinion, we dismiss plaintiff’s appeal in part, and vacate that portion of the trial court’s order awarding attorney fees to defendants.

I. BACKGROUND

Plaintiff, a provider of electric power in Michigan, owns a powerline running through property in front of defendants’ property. There is about 10 feet between plaintiff’s powerline and defendants’ property. Plaintiff sought an easement on defendants’ property that would stretch 80 feet from plaintiff’s powerline onto defendants’ property, and would allow plaintiff to enter

1 For purposes of this opinion, “defendants” refers only to Brian and Erin Storm. The other defendant, Lake Michigan Credit Union, had a default judgment entered against it in the trial court, and it and has taken no part in this appeal.

-1- defendants’ property as necessary to maintain the powerline and to manage vegetation on the property that could threaten the line.

Under MCL 486.252, plaintiff has authority “[t]o condemn all lands and any and all interests therein,” including “easements,” that “may be necessary to generate, transmit, and transform electric energy for public use in, upon, or across private property.” After defendants rejected plaintiff’s good-faith offer to purchase the easement, plaintiff, proceeding under MCL 486.252, filed in the trial court a complaint to condemn an easement interest in defendants’ property. In response to plaintiff’s complaint, defendants filed a motion challenging the necessity of the easement under MCL 213.56(1) of the Uniform Condemnation Procedures Act (UCPA), MCL 213.51a et seq. The trial court set the matter for a hearing, MCL 213.56(1), and because plaintiff was a private agency under MCL 213.51(h), the hearing proceeded under MCL 213.56(3). That statute provides in relevant part, “Except as otherwise provided in this section, with respect to an acquisition by a private agency, the court at the hearing shall determine the public necessity of the acquisition of the particular parcel.” MCL 213.56(3). At the ensuing hearing, the trial court determined that plaintiff failed to establish the public necessity of acquiring an easement on defendants’ property, and ruled in favor of defendants.

Defendants thereafter moved for attorney fees under MCL 213.66(2). Plaintiff contested the motion, arguing that attorney fees are appropriate under MCL 213.66(2) only if the court finds the proposed acquisition improper, which the court did not do in this case. The trial court disagreed, holding that, by ruling for defendants’ in their challenge to plaintiff’s acquisition, the court had necessarily found the proposed acquisition improper.

In accordance with its rulings, the trial court entered an order dismissing the case and awarding attorney fees to defendants. Plaintiff appeals that order as of right.

II. JURISDICTION

After plaintiff filed its appeal, defendants moved to dismiss the appeal for lack of jurisdiction, arguing that plaintiff was required by MCL 213.56(6) to appeal the trial court’s public-necessity determination by leave granted. A panel of this Court denied the motion without prejudice for consideration by the case-call panel.2 After reviewing the issue, we agree with defendants and therefore dismiss plaintiff’s appellate challenge to the trial court’s public-necessity determination for lack of jurisdiction.

A challenge to this Court’s jurisdiction is a question of law reviewed de novo. Chen v Wayne State Univ, 284 Mich App 172, 191; 771 NW2d 820 (2009). Likewise, this Court reviews de novo the interpretation of the UCPA. Bd of Co Rd Commissioners for Co of Washtenaw v Shankle, 327 Mich App 407, 412; 934 NW2d 279 (2019).

As stated, after defendants challenged the necessity of plaintiff’s proposed acquisition under MCL 213.56(1), the trial court proceeded under MCL 213.56(3) and determined that

2 Consumers Energy Company v Storm, unpublished order of the Court of Appeals, entered July 23, 2020 (Docket No. 350617).

-2- plaintiff’s acquisition of easement rights to defendants’ property was unnecessary. That determination constituted a final judgment. MCL 213.56(5) (“The court’s determination of a motion to review necessity is a final judgment.”). While final judgments are generally appealable to this Court as a matter of right under MCL 600.309, MCL 213.56(6) states:

Notwithstanding [MCL 600.309], an order of the court upholding or determining public necessity or upholding the validity of the condemnation proceeding is appealable to the court of appeals only by leave of that court pursuant to the general court rules. In the absence of a timely filed appeal of the order, an appeal shall not be granted and the order is not appealable as part of an appeal from a judgment as to just compensation. [Emphasis added.]

The question now before us is whether the trial court’s determination that no public necessity justified plaintiff’s acquisition of easement rights to defendant’s property was “an order of the court upholding or determining public necessity” under MCL 213.56(6) such that the determination was only appealable by leave granted.

To properly interpret a statute, we must discern and give effect to the Legislature’s intent. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997). The most reliable evidence of the Legislature’s intent is the language used in the statute itself. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). “If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted.” Id. When interpreting an undefined statutory term, the term “must be accorded its plain and ordinary meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008). “When considering the correct interpretation, the statute must be read as a whole.” Michigan Properties, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548 (2012).

We conclude that it is clear from the statutory text that the trial court’s public-necessity determination in this case was only appealable by leave granted under MCL 213.56(6). To reach this conclusion, we begin by addressing the difference between an order “determining” public necessity and one “upholding” public necessity under MCL 213.56(6).

When a private agency such as plaintiff seeks to acquire property under MCL 213.56 and an owner contests the acquisition, the case proceeds under MCL 213.56(3). Absent exceptions not present here, the case goes to a hearing where the court must “determine the public necessity of the acquisition.” MCL 213.56(3). The use of “determine” in MCL 213.56(3) clearly leaves a court discretion to decide that no public necessity justified the proposed acquisition.

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Bluebook (online)
Consumers Energy Company v. Brian Storm, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumers-energy-company-v-brian-storm-michctapp-2020.