McGruder v. Michigan Consolidated Gas Co.

Michigan Court of Appeals

McGruder v. Michigan Consolidated Gas Co.

318 N.W.2d 531, 113 Mich. App. 664

CourtMichigan Court of Appeals

DecidedMarch 2, 1982

DocketDocket 47873

StatusPublished

Cited by6 cases

This text of 318 N.W.2d 531 (McGruder v. Michigan Consolidated Gas Co.) 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

McGruder v. Michigan Consolidated Gas Co., 318 N.W.2d 531, 113 Mich. App. 664 (Mich. Ct. App. 1982).

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Opinions

Danhof, C.J.

We agree with the dissenting opinion in that it affirms the trial court’s dismissal of the constitutional claim. However, we also affirm the trial court’s ruling that 1974 AACS, R 460.2162 was not violated by the defendants herein.

The Due Process Clause can only be invoked when there is state action. Shavers v Attorney General, 402 Mich 554, 597; 267 NW2d 72 (1978). All of the cases plaintiffs cite in support of their due process argument involve a governmental agency or state action creating or terminating the particular rights and entitlements. E.g., Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970), involving termination of continued welfare benefits, and Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971), involving continued use of a driver’s license.

Defendants assert that the question of state [667]*667action was not presented to the trial court. Plaintiffs have failed to present evidence in the record that they argued the existence of state action below. Consequently, we agree with the dissenting opinion in that it holds that the claim of due process violation has not been preserved for review and is not presently before this Court. Oakland County v Detroit, 81 Mich App 308, 313; 265 NW2d 130 (1978), lv den 403 Mich 810 (1978).

The issue of whether defendants complied with 1974 AACS, R 460.2162 in terminating service without giving plaintiffs notice and a hearing has not been appealed. This Court will not review sua sponte issues abandoned on appeal. Royal Indemnity Co v H S Watson Co, 93 Mich App 491, 494; 287 NW2d 278 (1979).

At any rate, we find no error in the trial court’s ruling. By its very terms, R 460.2162 applies only where the customer refuses to pay for service supplied to another person. There is no evidence in the record before us that defendant Deuchler refused to pay the utility bills. Furthermore, it appears that plaintiffs were without utility service for only one day, negating a finding of injustice.

Affirmed. No costs, a public question being involved.

J. L. Banks, J., concurred.

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Danhof, C.J.

We agree with the dissenting opinion in that it affirms the trial court’s dismissal of the constitutional claim. However, we also affirm the trial court’s ruling that 1974 AACS, R 460.2162 was not violated by the defendants herein.

The Due Process Clause can only be invoked when there is state action. Shavers v Attorney General, 402 Mich 554, 597; 267 NW2d 72 (1978). All of the cases plaintiffs cite in support of their due process argument involve a governmental agency or state action creating or terminating the particular rights and entitlements. E.g., Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970), involving termination of continued welfare benefits, and Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971), involving continued use of a driver’s license.

Defendants assert that the question of state [667]*667action was not presented to the trial court. Plaintiffs have failed to present evidence in the record that they argued the existence of state action below. Consequently, we agree with the dissenting opinion in that it holds that the claim of due process violation has not been preserved for review and is not presently before this Court. Oakland County v Detroit, 81 Mich App 308, 313; 265 NW2d 130 (1978), lv den 403 Mich 810 (1978).

The issue of whether defendants complied with 1974 AACS, R 460.2162 in terminating service without giving plaintiffs notice and a hearing has not been appealed. This Court will not review sua sponte issues abandoned on appeal. Royal Indemnity Co v H S Watson Co, 93 Mich App 491, 494; 287 NW2d 278 (1979).

At any rate, we find no error in the trial court’s ruling. By its very terms, R 460.2162 applies only where the customer refuses to pay for service supplied to another person. There is no evidence in the record before us that defendant Deuchler refused to pay the utility bills. Furthermore, it appears that plaintiffs were without utility service for only one day, negating a finding of injustice.

Affirmed. No costs, a public question being involved.

J. L. Banks, J., concurred.

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318 N.W.2d 531, 113 Mich. App. 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgruder-v-michigan-consolidated-gas-co-michctapp-1982.

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