Nuculovic v. Hill

287 Mich. App. 58
CourtMichigan Court of Appeals
DecidedJanuary 5, 2010
DocketDocket No. 280216
StatusPublished
Cited by135 cases

This text of 287 Mich. App. 58 (Nuculovic v. Hill) 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
Nuculovic v. Hill, 287 Mich. App. 58 (Mich. Ct. App. 2010).

Opinions

WILDER, J.

Plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendants. We affirm.

In September 2005, plaintiff was driving a vehicle north on Harper Avenue, at an intersection with a highway entrance ramp, when defendant Johnny D. Hill, driving a bus owned by defendant SMART Bus, Inc. (SMART), turned left in front of her vehicle, causing a collision. Plaintiff sued defendants in 2006, more than 60 days after the accident, alleging injuries resulting from the negligence of defendants.

Defendants moved for summary disposition under MCR 2.116(C)(7), (8), and (10), on the ground that plaintiff failed to provide notice of her claim within 60 days of the accident, as required by MCL 124.419, a part of the Metropolitan Transportation Authorities Act, MCL 124.401 et seq. The trial court granted defendants’ motion, and denied plaintiffs motion for reconsideration. This appeal ensued.

[61]*61We review summary dispositions de novo. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). Questions of law, such as construction of a statute, are also reviewed de novo. Morden v Grand Traverse Co, 275 Mich App 325, 340; 738 NW2d 278 (2007).

Subrule (C)(7) permits summary disposition where the claim is barred by an applicable statute of limitations. In reviewing a motion under subrule (C)(7), a court accepts as true the plaintiffs well-pleaded allegations of fact, construing them in the plaintiffs favor. Hanley v Mazda Motor Corp, 239 Mich App 596, 600; 609 NW2d 203 (2000). The Court must consider affidavits, pleadings, depositions, admissions, and any other documentary evidence submitted by the parties, to determine whether a genuine issue of material fact exists. Id. These materials are considered only to the extent that they are admissible in evidence. In re Miltenberger Estate, 275 Mich App 47, 51; 737 NW2d 513 (2007).

A motion for summary disposition under subrule (C)(8) tests the legal sufficiency of the pleadings alone. MCR 2.116(G)(5); Johnson-McIntosh v Detroit, 266 Mich App 318, 322; 701 NW2d 179 (2005). Where the parties rely on documentary evidence, appellate courts proceed under the standards of review applicable to a motion made under MCR 2.116(C)(10), Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174 (2007), or (C)(7).

A motion made under MCR 2.116(C)(10) tests the factual support for a claim, Campbell v Kovich, 273 Mich App 227, 229; 731 NW2d 112 (2006), and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, Healing Place, 277 Mich App at 56. When [62]*62the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Id. But again, such evidence is only considered to the extent that it is admissible. MCR 2.116(G)(6); Campbell, 273 Mich App at 230. A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue upon which reasonable minds could differ. Healing Place, 277 Mich App at 56.

Here, the trial court considered defendants’ motion under MCR 2.116(C)(7), (8), and (10), but did not indicate under which subrule it granted it. Because the trial court considered evidence beyond the pleadings, we review the motion as though it were granted under MCR 2.116(C)(7) or (10).

MCL 124.419 provides:

All claims that may arise in connection with the transportation authority shall be presented as ordinary claims against a common carrier of passengers for hire: Provided, That written notice of any claim based upon injury to persons or property shall be served upon the authority no later than 60 days from the occurrence through which such injury is sustained and the disposition thereof shall rest in the discretion of the authority and all claims that may be allowed and final judgment obtained shall be liquidated from funds of the authority: Provided, further, That only the courts situated in the counties in which the authority principally carries on its function are the proper counties in which to commence and try action against the authority. [Emphasis added.]

“Shall” is mandatory. Roberts v Farmers Ins Exch, 275 Mich App 58, 68; 737 NW2d 332 (2007).

[63]*63The Metropolitan Transportation Authorities Act does not define “claim.” However, in CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 554; 640 NW2d 256 (2002), relying on Black’s Law Dictionary (7th ed), the term “claim” was defined as the aggregate of operative facts giving rise to a right enforceable by a court. The statute at issue in this case requires that a claim be “based upon injury to persons or property . . . .” MCL 124.419. Here, it is undisputed that plaintiff did not provide notice of a court-enforceable right based on a personal injury within 60 days of the date of the accident.

Plaintiff contends that defendants should not have been able to rely on MCL 124.419 in support of their motion for summary disposition, because they did not timely raise reliance on MCL 124.419 as an affirmative defense. Because plaintiff did not challenge below defendants’ right to assert this statute as an affirmative defense, on the ground that it was not timely raised, the issue is not preserved. We therefore reject plaintiff’s unpreserved claim. Coates v Bastian Bros, Inc, 276 Mich App 498, 510; 741 NW2d 539 (2007) , quoting Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993) (stating that “ ‘[i]ssues raised for the first time on appeal are not ordinarily subject to review’ ” in a civil case). This Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich App 364, 377; 761 NW2d 353 (2008) . We do not find any of these exceptions to be applicable.

[64]*64We next address plaintiffs various arguments that MCL 124.419 does not apply here. We hold that it does apply.

When construing a statute, we use well-established principles, and begin by consulting the specific statutory language. Provider Creditors Comm v United American Health Care Corp, 275 Mich App 90, 95; 738 NW2d 770 (2007). This Court gives effect to the Legislature’s intent, as expressed in the statute’s terms, giving the words of the statute their plain and ordinary meanings. McManamon v Redford Charter Twp, 273 Mich App 131, 135; 730 NW2d 757 (2006). “When the language poses no ambiguity, this Court need not look beyond the statute or construe the statute, but need only enforce the statute as written.” Id. at 136. “This Court does not interpret a statute in a way that renders any statutory language surplusage or nugatory.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
287 Mich. App. 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nuculovic-v-hill-michctapp-2010.