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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary

Includes a summary of one Michigan Supreme Court opinion under Business Law/Tax.


Cases appear under the following practice areas:

  • Administrative Law (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 77532
    Case: In re Application of Consumers Energy for One-Time Revenue Refund
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Sawyer, and M.J. Kelly
    Issues:

    Public Service Commission (PSC) order approving distribution of a one-time recovery of excess revenue; “Aggrieved party”; MCR 7.203(A)(2); Federated Ins Co v Oakland Cnty Rd Comm’n; Principle that the PSC cannot order a refund; Detroit Edison Co v Public Serv Comm’n; Applicability of MCL 462.26(1); Residential Customer Group (RCG)

    Summary:

    Holding that appellant-RCG was not an aggrieved party, the court dismissed its appeal from appellee-PSC’s order approving appellee-Consumers Energy’s distribution of a one-time recovery of excess revenue. The court noted that RCG did “not dispute that its member-ratepayers are not legally entitled to refunds when approved rates end up providing a utility with greater revenues than expected,” pursuant to Detroit Edison. However, it insisted that they were still “aggrieved to the extent that the PSC has allowed Consumers Energy to invest these excess revenues in its foundation and six internal programs instead of providing ratepayers more direct benefits by way of monetary refunds, expenditures on structural improvements, lower future rates, etc.” But the court concluded that the ratepayers were not aggrieved by the order at issue. First, as RCG agreed, they were not legally entitled to a refund. Second, any objections as to the effect of a utility’s decision on how to expend excess revenues “on future rates are speculative and are instead matters for consideration and decision in contested rate cases apart from the proceedings underlying this appeal.” The court further found that MCL 462.26(1) did not save the appeal. At issue here was a one-time accounting of $28 million. The court has “previously held that retroactive ratemaking does not occur when ‘one-time refunds are merely potential, not guaranteed,’ in connection with a consensual agreement between a utility and the PSC that does not change existing rates and ‘applies on a prospective basis only.’ . . . That such a one-time refund is not considered ratemaking further supports our conclusion that RCG is not an aggrieved party from this order. The commission order was not fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices, or services of Consumers Energy.”

    Full Text Opinion

  • Attorneys (1)

    Full Text Opinion

    e-Journal #: 77518
    Case: Dearborn Hills Civic Ass'n, Inc. v. Nasser
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello and Hood; Concurrence - Shapiro
    Issues:

    Attorney fees; Fraud; Ypsilanti Charter Twp v Kircher; Spectrum Health v Grahl; Brooks v Rose; Distinction between attorney fees that are recoverable based on a statute or court rule & those recoverable only as a form of damages; Pransky v Falcon Group, Inc; Appellate jurisdiction; MCR 7.202(6)(a)(iv)

    Summary:

    The court held that plaintiff’s requests for attorney fees that it included in its complaint and amended complaint were not sufficient to justify an award of attorney fees under the circumstances here. Thus, it affirmed the trial court’s postjudgment order denying plaintiff’s motion for attorney fees. The case stemmed from a dispute over the enforcement of restrictive covenants. Plaintiff did not cite a statute or court rule that would authorize awarding attorney fees but instead claimed it was “entitled to attorney fees based on defendants’ alleged fraud.” The fundamental premise of plaintiff’s argument was that in Ypsilanti, Spectrum Health, and Brooks, the court “never expressly conditioned the ability to recover attorney fees for another party’s fraud on alleging fraud in the complaint or obtaining a finding of fraud earlier in the proceedings and that the trial court in this case therefore made an error of law in ruling that plaintiff could not recover attorney fees incurred as a result of defendants’ alleged fraud because plaintiff had not alleged fraud in its complaint and there had been no previous finding by the trial court of fraud.” The court noted that it has observed “there is a distinction between attorney fees that are recoverable based on a statute or court rule and attorney fees that are instead recoverable only as a form of damages.” Plaintiff only sought attorney fees by way of a motion; it “never asserted a claim for attorney fees based on allegations that defendants committed fraud.” Because it “never properly advanced its claim for attorney fees based on alleged fraud committed by defendants, the trial court did not err by denying plaintiff’s motion for attorney fees; plaintiff was not entitled as a matter of law to recover attorney fees based on alleged fraud under the circumstances of this case.” Thus, the court did not need to decide whether defendants committed the fraudulent acts alleged by plaintiff.

    Full Text Opinion

  • Business Law (2)

    Full Text Opinion

    This summary also appears under Tax

    e-Journal #: 77570
    Case: Comerica, Inc. v. Department of Treasury
    Court: Michigan Supreme Court ( Opinion )
    Judges: Clement, Zahra, Viviano, and Bernstein; Concurring in the result – Cavanagh, McCormack, and Welch; Concurring in part, Dissenting in part – Welch
    Issues:

    Taxpayer protest; Tax credits under the Michigan Business Tax Act (formerly the Single Business Tax Act - SBTA); MCL 208.1435 & 1437; Assignment of credits; MCL 208.38g(18) & 208.39c(7); Kim v JPMorgan Chase Bank, NA; “Transfer” under the Banking Code; Distinguishing between a “voluntary act” of assignment & a transfer “by operation of law”; Miller v Clark; Expressio unius est exclusio alterius; Detroit v Redford Twp; Tax Tribunal (TT)

    Summary:

    The court held that tax credits lawfully acquired by one of plaintiff-bank’s subsidiaries, a Michigan bank, could lawfully pass to another of its subsidiaries, a Texas bank, when the two banks merged because the Banking Code let the Texas bank acquire the credits “by operation of law” and the SBTA did not interfere with the Banking Code’s operation. Plaintiff’s affiliate earned certain tax credits under the SBTA. That subsidiary assigned the credits to another subsidiary, a Michigan bank. Plaintiff later created a third subsidiary, a Texas bank, and merged the Michigan bank into the Texas bank. It claimed the tax credits, on behalf of the Texas bank, in its Michigan tax filings. Defendant disallowed the tax credits, finding “the Texas bank did not receive the Michigan bank’s credits through the merger because the Michigan bank lacked the legal authority to transfer” them. The TT found defendant appropriately disallowed the tax credits and granted it partial summary disposition. The Court of Appeals reversed in relevant part. On appeal, defendant argued that the credits were unlawfully assigned when they passed from the Michigan bank to the Texas bank and that they were not a “vested right” or a “property right.” While the statute “plainly forbade the Michigan bank to assign the credits, there’s no evidence that the Michigan bank assigned, or tried to assign, the credits.” Instead, plaintiff asserted that “the credits passed to the Texas bank not by assignment but by ‘operation of law.’ In other words, the Michigan bank did not need to assign the credits to the Texas bank because the law operated to move the credits from one to the other.” The court stated its continued agreement with “Kim’s and Miller’s distinction between an assignment effected by a voluntary act and a transfer effected by an automatic, statutory process, i.e., ‘by operation of law.’” It could not “escape the statute’s plain meaning, i.e., that the Michigan bank’s privileges were conferred on the Texas bank ‘by operation of’ the Banking Code, not by assignment. If the credits are privileges, no assignment was needed for them to pass to the Texas bank.” In addition, it found “no contextual or circumstantial predicate for invoking the negative-implication canon,” and declined to apply it here. Finally, it concluded that “the SBTA’s ‘ordinary meaning is discernible’ by examining the text and context of its relevant provisions,” and strict construction played no role here. Affirmed.

    Concurring in the result, Justice Cavanagh, joined by Chief Justice McCormack and Justice Welch, agreed with the majority that, “whether the certificated credits are construed as either ‘rights, interests, privileges, powers, [or] franchises’” such that the Texas bank “simply ‘possesses’ them or as ‘property’ such that it was ‘transferred’” to the Texas bank, “neither scenario constitutes an ‘assignment’ as contemplated by the SBTA.” Contrary to the Court of Appeals’ ruling, she did “not see the expressio unius est exclusio alterius canon of statutory interpretation as particularly applicable in this case.” The SBTA’s “limitation on single assignments is simply not sufficient to suggest an exclusive or exhaustive means of transfer.”

    Concurring in part and dissenting in part, Justice Welch indicated her belief that the majority “reached the right result but went too far in declaring the tax credits at issue in this case ‘vested’ property rights.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 77510
    Case: Gaylord Alpine Inv., Inc. v. Mercy Props., LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Ronayne Krause, and Boonstra
    Issues:

    Contractual dispute involving the sale of real property; Legal vs equitable interest in property; Transfer of ownership; Signature Villas, LLC v Ann Arbor; Principle that the assets & property of a corporation belong to the corporation rather than to the stockholders; Bourne v Sanford; “Refinancing”; Summary disposition before the end of discovery; Limited liability company (LLC)

    Summary:

    The court held that the trial court did not err by granting summary disposition for plaintiffs in this action involving a contract for the sale of real property. Plaintiffs sued defendant for breach of contract and promissory note. On appeal, the court rejected defendant’s argument that certain internal membership transactions by plaintiffs (a corporation and an LLC) constituted a transfer of an interest in the property. “To the extent defendant’s arguments turn on the erroneous belief that a transfer of shares in a corporation constitutes a transfer of any real interest in the corporation’s property, defendant’s arguments are untenable. It is therefore irrelevant whether the . . . transactions were at arms-length, or whether plaintiffs provided defendant with transfer documents and identification materials relevant to those transactions. Although we, like the trial court, appreciate defendant’s reasonable concerns with knowing the identity of the individuals involved in the sale of the property, such a requirement could easily have been drafted into the parties’ contracts.” The court also rejected defendant’s claim that the “transactions, and the money that exchanged hands in the process, was ‘fundraising . . . with the intent to pay off [defendant].’” It noted that “whatever plaintiffs’ intentions might have been, merely raising money—whether by ‘fundraising’ or some other means—does not constitute ‘refinancing’ a debt.” In addition, if plaintiffs “found a loophole in the contract that permits them to violate defendant’s expectations without violating any of the contract’s plain terms, then the contract was simply not adequately drafted to address all eventualities.” The court could not conclude that plaintiffs’ conduct violated the parties’ contracts. Finally, it rejected defendant’s contention that summary disposition should not have been granted before the conclusion of discovery. “[E]ven presuming all of the facts (and even all of the speculation) advanced by defendant to be true, those facts would still not entitle defendant to a pre-payment penalty under” the contracts. “No further discovery could benefit defendant.” The court could not “find error in the trial court’s decision not to hold plaintiffs in default of the contracts.” Affirmed.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Business Law

    e-Journal #: 77510
    Case: Gaylord Alpine Inv., Inc. v. Mercy Props., LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Ronayne Krause, and Boonstra
    Issues:

    Contractual dispute involving the sale of real property; Legal vs equitable interest in property; Transfer of ownership; Signature Villas, LLC v Ann Arbor; Principle that the assets & property of a corporation belong to the corporation rather than to the stockholders; Bourne v Sanford; “Refinancing”; Summary disposition before the end of discovery; Limited liability company (LLC)

    Summary:

    The court held that the trial court did not err by granting summary disposition for plaintiffs in this action involving a contract for the sale of real property. Plaintiffs sued defendant for breach of contract and promissory note. On appeal, the court rejected defendant’s argument that certain internal membership transactions by plaintiffs (a corporation and an LLC) constituted a transfer of an interest in the property. “To the extent defendant’s arguments turn on the erroneous belief that a transfer of shares in a corporation constitutes a transfer of any real interest in the corporation’s property, defendant’s arguments are untenable. It is therefore irrelevant whether the . . . transactions were at arms-length, or whether plaintiffs provided defendant with transfer documents and identification materials relevant to those transactions. Although we, like the trial court, appreciate defendant’s reasonable concerns with knowing the identity of the individuals involved in the sale of the property, such a requirement could easily have been drafted into the parties’ contracts.” The court also rejected defendant’s claim that the “transactions, and the money that exchanged hands in the process, was ‘fundraising . . . with the intent to pay off [defendant].’” It noted that “whatever plaintiffs’ intentions might have been, merely raising money—whether by ‘fundraising’ or some other means—does not constitute ‘refinancing’ a debt.” In addition, if plaintiffs “found a loophole in the contract that permits them to violate defendant’s expectations without violating any of the contract’s plain terms, then the contract was simply not adequately drafted to address all eventualities.” The court could not conclude that plaintiffs’ conduct violated the parties’ contracts. Finally, it rejected defendant’s contention that summary disposition should not have been granted before the conclusion of discovery. “[E]ven presuming all of the facts (and even all of the speculation) advanced by defendant to be true, those facts would still not entitle defendant to a pre-payment penalty under” the contracts. “No further discovery could benefit defendant.” The court could not “find error in the trial court’s decision not to hold plaintiffs in default of the contracts.” Affirmed.

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 77504
    Case: People v. Williams
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Gadola, Servitto, and Redford
    Issues:

    Due process; In-court eyewitness identification; Whether the identification was unduly suggestive; People v Posey; Ineffective assistance of counsel; People v Randolph; Failure to raise a futile objection; People v Zitka; Authentication; MRE 901(a) & (b)(4); People v Berkey

    Summary:

    The court held that two in-court eyewitness identifications of defendant were not unduly suggestive, and that his counsel was not ineffective for failing to object. It also held that the trial court did not abuse its discretion by admitting a letter he purportedly wrote. He was convicted of second-degree murder, felony-firearm, CCW, and FIP for a shooting at a liquor store. On appeal, the court rejected his argument that two in-court eyewitness identifications were unduly suggestive. “[L]ike in Posey, in this case, there was no evidence that either of these two eyewitnesses participated in any pretrial identification facilitated by law enforcement. Although defendant contends that one of the witnesses participated in a pretrial identification because he looked up defendant on Facebook prior to trial, there was no law enforcement activity and as a result, this does not amount to a pretrial identification facilitated by law enforcement. Because there was no pretrial identification or improper law enforcement activity, and therefore no suggestive out-of-court identification, the credibility of these in-court eyewitness identifications was properly left to the jury.” In addition, counsel was not ineffective for failing to move to suppress the identifications because raising an objection would have been futile, and because defendant failed to demonstrate “a reasonable probability that the outcome of the proceedings would have been different had defense counsel” done so. The court also rejected his claim that the trial court abused its discretion by admitting a letter purportedly given to the unregistered Uber driver who drove him to and from the liquor store because there was no proof he wrote it. It noted the letter “contained distinctive characteristics relevant to this case that outside parties likely would not be privy to, which indicated that defendant wrote the letter.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 77496
    Case: United States v. Helton
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Stranch and White; Concurring in part, Dissenting in part – Suhrheinrich
    Issues:

    Search & seizure; Motion to suppress evidence; Constitutionality of a search warrant; “Probable cause”; Applicability of the “good faith exception” to the exclusionary rule; United States v. Leon; Excusing a juror; Confidential informant (CI)

    Summary:

    The court held that although the search warrant for defendant-Helton’s home failed to establish probable cause, the search was saved by Leon’s “good faith exception” to the exclusionary rule. The court also held that it was within the district court’s discretion to excuse a juror for cause. Helton was convicted of conspiracy to distribute meth, possession with intent to distribute meth, and FIP. Execution of the search warrant for his home led to the discovery of drugs, money, and firearms. He unsuccessfully moved to suppress the evidence. The court held that the search warrant for his home was not supported by probable cause where the affidavit failed to "establish a nexus between Helton’s residence and the evidence of drug trafficking that” the police officer affiant (M) sought. M received anonymous tips that Helton was selling drugs out of the home. An “unnamed source” claimed to have witnessed a drug transaction at Helton’s house. However, the affidavit did not “say that, or how, the source was known to law enforcement or that the source’s identity was provided to the judge.” This information was essential for a CI to be deemed “known.” Further, the affidavit failed to give any information about “the ‘veracity’ or ‘reliability’ of that source.” It additionally failed to contain any “information that law enforcement undertook the independent corroboration that is necessary when indicia of reliability is absent. The unreliable tip sources, therefore, are of insufficient probative value to support probable cause.” However, the court agreed with the government that Leon’s good faith exception applied. The tip offered “some support for a connection between drug dealing and Helton’s home” where the source claimed to have personally observed a sale there. In addition, the “presence of a clear baggie with some sort of residue and the opinion of the officer also supply a minor inference of support. Under the good faith standard, the totality of the information in the affidavit provides ‘some modicum of evidence’ that drug dealing was occurring at Helton’s home.” As to the district court’s ruling excusing a juror (Juror 191), the juror said that she worked at a shopping center, and that a government witness was “someone she watched for shoplifting.” Additionally, the district court “was troubled because on two separate occasions Juror 191 equivocated, saying ‘I think so’ when asked whether she could set aside her personal experience and decide the case.” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 77514
    Case: Grazier v. G'Sell
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer and M.J. Kelly; Concurring in part, Dissenting in part – Murray
    Issues:

    Divorce; Entry of the judgment; MCR 2.602(B)(3) (the “seven-day rule”); Property division; Responsibility for a tax penalty for a retirement account withdrawal; An arbitration award from a motor vehicle accident as separate property; Pickering v Pickering; Spousal support; Loutts v Loutts; Fault; Need; Attorney fees; MCR 3.206(D)

    Summary:

    The court found that even if the seven-day rule applied, entry of the divorce judgment did not violate it. The property division was also equitable. But while it affirmed the trial court’s challenged factual findings as to spousal support, it reversed the denial of defendant-ex-husband’s (G’Sell) request for spousal support and remanded for further findings and clarification. It did the same as to the denial of his request for attorney fees. The court first noted that plaintiff-ex-wife (Grazier) “did not seek entry of the proposed judgment under the seven-day rule.” But even assuming that it applied, G’Sell filed his response to her motion for entry of the proposed judgment on the eighth day. As to the property division, the court held that it “was not rendered inequitable as a result of the court’s order that G’Sell be solely responsible for the tax consequences of his” decision to withdraw funds from a retirement fund. It also found no error in the ruling “that an arbitration award from the car accident was Grazier’s separate property.” Pickering was distinguishable. “Grazier testified that she deposited the proceeds from the arbitration award in a new account that she opened in her name, and there is no record evidence that the proceeds were used for marital expenses.” As to spousal support, while the court found no clear error in the trial court’s factual findings, it concluded that the “trial court abused its discretion by failing to make findings regarding G’Sell’s need for spousal support.” Additionally, it cited no authority (and the court found none) for the general proposition it stated “that neither party should be accountable to the other for income that they earn after they reached retirement age.” The court concluded that if “Grazier continues to receive income by working at a position that G’Sell’s contributions during the marriage helped make possible, G’Sell may be entitled to modifiable support from her employment income if he needs support, if she has the ability to pay support, and if an order of spousal support would be equitable.” It was unable to determine, absent findings about “his need and about the income-generating potential of his" property award, whether denying him spousal support “was equitable under the circumstances.” The failure to make these findings also precluded meaningful review of the denial of his request for attorney fees. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Administrative Law

    e-Journal #: 77532
    Case: In re Application of Consumers Energy for One-Time Revenue Refund
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Sawyer, and M.J. Kelly
    Issues:

    Public Service Commission (PSC) order approving distribution of a one-time recovery of excess revenue; “Aggrieved party”; MCR 7.203(A)(2); Federated Ins Co v Oakland Cnty Rd Comm’n; Principle that the PSC cannot order a refund; Detroit Edison Co v Public Serv Comm’n; Applicability of MCL 462.26(1); Residential Customer Group (RCG)

    Summary:

    Holding that appellant-RCG was not an aggrieved party, the court dismissed its appeal from appellee-PSC’s order approving appellee-Consumers Energy’s distribution of a one-time recovery of excess revenue. The court noted that RCG did “not dispute that its member-ratepayers are not legally entitled to refunds when approved rates end up providing a utility with greater revenues than expected,” pursuant to Detroit Edison. However, it insisted that they were still “aggrieved to the extent that the PSC has allowed Consumers Energy to invest these excess revenues in its foundation and six internal programs instead of providing ratepayers more direct benefits by way of monetary refunds, expenditures on structural improvements, lower future rates, etc.” But the court concluded that the ratepayers were not aggrieved by the order at issue. First, as RCG agreed, they were not legally entitled to a refund. Second, any objections as to the effect of a utility’s decision on how to expend excess revenues “on future rates are speculative and are instead matters for consideration and decision in contested rate cases apart from the proceedings underlying this appeal.” The court further found that MCL 462.26(1) did not save the appeal. At issue here was a one-time accounting of $28 million. The court has “previously held that retroactive ratemaking does not occur when ‘one-time refunds are merely potential, not guaranteed,’ in connection with a consensual agreement between a utility and the PSC that does not change existing rates and ‘applies on a prospective basis only.’ . . . That such a one-time refund is not considered ratemaking further supports our conclusion that RCG is not an aggrieved party from this order. The commission order was not fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices, or services of Consumers Energy.”

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    e-Journal #: 77524
    Case: Cousineau v. Cousineau
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Redford, and Rick
    Issues:

    Automobile negligence; Black ice; Sudden-emergency doctrine; Whether a Michigan driver should be aware of freezing conditions in freezing weather; Vsetula v Whitmyer; Reliance on Young v Flood

    Summary:

    The court held that plaintiff-Martin’s testimony and defendant-Janet’s “affidavit testimony established that Janet encountered unsuspected black ice while driving at a reasonable speed, and that she lost control of the car because of the sudden emergency caused by the black ice. Plaintiff failed to submit substantively admissible evidence to the contrary.” Thus, the trial court properly granted defendants summary disposition and dismissed the case. Plaintiff argued that the trial court erred by ruling Janet encountered a sudden emergency that excused her negligence because a genuine issue of material fact existed as to whether she encountered black ice or her actions were reasonable. However, both plaintiff’s deposition and Janet’s affidavit testimonies established that no material factual dispute existed as to whether she encountered unsuspected black ice. The record reflected “no evidence indicating otherwise. Because plaintiff failed to establish the existence of a genuine issue of material fact” as to whether Janet unexpectedly encountered black ice, the trial court properly held that the sudden-emergency doctrine applied. Plaintiff asserted a question of fact existed as to “whether a Michigan driver should be aware of freezing conditions in freezing weather which he claims challenges whether Janet’s actions were those of a reasonable person under the wintery circumstances.” The court disagreed, noting that “icy patches on a Michigan roadway during the winter can be un-suspected.” Affirmed.

    Full Text Opinion

  • Tax (1)

    Full Text Opinion

    This summary also appears under Business Law

    e-Journal #: 77570
    Case: Comerica, Inc. v. Department of Treasury
    Court: Michigan Supreme Court ( Opinion )
    Judges: Clement, Zahra, Viviano, and Bernstein; Concurring in the result – Cavanagh, McCormack, and Welch; Concurring in part, Dissenting in part – Welch
    Issues:

    Taxpayer protest; Tax credits under the Michigan Business Tax Act (formerly the Single Business Tax Act - SBTA); MCL 208.1435 & 1437; Assignment of credits; MCL 208.38g(18) & 208.39c(7); Kim v JPMorgan Chase Bank, NA; “Transfer” under the Banking Code; Distinguishing between a “voluntary act” of assignment & a transfer “by operation of law”; Miller v Clark; Expressio unius est exclusio alterius; Detroit v Redford Twp; Tax Tribunal (TT)

    Summary:

    The court held that tax credits lawfully acquired by one of plaintiff-bank’s subsidiaries, a Michigan bank, could lawfully pass to another of its subsidiaries, a Texas bank, when the two banks merged because the Banking Code let the Texas bank acquire the credits “by operation of law” and the SBTA did not interfere with the Banking Code’s operation. Plaintiff’s affiliate earned certain tax credits under the SBTA. That subsidiary assigned the credits to another subsidiary, a Michigan bank. Plaintiff later created a third subsidiary, a Texas bank, and merged the Michigan bank into the Texas bank. It claimed the tax credits, on behalf of the Texas bank, in its Michigan tax filings. Defendant disallowed the tax credits, finding “the Texas bank did not receive the Michigan bank’s credits through the merger because the Michigan bank lacked the legal authority to transfer” them. The TT found defendant appropriately disallowed the tax credits and granted it partial summary disposition. The Court of Appeals reversed in relevant part. On appeal, defendant argued that the credits were unlawfully assigned when they passed from the Michigan bank to the Texas bank and that they were not a “vested right” or a “property right.” While the statute “plainly forbade the Michigan bank to assign the credits, there’s no evidence that the Michigan bank assigned, or tried to assign, the credits.” Instead, plaintiff asserted that “the credits passed to the Texas bank not by assignment but by ‘operation of law.’ In other words, the Michigan bank did not need to assign the credits to the Texas bank because the law operated to move the credits from one to the other.” The court stated its continued agreement with “Kim’s and Miller’s distinction between an assignment effected by a voluntary act and a transfer effected by an automatic, statutory process, i.e., ‘by operation of law.’” It could not “escape the statute’s plain meaning, i.e., that the Michigan bank’s privileges were conferred on the Texas bank ‘by operation of’ the Banking Code, not by assignment. If the credits are privileges, no assignment was needed for them to pass to the Texas bank.” In addition, it found “no contextual or circumstantial predicate for invoking the negative-implication canon,” and declined to apply it here. Finally, it concluded that “the SBTA’s ‘ordinary meaning is discernible’ by examining the text and context of its relevant provisions,” and strict construction played no role here. Affirmed.

    Concurring in the result, Justice Cavanagh, joined by Chief Justice McCormack and Justice Welch, agreed with the majority that, “whether the certificated credits are construed as either ‘rights, interests, privileges, powers, [or] franchises’” such that the Texas bank “simply ‘possesses’ them or as ‘property’ such that it was ‘transferred’” to the Texas bank, “neither scenario constitutes an ‘assignment’ as contemplated by the SBTA.” Contrary to the Court of Appeals’ ruling, she did “not see the expressio unius est exclusio alterius canon of statutory interpretation as particularly applicable in this case.” The SBTA’s “limitation on single assignments is simply not sufficient to suggest an exclusive or exhaustive means of transfer.”

    Concurring in part and dissenting in part, Justice Welch indicated her belief that the majority “reached the right result but went too far in declaring the tax credits at issue in this case ‘vested’ property rights.”

    Full Text Opinion

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