Estate of Cheryl Ann Buol v. Hayman Company , 323 Mich. App. 649 ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF CHERYL ANN BUOL, by KAREN FOR PUBLICATION
ROE, Personal Representative, April 17, 2018
9:15 a.m.
Plaintiff/Counter-Defendant-
Appellant,
v No. 336903
Oakland Circuit Court
HAYMAN COMPANY, LC No. 2015-145255-CD
Defendant/Counter-Plaintiff-
Appellee.
Before: BOONSTRA, P.J., and BECKERING and RONAYNE KRAUSE, JJ.
BOONSTRA, P.J.
Plaintiff, the personal representative of the estate of Cheryl Ann Buol, appeals by right
the judgment of the trial court entered in favor of defendant in the amount of $104,611.41 plus
costs and attorney fees yet to be determined. We vacate and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 1991, Buol applied to work for defendant, an apartment management and commercial
real estate company. In her application materials, Buol falsely represented that she had earned a
bachelor’s degree from the University of Wisconsin. Buol worked for defendant for the next 23
years, ultimately achieving the position of Chief Operating Officer (COO). Buol received
numerous promotions, pay raises, and bonuses over the years, including title enhancements and
pay raises between 2011 and 2014. Buol left defendant’s employ in 2014; the parties dispute
whether she was terminated or resigned. Buol filed a complaint alleging age, gender, and
religious discrimination and wrongful termination under the Eliot-Larsen civil rights act
(ELCRA), MCL 37.2101 et seq. Defendant filed a counterclaim alleging that Buol had violated
the authentic credentials in education act (ACEA), MCL 390.1601 et seq., enacted in 2005, by
virtue of her fraudulent claim that she possessed a bachelor’s degree. See MCL 390.1604(2).
The trial court granted summary disposition in favor of defendant on Buol’s ELCRA claims.
The trial court also granted summary disposition in favor of defendant on defendant’s
counterclaim, finding that Buol had violated MCL 390.1604(2). The trial court entered judgment
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in favor of defendant in the amount of the $100,000 statutory minimum damages amount
provided by MCL 390.1605.1 This appeal followed.2
II. APPLICABILITY OF THE AUTHENTIC CREDENTIALS IN EDUCATION ACT
Plaintiff3 argues that the trial court erred by finding that the ACEA applied in this case,
because it only applies to the issuance or manufacture of false academic credentials by “diploma
mills,” and does not apply to the exaggeration of academic credentials that are otherwise
legitimate. We disagree. Although plaintiff did not preserve this issue below, we nonetheless
review it as an issue of law for which all the relevant facts are available. Vushaj v Farm Bureau
Gen Ins Co of Michigan, 284 Mich. App. 513, 519; 773 NW2d 758 (2009).4 We review de novo
questions of statutory interpretation. Brackett v Focus Hope, Inc, 482 Mich. 269, 275; 753
NW2d 207 (2008).
The goal of statutory interpretation is to discern the intent of the Legislature. See
Spectrum Health Hosp v Farm Bureau Mut Ins Co of Michigan, 492 Mich. 503, 515; 821 NW2d
117 (2012). The first step in this Court’s interpretation of a statute is to review the language of
the statute itself; if the language is unambiguous, we must give the language its plain and
ordinary meaning, without judicial construction. See id.
Plaintiff argues that the ACEA does not apply in this case because she did not use a
“false academic credential” as defined by the act. Plaintiff is correct to the extent that there was
no evidence presented that she used a false academic credential. A “[f]alse academic credential”
is defined in the statute as an academic credential that is “issued or manufactured by a person
that is not a qualified institution,” MCL 390.1602(b). A “qualified institution” is defined by
MCL 390.1602(c). No party argues that the University of Wisconsin is not a qualified
institution. But plaintiff’s argument ignores the plain language of MCL 390.1604, which states:
(1) An individual shall not knowingly use a false academic credential to obtain
employment; to obtain a promotion or higher compensation in employment; to
obtain admission to a qualified institution; or in connection with any loan,
business, trade, profession, or occupation.
1
The judgment also included $4,611.41 in prejudgment interest, and provided for “costs and
reasonable attorneys’ fees.” The judgment further provided, in accordance with the parties’
agreement, that the amount of costs and attorney fees “will be determined by the [trial] Court
following a resolution by the Court of Appeals” of this appeal.
2
Buol passed away after the filing of this appeal. On January 25, 2018, this Court granted a
motion by Buol’s estate to substitute parties. Buol v Hayman Co, unpublished order of the Court
of Appeals, entered January 25, 2018 (Docket No. 336903).
3
For simplicity, we will sometimes use “plaintiff” to refer to Buol, as well as to her estate and
the estate’s personal representative.
4
Plaintiff first raised this issue in a motion for reconsideration of the trial court’s order granting
summary disposition in favor of defendant on defendant’s counterclaim. “Where an issue is first
presented in a motion for reconsideration, it is not properly preserved.” Vushaj v Farm Bureau
Gen Ins Co of Michigan, 284 Mich. App. 513, 519; 773 NW2d 758 (2009).
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(2) An individual who does not have an academic credential shall not knowingly
use or claim to have that academic credential to obtain employment or a
promotion or higher compensation in employment; to obtain admission to a
qualified institution; or in connection with any loan, business, trade, profession, or
occupation.
While MCL 390.1604(1) addresses the use of a “false academic credential,” MCL 390.1604(2)
addresses the use of a non-existent “academic credential” to obtain employment or a promotion
or higher compensation in employment. An “academic credential” is defined in the statute as “a
degree or a diploma, transcript, educational or completion certificate, or similar document that
indicates completion of a program of study or instruction or completion of 1 or more courses at
an institution of higher education or the grant of an associate, bachelor, master, or doctoral
degree,” MCL 390.1602(a). The plain, unambiguous language of MCL 390.1604(2) indicates
that the Legislature intended to proscribe false claims, in an employment context, that an
individual possesses an academic credential that he or she does not possess.
Notwithstanding the plain language of MCL 390.1604(2), plaintiff asserts that this
subsection was “intended to mimic the remainder of the statute” by placing “liability on the
person knowingly taking advantage of [a] fake diploma.” But that is precisely the conduct that is
proscribed by MCL 390.1604(1). We must give meaning to every word of a statute and avoid
constructions that render statutory language surplusage or nugatory. Ammex, Inc v Dep’t of
Treasury, 273 Mich. App. 623, 649; 732 NW2d 116 (2007). Plaintiff’s proposed construction is
not only contrary to the plain language of the statute but would render MCL 390.1604(2) largely
surplusage. We decline to adopt such a construction. And although plaintiff seeks to bolster her
argument by reference to the ACEA’s legislative history, “the language of the statute is the best
source for determining legislative intent.” City of Fraser v Almeda Univ, 314 Mich. App. 79, 98;
886 NW2d 730 (2016). As in Fraser, we decline to base our interpretation on legislative history;
instead, and in light of the unambiguous statutory language “we look only to the language of the
statute to determine legislative intent.” Id. at 97.5
In sum, the plain language of MCL 390.1604(2) makes clear that it applies not only to the
issuance or manufacture of a false academic credential, but additionally where an individual who
does not have an academic credential knowingly uses or claims to have that academic credential
to obtain employment or a promotion or higher compensation in employment. The trial court
therefore did not err by interpreting MCL 390.1604(2) as applying in this case.
III. TITLE-OBJECT CLAUSE
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Further, while this Court in Fraser noted, albeit without relying on it, that “the legislative
analysis of the statute at issue clearly indicates that the purpose of the [ACEA] is to prevent the
existence and use of false academic credentials in the state of Michigan,” the only issue before
the Court in Fraser related to the issuance of a false academic credential in violation of
MCL 390.1604(1). We do not read Fraser to preclude an additional or corollary statutory
purpose as set forth in MCL 390.1604(2).
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Plaintiff additionally (and cursorily) argues that interpreting MCL 390.1604(2) to apply
to “resume fraud” would violate the Title-Object Clause of the Michigan Constitution, Const
1963, art IV, § 24. We disagree.
The Title-Object Clause provides that “[n]o law shall embrace more than one object,
which shall be expressed in its title. No bill shall be altered or amended on its passage through
either house so as to change its original purpose as determined by its total content and not alone
by its title.” Id. “[T]he purpose of the [Title-Object] clause is to prevent the Legislature from
passing laws not fully understood, to ensure that both the legislators and the public have proper
notice of legislative content, and to prevent deceit and subterfuge.” People v Cynar, 252 Mich
App 82, 84; 651 NW2d 136 (2002) (quotation marks and citation marks omitted); see also
People v Bosca, 310 Mich. App. 1, 83; 871 NW2d 307 (2015). Our Supreme Court has explained
that three kinds of challenges may be brought against statutes on the basis of the Title-Object
Clause: “(1) a ‘title-body’ challenge, (2) a multiple-object challenge, and (3) a change of purpose
challenge.” People v Kevorkian, 447 Mich. 436, 453; 527 NW2d 714 (1994), cert den sub nom
Hobbins v Kelley, 514 U.S. 1083; 115 S. Ct. 1795; 131 L. Ed. 2d 723 (1995).
In this case, plaintiff refers us to our analysis in Bosca of title-body challenges, thereby
presumably indicating that her challenge to MCL 390.1604(2) is of that type. In Bosca, this
Court stated that in order to succeed on a title-body challenge, a party must demonstrate that the
title of the act “does not adequately express its contents . . . such that the body exceeds the scope
of the title.” Bosca, 310 Mich. App. at 83 (citations and quotation marks omitted). Additionally,
the Bosca Court stated that while “[t]he title of an act must express the general purpose or object
of the act, . . . the title of an act is not required to serve as an index to all of the provisions of the
act. Instead, the test is whether the title gives the Legislature and the public fair notice of the
challenged provision.” Id. (citations and quotation marks omitted). “The fair-notice requirement
is violated only where the subjects [of the title and body] are so diverse in nature that they have
no necessary connection.” Id. (quotation marks and citations omitted; alteration in original).
“[A]ll possible presumptions should be afforded to find constitutionality.” Advisory Opinion re
Constitutionality of 1972 Pa 294, 389 Mich. 441, 46; 208 N.W.2d 469 (1973).
The “object” of a law is its general purpose or aim. See Pohutski v City of Allen Park,
465 Mich. 675, 691; 641 NW2d 219, 230 (2002) (citations omitted). “The ‘one object’ provision
must be construed reasonably, not in so narrow or technical a manner that the legislative intent is
frustrated” nor should this Court “invalidate legislation simply because it contains more than one
means of attaining its primary object.” Id. (Citations omitted). An act “may include all matters
germane to its object, as well as all provisions that directly relate to, carry out, and implement the
principal object” and “may authorize the doing of all things which are in furtherance of the
general purpose of the Act” without violating the Title-Object Clause. Id. (Citations omitted).
Finally, the title of the act need not mention every provision in the body; rather, “[i]t is sufficient
that the act centers to one main general object or purpose which the title comprehensively
declares, though in general terms, and if provisions in the body of the act not directly mentioned
in the title are germane, auxiliary, or incidental” to the act’s general purpose. Id. at 692
(citations and internal quotation marks omitted).
Although plaintiff is correct that the ACEA’s title does not reference “resume fraud,” we
conclude that the subject expressed in the title of the act is not so “diverse in nature” from the
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subject of the body that the public or the Legislature would be deprived of fair notice. Bosca,
310 Mich. App. at 83. The parties focus on the “short title” of the act, which is the “authentic
credentials in education act.” MCL 390.1601. The word “authentic” is not defined in the statute,
but is commonly defined to mean “[c]onforming to fact and therefore worthy of trust, reliance or
belief;” or “[h]aving a claimed and verifiable origin or authorship; not counterfeit or copied.”
The American Heritage Dictionary of the English Language (4th ed). Therefore, the short title
of the act puts the public on notice that the purpose of the statute is to ensure the authenticity or
integrity of academic credentials.
The more formal title of the ACEA, however, is “AN ACT to prohibit the issuance or
manufacture of false academic credentials; and to provide remedies.” 2005 PA 100. This
verbiage presents a closer constitutional question, in that it does not specifically refer to
authenticity of academic credentials, but rather uses language that largely parallels that of
MCL 390.1604(1) only. But particularly given the presumption of constitutionality, we do not
find the title of the act to be so diverse from its body as to raise a constitutional infirmity. The
title of the act expresses the purpose of prohibiting the employment of fraudulent academic
credentials. The body of the statute addresses conduct that furthers that general purpose, and that
at a minimum is germane, auxiliary, or incidental to that purpose. See MCL 390.1604. MCL
390.1604(1) penalizes the use of false academic credentials from unqualified institutions, which
aims to reduce the demand for, and thereby to impede the issuance and manufacture of, such
credentials, and which thereby furthers and is germane, auxiliary, or incidental to the statute’s
general purpose. And MCL 390.1604(2) addresses a related issue by prohibiting fraudulent
claims concerning credentials from qualified institutions. Without that provision, an individual
apprised of the penalty for using a “diploma mill” degree might simply falsify an academic
credential from a qualified institution instead. Indulging in the presumption of constitutionality,
as we must, we conclude that the title provides fair notice of the conduct proscribed by the body.
See Bosca, 310 Mich. App. at 83 (holding that “the title of an act is not required to serve as an
index to all of the provisions of the act. Instead, the test is whether the title gives the Legislature
and the public fair notice of the challenged provision.”). Plaintiff’s challenge under the Title-
Object clause is without merit.
IV. DAMAGE
Finally, plaintiff argues that the trial court erred when it found defendant to have been
“damaged” by a violation of the ACEA and when it awarded defendant the $100,000 minimum
statutory damages. Under MCL 390.1605, “[a] person damaged by a violation of this act may
bring a civil action and may recover costs, reasonable attorney fees, and the greater of either the
person’s actual damages or $100,000.00.” MCL 390.1605. We conclude that remand is required
for the trial court to determine whether defendant was “a person damaged by a violation of this
act.”
Defendant argued before the trial court that although it believed it was entitled to
damages beginning in 1991 based on plaintiff’s fraudulent job application, it was not requesting
damages based on that initial fraudulent conduct. Rather, defendant argued that it was damaged
by virtue of having made “promotional materials” using plaintiff’s biography, and that she had
“[risen] to the level of chief operating officer.” Defendant therefore maintained that it was
entitled to damages based on promotions and salary increases that plaintiff received after 2005,
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when the statute was enacted. Plaintiff argued that her “resume fraud” occurred in 1991 (before
the ACEA existed), and that defendant could not seek retroactive application of the ACEA.
Plaintiff further argued that her promotions and salary increases were based on merit and her job
performance, not on her false bachelor’s degree claim back in 1991. The circuit court did not
discuss either party’s argument before awarding judgment in favor of defendant in the amount of
$104,611.41.
Defendant argues on appeal that it relied on plaintiff’s false 1991 representation in hiring
plaintiff and in promoting her and paying her salary and bonuses over the years, and that it
therefore was “damaged.” Defendant relies on the affidavit of its president to that effect, filed in
support of its motion for summary disposition. Defendant has not, however, identified any
action by plaintiff—after 1991—by which she “knowingly use[d] or claim[ed] to have [a non-
existent] academic credential to obtain . . . a promotion or higher compensation in employment.”
MCL 390.1604(2). Defendant does not claim, for example, that plaintiff ever applied for those
promotions or benefits or claimed her nonexistent credential as a basis for receiving them, nor
did defendant present any evidence that her nonexistent degree prompted its decision to promote
plaintiff, to increase her compensation, or pay her bonuses. Rather, defendant contends that
plaintiff is “strictly liable” for the statutory minimum damages. We do not find these arguments
persuasive, at least on the current record. By requiring that a person “knowingly use or claim”
an academic credential, MCL 390.1604(2) requires affirmative conduct, as well as scienter; it
does not impose strict liability. See People v Schumacher, 276 Mich. App. 165, 168-171
(discussing the difference between a mens rea requirement and strict liability). Proof of damages
in a tort action generally requires proof of an actual injury or loss. See Henry v Dow Chemical
Co, 473 Mich. 63, 74-75; 701 NW2d 684 (2005).
Although defendant asserts that it would have acted differently if it had been aware of
plaintiff’s resume fraud, the trial court never found that plaintiff “knowingly use[d] or claim[ed]”
an academic credential, MCL 390.1604(2), after 1991, or that plaintiff’s continued silence about
it after 1991 constituted a “knowing[] use or claim,” MCL 390.1604(2). It also never evaluated
the relative effects of the 1991 resume fraud, of plaintiff’s work performance or demonstrated
merit, or of other considerations, on defendant’s subsequent determinations to promote plaintiff
and to continue to make payments (including increased payments) to her (presumably in return
for services rendered), of how defendant was harmed by its publication of promotional materials
that reflected plaintiff’s claimed academic credential, of whether or how defendant’s reputation
may have been damaged, of whether it suffered a loss of business or income, or indeed whether
it suffered any actual loss based on plaintiff’s conduct.
Defendant’s reliance on Fraser on this point is misplaced. In Fraser, the plaintiff
promoted employees and increased their salaries as a direct result of their having obtained what
turned out to be false academic credentials. Fraser, 314 Mich. App. at 83. The plaintiff also
provided tuition reimbursement to the employees; this Court noted that, “[o]verall, plaintiff paid
a total of $143,848 to the employees for the purchase of Almeda degrees.” Id. at 84. This Court
concluded that “plaintiff demonstrated that it was damaged by defendant’s acts because it paid
for fraudulent academic credentials and, based upon those credentials, increased employee
salaries.” Id. at 98 (emphasis added).
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As in Fraser, plaintiff in the instant case used an academic fraud to obtain employment
from defendant. However, unlike in Fraser, defendant did not reimburse plaintiff for tuition for
her fake degree, nor has the connection between plaintiff’s promotions and salary increases and
her false claim of an academic credential—in 1991—been established, apart from the bare fact
that, had plaintiff’s fraud been discovered, she may not have been in a position to have received
those benefits (again, presumably in return for services rendered).
We conclude, in light of the lack of any specific findings by the trial court, or any
explanation of its reasoning in granting defendant damages under MCL 390.1605, that remand is
required for further proceedings on the issue of whether defendant was “a person damaged by a
violation of this act.” On remand, the trial court should keep in mind the six-year statute of
limitations for violations of the ACEA. See Fraser, 314 Mich. App. at 100-101 (“The Act does
not contain its own statute of limitations. Therefore, plaintiff’s claims are subject to the six-year
period of limitations found in MCL 600.5813.”). Additionally, the trial court should keep in
mind that our Supreme Court has stated that “the ‘continuing violations’ doctrine is contrary to
Michigan law” with regard to the tolling of limitations periods found in Chapter 58 of the
Revised Judicature Act of 1961, MCL 600.5801 et seq.
Vacated and remanded for further proceedings consistent with this opinion. We retain
jurisdiction.
/s/ Mark T. Boonstra
/s/ Jane M. Beckering
/s/ Amy Ronayne Krause
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Court of Appeals, State of Michigan
ORDER
Mark T. Boonstra
Estate of Cheryl Ann Buol v Hayman Company Presiding Judge
Docket No. 336903 Jane M. Beckering
LC No. 2015-145255-CD Amy Ronayne Krause
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 28 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded.
The parties shall promptly file with this Court a copy of all papers filed on remand.
Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.
/s/ Mark T. Boonstra
April 17, 2018