Hodgson v. City of Birmingham ( 1993 )

199 Mich. App. 490 (1993) 502 N.W.2d 748

HODGSON
v.
CITY OF BIRMINGHAM

Docket No. 140073.

Michigan Court of Appeals.

Submitted March 2, 1993, at Lansing. Decided May 3, 1993, at 9:05 A.M.

Mark J. Hodgson, in propria persona.

Beier Howlett (by John D. Staran), for the respondent.

Before: MICHAEL J. KELLY, P.J., and MARILYN KELLY and CONNOR, JJ.

MARILYN KELLY, J.

Respondent appeals as of right from an order of the Michigan Tax Tribunal, Small Claims Division, denying its motion for rehearing and reconsideration of an order granting petitioner costs. The single issue on appeal is whether the tax tribunal hearing referee erred in awarding costs to petitioner. Respondent asserts that the hearing referee erroneously denied its motion for rehearing rather than submit it to a tribunal judge. We remand.

A rule of the tax tribunal provides:

A party has a right to a rehearing by a tribunal member if requested in writing within 20 days after issuance of an order by a hearing referee. The rehearing shall be conducted as a de novo proceeding at a site to be determined by the tribunal. [1981 AACS, R 205.1648.]

A tribunal member means a tribunal judge as opposed to a hearing officer or referee. 1981 AACS, R 205.1101(g).

In this case, the hearing referee determined that no provisions in the rules governing the small claims division provided for a tribunal member to rehear an order adjudicating a motion. We disagree. Rule 205.1648 provides for such relief. It applies to "an order by a hearing referee." The hearing referee's order granting petitioner costs falls within the purview of the rule.

Therefore, we remand to the tax tribunal for a de novo review by a judge to determine whether the hearing referee properly awarded costs to petitioner. If so, the tribunal judge must decide whether the amount awarded was appropriate.

Remanded. We do not retain jurisdiction.