Sun Valley Foods Co. v. Ward , 221 Mich. App. 335 ( 1997 )

561 N.W.2d 484 (1997) 221 Mich. App. 335

SUN VALLEY FOODS COMPANY, Plaintiff-Appellant,
v.
George E. WARD, George E. Ward P.C., Morris Milmet and Richard Fellrath, Defendants-Appellees.

Docket No. 188345.

Court of Appeals of Michigan.

Submitted September 10, 1996, at Detroit. Decided January 31, 1997, at 9:25 a.m. Released for Publication April 9, 1997.

Sommers, Schwartz, Silver & Schwartz, P.C. by Donald J. Gasiorek and Patrick Burkett, Southfield, for plaintiff-appellant.

Kerr, Russell and Weber, P.L.C. by Robert J. Pineau and George E. Ward, Detroit, for George E. Ward.

Before HOEKSTRA, P.J., and MARILYN KELLY and J.B. SULLIVAN^[*], JJ.

AFTER REMAND

HOEKSTRA, Presiding Judge.

In this legal malpractice action, plaintiff Sun Valley Foods Company appeals by leave granted a Wayne Circuit Court order granting defendant George E. Ward's motion to modify an earlier order of the trial court, which stated that the appropriate interpretation of M.C.L. § 600.5744; M.S.A. § 27A.5744 was to be decided by a jury. The order of modification, which adopted defendant Ward's position, interpreted the statute at issue to allow for a tolling of the ten-day period during which a writ of restitution could not issue if an application for a bond was filed within ten days of the entry of a judgment of possession, M.C.L. § 600.5744(5); M.S.A. § 27A.5744(5), even though the bond itself was not posted during that ten-day period. We reverse.

We agree with plaintiff that the trial court's interpretation of M.C.L. § 600.5744(5); M.S.A. § 27A.5744(5), which provided for a tolling if a request for a bond was filed within the ten-day period, is incorrect and does not reflect the intent of the Legislature. M.C.L. § 600.5744; M.S.A. § 27A.5744 provides, in pertinent part:

(4) In all other cases, the writ of restitution shall not be issued until the expiration of 10 days after the entry of the judgment for possession.

(5) If an appeal is taken or a motion for new trial is filed before the expiration of the period during which the writ of restitution shall not be issued and if a bond to stay proceedings is filed, the period during which the writ shall not be issued shall be tolled until the disposition of the appeal or motion for new trial is final.

The trial court in the instant case interpreted the above statute to require only that an application for a bond, and not the actual bond, be filed within the ten-day period. We believe that the trial court's interpretation, although reasonable given that the statute is ambiguous and susceptible to varying interpretations, does not accurately reflect the intent of the Legislature in enacting the above provisions.

The primary rule of statutory construction is to determine and effectuate the intent of the Legislature through reasonable construction considering a statute's purpose and the object sought to be accomplished. Frankenmuth Mutual Ins. Co. v. Marlette Homes, Inc., 219 Mich.App. 165, 169, 555 N.W.2d 510 (1996). Where a statute is unambiguous, judicial construction is precluded. Id. If, as here, judicial interpretation is necessary, the statutory language is to be given the reasonable construction that best accomplishes the purpose of the statute. Id. at 169-170, 555 N.W.2d 510.

The purpose of a stay bond generally is to protect the prevailing party from losses that could result from the inability to enforce the judgment while enforcement of the judgment is stayed pending appeal. Wright v. Fields, 412 Mich. 227, 230, 313 N.W.2d 902 (1981). If the running of the ten-day period during which a writ of restitution can not be issued could be tolled by the mere filing of a claim of appeal and an application for a bond, as the trial court believed, the prevailing party would have no protection during the period between when the ten days had elapsed and whenever the bond was eventually filed, which presumably under the trial court's interpretation could be weeks, months, or years later.

Further support for our interpretation that the statute requires both the filing of a claim of appeal and the posting of a bond within the ten-day period required to prevent the issuance of a writ can be found in the Michigan Court Rules. MCR 7.209(H)^[1] provides that a bond must be filed before execution in order for execution to be stayed or suspended.

MCR 4.201(N)(3)(b), governing appeals from possessory judgments in the district court, states: "The filing of a claim of appeal together with a bond or escrow order of the court stays all proceedings, including a writ of restitution issued but not executed." We believe that interpreting M.C.L. § 600.5744(5); M.S.A. § 27A.5744(5) in light of these court rules requires a conclusion that both the claim of appeal or motion for new trial and a bond must be filed within the ten-day period to toll the running of the period during which the writ shall not be issued. Accordingly, we reverse the decision of the trial court to the extent it interprets the statute at issue differently.^[2]

Our decision today in no way decides the underlying question whether defendant Ward's representation of plaintiff amounted to malpractice. This issue will still need to be resolved by the trier of fact in whom will rest the ultimate responsibility for determining whether defendant Ward acted reasonably in relying upon his interpretation of the statute to plaintiff's detriment.

Reversed and remanded. Because this case has been ongoing for more than a decade, an expedited trial should be scheduled in this matter. We do not retain jurisdiction.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

[1] MCR 7.209 retains the substance of GCR 1963, 808, which was in effect at the time the alleged malpractice was committed.

[2] Given our conclusion that the trial court's interpretation of the statute at issue was incorrect, we need not address plaintiff's argument that the trial court's interpretation of the statute violates the law of the case doctrine. However, were we to address this issue, we would find no violation because the parties to the underlying suit and the present action are not the same and the present action does not represent merely "subsequent proceedings in the same case." Brucker v. McKinlay Transport, Inc., 212 Mich.App. 334, 338, 537 N.W.2d 474 (1995). Furthermore, another panel of this Court, in an earlier decision involving the present action, specifically stated that the ruling upon which plaintiff places reliance was not to be construed as "law of the case." Unpublished opinion per curiam of the Court of Appeals, issued February 10, 1992 (Docket No. 123995).