Moch v. Nelsen

609 N.W.2d 848 (2000) 239 Mich. App. 681

Joseph W. MOCH and Moch & Associates, Plaintiffs-Appellants,
v.
David M. NELSEN, Defendant-Appellee.

Docket No. 212790.

Court of Appeals of Michigan.

Submitted December 15, 1999, at Grand Rapids. Decided February 22, 2000, at 9:00 a.m. Released for Publication May 4, 2000.

Law Office of Dennis A. Dettmer (by Dennis A. Dettmer), Detroit, for the plaintiffs.

Robert J. Eleveld, Grand Rapids, for the defendant.

Before: FITZGERALD, P.J., and HOEKSTRA and MARKEY, JJ.

PER CURIAM.

Plaintiffs appeal as of right the order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(3) for insufficient service of process.^[1] We reverse.

Joseph W. Moch (hereafter plaintiff) is an attorney who resides and practices law in Michigan. Defendant David M. Nelsen is an attorney who resides and practices law in Iowa. Plaintiff and defendant worked together on an Iowa couple's products liability lawsuit against Kawasaki, the manufacturer of an all-terrain vehicle on which the husband was injured. Defendant Nelsen was hired by the couple, and plaintiff Moch and his law firm were subsequently hired to assist in pursuing the couple's claim. Apparently, defendant offered to share equally with plaintiffs any attorney fees generated as a result of a settlement or favorable trial result. Before that lawsuit was settled, plaintiff was asked to discontinue his involvement in the lawsuit. On March 9, 1998, plaintiff instigated the present action against defendant to recover $38,000 that plaintiff alleges he is owed for his work on the lawsuit.

On that same day, defendant was in Lansing to testify against plaintiff before the Michigan Attorney Discipline Board pursuant to the board's request for defendant's testimony regarding plaintiff's action as a legal representative in the products liability lawsuit. Defendant was served with the complaint in the present action while in the Lansing airport on his return trip to Iowa.

Defendant moved, inter alia, for summary disposition pursuant to MCR 2.116(C)(3) on the ground of insufficient service of process and lack of personal jurisdiction. The trial court dismissed the entire complaint for insufficient service of process on the ground that defendant was present in Michigan only to attend a court proceeding and, therefore, was privileged from service of process. On appeal, plaintiff contends that a board hearing is not a court proceeding and, therefore, the trial court erred in dismissing the lawsuit.

MCL 600.1835; MSA 27A.1835 provides a privilege from service of process in a civil suit under certain circumstances. At issue in this case is subsection 1835(1), which provides:

All persons going to, attending, or returning from, any court proceedings in any action in which their presence is needed are privileged from service of process if service could not have been made on them had they not gone to, attended, or returned from the proceedings.

The term "court proceedings" is not defined in the statute.

The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. People v. Morris, 450 Mich. 316, 325, 537 N.W.2d 842 (1995). It is only where a statute is unclear and susceptible to more than one interpretation that judicial construction is allowed. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999).

Here, the Legislature specifically chose to use the specific term "court proceedings" when it created subsection 1835(1). 1961 PA 236. Court proceedings are instigated by the filing of a complaint in court.^[2] See, e.g., Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., 445 Mich. 558, 576, 519 N.W.2d 864 (1994) (Griffin, J., dissenting); Lake Carriers' Ass'n v. MacMullan, 91 Mich.App. 357, 360, 282 N.W.2d 486 (1979), rev'd on other grounds 407 Mich. 424, 286 N.W.2d 416 (1979). Because we must interpret the text of the statute according to its own clear terms, we conclude that the Legislature intended for subsection 1835(1) to apply only to court proceedings instigated by the filing of a complaint in court.^[3] Hence, the trial court erred in dismissing the complaint for insufficient service because an administrative hearing before the Michigan Attorney Discipline Board is not, by definition, a court proceeding.^[4]

Reversed.

NOTES

[1] Although the trial court dismissed the case in its entirety pursuant to MCR 2.116(C)(3), the court also granted defendant's motion for summary disposition of count II pursuant to MCR 2.116(C)(8) and (10). The trial court denied defendant's motion for summary disposition of count I that was brought pursuant to MCR 2.116(C)(6).

[2] See also the committee comments to § 1835 in the 1986 revision of Michigan Statutes Annotated, which state in part that

any court proceeding includes the actual trial, pretrial motions, or depositions pertaining to the case.

[3] Because the text of the statute is clear, we decline to consider defendant's public policy argument.

[4] We note that subsection 1835(3) provides a privilege from civil process for a member of the Legislature on a day on which there is a scheduled meeting of the house of which the legislator is a member unless process is executed by certified mail, return receipt requested. The Administrative Procedures Act (APA), M.C.L. § 24.201 et seq.; MSA 3.560(101) et seq., provides a privilege from service of notice or other process pursuant to this chapter when there is a scheduled meeting of the house of which the legislator is a member unless such service of notice or process is executed by certified mail, return receipt requested. MCL 24.271(3); MSA 3.560(171)(3). The specific inclusion of this subsection in the APA suggests that the privileges in § 1835 do not extend to administrative hearings.