Opinion
No. 162416
05-10-2022
CONSUMERS ENERGY COMPANY, Plaintiff-Appellant/Cross-Appellee, v. Brian STORM and Erin Storm, Defendants-Appellees/Cross-Appellants, and Lake Michigan Credit Union, Defendant.
Aaron L. Vorce for Consumers Energy Company. Miller Johnson (by Stephen J. van Stempvoort, Grand Rapids, and Craig H. Lubben, Kalamazoo) for Brian Storm and Erin Storm. Zausmer, PC (by Mischa M. Boardman, Farmington Hills, Devin R. Sullivan, and Nathan S. Scherbarth, Detroit) for International Transmission Company and Michigan Electric Transmission Company, LLC, amici curiae.
Aaron L. Vorce for Consumers Energy Company.
Miller Johnson (by Stephen J. van Stempvoort, Grand Rapids, and Craig H. Lubben, Kalamazoo) for Brian Storm and Erin Storm.
Zausmer, PC (by Mischa M. Boardman, Farmington Hills, Devin R. Sullivan, and Nathan S. Scherbarth, Detroit) for International Transmission Company and Michigan Electric Transmission Company, LLC, amici curiae.
BEFORE THE ENTIRE BENCH
Per Curiam. In this eminent domain action, we consider whether a condemning agency has an appeal as of right when a trial court determines there is no public necessity for a proposed acquisition by condemnation. We hold that MCL 213.56 affords the condemning agency an appeal as of right in this circumstance. We therefore reverse in part the judgment of the Court of Appeals and remand to that Court for further proceedings consistent with this opinion. The Uniform Condemnation Procedures Act (UCPA), MCL 213.51 et seq. , " ‘provides standards for the acquisition of property by an agency, the conduct of condemnation actions, and the determination of just compensation.’ " Wayne Co. v. Britton Trust , 454 Mich. 608, 621-622, 563 N.W.2d 674 (1997), quoting MCL 213.52(1). "It is required pursuant to MCL 213.56 that there be a public necessity for the taking to be permitted." Novi v. Robert Adell Children's Funded Trust , 473 Mich. 242, 252, 701 N.W.2d 144 (2005). MCL 213.56 "allows the owner of the property to be taken ‘to challenge the necessity of acquisition of all or part of the property for the purposes stated in the complaint’ by filing a motion asking that the necessity be reviewed." Id. at 248, 701 N.W.2d 144, quoting MCL 213.56(1). The statute provides, in pertinent part:
(5) The court's determination of a motion to review necessity is a final judgment.
(6) Notwithstanding [ MCL 600.309 ], an order of the court upholding or determining public necessity or upholding
MCL 600.309 provides that, with limited exception, "all appeals to the court of appeals from final judgments or decisions permitted by [the Revised Judicature Act] shall be a matter of right."
the validity of the condemnation proceeding is appealable to the court of appeals only by leave of that court pursuant to the general court rules. In the absence of a timely filed appeal of the order, an appeal shall not be granted and the order is not appealable as part of an appeal from a judgment as to just compensation. [ MCL 213.56 (emphasis added).]
The Court of Appeals concluded that "an order of the court ... determining public necessity" refers to "both an order determining that public necessity justified an acquisition and an order determining that no public necessity justified the acquisition." Consumers Energy Co. v. Storm , 334 Mich.App. 638, 646, 965 N.W.2d 672 (2020). Consequently, the Court of Appeals held that it lacked jurisdiction over the appeal because the condemning agency did not seek leave to appeal as required by Subsection (6). Id. at 650, 965 N.W.2d 672. We disagree.
"In interpreting a statute, we consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme." Speicher v. Columbia Twp Bd of Trustees , 497 Mich. 125, 133-134, 860 N.W.2d 51 (2014) (quotation marks and citation omitted). The UCPA is a "quick take" system that allows condemning agencies "to quickly obtain title so that public projects can proceed without the delays of normal civil litigation[.]" Goodwill Community Chapel v. Gen. Motors Corp. , 200 Mich.App. 84, 87-88, 503 N.W.2d 705 (1993) ; In re Acquisition of Lands , 137 Mich.App. 161, 172, 357 N.W.2d 843 (1984) ("[O]ne of the prime purposes for enactment of the uniform statute was to expedite condemnation."). By enacting MCL 213.56, the Legislature "separate[d] the issue of necessity, while leaving ample time to litigate damages." Detroit v. Lucas , 180 Mich.App. 47, 50, 446 N.W.2d 596 (1989). The Legislature required a hearing on a motion challenging public necessity within 30 days, MCL 213.56(1), and a decision within 60 days of the initial hearing, MCL 213.56(4). In Novi , 473 Mich. at 254-255, 701 N.W.2d 144, we recognized this clear legislative intent to quickly facilitate lawful condemnation with a limited and time-sensitive process for a reviewing court to consider challenges to public necessity. Subsection (6), in particular, "adds a final hurdle for defendants by permitting appellate review of the trial court's decision only by leave granted." Id. at 255, 701 N.W.2d 144.
In the present case, we consider whether Subsection (6) also limits the appellate rights of the condemning agency when a trial court determines that a proposed acquisition fails to satisfy the requirement of public necessity. We must decide the meaning of "an order of the court ... determining public necessity" as the Legislature has employed that phrase in Subsection (6). The context and setting of Subsection (6) informs our conclusion that the Legislature did not intend to limit appeals as of right for condemning agencies. We find it compelling that each of the other enumerated circumstances in the same sentence concerns a situation in which the condemning agency is the prevailing party and it is the property owner filing the appeal. Indeed, the language "an order of the court upholding ... public necessity or upholding the validity of the condemnation proceeding," MCL 213.56(6), is by its own terms limited to circumstances in which the trial court has rejected a condemnation challenge by concluding that the condemnation satisfies public necessity or that the proceeding is otherwise valid. If the Legislature intended the phrase "an order of the court ... determining public necessity" to also mean an order determining that there is no public necessity , it is fair to expect that the Legislature would have said so explicitly. See Empire Iron Mining Partnership v. Orhanen , 455 Mich. 410, 424, 565 N.W.2d 844 (1997) ("We avoid inserting words in statutes unless necessary to give intelligible meaning or to prevent absurdity."). We also consider the contested phrase's "placement and purpose in the statutory scheme." Speicher , 497 Mich. at 133-134, 860 N.W.2d 51. When a trial court determines that there is public necessity for the proposed acquisition, the separate question of just compensation may remain in dispute and require further litigation. Lucas , 180 Mich.App. at 50, 446 N.W.2d 596 ; MCL 213.62 (providing a right to trial by jury "as to the issue of just compensation"). Comparatively, if a property owner's motion challenging public necessity prevails, the proposed acquisition cannot proceed and the case—absent a successful appeal—is subject to closure. In this case, the trial court dismissed the case with prejudice. Because the condemning agency and the property owner are situated differently within the UCPA statutory scheme, it is appropriate to treat them differently in terms of their respective appellate rights.
The Legislature had to refer to both "upholding" and "determining" public necessity because the nature of the trial court's review under MCL 213.56 depends on whether the condemning agency is public or private. For private agencies, "[e]xcept as otherwise provided" in MCL 213.56, the trial court determines "the public necessity of the acquisition of the particular parcel." MCL 213.56(3). Public agencies are afforded a more-deferential review: a public agency's determination of public necessity is " ‘binding on the court in the absence of a showing of fraud, error of law, or abuse of discretion.’ " Novi , 473 Mich. at 249, 701 N.W.2d 144, quoting MCL 213.56(2).
This distinction provides additional context to the limitation imposed by Subsection (6) and, in particular, its final sentence stating that "[i]n the absence of a timely filed appeal of the order , an appeal shall not be granted and the order is not appealable as part of an appeal from a judgment as to just compensation." MCL 213.56(6) (emphasis added). The words "the order" unmistakably refer to the preceding contested language. See Maples v. State , 507 Mich. 461, 472, 968 N.W.2d 446 (2021) (recognizing that the use of the definite article "the" has "a specifying or particularizing effect") (quotation marks and citation omitted). In other words, the orders appealable only by leave pursuant to Subsection (6) can only be those types of orders that would subsequently engender "a judgment as to just compensation." There is no possibility of "a judgment as to just compensation" when the trial court determines that no public necessity justifies the proposed acquisition. This result is also more consistent with Subsection (5), which explicitly states, "The court's determination of a motion to review necessity is a final judgment." It is the general rule that final judgments are appealable as of right. MCL 600.309. Absent Subsection (5), an order denying a property owner's motion to review necessity would not be a final judgment because the separate just-compensation phase of the condemnation proceedings remains pending. Subsection (6) merely qualifies that those orders finding public necessity supporting a proposed acquisition, although final judgments, are appealable by leave only.
Finally, we appreciate the significant uncertainty inherent in permitting appeals from an order dismissing a case with prejudice only by leave granted. In light of the entire legislative scheme of the UCPA, which is designed to facilitate lawful condemnation, we do not believe the Legislature intended to expedite the trial court's decision on public necessity for the benefit of the condemning agency only to make review of a potentially erroneous trial court decision contingent on the Court of Appeals’ discretion. This uncertainty could easily hinder the timely and efficient progress of public-work projects and add delay and costs to the provision of essential public services, such as maintaining and expanding public utilities that are vital to the public welfare. Cf. Lucas , 180 Mich.App. at 50, 446 N.W.2d 596 (recognizing that litigation relating to a single parcel "could bring the largest of public improvement programs to a complete halt").
Although it held that it was without jurisdiction to disturb the trial court's decision concerning public necessity, the Court of Appeals still reached the separate issue of whether the trial court erred by ordering the reimbursement of attorney fees and other expenses incurred by the property owner under MCL 213.66(2). The Court of Appeals should have considered the condemning agency's appeal as of right and reached the ultimate question of whether the trial court erred by holding that there was no public necessity for the proposed acquisition. Therefore, it is not yet apparent that the proposed acquisition was improper such that the property owners would be entitled to reimbursement so as to avoid being "forced to suffer because of an action that they did not initiate and that endangered, through condemnation proceedings, their right to private property." Indiana Mich. Power Co. v. Community Mills, Inc. , 333 Mich.App. 313, 319, 963 N.W.2d 648 (2020) (quotation marks and citation omitted). Accordingly, we vacate the analysis construing MCL 213.66(2) in Part III of the Court of Appeals’ opinion and remand to that court for further proceedings consistent with this opinion.
MCL 213.66(2) provides:
If the property owner, by motion to review necessity or otherwise, successfully challenges the agency's right to acquire the property, or the legal sufficiency of the proceedings, and the court finds the proposed acquisition improper, the court shall order the agency to reimburse the owner for actual reasonable attorney fees and other expenses incurred in defending against the improper acquisition.
McCormack, C.J., and Zahra, Viviano, Bernstein, Clement, Cavanagh, and Welch, JJ., concurred.