source: Caselaw Access Project

author: N. J. Kaufman, P.J.

license: Public Domain

text:
    AMWAKE v MERCY-MEMORIAL HOSPITAL
    Docket No. 78-3334.
    Submitted June 19, 1979, at Detroit.
    Decided September 20, 1979.
    Leave to appeal applied for.
    Roma K. Anteau first entered Mercy-Memorial Hospital on March 12, 1977, for the treatment of a cyst. She returned for further treatment on March 21, 1977. On each occasion she signed a standard hospital arbitration agreement form. On March 22, 1977, the cyst was removed by Dr. Ansari. James Malone was the anesthetist. After the operation, Mrs. Anteau became comatose. On March 25, 1977, the still-comatose Mrs. Anteau was transferred to another hospital. The arbitration forms signed by Mrs. Anteau provided that any claims or disputes which may arise in connection with the health care furnished were subject to arbitration unless revoked by the patient by written notice to the hospital within 60 days after discharge. On May 24, 1977, James Anteau, Roma’s estranged husband, filed a medical malpractice suit as next friend against the hospital, doctor and anesthetist in behalf of his wife and for his loss of consortium. The defendants moved to compel arbitration according to the signed arbitration agreements. The complaint was dismissed but without prejudice to the Anteaus’ right to arbitration, Monroe Circuit Court, William J. Weipert, Jr., J. On or about June 15, 1977, Mrs. Anteau came out of her coma. On October 24, 1977, Jacob D. Amwake, father and as special guardian of Mrs. Anteau, instituted another action against the hospital, Dr. Ansari and James Malone. Again, defendants moved for judgment requesting that compulsory arbitration be ordered in accordance with the court’s order in the first case. William J. Weipert, Jr., J., granted the motion. Plaintiff appeals. Held:

    1. Mrs. Anteau lost her right to a civil action for malpractice damages through the initiation of next friend and special guardian actions while she was helpless and comatose or in the process of recovery. Such clear injustice should not go uncorrected.

      References for Points in Headnotes

       41 Am Jur 2d, Incompetent Persons § 118.

       [No Reference]

       51 Am Jur 2d, Limitation of Actions § 208.

       51 Am Jur 2d, Limitation of Actions § 186.

      2. The arbitration agreements were revoked in a timely manner. Mrs. Anteau had 60 days after discharge to notify the hospital. The transfer to another hospital did not operate as a discharge because she was still in the second hospital in connection with her March 22, 1977, surgery when the second suit was filed. Since she was not discharged from hospital care when the first and second suits were filed, the 60-day period had not even begun to run and her notice to revoke was effective.
    3. Even assuming the 60-day period began to run when Mrs. Anteau was transferred from hospital to hospital, the complaint in the first lawsuit was filed exactly 60 days after the transfer. And, since an action is commenced by the filing of a complaint, the filing of the first complaint on the 60th day after the transfer would serve to impliedly revoke the arbitration agreements.
    4. A comatose person, who loses her cause of action because she is unable to comprehend her rights or exercise them in her best interests during the running of the period of limitations, should be treated like a minor or insane or imprisoned person and be given a one-year grace period after removal of disability in order to bring an action.
    5. When Mrs. Anteau regained consciousness on June 15, 1977, the first case was already pending against the defendants: therefore, defendants received notice of revocation before the 60-day period began to run.
    6. The initiation of the first case revoked the arbitration agreements. Once the arbitration agreements were revoked the two-year statute of limitations for medical malpractice became applicable. The second case commenced by Jacob D. Amwake was filed well within the two-year period and may proceed to trial. Mrs. Anteau’s estranged husband may join in the case and present whatever pertinent claims he may have.
    Reversed and remanded.
    1. Parties — Equity — Comatose Persons — Injustice — Protection of Rights.
    An established and familiar equity precedent protects the rights of old and feeble-minded or insane persons from being spoiled of their property; although not a matter in equity, this same precedent should apply to a person who is in a coma during the initiation of civil suits by a next friend or guardian.

      2. Limitation of Actions — Hospitals — Arbitration — Patient Transfers — Revocation of Agreement — Notice.
    A statute provides that a person receiving health care or treatment, or his legal representative, but not the hospital, may revoke an agreement to arbitrate within 60 days after discharge from the hospital by notifying the hospital in writing; a simple transfer from one hospital to another is not a discharge and cannot start the running of the 60-day period where it was apparent that the patient still required care for a condition which arose during her hospital stay before the transfer.
    3. Limitation of Actions — Civil Actions — Complaints — Court Rules.
    A civil action is commenced, for statute of limitation purposes, by filing a complaint with the court (GCR 1963,101).
    4. Limitation of Actions — Comatose Persons — Grace Period — Statutes.
    A comatose person who is unable to comprehend her rights or exercise them in her best interest during the running of the period of limitations, like a minor or insane or imprisoned person, should be given a grace period after removal of disability in order to bring an action (MCL 600.5851[1]; MSA 27A.5851[1]).

      William E. Wade, for plaintiff.

      Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by Gregory Drutchas and Scott D. Feringa), for Mercy-Memorial Hospital.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   N. J. Kaufman, P.J.

Plaintiff, a special guardian of the estate of Roma K. Anteau, a physically infirm person, appeals by right from an August 4, 1978, order of the Monroe County Circuit Court granting defendants’ motion for an accelerated judgment of dismissal, with prejudice, of a medical malpractice complaint. This dismissal was without prejudice to plaintiffs arbitration rights.

Roma K. Anteau first entered the defendant, Memorial Hospital, on March 12, 1977, for the treatment of a cyst. At that time, she signed a standard hospital arbitration agreement form. She signed an identical form when she returned for further treatment on March 21, 1977. The forms, which were prepared according to MCL 600.5042; MSA 27A.5042, basically provided that Mrs. Anteau and the hospital agreed to arbitrate any claims or disputes which may arise in the future out of or in connection with the health care furnished. Pursuant to the statute, the agreements further provided that Mrs. Anteau could revoke them within 60 days after discharge by written notification to a named hospital representative.

On March 22, 1977, Mrs. Anteau’s cyst was removed in an operation performed by defendant, Dr. Ansari, who was assisted by the defendant, James Malone, a nurse anesthetist. Following this operation, Mrs. Anteau became comatose. On March 25, 1977, the still-comatose Mrs. Anteau was transferred from the defendant hospital to another hospital. The transfer was done without her knowledge or consent. According to plaintiff’s complaint, Mrs. Anteau came out of her coma on about June 15, 1977. However, she remained in the second hospital until at least October 27, 1977.

On May 24, 1977, Mrs. Anteau’s estranged husband, James Anteau, petitioned to be appointed next friend to Mrs. Anteau. This petition was granted and, on the same date, James Anteau filed a medical malpractice complaint against the defendants in his wife’s behalf. This complaint included a claim by Mr. Anteau for loss of consortium. The defendants responded with a motion to compel arbitration according to the terms of the agreement executed by Mrs. Anteau. In a September 20, 1977, opinion, the court granted the defendants’ motion, finding that the complaint was filed 61 days after Mrs. Anteau’s discharge and, thus, constituted an untimely revocation of the arbitration agreements. The complaint was then dismissed with prejudice, but without prejudice to the Anteaus’ arbitration rights.

On October 24, 1977, Jacob D. Amwake, Mrs. Anteau’s father, was appointed as her special guardian by the Wayne County Probate Court. In this capacity, he instituted another action in Mrs. Anteau’s behalf. The defendants responded with a motion for accelerated judgment, asking that compulsory arbitration be ordered in accordance with the court’s order in the first case. This motion was granted in an opinion and order issued August 4, 1978. It is this opinion and order which underlies this appeal.

The plaintiff now claims that the trial court abrogated Mrs. Anteau’s due process rights when it adjudicated her an incompetent and appointed her estranged husband as her next friend without affording her notice and a reasonable opportunity to be heard on either issue. The plaintiff further argues that since the lawsuit initiated by her estranged husband was void ab initio due to this due process violation, the dismissal with prejudice and the arbitration orders issued by the trial court should not be held binding with respect to the litigation initiated in Mrs. Anteau’s behalf by Jacob Amwake. The defendants counter by arguing that the initial arbitration order was properly obtained and that principles of res judicata would preclude the plaintiff’s challenge through a subsequent lawsuit.

While the instant case is not a matter in equity and does not involve an old and feeble-minded or insane person, Justice Campbell’s words in McDaniel v McCoy, 68 Mich 332, 333-334; 36 NW 84 (1888), bear repeating:

"* * * Cases like the present depend so much upon their own facts that it is of little use to attempt to measure them by exact precedents. The equitable rules which protect old and feeble-minded or insane persons from being spoiled of their property are familiar, and not technical.”

This case involves the rights of a person who was in a coma during the initiation of the next friend case and who was still in the hospital when the guardian case was filed. Under these circumstances, we will not bury our heads in the sands of legal confusion and permit clear injustice to go uncorrected. See generally, GCR 1963, 820.

At the outset, we conclude that Mrs. Anteau revoked the arbitration agreements in a timely manner. This conclusion follows from any of three theories.

First, MCL 600.5042(3); MSA 27A.5042(3) provides:

"The agreement to arbitrate shall provide that the person receiving health care or treatment or his legal representative, but not the hospital, may revoke the agreement within 60 days after discharge from the hospital by notifying the hospital in writing.”

In the present case, Mrs. Anteau was not discharged within the meaning of the statute. A simple transfer, when it was apparent that the patient still required care for a condition which arose during her hospital stay, cannot start the running of the 60-day period. If we concluded otherwise, hospitals could shuttle patients from one hospital to another simply to start the 60-day period.

Here, Mrs. Anteau was still in the second hospital in connection with her March 22, 1977, operation when the second suit was filed. Since she was not discharged from hospital care when the first and second suits were filed, the 60-day period had not even begun and her notice was effective.

Second, even assuming the 60-day period began to run when Mrs. Anteau was transferred, the trial court erred in ruling that the first lawsuit was filed 61 days after the transfer. In fact, the complaint was filed exactly 60 days after Mrs. Anteau’s transfer. And, since an action is commenced by the filing of a complaint for statute of limitations purposes, Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971), by analogy, the filing of the first complaint on the 60th day after transfer would serve to impliedly revoke the arbitration agreements. See GCR 1963, 101.

Third, even if the 60-day period of revocation provided in the arbitration agreements passed before the first claim was filed on May 24, 1977, Mrs. Anteau was unconscious until June 15, 1977. This unconscious state rendered her totally unable to revoke the arbitration agreement within the required 60-day period.

Under these circumstances, a parallel can be drawn to the general savings provisions of the Revised Judicature Act which creates exemptions from the running of statutes of limitations. See MCL 600.5851(1); MSA 27A.5851G). This section provides those who are minors, insane or imprisoned at the time their claim accrues with a one-year grace period after their disability is removed in order to bring their action, although the period of limitations has run. Insanity is defined in this context as, "a condition of mental derangement such as to prevent the sufferer from comprehending rights he is otherwise bound to know and is not dependent on whether or not the person has been judicially declared to be insane”, MCL 600.5851(2); MSA 27A.5851(2).

Clearly, Mrs. Anteau’s comatose state prevented her from comprehending her rights or from exercising them in her best interests. By analogy, then, Mrs. Anteau should be given 60 days from the time her disability was removed to revoke the arbitration agreements. This raises a question of fact as to when her disability was removed and usually must be decided at trial. See Van Buren v B & J Moving & Storage, Inc, 54 Mich App 266, 269; 220 NW2d 746 (1974), Davidson v Baker-Vander Veen Construction Co, 35 Mich App 293; 192 NW2d 312 (1971). However, no one disputes the fact that Mrs. Anteau was in a coma until about June 15, 1977. When she regained consciousness, the first case already was pending against the defendants. Therefore, defendants received notice of the revocation before the 60-day period began to run.

Under any of the foregoing theories, the next friend, or first case, revoked the arbitration agreement. The trial judge erred in concluding otherwise and the matter should have been immediately appealed. The second suit should have been a motion to substitute the guardian for the next friend. Mrs. Anteau also might have desired a substitution of attorneys. However, if we simply reinstate the second case, it is conceivable that Mrs. Anteau’s estranged husband will be able to continue his claim for consortium in arbitration, even though the claim is derivative of Mrs. Anteau’s claim.

Rather than try to unravel this Gordian knot with a complex series of procedural devices, we draw our judicial saber and sever the cord. We choose to view the first case as a simple revocation of Mrs. Anteau’s arbitration agreements. Once the arbitration agreements were revoked, Mrs. Anteau was subject to the two-year statute of limitations for medical malpractice. See MCL 600.5805(3); MSA 27A.5805(3). The second case was filed well within the two-year period and may proceed to trial. Mrs. Anteau’s estranged husband may join plaintiff in this case and present whatever pertinent claims he may have.

Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.

       Plaintiffs statement of facts on appeal state that Mrs. Anteau regained consciousness sometime in May. However, the sworn complaint indicates that the date she regained consciousness was June 15, 1977. We choose to follow the later date.

       Such appointments are provided for in GCR 1963, 201.5. Subsection 2 of this court rule sets out, in pertinent part:
      "(2) Appointment of Representative. Appointment of next friend or guardian ad litem shall be made by the court * * * (2) in the case of an infant party under the age of 14 years or an incompetent party, upon the nomination of the next of kin of such party, or that of any other relative or friend whom the court deems suitable * * (Emphasis added.)
      The court rule does not provide any criteria upon which the trial court is to base its determination of suitability. Research of statutory authority and Gilmore on Civil Procedure has likewise failed to reveal such criteria. In light of this consideration, we are not prepared to hold that an estranged husband’s failure to communicate the facts of his estranged status to the appointing court prior to his appointment would render such appointment void ab initio. To so hold would undermine one of the purposes behind next friend appointments, that is, so that opposing parties may have someone responsible to them for costs, should such arise. See Sick v Michigan Aid Ass’n, 49 Mich 50; 12 NW 905 (1882).


author: Bashara, P.J.

text:
    CHRYSLER CORPORATION v DeVINE
    Docket No. 78-4028.
    Submitted June 20, 1979, at Detroit.
    Decided September 20, 1979.
    Kevin DeVine was laid off from his employment at Chrysler Corporation and applied for unemployment benefits, listing his parents’ home as his address, although he did not live there. A telegram was sent regarding an interview for a job opening, but no one was at home to receive it and a notice of attempted delivery was left at the home. DeVine’s mother received the notice but failed to inform him of the message and DeVine, therefore, failed to report for the interview. Chrysler sought to disqualify DeVine for benefits, but the Michigan Employment Security Appeal Board found that he was not disqualified from receiving benefits. Chrysler appealed to the Ingham Circuit Court, which affirmed, Michael G. Harrison, J. Chrysler appeals. Held:

    In this case, where DeVine was shown to have acted in good faith, his nonreceipt of the notice of the interview constituted good cause for his failure to appear. The holding herein does not prohibit telegraphic communication regarding job interviews or require personal contact by an employer.
    Affirmed.
    1. Unemployment Compensation — Disqualification — Benefits — Job Interview — Statutes.
    An unemployed worker who is receiving unemployment benefits may be disqualified from benefits if he fails to report for a job interview concerning available suitable work with his former employer after notice of the interview and without good cause; in order for the failure to appear to be considered good cause, the reason for nonattendance must be significant, substantial and reasonable (MCL 421.29[l][d]; MSA 17.531[l][d]).
    2. Unemployment Compensation — Statutes — Remedial Statutes — Disqualification from Benefits.
    The unemployment compensation statute is remedial in nature and is entitled to liberal construction; provisions for disqualification from benefits should be narrowly construed in favor of those who are involuntarily unemployed through no fault of their own.

      References for Points in Headnotes

       76 Am Jur 2d, Unemployment Compensation § 68.

       76 Am Jur 2d, Unemployment Compensation § 6.

      3. Unemployment Compensation — Job Interviews — Notice — Nonreceipt of Notice — Good Faith.
    Actual nonreceipt by an unemployment compensation benefits, claimant of a notice of an interview with his former employer concerning available work constitutes good cause for the claimant’s failure to attend the interview where the claimant acted in good faith and did not receive the notice because delivery was attempted to the claimant’s mother, who neglected to inform him of the attempted delivery when she learned of it.

      Portia Y. T. Hamlar, for plaintiff.

      Marstoh, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Charles Looman), and John A. Fillion and Jordan Rossen, for Kevin DeVine.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and George M. Blaty and Joseph J. Finn, Assistants Attorney General, for the Employment Security Commission.
    Before: Bashara, P.J., and D. E. Holbrook, Jr. and J. C. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, P.J.

Plaintiff Chrysler Corporation appeals from an order of the circuit court affirming the decision of the Michigan Employment Security Appeal Board that defendant Kevin DeVine was not disqualified from receiving unemployment benefits.

The facts are virtually undisputed. DeVine was laid off from Chrysler’s Warren Truck plant and applied for benefits. His unemployment claim form listed his address as that of his parents, although he was living in an apartment away from home.

From the time that he filed for benefits on February 21, 1974, until his final layoff June 28, 1974, DeVine worked intermittently for Chrysler. Recall notices during this time were sent to him and received by him at his parents’ address. He stopped by every week to check for mail and could be contacted by family members as to messages received.

On July 15, 1974, Chrysler sent a telegram to the parents’ address informing DeVine of a job interview on July 24. No one was present when the telegram was delivered. A message of attempted delivery was left at the door, giving a telephone number.

DeVine failed to appear for the requested interview because he did not receive the message regarding the telegram until well after the date of the interview. He did respond to a subsequent request to report for an interview on August 14, 1974, and commenced work on August 19.

At a referee’s hearing, it was established that DeVine’s mother received the message regarding the telegram, but had failed to inform him due to "absentmindedness”. DeVine testified that if he had received notice, he would have reported as directed.

The precise question presented in this appeal, whether a claimant’s non-receipt of actual notice reasonably sent by his employer constitutes "good cause” for failing to report for an interview, does not appear to have been answered by statute or case law.

MCL 421.29(l)(d); MSA 17.531(l)(d) states in pertinent part:

"(1) An individual shall be disqualified for benefits in all cases in which he:
"(d) Being unemployed has failed without good cause to report to his former employer or employing unit within a reasonable time after notice from that employer or employing unit for an interview concerning available suitable work with the former employer or employing unit.”

For the claimant’s failure to report for a job interview to be considered "good cause”, the reason for the nonattendance must be significant, substantial and reasonable. Keith v Chrysler Corp, 390 Mich 458, 475; 213 NW2d 147 (1973).

There seems to be no doubt that an individual should not be disqualified from receiving benefits for not attending a meeting of which he has no knowledge. However, since the words "after notice” are in the statute, it is difficult to determine if "notice” refers to actual notice received by the claimant, or reasonable notice sent by the employer.

It has long been the holding in Michigan that the unemployment compensation statute is remedial in nature and entitled to liberal construction. O’Brian v Michigan Unemployment Compensation Comm, 309 Mich 18; 14 NW2d 560 (1944), Salenius v Employment Security Comm, 33 Mich App 228; 189 NW2d 764 (1971). Accordingly, disqualification provisions should be narrowly construed in favor of those involuntarily unemployed through no fault of their own. Lyons v Employment Security Comm, 363 Mich 201; 108 NW2d 849 (1961), Park v Employment Security Comm, 355 Mich 103; 94 NW2d 407 (1959), MCL 421.2; MSA 17.502.

Plaintiff urges this Court to adopt an "agency” theory and apply it to the facts of this case. They argue that since DeVine had given them his mother’s address, she became his agent and that her receipt of notice should be imputed to him.

The act is designed to minimize the impact of unemployment. In light of this policy expressed in the language of statute and case law, it would seem that the Legislature did not intend general principles of agency to apply to the case at bar.

The undisputed facts show that claimant was at all times ready and willing to attend a job interview upon receiving notice of such an appointment, and to return to work whenever it became available.

Given the good faith of the claimant in this matter, actual non-receipt of the notice constituted good cause for his nonattendance. See Keith v Chrysler Corp, supra.

Our holding should not be construed to mandate that telegraphic communication is prohibited. Nor should this affirmance of the appeal board’s ruling imply that personal contact by the employer is required.

Affirmed, no costs, a public question being involved.


text:
    RETIREMENT HOMES OF THE DETROIT ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH, INC v SYLVAN TOWNSHIP
    Docket Nos. 78-4664, 78-4665, 43959.
    Submitted June 21, 1979, at
    September 20, 1979.
    Leave to appeal applied for.
    Petitioner, Retirement Homes of the Detroit Annual Conference of the United Methodist Church, Inc., is a nonprofit corporation operating a licensed nursing facility and home for the aged in Chelsea which has beep tax exempt since 1905. Petitioner built, with money accumulated from gifts, grants and bequests and earnings from an endowment, a 24-unit apartment complex near the home for the stated purposes of providing a better mix of ages at the facility and establishing a more orderly progression of elderly people through its various facilities. Petitioner filed for real property and personal property tax exemptions. The Michigan Tax Tribunal determined that the apartment complex did not qualify for tax exemptions, holding that the petitioner’s burden of proof of qualification for the exemptions was beyond a reasonable doubt, and the apartments were not "inextricably enmeshed in the Retirement Homes’ operation” and were not an integral part of Retirement Homes’ scheme. Petitioner appeals. Held:

    1. A petitioner for a tax exemption bears the burden of establishing beyond a reasonable doubt that the class of exemption claimed was intended by the Legislature, but he need only prove membership in the exempt class by a preponderance of the evidence.
    2. Real property qualifies for exemption from taxation if: (1) it is owned and occupied by the exemption claimant; (2) the exemption claimant is a library, benevolent, charitable, educational or scientific institution; (3) the claimant is incorporated under the laws of this state; and (4) the property is occupied by the claimant for the purposes for which it was incorporated. The fact that a retirement home is unlicensed is not per se an indication that the property is not being used for a charitable purpose. The fact that a charitable institution charges a fee to cover the cost of benefits conferred in no way changes a charitable use to a noncharitable one. The apartments are within the petitioner’s charitable purpose and, therefore, eligible for an exemption.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 147.

       71 Am Jur 2d, State and Local Taxation § 362 et seq.

      Reversed.
    1. Taxation — Exemptions — Burden of Proof.
    A petitioner for a tax exemption bears the burden of establishing beyond a reasonable doubt that the class of exemption claimed was intended by the Legislature, but he need only prove membership in the exempt class by a preponderance of the evidence.
    2. Taxation — Exemptions — Real Property.
    Real property qualifies for exemption from taxation if: (1) it is owned and occupied by the exemption claimant; (2) the exemption claimant is a library, benevolent, charitable, educational or scientific institution; (3) the claimant is incorporated under the laws of this state; and (4) the property is occupied by the claimant for the purposes for which it was incorporated.
    3. Taxation — Exemptions — Charitable Use — Retirement Home — Evidence.
    The fact that a retirement home is unlicensed is not per se an indication that the property is not being used for a charitable purpose.
    4. Taxation — Exemptions — Charitable Use — Fee Charges.
    The fact that a charitable institution charges a fee to cover the cost of benefits conferred in no way changes a charitable use to a noncharitable one.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Robert D. Dunwoodie and Ronald S. Holliday), for petitioner.

      Keusch & Flintoft, for respondent.
    Before: Bashara, P.J., and Beasley and J. C. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, P.J.

Petitioner appeals from a Michigan Tax Tribunal ruling disallowing real and personal property tax exemptions in 1973 through 1976 because the buildings in question were not used solely for charitable or benevolent purposes.

Petitioner is a Michigan nonprofit organization incorporated in 1932. It operates the Boulevard Temple Home, a licensed nursing facility and home for the aged in Detroit and a similar home in Chelsea. The Chelsea Home has been tax exempt since its inception in 1905.

Petitioner completed construction of the Chelsea Village Apartments in 1972. The construction was financed with money accumulated from gifts, grants and bequests and from earnings from an endowment fund. The Chelsea Village Apartments are comprised of 24 residential units and a community center. The petitioner stated that its purpose in building the apartments was to (1) provide a better mix of ages at the Chelsea facility, and (2) to establish a more orderly progression of elderly persons through its various facilities. The petitioner considered the construction of the apartments an integral part of the operation in order to establish its entire Chelsea facility as a "full service retirement center”.

The Tribunal found, however, that the apartments were not "inextricably enmeshed in the Retirement Homes operation”, and were not an integral part of Retirement Homes’ scheme.

The Tribunal also found that the operation of the Chelsea Village Apartments, when considered separately from the operation of plaintiff’s other facilities, was not entitled to a property tax exemption. This part of the Tribunal’s opinion rested largely on the holding in Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660; 242 NW2d 749 (1976).

Petitioner first claims that the Tribunal erred in holding that it must be proven beyond a reasonable doubt that the property in question qualified for the statutory exemption. Petitioner argues that the correct standard of proof is that of a preponderance of the evidence.

A petitioner bears the burden of establishing beyond a reasonable doubt that the class of exemption claimed was intended by the Legislature. Detroit v Detroit Commercial College, 322 Mich 142, 148-149; 33 NW2d 737 (1948). However, there is no language in the opinion which stands for the proposition that a petitioner must prove beyond a reasonable doubt that he is a member of an already exempt class.

Section 75 of the Administrative Procedures Act, MCL 24.275; MSA 3.560(175), states that,

"In a contested case the rules of evidence as applied in a nonjury civil case in circuit court shall be followed as far as practicable * * *.”

This act has been held to apply to the "quasi-judicial” proceedings of the Michigan Tax Tribunal. See Ann Arbor Twp v State Tax Comm, 393 Mich 682, 686-687; 227 NW2d 784 (1975), and Almira Twp v Benzie County Tax Allocation Board, 80 Mich App 755, 758; 265 NW2d 39 (1978).

The proper standard should have been that of proof by a preponderance of the evidence rather than proof beyond a reasonable doubt.

Petitioner also claims that the Tribunal erroneously determined that the Chelsea Village Apartments were not an integral part of its other charitable and benevolent operations.

To qualify as a tax exempt charitable institution under MCL 211.7; MSA 7.7, the following four criteria must be met:

"(1) The real estate must be owned and occupied by the exemption claimant;
"(2) The exemption claimant must be a library, benevolent, charitable, educational or scientific institution;
"(3) The claimant must have been incorporated under the laws of this State;
"(4) The exemption exists only when the buildings and other property thereon are occupied by the claimant solely for the purposes for which it was incorporated.” Engineering Society of Detroit v Detroit, 308 Mich 539, 550; 14 NW2d 79 (1944).

Our initial consideration is whether the apartments qualify under the second and fourth criteria.

The Tax Tribunal placed great reliance on Michigan Baptist Homes v Ann Arbor, supra, which was found not to be a qualifying charitable or benevolent use.

However, a comparison of the facts in this case and those found in Michigan Baptist Homes reveals substantial differences.

Chelsea Village Apartments were financed entirely by funds accumulated from gifts, donations and bequests. No life lease with forfeiture terms is required, only a monthly residence fee. Since the cost of the apartments was fully paid prior to occupancy, charges were set to recover direct out-of-pocket expenses and fund replacement. Residents of the Village Apartments requiring nursing care are placed in the nursing care section if necessary. Twenty-four hour emergency medical service is provided without additional charge. Based on the foregoing, we conclude that Michigan Baptist Homes is not controlling in the case at bar.

The Tribunal also found that the Chelsea Village Apartments were not a component of Retirement Homes’ charitable operation. This was based in part on the fact that the apartment was not licensed and the residents’ interaction with the Chelsea Home residents was voluntary and not part of a lease commitment.

Licensing per se of a retirement home should not be an indication of charitable use. Neither MCL 211.7; MSA 7.7, dealing with realty, nor MCL 211.9; MSA 7.9, its companion as to personalty, limit their application to licensed institutions.

Similarly, the collection of fees to cover the cost of services does not change a charitable use into a noncharitable one. Auditor General v R B Smith Memorial Hospital Ass’n, 293 Mich 36, 38-39; 291 NW 213 (1940).

The instant case is more closely analogous to Gull Lake Bible Conference Ass’n v Ross Twp, 351 Mich 269; 88 NW2d 264 (1958).

In Gull Lake, petitioners operated a religious retreat and also provided parking, camping, recreational and cottage facilities for a fee near the Bible study site. The Court held that the facilities, although available only to fee-paying customers, were within the charitable purpose of promoting Bible study since such services increased attendance at the center.

Respondent concedes that the purpose of the Chelsea Village Apartments is to allow residents to mix and to provide a steady supply of clients to the Chelsea home.

The attraction of clients was precisely the reason for the operation of the Gull Lake picnic, recreation, and housing facilities, which were found to be a charitable use. In view of this treatment of ancillary services in Gull Lake, and the foregoing analysis, we find that the apartments are within the petitioner’s charitable purpose and, therefore, eligible for tax exemptions. See also Oakwood Hospital Corp v State Tax Comm, 374 Mich 524; 132 NW2d 634 (1965).

Reversed, no costs, a public question being involved.

       "* * * [T]here is no indication that contributions have ever been solicited or received by plaintiff for use in connection with Hillside Terrace. Construction and initial start-up costs were financed by bank mortgage loans and by the sale of debentures.” Michigan Baptist Homes v Ann Arbor, supra, 667.

       "Each resident of Hillside Terrace pays, upon admission, a life-lease fee * * *. The residency contract provides that, in the event of death after occupancy, the life-lease fee and all other sums paid to plaintiff shall be forfeited to plaintiff.” 396 Mich 660, 667-668,

       "Plaintiff’s mortgage and debenture obligations are met by the fees charged to its residents. The fees of Hillside Terrace were structured with the aim that the facility would be self-supporting and self-liquidating.” 396 Mich 660, 667.

       In addition to the life-lease fee, each resident pays a monthly service charge for daily meals, maid and bed linen service.
      Each resident is provided ten days of free Care in the nursing center each year. This benefit may be accumulated to a maximum of 30 days. Physicians’ fees, drugs, dental and optical care ara extra.

       Although the Tribunal suggested that the apartments might be profit producing, they are in fact heavily subsidized.


author: E. F. Oppliger, J.

text:
    LADIES LITERARY CLUB v CITY OF GRAND RAPIDS
    Docket No. 78-4667.
    Submitted June 14, 1979, at Grand Rapids.
    Decided September 20, 1979.
    Leave to appeal applied for.
    Ladies Literary Club petitioned the Tax Tribunal for an exemption from real property taxes assessed by the City of Grand Rapids. The exemption was sought on the basis that the Club qualified under the provision of the general property tax act which affords an exemption to real estate owned and occupied by an organization that operates as a nonprofit theater, library or benevolent, charitable, educational or scientific institution. The Tax Tribunal affirmed the assessment, holding that Ladies Literary Club had not met its burden of proving that it qualified for the exemption. Ladies Literary Club appeals. Held:

    Ladies Literary Club has a broad scope of theatrical, library, benevolent, charitable and educational functions which confers a significant impact on a large urban area. Ladies Literary Club merits an exemption under the exemption provisions of the general tax act. The fact that Ladies Literary Club also has general social activities and does not fit neatly into any of the exclusive categories of the exemption provisions does not mean that the Club is not entitled to the exemption.
    Reversed and remanded.
    1. Taxation — Property Taxes — Exemptions — Charitable Organizations — Educational Institutions — Statutes.
    A qualification for an exemption from real property taxes under the general property tax law as a charitable, educational or benevolent organization, requires that the group seeking the exemption must show: (1) ownership and occupancy of the real estate claimed as exempt, (2) organization as a nonprofit theater, library, or benevolent, charitable, educational or scientific institution, (3) incorporated within the laws of the State of Michigan, and (4) occupancy of the real estate for the purposes for which the tax exemption claimant was incorporated (MCL 211.7[d]; MSA 7.7[d]).
    References for Points in Headnotes

       71 Am Jur 2d, State and Local Taxation §§ 362, 363, 365, 366, 368.

       71 Am Jur 2d, State and Local Taxation §§ 365, 366, 368.

      2. Taxation — Property Taxes — Exemptions — Charitable Organizations — Educational Institutions — Statutes.
    Real property owned and occupied by an organization which through its broad scope of theatrical, library, benevolent, charitable and educational functions confers a significant impact on a large urban area and which exists only to make this distinct and significant contribution to the public welfare is statutorily exempt from taxation under the provision of the general property tax law which grants an exemption for real estate or personal property owned and occupied by nonprofit theater, library, or benevolent, charitable, educational, or scientific institutions (MCL 211.7[d]; MSA 7.7[d]).

      Warner, Norcross & Judd (by John H. Logie), for plaintiff.

      Daniel A. Ophoff and Michael D. McGuire, Assistants City Attorney, for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   E. F. Oppliger, J.

Plaintiff appeals a November 15, 1978, opinion and order of the Michigan Tax Tribunal affirming a tax assessment against plaintiff’s real property in the City of Grand Rapids. The Tax Tribunal held that the plaintiff had not met its burden of proving that it qualifies for exemption from real property tax under MCL 211.7(d); MSA 7.7(d). The principal issue on appeal is whether an organization whose purposes cover a wide spectrum of civic, literary, educational and charitable activities may qualify for the statutory exemption from property tax. We hold that it may, reversing the decision of the Tax Tribunal.

The plaintiff organization began as a history class in 1869, formed as a study group for reading, writing and the discussion of cultural and civic matters. In 1870 the members formed the Ladies Library Association. By 1875, lectures were being scheduled on literature, art, music and current events. The present clubhouse, the subject matter of this litigation, was built in Grand Rapids in 1887, and is now a national and state historic site. Facilities in the clubhouse include an auditorium, a small library and nursery.

The Club operates on a volunteer basis, without grants from any governmental unit, funded principally by donations and a $25 annual membership fee. It currently operates a program of lectures, classes and workshops in many areas of interest, providing transportation and nursery care for the children of members. The Club is deeply involved in the greater Grand Rapids community in charitable, fund raising and educational programs spanning broad areas from Black Theatre to Shakespeare; from flower shows to public television fund drives. Its members and the general public enjoy a rich and varied cultural benefit from its existence.

In giving meaning to the statutory exemption, courts have evolved a four-part test based upon the statute. MCL 211.7(d); MSA 7.7(d). The statute reads:

"211.7 Property exempt from taxation
"Sec. 7. The following property is exempt from taxation under this act:
"(d) Real estate or personal property as shall be owned and occupied by nonprofit theater, library, benevolent, charitable, educational, or scientific institutions and memorial homes of world war veterans incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which the institutions were incorporated.”

Thus, in order to qualify for exemption the plaintiff must show: (1) Ownership and occupancy of the real estate claimed as exempt, (2) Organization as a nonprofit theater, library, or benevolent, charitable, educational or scientific institution, (3) Incorporated within the laws of the State of Michigan, and (4) Occupancy of the real estate for the purposes for which the tax exemption claimant was incorporated. Engineering Society of Detroit v Detroit, 308 Mich 539, 550; 14 NW2d 79 (1944).

The Tax Tribunal found, and we agree, that the plaintiff has library, educational, scientific, charitable and benevolent functions. We do not agree, however, with the proposition that, because the Ladies Literary Club has general social activities as well and does not fit neatly into any of the exclusive categories under the statute, it is not entitled to an exemption. To read the statute so narrowly would obviously frustrate the intent of the Legislature. Here, as in National Music Camp v Green Lake Twp, 76 Mich App 608, 257 NW2d 188 (1977), a narrow reading of the legislation, appropriate a half century ago, would be invalid today. Education, even in a traditional sense, does not stop with an end to formal schooling. The broad scope of the Ladies Literary Club’s theatrical, library, benevolent, charitable and educational functions confers a significant impact on a large urban area. This enables citizens, without regard to wealth or status, to partake of important cultural activities otherwise denied the populace at large. By whatever statutory category—theater, library, benevolent, charitable or educational—the Ladies Literary Club merits exemption under the statute. As the plaintiff organization exists only to make this distinct and significant contribution to the public welfare, we find that it is statutorily exempt from real property taxation. As the Massachusetts Court has eloquently said:

"The purposes described in the plaintiffs charter are neither contrary to law nor opposed to morality. It has aided in the relief of the destitute, made gifts to the public schools, assisted in the establishment of a public library, and in the maintenance of a boys’ club for industrial work and a sewing class for girls. The plaintiff also has contributed money for the promotion of historical research, the preservation of historical sites, and has inculcated patriotism by perpetuating the memory of the men and women who were instrumental in achieving our independence. If the means employed are somewhat diversified and elaborate, the ends served are wholly beneficial to the community. The diffusion of knowledge, the relief of the poor, the fostering of love of country and of respect for our civil institutions, all tend to raise the standard and improve the quality of citizenship, and not only relieve the burdens of government but advance the public good.” Molly Varnum Chapter, DAR, v City of Lowell, 204 Mass 487, 493-494; 90 NE 893 (1910).

Reversed and remanded to the Tax Tribunal for further proceedings consistent with this opinion. No costs, a public question being involved.


author: T. M. Burns, J.

text:
    KISSINGER v MANNOR
    Docket No. 78-5129.
    Submitted June 14, 1979, at Lansing.
    Decided September 20, 1979.
    Raymond Kissinger evacuated his bowels in his clothing when his foreman, Ronald Mannor, at Oldsmobile Division of General Motors Corporation failed to assign a temporary replacement to fill his position while he went to the toilet. Thereafter, Mannor told Kissinger’s co-employees of the incident and informed them that Kissinger had "crapped his pants”. Kissinger brought an action against Mannor for intentional infliction of mental stress alleging that the intentional actions of Mannor held him up to ridicule, public scorn and embarrassment before his co-employees which caused him to suffer permanent severe emotional and psychological distress. Defendant moved for accelerated judgment on the ground that plaintiff was precluded from recovering under a common-law tort action against defendant by the exclusive remedy provision of the Worker’s Disability Compensation Act. Ingham Circuit Court, Ray C. Hotchkiss, J., granted defendant’s motion. Plaintiff appeals. Held:

    1. A common-law tort action may be maintained by an employee where his injury is not compensable under the Worker’s Disability Compensation Act. Kissinger could bring a common-law civil suit for damages because his injuries were of the kind not compensable under the act.
    2. Kissinger’s "accident” resulted from an intentional tort situation which is not within the scope of the Worker’s Disability Compensation Act. The Legislature never intended, where injuries would not be compensable under the act, to preclude a plaintiffs recovery for physical or mental injuries suffered as a result of an on-the-job intentional tort. Kissinger may seek recovery from Ronald Mannor for his injuries in a common-law civil suit.

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation § 50.
    82 Am Jur 2d, Workmen’s Compensation § 240 et seq.

       81 Am Jur 2d, Workmen’s Compensation §§ 225, 226.
    82 Am Jur 2d, Workmen’s Compensation §§ 801, 302.

       53 Am Jur 2d, Master and Servant § 341 et seq.

       81 Am Jur 2d, Workmen’s Compensation §§ 55, 57.
    Workmen’s compensation provision as precluding employee’s action against employer for fraud, false imprisonment, defamation, or the like. 46 ALR3d 1279.

      Reversed and remanded.
    1. Workmen’s Compensation — Work-Related Injuries — Employers — Conditions of Liability — Statutes.
    The right to benefits as provided in the Worker’s Disability Compensation Act is an employee’s exclusive remedy against an employer where the conditions of liability under the act exist; the conditions of liability exist where an employee receives a personal injury arising out of and in the course of his employment (MCL 418.301; 17.237[301]).
    2. Workmen’s Compensation — Work-Related Injuries — Physical or Mental Injury — Benefits.
    The Worker’s Disability Compensation Act permits compensation for both physical and mental injuries that are suffered on account of employment; neither physical contact or injury nor physical consequences are required to entitle an employee to benefits under the act.
    3. Workmen’s Compensation — Worker’s Disability Act — Employers — Torts — Tort Liability.
    A common-law tort action may be maintained by an employee against his employer where the employee’s injury is not compensable under the Worker’s Disability Compensation Act.
    4. Workmen’s Compensation — Torts — Worker’s Disability Act — Nonemployment Injury — Intentional Torts — Civil Liability.
    The Legislature could not have intended that the exclusive remedy section of the Worker’s Disability Compensation Act be construed to preclude a plaintiffs recovery for injuries suffered in an intentional tort situation where a General Motors foreman caused an employee to evacuate his bowels in his clothing by failing to send a temporary replacement when requested, and then informed his co-employees that he had “crapped his pants” because the injuries are not within the scope of the act; therefore, the employee may seek recovery for his injuries in a common-law civil suit against the foreman.

      Sablich, Ryan, Dudley, Rapaport & Bobay, P.C. for plaintiff.

      Fraser, Trebilcock, Davis & Foster (by Gregory J. Guggeinos), for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   T. M. Burns, J.

Plaintiff appeals of right a November 17, 1978, lower court order granting defendant’s motion for accelerated judgment. We reverse.

On August 21, 1978, plaintiff filed his complaint in this action and alleged that on May 18, 1978, he was an employee of the Oldsmobile Division of the General motors Corporation in Lansing. His foreman on that date was defendant Ronald Mannor. Sometime during the course of his work that day, plaintiff asked defendant to assign a temporary replacement to fill his position in order that plaintiff would be able to use the plant’s toilet facilities. Defendant, however, sent no replacement worker and after 35 to 50 minutes plaintiff evacuated his bowels in his clothing.

Following his bowel movement, plaintiff requested permission to leave the plant in order to change his clothing. However, his request was denied by defendant who instructed plaintiff to return to his work station. Soon afterward, a replacement did arrive at his work station and plaintiff went to defendant’s office. There, plaintiff allegedly was berated by defendant for requesting relief in Order to use the toilet facilities at the factory. After a brief argument, defendant gave plaintiff permission to go home and change his clothes. Subsequently, defendant told approximately 40 of plaintiff’s co-emplbyées of the incident and informed them that plaintiff had "crapped his pants”.

In his complaint, plaintiff pleaded a cause of action for intentional infliction of mental stress and requested damages of $10,000. Plaintiff alleged that the intentional actions of defendant held him up to ridicule, public scorn and embarrassment before his co-employees and has caused him to suffer permanent severe emotional and psychological distress.

Defendant filed a motion for accelerated judgment and argued that plaintiff was precluded from recovering under a common-law tort action against defendant by the exclusive remedy provision of the Worker’s Disability Compensation Act. MCL 418.131; MSA 17.237(131). The lower court agreed and granted defendant’s motion. Plaintiff appeals and we reverse.

The right to the benefits as provided in the Worker’s Disability Compensation Act are an employee’s exclusive remedy against an employer "where the conditions of liability under this Act exist.” Id. The conditions of liability attach where an employee receives "a personal injury arising out of and in the course of his employment * * *”. MCL 418.301; MSA 17.237(301).

The act provides a remedy for both physical and mental injuries that are suffered on account of employment. Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978), Milton v Oakland County, 50 Mich App 279; 213 NW2d 250 (1973). Neither physical injury or contact nor physical consequences are required to entitle an employee to benefits under the act. Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960).

In Moore v Federal Department Stores, Inc, 33 Mich App 556; 190 NW2d 262; 46 ALR3d 1275 (1971), lv den 385 Mich 784 (1971), a plaintiff-employee brought a common-law action to recover damages from her employer for false imprisonment. The plaintiff had been accused by defendant of stealing and was detained by store officials. Upon investigation, the defendant’s accusation of dishonesty proved groundless. The lower court granted the defendant’s motion for summary judgment holding that the provisions of the Worker’s Disability Compensation Act provided the plaintiffs exclusive remedy. On appeal, this Court reversed holding that the plaintiffs injury consisted of humiliation, embarrassment and deprivation of personal liberty that was not compensable under the act. Because the act did not provide recovery for the types of injuries suffered by the plaintiff, the plaintiff was entitled to bring a common-law tort action against her employer notwithstanding the exclusive remedy provision of the act.

Similarly, in Milton v Oakland County, supra, this Court held that the exclusive remedy provision did not bar an action brought on account of an employer’s alleged wrongful discharge of an employee and failure to comply with terms in an employment contract. Milton reiterated the holding of Moore that where an employee’s injury is not compensable under the act, a common-law tort action may be maintained against the employer.

In Stimson v Michigan Bell Telephone Co, 77 Mich App 361; 258 NW2d 227 (1977), it was held that an employee’s action for sexual discrimination was not barred by the exclusive remedy provision of the act. Although certain damages sought by the plaintiff in Stimson were found to be barred because they culminated in a disabling condition for which compensation was available, others, for which the act did not provide a remedy, were held to be proper subjects for a common-law legal action.

Finally, in Broaddus v Ferndale Fastener Division, Ring Screw Works, 84 Mich App 593; 269 NW2d 689 (1978), lv den 403 Mich 850 (1978), an employee was held entitled to maintain a suit against his employer and his employer’s workmen’s compensation carrier for intentional and wrongful termination of compensation benefits, notwithstanding the exclusive remedy provision of the act. The Court noted in Broaddus that the plaintiffs before it were seeking, in part, separate damages for emotional distress caused by the alleged intentional and wrongful denial of compensation benefits. Finding that the act did not permit recovery for such damages, the Court held that the plaintiffs were entitled to seek their recovery in a separate tort suit.

The injuries suffered by the plaintiff here have not resulted in a disabling condition for which compensation under the act is available. Under the. holdings of the above cases plaintiff can seek recovery for his injuries in a common-law civil suit. However, notwithstanding precedent that would give plaintiff the right to maintain this action merely because his injuries cannot be compensated under the act, we believe that another reason dictates our holding here.

The Legislature could not have intended that the exclusive remedy section of the act be construed to preclude a plaintiff’s recovery for injuries suffered in an intentional tort such as the one before us. A substantial portion of plaintiff’s injuries did not arise out of an employer-employee relationship and they occurred irrespective of the fact that plaintiff happened to be employed at the factory. Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971). Even if defendant’s failure to send plaintiff a temporary replacement so that plaintiff could go to the toilet was accidental and within the exclusive remedy provision, defendant’s gratuitous and intentional disclosure of plaintiffs predicament to his co-employees cannot be said to be related to plaintiffs employee status and has resulted in injuries that are not within the scope of an employer’s liability under the act. MCL 418.301; MSA 17.237(301). Plaintiff may maintain the instant common-law suit to recover damages for these injuries.

Reversed and remanded. Costs to plaintiff.


author: Bashara, J.

text:
    IN THE MATTER OF JOHN PAUL KOZAK (ZIELDORFF v CATHOLIC SOCIAL SERVICES OF ST CLAIR COUNTY)
    Docket Nos. 78-5520, 78-5521.
    Submitted June 22, 1979, at Detroit.
    Decided September 20, 1979.
    Shortly after the birth of John P. Kozak his mother and her husband petitioned for the termination of their parental rights and to terminate the parental rights of the child’s natural father, whose identity the mother claimed was unknown to her. The St. Clair County Probate Court, R. Gerald Barr, J., ordered the terminations of rights and placed the child with Catholic Social Services of St. Clair County for adoption. The child was subsequently placed with unidentified prospective adoptive parents. William Zieldorff petitioned the probate court for a hearing on custody and for an order staying adoption proceedings, claiming that he was the natural father of John P. Kozak, that he had had no notice of the previous court proceedings, and that the child’s mother and her husband had given false testimony regarding the identity of the child’s father. He also petitioned for an order allowing discovery of the names and whereabouts of the adoptive parents. Judge Barr denied both petitions, and Zieldorff appeals from both orders of denial. Held:

    1. ZieldorfFs action is not barred by res judicata. Res judicata does not bar a request for a rehearing, nor can Zieldorff be considered a "party” to the earlier proceeding.
    2. An adoption can be overturned where a case of significant fraud can be made out. Because fraud is alleged, the case should be remanded for a hearing on the matter.
    Reversed and remanded.
    1. Action — Res Judicata — Parties — Rehearings.
    The doctrine of res judicata, which bars the relitigation of issues in subsequent actions between the same parties or their privies to a former adjudication, does not bar a request for a rehearing or an action by a plaintiff who was not a party to the earlier proceeding.

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 518, 519.

       59 Am Jur 2d, Parent and Child §§ 5, 42. >

       2 Am Jur 2d, Adoption §§ 76, 78.

      2. Parent and Child — Termination of Parental Rights — Notice.
    Generally, statutes requiring service of notice to parents in cases involving the termination of parental rights must be strictly construed.
    3. Adoption — Fraud — Overturning Adoption.
    An adoption may be overturned if a case of significant fraud is made out; the fraud which justifies interference with a probate court order must be fraud in obtaining the order and must be positive, not merely constructive, fraud.

      Canyock & Thumm, P.C. (by Richard L. Schafer), for William Zieldorff.

      Cummings, Thomas, McColl & McNamee, for Catholic Social Services of St. Clair County.
    Before: Danhof, C.J., and Bashara and J. C. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, J.

This unusual case involves a direct appeal from a probate court order denying plaintiffs petition for a custody hearing and a stay of adoption proceedings.

John Paul Allen Kozak was born on July 14, 1978. On July 19, 1978, his mother and her husband filed a petition in the probate court to terminate their parental rights, to identify the natural father of the child, and to determine or terminate his rights.

The mother stated in a declaration that,

"I am not able to determine the identity and/or whereabouts of the father of my child. I had been drinking with girlfriends from work in a bar downriver in the Algonac area and left with a person unknown to me or to my friends, which resulted in my pregnancy.”

On July 31, 1978, the court accepted the release of the child and terminated the rights of the unknown natural father. The child was placed with defendant Catholic Social Services to await adoption or suitable placement. On September 28th, the child was made a ward of the probate court and placed with unidentified prospective adoptive parents.

An affidavit of Interest and Acknowledgement of Paternity was filed by plaintiff on October 16, 1978. On November 20th, plaintiff filed a petition for hearing on custody and for an ex parte order staying adoption proceedings, alleging again that he was the natural father of the child and desired custody. He claimed that he had received no notice of the court proceedings, and that the child’s mother and her husband had given false testimony to the court concerning the identity of the child’s father. The probate judge denied the plaintiffs request for hearing.

Initially, the court stated that the July 31st order terminating parental rights was res judicata. The doctrine of res judicata bars the relitigation of issues in subsequent actions. It is a prerequisite that the former adjudication must have been between the same parties or their privies. Bousson v Mitchell, 84 Mich App 98, 101; 269 NW2d 317 (1978). The doctrine does not bar a request for rehearing nor can the plaintiff be regarded in any real sense as a "party” to the earlier proceeding.

The family relationship occupies a basic position in our society’s hierarchy of values, and is of great importance. The fundamental nature of parental rights is a liberty protected by the due process clause of the Fourteenth Amendment. Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976).

The due process requirements when a legal adjustment of this constitutionally protected relationship is made have been codified in the Michigan Adoption Code. The rights to notice and a hearing are among those extended to a putative father. MCL 710.1 et seq.; MSA 27.3178(541) et seq.

As a general rule, statutes requiring service of notice to parents must be strictly construed. Armstrong v Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), Young v Smith, 191 Tenn 25; 231 SW2d 365 (1950).

MCL 710.37(2); MSA 27.3178(555.37X2) allows the court to terminate the rights of the putative father where he cannot be identified if a "reasonable effort” has been made to locate and identify him. What constitutes a reasonable effort is not discussed herein. We rather focus our inquiry on the claim of fraud, balancing the constitutionally protected interests with the statutory procedural requisites.

Numerous jurisdictions have held that an adoption decree obtained through fraud, undue influence, duress or mistake may be set aside. In the Matter of the Adoption of Lori Gay W, 589 P2d 217 (Okla, 1978), In re Kerr, 547 SW2d 837 (Mo App, 1977), Davis v Turner, 337 So 2d 355 (Ala App, 1976), Regenold v Baby Fold, Inc, 68 Ill 2d 419; 12 Ill Dec 151; 369 NE2d 858 (1977).

As stated in In re K W V, 92 Misc 2d 292; 399 NYS2d 593, 595 (1977),

"Adoption, following termination of natural parental status, is final and not subject to abrogation except for defects such as fraud or newly discovered evidence.”

See also In re Welfare of Alle, 304 Minn 254; 230 NW2d 574 (1975), and Petition of Foley, 123 Colo 533; 232 P2d 186 (1951).

In Michigan, the courts have been extremely reluctant to set aside adoptions. Knox v Reid, 8 Mich App 199; 154 NW2d 3 (1967). However, the Michigan Supreme Court in In re Leach, 373 Mich 148; 128 NW2d 475 (1964), found that an adoption could be overturned if a case of significant fraud could be made out.

In Beatty v Brooking, 9 Mich App 579, 584; 157 NW2d 793 (1968), this Court held that where the time for appeal has passed relief may be granted to set aside fraudulent proceedings, The fraud which justifies equitable interference with a probate order must be fraud in obtaining the order and not merely constructive, but positive, fraud.

Defendant places much emphasis on the assumption that a termination order is irrevocable following the expiration of the 20-day period provided by MCL 710.64; MSA 27.3178(555.64).

This same issue was raised in In re MacLoughlin, 82 Mich App 301; 266 NW2d 800 (1978), wherein appellant commenced an action to set aside a probate order of termination three years after its issuance. There the Court, in remanding for a hearing on the motions, stated, at 310, that,

"Public policy does favor the certainty and permanence of probate court adoption orders. However, public policy does not favor the securing of such orders by fraud on the petitioner or upon the court. Since fraud upon both the petitioner and the court is alleged by the petitioner, it would appear that the court should at least hear the basis for these claims and inquire into their validity at an appropriate hearing.”

Defendant’s argument alleging laches ón the part of the plaintiff is equally untenable.

"The doctrine of laches is elastic, and rightly so, for it must cover the situation before the court after the facts are presented, and here, since there has been no opportunity to present proof, the statement by the court that laches applies would appear inappropriate.
"'A defendant should not be heard to interpose the defense of laches where the claim against him arises from his own fraud and where * * * the very success of his fraud places the aggrieved parties in temporary ignorance of their rights and thus causes the lapse of time occurring prior to the assertion of the claim. Chase v Boughton, 93 Mich 285, 302; 54 NW 44, 50 (1892). And so, where the equitable claim arises from the fraud of the defendant the defense of laches must fall with the proof of the fraud since the defendant may not thereafter lift himself by his own bootstraps of wrongdoing.’ Kita v Matuszak, 55 Mich App 288, 295-296; 222 NW2d 216 (1974).” In re MacLoughlin, supra, at 307-308.

This case is remanded for a hearing pursuant to MCL 710.39; MSA 27.3178(555.39). The probate court, in evaluating the best interests of the child, is directed for guidance to In the Matter of Baby Boy Barlow, 404 Mich 216; 273 NW2d 35 (1978), and In the Matter of Robert P, 36 Mich App 497; 194 NW2d 18 (1971).

Reversed.

       The expanded jurisdiction of the probate court should also be considered in this matter. Compare the repealed language of MCL 701.19(4); MSA 27.3178(19X4) with MCL 700.22; MSA 27.5022.


author: Per Curiam.

text:
    HENSHAW v STATE TAX COMMISSION
    Docket No. 78-4180.
    Submitted June 11, 1979, at Detroit.
    Decided September 20, 1979.
    Leave to appeal applied for.
    Robert E. Henshaw, Sheleen Henshaw and other property owners in Shelby Township or the City of Sterling Heights in Macomb County brought an action against the State Tax Commission, Macomb County, Shelby Township and the City of Sterling Heights. The State Tax Commission had determined that the property in Macomb County was underassessed by 14.6 percent based upon assessments by local units of government, intracounty equalization by the County Board of Commissioners and intercounty or state equalization. The local taxing districts issued final tax bills on the basis of the Tax Commission’s equalized value finding and increased property tax liability between December of 1977, and July of 1978, for collection of taxes for the 1975 tax year. Plaintiffs’ complaint challenged the validity of the tax, sought to enjoin its collection and requested a refund of all taxes paid pursuant to the levy. Defendants moved for accelerated and summary judgment. Macomb Circuit Court, Arthur E. Moore, J., ruled that the circuit court did not have jurisdiction over the matter and granted defendants’ motions. Plaintiffs appeal. The sole issue presented is whether the circuit court has jurisdiction where an individual property owner seeks to challenge a portion of his tax bill resulting from the intercounty equalization process. Held:

    The State Tax Tribunal has exclusive and original jurisdiction over a proceeding for refund or redetermination of a tax under the property tax laws. The tribunal, not the circuit court, is the proper forum to contest the validity of tax bills based on property value assessments.
    Affirmed.
    1. Taxation — Tax Tribunal — Jurisdiction — Statutes.
    The State Tax Tribunal has exclusive and original jurisdiction over: (1) a proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property laws, and (2) a proceeding for refund or redetermination of a tax under the property tax laws (MCL 205.731; MSA 7.65.0[31]).

      References for Points in Headnotes

       72 Am Jur 2d, State and Local Taxation § 787.

       72 Am Jur 2d, State and Local Taxation § 810.

      2. Taxation — State Tax Commission — Intercounty Equalization — Review — Courts.
    A county which believes itself aggrieved by the determination of the State Tax Commission concerning intercounty equalization may seek judicial review in case of fraud or error of law.
    3. Taxation — Tax Tribunals — Jurisdiction — Property Values — Tax Assessments.
    The State Tax Tribunal has original and exclusive jurisdiction over actions by individual property owners seeking to contest the validity of tax bills based on property value assessments by local units of government, the County Board of Commissioners and the State Tax Commission.

      Cox & Hooth, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General and Richard A. Roesch, Assistant Attorney General, for the State Tax Commission.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiffs each own property in either Shelby Township or the City of Sterling Heights in Macomb County. Following assessment by the local units of government and intracounty (county) equalization by the County Board of Commissioners, the State Tax Commission, as part of the intercounty (state) equalization process, determined that the property in Macomb County was underassessed by 14.6 percent. The county attempted to appeal the decision of the State Tax Commission but was denied leave by both this Court and the Michigan Supreme Court. During the pendency of its applications for leave to appeal, the county directed the local units of government to issue their 1975 tax bills as a tentative levy based upon the county equalized valué.

When the county and local governmental units declined to collect the increased tax liability, the Chippewa Valley school district commenced a suit to force the county to levy 1975 taxes on the basis of the state equalized value. This suit was successful and as a result final 1975 tax bills were sent to property owners between December, 1977, and July, 1978.

Plaintiffs in the instant suit, some of whom did not own property in Macomb County in 1975, filed suit in Macomb County Circuit Court Peeking a refund of these taxes. Defendants brought motions for accelerated and summary judgment. The trial court ruled that it did not have jurisdiction over the matter and granted defendants’ motions. Plaintiffs now appeal as of right.

While the parties have raised a number of collateral issues, the sole issue which this Court must determine is whether the circuit court has jurisdiction where an individual property owner seeks to challenge a portion of his tax bill resulting from the intercounty equalization process. We affirm the trial court’s determination that it does not.

Plaintiffs’ initial pleading is entitled "Complaint for Refund of Property Taxes”, and the relief requested is essentially a "refund of all property taxes paid as a result of the complained of acts”.

The jurisdiction of the State Tax Tribunal is provided by § 31 of the Tax Tribunal Act, which provides:

"The tribunal’s exclusive and original jurisdiction shall be:
"(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.
"(b) A proceeding for refund or redetermination of a tax under the property tax laws.” MCL 205.731; MSA 7.650(31).

Thus, subsection (b) of § 31 vests exclusive jurisdiction of the instant controversy in the Tax Tribunal.

Plaintiffs contend that because the matter involves state equalization the Supreme Court’s decision in Emmet County v State Tax Commission, 397 Mich 550; 244 NW2d 909 (1976), precludes resort to the tribunal as a forum. However, that case involved a county as a plaintiff seeking appellate review of State Tax Commission action in intercounty equalization. The Court held that where a county believes itself aggrieved by the determination of the State Tax Commission concerning intercounty equalization, the county may not seek administrative review in the Tax Tribunal but can seek judicial review, asserting fraud or error of law. 397 Mich at 556.

The instant case does not involve a county as plaintiff but rather individual property owners seeking to contest the legality of the tax bills they received. The Legislature intended such matters to be heard in the Tax Tribunal. While plaintiffs have raised certain constitutional issues in their complaint, such issues may nevertheless be raised before the tribunal with appeal by right to this Court. Xerox Corp v Kalamazoo, 76 Mich App 150; 255 NW2d 797 (1977), MCL 205.753; MSA 7.650(53).

We specifically limit our decision to the issue of subject-matter jurisdiction and do not address the issues raised by defendants on appeal or the merits of plaintiffs’ allegations.

Affirmed. No costs, a public question being involved.


text:
    LEE v BENTON HARBOR MALLEABLE INDUSTRIES
    Docket No. 78-3159.
    Submitted April 4, 1979, at Lansing.
    Decided June 26, 1979.
    Alvin Lee became disabled on October 6, 1973, as a result of an injury suffered while on his job with Benton Harbor Malleable Industries. On March 5, 1974, he filed a petition for hearing with the Bureau of Workmen’s Compensation. Following a hearing in October, 1974, plaintiff was granted a closed award for the period of October 7, 1973, to July 24, 1974. No benefits were paid to plaintiff on the closed award, Benton Harbor Malleable having filed a voluntary petition in bankruptcy on October 30, 1973, and been declared bankrupt on January 21, 1975. On February 6, 1975, plaintiff made a request for payment to the Self-insurers’ Security Fund, which was denied. On April 7, 1975, plaintiff filed a petition for hearing seeking recovery from the Self-insurers’ Security Fund. Following a hearing, recovery against the Fund was denied. The Worker’s Compensation Appeal Board affirmed the referee’s determination on the ground that plaintiffs period of disability ended prior to the date of his petition against the Fund. Plaintiff appeals, arguing that “date of the petition for hearing before the bureau” language of the portion of the Worker’s Disability Compensation Act concerning the Self-insurers’ Security Fund refers to the original hearing before the Bureau, or, in the alternative, that such language unconstitutionally denied him equal protection of the law. Held:

    1. The language of the Worker’s Disability Compensation Act fixing the date of liability for payment by the Self-insurers’ Security Fund refers to the date upon which the claimant files with the Bureau of Workmen’s Compensation a claim against the Self-insurers’ Security Fund. Such reference to a request for hearing before the Bureau does not refer to the date upon which the claimant files for a hearing on the underlying claim for benefits against the employer.
    2. The provisions of the Worker’s Disability Compensation Act relative to the filing of claims against the Self-insurers’ Security Fund have a rational basis and do not deny a claimant the constitutional right of equal protection of the law.

      References for Points in Headnotes

       [No Reference]

       [No Reference]

      Affirmed.
    1. Workmen’s Compensation — Self-insurers’ Security Fund — Hearing — Date of Filing — Statutes.
    The language of the Worker’s Disability Compensation Act fixing the date of liability for payment by the Self-insurers’ Security Fund as being "the date of the petition for hearing before the bureau” refers to the date upon which a claimant files with the Bureau of Workmen’s Compensation a petition for a hearing on his claim against the Self-insurers’ Security Fund, rather than the date upon which the claimant files his petition for a hearing on the underlying claim for benefits against the employer (MCL 418.537[3]; MSA 17.237[537][3]).
    2. Workmen’s Compensation — Self-insurers’ Security Fund — Constitutional Law — Equal Protection — Statutes.
    The provisions of the Worker’s Disability Compensation Act relative to the filing of claims against the Self-insurers’ Security Fund have a rational basis and do not deny a claimant thereunder the constitutional right of equal protection of the law (MCL 418.537; MSA 17.237[537]).

      Butzbaugh, Page, Butzbaugh & Dewane (by Stanley L. White), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eileen D. Zielesch, Assistant Attorney General, for defendant Self-insurers’ Security Fund.
    Before: R. M. Maher, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   Per Curiam.

Plaintiff, Alvin Lee, was employed by Benton Harbor Malleable Industries when, in September, 1973, he suffered a back injury while on the job. He worked until October 6, 1973, when he became disabled. He filed a petition for hearing with the Bureau of Workmen’s Compensation on March 5, 1974. Following an October 22, 1974, hearing, plaintiff was granted a closed award for the period October 7, 1973, to July 24, 1974. In the meantime, Benton Harbor Malleable had filed a voluntary petition in bankruptcy on October 30, 1973, and was declared bankrupt on January 21, 1975. No benefits were paid to plaintiff on the closed award.

On February 6, 1975, plaintiff made a request for payment to the Self-insurers’ Security Fund. This request was denied. On April 7, 1975, plaintiff filed a petition for a hearing seeking recovery from the Self-insurers’ Security Fund. Following a hearing, plaintiff was denied relief. The appeal board affirmed on the grounds that plaintiff’s period of disability ended prior to the date of his request to the Fund’s administrator or the date of his petition against the Fund.

In this appeal, plaintiff argues that the appeal board erred in finding the Self-insurers’ Security Fund not liable for payment of compensation for the period preceding the filing of his petition with the Self-insurers’ Security Fund. Plaintiff premises this contention on the language of MCL 418.537(2) and (3); MSA 17.237(537)(2) and (3), which state:

"(2) If an employee becomes disabled or dies because of a compensable injury or disease while in the employ of a private self-insured employer who has become insolvent and who is unable to make compensation payments, the employee or a dependent of the employee as defined in section 331 may seek payment from the self-insurers’ security fund either by request through the fund’s administrator or by filing a petition for hearing with the bureau.
"(3) Payments shall not be made from the self-insurers’ security fund to an employee or a dependent of the employee as defined in section 331 for any period of disability that is before the date of the request to the administrator or the date of the petition for hearing before the bureau. ” (Emphasis added).

Because the period of limitations is tolled on "the date of the petition for hearing before the bureau”, plaintiff contends that the cited language refers to the MCL 418.847; MSA 17.237(847) petition for hearing filed by plaintiff with the Workmen’s Compensation Board on March 5, 1974, rather than the petition against the Fund for payment of benefits which was filed on April 7, 1975.

We reject this argument. In McQueen v Great Markwestern Packing Co, 51 Mich App 246, 251; 214 NW2d 882 (1974), a panel of this Court construed the first two subsections of MCL 418.537; MSA 17.237(537) in the following manner:

"The reasonable construction of the language of § 537 is that subsection (1) defines the class of employees covered (i.e., those whose self-insured employers became insolvent after the act was in effect), while subsection (2) sets forth the manner in which said employees shall file their claims against the Fund. Since plaintiff herein does not fall within that class of employees to whom the Fund may make payments, the Fund is not liable for payments to plaintiff. Accordingly, the decision of the referee and appeal board must be reversed.” (Emphasis Added).

We find that the language of the Markwestern Court properly expresses the statutory purpose, which is that subsection (2) details the manner in which qualified employees may file their claims "against the Fund”, i.e., either by request through the Fund’s administrator or by filing a petition for hearing with the bureau naming the Fund as a party. It stands to reason that MCL 418.537(3); MSA 17.237(537)(3), which repeats the term used in the antecedent provision, should be interpreted in a consistent manner. Thus, we hold that the day on which the employee files, either by making a request to the Fund’s administrator or by petitioning against the Fund before the Bureau, is the commencement date of the Fund’s liability to the disabled employee. The Fund is not authorized to make payments for periods of disability prior to this daté.

The appeal board did not err by determining that the phrase "petition for hearing” in MCL 418.537(3); MSA 17.237(537X3) referred to petition against the Self-insurers’ Security Fund. Because the record demonstrates that the plaintiff did not file a petition against the Fund until April 7, 1975, the board did not err by concluding that the Self-insurers’ Security Fund was not authorized to make payments for the period of plaintiff’s disability which occurred prior to April 7, 1975.

Plaintiff also contends that the provisions of MCL 418.537; MSA 17.237(537) unconstitutionally deny him equal protection of the law. We find no merit to this contention because the limitation period embodied in the statute has a "rational basis”. Schigur v Secretary of State, 73 Mich App 239, 247-248; 251 NW2d 567 (1977), Renne v Waterford Twp, 73 Mich App 685; 252 NW2d 842 (1977), lv den 400 Mich 840 (1977).

Affirmed.


text:
    STEMEN v COFFMAN
    Docket No. 78-4557.
    Submitted June 15, 1979, at Grand Rapids.
    Decided August 27, 1979.
    Charles Stemen and Fred Mattix were residents of a multiple dwelling unit owned by David and Charlotte Coffman. The building burned, and Stemen was injured and both Stemen and Mattix lost their personal possessions. They brought an action against the Coffmans and against the City of Grand Rapids and those city employees who had inspected the building and issued a certificate of compliance, as well as the city’s fire chief and fire inspector, alleging breach of duty and negligence. The Attorney General, on behalf of the Department of Social Services, intervened as a plaintiff. The Kent Circuit Court, Stuart Hoffius, J., entered summary judgment in favor of the city and its individual employees on the basis of governmental immunity from tort liability. Pursuant to a settlement, the Attorney General and the Coffmans were dismissed from the action. Plaintiffs appeal the summary judgment, alleging that the building constituted a nuisance and that the city’s failure to require the Coffmans to abate the nuisance imposed liability under the nuisance exception to the governmental immunity statute. Plaintiffs also allege that the individual defendants performed duties which were ministerial in nature and that they may therefore be held liable. Held:

    1. Liability for damages caused by a nuisance depends upon the defendant’s control of the alleged nuisance. The city’s relationship to the property here is not such that liability may be imposed for the damages.
    2. The acts of the individual city employees in determining whether the building complied with the building code and whether a certificate of compliance should be issued were discretionary, not ministerial, and the individuals are entitled to the protection of the governmental immunity statute.

      References for Points in Headnotes

       58 Am Jur 2d, Nuisance § 49.

       57 Am Jur 2d, Municipal Tort Liability §§ 85, 293.
    Nature and status of rule as to municipal immunity from liability for torts. 60 ALR2d 1198.

      Affirmed.
    1. Nuisance — Liability — Control.
    Liability for damages caused by a nuisance turns upon whether the defendant is in control of the alleged nuisance, either through ownership or otherwise.
    2. Municipal Corporations — Governmental Immunity — Nuisances — Statutes.
    A city which conducts housing inspections may not be held liable under the nuisance exception to the governmental immunity statute for damages suffered in a fire by the tenants of a multiple dwelling unit which the tenants allege to have been a nuisance because of a lack of adequate fire protection measures and devices and which had been inspected and for which a certificate of compliance was issued by the city (MCL 691.1407; MSA 3.996[107]).
    3. Municipal Corporations — Governmental Immunity — Housing Inspectors — Discretionary Acts — Statutes.
    A city housing inspector may not be held personally liable for damages suffered by the tenants of a dwelling unit which burned where the acts of the inspector, in determining whether the conditions encountered in his inspection complied with the applicable building code provisions and whether a certificate of compliance should be issued, were discretionary, thus entitling the inspector to claim the benefits of the governmental immunity statute (MCL 691.1407; MSA 3.996[107]).

      Mohney, Goodrich & Titta, P.C. (by Robert D. VanderLaan and Bruce W. Neckers), for plaintiffs.

      Philip A. Balkema, City Attorney, and Robert M. Cary, Assistant City Attorney, for the City of Grand Rapids and its individual employee defendants.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Plaintiffs were residents of a multiple dwelling unit owned by defendants Coffman and located in the City of Grand Rapids. The building had been inspected in 1975 by defendant Shirilla, a city housing inspector, and had received a certificate of compliance signed by defendant Panzone, Shirilla’s supervisor. On January 23, 1977, plaintiff Stemen received severe burns on one arm and one leg when fire gutted the structure, and both plaintiffs lost all their personal possessions.

Plaintiffs subsequently brought suit against the previously named individuals, the City of Grand Rapids, and defendants Veit and Thiel, the city’s fire chief and fire inspector, alleging in several counts of their complaint that breaches of duty and negligence on the part of the city and its employees had caused the injuries and losses which plaintiffs suffered in the fire. The Kent County Circuit Court entered summary judgment in favor of the city and its individual employees on the basis of governmental immunity from tort liability. Plaintiffs appeal as of right.

Plaintiffs rely upon the "nuisance exception” to the legislative grant of immunity to a government agency engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). They appear to concede that the city’s program of housing inspections constitutes a governmental function. However, they argue that the failure of the city and its employees to require the Coffmans to abate the nuisance consisting of a multiple dwelling unit without adequate fire protection measures and devices allows liability to be imposed upon the city under the judicially created "nuisance exception”, recently discussed from a variety of perspectives in Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Department of State Highways, 403 Mich 149; 268 NW2d 525 (1978).

We disagree. "Liability for damage caused by a nuisance turns upon whether the defendant was in control, either through ownership or otherwise.” 58 Am Jur 2d, Nuisances, § 49, p 616. We have found no authority imposing liability for damage caused by a nuisance where the defendant has not either created the nuisance, owned or controlled the property from which the nuisance arose, or employed another to do work which he knows is likely to create a nuisance. The city’s relationship with the property alleged to constitute a nuisance in this case falls under none of these headings; indeed, it is far more attenuated. To hold the city liable under the "nuisance exception” in this case would stretch the concept of liability for nuisance beyond all recognition.

Plaintiffs also contend that the city’s individual employees may be held liable for plaintiffs’ damages because the duties they peformed in relation to the building which caught fire were ministerial rather than discretionary. Plaintiffs note that in Armstrong v Ross Twp, 82 Mich App 77; 266 NW2d 674 (1978), the act of a building inspector in deciding whether applicants are entitled to a building permit was held to be ministerial. But, it appears that the inspectors involved in the present case enjoyed a greater degree of discretion and independent judgment in determining whether the conditions they encountered in the field complied with the applicable code provisions and whether a certificate of compliance should be issued. The inspectors’ acts were discretionary, and the individual city employees are, therefore, entitled to claim the benefits of governmental immunity. Walkowski v Macomb County Sheriff, 64 Mich App 460; 236 NW2d 516 (1975).

Since the city was engaged in the exercise or discharge of a governmental function under circumstances which do not bring any of the exceptions to the doctrine of governmental immunity into play and the acts of the city’s employees give rise to no liability because they were discretionary, any attempt to base the city’s liability upon respondeat superior must be rejected.

Affirmed. No costs, a public question.