Court of Appeals, State of Michigan

ORDER

Charnita Sadler v City of Detroit

Docket No. 336117

LC No. 16-010827-NO

Elizabeth L. Gleicher 

Presiding Judge

Stephen L. Borrello 

Brock A. Swartzle 

Judges

The Court orders that the March 1, 2018 opinion is hereby VACATED, and new opinions 

are attached. 

/s/ Elizabeth L. Gleicher

March 6, 2018
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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CHARNITA SADLER,

Plaintiff-Appellant,

UNPUBLISHED

March 6, 2018

v No. 336117

Wayne Circuit Court

CITY OF DETROIT, LC No. 16-010827-NO

Defendant-Appellee.

Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

In this governmental negligence action, plaintiff appeals as of right the trial court’s order 

granting defendant’s motion for summary disposition. Plaintiff alleges that on or about February 

5, 2016, she was walking in the city of Detroit when she sustained injuries from slipping and 

falling in a pothole. Plaintiff brought suit in the Wayne Circuit Court on August 25, 2016. 

Defendant responded with a motion for summary disposition pursuant to MCR 2.116(C)(7), 

arguing that plaintiff failed to comply with the notice requirements of MCL 691.1404(2). The 

trial court granted defendant’s motion. For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

This action arises out of a slip and fall that allegedly occurred on February 5, 2016, while 

plaintiff was traveling on Chelsea Street in the city of Detroit. Plaintiff filed a complaint against 

the city on August 25, 2016, requesting $25,000 in damages for defendant’s failure to maintain 

the roadway pursuant to MCL 691.1404 et seq. 

On September 13, 2016, plaintiff filed a proof of service in which she claimed to have 

served a copy of the summons and complaint, as well as a notice of her injuries pursuant to 

statute, on the “City of Detroit” on August 29, 2016. Service was addressed to “City of Detroit 

Law Department, Attn: Claims, 660 Woodward Avenue, Detroit, MI 48226,” and was sent via 

certified mail with a return receipt requested. On September 22, 2016, defendant moved for 

summary disposition pursuant to MCR 2.116(C)(7), arguing that the notice “was not served upon 

an individual who may lawfully be served with civil process . . . as required by MCL 

691.1404(2).” Defendant argued that MCL 691.1404(2) required service to an “individual,” and 

that the city’s “law department” was not an individual within the meaning of the statute.

Plaintiff filed a response on November 8, 2016, in which she claimed that defendant’s 
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law department necessarily was the city attorney. Plaintiff also argued that she had, in fact, 

served a copy of the complaint and notice on the city clerk, albeit not by certified mail.

A hearing on defendant’s motion was held on November 28, 2016. Following a 

discussion with the parties about the issue presented, and the trial court reviewing prior 

unpublished decisions of this Court the trial court ultimately held that MCL 691.1404(2) required 

that notice of injury be perfected on an “individual,” and MCR 2.105(G), indicating service of 

process on public corporations, required that plaintiff serve personally or by certified mail either 

“the mayor, the city clerk, or the city attorney of [the] city.” Accordingly, the trial court granted 

defendant’s motion for summary disposition and this appeal then ensued.

II. ANALYSIS

Plaintiff now appeals the granting of summary disposition against her, arguing that the 

trial court erred in determining that she failed to comply with MCL 691.1404(2). “ ‘This Court 

reviews motions for summary disposition under MCR 2.116(C)(7) de novo.’ ” Russell v City of 

Detroit, ___ Mich App ___; ___ NW2d ___ (2017) (Docket No. 332934); slip op at 2, quoting 

Trentadue v Buckler Automatic Law Sprinkler Co, 479 Mich 378, 386; 738 NW2d 664 (2007). 

“Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity 

granted by law.” State Farm Fire & Cas Co v Corby Energy Servs, Inc, 271 Mich App 480, 482; 

722 NW2d 906 (2006), citing Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 

(2001). “In order to avoid summary disposition pursuant to MCR 2.116(C)(7), a plaintiff must 

plead facts in avoidance of immunity.” State Farm, 271 Mich App at 482, citing Mack v Detroit, 

467 Mich 186, 199; 649 NW2d 47 (2002). “If the facts are not in dispute and reasonable minds 

could not differ concerning the legal effect of those facts, whether a claim is barred by 

governmental immunity is a question for the court to decide as a matter of law.” Poppen v 

Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003).

Questions of statutory interpretation are also reviewed de novo. Stanton v City of Battle 

Creek, 466 Mich 611, 614; 647 NW2d 508 (2002), citing In re MCI Telecommunications, 460 

Mich 396, 413; 596 NW2d 164 (1999). “The primary rule of statutory interpretation is that we 

are to effect the intent of the Legislature.” Stanton, 466 Mich at 615, citing Wickens v Oakwood 

Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). “ ‘To do so, we begin with the 

language of the statute, ascertaining the intent that may reasonably be inferred from its 

language.’ ” Odom v Wayne Co, 482 Mich 459, 467; 760 NW2d 217 (2008), quoting Lash v 

Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007). If the language is unambiguous, the 

intent of the Legislature is clear and “ ‘judicial construction is neither necessary nor permitted.’ ” 

Odom, 482 Mich at 467, quoting Lash, 479 Mich at 187.

MCL 691.1404 provides, in pertinent part:

(1) As a condition to any recovery for injuries sustained by reason of any 

defective highway, the injured person, within 120 days from the time the injury 

occurred, . . . shall serve a notice on the governmental agency of the occurrence of 

the injury and the defect. The notice shall specify the exact location and nature of 

the defect, the injury sustained and the names of the witnesses known at the time 

by the claimant. 
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(2) The notice may be served upon any individual, either personally, or by 

certified mail, return receipt requested, who may lawfully be served with civil 

process directed against the governmental agency, anything to the contrary in the 

charter of any municipal corporation notwithstanding. 

MCR 2.105(G)(2) in turn provides:

(G) Public Corporations. Service of process on a public, municipal, quasimunicipal, or governmental corporation, unincorporated board, or public body 

may be made by serving a summons and a copy of the complaint on: 

* * *

(2) the mayor, the city clerk, or the city attorney of a city[.]

Plaintiff contends that defendant’s “law department” constituted an “individual” within the 

meaning of the statute because the law department necessarily is the city attorney. We disagree. 

This exact issue was recently addressed by this Court1 in Wigfall v City of Detroit, ___ 

Mich App ___; ___ NW2d ___ (2017) (Docket No. 333448), lv pending. In Wigfall, the 

defendant argued that the “plaintiff mailed his notice to ‘City of Detroit Law Department –

CLAIMS,’ and not to a proper individual.” Id. at ___; slip op at 1. This Court agreed, and held 

that the plaintiff “failed to comply with the statutory notice requirement” because he “did not 

serve his notice upon any individual who may lawfully be served with civil process directed 

against defendant as required under MCL 691.1404(2). Id. at ___; slip op at 3-4. Specifically, 

this Court agreed with the defendant that the “city attorney” at the time was Melvin Butch 

Hollowell, and he should have been served in place of the “law department.” Id. at ___; slip op 

3. This Court went on to conclude that: 

To avoid governmental immunity, plaintiff was required to fulfill the 

requirements set forth by our Legislature in MCL 691.1404. One of those 

requirements was to serve notice “upon an individual . . . who may lawfully be 

served with civil process directed against the governmental agency, anything to 

the contrary in the charter of any municipal corporation notwithstanding.” MCL 

691.1404(2). MCR 2.105(G)(2) provides that the individual who may lawfully be 

served civil process on behalf of a municipal corporation is “the mayor, the city 

clerk, or the city attorney of a city.” Plaintiff did not serve notice upon “the 

mayor, the city clerk, or the city attorney...” Id. at ___; slip op 9-10.

Our decision in Wigfall resolves the issue presented here as to whether a city’s law 

department might constitute an “individual” within the meaning of MCL 691.1404(2), and is 

therefore dispositive. Additionally, any alternate claim by plaintiff that she substantially 

complied with the statute was also resolved in Wigfall: 

 1 Though Wigfall was released after both parties submitted their briefs, it is noteworthy that 

neither party amended its briefing to include argument as to the application of this Court’s 

decision in Wigfall.
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As our Supreme Court held in Rowland v Washtenaw Co Rd Comm, 477 

Mich 197, 219; 731 NW2d 41 (2007), the “straightforward, clear, and 

unambiguous” language of MCL 691.1404 “must be enforced as written.” 

Further, our Supreme Court held, “no judicially created saving construction is 

permitted to avoid a clear statutory mandate.” McCahan v Brennan, 492 Mich 

730, 733; 822 NW2d 747 (2012); see also Jakupovic v Hamtramck, 489 Mich 

939; 798 NW2d 12 (2011). Statutory notice provisions are within the sole 

province of the Legislature and the judiciary has no authority to amend them; 

thus, they must be interpreted and enforced as plainly written. McCahan, 492 

Mich at 732-733. In other words, contrary to plaintiff’s argument and the trial 

court’s holding, substantial compliance with the statutory notice provision is not 

sufficient. [Wigfall, ___ Mich App at ___; slip op at 3.]

Pursuant to MCL 691.1404(2), plaintiff was required to serve her notice “upon an 

individual . . . who may lawfully be served with civil process directed against the governmental 

agency.” Said individuals included “the mayor, the city clerk, or the city attorney,” and not 

defendant’s law department. MCR 2.105(G)(2); see also Wigfall, ___ Mich App at ___; slip op 

at 3-4. Furthermore, that plaintiff’s notice may have been otherwise void of defects is irrelevant 

because she was required to strictly conform to the requirements of MCL 691.1404. See Wigfall, 

___ Mich App at ___; slip op at 4. 

Affirmed. No costs are awarded. MCR 7.219(A).

/s/ Stephen L. Borrello 

/s/ Brock A. Swartzle