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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

STEVEN SYKES,

Plaintiff-Appellant,

UNPUBLISHED

September 11, 2018

v No. 339722

Wayne Circuit Court

CITY OF DETROIT, LC No. 16-006510-NO

Defendant-Appellee.

Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting summary disposition in favor 

of defendant pursuant to MCR 2.116(C)(7). On appeal, plaintiff argues that the trial court (1) 

erred in determining that service of plaintiff’s notice of injury on defendant was deficient, and 

(2) erred by failing to determine that defendant was equitably estopped from arguing the notice 

was deficient. We affirm. 

This action arises out of a trip and fall incident whereby plaintiff allegedly tripped and 

injured his knee while walking on a sidewalk owned and maintained by defendant. When 

plaintiff filed a civil complaint in the Wayne Circuit Court alleging negligence, defendant moved 

for summary disposition based upon governmental immunity. MCR 2.116(C)(7). Specifically, 

defendant contended that plaintiff had failed to strictly comply with the requirements of MCL 

691.1404, which required plaintiff to serve notice of his injury on “the mayor, the city clerk, or 

the city attorney[.]” MCR 2.105(G)(2). Instead, plaintiff served notice of his injury on 

defendant’s law department. The trial court agreed that plaintiff’s notice was defective, and 

dismissed plaintiff’s complaint. 

Plaintiff first argues that the trial court erroneously concluded that service on the city’s 

law department was insufficient under the statute. Plaintiff contends that the statue does not 

specify who exactly should be served, and that, in any event, plaintiff should be permitted to 

proceed with his complaint because he substantially complied with the statutory requirements. 

We disagree. 

“ ‘This Court reviews motions for summary disposition under MCR 2.116(C)(7) de 

novo.’ ” Russell v City of Detroit, 321 Mich App 628, 631; 909 NW2d 507 (2017), quoting 

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

(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[.]
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Whether service to a city’s law department is sufficient pursuant to MCL 691.1404 and MCR 

2.105(G)(2) was recently addressed by this Court in Wigfall v City of Detroit, 322 Mich App 36, 

41-42; 910 NW2d 730 (2017). 

In Wigfall, the plaintiff filed suit against the city of Detroit after allegedly striking a 

pothole while riding a motorcycle and sustaining injuries. Despite the city admitting that it 

received actual notice of the plaintiff’s injury, it nevertheless moved for summary disposition 

pursuant to MCR 2.116(C)(7), “arguing that governmental immunity barred [the] case because 

[the] plaintiff failed” to specifically comply with the terms of MCL 691.1404(2). Wigfall, 322 

Mich App at 38-39. The city argued that the “plaintiff mailed his notice to ‘City of Detroit Law 

Department – CLAIMS,’ and not to a proper individual.” Id. at 39. 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” pursuant to 

MCL 691.1404(2). Id. at 42-43. Wigfall indisputably held that MCL 691.1404(2), in 

conjunction with MCR 2.105(G)(2), strictly requires that notice of injury in governmental 

negligence actions against municipal corporations must specifically be served on the mayor, the 

city clerk, or the city attorney. Id. at 41-42, quoting MCR 2.105(G)(2). In this case, plaintiff 

admits to having served his notice of injury on the city’s law department, but contrary to Wigfall, 

contends that service in the law department was the equivalent to service on the city attorney.

Plaintiff contends, in the alternative, that regardless of the interpretation of MCL 

691.1404(2), plaintiff substantially complied with the requirements of the statute and thus should 

be permitted to proceed with his civil action. Both plaintiff and defendant introduce competing 

views of Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007), and 

whether the case stands for the proposition that substantial compliance is insufficient to satisfy 

the notice requirements of MCL 691.1404(2). Again, Wigfall is dispositive because it 

definitively interpreted Rowland as requiring strict compliance: 

As our Supreme Court held in Rowland . . . 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, 322 Mich App at 42-43 (emphasis added).]

While Wigfall is pending before the Michigan Supreme Court, we note that the case 

remains controlling precedent. See MCR 7.215(C)(2) (“the filing of an application for leave to 

appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not 

diminish the precedential effect of a published opinion of the Court of Appeals.”). Therefore,

pursuant to Wigfall, MCL 691.1404(2) required plaintiff to have served his notice “upon an 

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

agency.” Wigfall, 322 Mich App at 42, 44. Said individuals included “the mayor, the city clerk, 
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or the city attorney,” and not defendant’s law department. Id. Furthermore, that plaintiff’s 

notice may have been otherwise void of defects is irrelevant because he was required to strictly 

conform to the requirements of MCL 691.1404. Id. at 42-43. 

Finally, plaintiff argues that defendant should have been equitably estopped from raising 

issues related to service of plaintiff’s notice of injury because defendant’s website specifically 

instructed plaintiff to file his claim with defendant’s law department, and upon receipt of 

plaintiff’s notice, defendant’s law department sent a letter to plaintiff indicating that it had 

received the notice without ever claiming a defect existed. Contrarily, defendant contends that 

the instructions described by plaintiff were related to filing informal claims with the city for the 

purpose of avoiding litigation, and had nothing to do with service or acceptance of service of a 

civil complaint. 

“This Court reviews de novo the trial court’s application of legal and equitable doctrines, 

including the doctrines of res judicata and equitable estoppel.” Sylvan Twp v City of Chelsea, 

313 Mich App 305, 315-316; 882 NW2d 545 (2015), citing Washington v Sinai Hosp of Greater 

Detroit, 478 Mich 412, 417; 733 NW2d 755 (2007), and McDonald v Farm Bureau Ins Co, 480 

Mich 191, 197; 747 NW2d 811 (2008). “ ‘Estoppel arises where a party, by representations, 

admissions or silence, intentionally or negligently induces another party to believe facts, and the 

other party justifiably relies and acts on this belief, and will be prejudiced if the first party is 

permitted to deny the existence of those facts.’ ” Wigfall, 322 Mich App at 43, quoting Casey v 

Auto-Owners Ins Co, 273 Mich App 388, 399; 729 NW2d 277 (2006). Whether a plaintiff may 

use equitable estoppel to prevent a city from raising service issues where the plaintiff relied on 

the city’s instruction to perfect service is also an issue addressed in Wigfall. 

In Wigfall, the trial court concluded that the city of Detroit was equitably estopped from 

raising arguments pertaining to service of the notice of injury because the city “provided 

information on its website and over the telephone regarding the provision of notice related to 

claims,” and the plaintiff had seemingly followed the city’s instruction. Wigfall, 322 Mich at 44. 

This Court reversed, holding that the trial court “essentially charge[d] [the] defendant with the 

duty to provide potential litigants with legal advice related to the interpretation of a statute and 

court rule.” Id. This Court reasoned: 

We cannot agree that because plaintiff received incorrect, inapplicable, or 

misinterpreted legal advice, defendant should be estopped from asserting that the 

statutory notice requirement was not met. 

It appears that plaintiff relied on information provided by defendant 

through its law department that was meant to relate solely to informal claims 

against defendant. But in any case, plaintiff was not entitled to rely on 

defendant’s interpretation or misinterpretation of the legal requirements set forth 

in MCL 691.1404 as a justification or excuse for his failure to act in conformity 

with those requirements. To avoid having his claim barred by 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 any individual . . . who may lawfully be served with civil process directed 

against the governmental agency, anything to the contrary in the charter of any 
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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 on “the mayor, the city clerk, or the city 

attorney,” allegedly because of the misinformation provided by defendant. The 

equitable-estoppel doctrine does not excuse that failure to comply with the 

statutory mandate . . . . [Id. at 44-45.] 

The same circumstances exist in this case where it appears that the instructions cited by 

plaintiff were related to defendant’s informal claims process and had nothing to do with filing a 

civil action against defendant. Notwithstanding, even assuming arguendo that the instructions 

and websites cited by plaintiff constituted legal advice from defendant, plaintiff “was not entitled 

to rely on defendant’s interpretation or misinterpretation of the legal requirements set forth in 

MCL 691.1404 as a justification or excuse for his failure to act in conformity with those 

requirements.” Id. at 44. Accordingly, equitable estoppel was not applicable and the trial court 

correctly determined that plaintiff’s civil action was barred by governmental immunity. 

Affirmed. 

/s/ Brock A. Swartzle

/s/ Kathleen Jansen

/s/ Colleen A. O’Brien