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### STATE OF MICHIGAN

COURT OF APPEALS

LASHAWN D. REDMOND,

Plaintiff-Appellant, UNPUBLISHED December 2, 2014

v Nos. 313413 & 315416 Wayne Circuit Court
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 10-011348-AV

Defendant-Appellee.

Before: M URRAY , P.J., and J ANSEN and S HAPIRO , JJ.

S HAPIRO
, J. ( concurring ).

I concur with the majority’s conclusion becau se we are bound by this Court’s decision in Moody v Home Owners Ins Co , 304 Mich App 415; 849 NW2d 31 (2014). MCR 7.215(J)(1). I write separately because I believe that Moody was incorrectly decided. Its reasoning is flawed and the radical and wholesale changes it imposes on well-settled rules of practice are confusing and impracticable. But for the fact that the Michigan Supreme Court has granted the Moody plaintiffs’ application for leave to appeal, at least in respect to the issues discussed herein, Moody
v Home Owners Ins Co , ___ Mich ___; 853 NW2d 331 (2014), I would request a special conflict panel of this Court to resolv e the issue. MCR 7.215(J)(2).

The Moody panel addressed the issue of the subject -matter jurisdiction “of the district court under MCL 600.8301 when a plai ntiff presents evidence and argument of damages far in
excess of the district co urt’s amount-in-controversy jurisdictiona l limit.” Moody , 304 Mich App
at 419. Two consolidated cases with similar facts were decided in Moody . Both plaintiffs brought claims under the no-fault act, MCL 500.3101 et seq ., and requested damages not exceeding $25,000. Id . at 420-426. Both cases proceeded to trial and bo th plaintiffs received jury verdicts in excess of $25,000. Id . The respective district courts subsequently reduced both awards to $25,000. Id . The same circuit judge heard appe als from both defendants and vacated both judgments, finding that the district courts had not possessed subject-matter jurisdiction over
either case. Id . at 423-426. The Moody panel affirmed the circuit judge’s orders. Id . at 438.

I. STATUTORY INTERPRETATION

The Moody panel was tasked with interpreti ng MCL 600.8301(1), whic h provides that, “The district court has exclusive jurisdiction incivil actions when the amount in controversy does not exceed $25,000.00.” “Amount in controversy” is not defined in the statute, but is-2- plainly a legal term of art. 1 Indeed, the Moody panel cited the legal definition of “amount in controversy” provided by Black’s Law Dictionary: “[t]he damages claimed or relief demanded by the injured party to a lawsuit.” Id . at 430, citing Black’s Law Dictionary (9th ed) (emphasis added). This is a perfectly adequate and understa ndable definition of “amount in controversy.” It is a legal term of art that means “the damage s claimed or relief demand ed.” Nevertheless, the Moody panel then divorced the word “controversy” from the rest of the term of art and turned to legal and lay dictionary definitions of this isolated word. Doing so violated the fundamental rule that “[c]ontextual understandi ng of statutes is generally grounded in the doctrine of noscitur a
sociis : ‘[i]t is known from its associ ates,’ see Black’s Law Dictionary (6th ed.), p. 1060.[] This doctrine stands for the principle that a word or phrase is given meaning by its context or setting.” 2 Koontz v Ameritech Servs, Inc , 466 Mich 304, 318; 645 NW2d 34 (2002) (quotation marks and citations omitted). It was also inconsis tent with the statutory interpretation canon of favoring the specific over the general, i.e., generalia specialibus non derogant (“the general does not detract from the specific”). See, e.g., Craig v Detroit Pub Schs Chief Executive Officer , 265 Mich App 572, 575; 697 NW2d 529 (2005). In the underlying Moody cases, both plaintiffs claimed and demanded relief not in excess of $2 5,000 and so the “amount in controversy” was not more than $25,000.

Ultimately, it is the potential relief and not th e evidence that limits the district court’s jurisdiction. And, it is beyond peradven ture that a civil jury verdict is not itself enforceable. No party may use it to compel payment from another. Only the judgment entered by the district court has the power of law and may be enforce d. There are many settings in which a jury’s verdict is modified by the court pr ior to entry of judgment. A court may order remittitur, additur, setoffs due to collateral sources, reductions for comparative and third-party fault, and many other potential modifications defined by an applicable statute or rule.

II. REJECTION OF APPLICABLE CASE LAW

The Moody panel rejected out of hand decades of Michigan caselaw that provided an adequate, simple, and fair manner of determining the “amount in controve rsy” at the outset of district court proceedings. 3 Curiously, as follows, Moody made note of these cases but then ignored them:

1 The legal concept behind the phrase “amount in controversy,” i.e., the federal “matter in controversy” concept, has been a legal term of art since at least September 24, 1789, when President Washington signed into law the Judiciary Act of 1789.

2 Our Supreme Court has specifically rejected the a pproach of using lay dict ionaries to separately define words that together make up a term of art. Macomb Co v AFSCME Council 25 , 494 Mich 65, 86 n 59; 833 NW2d 225 (2013).

3 The Moody panel also summarily dismissed any cas elaw and theory concerning the $75,000 matter-in-controversy requirement of fe deral diversity jurisdiction cases. Moody , 304 Mich App at 434. While we are not bound by the opinions of lower federal courts, “their analyses and conclusions [may be] persuasive.” Abela v General Motors Corp , 469 Mich 603, 606-607; 677-3- [A]ppellants cite several case for the propos ition that subject-ma tter jurisdiction is determined only by the allegations in th e plaintiff’s complaint and prayer for
relief. See Fox v Martin , 287 Mich 147, 151; 283 NW 9 (1938) (“Jurisdiction does not depend upon the facts, but upon the allegations.”); Zimmerman v Miller

, 206 Mich 599, 604-605; 173 NW 364 (1919); Trost v Buckstop Lure Co, Inc , 249 Mich App 580, 586; 644 NW2d 54 (2002) (“‘A court’s subject-matter jurisdiction is determined only by reference to the al legations listed in the complaint.’”), quoting Grubb Creek Action Comm v Shiawasee Co Drain Comm’r , 218 Mich App 665, 668; 554 NW2d 612 (1996); and Altman , 197 Mich App at 472 (“Jurisdiction always depends on the al legations and never upon the facts.”). [ Moody , 304 Mich App at 431.]

Indeed, less than six months before Moody was decided, this Court again clarified that “subject-matter jurisdiction is established by the pleadings and exists ‘when th e proceeding is of
a class the court is authorized to adjudicate and the claim stated in the complaint in not clearly
frivolous.’” Clohset v No Name Corp , 302 Mich App 550, 561; 840 NW2d 375 (2013), quoting
In re Hatcher , 443 Mich 426, 444; 505 NW2d 834 (1993) (emphasis in Clohset ). All these cases have established the bright-line rule that subject-matter jurisdiction is determined by reference to the parties’ pleadings. Nonetheless, the Moody panel rejected this long line of cases with no explanation other than its concluso ry remark that “[n]one of these cases is factually similar to the ones at hand[.]” Moody , 304 Mich App at 431. However, all cases present differing factual situations. The question is whether those differences mandate a different analysis or result and if so, why they do.

Here, the factual distinctions do not suggest, let alone require, that the holdings of these cases be ignored. For example, in the recent case Brooks v Mamo , 254 Mich App 486, 488; 657 NW2d 793 (2002), the jury returneda verdict for the plaintiff for $50,000 after a district court trial. The district court entered a judg ment for $17,985, which reflected the $10,000 amount-incontroversy limitation in effect at th e time, plus costs and interest. Id . While postjudgment motions were pending, the Legislature modifiedMCL 600.8301 to increase the district court amount-in-controversy limitation to $25,000. Id . at 490. This Court reversed the decision of the circuit court and held that the plaintiff wa s entitled to a $25,000 judgment, the new maximum jurisdiction of the district court. Id . at 492-497. Brooks did involve a unique factual scenario, in
that the relevant statute was amended during the course of th e underlying action. However,
Brooks clearly stands for the proposition that evidence presented to support damages in excess of
the district court’s limitation doe s not void a judgment that is within that limitation. The Brooks plaintiff presented evidence of damage s far in excess of both the $10,000 and $25,000

NW2d 325 (2004). Much like our distri ct courts, federal courts are those of limited jurisdiction.
See Kokkonen v Guardian Life Ins Co of America , 511 US 375, 376; 114 S Ct 1673; 128 L Ed 2d 391 (1994). An element of federal diversity juri sdiction is a “matter in controversy” exceeding $75,000. 28 USC 1332(a). The longstanding fe deral rule provides that “if, from the face of the pleadings , it is apparent, to a legal certainty , that the plaintiff cannot recover the amount claimed of[,]” the suit should be dismissed. St Paul Mercury Indemnity Co v Red Cab Co , 303 US 283, 289; 58 S Ct 586; 82 L Ed 845 (1938) (emphasis added). Applied to Moody , from the face of the pleadings, it was legally certain that the pl aintiffs could not re cover in excess of $25,000.-4- limitations, as evidenced by the jury’s $50,000 award. The Moody panel appears to place great weight on the fact that the Brooks defendant did not raise a subject -matter jurisdiction argument
identical to that of the Moody defendants. However, this reliance is contrary to Moody ’s later belabored point that subject-matter jurisdic tion claims are never waived and that allcourts, including the Court of A ppeals, have a duty to sua sponte que stion subject-matter jurisdiction if the evidence presented appears to support damages in excess of the jurisdictional amount. See,

e.g., Clohset , 302 Mich App at 560. Indeed, as Moody points out, a judgment rendered by a court without subject-matter jurisdiction is void; thus, according to Moody , this Court in Brooks should have found the underlying j udgments void and declined to engage in any analysis regarding the retroactivity of the jurisdictional st atute or the other issues presented. Notably, Moody did not overrule Brooks nor did it request a special conflict pa nel pursuant to MCR 7.215(J)(2).

III. MISDIRECTION OFTHE BENCH AND BAR

Putting aside its analytical shortcomings, the Moody decision suffers from a more serious defect: it upends settled practice without defining any clear new rule s of practice. It tells the bench and bar what it is doing wrong, but provides no direction as to how they are to do it right. This is a formula for confusion, inconsiste ncy, and the wasting of judicial resources.

First, Moody provides no guidance as to when the amount-in-controversy determination
is to be made. 4 Moody rejects the longstanding proposition that the determination be made at the beginning of the litigation, i.e., based on the pleadings. However, it offers no reasonable alternative. Indeed, it app ears that the determination can only be made for certain after the trial is concluded. Having subject-ma tter jurisdiction remain at issue until trial ends is a bizarre arrangement. It places an unnecessary burden on the parties and the courts, and undercuts the very validity of district court judgments.

Second, Moody will likely result in a game of jurisdictional ping-pong that will unnecessarily drain Michigan’s limited judicial re sources. Take for example a plaintiff-landlord who claims he is owed $24,000 in rent by a defendant -tenant. The landlord is required to file
suit in district cour t since that court has exclusive jurisdiction over cases under $25,000. However, by the time of trial, the outstanding re nts may have risen to $26,000, at which point the
landlord must remove the case to circuit court or ri sk dismissal afte r trial. Once he has done that, however, the tenant may choose to pay $2,000 of the past rent, thus making the case again one that falls solely within the juri sdiction of the district court. The same is true in a no-fault personal protection insurance (PIP) case. What sh all a plaintiff do when at the time of filing she has incurred $15,000 in unreimbursed expenses but anticipates that the amount of damages will likely grow to $30,000 by the time of tria l? These situations generated by Moody are completely unnecessary and will result in protracted litigation, gamesmanship, and congestion of trial court
dockets.

4 It should be noted that there is nothing in Moody to suggest that its application is limited to nofault actions. Moody applies to all district court actions.-5- Third, Moody never states exactly what amount of damages placed in evidence will trigger all these duties. Moody notes that its plaintiffs submitted evidence of damages “far in excess” of the jurisdictional limit. What is “f ar in excess”? At what point must a plaintiff
transfer his case to circuit cour t in order to avoid dismissal after trial in the district court: $26,000?, $27,000?, $30,000? What if a w itness testifies as to damages at trial that a plaintiff’s attorney was not aware of and tips the amountpast whatever the trial court subjectively
concludes is “far in excess” of the $25,000 limit? The “far in excess” standard is a moving target, varying from judge to judge and case to cas e. Yet, to run afoul of this moving target poses potentially catastrophic consequences.

Fourth, it is quite possible, particularly in cases with noneconomic damages, that a jury might award a plaintiff more than his reque sted damages. If a plaintiff sought $23,000 in damages, but the jury awarded $30,000, under Moody , the jury’s verdict and judgment would be void, despite the parties and court having engaged in a full and fair trial in all other respects. One can also easily imagine a situation where a pl aintiff must decline to present relevant and important evidence for fear that the court orthe defendant will argue that the amount-incontroversy has suddenly exceeded $25,000 and th e case must, therefore, be dismissed.

Fifth, there are specific damage statutes to be considered. Take for example a plaintiff who alleges that a defendant violated MCL 600.2919 by illegally removing timber from the plaintiff’s land. At trial before the district court, the parties dispute the value of the timber removed, but agree that it was between $8,000 and $10,000. However, MCL 600.2919(1) provides that a plaintiff is entitled to treble dama ges for the illegal removal of the timber. Under Moody , it would seem that “the amount the parties to a lawsuit dispute, argue about, or debate during the litigation[,]” Moody , 304 Mich App at 429-430, was between $8,000 and $10,000, and thus within the jurisd ictional amount-in-controversy limit. However, Moody can reasonably be read to include the entire possi ble award in its amount-in-controve rsy requirement. Moreover, it can be assumed that our hypothetical defendant would argue that he was not subject to the statutory trebling provision and, thus, the trebled amount was “disputed” duri ng the litigation. If plaintiff proves that the timber was worth $8,334 or more, he would be entitled to over $25,000 in damages and the district court would be ch arged with violating ei ther MCL 600.2919(1) or Moody . This problem could not be resolved by re moval to the circuit court, because if the plaintiff only managed to prove $8,000 in actual damages, his treble damages would not exceed $25,000, and under Moody ’s reading of the jurisd ictional statutes, as disc ussed above, the circuit court would also be without jurisdiction. Indee d, in this example, it would be impossible to determine whether the district or circuit court possessed subject-matter jurisdiction over the plaintiff’s suit until after the verdicts were de termined and damages awarded. Such a procedure
cannot be allowed to stand. See McAuley v General Motors Corp , 457 Mich 513, 518; 578 NW2d 282 (1998) (“Statutes should be construed so as to prevent absurd results . . . .”).

These are some, but almost certainly not all, of the practical problems that will be posed by Moody ’s application in our trial courts.

IV. CONCERNS OVER “FORUM SHOPPING”

It is fair to ask what motivated the Moody panel to upend settled legal practice. It appears
to me that the Moody panel’s decision was motivated by the pl aintiff’s apparent attempt to have-6- his cake and eat it to, i.e., to have his case heard in the forum he chose, i.e ., district court, while still submitting the evidence of damages beyond $25,000.

The initial response to that concern must be that plaintiff was not getting his cake and eating it too. He was getting only a portion of that cake, i. e., his damages were capped at $25,000 no matter the evidence presented. In other words, even assuming that making such a
trade-off in order to file in the most favorable forum is to be frowned upon, 5 the Moody plaintiffs paid for the right to be heard in district court. Both juries awarded the re spective plaintiffs more than $25,000, yet the plaintiffs conceded that th e court had to reduce th ose awards to $25,000. Presumably, many defendants would be content to accept a plaintiff’ s voluntary cap on his damages. In any event, the Moody panel’s disdain for the litiga tion strategy of a particular attorney belongs in the realm of professional sa nctions, not in the imposition of ill-defined rules that apply to every case filed. The Moody panel’s dissatisfaction with the parties’ counsel did not support disrupting Michigan’s en tire civil trial system. See Apsey v Memorial Hosp , 477 Mich 120, 141; 730 NW2d 695 (2007) (Y OUNG
, J., concurring in result only) (Although legislative clarification may be de sirable, Court should “favor a re solution that is least unsettling and disruptive to the rule of law in Michigan[.]”).

The pre- Moody rule for practice in our district cour ts was longstanding, widely accepted, and simple. A party who brought suit was re quired to claim damages exceeding or not exceeding $25,000 and file in the appropriate court. Evidence was presented, verdicts were rendered, and damages awarded. If those damages exceeded $25,000, the district judge simply lowered the award to $25,000. This rule was perf ectly sustainable, well-known to attorneys, functioned for decades, and, as discussed, was not inc onsistent with the law. “This is the essence of the rule of law: to know in advance what the rules of society are.” Robinson v Detroit , 462 Mich 439, 467; 613 NW2d 307 (2000). Post- Moody , both the parties and trial judges will be unclear as to what the rules are at most point s during the litigation and, indeed, often not until after damages have been assessed. This is an impractical, needlessly complicated, and legally unsupported outcome.

V. CONCLUSION

For the reasons discusse d above, I conclude that Moody was wrongly decided on both legal and practical grounds and should be ove rruled. Pursuant to MCR 7.215(J)(1), I must
follow Moody despite my disagreement with it. Th is would normally lead me to request a special conflict panel pursuant to MCR 7.215(J)(2). However, because the Supreme Court has granted leave to appeal in Moody , I believe such a requestwould be inappropriate.

/s/ Douglas B. Shapiro

5 Presumably, attempting to obtain the most fa vorable forum for a client’s case could be considered part of an attorney’s duty to zealou sly represent his client. However, that ethical
debate is not at issue here.