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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**

COUNTY OF INGHAM, COUNTY OF JACKSON, and COUNTY OF CALHOUN,

Plaintiffs

- Appellants, FOR PUBLICATION October 10, 2017

9:05 a.m.

v No. 334077 Ingham Circuit Court

MICHIGAN COUNTY ROAD COMMISSION

SELF

- INSURANCE POOL, LC No. 15

- 000432

- NZ

Defendant

- Appellee.

Before: T ALBOT

, C .J., and O’C ONNELL and O’B RIEN , JJ.

O’C ONNELL, J.

Plaintiffs, Ingham County, Jackson County, and Calhoun County (collectively, “the counties”) , appeal as of right the trial court’s order granting summary disposition in favor of defendant, Michigan County Road Commission Self

- Insurance Pool (“Pool”) , under MCR 2.116(I)(2) (opposing party, rather than moving party, e ntitled to judgment)

. Because we agree

with the counties that they are successors in interest to their respective counties’ former road

co m missions , we reverse and remand.

I. FACTUAL AND PROC EDURAL BACKGROUND

A Declaration of Trust created the Pool in April 1984. The Pool’ s by laws limit membership to county road commissions located in the S tate of Michigan and require each member to sign an inter

- local agreement. The appointed road commissions for Ingham County, Jackson County, and Calhoun County joined the Pool soon after its formation

.

Members of the Pool made annual premium contributions to cover the payment of claims

and the Pool’s operating and administrative expenses. The Pool’s bylaws and the inter

- local

agreement s p ermi t t ed the refund o f surplus funds more than one year after payment of a

member ’s premium contribution. The counties alleged that the Pool had a longstanding practice of refunding excess contributions to members out of unused reserves in proportion to premiums paid , typical ly calculated and refunded several years later

.

In February 2012, the Legislature amended MCL 224. 6 to permit transfer of “the powers, duties and functions that are otherwise provided by law for an appointed board of county road

commissioners .

. . to the county board of commissioners by resolution as allowed under section- 2

- 11 of 1851 PA 156, MCL 46.11.” 2012 PA 14 . At the same time, the Legislature amended

MCL 46.11 to give a county board of commissioners the authority to pass a resolution dissol ving an appointed road commission and transferring its “powers, duties, and functions” to the county

board of commissioners. 2012 PA 15

. Pursuant to these amendments, the Board s of Commissioners of Ingham County, Jackson County, and Calhoun County adopte d resolutions to
dissolve their county road commission s and take over their role s

.

Ingham County adopted the dissolution resolution on April 24, 2012, effective June 1,

2012. About two weeks before adopting the resolution , Ingham County paid its contri bution to the Pool for the fiscal year beginning April 1, 2012 , apparently with the understanding that the

Pool intended to amend its rules to permit the county successors to the dissolved road

commissions to participate in the Pool

. Ingham County maintai ned that it only learned later in May that the Pool would not allow the county to remain a member of the Pool. On May 31

, 2012, the Ingham County road commission signed two agreements, one to withdraw from the Pool and one to cancel insurance through the Pool , effective June 1, 2012

.

Calhoun County signed a similar withdrawal agreement, effective November 1, 2012. It appears that Jackson County did not sign a withdrawal agreement.

At Ingham County’s request, t he Pool agreed to refund the unused pro

- rata portion of the

former road commission’s annual contribution for the 2012

- 2013 fiscal year

. The Pool declined, however, to refund surplus equity flowing from prior year contributions because of the road commission’s withdrawal from membership.

The counties brought a four

- count complaint

. The counties alleged that they were eligible for ten years’ worth of refunds because the Pool was still refunding contributions from 2002 premiums. The Pool refused to issue these refunds to the counties . Con sequently, the

counties maintained

, the Pool’s refusal reflected unconstitutional lending under Const 1963, art 9, § 18, extortion, conversion, and breach of contract. The Pool denied the counties’ allegations and disputed their claims

.

The counties fi led a partial motion for summary disposition as to liability under MCR 2.116(C)(9) and (10). The Pool filed a cross

- motion for summary disposition under MCR 2.116(I)(2). The trial court granted summary disposition under MCR 2.116(I)(2) in favor of the

Po ol , rejecting all of the counties’ arguments.

II. STANDARD OF REV IEW

This Court reviews de novo a trial court’s decision to grant or deny a motion for summary disposition. Village of Dimondale v Grable , 240 Mich App 553, 563 ; 618 NW2d 23 (2000)

. We also review de novo legal q uestions, In re Jude , 228 Mich App 667, 670; 578 NW2d 704 (1998), including issues of statutory interpretation

, Slater v Ann Arbor Public Schools Bd of

Ed , 250 Mich Ap p 419, 426; 648 NW2d 205 (2002) , and contract interpretation, Rossow v Brentwood Farms Dev, Inc , 251 Mich App 652, 658; 651 NW2d 458 (2002)

.

Summary disposition under MCR 2.116(C)(9) is appropriate if a defendant fails to mount a valid defense and no factual development would defeat the plaintiff’s claim. Village of

Dimondale , 240 Mich App at 564. A motion for summary disposition under MCR 2.116(C)(9)- 3

- “tests the sufficiency of the defendant’s pleadings,” and t he “trial court must accept as true all

well

- pleaded allegations .

. . .” Slater , 250 Mich Ap p at 425

. To grant summary disposition under MCR 2.116(C)(9), t he trial court can only consider the pleadings, including complaints, answers, and replies, but not the motion for summary disposition itself. Village of Dimondale

, 240 Mi ch App at 565; MCR 2.110(A).

Summary disposition is proper if there is no genuine issue of material fact. MCR 2.116(C)(10). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Spiek v Mich Dep’t of Transp , 456 Mich 331, 337; 572 NW2d 201 (1998). This Court considers the pleadings and the evidence in the light most favorable to the nonmoving party. Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999).

Finally, a trial court properly grants summary disposition to the opposing party under MCR 2.116(I)(2) if it determines that th e opposing party, “ rather than the moving party, is entitled to judgment .” Sharper Image Corp v Dep’t of Treasury , 216 Mich Ap p 698, 701; 550 NW2d 596 (1996)

.

III. ANALYSIS

A. SUCCESSORS IN IN TEREST

MCL 224.1 permits a county to put to a vote the question of adopting a county road
system. When a county has elected to adopt the county road system, the county is required to

elect a board of county road commissioners, subject to four excep tions. MCL 224

. 6 (1). The first exception permits the county board of commissioners to appoint a road commission, instead of holding an election, if the county “ contains all or part of 12 surveyed townships

. . . . ” MCL 224.6(4). Th e second exception permits charter counties with a population of 750,000 or more to reorganize the powers and duties of a board of county road commissioners by amending the county charter. MCL 224.6(5). The third exception

— at issue in this case

— permits a county
board of commissioners to dissolve an appointed board of county road commission ers and transfer its powers, duties and functions to the county board of commissioners. MCL 224.6(7). The fourth and final exception , similar to the third exception but for a county road commission that was elected, permits an election on the question of dissolution of the county road commission and transfer of its role to the county board of commissioners. MCL 224.6(8).

When the Board s of Commissioners of Ingham County, Jackson County, and Calhoun County dissolved the ir counties’ road commissions pursuant to MCL 46.11(s) and 224.6(7), the powers, duties, and functions of the dissolved county road commissions passed to the respective

counties’ b oards of c ommissione rs. The parties dispute the meaning of the word “dissolved” in MCL 46.11(s) and 224.6(7) . The counties argue that the county boards of commissioners absorbed the rights and interests of the road commissions. The Pool counters that the road

commissions c eased to exist when the counties dissolved them, so the counties could not absorb their powers, duties, and functions. The trial court agreed with the Pool, ruling that the counties

were not successors in interest to their former road commissions because the statute ’s reference

to dissolution signified the end of the road commissions’ existence.- 4

- We disagree with the trial court

. Reading MCL 224.6 as a whole shows that a county that has adopted a county road system must have a board of county road commi ssioners. The general rule in MCL 224.6 (1) and its four exceptions make clear that a county that has adopted the county road system must have a road commission that is elected, MCL 224.6 (1), appointed,

MCL 224.6 (4), reorganized by amendment to a county ch arter, MCL 224.6 (5), or dissolved for its role to be transferred to the county board of commissioners

, MCL 224.6 (7) and (8)

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Therefore, when a county dissolves its road commission, the county board of commissioners

becomes the successor in interest to th e former road commission

.

The Pool argues that the counties are not successors in interest to their dissolved road commissions because the statute provides for the transfer of only the “powers, duties, and functions” of the former road commissions but not their property rights or i nterests. The Pool

contends that b ecause the counties have only the powers expressly authorized by statute, the dissolved road commissions’ property rights and interests did not transfer to the counties. We reject this stilted reading of the statute

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Counties derive their authority from the Michigan Constitution and state statutes. Mich Muni Liability and Prop Pool v Muskegon Co Bd of Co Rd Comm’rs , 235 Mich App 183, 190 ; 597 NW2d 187 (1999). Local governments have only those powers expressly conferr ed by the state Constitution or by statute and implicit authority to implement their express powers. Id

. at

19 0

- 19 1

.

Pertinent to the Pool’s argument, road commissions have the authority to hold title or an interest in land and to sell or convey land t hat is not part of or necessary “for a public street, highway, or park.” MCL 224.9(3). A typical county road commission would own a fleet of road maintenance vehicles, such as snowplows and salt trucks, in addition to a garage facility to house

those veh icles along with road maintenance materials and supplies , including salt

. Applying the Pool’s argument, these facilities and equipment would become ownerless once a county board of

commissioners dissolved its county’s road commission and assumed its power s.

The counties further disagree with the Pool’s narrow reading of the statute because it would constitutionally impair contracts for road construction and maintenance that involved the

former road commissions

. See US Const, art 1, § 10; Const 193, art 1, § 10. Rather, the counties argue, the former road commissions’ contractual rights devolved upon the respective counties.

We agree. Whenever possible, courts must interpret a statute to avoid the conclusion that

it is unconstitutional or raises dou bts about its constitutionality. People v Nyx

, 479 Mich 112, 124; 734 NW2d 548 (2007). Similarly, courts must read statutes as a whole. Robinson v City of Lansing , 486 Mich 1, 15; 782 NW2d 171 (2010). A statute that substantially impairs a contractual relationship is unconstitutional unless the statutory impairment s erves a “legitimate

1 The counties argue that the Legislature provided for the dissolution, not the abolition, of an appointed road commission to allow an elected county board of commissioners to take the place

of an appointed road commission. This argument ignores the distinct provision s for the

dissolution of both types of road commissions, elected or appointed. See MCL 224.6(7) and (8).- 5

- public purpose” and was implemented in a manner “reasonably related to the public purpose.”

Health Care Ass’n Worker s Compensation Fund v Director of the Bureau of Worker’s Compensation, Dep’t of Consumer and Indus Servs , 265 Mich App 236, 241; 694 NW2d 761 (2005). The Pool’s narrow reading of “powers, duties, and functions” would result in the

un constitutional imp airm ent of the former road commissions’ contracts, rendering the statutory provisions permitting dissolution of the road commissions unconstitutional. We avoid this result by interpreting the statutory provisions more comprehensively . Thus, we conclude that the counties became the successors in interest to their former road commissions when they exercised their statutory right t o dissolve the road commissions. As successors in interest, the counties

t ook on all statutory rights and responsibilities given to road commissions.

B. POOL MEMBERSHIP

The parties dispute whether the counties could be members of the Pool for the purpose of determining whether they are eligible for surplus refunds of prior year contributions . The Pool contends that its bylaws on ly permit road commissions to be members, so the counties are not qualified for membership. This Court construe s bylaws using the same rules applied to contract interpretation. Tuscany Gove Ass’n v Peraino , 311 Mich App 389, 393; 875 NW2d 234 (2015).

We begin with the plain language of the bylaws and apply it if it is clear and unambiguous

. Rossow , 251 Mich App at 658.

The Pool’s bylaws limit membership to county road commissions, but the bylaws do not define a county road commission. Instead, the bylaws refer to the statutory authority of county

road commissions. Because we concluded that the counties were successors in interest to their dissolved road commissions as a matter of statutory interpretation, we likewise conclude that th e successor counties are eligible for Pool membership by virtue of the statutory reference to county

road commissions in the Pool’s bylaws

.

Next, the Pool argues that the counties are not entitled to refunds even if deemed

successors in interest becaus e they withdrew from the Pool. We examine the language of the withdrawal agreements to determine their scope. See Rossow , 251 Mich App at 658.

First, t he record contains no evidence that the Jackson County road commission signed a withdrawal agreement, and the Pool agrees that it did not. Thus, the Jackson County road

commission did not withdraw from the Pool. Likewise, Jackson County’s dissolution of its road commission did not automatically result in withdrawal from the Pool. Rather, Jackson County succeeded its dissolved road commission, so Jackson County is eligible for refund s from prior year contributions that its road commission made

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Ingham County ’s and Calhoun County’s road commissions each signed an agreement to
withdraw from the Pool. T hese withdrawal agreements bega n by stating that the counties dissolved their road commissions pursuant to statute. The agreements mad e withdrawal from the Pool effective from the date of dissolution of the road commissions. Further, the agreements

conta in ed a provision limiting their scope to withdrawal of membership without affecting “any other terms or conditions” of the Declaration of Trust, the inter

- local agreement, or the bylaws. The Pool also agreed to administer claims arising from events occurr ing before the date of

dissolution of the road commissions

. Accordingly, r eading the withdrawal agreement s as a- 6

- whole and in light of the limitation on their scope , the withdrawal agreements did not alter eligibility for the refund of surplus premiums from prior year contributions. Having determined that the counties are successors in interest to their former road commissions, we conclude that the counties are entitled to refunds of surplus premiums reflecting their former ro ad

commissions’ prior year contributions through the date listed in each withdrawal agreement

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In conclusion, the trial court erred by granting summary disposition in favor of the Pool

because the counties are successors in interest to their dissolved r oad commissions. As

successors in interest , the counties are eligible for membership in the Pool. Additionally, Jackson County did not sign a withdrawal agreement, and the withdrawal agreements that Ingham County and Jackson County signed did not affect their entitlement to refunds

. Thus

, the

counties are entitled to receive refund s of surplus premiums from prior year contributions made by the former road commissions

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We reverse and remand. We do not retain jurisdiction.

/s/ Peter D. O’Connell

/s / Michael J. Talbot

/s/ Colleen A. O’Brien

2 Accordingly, we do not address the counties’ remaining arguments.