ESTATE OF BRENDON PEARCE v EATON COUNTY ROAD COMMISSION BRUGGER v MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS
Docket No s
. 158069 and 158304

. Argued November 12, 2020 (Calendar No. 1) . Decided June 4 , 2021

. In Docket No. 158069 , the estate of Brendon Pearce filed a negligenc e action in the Eaton Circuit Court against the Eaton County Road Commission and others, arguing, in part, that the commission breached its duty under MCL 691.1402 of the governmental tort liability act (GTLA), MCL 691.1401 et seq ., to maintain the road on which the accident occurred. Lynn Pearce, acting as the personal representative of Brendon’s estate, served notice on the commission fewer than 60 days after Brendon was killed in the accident. The commission moved for summary disposition, arguing t hat the notice was deficient under MCL 224.21 (3) of the County Road Law, MCL 224.1 et seq ., because the estate did not serve the notice on the county clerk . Edward J. Grant, J., on assignment from the State Court Administrative Office, denied the motion. Thereafter, the court, John D. Maurer, J., affirmed the denial for the reasons set forth in Judge Grant’s opinion. The commission appealed, and the estate moved to affirm the trial court’s written opinion, arguing that the notice was sufficient. The Court of Appeals granted the estate’s motion to affirm in an unpublished order, entered October 25, 2016, and the commission sought leave to appeal in the Supreme Court. The Supreme Court denied leave to appeal . 500 Mich 1021 (2017). In the interim , the Court of Appeals issued Streng v Bd of Mackinac Co Rd Comm’rs , 315 Mich App 449 (2016), holding that MCL 224.21(3)

— a provision of the County Road Law that requires notice to the clerk and the board of county ro ad commissioners within 60 days after an injury occurs

— control s the timing and content of presuit notices to a county road commission for injuries cause d by an alleged highway defect, not MCL 691.1404 (1) of the GTLA , which requires presuit notice to a gove rnmental agency within 120 days after the injury occur s
. The commission returned to the trial court and moved for summary disposition, arguing that the estate ’s notice was insufficient under MCL 224.21(3). The parties disputed whether Str eng applied retr oactively and whether MCL 224.21(3), as applied in Streng , or MCL 691.1404(1) governed the estate’s notice

. Judge Maurer denied the c ommission’s motion , conclud ing that Streng did not apply retroactively. The Court of Appeals, O’C ONNELL , P.J., and K. F. K ELLY and R IORDAN , J J., affirmed in part and reversed in part the trial court’s order, concluding that Streng applied retroactively ; that the notice provisions of MCL 224.21 (3) applied to the action ; and that , even though the estate ’s notice was properly f iled within the 60

- day period in MCL 224.21(3), the notice was deficient because the estate did not serve it on the county clerk as required by that statute. 324 Mich App 549 (2018). Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack Justices: Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader
. Reporter of Decisions: Kathryn L. LoomisIn Docket No. 158304, Tim E. Brugger II filed a negligence action in t he Midland Circuit Court against the Midland County Board of Road Commissioners, alleging that he was injured in a motorcycle accident that was caused by a defect in a highway under the jurisdiction of the board and that the board was liable under MCL 691. 1402, the highway exception of the GTLA . Brugger had notified the board of his injuries and the alleged highway defect 110 days after the crash in accordance with the GTLA’s 120

- day presuit

- notice requirement . The board moved for summary disposition, arg uing that under Streng , the County Road Law’s 60

- day presuit

- notice provision applied and the notice was not sufficient. The court, Michael J. Beale, J., denied the board’s motion , concluding that Brugger had correctly filed his notice within 120 days in accordance with MCL 691.1404 (1) . The court reasoned that the 60

- day period set forth in MCL 224.21(3) did not apply because Streng applied prospectively only. The board appealed. In a split decision, th e Court of Appeals, S HAPIRO , P.J., and M. J. K ELLY , J. ( O’B RIEN , J., dissenting), affirmed the trial court, agreeing that Streng applied prospectively only. 324 Mich App 307 (2018)

. The Supreme Court granted the separate applications for leave to appeal filed by the Pearce e state and the Midland County Board of Road Commissioners. 505 Mich 1033 (2020). In an opinion by Chief Justice M C C ORMACK , joined by Justices V IVIANO , B ERNSTEIN , C LEMENT , and C AVANAGH , the Supreme Court held : The Court of Appeals e rred in Streng when it concluded that the presuit

- notice requirements in the County Road Law apply when a plaintiff sues a county road commission under the highway exception to the GTLA . In Brown v Manistee Co Rd Comm , 452 Mich 354 (1996), the Michigan Supreme Court held that the GTLA’s notice provisions control. T hat holding in Brown was never overruled and was binding on the Court of Appeals. Accordingly, Streng ’s holding that the County Road Law’s notice provision s govern in negligence actions against county road co mmissions was overruled. Because the issue was not raised by the parties, the question whether Brown was correctly decided was saved for another day.
1

. MCL 691.1404 (1) of the GTLA provides that as a condition to recover y, a person injured on a defective highway must notify the governmental agency of the injury and the defect within 120 days from the time the injury occurred. In contrast, MCL 224.21(3) provides that a person injured on a defective county road must notify the clerk and the board of county road commissioners of the occurrence within 60 days after the occurrence of the injury.
2 . T o determine whether Streng was correctly decided, it was necessary to consider the caselaw related to presuit

- not ice statutes

. In Brown , the Court held that the GTLA’s 120

- day presuit

- notice requirement controlled negligence actions brought against county road commissions, not the County Road Law’s 60

- day presuit

- notice requirement because there was no rational basis for the County Road Law’s shorter notice pr ovision for action s against a county road commission as opposed to those against other governmental agencies . The Brown Court declined to overrule Hobbs v Dep’t of State Highways , 398 Mich 90 (1976), which required the government to show actual prejudice before a statutorily required presuit

- notice provision was enforced to preclude an action. Thirty years later, in Rowland v Washtenaw Co Rd Comm , 477 Mich 197 (2007), the Court overru led Hobbs and Brown , holding that the GTLA did not contain an actual

prejudice requirement before enforcement of the notice provision, that the earlier cases hadimproperly engrafted that requirement onto the statute, and that a governmental agency did not have to show actual prejudice before the 120

- day notice provision could be enforced. As a result, the Court stated that nothing could be saved from Hobbs and Brown because the analysis in those cases was deeply flawed. In Stre ng , the Court of Appeals he ld that the County Road Law’s 60

- day notice deadline applied to actions involving defects in county roads, not the GTLA’s 120

- day notice deadline , reasoning that because the Rowland Court repudiated Hobbs and Brown , the Court of Appeals was free to addres s whether the GTLA or the County Road Law notice provision applied when a plaintiff was injured on a county road. However, Rowland addressed whether court s should continue to apply the Hobbs actual

- prejudice requirement in negligence cases against the gov ernment. Rowland did not address MCL 224.21(3) or Brown ’s holding that the GTLA’s notice provision governed rather that of the County Road Law; therefore, any statements in the case not related to Hobbs ’s prejudice requirement were nonbinding obiter dicta

. Thus , Rowland did not overrule Brown ’s holding that in actions against a county road commission, the GTLA’s notice provision governed rather than the County Road Law’ s . In Streng , t he Court of Appeals was required to follow Brown ’s conclusion that the GTLA notice provision applied to actions brought aga inst county road commissions; the Streng Court’s conclusion o therwise was erroneous and was overruled . Because Streng was overruled, it was unnecessary in this case to determine whether Streng applied retroactively or prospectively. Judgments of the Court of Appeals vacated and cases remanded to the respective trial courts.
Justice Z AHRA , dissenting, disagreed with the majority’s conclusion that Rowland did not overrule all aspects of Brow n
. Rowland clearly stated that nothing could be saved from Hobbs and Brown , expressly conveying that all aspects of Brown were overruled , including application of the GTLA’s notice provisions to actions brought against county road commissions ; the portion of Rowland applying the GTLA notice provision was not obiter dictum. Instead, Brown ’s holding as to the validity of the County Road Law’s 60

- day notice provision was tied up with the Court’s conclusion in Carver v McKernan , 390 Mich 96 (1973), that actua l prejudice must be shown before notice requirements could be enforced. Rowland repudiated both Brown and Carver , holding that notice requirements had to be enf orced as written, and that holding applied to the entirety of Brown

. As Brown is no longer goo d law, the Court of Appeals in Streng was permitted to apply MCL 224.21.
Justice W ELCH did not participate in the disposition of th ese case s because the Court considered them before she assumed office.FILED June 4, 2021

S T A T E O F M I C H I G A N
SUPREME COURT

ESTATE OF BRENDON PEARCE , by LYNN PEARCE, Personal Representative , Plaintiff

- Appell ant ,

v No. 158069
EATON COUNTY ROAD COMMISSION , Defendant

- Appell ee ,

and
ESTATE OF MELISSA SUE MUSSER , by LAWRENCE BENTON, Personal Representative, and PATRICIA JANE MUSSER,
Defendant s
. Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack Justices: Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch2 TIM EDWARD BRUGGER II , Plaintiff

- Appell ee ,

v No. 158304
MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS , Defendant

- Appell ant

.

BEFORE THE ENTIRE BENCH (except W ELCH , J.)
M C C ORMACK , C. J

. In these consolidated case s , we consider whether the Court of Appeals correctly
decided Streng v Bd of Mackinac Co Rd Comm ’ rs , 315 Mic h App 449; 890 NW2d 680 (2016) , and, if so, whether it should apply retroactive ly to all cases pending on appeal. In Streng , the Court of Appeals concluded that the pre suit

- notice requirements in the County Road Law, MCL 22 4 .1 et seq

. , apply when a plaintiff sues a county road commission under
the “ highway exception ” to the g overnmental t ort liability act (GTLA) , MCL 691.1401 et
seq
. We hold that Streng was wrongly decided b ecause in Brown v Manistee Co Rd Comm , 452 Mich 354; 550 NW2 d 215 (1996 ) , this Court decided that the GTLA ’ s notice provisions control , and we have not overruled that holding.
The Streng panel erred by failing to follow Brown

. We therefore overrule Streng , vacate the decisions of the Court of Appeals , and remand these cases to the respective circuit courts for further proceedings consistent with this opinion

.3 I. FACTS AND PROCEDURAL HISTORY One hundred and ten days after p laintiff Tim Brugger was injur ed in an automobile accident, h e serve d on the Midla nd County Board of Road Commissioners a notice of his
intent to sue. Fewer than 60 days after Brendon Pearce was killed in an automobile
accident , his mother, Lynn Pearce, acting as the personal representative of Brendon’s
estate, served on the Eaton County Road Commission a “ Notice to Eaton County of Fatal Injuries due to Defective Highway

. ” Both Brugger ’ s and Pearce ’ s notices complied with
the GTLA , which requires people making claims under the highway exception to give notice of the alleged injury and defective highway within 120 days of the injury

. MCL 691.1404(1). But neither notice wa s adequate under the County Road Law, because Brugger ’ s notice was filed more than 60 days after the accident and Pearce did not serve her notice on the Eaton Coun ty Clerk. See MCL 224.21 (3) (providing that “ a board of county road commissioners is not liable for damages

. . . unless the person serves or causes to be served within 60 days after the occurrence of the injury a notice in writing upon the clerk and upon the chairperson of the board of county road commissioners ” ).
While b oth cases proceeded in the trial court s , the Court of Appeals issued its
decision in Streng

. T he Court of Appeals concluded that the County Road Law ’ s 60

- day provision governed the timing and content of a presuit notice directed to a county road
commission rather than the GTLA ’ s 120

- day provision

. Streng , 315 Mich App at 462

- 463. Following that decision, the Midland County Road Commission relied on Streng to

move for su mmary disposition in Brugger , arguing that Brugger ’ s presuit notice was ineffective because it was not served within 60 days of Brugger’s injury

. The trial court denied the motion, concluding that Streng should apply prospectively only. In turn, t he4 Eaton County Road Commission moved for summary disposition in Pearce , arguing that
Pearce ’ s pre suit notice was insufficient because it was not served on the county clerk

. The
trial court denied that motion and , like the trial court in Brugger , concluded t hat Streng applied prospectively only. Both defendants appealed in the Court of Appeals the trial

courts ’ denial of their motions for summary disposition

. The Brugger panel held that Streng applied prospectively only. Brugger v Midland Co Bd of Rd Comm ’ r s , 324 Mich App 307, 316; 920 NW2d 388 (2018)

. But the Pearce panel held that Streng applied retroactively to all cases. Pearce Estate v Eaton Co Rd
Comm , 324 Mich App 549, 553; 922 NW2d 391 (2018) . Both opinions were published. This Court granted leave to re solve the conflict

. Besides asking whether Streng applied retroactively , we asked the parties to brief whether Streng was correctly decided

. See Brugger v Midland Co Bd of Rd Comm ’ r s , 505 Mich 1033 ( 2020)

. We review these questions de novo. People v Maxson , 482 Mich 385, 387; 759 NW2d 817 (2008) ( whether

a court ’ s ruling applies retroactively is a question reviewed de novo); Page v Klein Tools,
Inc , 461 Mich 703, 709; 610 NW2d 900 (2000) ( questions of law are reviewed de novo )

. II. THE EVOLUT ION OF MICHIGAN ’S PRESUIT

- NOTICE DOCTRINE

T his Court ’ s presuit

- notice jurisprudence is the foundation for determin ing whether the Court of Appeals correctly decided Streng

. It is against this backdrop that the Streng panel conclud ed that it was free to decide which notice provision applied

. A. HOBBS We begin with Hobbs v Dep ’ t of State Highways , 398 Mich 90 ; 247 NW2d 754 (1976)

. There, the plaintiff failed to file her presuit notice within 120 days as required by5 the GTLA

. Id

. at 94. In deciding whether the plaintiff ’ s claim w as barred, t he Hobbs Cou rt relied on two cases: Reich v State Hwy Dep ’ t , 386 Mich 617 ; 194 NW2d 700 (1972), and
Carver v McKernan , 390 Mich 96 ; 211 NW2d 24 (1973) . I n Reich , the Court held that an earlier version of the GTLA ’ s notice provision violated equal

- protection guarantees by treating plaintiffs injured by the government differently from plaintiffs injured by private
tortfeasors. Reich , 386 Mich at 623. But Carver

— a case involving the Motor Vehicle
Accident Claims Ac t

— held that a presuit

- notice requirement for claims against the government could be constitutional as long as the requirement served a legitimate purpose.
Carver , 390 Mich at 100. Carver observed that preventing prejudice to the government
can be a legit imate purpose and held that a claim against the Motor Vehicle Accident
Claims Fund could be dismissed on notice grounds only if the government showed that it

was prejudice d by the plaintiff ’ s in adequate notice. Id

. The Hobbs Court found Carver ’ s rationale to be “ equally applicable ” to cases brought under the GTLA and concluded that actual prejudice to the government because
of an untimely notice was “ the only legitimate purpose ” the Court could identify to uphold
the GTLA ’ s notice requirement. Hobbs , 398 Mich at 96. Thus, Hobbs held, an untimely
notice would not bar a claim under the GTLA absent a showing of actual prejudice

. Id

. B. BROWN
T wenty years later, this Court revisit ed Hobbs in Brown v Manistee Co R d Comm , 452 Mich 354 ; 550 NW2d 215 (1996 )

. In Brown , t he plaintiff alleged that he was injured on a county road when he tried to avoid a pothole. Sixty

- one days after the accident, the Manistee County Road Commission resurfaced the road , including the alleged pothole.6 Without filing a p resuit notice, the plaintiff sued the road commission almost two years
later. The road commission moved for summary disposition , arguing that the plaintiff
violated the County Road Law ’ s 60

- day notice requirement set forth in MCL 224.21(3)

. Id . at 357. The trial court agreed, holding that MCL 224.21(3) governed and that the road commission was prejudiced by the plaintiff’s failure to file a timely notice. Id

. This

seem ed to be the type of prejudice the Hobbs Court envisioned; if the plaintiff had notif ied the road commission of his intent to sue during the 60

- day period, the commission would have been able to preserve evidence about the pothole before it resurfaced the road.
The Court of Appeals affirmed

. Brown v Manistee Co Rd Comm , 204 Mich App
574 ; 516 NW2d 121 (1994). F irst, the majority held that the County Road Law ’ s notice provision controlled because it exclusively governed boards of county road commissioners.
Id

. at 577. Next, the majority , citing Hobbs , held that the road commission had been prejudice d by the lack of notice and thus the plaintiff’s case had been properly dismissed

. Id

. at 577

- 578.
This Court g ranted l eave to appeal to decide these question s : 1. Whether the plaintiff’s action wa s governed by the County Road Law ’ s 60

- day
notic e provision , MCL 224.21(3) , or the GTLA ’ s 120

- day notice provision , MCL
691.1404 (1);
2. Whether Hobbs ’ s rule requiring a showing of prejudice should be overruled; and
3. If Hobbs remained good law, whether there was a showing of prejudice in this

case. Brown , 452 Mich at 356

.7 To the first question , Brown held that the GTLA ’ s 12 0

- day notice provision applie s in a negligence action against a county road commission. Id

. Because the Legislature
inten ded “ to provide uniform liability and immunity to both state and local governmental agencies , ” the Brown C ourt believed that having two distinct notice perio ds in two statutes

was suspect

. Id . at 361 (quotation marks and citation omitted)

. “ By providing different notice periods, ” the Court explained, “ the legislation divides injured persons into two classes: those injured on a defective road controlled by a county road commission and those injured on a defective road controlled by other governmental agencies. ” Id

. The Court a nalyz ed the two statutes under rational

- basis review and cited Hobbs to acknowledge that the only purpose it articulated for a notice requirement was to prevent prejudice to the government. Id

. at 362. The Court concluded that it was “ unable to perceive a rational basis for the county road commission statute to mandate notice of the claim within sixty days. ” Id . at 363. “ Accordingly, ” the Court held, “ the distinct sixty

day notice provision required for claims against a county road commission is
unconstitutional. ” Id . at 363

- 364. But t he Court also held that the GTLA ’ s 120

- day notice provision was reasonable and, therefore, constitutional because it “provide[d] a claimant sufficient time to serve the governmental agency with notice of an alleged i njury and correspond ing defect

. ” Id . at 364. Finally, Brown declined to overrule Hobbs and
reaffirmed its requirement that the government show actual prejudice before a statutory presuit

- noti ce provision would be enforced

. Id . at 365.
Justice R ILEY dissented

. But while s he would have overruled Hobbs ’ s prejudice requirement because she believed the Court lacked the power to engraft it onto the GTLA ,8 she agreed “ with the majority ’ s conclusion that plaintiff must comply with the 120

- day notice requirement [

. ] ” Brown , 452 Mich at 369 ( R ILEY , J., dissenting).
C. ROWLAND
In Rowland v Washtenaw Co Rd Comm , 477 Mich 197; 731 NW2d 41 (2007), t his Court once again grant ed leave to appeal to consider overruling Hobbs . There , the plaintiff
served the county road commission with no tice of her cla im 140 days after her accident.
The trial court denied the road commission ’ s motion for summary disposition, finding that there was a genuine issue of material fact about whether the road commission was prejudiced by the untimely notice , and t he Cou rt of Appeals affirmed

. Rowland v Washtenaw Co Rd Com m , unpublished per curiam opinion of the Court of Appeals, issued December 13, 2005 (Docket No. 253210)

. Th is Court ’ s grant order made clear that it had Hobbs in its sights; it directed the parties to brief whether Hobbs and Brown should be overruled and, if so, whether a decision doing so would apply retroactively. Rowland v Washtenaw Co Rd Comm , 474 Mich 1099 , 1099

- 1100 (2006)

. We answered both questions yes

. Rowland , 477 Mich at 200. Because we held that MCL 691.1404(1) should be enforced as writte n , we overruled Hobbs ’ s and Brown ’s prejudice engraftment

. Id

. We concluded that Hobbs and Brown were “ wrongly decided and poorly reasoned ” because they presumed that governmental notice re quirements were unconstitutional if the government was not prejudiced by an untimely notice. Id

. at 210 (capitalization omitted) . This reasoning, we explained, was indefensible and could not be
saved by the Hobbs Court ’ s belief that the “ ‘ only legitimate purpose ’ ” of the GTLA ’ s9 notice provision was to protect the government from being prejudiced

. Id

. , quoting Hobbs , 398 Mich at 96.
Rowland held that the GTLA ’ s notice requirement was constitutional and
enforceable. Rowland , 477 Mich at 213. A fter describing Hobbs and Brown as remarkable examples of “ judicial usurpation of legislative power , ” the Court announced that “ [n] othing
can be saved from Hobbs and Brown because the analysi s they employ is deeply flawed. ” Id

. at 213

- 214. As a result , we held that “ MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect. Accordingly, we conclude that it must be
enforced as written

. ” Id

. at 219. That meant that a plaintiff suing a county road commission
had to serve a no tice within 120 days that identified the location and nature of the highway defect, the injury suffered, and the known witnesses to the accident. Id

. The GTLA itself does not require that the government demonstrate prejudice to enforce its notice provisi on. Id

. Thus, we explained, “ the notice provision is not satisfied if notice is served more than 120 days after the accident even if there is no prejudice

. ” Id

. D. STRENG Nine years after Rowland , the Court of Appeals was asked to decide whether the County Road Law or the GTLA control led presuit notices in a negligence action filed
ag ainst a county road commission

. Streng , 315 Mich App 449

. The Streng panel approached the question as if it were working off a blank slate. It explained that Rowland

“ repudiated the entirety of ” Hobbs and Brown and that Brown was the only precedential
case that “ substantively considered the potential conflicts between [ the County Road Law ] and the GTLA

. ” Id

. at 459

- 460. The panel acknowledge d that Rowland did not addr ess10 the County Road Law , noting correctly that Rowland “ expressed neither approval nor disapproval ” with the application in Hobbs and Brown of the GTLA ’ s notice requirement
and , instead , “ simply focused on the lack of statutory language in MCL 691.1404 allowing exceptions to the time limit. ” Id

. at 459

- 460.
The Streng panel conduct ed its own analysis about which notice provision would
govern and held that the County Road Law ’ s 60

- day notice deadline applied. Id

. at 463.

“ In sum, ” the panel concluded, “ appellate courts appear to have overlooked the time limit, substantive requirements, and service procedures required by MCL 224.21(3) when the responsible bo dy is a county road commission. ” Id

. III. ANALYSIS Streng ’ s fun damental flaw wa s its conclusion that Rowland had done away with
Brown in its entirety. This error is understandable given Rowland ’ s declaration that

“ [ n ] othing can be saved from Hobbs and Brown because the analysis they employ is deeply
flawed. ” Rowland , 477 Mich at 21 4

. But “ [t] he Co urt of Appeals is bound to follow decisions by this Court except where
those decisions have clearly been overruled or superseded

. . . . ” Associated Builders & Contractors v Lansing , 499 Mich 177, 191 ; 880 NW2d 765 (2016). Even after a decision
has been overruled in part, its holdings left untouched remain binding precedent. In fact,

courts often cite decisions for still valid legal principles even though the decision has been
overruled in part on other grounds . See, e.g., McDonald v Farm Bureau Ins Co , 480 Mich 191, 203 ; 747 NW2d 811 (200 8) (citing Mich Millers Mut Ins Co v Bronson Plating Co , 445 Mich 558, 568 ; 519 NW2d 864 (1994), overruled in part on other grounds by Wilkie v11 Auto

- Owners Ins Co , 469 Mich 41 , 63 (2003), for the proposition that “ legal action ” is synonymous with “ lawsuit ” ). Despite Rowland ’ s broad swipe at Brown , it did not clearly
overrule Brown ’ s holding on the competing notice provisions of the County Road Law and
the GTLA

. And whether the Rowland Court would have overruled this holding, had it been properly presented with the opportunity to do so, is neither here nor there.
T he question Rowland answered was whether courts should continue to apply
Hobbs ’ s prejudice requirement in negligence cases against the government. The grant order did not mention the County Road Law at all, even though the case concerned a county road accident; instead, the Court asked the parties to brief whether Hobbs ’ s prejudice requirement should be overruled

. Rowland , 474 Mich at 1099

- 1100

. And the opening
sentence of the opinion confirms the scope of the Court ’ s work : “ The issue in this case is whether a notice provision applicable to the defective highway exception to governmental immunity, MCL 691.1404(1), should be enforced as written. ” Rowland , 477 Mich at 200. Rowland ’ s one
- sentence summary of Brown focused exclusively on Brown ’ s decision not
to overrule Hobbs. Id

. at 209. Not surprisingly therefore, Rowland never addressed MCL 224.21(3) or Brown ’ s ho l d ing that the GTLA ’ s notice provision governed rather than the County Road Law ’ s
. Rowland ’ s reasoning for overruling Brown is more evidence that it did not displace
Brown ’ s holding that the GTLA ’ s notice provision applied : “ The simple fact is that Hobbs
and Brown we re wrong because they were built on an argument that governmental immunity notice statutes are unconstitutional or at least sometimes unconstitutional if the government was not prejudiced. ” Id

. at 2 10. The Court considered and overrul ed only
Brown ’ s holding affirming Hobbs , and therefore necessarily left Brown ’ s first holding

—12 that the GTLA governed because the County Road Law ’ s notice provision was unconstitutional

— in place.
Because the issue before the Rowland Court was whether to overrule Hobbs ’ s prejudice requirement, any statements Rowland made that were unnecessary to decide that question were nonbinding obiter dicta. Unlike holding s , “ [o]biter dicta are not binding precedent. Instead, they are statements that are unnecessary to determi ne the case at hand and, thus, lac k the force of an adjudication. ” People v Peltola , 489 Mich 174, 190 n 32; 803 NW2d 140 (2011) (quotation marks and citation omitted). Weighing in on the validity
of Brown ’ s first holding was unnecessary for the Rowland Court to dispose of Hobbs ’ s prejudice engraftment. The only reason Brown was at issue at all in Rowland was becaus e it reaffirmed Hobbs

. Thus , Rowland ’ s declaration that “ [n] othing can be saved from Hobbs
and Brown because the analys is they employ is deeply flawed ” is nonbinding o biter dictum. Rowland , 477 Mich at 214.
And there is more evidence that Rowland did not wipe Brown ’s slate clean.
Rowland involved an action against a county road commission , and it held that the GTLA’s
120

- day notice provision applied. It concluded tha t “ notice of the injuries sustained and of the highway defect must be served on the governmental agency within 120 days of the injury

. ” Id

. at 200 (emphasis added). Throughout the opinion , the Rowland Court emphasize d that the GLTA ’s notice period control led . For example, the Rowland majority
observed that “ in Brown the road commission was prejudiced because it, unaware that there had been an accident, repaved the road where the accident happened before the 120

- day notice period expired. ” Id

. at 2 19 n 16. And i t called the GTLA the “ controlling legal authority

. ” Id

. at 222. Finally, Rowland , 477 Mich at 210

- 211 , quoted Justice R ILEY ’ s13 dissent in Brown approvingly without challenging her explicit agreement “ with the majority ’ s conclusion that plaintiff must comply with the 120

- day notice requirement , ”
Brown , 452 Mich at 369 ( R ILEY , J., dissenting). Any reader (with or without a law degree) would have to presume that the GTLA’s 120

- day notice requirement continued to control.
T he Streng panel should have followed this Court ’ s decision in Brown and applied
the GTLA ’ s presuit requirements, not the requirements provided in the County Road Law ; it could not decide this question for itself. Brown ’ s holding on that point survived this
Court ’ s decision in Rowland , and it was therefore binding on the Streng panel. Whether
Brown correctly decided this question is for this C ourt to decide

. But because it was not raised by the parties here, we save it for another day.
IV. CONCLUSION
We overrule Stre ng ’ s holding that the County Road Law ’ s notice provision governs in negligence actions against county road commission s rather than the GTLA ’ s
. Th erefore , we need not address the matt er of Streng ’ s retroactive application. We vacate the decisions
of the Court of Appeals and remand these cases to the respective circuit co urts for further proceedings.

Bridget M. McCormack David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. CavanaghS T A T E O F M I C H I G A N
SUPREME COURT

ESTATE OF BRENDON PEARCE , by LYNN PEARCE, Personal Representative , Plaintiff

- Appell ant ,

v No. 158069
EATON COUNTY ROAD COMMISSION , Defendant

- Appell ee , and
ESTATE OF MELISSA SUE MUSSER , by LAWRENCE BENTON, Personal Representative, and PATRICIA JANE MUSSER,
Defendants.

TIM EDWARD BRUGGER II , Plaintiff

- Appell ee ,

v No. 158304
MIDLAND COUNTY BOARD OF ROAD COMMISSIONERS , Defendant

- Appell ant

.2 Z AHRA , J. ( dissenting ). I respectfully dissent. I t should not be that one needs a law degree to understand the opinions of this Court

. In Rowland v Washtenaw Co Rd Comm , 1 this Court expressly overruled its prior decision in Brown v Manistee Co Rd Comm

. 2 In doing so, the Court
held that “ [n]othing can be saved from

. . . Brown because the analysis [it] employ[s] is deeply flawed. ” 3 This holding is clear, concise, and unambiguous. I surmise th at virtually all people of ordinary intelligence who read these words would conclude that nothing from
the Brown opinion remains good law. Yet today the majority concludes that w hen this Court proclaimed that “nothing can be saved from

. . . Brown ,” it simply didn’t mean it. Calling this clear, concise , and unambiguous holding obiter dictum, the Court today proclaims that aspects of Brown have somehow survived

. Because the Court

“ save[s]

. . . for another day ” its view of whether Brown was rightly deci ded , I offer no opinion on it s correctness . B ut on the question of whether any aspect of Brown is still good law, Rowland resoundingly answers that it is not. Michigan has two presuit notice statutes that , by their terms, apply to accidents involving alle gedly defective highways maintained by a county government. The governmental tort liability act (GTLA), MCL 691.1401 et seq ., requires notice to any governmental defendant within 120 days of an injury, MCL 691.1404(1), while the C ounty
R oad L aw , MCL 224.1 et seq ., requires notice to a county road commission within 60 days
after the occurrence of the injury involving a highway within its jurisdiction , MCL

1 Rowland v Washtenaw Co Rd Comm , 477 Mich 197; 731 NW2d 41 (2007).

2 Brown v Manistee Co Rd Comm , 452 Mich 354; 550 NW2d 215 (1996).

3 Rowland , 477 Mich at 214.3 224.21(3). This Court ’ s Brown opi nion set forth two pertinent holdings. F irst, the Court
h eld that there was no rational basis to require that county road commissions receive notice within 60 days if 120 days is adequate notice for other units of government . S econd, the
Court reaffirmed past precedent holding that the only legitimate purpose f or presuit notice requirements of the sort at issue in Brown i s to prevent prejudice to the defendant, meaning
that the requirements are unenforceable unless the government can show it was prejudiced by the failure to provide timely notice . The majority h olds that Rowland only overruled this second holding, leaving the first holding intact . Thus, the majority reasons, the Court of Appeals was not free to deviate from that aspect of Brown in Streng v Bd of Mackinac Co Rd Comm ’ rs
. 4 But th e majority’s holding obscures the fact that both of Brown ’ s holdings were premised on the same skepticism toward notice requirements that Rowland
discarded. Rowland provided a detailed “history of this Court’ s c as elaw involving notice

statutes ” 5 that illustrated the common themes in both of Brown ’s holdings

. O ver time , this Court moved from enforcing governmental

- immunity notice provisions as plainly written, to engrafting upon such statutes legal analysis unsupported by a traditional understanding of Michigan’s principles of constitutional interpretation and statutory construction.
Rowland returned the Court to its original understanding that governmental

- immunity notice provisions should be enforced as plainly written

.

4 Streng v Bd of Mackinac Co Rd Comm’rs , 315 Mich App 449; 890 NW2d 680 (2016).

5 Rowland , 477 Mich at 205

- 210 ( capitalization omitted)

.4 “ F rom its earliest years this Court, evid ently detecting no constitutional impediments,

. . . enforced governmental immunity mandatory notice provisions according to their plain language.” 6 This began to change in 1970, when in Grubaugh v St Johns , 7 this Court addressed whether the 60

- day notice requirement of § 8 of C hapter 22 of the general highway statute 8 (the predecessor of the GTLA’s highway exception), was constitutionally infirm as applied to incapacitated plaintiffs. 9 Grubaugh reasoned that “[t]o take away [a n incapacitated plaintiff’s] cause of action on the sixty

- first day because he could not meet the notice provisions of the act would deprive him of a vested right of action without due process of law.” 10 Therefore, this Court held “that the notice provisions of § 8 of chapter 22 of t he general highway statute are constitutionally void as depriving claimant of due process of law.” 11 Two years later in Reich v State Hwy Dep’t , 12 this Court determined that the 60

- day provision newly enacted in the GTLA was unconstitutional as applied to minors. Relying
on the reasoning in Grubaugh , t h e Court held that the notice requirement violated the due

process rights of minors

. Further, th e Court held that the notice provision violated the

6 Id

. at 205

.
7 Grubaugh v St Johns , 384 Mich 165 ; 180 NW2d 778 (1970)

. 8 1948 CL 242.8.

9 Id

. at 1 67.

10 Id

. at 175.

11 Id

. at 176.

12 Reich v State Hwy Dep’t , 386 Mich 617; 194 NW2d 700 (1972).5 plaintiffs’ right to equal protection of the laws because it treated a class of plaintiffs who filed a negligence claim against the government differently than it treated plaintiffs filing
a cause of action against a private tortfea sor
. 13 Reich further explained that the “diverse

treatment o f members of a class along the lines of governmental or private tortfeasors bears no reasonable relationship under today ’ s circumstances to the recognized purpose of the

act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection. ” 14 Th is Court in Rowland quote d Justice B RENNAN ’s dissent in Reich , in which
he ident ifie d his concerns with the majority’s equal

- protection analysis: The legislature has declared governmental immunity from tort liability. The legislature has provided specific exceptions to that standard. The legislature has imposed specific conditions u pon the exceptional instances of governmental liability. The legislature has the power to make these laws. This Court far exceeds its proper function when it declares this enactment unfair and unenforceable. [ 15 ] Although the statute at issue in Reich was the GTLA , in Crook v Patterson , 16 the Court of Appeals recognized that Reich ’s reasoning applied with equal force to the C ounty
R oad L aw, holding that the 60

- day notice provision in MCL 224.21(3) was also
unconstitutional.

13 Id

. at 623

- 624

.
14 Id

. at 623.

15 Id

. at 626 ( B RENNAN , J., dissenting) ; see Rowland , 477 Mich at 207 (quoting Reich , 386 Mich at 626 ( B RENNAN , J., dissenting)

. 16 Crook v Patterson , 42 Mich App 241 , 241 ; 201 NW2d 676 (1972).6 Thereafter, the GTLA was amended to require notice within 120 days, rather than
within 60, 17 but the C ounty R oad L aw was not so amended

. 18 Further, with the increased notice period, the Court apparently thought better of a per se rule invalidating notice requirements. This re

- evaluation occurred in two steps. In Carver v McKernan , 19 the
Court examined th e Motor Vehicle Accident Claims Act, 20 which required that a claimant provide notice within six months of the accrual of the cause of action. As the fund was exclusively a benefits program provided by the government, the case did not present the
same circumstance as in Reich of dividing a “na tural class” into “subclasses.” Nevertheless, Carver acknowledged “ that statutes which [sic] limit access to the courts by people seeking redress for wrongs are not looked upon with favor by us.” 21 While the
Court expressed a willingness to “acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict such access,” the Court made clear that “we look askance at devices such as notice requirements which have the effect of shortening the period of time set forth i n such statutes.” 22 The Court concluded that a

17 MCL 691.1404, as amended by 1970 PA 155.

18 MCL 691.1404 was amended by 1970 PA 155 before our decision in Reich was issued but after the underlying events of the case. Accordingly, the new 120

- day notice provision was inapplicable to the case.

19 Carver v McKernan , 390 Mich 96; 211 NW2d 24 (1973)

. 20 MCL 257.1101 et seq

.
21 Carver , 390 Mich at 99.

22 Id

.7 notice requirement could be enforced only if the government could show it was prejudiced by a lack of timely notice. 23 Thereafter, i n Hobbs v Mich State Hwy Dep’t , 24 t he Court applied the logic of
Carver to the GTLA

. A pplying Carver ’s willingness to “ ‘ acquiesce in the enforcement of statutes [limiting access to the courts] when we are not persuaded that they unduly restrict such access, ’ ” the Court held that MCL 691.1404(1)’s notice requirement was not

necessa rily unconstitutional. 25 C onsistent ly with Carver , however, the Court said that “actual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision [

. ] ” 26
While these cases did not implicate the C ounty R oad L aw , Brown involved a suit against a county in which the county invoked the 60

- day notice requirement of MCL 224.21(3) . Thus, this Court in Brown addressed head on whether the 60

- day notice provision under MCL 224.21(3) o r the 120

- day notice provision under MCL 691.1404( 1 ) applied in cases involving county road commissions. 27 The Court also addressed whether the prejudice requirement in Hobbs should be overruled. 28 Brown first recognized the competing provisions under the GTLA and the C ounty R oad L aw , and retreated to an

23 Id . at 100.

24 Hobbs v Dep’t of State Hwys , 398 Mich 90 ; 247 NW2d 754 (1976)

. 25 Id . at 96 , quoting Carver , 390 Mich at 99

. 26 Hobbs , 398 Mich at 96.

27 Brown , 452 Mich at 356.

28 Id

.8 equal

- protection analysis similar to that used in Reich to find the 60

- day notice provision
of MCL 224.21(3) unconstitutional . The Court explained that “[b]y providing different notice periods, the legislation divides injured persons into two classes: those injured on a defective road controlled by a county road commission and those injured on a defective road controlled by other governmental agencies.” 29 The Court believed that the two provisions tr eated persons of a similar class differently: [A] person injured in a county in which there is no county road commission would be required to file notice of the claim within 120 days, whereas an identical person injured in a county that has a county road c ommission would be required to provide notice within sixty days to the county road commissioner. [ 30 ]
The Court concluded , “ [D] espite a presumption of constitutionality, we are unable to perceive a rational basis for the county road commission statute to m andate notice of a claim within sixty days.” 31 Therefore, Brown held that “the distinct sixty

- day notice provision required for claims against a county road commission is unconstitutional.” 32 The
Brown Court also reaffirmed Hobbs and the prejudice requirem ent as it related to the 120

- notice require d under the GTLA, and it held that the road commission was not prejudiced by the defective notice. 33

29 Id . at 361.

30 Id

. at 363.

31 Id

. 32 Id . 363

- 364.

33 Id . at 365

- 366, 368

- 369

.9 T his Court ’s trend to view with disfavor statutory governmental

- immunity notice provisions stopped with Rowland

. Rowland revert ed back to the more traditional analysis employed for more than 100 years before Grubaugh , Reich , Carver , Hobbs , and Brown ; one that provides deference to the Legislature’s law making function. The facts in Rowland were straightforward. T here was no dispute that the plaintiff failed to file her notice with the road commission until 140 days after the accident. The defendant invoked MCL 691.1404(1) , and the Court concluded that the notice provision passed constitutional

muster. The Court explained: We reject the hybrid constitutionality of the sort Carver , Hobbs , and Brown engrafted onto our law. In reading an “actual prejudice” requirement into the statute, this Court not only usurped the Legislature ’ s power but simultaneously made legislative amendment to make what the Legislature wanted

— a notice provision with no prejudice requirement

— impossible. Hobbs and Brown are remarkable in the annals of judicial usurpation of legislative power because they not only seized the Legislature ’ s amendment powers, but also made any reversing amendment by the Legislature impossible. [ 34 ]
Rowland continued even further , overruling entirely , in no uncertain terms, the se two decisions: “Nothing can be saved from Hobbs and Brown because the analysis the y employ is deeply flawed ,” and “ we are persuaded that [ th ose cases ] were wrongly decided.” 35 Notably , w hen Rowland overruled Brown , it repudiated both the specific notion that avoiding prejudice to the government was the only rationale for notice requirements, as

34 Rowland , 477 Mich at 213

- 214.

35 Id . at 214

- 215

.10 well as the general notion that the judiciary may “look askance” at notice statutes. 36
Rowland noted that “legislation inv ariably involves line drawing and social legislation involving line drawing does not violate equal protection guarantees when it has a ‘rational basis,’ i.e., as long as it is rationally related to a legitimate governmental purpose.” 37 The
Court upheld the constitutionality of notice requirements without regard to prejudice to the government: “ Hobbs and Brown were wrong because they were built on an argument that governmental immunity notice statutes are unconstitutional or at least sometimes
unconstitution al if the government was not prejudiced.” 38 Brown could not be “rescued by musings to the effect that the justices ‘ “ look askance ” ’ at devices such as notice requirements [

. ] ” 39 In rejecting the specific notion that avoiding prejudice to the government is the sole rationale for notice requirements, Rowland listed many others

— “allowing time for creating [cash] reserves

. . . , reducing the uncertainty of the extent of future demands, or even

. . . forc[ing] the claimant to an early choice regarding how to
p roceed.” 40 Rowland also noted that “common sense counsels that inasmuch as the Legislature is not even required to provide a defective highway exception to governmental

36 Id . at 210 (quotation marks and citations omitted).

37 Id

. at 207 (citation omitted)

. 38 Id . at 210.

39 Id

. (citations omitted).

40 Id . at 212.11 immunity, it surely has the authority to allow such suits only upon compliance with rat ional
notice limits

. ” 41 This reasoning completely undermined the entirety of Brown ’s analysis. Both of
Brown ’s holdings were built upon the specific presumption that the only legitimate rationale for notice requirements was to avoid prejudice to the government, which was an
instantiation of Carver ’s general rule of skepticism toward notice requirements. By
repu diating both the specific presumption and the general rule, Rowland eliminated both
of Brown ’s holdings. More specifically, Brown acknowledge d that MCL 224.21(3)’s 60

- day notice requirement only needed to survive rational

- basis review, but based on the pre mise that avoiding prejudice to the government was the notice requirement’s only legitimate purpose, held that there was no rational basis to believe counties needed such prompt
notice. Rowland eliminated this premise

— in its place, the Court offered numer ous additional interests besides preventing prejudice to find a rational basis for a notice requirement. Brown also asserted that there was no legitimate reason to treat claims against county governments differently from claims against other levels of gov ernment. But as Rowland made clear, notice laws need not prove their own validity. “ ‘ It being optional with the legislature whether it would confer upon persons injured a right of action therefor or leave them remediless, it could attach to the right co nferred any limitations it chose

. ’ ” 42 In short, Brown ’s equal

- protection and prejudice holdings were inextricably intertwined,

41 Id

.
42 Id ., quoting Moulter v Grand Rapids , 155 Mich 165, 168

- 169; 118 NW 919 (1908) (emphasis added).12 and the reasoning employed by the Rowland Court in rejecting Brown ’s analysis of the potential rational legislative purposes of notice provisions applies with equal force to
Brown ’s analysis of the competing notice provisions of the C ounty R oad L aw and the
GTLA . It follows that Rowland ’s repudiation of Brown ’ s reasoning dismantled Brown ’s holding rejecting the shorter notice perio d for road commission claims as
unconstitutional. 43 Both of Brown ’s holdings are no longer good law, and the Court of Appeals in Streng was therefore permitted to apply MCL 224.21.

43 Notably, the bulk of Brown ’s “ rational basis ” analysis supported its equal

- protection holding, not its prejudice holding. In fact, Brown ’s analysis of the p rejudice issue did not contain an in

- depth rational

- basis analysis but , instead , relied largely on stare decisis and legislative acquiescence in upholding Hobbs

. Consequently, in rejecting Brown ’s rational

basis reasoning, the Rowland Court would not have considered its analysis as pertaining only to Brown ’s prejudice holding. Indeed, there are additional indications in the Rowland opinion that the Court understood that it was opining on much more than prejudice

. For example, the Rowland majorit y explicitly disagreed with the majority’s analysis in Reich , which is notable because Reich was an equal

- protection decision in which the majority concluded that the 60

- day notice provision “clearly violates the equal protection guarantees of our state an d Federal Constitutions.” Reich , 386 Mich at 623. Reich did not refer to a prejudice requirement because that concept was developed years later in our caselaw . Yet the Rowland majority called Reich ’s equal

- protection analysis “simply incorrect,” elaborating that “[p]rivate and public tortfeasors can be treated differently in the fashion they have been treated here by the Legislature. It does not offend the constitution to do so because with economic or social regulation legislation, such as this statute, there can be distinctions made between classes of persons if there is a rational basis to do so.” Rowland , 477 Mich at 207. Rowland then proceeded to quote Justice B RENNAN ’s dissent in Reich , which the Rowland majority described as “pithily” poi nting out the problems with the Reich majority’s analysis. Id

. , citing Reich , 386 Mich a t 626 ( B RENNAN , J., dissenting). If Rowland intended to address only Brown ’s prejudice requirement , it need not have explicitly rejected the Court’s equal

- protection reasoning in Reich

. Moreover , footnote 9 of the Rowland opinion notes that the “vast majority of jurisdictions that have considered such a constitutional challenge [have] concluded that notice

- of

- claim and statute

- of

limitations rules placed on persons b ringing tort actions against governmental entities are rationally related to reasonable legislative purposes and thus do not violate equal protection .” Rowland , 477 Mich at 21 3 n 9 (emphasis added). The Rowland Court then explicitly “agree[d] with the ma jority rule. ” Id

. At the very least, these statements suggest13 The majority notes that Rowland discussed only the GTLA without mentioning the
C ounty R oad L aw. But this is not surprising because MCL 691.1404(1) was the only statute the defendant invoked, and while that defendant would apparently have also been eligible to rely upon the C ounty R oad L aw, defendant did not d o so . Defendant’s litigation strategies are not a legitimate basis to cabin our Rowland holding to say less than it did.
The reasoning of Rowland

— its repudiation of Carver ’s skepticism toward notice laws

— is equally applicable to Brown ’s treatment of the C ounty R oad L aw and the GTLA . I t is not appropriate to write off Rowland ’s repudiation of Carver ’s skepticism toward notice requirements as mere obiter dictum

— it is, rather, the essence of our Rowland opinion,
which said the Carver principle “ha[d] no cla im to being defensible constitutional theory,” was “entirely indefensible,” and “usurped the Legislature’s power

. . . .” 44 The majority
also notes that Rowland cited with approval Justice R ILEY ’s partial dissent in Brown and
observes that Justice R ILEY co ncurred as to th e portion of Brown that held that MCL 224.21(3) is unconstitutional. But the fact that there was language from her partial dissent
that the Rowland majority thought was well

- put does not mean it adopted her position in

toto

. 45

that the Rowland majority did not view its analysis as speaking only to the prejudice requirement.

44 Id

. at 210, 211, 213.

45 Although not dispositive, I also find it telling how novel the majority’s conclusions are to the other jurists who are implicated in this proceeding. Including Streng and the instant cases, eight Court of Appeals judges on three different panels have rev iewed these issues and none of them concluded that Rowland had not overruled Brown

— including the judge who argued that Streng was wrongly decided. See Brugger v Midland Co Bd of Rd Comm’rs , 324 Mich App 307, 318

- 321; 920 NW2d 388 (2019) ( S HAPIRO , P. J., co ncurring)14 In sum, within the four corners of Rowland , this Court said in no uncertain terms that “[n]othing can be saved from Hobbs and Brown because the analysis they employ is deeply flawed.” 46 This expressly communicated that Brown had been totally eradicated
abo ve and beyond its consequences for the GTLA . The majority erroneously writes this
off as mere obiter dictum. But Brown ’s holding as to the validity of MCL 224.21(3) was bound up with Carver ’s requirement that special justifications must be provided to en force notice requirements. Rowland repudiated Brown and Carver , holding that notice requirements are to be enforced as written, a holding that applies to the entirety of Brown

. The current state of our caselaw is clear and provides no basis to overrule S treng

. For these reasons, I dissent.

Brian K. Zahra

W ELCH , J., did not participate in the disposition of these cases because the Court
considered them before she assumed office.

(arguing that under Apsey v Mem Hosp , 477 Mich 120; 730 NW2d 695 (2007), the plaintiffs should have had the option of proceeding under either MCL 691.1404(1) or MCL 224.21(3)). Indeed, even one of the plaintiffs here, the estate of Brendon Pearc e , in this Court forthrightly concedes that Streng was rightly decided

— a concession that has contained within it an acknowledgment that Rowland overruled Brown

. 46 Rowland , 477 Mich at 214.