Citizens for Pre-Trial Justice v. Goldfarb, PRE-TRIAL

CourtCourt of Appeal of Michigan (US)
Writing for the CourtCAVANAGH; V. J. BRENNAN
Citation278 N.W.2d 653,88 Mich.App. 519
PartiesCITIZENS FORJUSTICE et al., Plaintiffs-Appellees, v. Charles GOLDFARB and Irwin Goldfarb, d/b/a Goldfarb Bonding Agency, Defendants-Appellants, and Carman A. Mitchell, d/b/a Carman A. Mitchell Bail Bond Agency, Defendant.
Docket NumberPRE-TRIAL,Docket No. 26827
Decision Date20 February 1979

Page 653

278 N.W.2d 653
88 Mich.App. 519
CITIZENS FOR PRE-TRIAL JUSTICE et al., Plaintiffs-Appellees,
v.
Charles GOLDFARB and Irwin Goldfarb, d/b/a Goldfarb Bonding
Agency, Defendants-Appellants,
and
Carman A. Mitchell, d/b/a Carman A. Mitchell Bail Bond
Agency, Defendant.
Docket No. 26827.
Court of Appeals of Michigan.
Feb. 20, 1979.
Released for Publication May 29, 1979.

Page 655

Zemke & Lustig by [88 Mich.App. 524] Norman L. Zemke, Southfield, for defendants-appellants.

Robert W. Howes, Detroit, for plaintiffs-appellees.

Before HOLBROOK, P. J., and BRENNAN and CAVANAGH, JJ.

CAVANAGH, Judge.

Plaintiffs, Citizens for Pre-Trial Justice, an unincorporated, nonprofit association located in Wayne County, and five named individuals, filed a class action in November, 1974, to challenge the legality of the business practices of defendants-appellants Goldfarb and defendant Mitchell, owners of bail bond agencies. 1 Specifically, the plaintiffs alleged that defendants violated M.C.L. § 750.167b(3); M.S.A. § 28.364(2)(3), by charging a fee greater than the statutory

Page 656

10% Maximum and by requiring collateral security which, either taken alone or with the fee, exceeded the 10% Limit. They further alleged that the provision in M.C.L. § 765.26; M.S.A. § 28.913 allowing bondsmen to unilaterally revoke the bail bond and rearrest the principal unconstitutionally deprived such individuals of liberty without due process of law. The named plaintiffs also set forth facts to show their interest in the suit and the adequacy of their representation of the proposed class. As relief, the plaintiffs requested declaratory judgment on the [88 Mich.App. 525] merits, entry of a permanent injunction to prevent further overcharges and revocations, and damages.

After hearing argument on all issues raised in the complaint and by motion, 2 the trial court subsequently prepared and entered an opinion and order. This order (1) allowed the intervention and substitution of four individuals for the originally named plaintiffs; (2) defined and certified the class, 3 holding that a class action was appropriate under GCR 1963, 208.1(3) in that the potential plaintiffs were numerous, the four named individuals were proper parties and adequately represented the absent class members' interests, and there were "common question(s) of law" presented and a common relief requested; and (3) preliminarily enjoined defendants from either overcharging or summarily rearresting a principal in connection with a bail bond posted in a Michigan criminal [88 Mich.App. 526] case. 4 Defendants have appealed from these findings and the entry of this order.

THE CLASS ACTION ISSUE

In addition to contesting the merits of the court's decision, defendants argue the inappropriateness of permitting the plaintiffs to pursue this suit as a class action. A brief explanation of the characteristics of a class action brought under GCR 1963, 208.1(3) is therefore warranted to provide an appropriate framework for discussion of the issues defendants raise.

GCR 1963, 208.1(3) provides:

"If persons constituting a class are so numerous as to make to impracticable to bring them all before the court, such of them, 1 or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is * * * several, and there is a common question of law or fact affecting the several rights and a common relief is sought."

The type of action authorized by the rule is commonly known as a "spurious class action". By its terms, which have been elaborated upon in case law, the rule sets out several criteria to test the appropriateness

Page 657

of allowing a particular suit to proceed as a class action. (1) The number of plaintiffs holding similar claims against a defendant. Where this number is so large that it is impracticable to bring each claim individually, "at least one named plaintiff may represent the class before [88 Mich.App. 527] the court and * * * litigate the issues common to the claims against the defendant". Northview Construction Co. v. St. Clair Shores (On Rehearing), 399 Mich. 184, 200, 249 N.W.2d 290, 295 (1976). In this guise, the rule acts as a permissive joinder device. Paley v. Coca Cola Co., 389 Mich. 583, 607, 209 N.W.2d 232 (1973). (2) Adequacy of representation. This criterion is two-pronged. The representatives first must share common issues and interests with the absent class members, by an interest in a claim that is typical of the remaining class claims. Although the claims need not be identical in all respects (E. g., in the amount of individual damages) it must be typical in the sense that it is based on a " 'common question of law or fact * * * and a common relief is sought' ". Northview, supra, 399 Mich. p. 202, 249 N.W.2d p. 296, GCR 1963, 208.1(3). The representatives must also "vigorously prosecute the rights of the class through qualified counsel", Northview, supra, p. 202, 249 N.W.2d p. 296 to meet the second prong of the adequacy of representation test. As will be elaborated upon below, although these criteria are not always given equal weight, they must both be satisfied for a class action to proceed.

Appropriateness as a Class Action Numerousness

Defendants argue that plaintiffs have failed to show that the class members "are so numerous as to make it impracticable to bring them all before the court". GCR 1963, 208.1. Hence, contend defendants, this cause should not be allowed to proceed as a class action.

This argument notwithstanding, defendants estimate the potential number of class members to be 35,000. 5 This alone could persuade us that a class [88 Mich.App. 528] action is appropriate here. In addition, we note the likelihood that this group will prove unstable and its constituents' whereabouts unknown. This is further and conclusive evidence that it would be impracticable to bring all plaintiffs before the court. See Pressley v. Wayne County Sheriff, 30 Mich.App. 300, 319, 186 N.W.2d 412 (1971). There is no merit in this issue.

Definition of the Class and Statute of Limitations

Defendants timely raised the affirmative defense of the statute of limitations. See GCR 1963, 111.7. During proceedings in the lower court this issue was subsumed in the controversy over the proper definition of the plaintiff class. Plaintiffs contended that the class should be defined to include all those whose claims accrued within the six years preceding the complaint's filing. Defendants responded that some of those persons' claims were time-barred by one or another statute of limitations. The lower court ruled in plaintiffs' favor and certified a class encompassing all those whose claims arose within six years before the complaint was filed. Defendants now challenge that ruling.

Plaintiffs' argument is in the alternative: their claims are governed either by the six-year contract statute of limitations, M.C.L. § 600.5807(8); M.S.A. § 27A.5807(8), or by the general six-year statute of limitations for personal actions for which no provision is made by other statute, M.C.L. § 600.5813; M.S.A. § 27A.5813.

Defendants argue that the appropriate statute of limitations for the claims of statutory overcharge is the three-year statute for "actions to recover damages for injuries to persons and property". M.C.L. § 600.5805(7); M.S.A. § 27A.5805(7). Defendants further assert that the count based on unlawful [88 Mich.App. 529] arrest amounts to allegations of assault, battery and false imprisonment, to which a two-year statute of limitations applies. M.C.L. § 600.5805(1); M.S.A. § 27A.5805(1).

Page 658

Because the three counts joined in this complaint are all different, I will consider them separately.

Initially, I reject defendants' argument that the two-year statute for assault, battery and false imprisonment applies to the count alleging the unconstitutionality of the summary bond revocation permitted in M.C.L. § 765.26; M.S.A. § 28.913. Plaintiffs' complaint alleges a deprivation of due process by a statutory scheme which permits deprivation of liberty without notice and a hearing, and for arbitrary and capricious reasons. This injury is neither an assault, nor a battery, nor a false imprisonment, but the invasion of one or more constitutional rights. Since there is no statute of limitations directed explicitly to suits for denial of due process, the appropriate statute must be either the three-year statute on actions for injuries to persons or property, M.C.L. § 600.5805(7); M.S.A. § 27A.5805(7), or, if this is inapplicable, the general six-year statute for all other personal actions for which no provision is elsewhere made. M.C.L. § 600.5813; M.S.A. § 27A.5813.

Other cases have considered the scope of "actions * * * for injuries to persons and property" as used in M.C.L. § 600.5805(7); M.S.A. § 27A.5805(7). In Stringer v. Board of Trustees of Edward W. Sparrow Hospital, 62 Mich.App. 696, 233 N.W.2d 698 (1975), Lv. den., 395 Mich. 768 (1975), the Court rejected an argument that "injuries to persons" comprises only physical injuries. The Court adopted a foreign jurisdiction's construction of the phrase, under which were included

[88 Mich.App. 530] " ' * * * actions brought for injuries resulting from invasions of rights that inhere in man as a rational being, that is, rights to which one is entitled by reason of being a person in the eyes of the law. Such rights, of course, are to be distinguished from those which accrue to an individual by reason of some peculiar status, or by virtue of an interest created by contract or property.' " 62 Mich.App. 696, 701, 233 N.W.2d 698, 700-701. (Citation omitted.)

Stringer, therefore, held that "injuries to persons and property" included an action for injuries "to one's good name and to advancement in one's chosen profession". 62 Mich.App. 696, 702, 233 N.W.2d 698, 701.

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  • Smith v. University of Detroit, Docket No. 75864
    • United States
    • Court of Appeal of Michigan (US)
    • December 26, 1985
    ...by the running of the applicable statutory period of limitation. See Citizens for Pre-Trial Justice v. Goldfarb, 88 Mich App 519, 535, 278 N.W.2d 653 (1979), modified in part, 415 Mich. 255, 327 N.W.2d 910 (1982). Thus, on remand the plaintiffs' class should not include individuals whose cl......
  • People v. Evans, Docket No. 83297
    • United States
    • Supreme Court of Michigan
    • April 3, 1990
    ...from policing court attendance of bailed defendants and thus furthers the state's interests.' Citizens for Pretrial Justice v. Goldfarb, 88 Mich.App. 519, 567, 278 N.W.2d 653 (1979) (Brennan, J.). G.C.R.1963, 790.4(b) also recognizes the necessity of a surety bond to secure the appearance o......
  • Hart v. City of Detroit, Docket No. 78-3489
    • United States
    • Court of Appeal of Michigan (US)
    • June 2, 1980
    ...process rights, this Court concluded that some statute of limitations must apply. Citizens for Page 154 Pre-Trial Justice v. Goldfarb, 88 Mich.App. 519, 529-531, 278 N.W.2d 653 (1979). With this conclusion we We are likewise unable to accept plaintiffs' argument that M.C.L. § 600.5813, M.S.......
  • Smolen v. Dahlmann Apartments, Ltd., Docket No. 59750
    • United States
    • Court of Appeal of Michigan (US)
    • September 15, 1983
    ...a statutory provision, our primary objective is to divine the Legislature's intent. Citizens for Pre-Trial Justice v. Goldfarb, 88 Mich.App. 519, 550, 278 N.W.2d 653 (1979). Where a term is not defined by the statute, it is to be given its plain and ordinary meaning "for it is to be presume......
  • Request a trial to view additional results
10 cases
  • Smith v. University of Detroit, Docket No. 75864
    • United States
    • Court of Appeal of Michigan (US)
    • December 26, 1985
    ...by the running of the applicable statutory period of limitation. See Citizens for Pre-Trial Justice v. Goldfarb, 88 Mich App 519, 535, 278 N.W.2d 653 (1979), modified in part, 415 Mich. 255, 327 N.W.2d 910 (1982). Thus, on remand the plaintiffs' class should not include individuals whose cl......
  • People v. Evans, Docket No. 83297
    • United States
    • Supreme Court of Michigan
    • April 3, 1990
    ...from policing court attendance of bailed defendants and thus furthers the state's interests.' Citizens for Pretrial Justice v. Goldfarb, 88 Mich.App. 519, 567, 278 N.W.2d 653 (1979) (Brennan, J.). G.C.R.1963, 790.4(b) also recognizes the necessity of a surety bond to secure the appearance o......
  • Hart v. City of Detroit, Docket No. 78-3489
    • United States
    • Court of Appeal of Michigan (US)
    • June 2, 1980
    ...process rights, this Court concluded that some statute of limitations must apply. Citizens for Page 154 Pre-Trial Justice v. Goldfarb, 88 Mich.App. 519, 529-531, 278 N.W.2d 653 (1979). With this conclusion we We are likewise unable to accept plaintiffs' argument that M.C.L. § 600.5813, M.S.......
  • Smolen v. Dahlmann Apartments, Ltd., Docket No. 59750
    • United States
    • Court of Appeal of Michigan (US)
    • September 15, 1983
    ...a statutory provision, our primary objective is to divine the Legislature's intent. Citizens for Pre-Trial Justice v. Goldfarb, 88 Mich.App. 519, 550, 278 N.W.2d 653 (1979). Where a term is not defined by the statute, it is to be given its plain and ordinary meaning "for it is to be presume......
  • Request a trial to view additional results

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