Clemons v. City of Detroit, Dept. of Transp.

• Decision Date: 06 January 1983
• Docket Number: Docket No. 59424
• Parties: Henry CLEMONS and Mary Lee Clemons, Plaintiffs-Appellants, v. CITY OF DETROIT, DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. 120 Mich.App. 363, 327 N.W.2d 480
• Court: Court of Appeal of Michigan — District of US

Page 480

327 N.W.2d 480

Henry CLEMONS and Mary Lee Clemons, Plaintiffs-Appellants, v. CITY OF DETROIT, DEPARTMENT OF TRANSPORTATION,

Defendant-Appellee.

Docket No. 59424.

120 Mich.App. 363, 327 N.W.2d 480

Court of Appeals of Michigan.

Submitted March 15, 1982.

Decided Oct. 7, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 365] Pianin, Graber & Paull, P.C. by Gary Howard, Southfield, and Gromek, Bendure & Thomas by Daniel J. Wright, Detroit, of counsel, for plaintiffs-appellants.

David N. Smokler, Asst. Corp. Counsel, Detroit, for defendant-appellee.

Before DANHOF, C.J., and BRONSON and ERNST ^*, JJ.

PER CURIAM.

Plaintiffs appeal, by leave granted, from an order issued by the Wayne County Circuit Court Chief Judge vacating the district court's order of transfer to circuit court and reinstating an original order for removal from circuit court to district court.

This action was commenced in Wayne County Circuit Court and arose out of a motor vehicle accident involving plaintiffs' automobile and a bus owned by the City of Detroit, Department of Transportation. Plaintiffs claim damages for resulting injuries. The procedural developments [120 MICHAPP 366] which subsequently occurred give rise to the present appeal.

At a pretrial hearing on June 3, 1980, the circuit judge ordered that the case be removed to the 23rd District Court, pursuant to M.C.L. Sec. 600.641(1); M.S.A. Sec. 27A.641(1). In district court, plaintiffs later moved for and were granted a hearing on the issue of whether damages may exceed the jurisdictional amount pursuant to M.C.L. Sec. 600.641(2); M.S.A. Sec. 27A.641(2).

At the district court hearing in this case, plaintiffs presented the deposition testimony of a physician who had examined plaintiff Henry Clemons almost two years after the accident. The deposition testimony of the physician was not available to the circuit judge at the pretrial hearing.

After considering the physician's testimony on the issue of damages, the district court concluded that damages, if any, would "in all likelihood exceed $10,000" and on February 9, 1981, issued an order returning the case to circuit court. The district court determined that its action was not a review of the circuit court order of removal since its decision was based on evidence introduced at a hearing as authorized by statute.

Upon receipt of the file in circuit court, the chief judge refused to reassign the case to a circuit judge and instead issued an opinion and order vacating the district court's order of transfer to circuit court. The reasons expressed by the circuit court for such action are as follows: (1) The district court reviewed the prior order removing this action to the 23rd District Court, and in so doing (assuming arguendo such authority) the finding of the district court was not inconsistent with that of the circuit court and thus afforded no basis for upsetting the determination of the latter; (2) Appellate[120 MICHAPP 367] procedure is within the singular province of the Michigan Court Rules and if the order of removal is to be upset, that determination is uniquely within the jurisdiction of the Court of Appeals, notwithstanding any other law; (3) "Even acceding to the intuited premise of the District Court, i.e. that M.C.L.A. Sec. 600.641 is ipso facto decisional, the opinion and order rendered below is nonetheless legally unsupportable"; (4) The result reached by application of M.C.L. Sec. 600.641(2); M.S.A. Sec. 27A.641(2) would be inimical to the sound administration of justice.

Indeed, the reasons cited by the circuit court's chief judge present a direct challenge to the constitutionality of M.C.L. Sec. 600.641(2); M.S.A. Sec. 27A.641(2).

Plaintiffs filed a motion for a rehearing on the chief judge's order to return to district court. That motion was denied in an order issued August 6, 1981. Plaintiffs now appeal from the March 2, 1981 order vacating the district court's order for transfer to circuit court.

The statutory provisions relative to removal of actions from circuit court to district court appear at Sec. 641 of the Revised Judicature Act, M.C.L. Sec. 600.641; M.S.A. Sec. 27A.641. Prior to its amendment in 1980, subsections 1 and 2 of Sec. 641 read:

"(1) If it appears at the conclusion of a pretrial hearing on an action commenced in the circuit court that the amount of damages sustained may be less than the jurisdictional limitation as to the amount in controversy applicable to the lower court, the circuit judge may, without the consent of the parties, remove the action to a lower court within the county which would have had jurisdiction but for the amount of damages demanded. These actions shall be assigned by lot by the clerk of the court to all lower courts and districts within the county. Each lower court or district in the county shall be assigned, as nearly as possible, a proportion[120 MICHAPP 368] of the total number of removed actions equal to the proportion of the total number of lower court judges serving on the court or in the district.

"(2) When an action is removed to a lower court, the circuit court shall forward to the lower court, as a filing fee, a portion of the filing fee paid at the commencement of the action in circuit court which is equal to the filing fee otherwise required in the lower court."

However, subsection 2 of Sec. 641 was significantly modified by 1980 P.A. 190. That act transferred the filing fee provision of the previous subsection 2 to a subsection 3 and replaced subsection 2 with new language permitting a district court to take proofs at a hearing, and if at the conclusion of the hearing it was shown that the damages might exceed the jurisdictional amount, to send the case back to the circuit court for reassignment to another judge. Subsection 2 of Sec. 641 of the Revised Judicature Act, as amended by 1980 P.A. 190 reads:

"(2) When a case is remanded to a lower court from a multi-judge circuit court, the lower court may take proofs at a hearing and if at the conclusion of the hearing it is shown that the damages may exceed the jurisdictional amount, that case may be sent back to that circuit court and reassigned to another judge."

A further amendment of Sec. 641 by 1980 P.A. 438 did not significantly alter subsection 2 as revised by 1980 P.A. 190.

The implementation of RJA Sec. 641, as originally enacted, was comprehensively addressed by the Michigan Supreme Court's adoption of GCR 1963, 707, providing as follows:

".1 Removal to Lower Court. Removal of actions to a lower court pursuant to RJA Sec. 641 may be ordered by [120 MICHAPP 369] the Court on its own motion or on motion of the parties only if

"(a) it appears that the claimant's damages may be less than the jurisdictional maximum otherwise applicable in the lower court to which the action is removed, and

"(b) removal will expedite the trial and disposition of the action.

".2 Effect of Joinder. When any counterclaims or cross-claims have been joined in an action sought to be removed, only the entire action may be removed to a lower court and then only if the primary claim and each such counterclaim or cross-claim separately meets the requirements of subrule 707.1. If there has been joined a claim for equitable relief or other relief of a kind which is beyond the jurisdictional power of the lower court, no part of the action shall be removed. If a third-party claim has been joined, no part of the action shall be removed.

".3 Actions Transferred from Lower Courts. Actions transferred to a circuit court pursuant to RJA Sec. 6935 and DCR 203.5 may be removed to the lower court from which it was transferred if the action meets with the requirements of subrules 707.1 and 707.2.

".4 Review of Orders. There shall be no right of appeal from an order denying a motion to remove to a lower court. An order for removal to a lower court may be reviewed only by an application for leave to appeal filed within 10 days after entry of the order and such appeal shall be processed by the appellate court as an emergency appeal." (Emphasis added.)

As noted under the "Authors' Comments" in 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), 1981 Cum.Supp., p. 121:

"Troublesome questions regarding the appealability of orders granting or denying a motion to transfer have been anticipated by sub-rule 707.4.

"There should be no difficulty over the validity of the rule. RJA Sec. 641 does not require the circuit courts to [120 MICHAPP 370] transfer any cases to lower court, but rather authorizes them to do so in exercise of their sound discretion by reference to the basic policy underlying the statute. The rule merely supplies more detailed procedural guidance for the exercise of the circuit courts' discretion under the statute." (Emphasis added.)

Both statute and court rule have been construed to imply that removal should be based on more than mere possibility that damages will be less than the jurisdictional limit of circuit court. In Riggs v. Szymanski, 62 Mich.App. 610, 614, fn. 7, 233 N.W.2d 670 (1975), this Court stated that "[w]hen a cause is removed from the circuit court to the district court pursuant to M.C.L.A. Sec. 600.641; M.S.A. Sec. 27A.641, and/or GCR 1963, 707.1, the circuit court is simply acknowledging that since the amount of damages which may be recovered, in all probability, will be less than $10,000 that the district court is the only court which possesses statutory jurisdiction to hear the claim". (Emphasis added.) In Kinchion v. Burnett, 88 Mich.App. 25, 28, 276 N.W.2d 508 (1979), this Court applied Sec. 641(1) to mean that removal is not warranted if "damages should exceed the jurisdictional limit of district court". (Emphasis added.)

In order to consider RJA Sec. 641, as amended, in proper perspective with GCR 1963, 707, it is first helpful to reflect upon the constitutional provision upon which the Supreme Court's rule-making power is grounded.

"Our Court's rule...