Donkers v. Kovach

Citation277 Mich. App. 366,745 N.W.2d 154
Decision Date18 December 2007
Docket NumberDocket No. 270311.
PartiesCatherine Nicole DONKERS and Brad Lee Barnhill, Plaintiffs-Appellants, v. Timothy KOVACH, Defendant-Appellee.
CourtCourt of Appeal of Michigan (US)

Before: JANSEN, P.J., and FITZGERALD and MARKEY, JJ.

JANSEN, P.J.

Plaintiffs Catherine N. Donkers and Brad L. Barnhill appeal by right the trial court's dismissal of their lawsuit. We reverse and remand for reinstatement of plaintiffs' claims.

I

Plaintiffs sued defendant Timothy Kovach, their former attorney, for alleged legal malpractice in his handling of a previous civil matter.1 During the course of discovery in the present case, defendant sought to depose plaintiff Donkers. At the time of the deposition, Donkers refused to raise her right hand and to be sworn under oath. She claimed that raising her right hand would violate her religious beliefs. At a subsequent motion hearing before the trial court, Donkers again refused to raise her right hand and to be sworn under oath. She indicated that she would affirm to tell the truth, but stated that she was still unwilling to raise her right hand for religious reasons. When Donkers refused to raise her hand as part of her affirmation to testify truthfully, the trial court dismissed plaintiffs' case with prejudice:

The Court: Are you going to raise your right [hand] or not?

Donkers: No ma'am. It's writ —

The Court: Okay if not then I dismiss your case and you may take it up on appeal.

Donkers: Ma'am —

The Court: Your case is dismissed.

Kovach: Thank you, Your Honor.

Donkers: Ma'am I haven't [been] given an opportunity. The same thing . . . happened at the deposition.

The Court: That's right, your case is dismissed.

Donkers: I didn't have an opportunity to state what my substitute oath would be.

The Court: If you'll — if you'll submit an order —

Kovach: Your honor, could I have seven days to submit this order?

The Court: You may.

Kovach: Thank you very much, Judge Morris.

Donkeys: Ma'am, I'm going to object. I haven't been given an opportunity to say what my sub —

The Court: You know what you do when you object, you appeal. You appeal to the Court of Appeals and explain to them why it is you will not affirm that you will tell the truth on a deposition. There is nothing religious about that. There is no basis for any religious objection. The case is dismissed.

Donkers: I had offered to tell the truth . . . this [is] exactly what I offered to say at the deposition as a substitute for an oath. I've had no problem in any other court in Michigan. I've had no problem in Nevada.

The Court: The record is turned off, so you're talking to the wind here.

II

A trial court's decision to dismiss an action is reviewed for an abuse of discretion. Vicencio v. Jaime Ramirez, M.D., P.C., 211 Mich.App. 501, 506, 536 N.W.2d 280 (1995), "An error of law may lead a trial court to abuse its discretion " Gawlik v. Rengachary, 270 Mich.App. 1, 8-9, 714 N.W.2d 386 (2006). We review de novo questions concerning the proper interpretation and application of statutes, court rules, and rules of evidence. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003); Waknin v. Chamberlain, 467 Mich. 329, 332, 653 N.W.2d 176 (2002); Peters v. Gunnell, Inc., 253 Mich. App. 211, 225, 655 N.W.2d 582 (2002).

III

Plaintiffs argue that the trial court erred in concluding that Donkers was required to raise her right hand in order to affirm that she would testify truthfully at her deposition and in open court. Therefore, plaintiffs assert that the trial court abused its discretion by dismissing their case. We agree with plaintiffs, and conclude that the act of raising one's right hand is not required when affirming to testify truthfully.

"Dismissal is the harshest sanction that the court may impose on a plaintiff." Schell v. Baker Furniture Co., 232 Mich.App. 470, 475, 591 N.W.2d 349 (1998). As a result, a trial judge must follow the procedures set forth in our court rules before ordering an involuntary dismissal. See id. at 478-479, 591 N.W.2d 349; see also Henry v. Prusak, 229 Mich.App. 162, 168, 582 N.W.2d 193 (1998). We acknowledge that a trial court is authorized to consider "dismissing the action or proceeding" as a sanction when a party refuses to testify at a deposition. See MCR 2.313(B)(1); MCR 2.313(B)(2)(c). However, in the instant case, Donkers did not refuse to testify. Instead, she merely refused to raise her right hand.

Chapter 14 of the Revised Judicature Act mandates that witnesses in judicial proceedings swear or affirm that their testimony will be true. MCL 600.1432; MCL 600.1434; People v. Knox, 115 Mich. App. 508, 511, 321 N.W.2d 713 (1982). MCL 600.1432(1) provides for the manner of administering oaths:

The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, "You do solemnly swear or affirm".

Among the exceptions to this general rule, MCL 600.1434 provides that "[e]very person conscientiously opposed to taking an oath may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury." It is therefore "otherwise provided by law" that in lieu of swearing an oath under MCL 600.1432, a person may "solemnly and sincerely affirm" to testify truthfully. MCL 600.1434; People v. Ramos, 430 Mich. 544, 549 n. 8, 424 N.W.2d 509 (1988) (describing MCL 600.1434 as one of the statutory exceptions to the general rule of MCL 600.1432). What is less clear is whether a witness who elects to affirm to testify truthfully must also raise his or her right hand when doing so.

Our primary task in construing a statute is to discern and give effect to the intent of the Legislature. Shinholster v. Annapolis Hosp., 471 Mich. 540, 548-549, 685 N.W.2d 275 (2004). "To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language." Lash v. Traverse City, 479 Mich. 180, 187, 735 N.W.2d 628 (2007). The words contained in the statute provide us with the most reliable evidence of the Legislature's intent. Shinholster, supra at 549, 685 N.W.2d 275.

MCL 600.1432 and MCL 600.1434 relate to the same subject matter and share a common purpose. Accordingly, they are in pari materia, and must be read together as one law. Apsey v. Mem. Hosp., 477 Mich. 120, 129 n. 4, 730 N.W.2d 695 (2007);. State Treasurer v. Schuster, 456 Mich. 408, 417, 572 N.W.2d 628 (1998). When two statutes are in pari materia but conflict with one another on a particular issue, the more specific statute must control over the more general statute. People v. Buehler, 477 Mich. 18, 26, 727 N.W.2d 127 (2007). Accordingly, MCL 600.1434, which provides a specific exception to the general rule of MCL 600.1432, must control if any conflict exists between the two statutes. Buehler, supra at 26, 727 N.W.2d 127.

Despite the fact that MCL 600.1434 provides a specific exception to the general rule requiring oaths, it does not provide for the manner of administering affirmations. Of central importance in this case, MCL 600.1434 does not address whether the upraised right hand — apparently necessary to effectuate an oath under MCL 600.1432 — is required when making an affirmation pursuant to MCL 600.1434. The omission of a provision in one statute that is included in another statute should be construed as intentional, and provisions not included by the Legislature may not be included by the courts. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993); Polkton Charter Twp. v. Pellegrom, 265 Mich.App. 88, 103, 693 N.W.2d 170 (2005). Indeed, "[c]ourts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there." Farrington, supra at 210, 501 N.W.2d 76. The Legislature included the requirement of an upraised right hand in the general rule of MCL 600.1432, but omitted any such requirement from the specific exception of MCL 600.1434. Looking to the more specific statute as we must, Buehler, supra at 26, 727 N.W.2d 127, and construing the omission of the upraised-hand requirement from MCL 600.1434 as intentional, Farrington, supra at 210, 501 N.W.2d 76, we conclude that the act of raising one's right hand is not required to effectuate a valid affirmation under MCL 600.1434. Because Donkers chose to affirm to tell the truth rather than to swear an oath, she was not required to raise her right hand when doing so.2

Our conclusion in this regard is further supported by MRE 603, which provides:

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

As the federal courts have observed in interpreting the identical language of F.R.E. 603, no particular form or language is necessary when swearing or affirming to testify truthfully. Gordon v. Idaho, 778 F.2d 1397, 1400 (C.A.9, 1985); see also United States v. Looper, 419 F.2d 1405, 1407 n. 3 (C.A.4, 1969).3 Indeed, the Gordon court specifically held that pursuant to F.R. Civ. P. 30(c) and F.R. Civ. P. 43(d), which parallel the general rule of F.R.E. 603 in the context of discovery and trials, witnesses "need not raise their hand" when swearing or affirming to testify truthfully. Gordon, supra at 1400-1401. We similarly conclude that it is not necessary for a witness to raise his or her right hand or to engage in any special formalities when swearing or...

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