Ewin v. Burnham

• Decision Date: 12 September 2006
• Docket Number: Docket No. 259180.
• Citation: 728 N.W.2d 463,272 Mich. App. 253
• Parties: Christopher EWIN, Petitioner-Appellee, v. Thomas BURNHAM, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

728 N.W.2d 463

272 Mich. App. 253

Christopher EWIN, Petitioner-Appellee, v. Thomas BURNHAM, Respondent-Appellant.

Docket No. 259180.

Court of Appeals of Michigan.

Submitted September 6, 2006, at Grand Rapids.

Decided September 12, 2006, at 9:05 a.m.

Released for Publication December 27, 2006.

Miller, Canfield, Paddock and Stone, P.L.C. (by David D. O'Brien), Ann Arbor, for the petitioner.

Faupel & Associates (by Paul C. Fessler and Marian L. Faupel), Ann Arbor, for the respondent.

Before: SAWYER, P.J., and FITZGERALD and O'CONNELL, JJ.

PER CURIAM.

Respondent appeals as of right the November 1, 2004, order of the trial court, which denied his motion to quash a subpoena and mandated his appearance for a deposition. We affirm.

Respondent received a subpoena to appear for a deposition in Michigan regarding matters stemming from a presuit discovery proceeding pending in Tarrant County, Texas. Respondent moved to have the subpoena quashed. When his motion was denied, he immediately moved for a stay of his deposition pending appeal. Respondent also filed an appeal from the order denying his motion to quash. When his motion for a stay was denied by the trial court, respondent moved both this Court and the Michigan Supreme Court to stay the deposition until his appeal could be heard. These motions were denied. Ewin v. Burnham, 471 Mich. 943, 690 N.W.2d 100 (2004); Ewin v. Burnham, unpublished order of the Court of Appeals, issued December 14, 2004 (Docket No. 259180). Respondent ultimately submitted to the deposition. Consequently, he is no longer asking this Court to quash the subpoena, but he requests that this Court seal the deposition, pursuant to a protective order, so that it cannot be used in any legal proceedings. MCR 7.216(A)(7) permits this Court to "at any time, in addition to its general powers, in its discretion, and on the terms it deems just" "enter any judgment or order or grant further or different relief as the case may require." Thus, we consider defendant's issue regarding the propriety of the subpoena and order to appear for deposition, and the relief now requested.

On appeal, respondent contends the trial court should have granted his motion to quash the subpoena because it violated his rights. Specifically, he argues that the trial court erred as a matter of law in interpreting Michigan law to require that he submit to the deposition.

The interpretation and application of statutes is a question of law that we review de novo. Putkamer v. Transamerica Ins. Corp. of America, 454 Mich. 626, 631, 563 N.W.2d 683 (1997). The interpretation and application of court rules is also a question of law that is reviewed de novo, and the rules of statutory interpretation are applied. Hinkle v. Wayne Co. Clerk, 467 Mich. 337, 340, 654 N.W.2d 315 (2002). Where statutory language is clear and unambiguous, judicial construction is precluded. Auto-Owners Ins. Co. v. State Farm Mut. Auto. Ins. Co., 187 Mich.App. 617, 618, 468 N.W.2d 317 (1991). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v. Wilkes, 470 Mich. 661, 665, 685 N.W.2d 648 (2004).

This Court must "consider both the plain meaning of the critical word or phrase as well as `its placement and purpose in the statutory scheme.'" Sun Valley Foods Co. v. Ward, 460 Mich. 230, 237, 596 N.W.2d 119 (1999), quoting Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). "The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another." Robinson v. Detroit, 462 Mich. 439, 459, 613 N.W.2d 307 (2000).

Respondent maintains that a Michigan court cannot issue a subpoena based on Tex R Civ P 202.1. Rule 202.1 dictates that, in order to effectuate a subpoena before a suit is filed, a party may petition the court for an order authorizing the taking of a deposition: (a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit. In Michigan, MCR 2.305(E) permits depositions to be taken of Michigan residents when actions are pending in another state. It provides:

Action Pending in Another State, Territory, or Country. An officer or a person authorized by the laws of another state, territory, or country to take a deposition in Michigan, with or without a commission, in an action pending in a court of that state, territory, or country may petition a court of record in the county in which the deponent resides, is employed, transacts business in person, or is found, for a subpoena to compel the deponent to give testimony. The court may hear and act on the petition with or without notice, as the court directs.

Petitioner argues that there was no "action" pending in Texas and, thus, the Michigan court could not grant petitioner's petition for a subpoena even though the Texas court authorized petitioner to seek respondent's deposition. We disagree.

MCR 2.305(E) must be read in accordance with the Uniform Interstate and International Procedure Act, which Michigan has adopted and codified at MCL 600.1852. This statute "establishes a clear procedure for deposing residents of Michigan in actions pending in other states." Commercial Union Ins. Co. v. Cannelton Industries, Inc., 828 F.Supp. 504, 508 (W.D.Mich., 1993). MCL 600.1852(2) states:

Any court of record of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this state. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things. The order shall be issued upon petition to a court of record in the county in which the deponent resides or is employed or transacts his business in person or is found for a subpoena to compel the giving of testimony by him. The court may hear and act upon the petition with or without notice as the court directs. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced,...