JOHN LAUER V WAYNE COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN LAUER and DEREK STEVENS,
UNPUBLISHED
June 16, 2005
Plaintiffs-Appellees,
v
No. 254318
Wayne Circuit Court
LC No. 03-333341-CF
WAYNE COUNTY,
Defendant-Appellant.
Before: Talbot, P.J., and Murray and Donofrio, JJ.
PER CURIAM.
Defendant Wayne County appeals as of right the trial court’s order denying its motion for
summary disposition under MCR 2.116(C)(1), (C)(5), (C)(7), (C)(8), and (C)(10). We reverse.
Defendant raises several issues on appeal, including that the trial court did not have
jurisdiction over this matter. Because we agree that the trial court did not have subject matter
jurisdiction, we need not consider defendant’s other issues.
As a preliminary matter, we note that while MCR 7.202(6)(v)1 provides that “[a]n order
denying governmental immunity” is appealable by right, MCR 7.203(A)(1) provides that “[a]n
appeal from an order described in MCR 7.202(7)(a)(iii)-(v) is limited to the portion of the order
with respect to which there is an appeal of right.” Where the language of a court rule is clear and
unambiguous, it must be enforced as written. In re KH, 469 Mich 621, 628; 677 NW2d 800
(2004); Pierce v Lansing, 265 Mich App 174, 182; 694 NW2d 65 (2005). In an appeal by right
from an order denying a defendant’s claim of governmental immunity, this Court recently held
that it does not have the authority to consider issues other than that part of the trial court’s order
denying the defendant’s claim of governmental immunity. Pierce, supra at 182. “To conclude
otherwise would render part of the court rule nugatory.” Id.
1
This subsection was formerly (7) but effective May 1, 2004, was renumbered (6). See 469
Mich clxxxi. MCR 7.203(A)(1) still refers to this subsection as MCR 7.202(7).
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Nevertheless, jurisdictional defects may be raised at any time, even if raised for the first
time on appeal.2 Polkton Charter Twp v Pellegrom, 265 Mich App 88, 97; 693 NW2d 170
(2005). Subject matter jurisdiction issues raise questions of law that are reviewed de novo on
appeal. Id. at 98. Although defendant did not move for summary disposition under MCR
2.116(C)(4), this omission does not prevent this Court from granting relief based on lack of
subject matter jurisdiction. “The jurisdiction of a court arises by law, not by the consent of the
parties.” Bowie v Arder, 441 Mich 23, 56; 490 NW2d 568 (1992).
In general, subject matter jurisdiction is a court’s power to hear and determine a cause or
matter. Id. at 36. MCL 600.605 provides:
Circuit courts have original jurisdiction to hear and determine all civil
claims and remedies, except where exclusive jurisdiction is given in the
constitution or by statute to some other court or where the circuit courts are
denied jurisdiction by the constitution or statutes of this state.
Thus, circuit courts are presumed to have subject matter jurisdiction unless jurisdiction is
expressly prohibited or given to another court by constitution or statute. Id. at 38. A court that
lacks subject matter jurisdiction cannot adjudicate the parties’ claims. Id. at 56. A court should
recognize its lack of jurisdiction and, on its own motion, dismiss the action. Id. When a court
lacks subject matter jurisdiction to hear a claim, any action it takes, other than to dismiss the
action, is void because of lack of jurisdiction. Id.; Jackson City Bank & Trust Co v Franklin, 271
Mich 538, 544; 260 NW 908 (1935).
Disposition of the seized and subsequently forfeited money in this case is governed by
the controlled substances act, MCL 333.7521 et seq.; In re Return of Forfeited Goods, 452 Mich
659, 665; 550 NW2d 782 (1996); Hollins v Detroit Police Dep’t, 225 Mich App 341, 344; 571
NW2d 729 (1996). Property that was legally seized may be administratively forfeited by a
governmental agency that provides the owner with notice that the property has been seized and
of the intent to forfeit the property. MCL 333.7523(1)(a); In re Return of Forfeited Goods, supra
at 665; Hollins, supra at 345. In In re Return of Forfeited Goods, supra at 667, the Michigan
Supreme Court held that a trial court does not have jurisdiction to review a lawful administrative
forfeiture. See also Hollins, supra at 347.
The first step in determining if the trial court had jurisdiction is to determine if the money
was lawfully forfeited pursuant to the controlled substances forfeiture act. MCL 333.7521 et
seq.; In re Return of Forfeited Goods, supra at 665; Hollins, supra at 347. Plaintiffs argue that
2
As plaintiff correctly points out, defendant has ignored the elementary principle of appellate
procedure that the record on review only includes evidence submitted to the trial court before its
decision on the motion. Pena v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351
(2003). Although the trial court’s order appealed by defendant was entered on February 17,
2004, defendant’s exhibits 3, 9, 10 and 16 were created months later. As a result, we have not
considered those documents in deciding this appeal.
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the money was not lawfully forfeited because they did not receive notice of the seizure and intent
to forfeit.
MCL 333.7523 provides in pertinent part:
(1) If property is seized pursuant to section 7522, forfeiture proceedings
shall be instituted promptly. If the property is seized without process as provided
under section 7522, and the total value of the property seized does not exceed
$50,000.00, the following procedure shall be used:
(a) The local unit of government that seized the property, or, if the
property was seized by the state, the state shall notify the owner of the property
that the property has been seized, and that the local unit of government or, if
applicable, the state intends to forfeit and dispose of the property by delivering a
written notice to the owner of the property or by sending the notice to the owner
by certified mail. If the name and address of the owner are not reasonably
ascertainable, or delivery of the notice cannot be reasonably accomplished, the
notice shall be published in a newspaper of general circulation in the county in
which the property was seized, for 10 successive publishing days.
If the property owner files a claim, the prosecutor must commence forfeiture proceedings:
Upon the filing of the claim, and the giving of a bond to the local unit of
government or the state in the amount of 10% of the value of the claimed
property, but not less than $250.00 or greater than $5,000.00 . . . . The attorney
general, the prosecuting attorney, or the city or township attorney shall promptly
institute forfeiture proceedings after the expiration of the 20-day period. [MCL
333.7523(1)(c).]
In In re Return of Forfeited Goods, supra at 667, the Michigan Supreme Court stated that the
procedure articulated in MCL 333.7523(1)(c) “is the only means by which the statute confers
jurisdiction on the circuit court.” (Emphasis in original.)
Failure to file a claim or post a bond activates the automatic forfeiture clause of MCL
333.7523(1)(d): “If no claim is filed or bond given within the 20-day period as described in
subdivision (c), the local unit of government or the state shall declare the property forfeited and
shall dispose of the property . . . .” (Emphasis added.) The Supreme Court determined that
where no claim was filed after proper notice, the property was ceded as a matter of law, and the
trial court did not have jurisdiction to review the matter. Id. at 668.
Here, defendant determined, based on the bond receipt, that plaintiff Stevens was the
owner of the bond money. The Wayne County Sheriff’s Department mailed a certified letter to
Stevens’ address, which was listed with the Michigan Secretary of State, and attempted a
personal delivery of the notice of seizure and intent to forfeit to that address. When those
attempts to notify Stevens failed, defendant ran an advertisement regarding the intent to forfeit
the $22,100 in the Detroit Legal News for ten successive publishing days. The advertisement
included both plaintiffs’ names. These efforts comported with the statutory requirements for
notification of intent to forfeit. MCL 333.7523(1)(a).
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Plaintiffs argued that notification was defective because the money belonged to Lauer
and his fiancée, Maria DeSeranno. However, both plaintiffs and DeSeranno acknowledged that
Stevens posted the bond money, and only Stevens’ name was on the bond receipt. United States
currency is normally considered to be a bearer instrument. In re Forfeiture of $19,250, 209 Mich
App 20, 27; 530 NW2d 759 (1995). Possession of such property is prima facie evidence of
ownership, and the burden of producing evidence regarding ownership rests upon the person
disputing such ownership. Id. Stevens was in possession of the currency when it was turned
over to the Sheriff’s Department. Plaintiffs presented no evidence to show that ownership of the
bond had been transferred to Lauer. The Sheriff’s Department could properly rely on the
presumption that the bearer, Stevens, was the owner.
Because defendant fully complied with the notice requirements of the controlled
substances act before administratively forfeiting the money, plaintiffs’ failure to file a claim
within twenty days after the date of the first publication of notice is fatal to their case. Plaintiffs
had every right to contest the forfeiture within twenty days of the first day of notice publication
by filing a claim and posting a bond. MCL 333.7523(1)(c). The failure to do so activated the
automatic forfeiture clause of MCL 333.7523(1)(d), and the property was administratively
forfeited. After the lawful administrative forfeiture had been declared, the trial court did not
have jurisdiction to review the matter. In re Return of Forfeited Goods, supra at 668. The trial
court should have dismissed the case on its own motion for want of subject matter jurisdiction.
See Bowie, supra at 56. Because the trial court lacked jurisdiction, its decision denying
defendant’s motion for summary disposition and granting plaintiffs’ partial motion for summary
disposition is void.
Because of our resolution of this issue, we need not examine defendant’s other issues. 3
Reversed.
/s/ Michael J. Talbot
/s/ Christopher M. Murray
/s/ Pat M. Donofrio
3
If the lower court had jurisdiction over these claims, we would nonetheless conclude that
plaintiff did not meet his burden of establishing an exception to defendant’s statutory
governmental immunity. Ridley v Detroit (On Remand), 258 Mich App 511, 515; 673 NW2d
448 (2003). Plaintiff’s complaint contains no allegation in avoidance of statutory immunity, and
his argument on appeal that defendant was engaged in a proprietary function is defeated by the
fact that defendant acted pursuant to statutory authorization, and therefore was engaged in a
governmental function. MCL 691.1401(f); Tryc v Michigan Veterans’ Facility, 451 Mich 129,
134; 545 NW2d 642 (1996).
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