Scott B Crouch v. Newaygo County Road Commission ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SCOTT B. CROUCH, UNPUBLISHED
September 10, 2020
Plaintiff-Appellant,
v No. 347489
Newaygo Circuit Court
NEWAYGO COUNTY ROAD COMMISSION, LC No. 18-020392-NO
Defendant-Appellee.
Before: REDFORD, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
Plaintiff, Scott Crouch, appeals as of right the trial court’s order granting summary
disposition in favor of defendant, Newaygo County Road Commission, pursuant to MCR
2.116(C)(7). We affirm for the reasons stated in this opinion.
I. BASIC FACTS
On September 11, 2016, Crouch lost control of his motorcycle on Comstock Avenue in
Newaygo County after encountering a defect in the roadbed surface. He served the Road
Commission notice of his accident 102 days later. Subsequently, he filed suit against the Road
Commission claiming damages arising out of the crash. The Road Commission moved for
summary disposition under MCR 2.116(C)(7), arguing that Crouch failed to comply with the 60-
day notice provision in MCL 224.21(3). In response, Crouch argued that the applicable presuit-
notice statute is MCL 691.1404(1), which requires a plaintiff suing a governmental agency to
provide notice within 120 days. Relying on this Court’s decision in Streng v Mackinac Co Rd
Comm’r, 315 Mich. App. 449; 890 NW2d 680 (2016), the trial court determined that the 60-day
notice provision was applicable and granted the Road Commission’s motion for summary
disposition.
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II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Crouch argues that the trial court erred by granting summary disposition under MCR
2.116(C)(7). A court’s decision to grant summary disposition is reviewed de novo. Pierce v
Lansing, 265 Mich. App. 174, 176; 694 NW2d 65 (2005).
B. ANALYSIS
Crouch asserts that the trial court erred by holding that the 60-day notice requirement in
MCL 224.21 applies in this case, and contends that the 120-day notice provision found in MCL
691.1404(1) should apply. In support, he directs this Court to our Supreme Court’s decision in
Brown v Manistee Co Rd Comm, 452 Mich. 354; 550 NW2d 215 (1996), overruled by Rowland v
Washtenaw Co Rd Comm, 477 Mich. 197; 731 NW2d 41 (2007). In Brown, our Supreme Court
noted:
[T]he two potentially governing statutes in this case provide different notice
periods. MCL 224.21, addressing county road commission liability, compels the
injured party to file a notice of the claim with the clerk and the chairman of the
board of county road commissioners within sixty days of the injury. MCL
691.1404, addressing the identical liability for the state, its political subdivisions
(including county road commissions), and municipal corporations, requires the
injured party to file a notice of the claim with a governmental agency within 120
days of the injury.
The Brown Court resolved the conflict by determining that the 60-day “notice provision required
for claims against a county road commission is unconstitutional.” Id. at 363-364. Brown, however,
was overruled by the Supreme Court. Rowland, 477 Mich. at 223. Subsequently, in Streng this
Court expressly held MCL 224.21(3), not MCL 691.1404(1), applies to actions against county
road commissions. Streng, 315 Mich. App. at 463.
On appeal, Crouch first argues that Streng wrongly departed from our Supreme Court’s
ruling in Brown, so this Court may not follow Streng and must apply Brown. We disagree.
A published opinion of this Court has precedential effect under the rule of stare decisis and
binds lower courts and tribunals. Catalina Mktg Sales Corp v Dep’t of Treasury, 470 Mich. 13,
23; 678 NW2d 619 (2004); MCR 7.215(J)(1). As a result, until and unless the Supreme Court
overrules the Streng decision, “all lower courts and tribunals are bound by that prior decision and
must follow it even if they believe that it was wrongly decided or has become obsolete.” See Paige
v Sterling Hts, 476 Mich. 495, 524; 720 NW2d 219 (2006). To avoid the precedential effect of
Streng, Crouch notes that this Court “may not follow any opinion previously decided by this Court,
no matter when, to the extent that [this Court’s] opinion conflicts with binding precedent from our
Supreme Court, . . . .” Woodring v Phoenix Ins Co, 325 Mich. App. 108, 115; 923 NW2d 607
(2018). Crouch argues that because Streng conflicts with Brown and because Brown is a Supreme
Court opinion, this Court must follow Brown’s holding that the notice provision of MCL
691.1404(1) applies to county road commissioners. Yet, this Court is bound by the decisions of
the Michigan Supreme Court “except where those decisions have clearly been overruled or
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superseded, [this Court] is not authorized to anticipatorily ignore [Supreme Court] decisions
where it determines that the foundations of a Supreme Court decision have been undermined.”
Associated Builders & Contractors v Lansing, 499 Mich. 177, 191-192; 880 NW2d 765 (2016).
Here, as recognized by Streng, Rowland overruled Brown, and in doing so, “the Rowland Court
repudiated the entirety” of Brown “because the analysis [it] employ[s] is deeply flawed.” Streng,
315 Mich. at 459. Thus, because Brown was clearly overruled, this Court is not bound to follow
it, see Associated Builders, 499 Mich. at 191-192, and must instead follow Streng, see Catalina
Mktg Sales Corp, 470 Mich. at 23; MCR 7.215(J)(1).
Crouch alternatively argues that even if Streng is binding precedent, this Court should
declare that it was wrongly decided and call for a conflict panel under MCR 7.215(J)(2). Our
Supreme Court, however, has granted leave in Pearce v Eaton Co Rd Comm, 941 NW2d 378
(2020) and Brugger v Midland Co Bd of Road Comm’rs, 941 NW2d 379 (2020), and has
specifically directed the parties to address whether Streng was correctly decided. Accordingly,
because the issue is already slated to be resolved by our Supreme Court, we decline to call for a
conflict panel.
Affirmed.
/s/ James Robert Redford
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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