Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  January 23, 2019                                                             Bridget M. McCormack,
                                                                                             Chief Justice

  158531                                                                            David F. Viviano,
                                                                                    Chief Justice Pro Tem
  158538
                                                                                  Stephen J. Markman
                                                                                       Brian K. Zahra
                                                                                 Richard H. Bernstein
  NICHOLAS DAVID BURNETT,                                                        Elizabeth T. Clement
           Plaintiff-Appellee,                                                   Megan K. Cavanagh,
                                                                                                  Justices

  v                                                     SC: 158531
                                                        COA: 338618
                                                        Genesee CC: 14-312262-DP
  TRACY LYNN AHOLA,
           Defendant-Appellant,
  and
  DEREK AHOLA,
             Defendant-Appellee.
  _________________________________________/
  NICHOLAS DAVID BURNETT,
           Plaintiff-Appellee,
  v                                                     SC: 158538
                                                        COA: 338618
                                                        Genesee CC: 14-312262-DP
  TRACY LYNN AHOLA,
           Defendant-Appellee,
  and
  DEREK AHOLA,
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the applications for leave to appeal the August 30, 2018
  judgment of the Court of Appeals are considered. Pursuant to MCR 7.305(H)(1), in lieu
  of granting leave to appeal, we REVERSE the judgment of the Court of Appeals,
  VACATE the June 13, 2018 opinion and order of the Genesee Circuit Court, and
  REMAND this case to the trial court for further consideration.

        Although the plaintiff has asserted the defenses of waiver and estoppel, neither
  defense applies in this case. “A true waiver is an intentional, voluntary act and cannot
                                                                                                               2

arise by implication. It has been defined as the voluntary relinquishment of a known
right.” Landelius v Sackellares, 453 Mich 470, 480 (1996), quoting Kelly v Allegan
Circuit Judge, 382 Mich 425, 427 (1969). There is no dispute that neither defendant
knowingly and voluntarily relinquished their respective right to assert intrinsic fraud or
fraud on the court. And because the defendants’ motion for relief from judgment
constitutes a timely challenge to the validity of the paternity judgment in the same civil
action under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq., collateral
estoppel does not apply. See Jones v Chambers, 353 Mich 674, 680-681 (1958).

       Accordingly, on remand, the Genesee Circuit Court shall: (1) conduct an
in-person evidentiary hearing to determine whether the plaintiff committed intrinsic fraud
or fraud on the court during the ROPA proceedings, which shall include consideration of
relevant evidence discovered after entry of the ROPA judgment; and (2) if so, determine
to what, if any, remedy the defendants are entitled. The Genesee Circuit Court is
DIRECTED to expedite its consideration and resolution of this case.

      We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         January 23, 2019
       t0116d
                                                                             Clerk
