                           STATE OF MICHIGAN

                             COURT OF APPEALS



MATTHEW J. SHIFFMAN,                                                 UNPUBLISHED
                                                                     August 14, 2018
               Plaintiff-Appellant,

v                                                                    No. 339291
                                                                     Oakland Circuit Court
AUTO SOURCE WHOLESALE, LLC and                                       LC No. 2016-154248-CK
JAMES M. KATZ,

               Defendants-Appellees,

and

JEFFREY L. KATZ, Individually and as Trustee
of the MARTHA L. KATZ REVOCABLE
LIVING TRUST U/A 03/08/1993 FBO J. KATZ,
and the MARTHA L. KATZ REVOCABLE
LIVING TRUST U/A 03/08/1993 FBO J. KATZ,

               Defendants.


Before: O’BRIEN, P.J., and METER and RIORDAN, JJ.

O’BRIEN J. (dissenting).

        The majority broadly interprets “stealing” in MCL 600.2919a to conclude that a
“stealing” claim permits recovery for a taking by false pretenses. In so doing, the majority
summarily dismisses basic principles of statutory interpretation to reach a result that runs against
the Legislature’s clear intent. Because I would not broadly interpret “steal” when used in MCL
600.2919a, I respectfully dissent.

        MCL 600.2919a does not define “stealing” for purposes of the statute. When interpreting
statutory language, this Court must ascertain the legislative intent that may be reasonably
inferred from the words expressed in the statute. Alken-Ziegler, Inc v Hague, 283 Mich App 99,
102; 767 NW2d 668 (2009). “We must give every word its plain and ordinary meaning, unless
otherwise defined, and may rely on dictionary definitions.” Johnson v Pastoriza, 491 Mich 417,
436; 818 NW2d 279 (2012).




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       Plaintiff argues that we should rely on a legal dictionary’s definition of “steal,” but does
not argue that “stealing” as used in MCL 600.2919a(1) has acquired a unique legal meaning. 1
“A lay dictionary may be consulted to define a common word or phrase that lacks a unique legal
meaning. A legal term of art, however, must be construed in accordance with its peculiar and
appropriate legal meaning.” See Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d
207 (2008). Because I see no reason to conclude that “steal” has acquired a unique legal
meaning—and neither plaintiff nor the majority provides an argument to the contrary—this
Court may consult a lay dictionary to define that term.

        Random House Webster’s College Dictionary (2000) defines “steal” as “to take (the
property of another or others) without permission or right, esp. secretly or by force,” and “to
appropriate . . . without right or acknowledgment.”2 See also People v Pratt, 254 Mich App 425,
428; 656 NW2d 866 (2002) (using the definition of “steal” from Random House to define
“stolen” as used in MCL 750.535(3)(a)). Plaintiff argues, and the majority accepts, that “steal”
should be defined by reference to Black’s Law Dictionary, which defines “steal” as “[t]o take
(personal property) illegally with the intent to keep it unlawfully,” or “[t]o take (something) by
larceny, embezzlement, or false pretenses.” Black’s Law Dictionary (10th ed). Both definitions
of “steal” in Black’s Law Dictionary are broad and encompass a taking by embezzlement: a
taking by embezzlement is an illegal taking and therefore falls within the first definition, and the
second definition expressly states that “steal” means “[t]o take something by . . . embezzlement.”
Thus, if we were to apply either definition from Black’s Law Dictionary, then the separate claim
of “embezzling property” in MCL 600.2919a is rendered surplusage. This violates the basic
principle


1
  I point out that plaintiff urges us to accept a legal dictionary’s definition of “steal” without
consideration of whether reference to a different dictionary may be appropriate. To be clear, it is
a fact that plaintiff does not argue that “steal” has acquired a unique legal meaning. This fact is
not a reason for why I am unpersuaded by the majority opinion. Moreover, this fact is relevant:
if plaintiff argued that “stealing” had a unique legal meaning, this Court would need to address
that argument. And if plaintiff’s argument prevailed, then this Court would be required to
construe “stealing” in accordance with its legal meaning. See Brackett v Focus Hope, Inc, 482
Mich 269, 276; 753 NW2d 207 (2008) (“A legal term of art, however, must be construed in
accordance with its peculiar and appropriate legal meaning.”) (Emphasis added).
2
  The majority states that “Black’s Law Dictionary is among the ‘most useful and authoritative
[dictionaries] for the English language generally,’ ” and it ascribes this assertion to Scalia &
Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), pp 419
& 424. This quote from Reading Law is taken out of context. The actual quote reads, “Among
contemporaneous-usage dictionaries—those that reflect meanings current at a given time—the
following are the most useful and authoritative for the English language generally and for law.”
Reading Law, p 419. Reading Law then lists “English Language” dictionaries and “Law”
dictionaries that it believes are the most authoritative for given time periods. The “English
Language” dictionary listed as the most authoritative for “2001-present” is The Oxford English
Dictionary, not Black’s Law Dictionary. Reading Law, p 423. Black’s Law Dictionary is listed
as the most authoritative “Law” dictionary for 2001-present. Reading Law, p 424.


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       that effect is to be given, if possible, to the whole instrument, and to every section
       and clause. If different portions seem to conflict, the courts must harmonize
       them, if practicable, and lean in favor of a construction which will render every
       word operative, rather than one which may make some idle and nugatory.
       [People v Pinkney, 501 Mich 259, 283; 912 NW2d 535 (2018), quoting Cooley,
       Constitutional Limitations (1868), p 58 (emphasis in Pinkney).]

Although the majority is correct that the canon against surplusage is not an absolute rule, the
majority ignores that the canon should be used “ ‘[w]hen possible . . . to avoid constructions that
would render any part of the Legislature’s work nugatory.’ ” Pinkney, 501 Mich at 283, quoting
People v Seewald, 499 Mich 111, 123; 879 NW2d 237 (2016) (emphasis in Pinkney). In other
words, interpreting words in a statute as having “no meaning” and “no substantive effect”
“should be regarded as the exception rather than the rule.” Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (St. Paul: Thomson/West, 2012) p 178.

       I see no reason to conclude that this case is exceptional so the rule against surplusage
should not apply. 3 This Court is faced with two choices: (1) apply the broad legal definition of



3
 The majority provides some insight into why it believes that the canon against surplusage does
not apply, but its reasoning is general; it fails to provide any reason for why we should ignore the
canon against surplusage in this case.
       Recently, our Supreme Court declined to apply the canon against surplusage, and its
reasoning for not doing so was six pages long. See Pinkney, 501 Mich at 282-288. That
reasoning was directly related to interpreting the statute at issue. After declining to apply the
canon, our Supreme Court drove home that its “finding has historically been—and will continue
to be—exceedingly rare” because “[e]very word of a statute should be given meaning and no
word should be treated as surplusage or rendered nugatory if at all possible.” Pinkney, 501 Mich
at 288 (quotation marks and citation omitted; emphasis in Pinkney). Yet rather than justify its
“exceedingly rare” finding, the majority simply states, “As the canon of surplusage is not an
absolute rule, we decline to adopt the dissent’s reasoning.”
        Moreover, the majority ignores that, when the rule against surplusage is disregarded, it is
generally done in favor of adopting a word’s ordinary meaning. See Reading Law, p 176 (“Put
to a choice, however, a court may well prefer ordinary meaning to an unusual meaning that will
avoid surplusage.”). Yet the majority disregards the ordinary meaning of the word “steal” and
instead adopts the definition from a legal dictionary. Ironically, in Moskal v United States, 498
US 103, 120; 111 S Ct 461; 112 L Ed 2d 449 (1990) (SCALIA, J., dissenting), to which the
majority cites, Justice SCALIA reasoned that the term “falsely made” should be afforded “its
ordinary meaning” rather than a more technical one.
        And contrary to the majority’s apparent assertion, Justice SCALIA’s dissent in Moskal
does not support declining to use the canon against surplusage in this case. Justice SCALIA
reasoned that the drafters were likely repeating themselves because at least two words in the
statute at issue were each defined as synonyms for each other. Id. (“As the United States
conceded at oral argument, and as any dictionary will confirm, ‘forged’ and ‘counterfeited’ mean


                                                -3-
“steal” from Black’s Law Dictionary, which would render the separate claim of “embezzling
property” in MCL 600.2919a surplusage, or (2) apply the definition of “steal” from a lay
dictionary, which would give independent effect to every part of MCL 600.2919a. “If a
provision is susceptible of (1) a meaning that gives it an effect already achieved by another
provision, or that deprives another provisions of all independent effect, and (2) another meaning
that leaves both provisions with some independent operation, the latter should be preferred.”
Reading Law, p 176. Here, because the definition of “steal” in Black’s Law Dictionary would
render part of MCL 600.2919a surplusage, I would reject that definition and adopt a lay
dictionary’s definition of the word.4

        Under Random House’s definition of “steal,” defendants are only liable to plaintiff if they
took plaintiff’s property without permission or right. The undisputed evidence established that
plaintiff willingly loaned defendants $250,000 and consented to the transfer of that money to
defendants. Thus, defendants took plaintiff’s property with plaintiff’s permission, and the
property was never “stolen” under MCL 600.2919a. Although the evidence established that
plaintiff loaned defendants the money under false pretenses, I would hold that MCL 600.2919a
does not provide a cause of action for false pretenses. As noted by the majority, “false
pretenses”—a legal term of art—is “[t]he crime of knowingly obtaining title to another person’s
personal property by misrepresenting a fact with the intent to defraud.” Black’s Law Dictionary
(10th ed). Once a person obtains title to property, he or she “cannot steal it.” People v March,
499 Mich 389, 405; 886 NW2d 396 (2016) (“The first rule is that a person in the rightful
possession[5] of property cannot steal it.”). Thus, a taking by false pretenses does not fit into a


the same thing. See, e.g., Webster’s 2d, supra, at 607 (defining to ‘counterfeit’ as to ‘forge,’ and
listing ‘forged’ as a synonym of the adjective ‘counterfeit’), id., at 990 (defining to ‘forge’ as to
‘counterfeit,’ and listing ‘counterfeit’ as a synonym of ‘forge’). Here, Black’s Law Dictionary
does not list or define “steal” as a synonym for “embezzlement.” In fact, no dictionary that I
could find lists “steal” as a synonym for “embezzlement.” In my opinion, this suggests that,
although “steal” may encompass “embezzlement” when used alone, when “steal” and
“embezzlement” are used together they are not intended as synonyms.
4
  The majority appears to rely on the United States Supreme Court’s use of Black’s Law
Dictionary’s definition of “steal” in United States v Turley, 352 US 407, 411; 77 S Ct 397; 1 L
Ed 2d 430 (1957), to bolster its conclusion. But the statute at issue in Turley was completely
dissimilar to the one at issue here; the Turley statute listed only a charge for “stolen” property
and did not include a separate charge for “embezzled” property. Thus, the Turley Court was not
faced with a situation where the rule against surplusage could apply, and it provides no support
for the majority’s conclusion. It also bears noting that Pratt—the only published case in
Michigan to interpret “stolen” or “steal”—relied on a lay dictionary to define the term. See
Pratt, Mich App at 428. For whatever reason, the majority cites Turley and ignores Pratt.
5
  Using either a lay dictionary or legal dictionary, “title” is defined as the elements constituting
legal ownership, which includes possession. See Black’s Law Dictionary (10th ed) (defining
“title” as “[t]he union of all elements (as ownership, possession, and custody) constituting the
legal right to control and dispose of property”) (emphasis added); Meriam Webster’s Collegiate
Dictionary (11th ed) (defining “title” as “all the elements constituting legal ownership”).


                                                 -4-
lay dictionary’s definition of steal. Because I would adopt the lay dictionary’s definition of
“steal,” and because there is no genuine issue of material fact that defendants acquired plaintiff’s
$250,000 with plaintiff’s permission, I would affirm the trial court.

        The majority disagrees with this conclusion and states that “defendants’ conduct also fits
within the dissent’s preferred definition of ‘steal’ which amounts to a violation of MCL
600.2919a.” The majority seems to believe that it is wrong to conclude that “Katz rightfully took
plaintiff’s money.” But it is unclear why the majority believes this; it is undisputed that plaintiff
loaned—and Katz took—the money based on a valid contract, and plaintiff has since collected
on that contract. In other words, the money was loaned with plaintiff’s permission, and Katz
“rightfully” took the loan money. Although Katz lied to induce plaintiff to loan him the money,
this does not affect whether the money was given to defendants with plaintiff’s permission. If
defendants’ fraud could somehow be construed as defendants taking plaintiff’s property without
plaintiff’s permission, the crime of false pretenses would have never been created; “false
pretenses” would have been considered a type of “unauthorized taking” and fallen under the
umbrella of larceny. See LaFave & Scott, Criminal Law (St. Paul: West, 2nd ed, 1986), pp 702-
704; see also March, 499 Mich at 407, quoting Metamorphosis of Larceny, 89 Harv L Rev at 475
(explaining that, at common law, “anyone in rightful possession of property[] was endowed with
a sort of ‘possessorial immunity’ such that ‘those who acquired possession over chattels were not
subject to criminal liability for subsequent misappropriation’ ”). Simply put, it is clear that Katz
did “rightfully [take] plaintiff’s money,” regardless of how wrong Katz’s intent was in so doing.6



6
  The majority characterizes Katz’s actions as “a misappropriation for a purpose for which the
plaintiff did not give him permission to do.” The majority also states that “defendants falsely
took plaintiff’s money and used it for personal and other expenses unrelated to the purported
‘loan’ agreement with plaintiff and did so without plaintiff’s permission or having any right or
authority to do so.” Contrary to the majority’s apparent assertions, neither the loan agreement
nor the guaranty agreement specified how the loan was to be used; rather, the parties’ only
agreed on the terms of repayment. Thus, there was no “misappropriation for a purpose for which
the plaintiff did not give him permission to do” because the money was loaned without
restrictions. Likewise, the majority is incorrect that defendants used the loan for “expenses
unrelated to the purported ‘loan’ agreement . . . without plaintiff’s permission or having any right
or authority to do so” because (1) the loan agreement did not specify how the loan funds were to
be used so defendants’ use of the funds could not be “unrelated to the” loan agreement, (2)
nothing in the parties’ agreement stated that defendants needed plaintiff’s permission to use the
loan funds, and (3) once the funds were transferred to defendants, defendants had the “right or
authority” to spend the money.
       It is unclear why the majority believes that defendants’ use of the loan funds is an issue.
Defendants’ use of the funds certainly show that Katz’s intent was to defraud plaintiff, but it
does not establish that defendants took plaintiff’s money without his permission. Obviously,
Katz’s actions were wrong; he defrauded plaintiff into loaning him money, used the money for
personal gain, and refused to repay plaintiff when the loan came due. But none of that is relevant
to whether Katz came into possession of plaintiff’s money without plaintiff’s permission. And


                                                -5-
        Ultimately, we are faced with two definitions of “steal”: one that includes a claim for
false pretenses and renders the separate claim of “embezzling property” in MCL 600.2919a
surplusage, and one that does not include a claim for false pretenses but gives meaning to the
entirety of MCL 600.2919a. The Legislature is presumed to be familiar with the rules of
statutory construction. Alma Piston Co v Dep’t of Treasury, 236 Mich App 365, 370; 600 NW2d
144, 147 (1999). I would therefore faithfully apply the canon against surplusage and conclude
that the proper definition of “steal” as used in MCL 600.2919a is the one that does not render the
separate claim of “embezzling property” surplusage. If, as the majority concludes, the
Legislature did not intend what it wrote, I would leave that for the Legislature to fix. 7 For these
reasons, I dissent.

                                                             /s/ Colleen A. O'Brien




because the undisputed facts are that defendants took plaintiff’s money with permission, their
actions should not constitute “stealing” under MCL 600.2919a.
7
  While I do not necessarily take issue with the majority’s reference to MCL 750.218(11) to
define “false pretenses,” MCL 750.218(11) begins with, “As used in this section,” and our
Supreme Court has stated, “By specifically limiting the applicability of [a] definition to certain
statutory provisions, the Legislature expressed a clear intent that the definition should not be
applied elsewhere.” People v Mazur, 497 Mich 302, 314; 872 NW2d 201 (2015). The majority
does not discuss whether MCL 600.2919a should be read in pari materia with MCL 750.218 to
justify adopting that section’s definition. See id. at 313. Assuming that the majority would
conclude that the statutes should be read in pari materia, I see no reason why MCL 600.2919a
should not also be read in pari materia with MCL 750.535, the statute criminalizing receiving or
concealing stolen property. This Court has already held that “steal” as used in MCL 750.535
should be defined by reference to a lay dictionary, see Pratt, 254 Mich App at 428, so if the
statutes are in pari materia, then “steal” in MCL 600.2919a must be interpreted in accordance
with Pratt.
        This aside, the majority’s decision as it now stands in opposition to Pratt leads to an odd
result: a person that knowingly aids in the concealment of property acquired under false
pretenses can be liable for concealing stolen property under MCL 600.2919a(1)(b), but cannot be
guilty of concealing stolen property under MCL 750.535(1), despite the statutes’ remarkable
similarities. Compare MCL 600.2919a(1)(b) (permitting recovery based on “[a]nother person’s
buying, receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled, or
converted property when the person buying, receiving, possessing, concealing, or aiding in the
concealment of stolen, embezzled, or converted property knew that the property was stolen,
embezzled, or converted”) with MCL 750.535(1) (“A person shall not buy, receive, possess,
conceal, or aid in the concealment of stolen, embezzled, or converted money, goods, or property
knowing, or having reason to know or reason to believe, that the money, goods, or property is
stolen, embezzled, or converted.”).


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