Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  March 21, 2014                                                                     Robert P. Young, Jr.,
                                                                                                Chief Justice

  Rehearing No. 594                                                                   Michael F. Cavanagh
                                                                                      Stephen J. Markman
                                                                                          Mary Beth Kelly
  146234(53)                                                                               Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano,
  NACG LEASING f/k/a CELTIC                                                                          Justices
  LEASING, LLC,
            Petitioner-Appellee,
  v                                                       SC: 146234
                                                          COA: 306773
                                                          Michigan Tax Tribunal:
  DEPARTMENT OF TREASURY,                                       00-338928
          Respondent-Appellant.

  ____________________________________/

         On order of the Court, the motion for rehearing is considered, and it is DENIED.

         YOUNG, C.J. (concurring).

         Petitioner has filed its motion for rehearing on the ground that this Court’s opinion
  “rests upon a palpable error regarding the existence of a critical fact by which the Court
  clearly was misled.” Motion, p 1. “[T]he Court’s erroneous assumption of a fact not in
  evidence is fundamental to the Court’s holding . . . .” Id. at 4.

         And what was that “critical fact” the Court got so fundamentally wrong in its
  decision? Petitioner claims that this Court erred by “asserting” in its opinion that the
  parties executed the lease in Michigan because that fact is not supported by the record.
  Petitioner was quite adamant in this assertion of error and restated this claim no fewer
  than nine times in its motion for rehearing:

        (1) “[T]here is no evidence whatever in the record that the lease was executed in
  Michigan.” Id. at 1.

          (2) “[T]he Court’s decision is based solely upon a factual assumption having no
  basis in the record . . . .” Id.
                                                                                                               2


      (3) “[T]he record is entirely silent in this regard.” Id. at 2.

       (4) “Nor does the lease itself contain any evidence of where it was executed.”
Id. (emphasis added).

       (5) “There is no reference in either the introductory material or the body of
the lease to indicate where it was executed.” Id. (emphasis added).

      (6) “[E]vidence of the place of execution of the lease is totally lacking.” Id.

      (7) “[The fact of the place of execution] has zero support in the record . . . .” Id.

      (8) “[T]he factual record in this case will not bear the burden of [the Court’s]
holding.” Id. at 3-4.

       (9) “It is clear beyond any question that the Court has committed a palpable error
by basing its holding entirely on a fact that does not exist in the record.” Id. at 4.

       There is just one problem with this assertion and thus the basis for the entire
motion for rehearing: petitioner’s assertion of error is completely belied by page 102b of
petitioner’s own appendix. There, in the “Stipulated Facts and Exhibits” is the very lease
at issue in this case. On the last page of that lease, just above the signatures, is the
following statement:

      In Witness Whereof the parties hereto have executed this Lease on
      April 19, 2005, at Ypsilanti, Michigan. [Exhibit 13 to Stipulated
      Statement of Facts, Petitioner’s Appendix, p 102b (emphasis added).]

        If one needed a textbook example of what constitutes a “frivolous” appellate
paper, one need look no further than petitioner’s motion for rehearing. Under our court
rules, this Court may award sanctions for the filing of a frivolous motion. See MCR
7.316(D). However, in as much as three of petitioner’s lawyers prepared and signed this
motion and presumably charged petitioner for filing it, I believe that is sanction enough.




                         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.
                              March 21, 2014
       t0319
                                                                             Clerk
