                            STATE OF MICHIGAN

                            COURT OF APPEALS



LASHAWN D. REDMOND,                                                   UNPUBLISHED
                                                                      December 2, 2014
               Plaintiff-Appellant,

v                                                                     Nos. 313413 & 315416
                                                                      Wayne Circuit Court
STATE FARM MUTUAL AUTOMOBILE                                          LC No. 10-011348-AV
INSURANCE COMPANY,

               Defendant-Appellee.


Before: MURRAY, P.J., and JANSEN and SHAPIRO, JJ.

SHAPIRO, J. (concurring).

        I concur with the majority’s conclusion because we are bound by this Court’s decision in
Moody v Home Owners Ins Co, 304 Mich App 415; 849 NW2d 31 (2014). MCR 7.215(J)(1). I
write separately because I believe that Moody was incorrectly decided. Its reasoning is flawed
and the radical and wholesale changes it imposes on well-settled rules of practice are confusing
and impracticable. But for the fact that the Michigan Supreme Court has granted the Moody
plaintiffs’ application for leave to appeal, at least in respect to the issues discussed herein, Moody
v Home Owners Ins Co, ___ Mich ___; 853 NW2d 331 (2014), I would request a special conflict
panel of this Court to resolve the issue. MCR 7.215(J)(2).

        The Moody panel addressed the issue of the subject-matter jurisdiction “of the district
court under MCL 600.8301 when a plaintiff presents evidence and argument of damages far in
excess of the district court’s amount-in-controversy jurisdictional limit.” Moody, 304 Mich App
at 419. Two consolidated cases with similar facts were decided in Moody. Both plaintiffs
brought claims under the no-fault act, MCL 500.3101 et seq., and requested damages not
exceeding $25,000. Id. at 420-426. Both cases proceeded to trial and both plaintiffs received
jury verdicts in excess of $25,000. Id. The respective district courts subsequently reduced both
awards to $25,000. Id. The same circuit judge heard appeals from both defendants and vacated
both judgments, finding that the district courts had not possessed subject-matter jurisdiction over
either case. Id. at 423-426. The Moody panel affirmed the circuit judge’s orders. Id. at 438.

                              I. STATUTORY INTERPRETATION

      The Moody panel was tasked with interpreting MCL 600.8301(1), which provides that,
“The district court has exclusive jurisdiction in civil actions when the amount in controversy
does not exceed $25,000.00.” “Amount in controversy” is not defined in the statute, but is


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plainly a legal term of art.1 Indeed, the Moody panel cited the legal definition of “amount in
controversy” provided by Black’s Law Dictionary: “[t]he damages claimed or relief demanded
by the injured party to a lawsuit.” Id. at 430, citing Black’s Law Dictionary (9th ed) (emphasis
added). This is a perfectly adequate and understandable definition of “amount in controversy.”
It is a legal term of art that means “the damages claimed or relief demanded.” Nevertheless, the
Moody panel then divorced the word “controversy” from the rest of the term of art and turned to
legal and lay dictionary definitions of this isolated word. Doing so violated the fundamental rule
that “[c]ontextual understanding of statutes is generally grounded in the doctrine of noscitur a
sociis: ‘[i]t is known from its associates,’ see Black’s Law Dictionary (6th ed.), p. 1060.[] This
doctrine stands for the principle that a word or phrase is given meaning by its context or
setting.”2 Koontz v Ameritech Servs, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002) (quotation
marks and citations omitted). It was also inconsistent with the statutory interpretation canon of
favoring the specific over the general, i.e., generalia specialibus non derogant (“the general does
not detract from the specific”). See, e.g., Craig v Detroit Pub Schs Chief Executive Officer, 265
Mich App 572, 575; 697 NW2d 529 (2005). In the underlying Moody cases, both plaintiffs
claimed and demanded relief not in excess of $25,000 and so the “amount in controversy” was
not more than $25,000.

        Ultimately, it is the potential relief and not the evidence that limits the district court’s
jurisdiction. And, it is beyond peradventure that a civil jury verdict is not itself enforceable. No
party may use it to compel payment from another. Only the judgment entered by the district
court has the power of law and may be enforced. There are many settings in which a jury’s
verdict is modified by the court prior to entry of judgment. A court may order remittitur, additur,
setoffs due to collateral sources, reductions for comparative and third-party fault, and many other
potential modifications defined by an applicable statute or rule.

                        II. REJECTION OF APPLICABLE CASE LAW

         The Moody panel rejected out of hand decades of Michigan caselaw that provided an
adequate, simple, and fair manner of determining the “amount in controversy” at the outset of
district court proceedings. 3 Curiously, as follows, Moody made note of these cases but then
ignored them:



1
  The legal concept behind the phrase “amount in controversy,” i.e., the federal “matter in
controversy” concept, has been a legal term of art since at least September 24, 1789, when
President Washington signed into law the Judiciary Act of 1789.
2
 Our Supreme Court has specifically rejected the approach of using lay dictionaries to separately
define words that together make up a term of art. Macomb Co v AFSCME Council 25, 494 Mich
65, 86 n 59; 833 NW2d 225 (2013).
3
  The Moody panel also summarily dismissed any caselaw and theory concerning the $75,000
matter-in-controversy requirement of federal diversity jurisdiction cases. Moody, 304 Mich App
at 434. While we are not bound by the opinions of lower federal courts, “their analyses and
conclusions [may be] persuasive.” Abela v General Motors Corp, 469 Mich 603, 606-607; 677



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       [A]ppellants cite several case for the proposition that subject-matter jurisdiction is
       determined only by the allegations in the plaintiff’s complaint and prayer for
       relief. See Fox v Martin, 287 Mich 147, 151; 283 NW 9 (1938) (“Jurisdiction
       does not depend upon the facts, but upon the allegations.”); Zimmerman v Miller,
       206 Mich 599, 604-605; 173 NW 364 (1919); Trost v Buckstop Lure Co, Inc, 249
       Mich App 580, 586; 644 NW2d 54 (2002) (“‘A court’s subject-matter jurisdiction
       is determined only by reference to the allegations listed in the complaint.’”),
       quoting Grubb Creek Action Comm v Shiawasee Co Drain Comm’r, 218 Mich
       App 665, 668; 554 NW2d 612 (1996); and Altman, 197 Mich App at 472
       (“Jurisdiction always depends on the allegations and never upon the facts.”).
       [Moody, 304 Mich App at 431.]

        Indeed, less than six months before Moody was decided, this Court again clarified that
“subject-matter jurisdiction is established by the pleadings and exists ‘when the proceeding is of
a class the court is authorized to adjudicate and the claim stated in the complaint in not clearly
frivolous.’” Clohset v No Name Corp, 302 Mich App 550, 561; 840 NW2d 375 (2013), quoting
In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993) (emphasis in Clohset). All these cases
have established the bright-line rule that subject-matter jurisdiction is determined by reference to
the parties’ pleadings. Nonetheless, the Moody panel rejected this long line of cases with no
explanation other than its conclusory remark that “[n]one of these cases is factually similar to the
ones at hand[.]” Moody, 304 Mich App at 431. However, all cases present differing factual
situations. The question is whether those differences mandate a different analysis or result and if
so, why they do.

        Here, the factual distinctions do not suggest, let alone require, that the holdings of these
cases be ignored. For example, in the recent case Brooks v Mamo, 254 Mich App 486, 488; 657
NW2d 793 (2002), the jury returned a verdict for the plaintiff for $50,000 after a district court
trial. The district court entered a judgment for $17,985, which reflected the $10,000 amount-in-
controversy limitation in effect at the time, plus costs and interest. Id. While postjudgment
motions were pending, the Legislature modified MCL 600.8301 to increase the district court
amount-in-controversy limitation to $25,000. Id. at 490. This Court reversed the decision of the
circuit court and held that the plaintiff was entitled to a $25,000 judgment, the new maximum
jurisdiction of the district court. Id. at 492-497. Brooks did involve a unique factual scenario, in
that the relevant statute was amended during the course of the underlying action. However,
Brooks clearly stands for the proposition that evidence presented to support damages in excess of
the district court’s limitation does not void a judgment that is within that limitation. The Brooks
plaintiff presented evidence of damages far in excess of both the $10,000 and $25,000
NW2d 325 (2004). Much like our district courts, federal courts are those of limited jurisdiction.
See Kokkonen v Guardian Life Ins Co of America, 511 US 375, 376; 114 S Ct 1673; 128 L Ed 2d
391 (1994). An element of federal diversity jurisdiction is a “matter in controversy” exceeding
$75,000. 28 USC 1332(a). The longstanding federal rule provides that “if, from the face of the
pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed
of[,]” the suit should be dismissed. St Paul Mercury Indemnity Co v Red Cab Co, 303 US 283,
289; 58 S Ct 586; 82 L Ed 845 (1938) (emphasis added). Applied to Moody, from the face of the
pleadings, it was legally certain that the plaintiffs could not recover in excess of $25,000.




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limitations, as evidenced by the jury’s $50,000 award. The Moody panel appears to place great
weight on the fact that the Brooks defendant did not raise a subject-matter jurisdiction argument
identical to that of the Moody defendants. However, this reliance is contrary to Moody’s later
belabored point that subject-matter jurisdiction claims are never waived and that all courts,
including the Court of Appeals, have a duty to sua sponte question subject-matter jurisdiction if
the evidence presented appears to support damages in excess of the jurisdictional amount. See,
e.g., Clohset, 302 Mich App at 560. Indeed, as Moody points out, a judgment rendered by a
court without subject-matter jurisdiction is void; thus, according to Moody, this Court in Brooks
should have found the underlying judgments void and declined to engage in any analysis
regarding the retroactivity of the jurisdictional statute or the other issues presented. Notably,
Moody did not overrule Brooks nor did it request a special conflict panel pursuant to MCR
7.215(J)(2).

                       III. MISDIRECTION OF THE BENCH AND BAR

        Putting aside its analytical shortcomings, the Moody decision suffers from a more serious
defect: it upends settled practice without defining any clear new rules of practice. It tells the
bench and bar what it is doing wrong, but provides no direction as to how they are to do it right.
This is a formula for confusion, inconsistency, and the wasting of judicial resources.

        First, Moody provides no guidance as to when the amount-in-controversy determination
is to be made.4 Moody rejects the longstanding proposition that the determination be made at the
beginning of the litigation, i.e., based on the pleadings. However, it offers no reasonable
alternative. Indeed, it appears that the determination can only be made for certain after the trial
is concluded. Having subject-matter jurisdiction remain at issue until trial ends is a bizarre
arrangement. It places an unnecessary burden on the parties and the courts, and undercuts the
very validity of district court judgments.

        Second, Moody will likely result in a game of jurisdictional ping-pong that will
unnecessarily drain Michigan’s limited judicial resources. Take for example a plaintiff-landlord
who claims he is owed $24,000 in rent by a defendant-tenant. The landlord is required to file
suit in district court since that court has exclusive jurisdiction over cases under $25,000.
However, by the time of trial, the outstanding rents may have risen to $26,000, at which point the
landlord must remove the case to circuit court or risk dismissal after trial. Once he has done that,
however, the tenant may choose to pay $2,000 of the past rent, thus making the case again one
that falls solely within the jurisdiction of the district court. The same is true in a no-fault
personal protection insurance (PIP) case. What shall a plaintiff do when at the time of filing she
has incurred $15,000 in unreimbursed expenses but anticipates that the amount of damages will
likely grow to $30,000 by the time of trial? These situations generated by Moody are completely
unnecessary and will result in protracted litigation, gamesmanship, and congestion of trial court
dockets.



4
  It should be noted that there is nothing in Moody to suggest that its application is limited to no-
fault actions. Moody applies to all district court actions.



                                                -4-
        Third, Moody never states exactly what amount of damages placed in evidence will
trigger all these duties. Moody notes that its plaintiffs submitted evidence of damages “far in
excess” of the jurisdictional limit. What is “far in excess”? At what point must a plaintiff
transfer his case to circuit court in order to avoid dismissal after trial in the district court:
$26,000?, $27,000?, $30,000? What if a witness testifies as to damages at trial that a plaintiff’s
attorney was not aware of and tips the amount past whatever the trial court subjectively
concludes is “far in excess” of the $25,000 limit? The “far in excess” standard is a moving
target, varying from judge to judge and case to case. Yet, to run afoul of this moving target
poses potentially catastrophic consequences.

       Fourth, it is quite possible, particularly in cases with noneconomic damages, that a jury
might award a plaintiff more than his requested damages. If a plaintiff sought $23,000 in
damages, but the jury awarded $30,000, under Moody, the jury’s verdict and judgment would be
void, despite the parties and court having engaged in a full and fair trial in all other respects.
One can also easily imagine a situation where a plaintiff must decline to present relevant and
important evidence for fear that the court or the defendant will argue that the amount-in-
controversy has suddenly exceeded $25,000 and the case must, therefore, be dismissed.

        Fifth, there are specific damage statutes to be considered. Take for example a plaintiff
who alleges that a defendant violated MCL 600.2919 by illegally removing timber from the
plaintiff’s land. At trial before the district court, the parties dispute the value of the timber
removed, but agree that it was between $8,000 and $10,000. However, MCL 600.2919(1)
provides that a plaintiff is entitled to treble damages for the illegal removal of the timber. Under
Moody, it would seem that “the amount the parties to a lawsuit dispute, argue about, or debate
during the litigation[,]” Moody, 304 Mich App at 429-430, was between $8,000 and $10,000, and
thus within the jurisdictional amount-in-controversy limit. However, Moody can reasonably be
read to include the entire possible award in its amount-in-controversy requirement. Moreover, it
can be assumed that our hypothetical defendant would argue that he was not subject to the
statutory trebling provision and, thus, the trebled amount was “disputed” during the litigation. If
plaintiff proves that the timber was worth $8,334 or more, he would be entitled to over $25,000
in damages and the district court would be charged with violating either MCL 600.2919(1) or
Moody. This problem could not be resolved by removal to the circuit court, because if the
plaintiff only managed to prove $8,000 in actual damages, his treble damages would not exceed
$25,000, and under Moody’s reading of the jurisdictional statutes, as discussed above, the circuit
court would also be without jurisdiction. Indeed, in this example, it would be impossible to
determine whether the district or circuit court possessed subject-matter jurisdiction over the
plaintiff’s suit until after the verdicts were determined and damages awarded. Such a procedure
cannot be allowed to stand. See McAuley v General Motors Corp, 457 Mich 513, 518; 578
NW2d 282 (1998) (“Statutes should be construed so as to prevent absurd results . . . .”).

      These are some, but almost certainly not all, of the practical problems that will be posed
by Moody’s application in our trial courts.

                        IV. CONCERNS OVER “FORUM SHOPPING”

       It is fair to ask what motivated the Moody panel to upend settled legal practice. It appears
to me that the Moody panel’s decision was motivated by the plaintiff’s apparent attempt to have


                                                -5-
his cake and eat it to, i.e., to have his case heard in the forum he chose, i.e., district court, while
still submitting the evidence of damages beyond $25,000.

        The initial response to that concern must be that plaintiff was not getting his cake and
eating it too. He was getting only a portion of that cake, i.e., his damages were capped at
$25,000 no matter the evidence presented. In other words, even assuming that making such a
trade-off in order to file in the most favorable forum is to be frowned upon,5 the Moody plaintiffs
paid for the right to be heard in district court. Both juries awarded the respective plaintiffs more
than $25,000, yet the plaintiffs conceded that the court had to reduce those awards to $25,000.
Presumably, many defendants would be content to accept a plaintiff’s voluntary cap on his
damages. In any event, the Moody panel’s disdain for the litigation strategy of a particular
attorney belongs in the realm of professional sanctions, not in the imposition of ill-defined rules
that apply to every case filed. The Moody panel’s dissatisfaction with the parties’ counsel did
not support disrupting Michigan’s entire civil trial system. See Apsey v Memorial Hosp, 477
Mich 120, 141; 730 NW2d 695 (2007) (YOUNG, J., concurring in result only) (Although
legislative clarification may be desirable, Court should “favor a resolution that is least unsettling
and disruptive to the rule of law in Michigan[.]”).

        The pre-Moody rule for practice in our district courts was longstanding, widely accepted,
and simple. A party who brought suit was required to claim damages exceeding or not
exceeding $25,000 and file in the appropriate court. Evidence was presented, verdicts were
rendered, and damages awarded. If those damages exceeded $25,000, the district judge simply
lowered the award to $25,000. This rule was perfectly sustainable, well-known to attorneys,
functioned for decades, and, as discussed, was not inconsistent with the law. “This is the essence
of the rule of law: to know in advance what the rules of society are.” Robinson v Detroit, 462
Mich 439, 467; 613 NW2d 307 (2000). Post-Moody, both the parties and trial judges will be
unclear as to what the rules are at most points during the litigation and, indeed, often not until
after damages have been assessed. This is an impractical, needlessly complicated, and legally
unsupported outcome.

                                         V. CONCLUSION

        For the reasons discussed above, I conclude that Moody was wrongly decided on both
legal and practical grounds and should be overruled. Pursuant to MCR 7.215(J)(1), I must
follow Moody despite my disagreement with it. This would normally lead me to request a
special conflict panel pursuant to MCR 7.215(J)(2). However, because the Supreme Court has
granted leave to appeal in Moody, I believe such a request would be inappropriate.



                                                               /s/ Douglas B. Shapiro


5
  Presumably, attempting to obtain the most favorable forum for a client’s case could be
considered part of an attorney’s duty to zealously represent his client. However, that ethical
debate is not at issue here.



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