                          STATE OF MICHIGAN

                            COURT OF APPEALS



MADISON PAIGE WILLIAMS, Minor, by                                    FOR PUBLICATION
KELLIE A. WILLIAMS, Next Friend,                                     August 2, 2016
                                                                     9:15 a.m.
               Plaintiff-Appellee,

v                                                                    No. 325267
                                                                     Kent Circuit Court
MARK R. KENNEDY, TURNER LAND JACK                                    LC No. 14-000816-NO
LLC, and JACK VISSER,

               Defendants-Appellees,

and

MICHAEL METCALF,

               Defendant-Appellant.


Before: BOONSTRA, P.J., and WILDER and METER, JJ.

METER, J.

       Defendant Michael Metcalf appeals by leave granted from the trial court’s order denying
his motion for summary disposition. Metcalf challenges the trial court’s determination that
genuine issues of fact exist regarding whether he owned a boat at the time of its allegedly
negligent operation. We reverse and remand for entry of judgment in favor of Metcalf.

       Plaintiff Kellie A. Williams, next friend of her minor daughter Madison Paige Williams,
brought this negligence action after a boat struck Madison in Silver Lake in Kent County,
causing partial amputation of her right foot. Plaintiff claims entitlement to relief against Metcalf
under MCL 324.80157, which holds watercraft owners liable for damages resulting from the
negligent operation of their vessels. Defendant Mark R. Kennedy piloted the boat on September
1, 2013, when the accident occurred.

       Kennedy had obtained the boat from Metcalf on August 26, 2013, for $45,000. Kennedy
paid with two $22,500 checks, one drawn from his own account and one from the account of
defendant Turner Land Jack LLC, a business owned by defendant Jack Visser. In exchange,
Metcalf signed and delivered the boat’s “Watercraft Certificate of Title,” which contains a
section entitled “Title Assignment by Seller.” The certificate states that “the ownership of the

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watercraft . . . has been transferred to the following purchaser(s),” listing Kennedy as transferee.
Kennedy left Metcalf’s residence with both the boat and the “Watercraft Certificate of Title”
when the transaction was complete. Metcalf expected Kennedy to apply to the Secretary of State
to transfer legal title using the paperwork he completed and delivered to Kennedy at the point of
sale. Twice, on August 28 and August 30, Kennedy attempted to do so at an office of the
Secretary of State. On both occasions, long lines deterred him from completing this process.
Thus, when Kennedy piloted the boat in Silver Lake on September 1, 2013, striking Madison, the
boat’s sale had not yet been formally reported to the Secretary of State.

      Kennedy successfully completed the transaction at the Secretary of State on September 5,
2013. The transfer-of-title documents list the date of purchase from Metcalf as August 26, 2013.

        In addition to her complaint alleging that all defendants are liable for damages, plaintiff
filed a motion for summary disposition, requesting the trial court to find that Metcalf qualified as
an “owner” of the boat at the time of the accident. Metcalf subsequently filed a cross-motion for
summary disposition, asking the court to determine that he did not own the boat at the pertinent
time. The trial court found genuine issues of material fact regarding the question of Metcalf’s
ownership and denied both motions. Metcalf presently appeals the denial of his motion.

        This Court reviews de novo the trial court’s order denying summary disposition. Johnson
v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). The subrule at issue here is MCR
2.116(C)(10). When reviewing a motion under this subrule, “our task is to determine whether
any genuine issue of material fact exists in order to prevent entering a judgment for the moving
party as a matter of law.” Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776
(1998). “We must consider the pleadings, affidavits, depositions, admissions, and any other
evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt
to the opposing party.” Id. (citation and quotation marks omitted).

      This appeal also involves issues of statutory interpretation, which we review de novo.
2000 Baum Family Trust v Babel, 488 Mich 136, 143; 793 NW2d 633 (2010).

        “[T]he proper role of the judiciary is to interpret and not write the law . . . .” Koontz v
Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Accordingly, this Court
enforces a statute as written if the statutory language is unambiguous. Wickens v Oakwood
Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). While a term “must be applied as
expressly defined” within a given statute, Barrett v Kirtland Community College, 245 Mich App
306, 314; 628 NW2d 63 (2001), undefined words are to be given their “plain and ordinary
meaning, taking into account the context in which the words are used,” Krohn v Home-Owners
Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011) (citations omitted). We may consult a
dictionary in ascertaining plain meanings. Id. This Court must avoid an interpretation that
would render any part of a statute surplusage or nugatory. Robinson v Lansing, 486 Mich 1, 15;
782 NW2d 171 (2010).

        The Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et
seq., sets forth procedures for selling and transferring title to watercraft. MCL 324.80304(1)
states that, except in a situation not applicable here, a person may not sell watercraft “without
delivering to the purchaser or transferee . . . a certificate of title with such assignment on the

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certificate of title as is necessary to show title in the purchaser.” MCL 324.80304(2), a
complementary provision, states that a person “shall not purchase or otherwise acquire a
watercraft without obtaining a certificate of title for it in the person’s name . . . .” Here, it is
undisputable from the evidence that Metcalf qualifies as a seller and Kennedy qualifies as a
purchaser under these provisions of the NREPA. Metcalf successfully delivered the “Watercraft
Certificate of Title” to Kennedy at the point of sale and expressly assigned ownership to
Kennedy within this document in the section entitled “Title Assignment by Seller.”

        The NREPA further provides that “[a]pplication for a certificate of title . . . shall be filed
with the secretary of state within 15 days after the date of purchase or transfer.” MCL
324.80307(1). In a case such as this, where a “certificate of title was previously issued for the
watercraft, [the application] shall be accompanied by the certificate of title duly assigned, unless
otherwise provided in this part.” Id. Thus, Kennedy was required to apply to the Secretary of
State to register the transfer of title within fifteen days of purchase. Kennedy successfully
completed this requirement on September 5, 2013, after the boating accident occurred, by
presenting the certificate of title that had been delivered to him by Metcalf on the date of
purchase.

        The issue in this appeal is whether the seller of a boat qualifies as an “owner” during the
period after a seller delivers the certificate of title to a purchaser but before the transfer of title
has been registered with the Secretary of State. Whether Metcalf is deemed an “owner” during
this period determines his liability under MCL 324.80157 for damages resulting from the boating
accident.

         We note, initially, that MCL 324.80307(1), after discussing the requirements for applying
for a certificate of title, goes on to state that, “[i]f satisfied that the applicant is the owner of the
watercraft and that the application is in the proper form, the secretary of state shall issue a
certificate of title.” This sentence suggests that ownership precedes completion of legal transfer
of title with the Secretary of State. Indeed, legal transfer is impossible if the Secretary of State is
not satisfied that “the applicant is the owner” of the watercraft. The statute implies, then, that
Kennedy, not Metcalf, was the owner at the time of the accident.

        More significantly, MCL 324.80103(i) sets forth an explicit definition of the term
“owner”: “a person who claims or is entitled to lawful possession of a vessel by virtue of that
person’s legal title or equitable interest in a vessel.” No party suggests that Metcalf claimed
lawful possession of the boat at the time of the accident. Nor does any party argue that Metcalf
was entitled to lawful possession by virtue of an equitable interest. Indeed, in exchange for
Kennedy’s full $45,000 payment, Metcalf assigned the boat to Kennedy within the boat’s
certificate of title by signing his name to a declaration that ownership had been transferred.
Delivery to Kennedy was completed when Kennedy accepted both the certificate and the boat
into his possession. Metcalf testified that he expected Kennedy to fulfill the remaining, statutory
requirements for title transfer by applying to the Secretary of State in accordance with MCL
324.80307(1).

       In light of these facts, it is only possible that Metcalf qualified as an “owner” under MCL
324.80103(i) if he was entitled to lawful possession by virtue of his legal title at the time of the
accident. Legal title, as defined by Black’s Law Dictionary (10th ed), exists when title

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“evidences apparent ownership but does not necessarily signify full and complete title or a
beneficial interest.” Metcalf’s name did appear on the certificate of title registered with the
Secretary of State at the time of the accident because Kennedy had not yet successfully
transferred title with that office. Accordingly, Metcalf arguably had legal title to the boat at the
time of the accident. We cannot find, however, that Metcalf was entitled to lawful possession of
the boat “by virtue of” any legal title. MCL 324.80103(i).

        “[B]y virtue of” means “through the force of” or “by authority of.” Merriam-Webster’s
Collegiate Dictionary (11th ed). Even if Metcalf had legal title to the boat at the time of the
accident, it is clear that Metcalf was not entitled to lawful possession through the force of or by
authority of this title. Black’s Law Dictionary (10th ed) defines “possession” as “having or
holding property in one’s power” or “the right under which one may exercise control over
something to the exclusion of all others,” and it defines “lawful possession” as possession that is
“based on a good faith belief in and claim of ownership” or “granted by the property owner to
the possessor.” Metcalf expressly transferred his possessory interest in the boat to Kennedy at
the point of sale. He had no possession granted by Kennedy or possession based on a good faith
claim of ownership.

          Additionally, Kennedy was to apply to the Secretary of State to transfer official title
within fifteen days after the sale, in accordance with MCL 324.80307(1) and MCL
324.80125(5). Any suggestion that Metcalf’s right to lawful possession continued into this
fifteen-day post-purchase period conflicts with these provisions. Indeed, the Secretary of State
would be unable to determine that the applicant for title registration, the purchaser, is the owner
of a vessel if the seller retains the right to possession after a proper transfer of possession and
title at the point of sale.

        For the forgoing reasons, Metcalf did not qualify as an “owner” of the boat for purposes
of the present lawsuit.1



1
  Plaintiff cites Hunt v Adams, unpublished opinion per curiam of the Court of Appeals, issued
June 14, 2012 (Docket No. 304563), in support of her appeal. We decline to rely on this case
because it is nonbinding, see MCR 7.215(C)(1), and also because it is sufficiently
distinguishable. Indeed, in Hunt, the Secretary of State refused to issue a certificate of title to a
purported purchaser, Janis Jones, because of an outstanding lien on the boat. Hunt, unpub op at
2-3. The Hunt Court’s holding that Jones “never legally took title to the boat,” id. at 4, does not
apply here, where the Secretary of State found that Kennedy was indeed the owner and issued a
formal certificate of title on September 5, 2013, and where the transfer-of-title documents filed
with the Secretary of State specify a purchase date of August 26, 2013. We note that, even if we
were to conclude that Kennedy did not acquire legal title to the boat until he obtained a
certificate of title from the Secretary of State, this does not mean that Metcalf was an “owner”
under MCL 324.80103(i) after the sale. The question at issue here—whether, at the time of the
accident, Metcalf was an owner of the boat under the definition set forth in MCL 324.80103(i)—
does not involve an inquiry into whether the assignee acquired legal title to the boat. Kennedy
was, in fact, an “owner” under MCL 324.80103(i) at the time of the accident, in that he had


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        Reversed and remanded for entry of judgment in favor of Metcalf. We do not retain
jurisdiction.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Kurtis T. Wilder
                                                              /s/ Patrick M. Meter




lawful possession by virtue of his equitable title. See Black’s Law Dictionary (10th ed) (defining
“[e]quitable title” as “[a] title that indicates a beneficial interest in property and that gives the
holder the right to acquire formal legal title”). Finally, we note that the additional opinion cited
by plaintiff—Jerry v Second Nat’l Bank of Saginaw, 208 Mich App 87; 527 NW2d 788 (1994)—
is distinguishable because in the present case, as contrasted with Jerry, an assignment of title
from Metcalf to Kennedy occurred. Cf. id. at 92-93.




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