*1 l Ford Motor Co v Bruce FORD MOTOR COMPANYv BRUCE TOWNSHIP 9, 2004, Docket No. 246579. Submitted June at Detroit. Decided October 5, 2004, appeal sought. at 9:00 a.m. Leave to Company petitioned Ford Motor the Tax Tribunal for relief from personal property paid Township, respon- taxes to Bruce dent, under MCL 211.53a.The mutual mistake of fact claimed reporting assets, Ford was Ford’s double of certain which caused Tribunal, double assessments the assessor. The Tax on its own motion, entered an order of dismissal on the bases that Ford had protested review, not the assessments at the board of that the assessments were not the result of either clerical or error mutual required by 211.53a, mistake of fact as and that the tribunal subject-matter jurisdiction. Appeals, had no The Court of Talbot, EJ., JJ., unpublished order, and Wilder in an issued Murray, September 13, 2002, reversed and remanded the case to the joinder tribunal to address the matters of and substitution of (Docket 240649). parties tribunal, No. Before the Ford to moved petition. substitute and make minor corrections in granted substitute, tribunal Ford’s motion to denied its motion for amend, ground leave to and dismissed the on the that Ford properly subject-matter had jurisdic- invoked the tribunal’s petitioner appealed. tion. The Appeals The Court of held: 1. original subject-matter The Tax Tribunal has exclusive and

jurisdiction property proceedings, including pro- over certain ceedings property 205.731, for a refund under the tax laws. MCL requires typing, 211.53a. MCL 211.53a either a clerical error— transposing, calculating incorrectly a mutual mistake of —or petitioner qualify recovery fact for a paid. of excess taxes refund, 2. As a basis of its claim for asserted resulting overpay- there occurred a mutual mistake of fact in the ments. MCL 211.53a. A unilateral mistake is not a basis for recovery. petitioner overpaying The direct cause of the taxes was concerning personal i.e., property, its own mistake the nature of its specificpersonal property the erroneous belief that it owned was taxable. The assessor’s mistake was his erroneous belief that petitioner’s accurate. That is not was disclosure mistake, a mutual mistake of fact. same and there is not principles petitioner sought the use of contract law 3. The principles support are not claim for refunds. Contract law *2 relationship necessarily analogous principles. The to tax law governed taxpayer creáted and a and the tax assessor is between law, voluntary, bargained statutory by a constitutional and not equity, exchange obligations. mistakes that are the of Even in party’s negligence and to its detriment are not result of a own relieved.

Affirmed. RJ., dissenting, stated that the tribunal committed Griffin, subject-matter juris- requiring It did have several errors reversal. tribunal, ruling case. The diction to review the claim this unilateral, though even acted on the Ford’s mistake was mistake, assessor, narrowly too limited the definition of mutual protection effectively eliminating personal property from the of The mistake of fact in this case was the same for MCL 211.53a. parties, is, parties, mutually, relied on the both both personal property being taxable to Ford. listed on the statement as fact, appropriately seeking Given this mutual mistake of Ford was relief the statute. under authority sponte to dismiss sua Ford’s The tribunal had no sections, applicable Code claim. None Administrative 24.287, statutes, through rules, court or the default MCL 24.271 gives authority the tribunal to dismiss the claim without parties. hearing, response motion and Before final may proposed opinion a and allow tribunal offer 24.281, respond, it to but the dismissal in this case was an summary grant disposition for failure to state a

unwarranted the benefit of briefs or motions. claim without allowing petition. The tribunal erred in not Ford to amend its granted particularized A motion to amend should be unless Services, Wilson, Appliances reason exists. Sands Inc v 231, 239-240 reasons for dismissal do not tribunal’s particularized necessary denying reasons for rise to the level of the petition. a motion to amend a Judge proceed- further Griffin would reverse and remand for ings. — — — Payment Recovery Voluntary Taxation Mutual Mistake of Fact. taxes, who, pays taxpayer without-protest, A an excess amount of taxpayer’s filing erroneous basis of which excess amount is Ford Motor Co v Bruce Opinion op the Court personal property, mistake, may statement a unilateral overpayments through by claiming recover the the Tax Tribunal (MCL 211.53[a]). mutual mistake of fact Miller Honigman Schwartz and (by Cohn John S. Kane) for the petitioner. Dloski, (by Dloski),

Seibert and PLLC Lawrence W respondent. Curiae: Amicus

Robert S. LaBrant for the Michigan Chamber of Commerce. GRIFFIN,EJ.,

Before: HOOD, CAVANAGHand FORT JJ.

CAVANAGH,J. Petitioner appeals right as of the dis- missal of for review the Michigan Tax *3 (MTT) Tribunal the ground on that it lacked subject- matter jurisdiction.1 affirm. We February 19, 2002,

On petitioner filed petition its pursuant review to MCL 211.53a for of recovery tax payments not made under protest. that, It averred of a fact, because mutual mistake of paid it had taxes in excess of the correct and lawful amount since “Peti- tioner and Respondent did not realize at time the the personal property tax statements were filed that Peti- tioner was reporting double certain Specifically, assets.” petitioner claimed that its inadvertent double reporting on its personal property statements caused respondent personal assess the property twice and petitioner 1 against city Petitioner asserted the same claims the of Woodhaven Wayne County, against city Sterling Heights, and as the well as of which similarly followed, appeals were dismissed the MTT The Docket respectively, by substantially 246378 and Nos. 246379 were resolved opinions day opinion. similar issued on same App 264 Mich

Opinion op the Court constituted property, on the same which pay taxes twice mistake of fact under MCL 211.53a. a mutual an 13, 2002, sponte the MTT sua entered On March held, The MTT of the action. order of dismissal invoked properly had not pertinent part, petitioner jurisdiction under MCL 205.735 be subject-matter its at protested cause had not assessments MTT held that issue to its board of review. The further at not the result of either a the assessments issue were clerical error or a mutual mistake of fact because solely petitioner’s assessments resulted from failure to properly prepare personal property statements. MTT, Twp, Int’l Place v citing Apartments-IV Ypsilanti 104, (1996), 109; 216 Mich App Detroit, v Wolverine Steel Co (1973), of an presence NW2d 194 noted that the “mere erroneous assessment does not suffice as either a cleri and, fact,” thus, cal error or mutual mistake of peti subject- tioner failed to invoke MTT’s properly matter jurisdiction Finally, under MCL 211.53a. MTT remedy reporting noted that the for the incorrect through of a personal property filing Michigan with the State Tax Commission under MCL 211.154. appeal

Petitioner filed its claim of with this Court and, reaching appeal, without the merits of the order dismissal was reversed and the matter re- purpose addressing manded to the MTT for the necessary joinder parties. issue of or substitution of Romeo, Ford Motor unpublished Co order of (Docket entered No. Appeals, September 240649). Thereafter, petitioner submitted a motion to *4 the MTT to amend its to substitute Bruce Township city respondent for the of Romeo as and to minor The amended petition. make corrections Ford Motor Co v Bruce Opinion it filed to MCL pursuant that was petition averred as personal property paid for a taxes 211.53a refund was property mistake in that a result a mutual averred and assessed twice. It further reported twice jurisdiction MTT had and exclusive original that 205.73103) to MCL because pursuant over the matter for a tax refund under the proceeding was 17, 2003, granted MTT January On tax laws. substitute, motion for motion to denied its petitioner’s to file an amended and dismissed petition, leave not ground petitioner properly that had petition on subject-matter jurisdiction. the MTT’s This invoked followed. appeal erroneously that the MTT con- argues

Petitioner subject-matter jurisdiction it lacked over cluded sought paid, which a refund of excess taxes petition, 205.731(b), to MCL as a result of a mutual pursuant fact, agree 211.53a. required by mistake We petitioner jurisdiction, with the MTT had but the decision to on the substantive basis uphold dismiss holding of the MTT’s failed to state a —that granted, claim on which relief could be MCR 2.116(C)(8). review a decision of the to deter- We MTT adopted mine whether it committed an error of law wrong legal principle; findings supported by factual material, and evidence on the competent, substantial Plaza, record whole will be disturbed. Professional Detroit, 250 Mich App LLC (2002); Milk Producers Ass’n v Trea- Michigan Dep’t of 486,490-491; sury, Act, grants seq., The Tax Tribunal MCL 205.703 et prop- MTT over original jurisdiction exclusive as follows: erty proceedings original jurisdiction shall

The tribunal’s exclusive and be: *5 App

6 Mich 1 Opinion (a) decision, proceeding A for direct of a final review finding, riding, determination, agency or order of an relat- ing assessment, valuation, rates, assessments, special allocation, equalization, property under tax laws.

(b) proceeding A for refund or redetermination of a tax property [MCL 205.731.] under the tax laws. that, argues pursuant 205.731(b),

Petitioner to MCL jurisdiction the MTT had over for a refund laws, namely, under the tax MCL 211.53a of Act, Tax Property provides: General which Any taxpayer pays who is assessed and taxes in excess of the correct and lawful amount due of a because clerical error or mutual assessing mistake of fact made taxpayer may paid, officer and the recover excess so interest, years without if is suit commenced within 3 from payment, notwithstanding the date of payment protest. was made under Relying on Shell Oil Co v of Kert, Estate 161 Mich App 409, 421-422; (1987), case, NW2d 770 a contract petitioner claims that payment was the result of a “mutual mistake of fact” within the contem plation of the statute mistakenly because “Ford identi fied this property twice on its personal property state ment, and the assessor mistakenly based the on assessment that non-existent property’s putative value.” Because the MTT is power vested with the and authority adjudicate cases, refund it had subject- matter jurisdiction over petitioner’s petition. See In re AMB, 144, 166-167; 248 Mich (2001). Accordingly, turn to we the substantive basis for the MTT’s holding failed to state a —that claim on which relief could granted. be See MCR 2.116(C)(8). meaning of the phrase “mutual mistake of fact” provided in MCL presents 211.53a an issue statu- Ford Motor Co v Bruce Opinion of the Court statute, construing goal In our is to

tory construction. ascertain, to, Legisla- effect the intent of the give and ture; thus, language. the statute’s In we first consider (1999). MCI, If the re clear, ordinary meaning language of the plain necessary permit- neither nor judicial construction is Ward, Valley ted. Sun Foods Co v 236-237; 596 NW2d 119 The fair and natural terms, of the import subject of its in view of the matter *6 law, 467, 474; governs. Wirsing, In re 456 Mich 573 (1998). 8, 2000, MTT an 51 On March issued NW2d designating “order definition of ‘mutual mistake of fact’ as that is used in MCL 211.53a. precedent” phrase v Leoni Corp Twp, General Products Delaware 2001WL (MTT 2001). 249550, 8, Docket March No. We interpretation accord deference to the MTT’s legislatively charged enforcing, statute that it is with are not although interpretation. we bound See Co, 710, Bay the 74th Judicial Dist v 385 Mich Judges of 727-729; (1971); Bechtel Power Corp Div, Revenue 128 Mich Dep’t Treasury, (1983). 340 NW2d 297 following MCL 211.53a was enacted our Supreme v Muskegon Court’s decision Consumers Power Co Co, 243; (1956),2 346 Mich which held 78 NW2d did not equitable principles apply seeking cases recovery paid by of excess taxes mistake because taxa- powers tion are controlled constitutional and statu- case, tory provisions. respon- Id. at 247-251. In that tax, calculated and the excess and dent’s assessor levied petitioner, which failed to discover that amount excessive, tax. The excess tax was the paid was point decimal misplacing result of the assessor Co, supra, part by Spoon-Shacket Consumers Power was overruled in Co, Co, 171; 151, Inc v Oakland 356 Mich App 1 Opinion of the Court the tax data into the tax and assessment entering

when of, example, proper rolls so that instead entered, tax of being the erroneous was $329.40 $32.94 (SMITH, J., dissenting). entered. Id. at 251-253 In other words, misinformation, the error on was based was based on an obvious clerical or arithmetic mistake. grant concluded that the relief re- “[t]o plaintiff would Court to quested require this legislative exercise to write into prerogatives namely, — right the statute the to recover taxes under mutual paid mistake.” Id. at 251.

Subsequently, Legislature in 1958 the exercised its authority provided remedy limited in cases of taxation, i.e., “Any taxpayer who is assessed and pays taxes in excess of the correct and lawful amount due of a clerical because error or mutual mistake of fact made the assessing officer and the taxpayer may paid recover the excess so ... .” MCL 211.53a. In Legislature directly more addressed the issue raised Co, in Consumers Power supra, by enacting MCL 211.53b(l), begins: which “If there has been a clerical error or a mutual mistake of fact relative to the correct figures, taxation, assessment the rate of or the math- ematical computation relating to the assessing of *7 211.53b(2) granted taxes ....” MCL right of recov- ery to both the and the taxpayer assessing officer. are, however,

There clear limits to a taxpayer’s right tax payments recover excess under MCL A 211.53a. law, fact, mistake of rather than of does not accord Detroit, relief. Noll Co v Mich Equipment (1973). 41-43; 211 NW2d 257 An error that is not clerical in nature —the result of typing, transposing, or calculating figures incorrectly assessment not cor- —is rectable under the statute. Int’l Place Apartments-IV, at supra Similarly, 109. the statute does not permit v Bruce Ford Motor Co Opinion of the Court of a unilateral taxes because recovery paid of excess fact, i.e., mistake of fact that is not made a mistake taxpayer. It is this assessing officer and both to the mistake of mutuality regard with requirement is a “mutual Precisely, that is at issue here. what fact assessing officer and the mistake of fact made MCL 211.53a. taxpayer”? phrase impression.

This is an issue first appro- a “acquired peculiar “mutual mistake” has law,” 8.3a, may in the so we first meaning priate in an to ascertain its legal dictionary attempt turn to a 301, 304-305; Jones, meaning. People See (7th ed) Dictionary Black’s Law mistake” as mistake in which each “[a] defines “mutual “[a] misunderstands the other’s intent” and as party mistake that is shared and relied on both error, A defined “[a]n a contract.” “mistake” is an be- misconception, misunderstanding; or erroneous law, Id. neither lief.” In the context of very helpful except definition of “mutual mistake” is may derive that in the implicit concept we mutuality temporal compo- is a or “at the same time” mutual, is, something nent. That to be it must be So, shared or common to parties. both “mutual error, mistake of fact” is a shared or common miscon- belief ception, misunderstanding, erroneous about 211.53a, then, requires material fact. MCL both assessing taxpayer officer and the have the same fact, material regarding erroneous belief the same directly caused both the excess assessment which belief payment and excess taxes.

Here, officer and the assessing taxpayer, peti- tioner, under the same mistake of operating were of the assessment was the fact. The direct cause assessing petitioner’s personal officer’s reliance on *8 Opinion of the Court statements, represented which were as full

property all tangible personal property and true statements of It by petitioner.3 undisputed owned or held that the assessing any officer did not conduct in- independent ventory petitioner’s Accordingly, assets. the asses- sor’s “mistake of fact” was his erroneous belief that petitioner’s disclosure of property was accurate. The petitioner’s payment direct cause of excess of the taxes concerning was its own mistake the nature of its personal property. words, In other of fact” “mistake was its erroneous belief that it specific personal owned assessing was taxable. Because the officer were not under operating the same fact, mistake of a refund under MCL 211.53a was not available and petitioner cognizable failed to state a claim under MCL 205.735. key to the analysis “mistake of fact” under MCL

211.53a is to determine directly what mistake of fact caused the assessor’s excess and compare assessment to the directly mistake fact that caused the taxpayer’s payment. they same, excess If are the mutuality requirement of MCL 211.53a is met. When an assessor assesses a tax in excess of the correct and lawful it, amount and the taxpayer pays always there is mistake that is mutual in the sense both mistake; made a but, always there is not a “mutual mistake fact.” If the assessor’s over-assessment re- sulted from an error in professional judgment with regard subject to the property and the over- taxpayer’s was the payment consequence oversight, there would be no giving “mutual mistake of fact” rise to a remedy above, Corp, In General Products Delaware as discussed the MTT petitioner’s personal property held that such consideration of the tax statement was irrelevant to the “mistake of fact” determination. Id. at disagree directly 37-39. We because reliance on the statement caused the assessment. Ford Motor Co v Bruce Opinion of the Court 211.53a, may under MCL albeit there be a remedy *9 However, available under MCL 211.154.4 for if example, the assessor’s error was because of his reliance on an survey representation by party incorrect a third of a boundary taxpayer paid relying line and the taxes on that same misrepresentation, there be a would mutual of fact for mistake which relief would be avail- able under MCL 211.53a.

The Tax attempted explain Tribunal to this nebulous of “mutual concept applies mistake” as it to property tax law as follows:

Mutuality parties’ occurs at an intersection of the respective specific upon singular facts, focus fact or set of resulting is, and the mistaken belief. That the statute’s phrase mutuality “mutual mistake of fact” necessitates being materially to both the referenced fact the same information, specifically contemplated parties, both concerning the mistaken belief that fact be formed both parties. law, concept property

The of mutual mistake in tax in its application, mutuality present is that must be at both the level of referenced fact and the mistaken belief. The test [sic, simple. party are] criteria is If each references the data, beliefs, same factual but draws different mistaken data, references different factual but draws the same belief, mistaken there is no “mutual mistake fact.” Corp, supra [General Products Delaware 22.] at generally agree We with the MTT’s characterization of “mutuality” test, but find it more complicated we than It and necessary. thirty-plus-page opin- the MTT’s friendly.” ion on the matter are not “user Comparing directly the “mistake of fact” that caused the assessor’s excess to the “mistake of fact” that directly assessment taxpayer’s payment caused the will provide remedy Accordingly, apparent the dissent’s concern that no is avail persuasive. able in the event of such unilateral mistakes is not App l Opinion op the Court requi- information to determine whether

necessary under MCL 211.53a exists. mutuality recovery site to principles support Petitioner relies on contract law phrase of the “mutual mistake interpretation not in parties fact” as “a belief one or both of facts,” assump- to a basic “relate[s] accord with the contract is made and parties upon tion of the which of the materially agreed performances affects the which Co, MTT at 421-422. The parties.” supra See Shell Oil “mutual rejected proposition mistake” terminology equally applicable used in contract law is Delaware Corp, law. See General Products at Contract law are agree. principles 29-31. We supra necessarily analogous principles. to tax law relationship vastly between the contract is *10 taxpayer different from the association between the and by the tax A arises relationship assessor. contractual exchange obligations contract —a of entered bargained requiring into choice and mutual assent or a “meet- ing of the minds” on all essential terms —and Prod- relationship governed by Quality is those terms. Precision, Inc, ucts & Co v 469 Mich Concepts Nagel (2003). 372-373; 362, taxpayer and the tax of by operation assessor’s association arises law governed by Equitable principles may is the law. contracting parties obligations relieve induced fact particularly because mutual mistake of mistake — destroys necessary “meeting require- of the minds” are not principles equally ment for formation —but such or in the area of tax law. See necessary, applicable, Co, Contrary Consumers Power at 246-251. to the supra dissent, it apparent relying should be that we are not on considerations,” “equitable might applicable as be cases, construing contract law the term “mutual mistake.” 13 Co v Bruce Ford Motor Opinion apply if did

However, equitable principles even such disputes, petitioner promotes, taxation to not intercede to relief principles provide these would a “mistake” of fact. The traditional unless there were doctrine found in contract law is an mistake-of-fact as follows: doctrine defines “mistake” equitable meaning equity a non- A mistake within condition, negligent conception, mental or but erroneous by ignorance, misapprehension, or mis- conviction induced understanding, resulting in done or some act or omission parties, one or without its erroneous suffered both being Am [27A character intended or known at the time. 2d, 7, Equity, pp § 525-526.] Jur words, In other “mistakes” that are the result of the negligence, mistaken own and which are to their party’s detriment, See, are not Bateson equity. e.g., relieved 582, 584; (1906); Detroit, v 143 Mich 106 1104 NW 709-710; Omer, Dombrowski v 199 Mich 502 App (1993); Villadsen, Villadsen v 123 Mich App NW2d 707 (1983). 472, 477; NW2d novel; concept “negligent” This mistakes is not rather, in party contract law a to a contract will not be (1) obligation perform relieved of his unless both fact, parties regarding were mistaken a material Gort- Co, 535, 542; ney App & Western R Norfolk (2) (1996), one led party’s negligence party erroneously other believe there was a fact, meeting regarding of the minds a material Warren Co, v Maccabees Mut Ins Life mutually “[The] NW2d 390 are mis- *11 taken, identi- though quite their mental errors are not contract, ‘mutuality,’ cal. In of this there is a due spite to the of the one and the reasonableness of negligence Id., Corbin, Contracts, 608, § p the other.” quoting Further, in explained by Supreme 671. as our Opinion the Court 151, Co, Co, Inc v Oakland Spoon-Shacket (1959), dissenting 156; citing opinion 97 NW2d Co, at can and supra “equity in Consumers Power that one appear intervene whenever is made should unjustly or seeks to enrich himself public private, party, at the of another on account of his own mistake expense vigilance litigatory and the want of immediate other’s — So, equitable principles neither nor the or otherwise.” in Power Co dissenting position espoused Consumers recovery an under MCL 211.53a support equitable of fact” that led to the purported when “mistake taxpayer’s negli- tax was the direct result of the gence. note and with the disagree interpretation

We also in MCL 211.53a set forth as obiter dictum Wolverine Co, § at supra Steel 674: “We believe 53a alludes to questions taxpayer of whether or not the had listed all already it had property, of its listed that sold received, yet interpretation or not etc.” This does not incorporate “mutuality” component analysis 7.215(J)(1). and, thus, rejected. MCR The Wolverine implied Steel Co Court also that MCL 211.53a and in to limit pari 211.53b were to be read materia so as of “mutual of fact” referenced in MCL type mistakes 211.53b, i.e., explicitly 211.53a to those stated MCL mistake[s] “mutual fact relative to the correct assess- taxation, ment figures, rate of or the mathematical computation relating assessing to the of taxes....” Id. very at The MTT inter- adopted 674. also narrow pretation through pari of MCL 211.53a the use of the statutory interpretation, declaring materia rule of MCL 211.53a is limited in specifically application those circumstances relieved under MCL special at 24. Corp, supra 211.53b. General Products Delaware curiae, However, argued by Michigan amicus Commerce, interpreta- Chamber of such restrictive *12 Ford Motor Co v Bruce Opinion of the Court tion of MCL 211.53a ignores legislative clear intent not to so limit the types of “mutual mistakes of fact” as evidenced the omission of provision. such See Far rington Petroleum, v Total Inc, 201, 210; Mich (1993). NW2d 76 Neither we nor the MTT may engraft such a limitation. See id. sum,

In the MTT properly concluded that petitioner was not entitled to relief under MCL 211.53a. Peti- tioner was not assessed did pay taxes of the correct and lawful amount due because of a mutual mistake of fact made itself and the assessing But, officer. MCL 211.53a. did the MTT have the right petition dismiss the sponte? sua The Tax Tribunal rules, AC, R 205.1101 et do seq., not address such dismissals; therefore, we turn to the Michigan Court 205.1111(4). AC, 2.116(I)(1) Rules. 1999 R MCR pro- “If pleadings vides: show that a party is entitled to judgment law, as a matter of or if the affidavits or proofs other show that there no genuine issue of fact, material the court shall render judgment without delay.” Here, the dispositive issue was one law; specifically, the construction of MCL 211.53a. There disputed were no issues of fact. The pleadings showed that respondent was entitled judgment as a matter of law because the averred over-assessment and excess payment were not the result “of a clerical error or mutual mistake of fact made the assessing officer and the taxpayer . . . .” MCL 211.53a. Accordingly, the MTT had right, and duty, to dismiss the action. 2.116(I)(1). reason, MCR For this the MTT properly denied petitioner’s motion to amend be- cause such amendment would be recovery is futile — not afforded grounds on the asserted. See MCL 205.731, 211.53a; Lane v KinderCare Cen- Learning ters, Inc, 231 Mich App 697; 588 NW2d 715 App 1 Dissenting Opinion Griffin, EJ. MTT inappropriately contends that the

Petitioner also However, MTT’s reference to relied on MCL 205.735. 205.735(2) (which MTT jurisdiction on the confers likely an effort to illus- disputes) was over assessment thorough petition- nature of its consideration trate the by means of double alleging overpayment er’s petition be considered here be- and need not further payment an dispute. disavows assessment cause *13 Affirmed. Hood, J.,

Fort concurred. appeals Petitioner as of (dissenting). GRIFFIN, P.J. of right Michigan sponte Tax Tribunal’s sua order péti to amend the denying dismissal and order leave subject-matter The tribunal ruled that lacked tion. adjudicate to this case which jurisdiction taxes sought overpaid personal property a refund I and to MCL 211.53a. would reverse remand pursuant and, therefore, proceedings respectfully for further dis sent.

i fraud, Court’s of the Tax Tribu- “Absent this review determining nal’s decision is limited to whether or in applying adopting tribunal erred the law Bell Tel Co v wrong legal principle.” Michigan Dep’t of 200, 206; Treasury, App 229 Mich (1998). involving This Court reviews de novo issues statutes, including interpretation application Danse Corp statutes, they questions because are law. Hts, v Madison 175, 178; 466 Mich 644 721 In this the tribunal committed several proceeding, ruling reversal. The most obvious is its requiring errors Ford Motor Co v Bruce Dissenting Opinion Griffin, EJ. it lacked subject-matter jurisdiction adjudicate petitioner’s claim for a tax refund. In regard, tribunal confused the issue of subject-matter jurisdic- tion, 2.116(C)(4), MCR with the defense of failure to state a claim on granted, which relief can be MCR 2.116(C)(8).

Subject-matter jurisdiction defined is as follows: Joy 244,

In Corporation, v Two-Bit 287 Mich [288 (1938)], quoted approval NW 45 we with from Richardson (98 842) Ruddy, [1908], v [494-495] Idaho 488 P follows: subject right

“Jurisdiction over the matter of the judicial power cases; court to exercise over that class of particular it, case before power but rather the abstract try pending; a case of the kind or character of the one particular presents and not whether the case is one that action, particular cause or under the facts is triable before pending, the court in which it is because of some may inherent developed during facts which exist and he Estate, 462, [In trial.” re 468-469; Chambers 333 Mich (1952).] NW2d 335

See also In re Hatcher, 505 NW2d People Eaton, (1993); 652-653; *14 (1990), aff d 439 Mich 919

In present case, the tribunal dismissed the case on ground that jurisdiction lacked subject-matter petitioner because did not a allege mutual mistake as required However, MCL 211.53a. the substantive basis for ruling this was the tribunal’s conclusion that petitioner failed to a state claim on which relief could be granted. 205.731(b)

MCL in provides part: “The tribunal’s (b) jurisdiction exclusive and original shall be:... A proceeding for refund or redetermination of a tax under the property tax laws.” APP1 MICH Opinion Dissenting Griffin, EJ. plainly in set forth at issue is of the claim

The nature requests petition, to “order a the tribunal which Clearly, pro- paid.” such a taxes of the excess refund ceeding within the taxes falls a refund of jurisdiction original the Tax Tribunal. and exclusive jurisdiction, subject-matter Therefore, had the tribunal In error of law. re was an on this basis and its dismissal supra. supra, Hatcher, In re Estate, and Chambers n argues petitioner erred in that the tribunal Next, allege determining a mutual failed to that agree. required I 211.53a. of fact as mistake to deter- stated, decisions we review tribunal’s As applying or in the law it erred mine whether wrong legal principle. Michigan adopting Co, Bell Tel involving supra de novo issues at 206. But we review including application interpretation statutes, and Corp, supra 211.53a at 178. MCL Danse tax statutes. states: pays in excess of

Any taxpayer taxes who is assessed due because of clerical correct and lawful amount assessing of fact made or mutual mistake error may paid, taxpayer recover the excess so and the officer years interest, from commenced within 3 if suit is without notwithstanding payment payment, that the date protest. not made under was alleged in this that the mistake The tribunal ruled (double personal property) of the same taxation case only by unilateral mistake committed amounted to a petitioner. mistake could stated tribunal respondent, despite imputed the fact not be respondent reporting petitioner’s mistake relied on Essentially, assessing ruled that the tribunal the taxes. arrived because mutual mistake occurred no *15 Ford Motor Co v Bruce Dissenting Opinion Griffin, EJ. However, at their beliefs from different mistaken bases. in conclusion, reaching inappropri- tribunal ately Apartments-W relied on Int’l Ypsilanti Place (1996). 104; Twp, App Int’l Apartments-IV solely Place dealt with claimed clerical This attempted error. to define what meant, “clerical error” as that term is used in MCL Legislature 211.53b. Int’l Place Apartments-IV, supra at 108-109. Int’l Apartments-W Place neither mentioned MCL 211.53a nor involved a mutual mistake Therefore, any fact. reliance on that case in determin ing meaning mistake mutual of fact MCL Further, 211.53a inappropriate. is MCL 211.53b contains language limiting restrictive mutual to certain mistake statute, In construing situations. of a omission in one provision statute included another statute is presumed intentional. cannot “Courts assume Legislature omitted from inadvertently one statute the language placed statute, then, that it in another on assumption, apply basis of that what is not there.” Petroleum, Inc, Farrington 210; v Total Mich The tribunal’s definition mutual mistake exces- sively It effectively personal narrow. would eliminate property protection from MCL Accord- 211.53a. ing 211.18(2), personal property to MCL is assessed after the individual taxpayer personal prop- creates a erty statement. Usually, the assessor then relies on this personal property statement assess the taxes. Under ruling, any mistake in of ex- tribunal’s inclusion empt doubly would al- property reported property ways be a unilateral mistake because the taxpayer acts in creating Therefore, alone statement. any tax on this not be property would refundable under This the tax- though 211.53a. is true even both l Opinion Dissenting Griffin, EJ. *16 regarding the are mistaken whether assessor

payer ifor it is taxable. property the exists Commerce, curiae, Michigan of The amicus Chamber argues as follows: persuasively the held that “it reasonable for The Tribunal then is assessing rely property in officer to on the tax statement determining property’s the assessment” but “said reliance not, however, as give rise to a mistake of fact does mutual mistake, solely any, taxpayer if in its the was made the property preparation personal of Tri- the statement....” illogical. Order at 2. The Tribunal’s conclusion is bunal assessing agrees “it is the The Chamber that reasonable for rely personal property on It is officer the statement.” however, very reliance, that makes the mistake of fact taxpayer erroneously reports duplicate mutual. When a statement, taxpayer has property property on its tax the duplicate property mistake the exists made a of fact—that assessing the it does not. the officer relies on when When personal in represented property in facts the statement assessment, preparing assessing the the shares officer duplicate property the mistaken the exists. that belief Indeed, assessing property if the officer had the assessed existed, requisite belief that the the without committing officer would been a crime. See MCL have (providing any... assessing “[i]f ... 211.116 that officer willfully any property shall assess more or less than at value, guilty he its true be what believes to be cash he shall ....”). that, of a It is clear on the facts misdemeanor based alleged, there mistake was a mutual of fact.

Mutual mistake has become term of art. Reference of legal dictionary appropriate to a is in a discussion meaning Hagerman Gencorp of a term of art. Auto- 5; motive, 720, n 579 NW2d 347 (7th ed) Dictionary Black’s Law defines mutual mistake mistake that is shared and relied on both “[a] Arbor, ....” In v City Ann 35 Mich Carpenter 612; 608, (1971), noted 192 NW2d we Supreme Court in Spoon-Shacket under decisions y Ford Co Motor Bruce Opinion by Dissenting Griffin, EJ. Co, 151; (1959), Co v Oakland 356 Mich Co, 243; and Consumers Power v Muskegon Co (1956) (SMITH, J., dissenting) (adopted Co) in majority Spoon-Shacket “double, manifold, of the tax” payment same is “one of the simplest “clearly of fact” and undisputably mistakes entitled to The Carpenter explained: restitution.” Court argues plaintiff payments The were made under a mistake of fact and can be therefore recovered holding [supra]. under in Spoon-Shacket plaintiff dissenting has us opinion referred to the of Justice TALBOT SMITH [supra], Consumers Power Co rationale adopted by majority Supreme which was Spoon-Shacket. following In opinion Justice Smith’s 263): (pp found *17 quoted “The last section [1 above Restatement Restitu- (as tion, p 318], carefully § distinguished to be the does Restatement) us, relating from the case before is that to recovery the of ‘void taxes and Such assessments.’ cases normally payments law, involve made mistake under of (see which, Ellenborough’s both for historical Lord ‘mon- mistake’ Lumley, Eng strous in Bilbie v 2 East [102 Rep practical reasons, fairly 448] and have received short cases, shrift in the courts. Confusion between such the and us, involving case simplest before one of the of the mistakes tax) (double, manifold, of payment fact or of the same is portions noted in of person the briefs before us. Here the (i.e., paying person pays ‘where a for the second time a personally’) clearly due from him undisputably and paid, entitled to the restitution of amount so whatever the may illegal situation be as to ‘void and two taxes.’ The policy considerations, situations involve different dif- are ferently treatises, resolved in the cases and and not should [Carpenter, supra be us.” 611-612.] muddled at Here, parties both shared the same factual mistake. They mistakenly property believed that all the on listed the personal property peti- statement was taxable to not, given tioner when it was that was property some App Dissenting Opinion Griffin, EJ. on mutually relied doubly Both reported. on mistake to relied the respondent factual mistake: tax, and and enforce the property assess the Therefore, tax. the paying on mistake in the relied of that a mutual mistake fact was parties committed Legislature. See also intended be remedied Detroit, Steel Co v Wolverine (1973) (“We ques- § believe 53a alludes NW2d 194 has listed all taxpayer tions whether not already it had sold or or listed property, etc.”).1 received, yet not majority acknowledges the term “mutual peculiar meaning mistake” has a the law con- (MCL 211.53a) uses tracts. Because the statute a term, technical rule of construction following should apply: phrases

All and shall construed and under- words be according approved usage of the stood to the common and language; phrases, but words and such as technical and may meaning acquired peculiar appropriate and have law, according to shall be construed and understood peculiar appropriate meaning. [MCL 8.3a.] and such view, ignores In tech- my majority accepted nical of the term “mutual mistake” and understanding substitutes its own construction of statute on the will not equitable equity basis considerations. While normally party’s negligence, relieve a own we mistaken construing are enacted Legislature statute law, deciding equity. this case on the basis of *18 not Contrary majority’s view, petitioner to the does seek but, rather, a “equitable recovery” recovery an autho- by rized statute. purposes This for is a correct construction the statute the case, although majority agree I with that the statement is

Wolverine the obiter dictum. Ford Motor Co v Bruce by Dissenting Opinion Griffin, EJ. majority the the the Finally, decision to add legal limitation of fault to the definition “mutual is not supported language mistake” of the statute in any authority. change policy preference Such is of the province Legislature, not courts. primary statutory rule of construction this should effect to give Legislature’s Court intent expressed through language the statute. Co, v State Farm Mut Ins Proudfoot Given that the tribunal used an interpretation narrow excessively of mutual mistake with it proper meaning, give inconsistent failed to effect to the Legislature’s expressed intent through Therefore, I MCL 211.53a. would hold the tribunal in erred the law and in applying adopting legal a wrong principle. Michigan Co, Bell Tel at supra 206. Accord- I ingly, would reverse and remand for proceed- further ings.

Petitioner next contends that the tribunal had no to authority sponte dismiss I petitioner’s sua claim. agree. The tribunal’s rules state that when appli- an exist, cable tribunal rule not Michigan does Court Rules and MCL 24.271 MCL shall govern 24.287 205.1111(4). AC, R The language of the rule tribunal dismissal, AC, dealing 205.1247(3), with R does allow tribunal to dismiss cases sua sponte. Rather, provides it that the tribunal should respond Given parties. language motions that no exists allowing tribunal rules dismissal the tribunal sua sponte, Court must turn to the Michigan Rules.

Essentially, the tribunal dismissed this case because (1) it that: lacked subject-matter jurisdic- concluded *19 Griffin, EJ. Dissenting Opinion (2) a claim on which failed to state petitioner tion However, the tribunal’s determina- grant relief. could subject-matter jurisdiction stemmed tion that it lacked to state a failed petitioner from its determination allege a mutual mistake (i.e., failed to petitioner claim claim); therefore, is in fact in 211.53a its MCL actuality to state a claim. Conse- a dismissal failure may a with appropriately correlation be drawn quently, 2.116(C)(8). a grant MCR 2.116 allows court to MCR Contrary of a summary party. on the motion disposition ruling, contemplates to the MCR 2.116 tribunal’s briefing being the issue and heard before parties 2.116(G). Here, MCR the tribunal dismissal. See 2.116(C)(8) MCR ruling essence made a without parties briefing of a motion respondent, benefit allowing petitioner respond. to issues, or specifically No within 24.271 et seq. statutes MCL sponte summary to a permit the tribunal issue sua 24.281(1), an disposition ruling. Pursuant to MCL tribunal, ruling final agency issuing such as before a hearing record, a or of the must submit without review adversely a to the and allow proposed opinion parties respond. opportunity affected an to Under circumstances, required a tribunal was to submit respond. to and allow it to proposed opinion petitioner The dismissal amounted to an 24.281. Tribunal’s disposition for failure grant summary unwarranted claim, a to state issued without the benefit of briefs motions.

IV Finally, contends that tribunal erred Again, amend I petition. agree. it to allowing not allow tribunal’s decision dismiss and to for an abuse of discretion. party amend reviewed Ford Motor Co Bruce Dissenting Opinion Griffin, EJ. Detroit, Plaza LLC v 250 Mich App Professional 475; (2002); Turner v Lansing Twp, 103, 112-113; Mich App

A to amend be granted motion should unless a (1) particularized such delay, reason exists as: undue (2) (3) tactics, faith or dilatory bad failure to repeated *20 (4) amendments, cure in previous deficiencies undue prejudice that prevent would the from opposing party (5) trial, a having futility. fair Appliance Sands Services, Wilson, 231, 239-240; Inc v 463 Mich None of the reasons articulated Michigan the Supreme Court existed in this case. essentially gave The tribunal two for denying reasons (1) petitioner’s motion to amend: petitioner’s proposed petition one, new parcels just covered two instead of (2) required by the tribunal rules and the tribunal lacked subject-matter jurisdiction petitioner because failed to state a mutual mistake pursuant to above, 211.53a. As concluded erred in tribunal determining jurisdiction that lacked peti- because tioner failed a to state mutual mistake. did Petitioner allege mistake, a mutual and the Tribunal did have subject-matter jurisdiction hear claim to pursuant to Therefore, MCL 205.731. erred tribunal in deter- mining petitioner’s attempt to amend be would futile. Petitioner could state valid claim under MCL 211.53a.

The other reason articulated for tribunal dismissal, petition that the covers two of parcels prop- one, erty rather than does not rise to the level of particularized reasons articulated the Supreme denying petition. for motion to amend a Peti- original tioner’s petition parcels dealt with five of In property. proposed petition, petitioner amended petition limited the to two of parcels personal property. App Opinion Dissenting Griffin, EJ. part it would of the reason The stated tribunal proposed grant to was that the the motion amend AC, rule 1999 R violated tribunal amendment parcel separate petitions requiring each 205.1240 statutory interpretation ap- property. Principles of of ply This Court of administrative rules. to construction by apply- rule the intent of the drafters must enforce ing meaning plainly expressed. Lacking ambiguity, permitted. City judicial interpretation Romu- is not Quality, Dep’t lus v Environmental (2003). Therefore, we must 678 NW2d plain plain language rule. enforce the language requires file rule to two ques- separate petitions personal property in for the parcels. tion, because it is different though petition flawed it dealt Even was because parcels one, the tribunal with two instead of should not petitioner’s the case and denied motion have dismissed to amend. The flaw the does not rise delay, repeated faith, level of undue bad failure cure *21 Respondent prejudice, futility. deficiencies, undue separating prejudiced by an amendment would be petition petitions into two because the facts would by change, respondent placed not original was on notice petition.2 previous There been no amend- has Finally, petitioner. part ment or faith on the bad not be futile. Given that none amendment would Supreme particularized reasons articulated denying exists, to amend the tribu- Court motion 2 Recently, unpublished per Twp, opinion Co in Ford Motor v Bruce (Docket September 14, Appeals, curiam of the No. Court issued 247186), Tribunal of a our affirmed the dismissal the Tax present duplicates Motor Co. that the claims made Ford dismissing that the Tribunal case: “Petitioner has failed show erred appeal duplicative.” Ford Motor Co v Bruce Dissenting Opinion Griffin, EJ. nal abused its discretion in denying petitioner’s motion Services, to amend. Sands Appliance at supra 239-240. I would reverse and remand for further proceedings.