PER CURIAM.
Defendants, Ralph and Donna Stenman, appeal as of right a trial court order that, pursuant to a stipulation between the parties, dismissed the remaining claims of plaintiff, the Detroit Edison Company (DTE), with prejudice following an order that granted partial summary disposition in favor of plaintiff. We affirm.
In September 2011, plaintiff installed an advanced-metering-infrastructure (AMI) meter, commonly known as a "smart meter," on defendants' property. In March 2012, defendants mailed a letter to plaintiff indicating that they revoked and denied their consent to the installation of a smart meter or any other meter that emits electromagnetic radiation, conducts surveillance, or records events and activities on their property, asserting a series of claims related to the health-related consequences of smart meters and the legality of plaintiff's installation of such a meter on their property. Additionally, among numerous other claims and demands, defendants asked plaintiff to immediately remove the smart meter from their property, threatened to remove and replace the meter themselves if plaintiff failed to remove it within 21 days after receiving the letter, and asserted that plaintiff's personnel may only enter or perform activities on their property if they schedule an appointment at a time convenient for defendants. Defendants ultimately removed the smart meter and mailed it back to plaintiff in May 2012, installing an analog meter in its place.
On August 17, 2012, plaintiff filed a three-count complaint against defendants.
On October 4, 2012, plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(10), asserting that there was no genuine issue of material fact with regard to the claims raised in Count I of its complaint. With its motion, plaintiff proffered an MPSC order that discussed a staff report that considered concerns similar to those raised by defendants in this case and concluded that the health risks associated with smart meters including radio transmitters were insignificant. Additionally, in its October 9, 2012 reply to defendants' affirmative defenses, plaintiff asserted that the defenses raised by defendants were either untrue or improper under MCR 2.111(F)(3).
In their November 7, 2012 response to plaintiff's motion for partial summary disposition, defendants asserted, among other things, that there were genuine issues of material fact regarding (1) whether plaintiff was authorized by the MPSC to install a smart meter on defendants' property, when plaintiff had failed to show that a smart meter qualifies as a "meter" under the definition set forth in the tariff or any other rule promulgated by the MPSC and (2) whether the smart meter presents a danger to defendants' health and privacy rights under the Fourth Amendment. Defendants also argued that they are entitled to an "opportunity to prove, through an evidentiary process, that their concerns about the health and safety of the [smart meter] . . . are valid," asserting that they had provided "preliminary evidence" indicating "that it is at least plausible that they might meet their burden with respect to the danger posed by [the smart meter]" through the affidavit of Dr. Donald Hillman, which described the alleged effects of a smart meter on the health of a child not involved in the instant case.
On November 16, 2012, plaintiff filed a reply to defendants' response, in which they asserted that both a smart meter and a digital meter qualify under the definition of "meter" under the MPSC rules and regulations and that the MPSC has authorized the use of smart meters.
After holding a hearing on plaintiff's motion, the trial court granted plaintiff's motion for partial summary disposition on November 29, 2012. The opinion provided, in relevant part:
For these reasons and those further stated by Plaintiff, the Court grants Plaintiff's motion for partial summary disposition and orders that Plaintiff shall be entitled to have access to Defendants' property to install, inspect, read, repair and/or maintain its company-owned equipment on their premises. Furthermore, the Court orders that Defendants shall be responsible for the safe-keeping of Plaintiff's property on Defendants' premises. Finally, the Court finds that the MPSC rules govern the rights and responsibilities of the parties. [Citation and some punctuation omitted.]
On December 12, 2012, defendants moved for a 60-day partial stay of the order of partial summary disposition entered in favor of defendant, citing MCR 2.614(B) as the basis of their motion. In particular, defendants asserted that a stay was necessary because defendant Donna Stenman had experienced headaches, nausea, and sleep difficulties when the smart meter was installed, and, as a result, defendants needed time to sell their home and move to another location.
On June 17, 2013, plaintiff filed a motion to vacate the trial court's order granting a partial stay of the proceedings because the purpose of the partial stay was achieved when the MPSC entered an order on May 15, 2013, stating that customers may participate in the opt-out program set forth "under the Non-Transmitting Meter Provision of MPSC Tariff No. 10. . . ." In their response to plaintiff's motion, defendants raised a series of challenges to the validity of the MPSC order and argued that the trial court should not vacate the stay because the reasons for which the stay was granted had not been achieved and because defendants had filed an interlocutory appeal of the trial court's order granting partial summary disposition.
On September 4, 2013, defendants filed a motion for reconsideration of the trial court's order granting plaintiff's motion to vacate the partial stay of the proceedings. Defendants asserted that the trial court had refused to recognize that it was required to stay the proceedings under MCR 7.205(E)(3)
On March 17, 2014, pursuant to a stipulation between the parties, the trial court entered a final judgment that dismissed with prejudice plaintiff's claims that were not resolved by the November 29, 2012 order.
First, defendants argue that the trial court erred by granting partial summary disposition in favor of plaintiff under MCR 2.116(C)(10) because defendants established genuine issues of material fact with regard to (1) whether plaintiff's installation of the smart meter was lawful under the definition of "meter" in the applicable administrative rules and tariff and (2) whether defendants' privacy and health concerns justified or excused their conduct. We disagree.
This Court reviews de novo a trial court's grant or denial of summary disposition. Moraccini v. Sterling Hts., 296 Mich.App. 387, 391, 822 N.W.2d 799 (2012). When reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court may only consider, in the light most favorable to the party opposing the motion, the evidence that was before the trial court, which consists of "the `affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties[.]'" Calhoun Co. v. Blue Cross Blue Shield of Mich., 297 Mich.App. 1, 11-12, 824 N.W.2d 202 (2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), "[s]ummary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). "There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." Allison v. AEW Capital Mgt., LLP, 481 Mich. 419, 425, 751 N.W.2d 8 (2008). Additionally, "[w]here the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in [the] pleadings, but must go beyond the pleadings to set forth specific facts showing that
First, there was no genuine issue of material fact regarding whether the smart meter installed by plaintiff was lawful under the definition of "meter" applicable to the relevant administrative rules and tariff. Plaintiff is a public utility that is regulated by the MPSC. Durcon Co. v. Detroit Edison Co., 250 Mich.App. 553, 554, 655 N.W.2d 304 (2002). With regard to the regulation of public utilities, MCL 460.6(1) provides:
Likewise, Mich. Admin Code R. 460.3101(4) provides, "Each utility may adopt reasonable rules and regulations governing its relations with customers which it finds necessary and which are not inconsistent with these rules for electric service. Adopted rules and regulations shall be filed with, and approved by, the [MPSC]." Accordingly, if the installation of a smart meter is permitted under the regulations promulgated by the MPSC, and the utility rules and tariff approved by the MPSC, the installation of the smart meter was lawful.
On appeal, defendants argue that plaintiff failed to identify the "legal definition" of "meter" under the relevant statutes, regulations, or tariff and failed to assert that the smart meter installed on their residence qualifies under any of these definitions. Contrary to defendants' claims, plaintiff identified the definition of "meter" set forth in Mich. Admin. Code R. 460.3102, which provides the definitions of terms used in the MPSC regulations related to the provision of electric service: "`Meter,' unless otherwise qualified, means a device that measures and registers the integral of an electrical quantity with respect to time." R 460.3102(g). Although the tariff that applied to defendants' receipt of electric service through plaintiff, MPSC No. 10-Electric, did not include its own definition of "meter," we conclude that the definition of "meter" provided in R 460.3102(g) was applicable to the tariff, as the tariff specifically referred to R 460.3102 in its Administrative Rules Index.
Moreover, there was no genuine issue of material fact with regard to whether a smart meter qualifies as a "meter" under R. 460.3102(g), or whether plaintiff's installation of a smart meter was lawful. In the trial court and on appeal, defendants assert that a "meter" installed by a regulated public utility may only perform the functions that it is authorized by law to perform, arguing that the smart meter installed by plaintiff violated. the "lawful definition of `meter'" because it was capable of performing functions other than measuring electricity use. However, based on the plain language of the definition
Second, the trial court properly concluded that defendants failed to demonstrate a genuine issue of material fact as to whether their privacy and health-related concerns constituted valid affirmative defenses that excused or justified their actions related to the smart meter. Mich. Admin. Code R. 460.3409(1) provides:
Additionally, "a utility may shut off or terminate service to a residential customer" if "[t]he customer has refused to arrange access at reasonable times for the purpose of inspection, meter reading, maintenance, or replacement of equipment that is installed upon the premises, or for the removal of a meter," or if "[t]he customer
Likewise, there is no indication in plaintiff's tariff, which was approved by the MPSC, that defendants may violate the provisions of the tariff because of privacy or health-related concerns and continue to receive electricity service. Instead, the tariff expressly states in § C4.3, which pertains to applications for service, that "[a]pplicants for General Service or Industrial electric service will be required to sign a contract or agreement. However, whether an agreement is signed or not, a customer is subject to the rules and rates of the Company and is responsible for the service used." [Emphasis added.] Additionally, § C5.4 of the tariff provides, in relevant part:
Moreover, MCL 750.383a provides that cutting, obstructing, or tampering with the property of an electric utility constitutes a felony, and we have found no authority indicating that privacy or health-related concerns may serve as a defense to actions in violation of MCL 750.383a, which suggests that such defenses are not available.
See also MCR 2.111(F)(3). In the trial court, defendants failed to provide any authority in support of their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff. Likewise, we find no basis for concluding that defendants' concerns should deny relief to plaintiff, and allow defendants to continue receiving electricity service from plaintiff, while defendants continue to violate the applicable rules. Given the record before us, we conclude that defendants must comply with the rules promulgated by the MPSC and the tariff provisions approved by the MPSC in order to continue receiving electric service from plaintiff. Contrary to defendants' claims that receiving service from plaintiff is not a voluntary act because there is not a practical alternative to receiving electricity from plaintiff in southeastern Michigan, it is evident from the application procedures for receiving electric service delineated in the MPSC rules and the tariff, and the various bases available for terminating service, that applying for and receiving electric service from plaintiff is a voluntary act. See Mich. Admin. Code R. 460.106, Mich. Admin. Code R. 460.127; Mich. Admin. Code R. 460.137 through 460.144; MPSC No. 10— Electric, § C4.3.
Furthermore, even if we assume, arguendo, that defendants' privacy or health-related concerns constitute valid defenses to their failure to comply with
In support of their health-related defense, defendants provided the affidavit of Dr. Hillman, discussing the health of a three-year-old child not involved in the instant case. The affidavit does not establish that the smart meter installed at defendants' home operated in a similar fashion, emitted the same level of "electricity [that] permeat[ed] the house," or caused similar health effects, and thus fails to be competent evidence that the smart meter installed on defendants' property posed a risk to defendants' health. Again, considering the evidence that was before the trial court, we conclude that reasonable minds could not differ in finding that defendants failed to provide a factual basis for their privacy and health-related defenses and, as a result, failed to demonstrate that a genuine issue of material fact exists with regard to the viability of those defenses.
Next, defendants assert that the trial court erred by granting plaintiff's motion to lift the partial stay imposed by the trial court after it granted partial summary disposition. We disagree.
We review the trial court's decision for an abuse of discretion.
Defendants assert that the trial court abused its discretion in two ways when it lifted the stay. First, defendants argue that the purpose of the stay had not been fulfilled when the MPSC issued an order that approved plaintiff's opt-out plan because the MPSC, in issuing the order, did not consider the arguments that defendants raised in the instant case, i.e., plaintiff's authority to install smart meters as a condition of service and privacy and health concerns related to smart meters, such that the order was "improper" and was likely to be overturned on appeal. Second, defendants argue that they had offered reasons for why they would be irreparably harmed if the trial court lifted the stay, whereas plaintiff was unable to establish irreparable harm, as demonstrated by the fact that plaintiff accommodated other customers who wanted the smart meters removed from their homes.
We find no basis for concluding that the trial court abused its discretion by granting plaintiff's motion to vacate the stay. The trial court's order granting the partial stay specifically stated that it was entered "for the purpose of obtaining the [MPSC] ruling on Detroit Edison's proposed opt-out provision." Once the MPSC entered its order on May 15, 2013, approving DTE's "application for authority to implement an advanced metering infrastructure non-transmitting meter provision" and requiring DTE to file with the MPSC tariff sheets that complied with the opt-out provision procedures and fees required by the order, the express purpose of the stay was fulfilled. See In re Detroit Edison's Application for Approval to Implement an AMI Opt-Out Program, order of the Public Service Commission entered May 15, 2013 (Case No. U-17503). Accordingly, the trial court's order vacating the stay was not outside the range of reasonable and principled outcomes.
Moreover, given the express purpose of the stay, defendants' claims in the trial court regarding the irreparable harm that they would allegedly face if the trial court lifted the stay were unavailing. Defendants' arguments in that respect constituted a collateral challenge to the validity or enforceability of the trial court's initial order. However, "[a]s with any investigation or litigation, if a litigant wishes to challenge a ruling by a court, the appropriate remedy is to seek a rehearing of the decision or file an appeal." Fieger v. Cox, 274 Mich.App. 449, 459, 734 N.W.2d 602 (2007). Therefore, the trial court did not abuse its discretion by lifting the stay.
Finally, defendants argue that plaintiff's installation of a smart meter on their home constituted a warrantless search in violation of the Fourth Amendment. We disagree.
This Court reviews de novo questions of constitutional law, such as whether an individual's Fourth Amendment right against unreasonable searches has been violated. Bonner v. Brighton, 495 Mich. 209, 221, 848 N.W.2d 380 (2014); see also People v. Frohriep, 247 Mich.App. 692, 696, 637 N.W.2d 562 (2001).
The United States and Michigan Constitutions guarantee every person's right to be free from unreasonable searches. U.S. Const. Am. IV; Const. 1963, art. 1, § 11. However, in order for Fourth Amendment protections to apply, the government must perform a search. Lavigne v. Forshee, 307 Mich.App. 530, 537, 861 N.W.2d 635 (2014); see also People v. Taylor, 253 Mich.App. 399, 404, 655 N.W.2d 291 (2002), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
First, defendants have not shown, or even argued, that an illegal search has already been performed through the smart meter that was installed on their property. Instead, their arguments in the lower court and on appeal focus on the potential for smart meters to collect information from the homes of Americans in the future. Further, defendants have failed to establish that plaintiff's installation of smart meters constitutes governmental action for Fourth Amendment purposes. Even if the state and federal governments have advocated or incentivized, as a matter of public policy, the use of smart meters, there is no indication that the government controls the operations of plaintiff, an investor-owned electric utility, or that plaintiff acts as an agent of the state or federal governments. Accordingly, we reject defendants' claim that plaintiff's installation of a smart meter violated their Fourth Amendment rights.
Defendants also raised several unpreserved issues in their brief on appeal and during oral argument in this Court. First, defendants claim the trial court erred by failing to grant reconsideration of its order granting partial summary disposition on the basis of new evidence. However, defendants' motion for reconsideration was not based on new evidence, but instead raised the same claims, which the trial court declined to rehear. In addition, defendants challenge whether the doctrine of collateral estoppel applies in this case, whether defendants' pleadings should be considered as admissible evidence in support of their health-related claims because they filed the pleadings in propria persona, whether plaintiff violated MCL 750.539d when it installed a smart meter on defendants' property, and whether plaintiff's opt-out provision actually allows customers to fully opt out of the smart meter program. Because these issues were not raised in or decided by the trial court, we decline to review them on appeal. See Ligon v. Detroit, 276 Mich.App. 120, 129, 739 N.W.2d 900 (2007).
Affirmed. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
METER P.J., and CAVANAGH and WILDER, JJ., concurred.
It appears that defendants intended to cite MCR 7.205(F)(3) in their motion for reconsideration and on appeal, but that rule has no applicability here. The trial court did not make a decision on the admissibility of evidence, and the basis of defendants' interlocutory appeal was not the admissibility of evidence. Accordingly, there is no indication that the trial court was required stay the proceedings under MCR 7.205(F)(3) while defendants' application for leave to appeal was pending.