If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PREMIERE PROPERTY SERVICES, INC., FOR PUBLICATION
September 17, 2020
Plaintiff/Counterdefendant-Appellant, 9:05 a.m.
v No. 350784
Kent Circuit Court
MATTHEW CRATER, FRESH OUTLOOK LC No. 18-004204-CB
PAINTING, LLC, and BETTER BRUSH
PAINTING, LLC,
Defendants/Counterplaintiffs,
and
TRUE NORTH PAINTING, LLC,
Garnishee Defendant-Appellee.
Before: SHAPIRO, P.J., and SERVITTO and LETICA, JJ.
SHAPIRO, P.J.
Plaintiff Premiere Property Services, Inc. (plaintiff), served a writ of periodic garnishment
on Truth North Painting, Inc. (True North), to satisfy a judgment obtained against defendants
Matthew Crater, Fresh Outlook Painting, LLC, and Better Brush Painting, LLC (defendants). True
North filed a disclosure acknowledging that it was obligated to make payments to defendants as
subcontractors, but instead of withholding the entire amount owed to defendants, True North
withheld only 25% and paid the remaining 75% to Crater under the mistaken belief that it could
treat the garnished funds as wage earnings owed to an employee. After plaintiff brought a motion
to recover the amount of the other 75% from True North, Crater filed for bankruptcy. The trial
court denied plaintiff’s motion, concluding that it would not hold True North liable for the amount
of payments made to Crater and that plaintiff needed to seek recovery from Crater in the
bankruptcy court instead. The trial court also granted True North’s motion for a protective order
prohibiting plaintiff from further discovery. Plaintiff appeals both rulings. We reverse in full and
remand for further proceedings.
-1-
I. FACTS & PROCEDURAL HISTORY
In the underlying action, plaintiff obtained a judgment against Crater and two companies
that he owns or controls, Better Brush and Fresh Outlook, in the amount of $331,320.67. That
case arose out of a dispute between plaintiff and Crater. Plaintiff hired Crater to solicit and manage
painting projects. Plaintiff terminated the employment relationship in April 2018 and brought suit
in May 2018, alleging that Crater breached a confidentiality and non-solicitation agreement both
during and after his employment by using confidential information regarding plaintiff’s customers
to secure paint jobs for Better Brush and Fresh Outlook. Eventually, the trial court entered a
default against defendants for failure to appear at a status conference. After an evidentiary hearing
on damages, the trial court entered a default judgment against the defendants as well as a
permanent injunction ordering them to comply with the confidentiality and non-solicitation
agreement.
Plaintiffs sought to collect on its judgment against defendants by seeking writs of
garnishment directed at assets of defendants held by others. On March 15, 2019, the clerk of the
court issued a writ for periodic garnishment against True North ordering it to withhold payments
to defendants and instead “make all payments withheld under this writ payable to the plaintiff.”
The writ directed True North to “not pay any obligations to the defendant unless allowed by statute
or court rule” and that “if indebted to the defendant, withholding must begin according to court
rule and continue until the judgment is satisfied.” On April 4, 2019, True North filed a disclosure
stating that it was obligated to pay defendants monthly earnings, describing the nature of those
payments as “subcontractor progress payment[s].”1 The disclosure stated that True North would
begin withholding “immediately if sufficient funds are available.”
On April 12, 2019, plaintiff served True North with interrogatories, seeking information
about its contracts with defendants and payments made to them. True North submitted its initial
response on April 20, 2019, which included invoices showing that it made three substantial
payments to Crater after it had been served with the garnishment. True North’s payments to Crater
totaled $22,746.64, while withholding only $7,610.62 for plaintiff. Through communications with
True North’s president, Troy TerVeen, plaintiff’s counsel learned that True North was withholding
only 25% of the garnished funds on the grounds that the payments to Crater were earnings owed
to an employee.2 Plaintiff’s counsel told TerVeen that True North needed to withhold 100% of
the funds owed to defendants because Crater was a subcontractor of True North, not an employee.
1
MCR 3.101(H) requires that within 14 days after being served with the writ, the garnishee file a
disclosure. True North’s disclosure was not filed, however, until 24 days after it received the writ.
2
MCR 3.101(G)(1)(f) provides that a garnishee is liable for “the portion of the defendant’s
earnings that are not protected from garnishment by law (see, e.g., 15 USC 1673) as provided in
subrule (B)[.]” In turn, 15 USC 1673 (a)(1) provides in part that
the maximum part of the aggregate disposable earnings of an individual for any
workweek which is subjected to garnishment may not exceed
(1) 25 per centum of his disposable earnings for that week[.]
-2-
On May 24, 2019, True North supplemented its discovery response with documents that plaintiff
believed showed an ongoing relationship between True North and defendants. Plaintiff’s counsel’s
urged True North to seek legal counsel, which it did. Since obtaining counsel, True North has not
contended that paying Crater 75% of the funds was proper.
True North’s counsel, however, objected to a notice of deposition served on True North on
or about May 17, 2019. Plaintiff agreed to adjourn the deposition, and on June 7, 2019, filed a
“motion for turnover of funds and/or discovery.” Plaintiff was primarily seeking a judgment
against True North in the amount of the three payments made to Crater, i.e., the other 75% of the
garnished funds. Plaintiff alternatively sought an order declaring that it could depose True North.
On June 26, 2019, Crater filed a chapter 7 bankruptcy petition in the United States
Bankruptcy Court for the Western District of Michigan. On July 16, 2019, True North filed a
response to plaintiff’s motion for turnover of funds or discovery. True North argued that further
proceedings to collect debt owed or allegedly owed to Crater were prohibited by the automatic
stay provided by the bankruptcy petition pursuant to 11 USC 362. True North asserted that the
disputed payments were made to Crater, not his codefendants; that it made no payments to Crater’s
codefendants; and that it had no ongoing obligation to them. As to discovery, True North argued
that plaintiff could not seek a deposition under MCR 3.101(L)(1) because it elected to send
interrogatories instead. True North also argued that plaintiff’s request for deposition was time
barred by MCR 3.101(L)(1)’s 14-day window.
The motion hearing was held on July 19, 2019. Plaintiff argued that Crater’s bankruptcy
petition was of no moment because True North’s contract was with Better Brush, a corporation
that was not seeking bankruptcy protection, and that True North’s prepetition payments had been
made to that corporation, not Crater. Plaintiff conceded, however, that if those payments were due
to Crater in his individual capacity, recovery of those amounts was covered by the bankruptcy
stay.
The trial court first granted the motion for a protective order, agreeing with True North that
plaintiff could serve interrogatories or notice a deposition under MCR 3.101(L)(1), but not both.
Alternatively, the court declined to exercise its discretion to extend the time for noticing a
deposition because further discovery was not necessary. The court explained that if it granted
plaintiff’s motion it would effectively be obligating True North to pay “175 percent” of the
garnished funds, i.e., True North would have to pay plaintiff an amount equaling the 75% of
garnished funds that it already paid to Crater. The court said it would be improper to hold True
North liable for the amount it incorrectly paid Crater. The court also indicated that imposing
liability against True North was inappropriate because plaintiff could seek recovery of those funds
in the bankruptcy court. The court entered orders denying plaintiff’s motion for turnover of funds
or discovery and granting a protective order, and later it denied plaintiff’s motion for
reconsideration challenging both orders.
-3-
II. ANALYSIS
A. GARNISHEE LIABILITY
On appeal, plaintiff first argues that the trial court erred by failing to issue a turnover order
for the amount of the contested funds. Setting aside the bankruptcy proceedings for the moment,
we agree with plaintiff that the trial court erred by denying plaintiff entry of judgment on the
grounds that it would not hold True North liable for the amount that it paid to Crater in violation
of the writ.3
Once a judgment is obtained, garnishment is a legitimate and common
procedure to satisfy a claim. The design of a garnishment proceeding is to preserve
a principal defendant’s assets in the control of the garnishee, i.e., one who has
property or money in his possession belonging to the defendant, so that the assets
may later be accessible to satisfy a judgment against the principal defendant.
Rather than being a new or different action, a garnishment proceeding is ancillary
to the original suit. [Ward v Detroit Auto Inter-Ins Exch, 115 Mich App 30, 35;
320 NW2d 280 (1982).]
Garnishment is governed by Chapter 40 of the Revised Judicature Act of 1961, MCL 600.4001 et
seq. “Garnishment proceedings are entirely creatures of statute and are to be strictly construed.”
Westland Park Apartments v Ricco, Inc, 77 Mich App 101, 104 n 1; 258 NW2d 62 (1977). MCL
600.4011 authorizes garnishment against:
(a) Personal property belonging to the person against whom the claim is
asserted but which is in the possession or control of a third person if the third person
is subject to the judicial jurisdiction of the state and the personal property to be
applied is within the boundaries of this state.
(b) An obligation owed to the person against whom the claim is asserted if
the obligor is subject to the judicial jurisdiction of the state. [MCL 600.4011(1)(a)-
(b).]
“The court may exercise its garnishment power only in accordance with the Michigan Court
Rules.” Nationsbanc Mortg Corp of Georgia v Luptak, 243 Mich App 560, 564; 625 NW2d 385
(2000).
MCR 3.101 is the court rule governing garnishment after judgment. There are two types
of postjudgment garnishments: periodic and nonperiodic. MCR 3.101(B)(1)-(2). Periodic
garnishments are garnishments of periodic payments, including “wages salary, commissions,
bonuses, and other income paid to the defendant during the period of the writ; land contract
3
This issue turns on the interpretation of statute and court rule, which is a question of law that we
review de novo. See Henry v Dow Chemical Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
-4-
payments; rent; and other periodic debt or contract payments.” MCR 3.101(A)(4). A periodic
garnishment continues until the judgment is satisfied. MCL 600.4012(1); MCR 3.101(B)(1)(a).
MCR 3.101(E) requires that the writ of garnishment direct the garnishee to “pay no
obligation to the defendant, unless allowed by statute or court rule.” MCR 3.101(E)(3)(d). This
is known as the “injunction provision” of the garnishment court rules. See Royal York of Plymouth
Ass’n v Coldwell Banker Schweitzer Real Estate Servs, 201 Mich App 301, 306; 506 NW2d 279
(1993). The court rule governing withholding for periodic payments provides that “the writ shall
be effective as to obligations owed and property held by garnishee as of the time writ is served on
the garnishee.” MCR 3.101(I)(1).4
MCR 3.101(G) governs the garnishee’s liability. MCR 3.101(G)(1) “delineates the various
categories of items for which a garnishee is liable.” Nationsbanc Mortg Corp of Georgia, 243
Mich App at 564. In part, MCR 3.101(G)(1) provides:
(1) Subject to the provisions of the garnishment statute and any setoff
permitted by law or these rules, the garnishee is liable for
* * *
(d) all debts, whether or not due, owing by the garnishee to the defendant
when the writ is served on the garnishee, except for debts evidenced by negotiable
instruments or representing the earnings of the defendant[.] [MCR 3.101(G)(1)(d).]
“The garnishee is liable for no more than the amount of the unpaid judgment, interest, and costs
as stated in the verified statement requesting the writ of garnishment . . . .” MCR 3.101(G)(2).
In this case, the garnishee’s liability is not disputed. That is, True North does not contest
that it was required to withhold all payments due to defendants after service of the writ and that it
violated the writ by making three payments to Crater. Nonetheless, the trial court denied plaintiff’s
request for a judgment against True North because it had already paid Crater the garnished funds.
Under such reasoning, a garnishee who violates a writ of garnishment by making payment directly
to the defendant cannot be held liable because it is no longer in possession of an obligation owed
to the defendant. We reject this reasoning as circular.
4
MCL 600.4012 was substantially amended in 2015, 2015 PA 14, to provide a detailed procedure
for obtaining a default and default judgment against a garnishee. See MCL 6000.4012(6)-(10);
MCR 3.101(S)(1)(b). The statute provides that the plaintiff may seek a default when, among other
requirements, the garnishee “fails to perform any other required act . . . .” MCL 600.4012(6)(a).
However, True North does not argue that plaintiff was required to follow that statute. Accordingly,
whether a “motion for turnover of funds” was the correct procedural mechanism to obtain a
judgment in this case is not before us and we express no opinion on that matter.
-5-
Plaintiff relies on Chayka v Brown, 92 Mich App 360; 284 NW2d 530 (1979),5 which is
instructive. In that case, the garnishee “paid funds owing to Principal Defendants after service of
the writs of garnishment issued by the District Court, contrary to the express prohibitions therein.”
Id. at 364-365. The trial court entered a judgment against the garnishee, ordering it to pay the
plaintiffs 1 ¼ of the balance owed under the previous judgment pursuant to the penalty provision
then provided by GCR 1963, 738.5. Id. This Court reversed the imposition of the penalty, but
affirmed that the garnishee was liable to the plaintiff for the payments made to the defendant in
violation of the writ:
[The writs] directed the Garnishee Defendant to deliver no tangible or intangible
property to principal defendants unless allowed by statute, court rule or court order.
They also clearly indicated that Garnishee Defendant was not to pay any obligations
to the principal. Yet, while these writs were in effect, Garnishee Defendant
accelerated its installment payments to Principal Defendants under the land contract
and took title to the property.
Garnishees’ duties and obligations under the rules and their potential
liability to the plaintiffs attach at the time they are properly served with the writ.
GCR 1963, 738.4, 738.5. They then become responsible for the timely performance
of the specific duties imposed by GCR 1963, 738, at the risk of default judgment
against them which may be executed against their own funds or property, GCR
1963, 738.8.[6] [Id. at 368-369.]
The Court concluded that the garnishee’s “violation of the express prohibitions embodied in these
writs cannot be sanctioned.” Id. at 370.
Thus, while the garnishee in Chayka no longer had any obligation to the defendant, it was
nonetheless liable to the plaintiff for amount of the payments made to the defendant in violation
of the writ. In this case, by denying plaintiff a garnishment judgment on the grounds that it would
not hold True North liable for the amount of payments made to Crater, the trial court implied that
garnishment judgments may not be executed against the garnishee’s personal assets. However,
there is nothing in the garnishment statute or court rule that indicates that a garnishment judgment
5
A decision from this Court published before November 1, 1990, is not binding but may be relied
on for its persuasive value. In re Stillwell Trust, 299 Mich App 289, 299 n 1; 829 NW2d 353
(2012).
6
We recognize that at the time Chayka was decided, GCR 1963, 738.8 provided that “[j]udgment
shall not be rendered against the garnishee or his property until after judgment has been recovered
by the plaintiff against the principal defendant.” However, that provision—not just the phrase “or
his property”—was not included in the Michigan Court Rules, effective March 1, 1985, which
provided separate rules governing post- and pre-judgment garnishment. See MCR 3.101-MCR
3.102. So we do not view the absence of this provision in the current court rules as supporting a
conclusion that garnishees may not be held personally liable to the plaintiff.
-6-
for a sum certain should be treated differently than any other money judgment. MCR 3.101(O)(1)
provides:
Judgment may be entered against the garnishee for the payment of money or the
delivery of specific property as the facts warrant. A money judgment against the
garnishee may not be entered in an amount greater than the amount of the unpaid
judgment, interest, and costs as stated in the verified statement requesting the writ
of garnishment. Judgment for specific property may be enforced only to the extent
necessary to satisfy the judgment against the defendant.
While the amount of the garnishee’s liability is determined by the property belonging to or
the obligation owed to the defendant, see MCR 3.101(G)(1), that says nothing about how that
liability may be satisfied. In other words, it does not follow that a garnishee’s liability may be
satisfied only with the defendant’s assets if the garnishee fails to adhere to the requirements
imposed on a garnishee. That interpretation would allow garnishees to escape all liability by
turning over property and paying obligations to the defendant in violation of the writ. And in
interpreting statutes and court rules, we are mindful of avoiding absurd results. See McAuley v
Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
Significantly, True North does not dispute that, as a general matter, garnishees may be held
personally liable to the plaintiff. Instead, True North argues that this result was not warranted in
this case because it made efforts to comply with the garnishment. We first note that plaintiff
disputes that True North’s improper payments to Crater were the result of a good-faith mistake.
But setting that aside, True North does not identify any court rule, statute, or caselaw that grants
trial courts the discretion to deny the plaintiff recovery because of inadvertent noncompliance.7
7
We are aware of only one provision that contemplates consideration of the garnishee’s intent in
determining the amount of judgment against a garnishee. If a plaintiff obtains a default judgment
for a periodic garnishment, which may be in the full amount of the unpaid judgment, see MCL
600.4012(9), and the garnishee files a motion within 21 days:
[T]he court shall do 1 or more of the following, as applicable:
(a) If the garnishee certifies by affidavit that its failure to comply with the
garnishment was inadvertent or caused by an administrative error, mistake, or other
oversight and it will immediately begin withholding any available funds or
immediately begin performing any other required act pursuant to the garnishment
as provided by statute or court rule, reduce the default judgment to not more than
the amount that would have been withheld if the garnishment had been in effect for
56 days. [MCL 600.4012(10)(a).]
Thus, MCL 600.4012(10) applies to a very limited circumstance, and it does not grant the trial
court discretion to deny recovery against the garnishee but merely to reduce a prior default
judgment to payments that should have been withheld within 56 days of the service of the writ.
-7-
The trial court was concerned about imposing double liability on True North, i.e., holding
the garnishee liable to pay plaintiff the same amount that it improperly paid to defendant.
However,8 that concern must be weighed against the fact that garnishment is a key mechanism for
prevailing parties to enforce money judgments obtained through the courts. Allowing a garnishee
to transfer garnished funds to a defendant without risk of liability could greatly frustrate that
remedy, the purpose of which is “to preserve a principal defendant’s assets in the control of the
garnishee.” Ward, 115 Mich App at 35. In addition, our holding merely requires garnishees to
obey the law by performing their responsibilities defined by statute and court rule. We see no
reason to deviate from those provisions simply because a garnishee fails to accurately understand
its legal responsibility.
In sum, the trial court erred by denying plaintiff’s request for entry of judgment on the
basis that it would not hold True North personally liable for the amount paid to Crater in violation
of the writ of garnishment.
B. BANKRUPTCY
In denying plaintiff’s motion for turnover of funds, the court opined that further
proceedings on the garnishment were subject to the bankruptcy stay arising out of Crater’s
bankruptcy petition.
11 USC 362 provides for an “automatic stay” upon the filing of a bankruptcy petition.
Frederick v Federal-Mogul Corp, 273 Mich App 334, 337-338; 733 NW2d 57 (2006). “The
automatic stay goes into effect upon the filing of a bankruptcy petition, prohibiting certain actions
against the debtor or property of the bankruptcy estate.” In re Buchanan, 273 BR 749, 751 (Bankr
MD Ga, 2002). It is well settled that the automatic stay applies to garnishment proceedings. See
e.g., MCR 3.101(K)(2)(b) (a defendant may object to a writ of garnishment within 14 days on the
grounds that “garnishment is precluded by the pendency of bankruptcy proceedings.”).
We have no doubt, therefore, that the bankruptcy stay applied to the garnishment directed
at True North insofar as it sought funds due the bankrupt party, Crater. However, the other
defendants, Better Brush and Fresh Outlook, are not in bankruptcy and plaintiff maintains that the
sums paid to Crater by True North were actually due the companies and not Crater personally. If
true, then Crater’s bankruptcy would not stay any enforcement of a garnishment seeking assets of
Better Brush or Fresh Outlook. No grounds have been presented to apply a bankruptcy stay to a
garnishment directed at collecting sums due from the garnishee to someone other than the bankrupt
party.
8
We note that “[a] garnishee may recover an amount for which the garnishee is liable because of
the entry of a default judgment under subsection (9) or (10) from future periodic payments to the
defendant as provided in section 7 of 1978 PA 390, MCL 408.477.” MCL 408.477 governs
deduction from wages, and so is not applicable to this case. However, it shows that the Legislature
is aware that garnishees may be held personally liable, otherwise a right of recovery against the
defendant would not be necessary.
-8-
The trial court determined, however, that regardless of who the payments were actually
owed, plaintiff needed to seek recovery of the contested payments from Crater in the bankruptcy
proceedings. Yet the question before the trial court was more limited, i.e., whether Crater’s
bankruptcy precluded further proceedings to enforce garnishment in the state court until such time
that the bankruptcy was resolved.9 To the extent that the trial court ruled that plaintiff had to seek
recovery from the bankruptcy trustee rather than seek collection through garnishment, it was in
error. Plaintiff’s motion to enforce the garnishment is based on the garnishee’s liability, a matter
within the trial court’s, as opposed to the bankruptcy court’s, jurisdiction.
Accordingly, we conclude that remand for further proceedings is necessary. The trial court
shall address plaintiff’s argument that the bankruptcy stay does not prevent further garnishment
proceedings against True North because the payments made in violation of the writ were actually
owed to Better Brush or Fresh Outlook and so not part of the bankruptcy estate. The court shall
make factual findings as necessary and may consider the current status of the bankruptcy
proceedings.
C. DISCOVERY
The final issue concerns the scope of discovery in garnishment proceedings. Plaintiff
argues that the trial court erred by granting a protective order precluding plaintiff from deposing
True North.
The starting point is MCR 3.101(L)(1), which provides:
Within 14 days after service of the disclosure, the plaintiff may serve the garnishee
with written interrogatories or notice the deposition of the garnishee. The answers
to the interrogatories or the deposition testimony becomes part of the disclosure.
Also relevant is MCR 3.101(M)(2), which provides in part that “[t]he facts stated in the disclosure
must be accepted as true unless the plaintiff has served interrogatories or noticed a deposition
within the time allowed by subrule (L)(1) or another party has filed a pleading or motion denying
the accuracy of the disclosure.” Finally, MCR 3.101(T)(2)-(5) provides the trial court discretion
to extend the time for the plaintiff’s filing of written interrogatories and a demand for oral
examination of the garnishee, as well as the garnishee’s answer to interrogatories and appearance
for oral examination.
Plaintiff argues that MCR 3.101(L) merely requires it to initiate discovery within 14 days
by either serving written interrogatories or noticing deposition of the garnishee to prevent the
disclosure from becoming final, and that it is not prevented from pursuing further discovery so
9
“The automatic stay provides protection from the time a case is filed until entry of discharge or
dismissal of the case.” In re Ridley, 572 BR 352, 360 (Bankr ED Okla, 2017) (emphasis added).
By itself, the filing of a bankruptcy petition does not resolve or function as a dismissal of the
pending garnishment proceedings.
-9-
long as it initiates discovery within the 14-day time period. True North argues, and the trial court
agreed, that plaintiff could only pursue one avenue of discovery within the 14-day period, either
interrogatories or a deposition, and that plaintiff may not be granted any further discovery.
Alternatively, to the extent that both interrogatories and a deposition could be pursued, the trial
court took the view that the notice of deposition would also have to be filed within 14 days, and
the court declined to exercise its discretion under MCR 3.101(T) to extend that time period.
We conclude that Decker v Trux R Us, Inc, 307 Mich App 472; 861 NW2d 59 (2014),
controls resolution of this issue. As the trial court noted in rendering its decision, Decker is the
only case of record construing the interaction between MCR 3.101(L), (M) and (T). In that case,
the plaintiff failed to either service interrogatories or notice deposition of the garnishee within 14
days of the disclosure. The plaintiff later filed a motion under MCR 3.101(T) to extend the time
to serve interrogatories on the garnishee, and the trial court denied the motion. Id. at 476-477. We
affirmed, reasoning that the plaintiff could not seek an extension of the time for serving
interrogatories under MCR 3.101(T) because it failed to pursue discovery within MCR 3.101(L)’s
14-day time window, thus rendering the garnishee’s disclosure final under MCR 3.101(M)(2). See
id. at 479-481. Significantly, we did not view this interpretation as creating an irreconcilable
conflict between MCR 3.101(L) and (T) because we determined that “the trial court can exercise
its discretion to extend discovery as long as the plaintiff has complied with MCR 3.101(M)(2),”
id. at 481, i.e., if the plaintiff serves interrogatories or notices the garnishee’s deposition within 14
days of the disclosure, then the trial court may extend the time for seeking additional discovery.
Decker’s holding that the trial court can grant further discovery under MCR 3.101(T) so
long as the plaintiff initiates discovery within the 14-day period is dispositive of the question
before us. Per Decker, because plaintiff served interrogatories within 14 days of garnishee’s
disclosure under MCR 3.101(L)(1), the trial court had discretion to grant further discovery
pursuant to MCR 3.101(T), including extending the time for filing a demand for oral examination
of the garnishee.10 We note that allowing a plaintiff to depose the garnishee (at the court’s
discretion) under these circumstances may save time and expense of all parties. When the answer
to interrogatories raises additional questions, as was purportedly the case here, a deposition may
provide clarification on whether additional proceedings are necessary and, if so, should allow for
a more expeditious resolution.
As noted, the trial court alternatively granted the protective order on the grounds that it was
declining to exercise its discretion under MCR 3.101(T) given the pending bankruptcy petition.
That rationale is questionable, however, because the court did not address plaintiff’s argument that
the bankruptcy stay does not apply to contested payments that were due to Better Brush or Fresh
10
Plaintiff also argues that once it timely complies with MCR 3.101(L)’s 14-day time period, then
it has a right to conduct discovery in accordance with the court rules of discovery. Plaintiff relies
on MCR 3.101(L)(3), which provides that “[t]he discovery rules apply to garnishment
proceedings.” However, this interpretation is inconsistent with Decker’s holding a trial court has
discretion to grant further discovery so long as discovery is initiated within 14 days of the
disclosure.
-10-
Outlook. If the trial court determines on remand that the garnishment proceedings against True
North are wholly precluded by the bankruptcy stay, then we agree that further discovery would
not be necessary at this time. However, if the court concludes that the bankruptcy stay does not
preclude further proceedings against True North, at least as to any sums True North owed Better
Brush or Fresh Outlook, then it should decide, on the merits, whether plaintiff’s request to depose
of True North is warranted under the circumstances.11
III. CONCLUSION
To summarize, we reverse and remand for three reasons. First, the trial court erred by
denying plaintiff’s request for a judgment on the grounds that it would not hold True North
personally liable for the amount of payments made to Crater in violation of the writ. Second, while
the bankruptcy proceedings may in fact stay garnishment proceedings against True North, the trial
court failed to adequately address plaintiff’s argument that the payments were actually due to
Better Brush or Fresh Outlook and so not subject to the stay. The trial court shall address that
matter on remand. Third, if the trial court concludes that further proceedings against True North
are not precluded by the stay, the court shall decide whether to grant plaintiff’s request for a
deposition.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Deborah A. Servitto
/s/ Anica Letica
11
At plaintiff’s request, on June 12, 2019, the trial court issued a subpoena for True North to
appear for a “debtor’s examination.” In its initial brief, plaintiff asserted—without any
elaboration—that the subpoena was governed by MCR 2.621 (proceedings supplementary to
judgment) but then proceeded to analyze MCR 3.101(L) only. In its reply brief, plaintiff now
argues that the trial court committed reversible error by not analyzing the subpoena as having been
issued under MCR 2.621. “[R]aising an issue for the first time in a reply brief is not sufficient to
present the issue for appeal.” Bronson Methodist Hosp v Michigan Assigned Claims Facility, 298
Mich App 192, 199; 826 NW2d 197 (2012). Accordingly, this argument is not properly before us.
Id. Also, we note that a specific court rule controls over a more general court rule. See Haliw v
Sterling Heights, 471 Mich 700, 706; 691 NW2d 753 (2005); MCR 1.103.
-11-