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On order of the Chief Justice, the motion of plaintiff-appellant to extend the time for filing its reply is GRANTED. The reply submitted on September 21, 2018, is accepted as timely filed.

On order of the Chief Justice, the motion of the Children's Law Section of the State Bar of Michigan to extend the time for filing its brief amicus curiae is GRANTED. The amicus brief submitted on September 25, 2018, is accepted for filing.

On order of the Court, the application for leave to appeal the June 27, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the January 11, 2018 judgment of the Court of Appeals is considered, and it appearing to this Court that the cases of Michigan Ass'n of Home Bldrs. v. Troy (Docket No. 156737) and Genesee Co. Drain Comm'r Jeffrey Wright v. Genesee Co. (Docket No. 156579) are pending on appeal before this Court and that the decisions in those cases may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decisions in those cases.

On order of the Court, the application for leave to appeal the September 26, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the October 24, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Boonstra, P.J. Defendant appeals by right her convictions, following a jury trial, of delivery of a controlled substance less than 50 grams, MCL 333.7401(2)(a)(iv ), possession of a controlled substance less than 25 grams, MCL 333.7403(2)(a)(v ), and furnishing a controlled substance to a prisoner in a correctional facility, MCL 800.281(1). The trial court sentenced defendant to concurrent prison terms of 18 months to 240 months for the delivery conviction, 18 months to 48 months for the possession conviction, and 18 months to 60 months for the furnishing to a prisoner conviction. We affirm. I. PERTINENT FACTS AND PROCEDURAL HISTORY On September 22, 2014, defendant visited a prisoner, Bobby Cain, at the Lakeside Correctional Facility in Coldwater, Michigan. Before that visit, Lakeside Correctional Facility Sergeant Todd Riley was advised by another corrections officer that a contraband drop might occur that day between Cain and defendant. Riley arranged for Cain and defendant to sit in the prison visitor room directly in front of (and about 5 feet from) the room's observation window so that he could observe them. During defendant's visit, Riley observed defendant go to a vending machine, make a purchase, sit back down next to Cain, take a "brown paper towel," crinkle it up, and place it on the TV tray that Cain and defendant were using. Cain picked up the paper towel and cupped it in his hand. Riley observed Cain transfer what was in the paper towel from one hand to the other and then hold that hand cupped next to his leg. Cain placed the empty crinkled paper towel back onto the TV tray. Riley went to the visiting room, walked over to Cain, took hold of Cain's hand, and removed a blue balloon that was packed tightly with a substance. Cain was removed from the visiting room, and defendant calmly remained sitting where she was. Although other individuals were in the prison visiting room at the time of the incident, Riley observed no suspicious interactions between them and Cain. Defendant's visit with Cain was videorecorded by one of the prison visiting-room cameras. At trial, Riley testified to these events, and the videorecording was played for the jury during his testimony. Michigan State Police (MSP) Trooper Jeremy Miller testified that he was dispatched to the prison to test the contraband for narcotics. Miller removed the contents from the balloon and disposed of the balloon in the trash. He then took defendant into custody and searched her. With her consent, he also searched her vehicle, as well as her purse inside the vehicle, with the assistance of a drug-detecting dog. The dog had previously given an alert indicating the possible detection of narcotics in defendant's car. No drugs were found in defendant's car or purse. Miller sent the substance seized from the balloon to the MSP lab for further testing; the testing revealed the substance to be 5.68 grams of heroin. Miller testified that he prepared two police reports related to his investigation, an investigating-officer report and a separate report related to the drug-detecting dog's search. Although both the prosecution and defense counsel possessed the investigating-officer report, and although that report indicated that a dog was used in the search, neither party was aware that the second police report existed. After Miller's testimony, defense counsel moved for a mistrial on the ground that defendant was prejudiced by the prosecution's failure to produce the second report in response to defendant's discovery request. The trial court considered the evidence in the record and the fact that both parties lacked knowledge of the second police report before Miller testified to its existence. The trial court observed that defense counsel had cross-examined Miller and had obtained testimony from him that was favorable to the defense. Specifically, Miller admitted on cross-examination that this drug-detecting dog would often give a false alert in order to obtain his reward from his handler. Consequently, the trial court concluded that defendant was not prejudiced and denied defendant's motion for a mistrial. Defendant testified at trial. She stated that she had purchased an ice cream bar for Cain from the vending machine, that it had made her hand cold, and that she used a napkin to warm her hand. She set the napkin down on the TV tray but never noticed that Cain picked it up. She also explained that she took prescription pain medication that she believed the dog had detected in her purse. She stated that she never possessed the heroin that was taken from Cain and knew nothing about it. After the parties gave their closing arguments and the jurors were instructed, defense counsel renewed defendant's motion for a mistrial on the same discovery-violation ground. The trial court again denied the motion. The jurors returned their verdict, finding defendant guilty as described. At defendant's sentencing, the prosecution objected to the scoring of Prior Record Variable (PRV) 7, MCL 777.57, which requires an assessment of points for subsequent or concurrent felony convictions, and Offense Variable (OV) 14, MCL 777.57, which requires an assessment of points if the offender was a leader in a multiple-offender situation. The prosecution argued that defendant should have been assessed 20 points (instead of 0 points) for PRV 7 because defendant had been convicted of two or more concurrent felonies. Defense counsel argued that defendant's convictions were for conduct in a single event and that PRV 7 applied only to separate events. The prosecution next argued that defendant was the leader in a multiple-offender situation and should have been assessed 10 points (instead of 0 points) for OV 14. Defense counsel argued that OV 14 required multiple participants, which this case did not have. Defense counsel then asked for an opportunity to brief the PRV 7 issue. Consequently, the trial court adjourned the sentencing hearing. When the trial court resumed the hearing, defense counsel argued that the trial court could not assess any points under PRV 7 because the two controlled substance offenses were based on the same facts and because considering them as concurrent convictions for purposes of scoring PRV 7 raised double-jeopardy concerns. The prosecution argued that double jeopardy did not apply because the two controlled substance offenses of which defendant was found guilty required proof of separate and distinct elements. The trial court concluded that double jeopardy did not apply because each of the offenses that defendant committed required proof of separate and distinct elements. The trial court scored PRV 7 at 20 points. The trial court next addressed the prosecution's objection to scoring OV 14 at 0 points. The prosecution argued that defendant's conduct in sourcing, acquiring, and delivering the heroin to Cain was indicative of her leadership role for which she should have been assessed points. The defense countered that Cain was the leader and that defendant was an unsuspecting dupe. The trial court was persuaded by the prosecution's argument and assessed 10 points for OV 14. The trial court sentenced defendant as described. This appeal followed. While her appeal was pending, defendant filed three postconviction motions with the trial court, two of which are relevant to defendant's appeal. Defendant moved for the entry of a judgment of acquittal and also moved for resentencing. In her motion for acquittal, defendant argued that she could not be convicted and punished for both delivery and possession of heroin because that would violate the constitutional prohibition against double jeopardy. In her motion for resentencing, defendant argued that OV 19, MCL 777.49, was incorrectly scored at 25 points because defendant's conduct did not threaten the security of the penal institution. Defendant contended that OV 19 should have been scored at 0 points, which would have resulted in a lower minimum sentence range of zero to nine months. The trial court issued a written opinion denying defendant's motion for acquittal. The trial court relied upon People v. Smith , 478 Mich. 292, 315-316, 733 N.W.2d 351 (2007), in which the Michigan Supreme Court adopted the double-jeopardy test articulated in Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), under which a trial court must examine whether each offense required proof of an element that the other did not. In this case, the trial court applied the Blockburger test and concluded that possession of a controlled substance and delivery of a controlled substance were separate offenses. The trial court held that defendant could be convicted of both offenses and punished separately for each without violating defendant's right to be free from multiple punishments for the same offense. The trial court also denied defendant's motion for resentencing because it found that defendant's smuggling of a controlled substance into the prison presented a serious threat to the security of a penal institution and, therefore, that OV 19 was correctly scored at 25 points. II. DOUBLE JEOPARDY On appeal, defendant argues that the trial court violated her constitutional right to be free from multiple punishments for the same offense because she was separately convicted and punished for both possession and delivery of heroin. We disagree. We review de novo a claim that a conviction violates a defendant's right to be free from being twice placed in jeopardy for the same offense or being subject to multiple punishments for the same offense. People v. Herron , 464 Mich. 593, 599, 628 N.W.2d 528 (2001). We also review de novo questions of statutory interpretation. People v. Collins , 298 Mich. App. 458, 461, 828 N.W.2d 392 (2012). The United States Constitution and the Michigan Constitution both prohibit placing a defendant twice in jeopardy for a single offense. U.S. Const., Am. V ; Const. 1963, art. 1, § 15 ; People v. Ford , 262 Mich.App. 443, 447, 687 N.W.2d 119 (2004). These Double Jeopardy Clauses "afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense." Ford , 262 Mich.App. at 447, 687 N.W.2d 119. The "purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment imposed than the Legislature intended." Id . at 447-448, 687 N.W.2d 119. The Double Jeopardy Clauses, however, do not restrict or diminish the Legislature's ability to define criminal offenses and establish punishments. Id . at 448, 687 N.W.2d 119. To determine "whether the Legislature intended to impose multiple punishments for violations of more than one statute during the same transaction or incident," courts must apply the "same elements" test articulated in Id . Under the Blockburger test, a court must inquire whether each offense contains an element not contained in the other offense. Id . If the two offenses do not each contain at least one element that the other does not, double jeopardy bars additional punishment. Id. "[W]here two distinct statutes cover the same conduct but each requires proof of an element the other does not," a presumption exists that the Legislature intended multiple punishments unless the Legislature expressed a contrary intent. Id. at 448-449, 687 N.W.2d 119. In People v. Ream , 481 Mich. 223, 238, 750 N.W.2d 536 (2008), the Michigan Supreme Court clarified that "the Blockburger test is a tool to be used to ascertain legislative intent." "Because the statutory elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements." Id . More recently, the Court has stated: [W]hen considering whether two offenses are the "same offense" in the context of the multiple punishments strand of double jeopardy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream to discern legislative intent. [ People v. Miller , 498 Mich. 13, 19, 869 N.W.2d 204 (2015).] Defendant argues that her rights were violated because she was punished twice for the same conduct, inasmuch as her convictions for delivering heroin and possession of heroin arose out of a single event. Defendant's argument lacks merit. MCL 333.7401 defines as follows the crime of delivering less than 50 grams of a controlled substance: (1) Except as authorized by this article, a person shall not ... deliver a controlled substance.... (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in [ MCL 333.7214(a)(iv ) ] and: * * * (iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both. The elements of delivery of less than 50 grams of heroin are (1) a defendant's delivery (2) of less than 50 grams (3) of heroin or a mixture containing heroin (4) with knowledge that he or she was delivering heroin. Collins , 298 Mich.App. at 462, 828 N.W.2d 392. MCL 333.7105(1) defines delivery as follows: " 'Deliver' or 'delivery' means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship." "[T]ransfer is the element which distinguishes delivery from possession." People v. Schultz , 246 Mich.App. 695, 703, 635 N.W.2d 491 (2001) (quotation marks and citation omitted; emphasis omitted; alteration in original). MCL 333.7403 defines the crime of possession of a controlled substance and provides in relevant part: (1) A person shall not knowingly or intentionally possess a controlled substance ... unless the controlled substance ... was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in [ MCL 333.7214(a)(iv ) ], and: * * * (v) That is in an amount less than 25 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both. Thus, the elements of possession of less than 25 grams of heroin are (1) a defendant's knowing or intentional possession (2) of heroin (3) in a mixture that weighed less than 25 grams. MCL 333.7403(2)(a)(v ) ; People v. Hartuniewicz , 294 Mich.App. 237, 246, 816 N.W.2d 442 (2011). As explained in People v. Wolfe , 440 Mich. 508, 519-520, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992), possession is a nuanced concept: A person need not have actual physical possession of a controlled substance to be guilty of possessing it. Possession may be either actual or constructive. Likewise, possession may be found even when the defendant is not the owner of recovered narcotics. Moreover, possession may be joint, with more than one person actually or constructively possessing a controlled substance. [Citations omitted.] A review of statutory elements for each of the two offenses for which defendant was sentenced reveals that, the Legislature did not expressly state its intent regarding the permissibility of multiple punishments. Therefore, we apply the Blockberger 's "abstract legal elements test," as articulated in Ream , to discern legislative intent. Miller , 498 Mich. at 19, 869 N.W.2d 204. According to Ream , "two offenses will only be considered the 'same offense' where it is impossible to commit the greater offense without also committing the lesser offense." Id . Analysis under this test of the elements of the two offenses for which defendant was punished establishes that the two offenses are separate and distinct. The delivery offense required proof of the separate element of delivery of the heroin that the possession offense did not require. And the possession offense required proof of the element of possession of the heroin that the delivery offense did not require. In the context of considering whether possession of heroin is a lesser-included offense of delivery of heroin (i.e., whether the offense of possession of heroin contains elements that are not subsumed in the elements of the offense of delivery of heroin), this Court has noted that the distinction between possession and delivery has been made "consistently" in our caselaw. People v. Binder (On Remand ), 215 Mich.App. 30, 35, 544 N.W.2d 714, vacated in part on other grounds 453 Mich. 915, 554 N.W.2d 906 (1996). The Binder panel addressed defendant's argument, which is-that it is impossible to deliver heroin without possessing it-as follows: One might argue that it is impossible for a party to manufacture, deliver or intend to manufacture or deliver a controlled substance without at least constructive possession of it. However, in our estimation, such an analysis unnecessarily adds the element of constructive possession to the crime. Requiring proof of constructive possession inappropriately creates a doorway through which drug traffickers, particularly those high in the distribution chain, can escape. Earlier judicial decisions finding the crimes of possession and delivery to be cognate offenses must have been made in partial recognition of the problems any other interpretation would create. We adopt the reasoning of our predecessors and reiterate that possession of a controlled substance is not a lesser, necessarily included offense of delivery. [ Binder , 215 Mich.App. at 35-36, 544 N.W.2d 714.] The reasoning of Binder applies in this context, is binding on this Court, and comports with our Supreme Court's directive to examine the abstract legal elements of the two offenses, rather than the facts of the case, to determine whether the protection against multiple punishments for the same offense has been violated. Ream , 481 Mich. at 238, 750 N.W.2d 536. While this defendant may indeed have possessed the heroin before delivering it, the prosecution was not required to prove possession to convict her of delivery, or vice versa. Consequently, defendant's conviction of each offense, and the trial court's sentencing of defendant separately for each offense, did not violate defendant's rights under the Double Jeopardy Clauses of the federal and Michigan Constitutions. III. PRESERVATION OF EVIDENCE Defendant further argues that the MSP's failure to preserve the balloon in which the heroin was found deprived defendant of due process because she was prevented from performing DNA testing on the balloon. We disagree. Defendant did not preserve this issue by raising it before the trial court; we therefore review it for plain error affecting substantial rights. People v. Carines , 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999). "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Id . at 763 (quotation marks and citation omitted). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id . (citation omitted). To warrant reversal on a claimed due-process violation involving the failure to preserve evidence, a "defendant must prove that the missing evidence was exculpatory or that law enforcement personnel acted in bad faith." People v. Hanks , 276 Mich.App. 91, 95, 740 N.W.2d 530 (2007). When the evidence is only "potentially useful," a failure to preserve the evidence does not amount to a due-process violation unless a defendant establishes bad faith. Arizona v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). A "[d]efendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith." People v. Johnson , 197 Mich.App. 362, 365, 494 N.W.2d 873 (1992). A prosecutor is not required to "seek and find exculpatory evidence" or assist in building the defendant's case, and it is not required to "negate every theory consistent with defendant's innocence." People v. Coy , 258 Mich.App. 1, 21, 669 N.W.2d 831 (2003). Further, unless the defendant can show the suppression of evidence, intentional misconduct, or bad faith, the prosecutor and the police are not required to perform DNA testing to satisfy due process. Id . Defendant argues that the balloon that held the heroin should have been preserved, because DNA testing may have provided a basis for the jury to doubt that she possessed and delivered the heroin. In her brief on appeal, however, defendant concedes that the balloon was only "potentially exculpatory." Defendant has not established that the balloon was, in fact, exculpatory evidence that would have exonerated her. Defendant does not argue that the police destroyed the balloon in bad faith. Nor do we find any bad faith from our review of the record. The trial record established that Miller took the contraband from Riley, removed the contents from the balloon, field-tested the substance that had been inside it, and disposed of the balloon according to standard police protocol for processing such evidence. Moreover, the overwhelming evidence at trial established that defendant possessed and passed the heroin to Cain. Consequently, even if the balloon had been tested for DNA and someone else's DNA (rather than defendant's) was found on it, the test results would have made no difference to the outcome of the case. Therefore, we conclude that preserving and testing the balloon would not have changed the outcome of defendant's trial or exonerated her. Accordingly, defendant's claim that she was deprived of due process because the balloon was not preserved lacks merit. Carines , 460 Mich. at 763-764, 597 N.W.2d 130. IV. DENIAL OF MOTION FOR MISTRIAL Defendant also argues that the trial court abused its discretion by denying her motion for a mistrial based on the prosecution's failure to produce the second police report in response to her discovery request. We disagree. We review a trial court's decision regarding the appropriate remedy for a discovery violation for an abuse of discretion. People v. Rose , 289 Mich.App. 499, 524, 808 N.W.2d 301 (2010). To obtain relief for a discovery violation, the defendant must establish that the violation prejudiced him or her. See Id . at 525-526, 808 N.W.2d 301. Further, we review for an abuse of discretion the trial court's denial of a motion for a mistrial. People v. Bauder , 269 Mich.App. 174, 194, 712 N.W.2d 506 (2005). An abuse of discretion occurs when the trial court chooses an outcome that is outside the range of principled outcomes. People v. Schaw , 288 Mich.App. 231, 236, 791 N.W.2d 743 (2010). "A motion for a mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant's ability to get a fair trial." People v. Lugo , 214 Mich.App. 699, 704, 542 N.W.2d 921 (1995). "For a due process violation to result in reversal of a criminal conviction, a defendant must prove prejudice to his or her defense." People v. Odom , 276 Mich.App. 407, 421-422, 740 N.W.2d 557 (2007). Further, the moving party must establish that the "error complained of is so egregious that the prejudicial effect can be removed in no other way." People v. Gonzales , 193 Mich.App. 263, 266, 483 N.W.2d 458 (1992). Defendant contends that the prosecution's discovery violation deprived her of due process and that she was prejudiced because if she had timely received the second police report, she might have consulted an expert to determine if the dog could mistake the presence of a prescribed drug for the presence of heroin. She contends that this may have provided additional support to her defense theory that she never possessed any heroin. Defendant's conjecture, however, does not establish that she was prejudiced and entitled to a mistrial. " 'There is no general constitutional right to discovery in a criminal case....' " People v. Jackson , 292 Mich.App. 583, 590, 808 N.W.2d 541 (2011), quoting Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). The Michigan Court Rules govern the scope of discovery in a criminal case. MCR 6.201 ; People v. Phillips , 468 Mich. 583, 589, 663 N.W.2d 463 (2003). MCR 6.201(B)(1) provides that the prosecution, upon request, must provide the defendant any exculpatory information or evidence known to the prosecution. MCR 6.201(B)(2) provides that the prosecution, upon request, must provide the defendant with any police report concerning the case except for portions that concern an ongoing investigation. The prosecution bears responsibility for evidence within its control, even evidence unknown to it, "without regard to the prosecution's good or bad faith." People v. Chenault , 495 Mich. 142, 150, 845 N.W.2d 731 (2014). In this case, defense counsel requested the disclosure of police reports under MCR 6.201(B)(2) and was not provided with the second police report. Even though the prosecution lacked knowledge of the existence of the second report until it was first revealed at trial, the prosecution's failure to discover and disclose the report to the defense likely constituted a discovery violation. See Chenault , 495 Mich. at 150, 845 N.W.2d 731. Assuming it to be so, the trial court had the authority under MCR 6.201(J) to fashion an appropriate remedy. To be entitled to relief under MCR 6.201(J), a defendant must demonstrate that he or she was prejudiced by the discovery violation. People v. Davie (After Remand) , 225 Mich.App. 592, 598, 571 N.W.2d 229 (1997). Here, defendant did not seek a continuance or other remedy from the trial court, as permitted under MCR 6.201(J), for the prosecution's discovery violation. Instead, defendant moved for a mistrial. We conclude from our review of the record that the trial court correctly analyzed the discovery issue in light of the entire record. Defense counsel effectively cross-examined Miller regarding the dog search and obtained testimony favorable to the defense despite not having the second police report in advance of trial. Miller admitted that no drugs were found in either defendant's car or purse, and he admitted that the drug-detecting dog commonly gave false alerts. The record reflects that defense counsel used these admissions in closing argument to support the defense theory that defendant never possessed the heroin and to cast doubt on the prosecution's case. Contrary to defendant's argument, our review of the record leads us to conclude that even if defendant had obtained the second police report in advance of trial and prepared her defense in the manner she contends that she would have if she had the report, it would have made no difference to the outcome of her trial. Her delivery of the heroin to Cain was captured on video. The jurors saw the video and heard Riley's testimony that he had personally observed defendant commit the charged offenses. Accordingly, we conclude that any discovery violation on the part of the prosecution did not prejudice defendant. The trial court did not abuse its discretion by denying defendant's motion for a mistrial. Lugo , 214 Mich.App. at 704, 542 N.W.2d 921. V. SENTENCING Finally, defendant argues that she is entitled to resentencing because the trial court incorrectly scored OV 14 and OV 19, resulting in an incorrect minimum sentencing range under the statutory sentencing guidelines. We disagree. We review for clear error the trial court's factual determinations used for sentencing under the sentencing guidelines, facts that must be supported by a preponderance of the evidence. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). We review de novo the trial court's interpretation and application of the statutory sentencing guidelines. People v. Jackson , 487 Mich. 783, 789, 790 N.W.2d 340 (2010). We will hold the trial court's factual determinations clearly erroneous only if we are left with a definite and firm conviction that the trial court made a mistake. People v. Armstrong , 305 Mich.App. 230, 242, 851 N.W.2d 856 (2014). When calculating scores under the sentencing guidelines, a trial court may consider all the evidence in the trial court record. People v. Johnson , 298 Mich.App. 128, 131, 826 N.W.2d 170 (2012). "A sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score." People v. Hornsby , 251 Mich.App. 462, 468, 650 N.W.2d 700 (2002). Under MCL 777.22, OV 14 must be scored for all felony offenses. MCL 777.44 describes when and how OV 14 is to be scored: (1) Offense variable 14 is the offender's role. Score offense variable 14 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: (a) The offender was a leader in a multiple offender situation ............10 points (b) The offender was not a leader in a multiple offender situation ......... 0 points (2) All of the following apply to scoring offense variable 14: (a) The entire criminal transaction should be considered when scoring this variable. (b) If 3 or more offenders were involved, more than 1 offender may be determined to have been a leader. In People v. Rhodes (On Remand) , 305 Mich.App. 85, 90, 849 N.W.2d 417 (2014), we noted that the Legislature did not define what constitutes a "leader" for the purposes of OV 14. We therefore reviewed dictionary definitions and noted that "[t]o 'lead' is defined in relevant part as, in general, guiding, preceding, showing the way, directing, or conducting." Id . We concluded that for purposes of an OV 14 analysis, a trial court should consider whether the defendant acted first or gave directions "or was otherwise a primary causal or coordinating agent." See id . In People v. Jones , 299 Mich.App. 284, 287, 829 N.W.2d 350 (2013), vacated in part on other grounds 494 Mich. 880 (2013), we analyzed, for OV 14 scoring purposes, the undefined term "multiple offender situation" in relation to the undefined term "leader." We held that "the plain meaning of 'multiple offender situation' as used in OV 14 is a situation consisting of more than one person violating the law while part of a group." Jones , 299 Mich.App. at 287, 829 N.W.2d 350. We applied the plain meaning of those terms to the facts of the case and determined that the trial court's assessment of 10 points for the defendant's OV 14 score was correct and supported by several facts in the trial record. Id . at 287-288, 829 N.W.2d 350. Notably, we concluded that the defendant was involved in a "multiple offender situation" even though he was accompanied by only one other person and even though the other person was not charged in connection with the crime for which the defendant was convicted. Id . In scoring OV 14 in this case, the trial court considered the "entire criminal transaction" as required under MCL 777.44(2)(a). Our review of the record leads us to conclude that the trial court's findings that defendant procured the heroin, possessed it for a period of time, transported it to the prison, and delivered it to Cain, were supported by a preponderance of the evidence and were not clearly erroneous. The trial court did not misinterpret or misapply the sentencing guidelines by determining that defendant acted as a leader. Cain obviously could not leave the prison to procure the heroin himself. It was reasonable to infer, as the trial court did in this case, that defendant exercised independent leadership to procure the heroin from someone else outside the prison, transported it independently to the prison, and smuggled it inside before transferring it to Cain. A trial court may draw inferences regarding a defendant's behavior from objective evidence when sentencing the defendant. People v. Petri , 279 Mich.App. 407, 422, 760 N.W.2d 882 (2008). Consequently, we hold that the trial court correctly scored OV 14 at 10 points for defendant's role in the criminal transaction. OV 19, the other offense variable challenged by defendant, must be scored for all felony offenses. MCL 777.22. Under MCL 777.49, OV 19 is to be scored at 25 points when a defendant's criminal conduct threatened the security of a penal institution. Bringing a controlled substance like heroin into a prison and delivering it to a prisoner in violation of MCL 800.281(1) inherently puts the security of the penal institution at risk. Our Legislature has specifically criminalized such conduct because of the seriousness of the problem of drugs in our state's penal institutions and the way in which illicit drug use interferes with the administration of justice in those institutions. Defendant's delivery of an unquestionably dangerous drug like heroin into the confines of the prison threatened the safety and security of both the guards and the prisoners and, therefore, threatened the security of a penal institution. Defendant does not dispute the trial court's conclusion that smuggling drugs into a penal institution creates serious problems for inmates and prison guards but rather argues that OV 19 applies only to offenders who smuggle weapons into a prison. That argument, however, is unavailing because MCL 777.49 by its language does not limit the assessment of 25 points for OV 19 to offenders who smuggled weapons or other mechanical destructive devices into a prison. Our review of the trial court's application of MCL 777.49 to the facts of this case and the reasonable inferences drawn from those facts establishes that the trial court's assessment of 25 points for defendant's OV 19 score was warranted. Accordingly, defendant is not entitled to resentencing. Affirmed. Ronayne, Krause and Swartzle, JJ., concurred with Boonstra, P.J. In her testimony, defendant referred to this object as a napkin. See MCR 7.215(J)(1). The Michigan Supreme Court has clarified that sentencing courts must determine the applicable range of a minimum sentence under the sentencing guidelines and must take that calculation into account when imposing a sentence, but that the minimum sentences recommended by the guidelines are advisory only and not mandatory. People v. Lockridge , 498 Mich. 358, 365, 870 N.W.2d 502 (2015).

On order of the Court, the application for leave to appeal the October 17, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Chief Justice, the motion of defendants-appellants to extend the time for filing their reply is GRANTED. The reply will be accepted for filing if submitted on or before April 20, 2018.

O'Connell, J. Plaintiff, MLive Media Group, doing business as Grand Rapids Press, sent defendant, the city of Grand Rapids (the City), two requests under Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq ., seeking recordings, copies of recordings, and transcripts of phone calls made by Grand Rapids police officers to a Grand Rapids police lieutenant regarding the citation of a former Kent County Assistant Prosecutor. The City denied MLive's FOIA requests. MLive filed suit, seeking production of the records, and moved for summary disposition pursuant to MCR 2.116(C)(10). The trial court denied MLive's motion and dismissed the case without prejudice. MLive appeals. We reverse and remand. I. FACTUAL AND PROCEDURAL BACKGROUND A man drove the wrong way down a one-way street and hit a parked car. Grand Rapids Police Officer Adam Ickes and Grand Rapids Police Sergeant Thomas Warwick responded to the accident. Officer Ickes called Grand Rapids Police Lieutenant Matthew Janiskee at a recorded police department telephone line and informed Lieutenant Janiskee that the driver of the vehicle was a "hammered" Kent County assistant prosecutor. Lieutenant Janiskee told Officer Ickes to hang up and call back on a different department line, (616) 456-3407, labeled "Non-Recorded Line 3407." Officer Ickes then placed three calls to Lieutenant Janiskee on Line 3407. Sergeant Warwick placed two calls to Lieutenant Janiskee on Line 3407. Ultimately, Officer Ickes cited the assistant prosecutor for driving the wrong way down a one-way street, and Sergeant Warwick drove the assistant prosecutor home. The police department then conducted an internal investigation. The City states that during the investigation it discovered that the phone calls to Line 3407 had been recorded. The City filed a declaratory action in the United States District Court for the Western District of Michigan on February 17, 2017, seeking a determination of its rights and obligations to use and disclose the Line 3407 recordings. The City sought to use the recordings as evidence in officer disciplinary actions and legal proceedings. In the federal action, the officers asserted that use of the recordings would violate the federal wiretapping act, 18 USC 2510 et seq ., and Michigan's eavesdropping statutes, MCL 750.539a et seq . The City denied violating the statutes. The City explained that it had received FOIA requests for the Line 3407 recordings. The City alleged that if the recordings were obtained in violation of the statutes, disclosure of the recordings would also violate the statutes. The two FOIA requests received by the City from MLive sought recordings, copies of recordings, and transcripts of the Line 3407 calls. The City denied both requests, asserting that its "ability to release these records is the subject matter of the pending [federal] litigation...." MLive filed a complaint in the trial court, seeking an order to compel disclosure of the requested items and a declaration that the City had violated FOIA in that the City had failed to cite a FOIA exemption in support of its denial and that no such exemption exists. MLive also moved for summary disposition. In response, the City reiterated its argument that it did not believe that complying with MLive's FOIA request would violate the federal wiretapping act or Michigan's eavesdropping statutes. Nonetheless, it argued that it could invoke the MCL 15.243(1)(d) FOIA exemption because the federal court had not yet determined whether complying with the FOIA request would violate the federal wiretapping act or Michigan's eavesdropping statutes. The trial court denied MLive's motion for summary disposition and dismissed the case without prejudice, citing the doctrine of comity. II. JURISDICTION The City argues that MLive could not appeal by right because it is not appealing a final order. We disagree. MCR 7.202(6)(a)(i) defines a final order in a civil case as "the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties...." Parties cannot create a final order by stipulating the dismissal of remaining claims without prejudice after a trial court enters an order denying a motion for summary disposition addressing only some of the parties' claims. See Detroit v. Michigan , 262 Mich.App. 542, 545, 686 N.W.2d 514 (2004). In this case, the trial court entered an order denying MLive's motion for summary disposition and dismissing MLive's only claim without prejudice after reviewing both parties' opposing arguments. Therefore, the order is final, MCR 7.202(6)(a)(i), and Detroit is distinguishable on the facts. III. STANDARDS OF REVIEW We review de novo whether the trial court properly interpreted and applied FOIA, including "whether a public record is exempt under FOIA" "when the facts are undisputed and reasonable minds could not differ ...." Rataj v. City of Romulus , 306 Mich.App. 735, 747-748, 858 N.W.2d 116 (2014). When interpreting a statute, we aim to determine the Legislature's intent by first examining the statute's plain language. Fellows v. Mich. Comm for the Blind , 305 Mich.App. 289, 297, 854 N.W.2d 482 (2014). If a statute is unambiguous, we enforce it as written. Id . We review for an abuse of discretion a trial court's decision to abstain from a ruling "in favor of an alternative, foreign forum." Hare v. Starr Commonwealth Corp. , 291 Mich.App. 206, 214-215, 813 N.W.2d 752 (2011). "A trial court abuses its discretion when its decision falls outside the range of principled outcomes." ESPN, Inc. v. Mich. State Univ. , 311 Mich.App. 662, 664, 876 N.W.2d 593 (2015). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a complaint. Maiden v. Rozwood , 461 Mich. 109, 120, 597 N.W.2d 817 (1999). The moving party must specify issues for which there are no genuine issues of material fact and support the motion. MCR 2.116(G)(4). The nonmoving party then has the burden to provide evidence of a genuine issue. Id . The trial court reviews the record in the light most favorable to the nonmoving party. Maiden , 461 Mich. at 120, 597 N.W.2d 817. A trial court must grant the motion if it finds "no genuine issue as to any material fact" and determines that "the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). We review de novo a trial court's denial of a motion for summary disposition. See Maiden , 461 Mich. at 118, 597 N.W.2d 817. IV. ANALYSIS MLive argues that the trial court erred by denying its motion for summary disposition. We agree. A. FOIA EXEMPTION The trial court erred to the extent that it found that the City met its burden to prove that a FOIA exemption applied. FOIA proclaims that "[i]t is the public policy of this state that all persons ... are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees ...." MCL 15.231(2). Further, "[t]he people shall be informed so that they may fully participate in the democratic process." Id . In keeping with this policy, FOIA provides persons a right to inspect, copy, or receive copies of a requested public record of a public body upon providing a public body's FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, except as expressly provided in MCL 15.243. MCL 15.233(1). MCL 15.243(1) states: A public body may exempt from disclosure as a public record under this act ... * * * (d) Records or information specifically described and exempted from disclosure by statute." When a public body invokes this exception, it is necessary to examine the statute under which the public body claims disclosure is prohibited. See Detroit News, Inc. v. Policemen & Firemen Retirement Sys. of the City of Detroit , 252 Mich.App. 59, 72-75, 651 N.W.2d 127 (2002). For example, the federal wiretapping act prohibits the intentional interception and disclosure of an oral or wire communication. 18 USC 2511(1)(a) and (c). Therefore, if the federal act prohibits disclosure of a communication, the communication would be exempt from disclosure under MCL 15.243(1)(d). FOIA requires the public body receiving a FOIA request to interpret FOIA and decide whether to honor the request. See MCL 15.235. A FOIA request must be sent directly to the public body, specifically its FOIA coordinator. MCL 15.235(1). FOIA requires the public body to decide whether to grant or deny the request in whole or in part within five business days of receipt. MCL 15.235(2). Alternatively, the public body can seek a 10-business-day extension to make a decision. MCL 15.235(2)(d). If the public body denies any portion of the request because it determined that the content is exempt from disclosure, it must explain in writing the basis for its denial under FOIA or another statute. MCL 15.235(5)(a). A court only becomes involved in a FOIA request if a public body denies the request and the requester appeals. MCL 15.240(1)(b). Specifically, the person requesting the public record may "[c]ommence a civil action in the circuit court ... to compel the public body's disclosure of the public records...." MCL 15.240(1)(b). The public body has the burden to "sustain its denial." MCL 15.240(4). The trial court reviews the denial de novo, id ., and construes FOIA exemptions narrowly, see Detroit News, Inc. , 252 Mich.App. at 72, 651 N.W.2d 127. The City failed to meet its burden to prove that a FOIA exemption applied. The City argues that it properly invoked the MCL 15.243(1)(d) exemption to deny MLive's FOIA requests because the federal wiretapping act prohibit the intentional interception and disclosure of an oral or wire communication, and "the jurisdiction of a federal district court has already been invoked to make th[e] factual determination[ ] ... of whether" the federal wiretapping act applies. But the City never argued when denying MLive's FOIA request, during the trial court proceedings, or on appeal, that it actually violated the federal wiretapping act. Rather, it made the opposite argument: it accidentally or inadvertently recorded the Line 3407 phone calls and then refused to disclose the recordings to MLive. The federal wiretapping act does not prohibit the inadvertent interception or disclosure of communications. See 18 USC 2511(1) ; Thompson v. Dulaney , 970 F.2d 744, 748 (C.A. 10, 1992). Stated differently, the City needed to argue that disclosure would violate the federal wiretapping act in order to invoke the MCL 15.243(1)(d) FOIA exemption and to deny MLive's FOIA requests. The City never made this argument. Any argument by the City that it properly invoked the MCL 15.243(1)(d) exemption because Michigan's eavesdropping statutes prohibit disclosure of the recordings similarly fails. Michigan's eavesdropping statutes prohibit the "willful[ ]" use of a device to eavesdrop on a private conversation without all parties' consent, MCL 750.539c, and "us[ing]" or "divulg[ing]" information that a person "knows or reasonably should know was obtained" through eavesdropping, MCL 750.539e. Accordingly, the City needed to argue that disclosure would violate an eavesdropping statute to invoke the MCL 15.243(1)(d) FOIA exemption. But the City never made this argument. Instead, it argued that it accidentally recorded the phone calls. Further, FOIA requires the City to determine whether a FOIA exemption exists. See MCL 15.235(2). The City cited no FOIA provision that allows it to pass this decision to a federal court. Therefore, the City failed to meet its burden to prove that a FOIA exemption applied. B. COMITY The trial court abused its discretion by determining that comity prevented it from ruling on MLive's FOIA complaint. The principle of judicial comity generally states that foreign courts can afford each other's judgment mutual respect and recognition. See Gaudreau v. Kelly , 298 Mich.App. 148, 152, 826 N.W.2d 164 (2012). Accordingly, "principles of comity require" us "to defer to [a] federal court ruling" when "a federal district court [is] the equivalent of a state circuit court." Bouwman v. Dep't of Social Servs. , 144 Mich. App. 744, 748-749, 375 N.W.2d 806 (1985). When a court relies on the principle of comity to abstain from ruling on an issue in favor of a foreign ruling, it is also "invoking a doctrine akin to forum non conveniens," which gives a court discretion "to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum." Hare , 291 Mich.App. at 223-224, 813 N.W.2d 752 (quotation marks and citations omitted). The trial court in this case improperly reframed the issue before it to invoke the doctrine of comity. As explained earlier, the issue before the trial court was whether the City met its burden to show that the narrowly construed MCL 15.243(1)(d) FOIA exemption supported its denial of MLive's FOIA requests. See MCL 15.235(2) and (5)(a) ; MCL 15.240(4) ; Detroit News, Inc. , 252 Mich.App. at 72, 651 N.W.2d 127. As already explained in this opinion, the City failed to meet the burden. The trial court did not need to consider "whether or not the recordings in this case were intentional" and did not need to defer to the federal court's "factual determination" regarding this separate issue. The City did not argue in this case or in the federal case that it had intentionally recorded Line 3407, which could amount to violations of the federal wiretapping act and Michigan's eavesdropping statutes. Because it never raised the argument, the MCL 15.243(1)(d) exemption does not apply, and the City necessarily failed to meet its burden to show that a narrowly construed FOIA exemption supported its denial of MLive's FOIA requests. Therefore, the trial court's decision to invoke the doctrine of comity was outside the range of principled outcomes, and the trial court erred by denying MLive's motion for summary disposition. V. CONCLUSION AND RELIEF Because the trial court erred by denying MLive's motion for summary disposition, we remand for entry of judgment in MLive's favor. On remand, the trial court must order the City "to cease withholding or to produce" the Line 3407 recordings. MCL 15.240(4). Accordingly, MLive prevailed because the suit "had a substantial causative effect on" and "was necessary to" "the delivery of or access to" the recordings. See Wilson v. Eaton Rapids , 196 Mich.App. 671, 673, 493 N.W.2d 433 (1992). Without the suit, the City would not grant MLive's FOIA request at this time. Because MLive prevailed, the trial court must award MLive reasonable attorney fees, costs, and disbursements. MCL 15.240(6) ; See also Rataj , 306 Mich.App. at 757, 858 N.W.2d 116. Additionally, the trial court must "determine whether [MLive] is entitled to punitive damages under MCL 15.240(7)." Rataj , 306 Mich.App. at 757, 858 N.W.2d 116. We reverse and remand. We do not retain jurisdiction. We give our judgment immediate effect. MCR 7.215(F)(2). Talbot, C.J., and Cameron, J., concurred with O'Connell, J. Both parties referred to another exemption, MCL 15.243(1)(a). However, we do not consider whether the exemption applies because neither party identified portions of the recordings covered by this exemption or cited authority to support an argument that the exemption applied, contrary to the requirement to do so. See MCR 7.212(C)(7) and (D)(1). We find this nonbinding caselaw persuasive. See Holman v. Rasak , 281 Mich.App. 507, 509, 761 N.W.2d 391 (2008), aff'd 486 Mich. 429, 785 N.W.2d 98 (2010). We find this nonbinding opinion, see MCR 7.215(J)(1), persuasive. We do not consider the City's argument that federalism required the trial court to defer to the federal court because the City cited no authority to support its argument, contrary to its requirement to do so. See MCR 7.212(C)(7) and (D)(1). We reiterate that the public policy articulated by the Legislature in FOIA is that "all persons ... are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees," MCL 15.231(2), "[e]xcept as expressly provided in [MCL 15.243 ]," MCL 15.233(1). MCL 15.243 contains no exemption to allow a federal court to determine a public body's compliance with a separate statute before the public body must answer a FOIA request. We leave any alteration of this public policy to the Legislature. See Messenger v. Dep't of Consumer & Indus. Servs. , 238 Mich.App. 524, 531, 537, 606 N.W.2d 38 (1999).

Swartzle, J. Dorothy Redd is an elderly woman with several relatives who care a great deal for her. One of her sons, Gary Redd, was appointed as Dorothy's guardian in 2014. Two years later, Gary's daughter, Nichole Legardy, sought to remove Gary as guardian because she alleged that he was no longer "suitable" to serve in that role under Michigan's Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq . The probate court agreed, removed Gary as guardian, and appointed Nichole in his place. Gary now appeals, claiming that the probate court applied the wrong standard for removal as well as the wrong burden of proof. As explained below, we conclude that the probate court did not err in removing Gary as Dorothy's guardian, and we affirm. I. BACKGROUND Dorothy is 93 years old and is the mother of five adult children: Gary, Michael Redd, Jerome Redd, Sean Burke, and Antonio Burke. At Dorothy's request, Gary had held power of attorney over her affairs since at least 2005. In 2012, Dorothy was living in her home in Detroit with three of her sons, Jerome, Sean, and Michael. According to a report prepared by Dorothy's guardian ad litem in 2014, while living in that home, Dorothy's physical and mental condition deteriorated. Dorothy weighed less than 100 pounds and suffered from episodes of delusion. These health-related matters culminated in June 2012, when Gary received a phone call that Dorothy was roaming the streets in her nightgown telling neighbors that thirty or forty people were in her home trying to kill her. In the days following this incident, Gary moved Dorothy into his home, where she resided until August 2016. In June 2014, Gary filed a petition with the Oakland County Probate Court seeking appointment as Dorothy's guardian. Jerome and his daughter, Katrina Tao-Muhammad, opposed the petition and argued that Gary was preventing Dorothy from visiting with family. The probate court found that Dorothy lacked the capacity to care for herself and appointed Gary and an attorney, Jennifer Carney, as coguardians. Over the next two years, several disputes arose between the family members. Several family members continued to argue that Gary was preventing Dorothy from visiting family and that Gary was unduly influencing Dorothy against her family members. Jerome and Katrina also questioned whether Gary was properly managing Dorothy's assets and whether Gary should be added to the lease on Dorothy's old home. Michael, among other family members, requested that the probate court prevent Gary from evicting him and Dorothy's other family members from Dorothy's old home. The probate court entered numerous orders aimed at facilitating Dorothy's visitation with her family members, improving the accounting of Dorothy's finances, and preventing the eviction of Dorothy's family members from her old home. The probate court nevertheless refused to remove Gary as Dorothy's guardian, despite several motions seeking his removal. In August 2016, the probate court changed course after learning of a physical altercation between Gary and Nichole regarding Dorothy's lack of visitation with family members. The probate court heard testimony from several past and current members of the family, a police officer, and several unrelated individuals. In all, 17 persons testified. Of those 17 persons, at least 10 testified that Gary was unduly influencing Dorothy's opinions of her family and was preventing her from carrying on relationships with various family members. Importantly, several persons who previously supported Gary's guardianship now believed that Gary was an unsuitable guardian. Among these individuals were Gary's daughter, Nichole, and Dorothy's coguardian, Carney. The probate court found particularly insightful a police officer's testimony that while Gary had taken Dorothy to the police station as part of a court-ordered visit with several family members, he blocked her from interacting substantively with her family members and seemed to be undermining the entire visit. For her part, Dorothy testified that she wished for Gary to continue as her guardian. The probate court concluded, however, that it was only required to honor Dorothy's preference when the person of her choice was suitable to serve as guardian. Ultimately, the probate court found that Gary's unwillingness to facilitate relationships between Dorothy and various family members rendered Gary unsuitable to continue as her guardian. The probate court removed him as guardian and appointed Nichole as coguardian with Carney. Gary appeals this decision as of right. II. ANALYSIS A. STANDARD OF REVIEW We review the probate court's dispositional rulings for an abuse of discretion. In re Bibi Guardianship , 315 Mich. App. 323, 328, 890 N.W.2d 387 (2016). "A probate court 'abuses its discretion when it chooses an outcome outside the range of reasonable and principled outcomes.' " Id. at 329, 890 N.W.2d 387 (citation omitted). We review the probate court's findings of fact for clear error. Id . at 328, 890 N.W.2d 387. A factual finding is clearly erroneous when this Court " 'is left with a definite and firm conviction that a mistake has been made.' " Id . at 329, 890 N.W.2d 387 (citation omitted). We review de novo any statutory or constitutional interpretation by the probate court. Id . at 328, 890 N.W.2d 387. B. GUARDIANSHIP FOR INCAPACITATED INDIVIDUALS UNDER THE EPIC Article V, Part 3 of EPIC, MCL 700.5301 et seq ., concerns the appointment of guardians for incapacitated individuals (wards). Under MCL 700.5303(1), an individual "in his or her own behalf, or any person interested in the individual's welfare," may file a petition seeking a finding of incapacity and the appointment of a guardian. "The court may appoint a guardian if the court finds by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record." MCL 700.5306(1). EPIC sets forth a prioritized list of persons who could be appointed as guardian, including a person whom the ward "chooses to serve as guardian," MCL 700.5313(2)(b), but only if that person is "suitable and willing to serve," MCL 700.5313(2). If a guardian is appointed, the ward is granted a number of rights by statute. MCL 700.5306a(1). Relevant to this case, the ward is granted the right to "choose the person who will serve as guardian, if the chosen person is suitable and willing to serve." MCL 700.5306a(1)(aa). EPIC also includes provisions for removing a guardian. MCL 700.5310. In this matter, Gary was removed after a petition was filed under MCL 700.5310(2), which provides that "[t]he ward or a person interested in the ward's welfare may petition for an order removing the guardian, appointing a successor guardian, modifying the guardianship's terms, or terminating the guardianship." C. A GUARDIAN CAN BE REMOVED IF HE IS NO LONGER "SUITABLE" There is no dispute that Dorothy is incapacitated and that the appointment of a guardian was appropriate. Because Dorothy wished for Gary to serve as her guardian, and because Gary was willing to serve, Gary was entitled to remain as her guardian under MCL 700.5313(2)(b) unless there was sufficient ground for his removal under MCL 700.5310. EPIC does not set forth a specific standard for removal of a guardian. MCL 700.5310 provides the right to petition for an order removing a guardian, but the statute is otherwise silent as to how a probate court is to determine whether the guardian should be removed. While MCL 700.5313(2) explicitly states that a person who is "suitable and willing" can be appointed a guardian in certain circumstances, the section does not similarly state that the same standard applies to remove a person as guardian. The remaining provisions of EPIC dealing with guardians for incapacitated individuals provide little insight on this matter. In construing the meaning of a particular provision in a statute, in the absence of a definition, we turn first to the statutory context. McCormick v. Carrier , 487 Mich. 180, 190-192, 795 N.W.2d 517 (2010). Elsewhere in EPIC, the Legislature provided for the appointment and removal of a guardian for a minor, as well as the appointment and removal of a conservator for a minor or incapacitated person. In the first circumstance, the Legislature set forth the same standard for appointment and removal of a minor's guardian-when the appointment or removal serves the minor's welfare. Compare MCL 700.5212 with MCL 700.5219(1). In the second circumstance, the Legislature set forth different standards for appointment and removal of a conservator. For appointment, the potential conservator must explain "the basis of the claim to priority for appointment," MCL 700.5404(2), and the court can consider several enumerated factors, including whether the potential conservator is "suitable and willing to serve," MCL 700.5409(1)(h). For removal, however, a petitioner must simply establish that removal of a current conservator would be "for good cause." MCL 700.5414. Given how appointments and removals are handled in other parts of the EPIC, little can be gleaned from those parts on the appropriate standard for removal of a guardian in the incapacitated-individuals context. Returning to the appointment of a guardian for an incapacitated individual under MCL 700.5313, while that section does not directly state that the same standard applies to removal, it does provide some guidance on the matter. Specifically, the section generally sets forth the priority of potential guardians. In several places, however, the section further provides that the court may appoint someone else when a previously identified or designated person is not "suitable or willing to serve." See, e.g., MCL 700.5313(3) and (4). While this language certainly applies to persons who were identified-but-disqualified prior to any appointment, it also would appear to apply to a person who was previously designated (and appointed) as a guardian but who no longer is "suitable or willing to serve." In this case, the standard for appointment-suitable and willing to serve-would be the standard for removal as well. We find such a reading to be a reasonable construction of the statute, especially considering that the purpose of this part of EPIC is to protect incapacitated individuals with guardians who have the skills and willingness to act in the best interests of those individuals. See Macomb Co. Prosecutor v. Murphy , 464 Mich. 149, 158, 627 N.W.2d 247 (2001). Thus, we hold that to remove a guardian under MCL 700.5310, the probate court must find that the guardian is no longer suitable or willing to serve. D. WHETHER A GUARDIAN IS "SUITABLE" We must next construe the meaning of "suitable," as EPIC does not define the term, nor is there controlling authority defining the term in this context. Beginning again with statutory context, McCormick , 487 Mich. at 190-192, 795 N.W.2d 517, the overarching purpose of a guardian under EPIC is to provide "for the ward's care, custody, and control," MCL 700.5314. In doing so, the EPIC prohibits certain financial self-dealing by the guardian with respect to the ward. See MCL 700.5313(1). Moreover, the code provides that a guardian could be someone who served in that role out-of-state if the person is otherwise "qualified, and serving in good standing." MCL 700.5313(2)(a). Finally, EPIC sets forth several specific duties of a guardian, including to provide for the ward's financial, medical, and social well-being as well as to make an accounting to the court or other interested individuals. MCL 700.5314. The EPIC thus makes clear that the guardian's focus of concern must be on the ward, that decisions made on behalf of the ward must be in the interests of the ward and not the guardian, and that the guardian must be qualified to achieve the purposes set forth in EPIC. Looking to authoritative dictionaries for further guidance, Anzaldua v. Neogen Corp. , 292 Mich. App. 626, 632, 808 N.W.2d 804 (2011), Black's Law Dictionary (8th ed.) defines "suitable" as "fit and appropriate for [its] intended purpose." Similarly, Merriam Webster's Colle giate Dictionary (11th ed.) defines the term as "adapted to a use or purpose" or "able/qualified." Taken together, the statutory context and guidance from dictionaries confirm that a "suitable" guardian is one who is qualified and able to provide for the ward's care, custody, and control. With respect to whether an existing guardian remains suitable, it logically follows that particularly relevant evidence would include (1) evidence on whether the guardian was still qualified and able, and (2) evidence on whether the guardian did, in fact, satisfactorily provide for the ward's care, custody, and control in the past. E. THE STANDARD OF PROOF NEEDED TO SHOW THAT A GUARDIAN IS NOT "SUITABLE" With respect to the evidentiary standard to use on whether a current, ward-preferred guardian should be removed, EPIC does not explicitly provide for one. As with the previous questions, then, we look first to the statutory context of EPIC. When initially determining whether a person needs a guardian, EPIC specifically states that the probate court must find "by clear and convincing evidence" that an individual is incapacitated and that the appointment of a guardian is necessary. MCL 700.5306(1). Unlike the initial-determination stage, however, the Legislature chose not to set forth a particular evidentiary standard with respect to whether a person is unsuitable to be named-or to remain as-a guardian. See MCL 700.5310 ; MCL 700.5313(2). We must construe this "omission of a provision in one statute that is included in another statute ... as intentional." Donkers v. Kovach , 277 Mich. App. 366, 371, 745 N.W.2d 154 (2007). Accordingly, we conclude that the Legislature did not intend to apply the "clear and convincing evidence" standard to the question of a person's suitability to remain a guardian. We find additional guidance by considering whether the question of suitability is left to the discretion of the probate court. In In re Williams Estate , 133 Mich. App. 1, 11, 349 N.W.2d 247 (1984), this Court answered that question by comparing two provisions of EPIC. Specifically, MCL 700.5313(3) provides in relevant part that "[i]f there is no person chosen, nominated, or named under subsection (2), or if none of the persons listed in subsection (2) are suitable or willing to serve, the court may appoint as a guardian an individual who is related to the individual who is the subject of the petition in the following order of preference." (Emphasis added.) The Williams Estate Court concluded that the Legislature's use of the term "may" in this provision indicated that the appointment of an individual under MCL 700.5313(3) was to be committed to the discretion of the probate court. Williams Estate , 133 Mich. App. at 11, 349 N.W.2d 247. Unlike in Williams Estate , however, the probate court's determination in this case was made under the immediately preceding subsection, which states that the probate court "shall appoint a person, if suitable and willing to serve," who is preferred by the guardian. MCL 700.5313(2) (emphasis added). The Legislature's use of the word "shall" in this context "indicates a mandatory and imperative directive." Fradco, Inc. v. Dep't of Treasury , 495 Mich. 104, 114, 845 N.W.2d 81 (2014). Thus, this mandatory directive indicates that a standard giving significant discretion to the probate court is not the correct one to use here. When a statute fails to state the standard that probate courts are to use to establish a particular fact, the default standard in civil cases-preponderance of the evidence-applies. Mayor of Cadillac v. Blackburn , 306 Mich. App. 512, 522, 857 N.W.2d 529 (2014). Because the Legislature has not explicitly provided otherwise, we conclude that a probate court must use the preponderance-of-the-evidence standard when determining whether a person is "suitable" to serve as a ward's guardian under MCL 700.5313(2). Although this reading means that one standard-clear and convincing evidence-applies to whether a person should become a ward, but a different standard-preponderance of the evidence-applies to whether a particular person is suitable to be the ward's guardian, such a bifurcated system is found elsewhere in EPIC. In the child-welfare context, for example, the Legislature similarly set forth a clear-and-convincing-evidence standard for the probate court's determination that a child should come within the protective custody of the court, MCL 712A.2 ; MCL 712A.19b(3), but then remained silent on the standard to use for best-interests determinations, MCL 712A.19b(5). This Court interpreted the omission of a standard in the latter context as intentional and applied the preponderance-of-the-evidence standard. See In re Moss , 301 Mich. App. 76, 90 & n. 2, 836 N.W.2d 182 (2013). That our Court has previously understood the Legislature to have adopted bifurcated standards elsewhere in EPIC lends further support to our conclusion here. Applying this statutory analysis to the case at hand, before the probate court could remove Gary as Dorothy's guardian, it was required to find, by a preponderance of the evidence, that Gary was not qualified or able to provide for his mother's care, custody, and control. Particularly relevant evidence on this question would include whether Gary did, in fact, satisfactorily provide for his mother's care, custody, and control in the past. F. THE PROBATE COURT PROPERLY APPLIED THE PREPONDERANCE-OF-THE-EVIDENCE STANDARD Gary claims on appeal that the probate court applied the wrong standard to his removal. Gary points this Court to the following passage he claims indicates that the probate court erroneously used a discretionary standard: You know, I-it is interesting in this trial-you know, and the question is Gary Redd's suitability, and that's what we're-we're trying to figure out. I have to decide that. ... And I don't know, Gary's-you say it's their burden of proof. Yeah, admittedly some evidence has to be presented by someone that Dorothy Redd's preference, you know, her person nominated is not suitable so logically it would come from them. But when we think of somebody having a burden of proof, we think of the standard of proof where it's-there's clear and convincing evidence with regard to the need for a guardian. There isn't really a-a standard of proof stated for determining whether one's suitable. It's a fact question, I guess, to be decided by the Judge, and then, a decision to appoint is an exercise of discretion by the Judge. So I have to find whether Gary Redd is suitable or not. While the probate court mentioned the exercise of discretion in appointing a guardian, reading the probate court's comments as a whole, it is clear that the probate court understood that whether Gary was "suitable" was a question of fact that must be decided before the court could determine whether to honor Dorothy's stated preference. Thus, on the question of suitability, the probate court did not apply a discretionary standard. Rather, it correctly understood that the question was a factual one, requiring a factual finding based on record evidence. The probate court further correctly placed the burden of proof on Nichole as the moving party. Therefore, we find no fault with respect to the probate court's determination that suitability was a question of fact and that the moving party had the burden. G. THE PROBATE COURT DID NOT CLEARLY ERR IN ITS FACTUAL FINDINGS Gary also argues that the evidence did not support removing him as Dorothy's guardian and replacing him with Nichole. While Gary takes issue with several of the probate court's specific factual findings, his arguments amount to an attack on the probate court's credibility determinations of the various witnesses who testified in this matter. It is well-established, however, that we "will defer to the probate court on matters of credibility, and will give broad deference to findings made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily available to the reviewing court." In re Erickson Estate , 202 Mich. App. 329, 331, 508 N.W.2d 181 (1993). This intra-family dispute has been highly contentious for years, and there was wide disagreement by various members about the best course of care for Dorothy. Still, ten of the seventeen testifying witnesses either directly testified or strongly implied that Gary was exerting undue influence over Dorothy and that Gary prevented Dorothy from maintaining relationships with several family members. Importantly, Gary's own daughter, Nichole, and Dorothy's coguardian, Carney (a lawyer unrelated to any of the family members), testified that Gary was preventing Dorothy from seeing family members and exerting undue influence over her. These accounts were further supported by a police officer's testimony that Gary was not facilitating visitation with Dorothy's family members. Part of a guardian's responsibility is to provide for the ward's social well-being. Nearly all witnesses agreed that Dorothy was very family-oriented and wished to have relationships with her family members. The record amply supports that Gary was not willing to facilitate these relationships and was, in fact, actively impeding them. Moreover, there was evidence presented that Nichole had long attempted to mend the family discord and had opened her home to all family members as a meeting place. Based on our review of this and the rest of the record evidence, we conclude that the probate court did not clearly err with respect to its factual findings and did not abuse its discretion by removing Gary as guardian and replacing him with Nichole under MCL 700.5310 and MCL 700.5313(4). H. REMAND TO A DIFFERENT JUDGE IS NOT WARRANTED Finally, Gary argues that this case should be remanded to a different judge because the judge currently presiding over the matter is biased against Gary. We disagree. "The general concern when deciding whether to remand to a different trial judge is whether the appearance of justice will be better served if another judge presides over the case." Bayati v. Bayati , 264 Mich. App. 595, 602, 691 N.W.2d 812 (2004). This Court "may remand to a different judge if the original judge would have difficulty in putting aside previously expressed views or findings, if reassignment is advisable to preserve the appearance of justice, and if reassignment will not entail excessive waste or duplication." Id . at 602-603, 691 N.W.2d 812. The bulk of Gary's arguments simply take issue with the fact that the probate court's factual findings and legal rulings were not in his favor. As explained above, we find no error with respect to the probate court's findings and rulings here. Moreover, "[r]epeated rulings against a party, no matter how erroneous, or vigorously or consistently expressed, are not disqualifying." Id . at 603, 691 N.W.2d 812. The party seeking reassignment must demonstrate that the probate judge would be "unable to rule fairly on remand." Id . We conclude that Gary has failed to establish that the current probate judge would be unable to rule fairly on remand. Moreover, we find that reassignment would only "entail excessive waste or duplication," id ., given the probate court's familiarity with this lengthy and complicated dispute. III. CONCLUSION Under EPIC, a "suitable" guardian is one who is qualified and able to provide for the ward's care, custody, and control. When a preponderance of the evidence weighs against the suitability of the ward's current choice for guardian, the probate court must remove that person as guardian. We hold that the probate court did not clearly err in concluding that a preponderance of the evidence weighed against Gary's ongoing suitability as guardian. Affirmed. Gadola, P.J., and Cavanaugh, J., concurred with Swartzle, J. Because of the number of relatives with the same last name, we use first names to refer to the family members involved in this case. The probate court also removed Gary as conservator, though he does not take issue with this removal in his statement of questions presented. MCR 7.212(C)(5). The former version of this statute, which is substantially the same as the current version, was codified at MCL 700.454(3).

Hoekstra, P.J. In this interlocutory appeal, defendant, Glorianna Woodard, has been charged with operating a motor vehicle while intoxicated, third offense, MCL 257.625, and operating a vehicle while her license was suspended or revoked, MCL 257.904. In the trial court, defendant filed a motion to suppress evidence of her blood alcohol content, asserting that the analysis of her blood constituted an illegal search performed after she withdrew her consent for a blood test. The trial court denied this motion and denied defendant's motion for reconsideration. Defendant filed an interlocutory application for leave to appeal, which this Court granted. Because the trial court did not err by denying defendant's motion to suppress, we affirm and remand for further proceedings. I. FACTS AND PROCEDURAL HISTORY On March 6, 2015, Michigan State Police Trooper Anthony Ramirez conducted a traffic stop of a vehicle driven by defendant. Initially, Ramirez stopped the vehicle because the license plate light was not working and the license plate had a "smoke tinted" cover. However, based on defendant's watery and bloodshot eyes, the smell of alcohol in the vehicle, and defendant's unsteady gait and performance on field sobriety tests, Ramirez believed that defendant was intoxicated. At Ramirez's request, defendant agreed to perform a preliminary breath test. Ramirez then arrested defendant for operating a motor vehicle while intoxicated, and Ramirez asked defendant to consent to a blood test. Defendant consented to a blood test, and Ramirez transported defendant to a hospital where blood was drawn. The blood sample was then sent to the Michigan State Police Laboratory for analysis. On March 9, 2015, before testing on defendant's blood sample had been conducted, defendant's attorney sent Trooper Ramirez, the Jackson County Prosecutor, and the Michigan State Police Forensic Science Division a document entitled "Notice of Defendant's Withdrawal of Consent to Search, Demand to Cease and Desist Further Warrantless Search, and Demand for Return of Blood Samples." In relevant part, this document stated: NOW COMES the Defendant, GLORIANNA WOODARD, by and through counsel, the Maze Legal Group, PC, by William J. Maze, and hereby provides notice that she withdraws her consent for further voluntary search of her blood sample based upon the following: 1. Defendant, GLORIANNA WOODARD, is alleged to have voluntarily permitted a withdrawal of his [sic] blood on or about March 6, 2015. * * * 6. Defendant now affirmatively withdraws her consent for further search, demanding that the police, prosecutor and state laboratory immediately cease and desist from further search of the blood evidence, demanding that these state actors immediately obtain a search warrant to justify any search and/or continued detention of the blood sample, returning the blood sample to Defendant forthwith if a warrant is not sought and obtained immediately by the government. * * * 9. If the Prosecuting Attorney, Michigan State Police Forensic Science Division, or the Michigan State Police Jackson Post, desires to keep the blood sample and/or conduct any testing that has not already occurred on the blood sample, [defendant] demands that any search be conducted pursuant to a search warrant. The parties who received this notice did not heed its demand to cease further testing and return the blood sample. The subsequent analysis of defendant's blood sample revealed that she had a blood alcohol content of 0.212% at the time of the blood draw. The prosecutor charged defendant with operating a motor vehicle while intoxicated, third offense, and operating a vehicle while her license was suspended or revoked. In the circuit court, defendant moved to suppress the results of her blood alcohol test, asserting that although she consented to the blood draw, she revoked her consent before the tests were conducted and, in the absence of a warrant, the analysis of her blood constituted an unlawful search. In response, the prosecutor maintained that defendant did not have a privacy interest that would prevent the analysis of a lawfully obtained blood sample. Citing People v. Perlos , 436 Mich. 305, 462 N.W.2d 310 (1990), the trial court agreed with the prosecutor, concluding that testing of a lawfully obtained sample did not violate the Fourth Amendment. In denying defendant's motion for reconsideration, the trial court similarly reasoned that "once consent is given, blood is drawn, then they can go forward with the testing at that point ...." Following denial of her motion for reconsideration, defendant filed an interlocutory application for leave to appeal, which we granted. On appeal, defendant argues that the trial court erred by denying her motion to suppress the results of her blood test. In making this argument, defendant does not dispute that she voluntary consented to Ramirez's request for a blood test and she does not challenge the lawfulness of the blood draw at the hospital. Instead, defendant maintains that the subsequent analysis of her blood constituted a separate and distinct search. Because consent may be withdrawn at any time, defendant argues that until her blood was analyzed, she could withdraw her consent to the blood test and demand the return of her blood sample. In view of her notice to authorities withdrawing her consent, defendant contends that any tests on her blood without a warrant were per se unreasonable and that the results of the testing must be suppressed. II. STANDARDS OF REVIEW A trial court's factual findings made when ruling on a motion to suppress are reviewed for clear error. People v. Tavernier , 295 Mich. App. 582, 584, 815 N.W.2d 154 (2012). "But the application of constitutional standards regarding searches and seizures to essentially uncontested facts is entitled to less deference[.]" People v. Williams , 472 Mich. 308, 313, 696 N.W.2d 636 (2005). We review de novo whether the Fourth Amendment was violated and whether the exclusionary rule applies. People v. Mungo (On Second Remad) , 295 Mich. App. 537, 545, 813 N.W.2d 796 (2012). We also review de novo the trial court's ultimate decision on a motion to suppress. Williams , 472 Mich. at 313, 696 N.W.2d 636. III. ANALYSIS "The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures." People v. Kazmierczak , 461 Mich. 411, 417, 605 N.W.2d 667 (2000), citing U.S. Const., Am. IV and Const. 1963, art. 1, § 11. "[A] search for purposes of the Fourth Amendment occurs when the government intrudes on an individual's reasonable, or justifiable, expectation of privacy." People v. Antwine , 293 Mich. App. 192, 195, 809 N.W.2d 439 (2011) (citation and quotation marks omitted). In comparison, "[a] 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The touchstone of these protections is reasonableness, which "is measured by examining the totality of the circumstances." Williams , 472 Mich. at 314, 696 N.W.2d 636. "Ordinarily, searches or seizures conducted without a warrant are unreasonable per se," and "when evidence has been seized in violation of the constitutional prohibition against unreasonable searches and seizures, it must be excluded from trial." People v. Dagwan , 269 Mich. App. 338, 342, 711 N.W.2d 386 (2005). However, there are exceptions to the warrant requirement, including a search conducted pursuant to consent. People v. Borchard-Ruhland , 460 Mich. 278, 294, 597 N.W.2d 1 (1999). " 'Fourth Amendment rights are waivable and a defendant may always consent to a search of himself or his premises.' " People v. Frohriep , 247 Mich. App. 692, 702, 637 N.W.2d 562 (2001) (citation omitted). When conducting a consent search, the police are limited by the terms of the defendant's consent. People v. Powell , 199 Mich. App. 492, 496, 502 N.W.2d 353 (1993). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect." Frohriep , 247 Mich. App. at 703, 637 N.W.2d 562 (citation and quotation marks omitted). Additionally, just as a suspect may limit the scope of the search at the outset, a suspect may also withdraw consent at any time. Dagwan , 269 Mich. App. at 343, 711 N.W.2d 386 ; Powell , 199 Mich. App. at 498, 500, 502 N.W.2d 353. However, revocation of consent does not operate retroactively to invalidate the search conducted before withdrawal of consent. Powell , 199 Mich. App. at 497, 499, 502 N.W.2d 353. More fully, this Court has explained the revocation of consent as follows: [A] suspect may revoke his consent to search at any time. The revocation of the consent to search, however, does not invalidate the search conducted pursuant to the valid consent of the suspect before that consent was revoked. Any evidence obtained during the consensual portion of that search is admissible. However, once the consent is revoked, the police must stop the search unless continuing the search may be justified under some basis other than the suspect's consent. Finally, any evidence obtained during the consensual portion of the search may be considered in determining whether a continued search may be justified on some other basis. [ Id. at 500-501, 502 N.W.2d 353.] In this case, the state conduct at issue involves the collection of a blood sample from defendant's person and the analysis of that blood to determine defendant's blood alcohol content. In defendant's view, this conduct may be subdivided into two distinct searches, so that the analysis of defendant's blood is a "search" for which she may withdraw her consent at any time before this analysis is conducted. In comparison, the prosecution maintains that, once the blood sample was lawfully removed from defendant's body and collected by the police for alcohol analysis, the "search" was complete, meaning that defendant was not entitled to the return of this lawfully seized evidence and that she no longer had a reasonable expectation of privacy in the alcohol content of that sample. In short, we must decide whether the analysis of a blood sample, obtained with consent for the purposes of alcohol testing, constitutes a "search" within the meaning of the Fourth Amendment. A. THE SEARCH AND SEIZURE We begin our analysis with the unremarkable proposition that drawing defendant's blood for analysis constituted a search within the meaning of the Fourth Amendment. Birchfield v. North Dakota , 579 U.S. ----, ----, 136 S.Ct. 2160, 2173, 195 L.Ed.2d 560 (2016) ; Borchard-Ruhland , 460 Mich. at 293, 597 N.W.2d 1. Specifically, drawing blood for investigative purposes necessitates a physical intrusion, penetrating beneath the skin into one's veins, thereby infringing a deep-rooted expectation of privacy that society is prepared to recognize as reasonable. Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ; Skinner v. R. Labor Executives' Ass'n , 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). However, we note that this search, i.e., this physical intrusion beneath the skin, is completed upon the drawing of blood. Johnson v. Quander , 370 U.S. App. D.C. 167, 178, 440 F.3d 489 (2006). Having consented to the blood draw and having made no effort to withdraw her consent until after the search was complete, defendant has no grounds on which to object to this search. It follows from our recognition that the blood draw was a search that the evidence seized during the course of the consent search was defendant's blood. See State v. Perryman , 275 Or. App. 631, 637, 365 P.3d 628 (2015) ("A blood draw conducted by the police is simultaneously a search of a person and a seizure of [evidence]-that person's blood."). This seizure of blood is also within the scope of defendant's consent because, when giving consent to a blood draw for alcohol testing, the " 'typical reasonable person' would understand" that the evidence the authorities intend to seize is obviously a sample of blood for alcohol analysis. Frohriep , 247 Mich. App. at 703, 637 N.W.2d 562. Moreover, because the blood itself was collected before defendant attempted to withdraw her consent, her withdrawal of consent came too late to invalidate the seizure of her blood. In other words, defendant cannot retroactively withdraw her consent to the blood draw, and her attempt to withdraw consent after the search cannot deprive the police of evidence lawfully collected during the course of the consent search. See Powell , 199 Mich. App. at 499, 501, 502 N.W.2d 353. Having consented to the search and voluntarily surrendered her possessory interest in the blood sample, there is thus no basis on which defendant can object to the seizure of her blood on March 6, 2015. B. THE ANALYSIS OF LAWFULLY OBTAINED EVIDENCE Given that the evidence seized during the valid consent search was defendant's blood, the question becomes whether the subsequent analysis of this lawfully obtained evidence constitutes a "search" so that, before the analysis was conducted, defendant could withdraw her consent, prevent the blood alcohol testing, and demand the return of her blood sample. We recognize that "obtaining and examining" evidence may be considered a search, provided that doing so "infringes an expectation of privacy that society is prepared to recognize as reasonable[.]" Skinner , 489 U.S. at 616, 109 S.Ct. 1402 ; see also Jacobsen , 466 U.S. at 122, 104 S.Ct. 1652. However, considering the totality of the circumstances, we conclude that society is not prepared to recognize a reasonable expectation of privacy in the alcohol content of a blood sample voluntarily given by a defendant to the police for the purposes of blood alcohol analysis. Accordingly, the testing of this lawfully obtained evidence does not constitute a distinct search for Fourth Amendment purposes and any effort to withdraw consent after this evidence has been lawfully obtained cannot succeed. We are not aware of any binding cases that specifically considered whether consent to blood alcohol testing may be withdrawn before the analysis of the voluntarily provided blood sample. However, there is persuasive authority holding that, once a blood sample has been lawfully obtained for purposes of analysis, the subsequent testing of that sample has " 'no independent significance for fourth amendment purposes.' " Dodd v. Jones , 623 F.3d 563, 569 (C.A.8 2010), quoting United States v. Snyder , 852 F.2d 471, 474 (C.A.9 1988). While these cases have often been decided in the context of blood seized via a warrant, they stand for the proposition that the testing of blood evidence "is an essential part of the seizure," State v. VanLaarhoven , 248 Wis. 2d 881, 891, 2001 WI App 275, 637 N.W.2d 411 (2001), and that "the right to seize the blood ... encompass[es] the right to conduct a blood-alcohol test at some later time," Snyder , 852 F.2d at 474. Thus, these cases reason that the extraction and testing of blood are "a single event for fourth amendment purposes," regardless of how promptly the subsequent test is conducted. Id. In reaching this conclusion, the Court in Snyder relied heavily on Schmerber v. California , 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), a United States Supreme Court decision involving the Fourth Amendment implications of a compelled blood alcohol test. According to Snyder , although Schmerber did not expressly address whether testing of blood is a separate search, the Court in Schmerber "viewed the seizure and separate search of the blood as a single event for fourth amendment purposes." Snyder , 852 F.2d at 474. See also Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (characterizing "state-compelled collection and testing" of biological fluids as a singular " 'search' subject to the demands of the Fourth Amendment"). In contrast, defendant quotes Skinner , 489 U.S. at 616, 618, 109 S.Ct. 1402, arguing that collection and testing must be considered separate searches because the Skinner Court referred to the testing of biological samples as a "further invasion" of privacy and referred to "searches" in the plural form when stating that "collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches...." However, the issue in Skinner was a Fourth Amendment challenge to drug-testing of railroad employees, during which the Court weighed privacy interests against government interests for purposes of determining whether a "special needs" justified compulsory collection and testing of biological fluids without a warrant. Id. at 620, 109 S.Ct. 1402 (quotation marks and citation omitted). The Court was simply not considering whether the testing of a biological sample that had already been lawfully seized by law enforcement officials constituted a second and distinct "search" with Fourth Amendment implications independent of the collection of the sample. See State v. Swartz , 517 S.W.3d 40, 49 (Mo.App. 2017) ; State v. Fawcett , 877 N.W.2d 555, 560 (Minn.App. 2016) ; State v. Riedel , 259 Wis. 2d 921, 930 n. 6, 2003 WI App 18,, 656 N.W.2d 789 (2002). In short, we do not read Skinner as deciding the issue now before us, and defendant's reliance on Skinner is misplaced. Instead, we find persuasive Snyder 's recognition that collection and testing of blood are "a single event for fourth amendment purposes." Snyder , 852 F.2d at 473-474. In rejecting efforts to characterize the collection and analysis of blood evidence as separate searches, courts have frequently concluded that there is no objectively reasonable expectation of privacy in a sample lawfully obtained for the purposes of analysis, such that testing of the sample does not involve a search or seizure with Fourth Amendment implications. See State v. Hauge , 103 Hawaii 38, 51, 79 P.3d 131 (2003), and cases therein ("Our review of the case law of other jurisdictions indicates that the appellate courts of several states have ruled that expectations of privacy in lawfully obtained blood samples ... are not objectively reasonable by 'society's' standards."). More fully, these cases reason as follows: It is also clear that once a person's blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure arguments with respect to the use of that sample. Privacy concerns are no longer relevant once the sample has already lawfully been removed from the body, and the scientific analysis of a sample does not involve any further search and seizure of a defendant's person. In this regard we note that the defendant could not plausibly assert any expectation of privacy with respect to the scientific analysis of a lawfully seized item of tangible property, such as a gun or a controlled substance. Although human blood, with its unique genetic properties, may initially be quantitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests. ... [ State v. Barkley , 144 N.C. App. 514, 519, 551 S.E.2d 131 (2001) (quotation marks and citation omitted).] From these various persuasive authorities, we draw the basic understanding that blood which has been lawfully collected for analysis may be analyzed without infringing additional privacy interests or raising separate Fourth Amendment concerns. More specifically, the notion that there is no privacy interest that would prevent blood alcohol analysis on a sample of blood lawfully collected for that purpose is bolstered by Michigan's implied consent statutes and the Michigan Supreme Court's decision in Perlos , 436 Mich. 305, 462 N.W.2d 310. In part, Perlos involved consideration of whether there was a reasonable expectation of privacy in alcohol blood test results when the testing was conducted for purposes of medical treatment following an accident and the results were then provided to law enforcement authorities pursuant to MCL 257.625a(9). Perlos is not directly on point because it involved evidence that police obtained from a third party, i.e., blood test results obtained from the hospital as opposed to the analysis of a blood sample by a state actor. However, what we find instructive is Perlos 's consideration of the implied consent statutes as a source for analyzing the reasonableness of a privacy expectation for purposes of the Fourth Amendment. See Id. at 326-331, 462 N.W.2d 310. For example, in concluding that there was no reasonable expectation of privacy in hospital blood alcohol test results, the Court noted, among other considerations, that "when people drive, they encounter a diminished expectation of privacy," id . at 327, 462 N.W.2d 310, particularly in view of the strong public interest in curtailing drunk driving, as evinced in the implied consent statutes, and that, furthermore, the procedures of the implied consent act are narrowly tailored insofar as they do not allow discretionary testing of blood by the police for any reason and thus do not pose a risk of unrestricted access to medical information, id. at 327-330, 462 N.W.2d 310. Ultimately, given the "minimal intrusion" and motorists' diminished expectation of privacy, the Court determined that there is no reasonable expectation of privacy in a blood alcohol test result. Id. at 326, 330, 462 N.W.2d 310. By extension, this reasoning applies to situations in which, in the context of drunk-driving, police procure a blood sample for alcohol testing pursuant to a defendant's consent. The individual has consented to the taking of blood, meaning that the sample has been lawfully obtained; and, once the sample is collected with consent, the analysis of the blood is for the limited purpose of determining the blood alcohol content. Cf. id. In view of the implied consent statute and the reasoning in Perlos , it is apparent that society is not prepared to recognize as reasonable a privacy interest in the blood alcohol content of a sample voluntarily supplied to the police for the purposes of blood alcohol analysis. See id. ; see also State v. Simmons , 270 Ga. App. 301, 303, 605 S.E.2d 846 (2004) (considering Georgia's implied consent statute and concluding that consent once given could not be withdrawn); Loveland , 696 N.W.2d at 166 ("Once a urine sample is properly seized, the individual that provided the sample has no legitimate or reasonable expectation that the presence of illegal substances in that sample will remain private."). Absent a protected privacy interest, there is no "search" within the meaning of the Fourth Amendment and attempts to withdraw consent after a sample has been lawfully obtained would not render blood alcohol analysis unlawful. In considering whether a defendant may withdraw consent to a blood test after submitting a blood sample for testing, to the extent testing involves the police's continued possession of the blood sample, we also emphasize the established rule that when a suspect gives consent to a search and then revokes that consent, the revocation of consent does not "deprive the police of any evidence obtained during the course of the consent search." Powell , 199 Mich. App. at 499, 502 N.W.2d 353. In other words, a defendant cannot withdraw consent after the seizure and thereby demand the return of evidence lawfully obtained during the consent search. Id. at 499, 502 N.W.2d 353. More fully, in Jones v. Berry , 722 F.2d 443, 449 n. 9 (C.A.9, 1983), the court rejected the assertion that the defendant could demand return of documents seized during a consent search, explaining: No claim can be made that items seized in the course of a consent search, if found, must be returned when consent is revoked. Such a rule would lead to the implausible result that incriminating evidence seized in the course of a consent search could be retrieved by a revocation of consent. This approach is consistent with our decision in Powell and with the decisions of several other courts that have considered the issue. See United States v. Mitchell , 82 F.3d 146, 151 (C.A.7 1996) ; United States v. Guzman , 852 F.2d 1117, 1122 (C.A.9 1988) ; United States v. Assante , 979 F.Supp.2d 756, 762 (W.D. Ky. 2013) ; United States v. Grissom , 825 F.Supp. 949, 953 (D. Kan. 1993) ; State v. Guscette , 678 N.W.2d 126, 131 (N.D. 2004) and State v. Myer , 441 N.W.2d 762, 766 (Iowa 1989). Quite simply, withdrawal of consent after the search has been completed does not entitle a defendant to the return of evidence seized during the course of a consent search because those items are lawfully in the possession of the police; and, by the same token, a defendant who consents to the search in which evidence is seized cannot, by revoking consent, prevent the police from examining the lawfully obtained evidence. In short, the examination of evidence procured pursuant to a consent search does not constitute a second search or seizure. IV. CONCLUSION Ultimately, this is not a case about withdrawing consent to search; it is a case in which the search to obtain defendant's blood has been completed with her consent and defendant nevertheless wishes to prevent the police from examining the evidence-i.e., her blood-which was lawfully collected during the consent search. However, once the blood was lawfully procured by the police pursuant to defendant's consent, the subsequent analysis of the blood did not constitute a separate search, and defendant simply had no Fourth Amendment basis on which to object to the analysis of the blood for the purpose for which it was drawn. Stated differently, once police procured a sample of defendant's blood pursuant to her consent, she had no reasonable expectation of privacy in the blood alcohol content of that sample and it could be examined for that purpose without her consent. Consequently, defendant's efforts to withdraw consent after her blood had already been collected came too late to invalidate the consent search or to deprive police of the authority to analyze the lawfully obtained blood in their possession to determine defendant's blood alcohol content. It follows that defendant was not entitled to suppress the result of her blood alcohol test, and the trial court did not err by denying defendant's motion to suppress. Affirmed and remanded for further proceedings. We do not retain jurisdiction. Meter and K. F. Kelly, JJ., concurred with Hoekstra, P.J. People v. Woodard , unpublished order of the Court of Appeals, entered April 4, 2017 (Docket No. 336512). While the decisions of lower federal courts and other state courts are not binding on this Court, they may be considered as persuasive authority. People v. Jackson , 292 Mich. App. 583, 595 n. 3, 808 N.W.2d 541 (2011). Whether an expectation is one that society recognizes as reasonable depends on the totality of the circumstances. Antwine , 293 Mich. App. at 195, 809 N.W.2d 439. See also State v. Loveland , 696 N.W.2d 164, 166, 2005 SD 48 (2005) ("After the urine sample was seized by the police, testing the sample for the presence of illegal substances required no further seizure of [the defendant's] person or effects."); State v. Notti , 316 Mont. 345, 350, 2003 MT 170, 71 P.3d 1233 (2003) ("[A] defendant's privacy interest in blood samples or blood profiles is lost when the defendant consents to a blood draw or where it has been obtained through proper judicial proceedings."); State v. Barkley , 144 N.C. App. 514, 519, 551 S.E.2d 131 (2001) ("Privacy concerns are no longer relevant once the sample has already lawfully been removed from the body....") (quotation marks and citation omitted); Wilson v. State , 132 Md. App. 510, 550, 752 A.2d 1250 (2000) ("Any legitimate expectation of privacy that the appellant had in his blood disappeared when that blood was validly seized in 1991."); People v. King , 232 App.Div.2d 111, 117, 663 N.Y.S.2d 610 (1997) ("It is also clear that once a person's blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure arguments with respect to the use of that sample."). None of these cases is directly on point because none involved an attempt by a defendant to withdraw consent before initial analysis of the blood occurred, but instead these cases typically involved efforts to prevent the police from reanalyzing the evidence or using it for additional purposes or in a subsequent, unrelated case. Nevertheless, we find these cases persuasive in their discussion of the reasonable privacy interests that remain when a defendant has surrendered a biological sample to law enforcement authorities. Relying on Riley v. California , 573 U.S. ----, ----, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), defendant disputes the basic assertion that lawfully obtained evidence may be examined by police, and he argues that applying that rule to blood would exalt the privacy interests in cellular telephones over an individual's privacy interests in her own blood. However, Riley is readily distinguishable because it involved the seizure of evidence incident to arrest. Recognizing that searches incident to arrest are conducted for officer safety and the preservation of evidence, the Court determined that a cell phone may be seized to prevent destruction of evidence and the physical phone may examined to ensure that it cannot be used as weapon, but that the police must obtain a warrant to examine the data on the phone. See Riley , 134 S.Ct. at 2484-2489. We do not read Riley as creating a broad rule that police must obtain a warrant to examine lawfully seized evidence. Instead, Riley involved a search incident to arrest, in which the only justifications for seizing the phone are to ensure officer safety and to preserve evidence. In contrast, in the case of a blood draw, "[t]he only justification for the seizure of defendant's blood was the need to obtain evidence of alcohol content." Snyder , 852 F.2d at 474. Given the context in which Riley was decided, we fail to see its relevance in a case in which defendant consented to the search and seizure in question for the purposes of blood alcohol analysis. The implied consent statutes have since been amended, and the comparable provision may now be found at MCL 257.625a(6)(e). We note that there has been no suggestion that the police used defendant's blood sample for any purpose other than the analysis of her blood alcohol content. According to defendant, the implied consent statute and concerns about drunk driving cannot lead to the conclusion that consent to a blood test cannot be withdrawn following the procurement of the voluntary sample. Specifically, defendant contends that this result is foreclosed by McNeely , 569 U.S. at 162-64, 133 S.Ct. at 1556, 1567, which held that "compelled blood draws implicate a significant privacy interest" and that the natural metabolization of alcohol did not create a per se exigency justifying nonconsensual, warrantless blood testing in all drunk driving cases. However, McNeely does not stand for the proposition that consent to blood testing may be withdrawn after a sample has been obtained with the suspect's consent. To the contrary, McNeely is entirely consistent with our analysis because in McNeely , before the sample was drawn, the defendant refused to grant consent to the blood test. Id. at 144-47, 133 S.Ct. at 1557. The fact that the defendant did not consent to the blood draw was significant because, while the Court acknowledged that motorists have a diminished expectation of privacy, the Court concluded that this "does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin ." Id. at 159, 133 S.Ct. at 1565 (emphasis added). In contrast, when a blood sample is obtained lawfully with the defendant's consent, this piercing of skin is wholly lawful and, once this sample has been lawfully obtained, testing of the sample does not constitute a second search. Defendant concedes that typically evidence seized during a consent search need not be returned, but she contends that this rule should not apply to prevent her from demanding the return of her blood because, unlike other types of evidence, it is not "immediately apparent" that her blood contains evidence of criminality. Such an argument is disingenuous because many types of evidence do not evince criminality without some analysis. For example, until tested, police may strongly suspect that a white powder is cocaine, but it could also be sugar or talcum powder. See Jacobsen , 466 U.S. at 122, 104 S.Ct. 1652. Likewise, "a fingerprint ... has no independent value to the police until it is tested and compared to other, previously collected fingerprints." Raynor v. State , 440 Md. 71, 91, 99 A.3d 753 (2014). Yet, we doubt that defendant would suggest that she could demand the return of a white powder found during a consent search or fingerprints voluntarily given to the police. In other words, we are not persuaded by defendant's argument that her proposed rule can be narrowly circumscribed to allow for the return of unanalyzed blood but not other types of evidence. If an individual may demand the return of blood obtained during a lawful consent search, provided that the blood has not yet been subjected to testing, the same reasoning would allow an individual to demand the return of almost any item seized during a lawful consent search, such as suspected drugs that have not been analyzed, a gun that has not yet been subjected to ballistics testing, fingerprints that have not yet been compared, documents that have not yet been read, etc. Such a rule is not consistent with Powell 's recognition that the police cannot be deprived of evidence lawfully obtained during the course of a consent search. And it is clear that defendant's blood is evidence of her intoxication obtained during a consent search. On appeal, defendant analogizes this case to a consensual pat-down in which the suspect withdraws consent before a police officer reaches into the suspect's pocket containing baggies of possible drugs. Just as the suspect may prevent the search of his pocket by withdrawing consent, defendant contends she may prevent the search of her blood. Such a comparison is not apropos. Instead, to borrow defendant's analogy, we are faced with a situation in which the police have already, with defendant's consent, searched the pocket and seized the baggies. The question is whether, having lawfully obtained the baggies, the police may analyze the contents of the baggies to ascertain whether or not the substance is a drug. As an alternative argument, the prosecutor argues that, even if defendant effectuated the withdrawal of her consent, there was probable cause to obtain a warrant for the analysis of defendant's blood. Having determined that defendant did not withdraw her consent in time to invalidate the analysis of her blood, we need not reach this issue.

Boonstra, P.J. Plaintiff appeals by right the trial court's order denying its motion for summary disposition and granting the cross-motion for summary disposition filed by defendants the Michigan Assigned Claims Plan and the Michigan Automobile Insurance Placement Facility (collectively, defendants). We affirm and remand for further proceedings consistent with this opinion. I. PERTINENT FACTS AND PROCEDURAL HISTORY This case arises out of an automobile accident that occurred on September 4, 2014. Zoie Bonner was a passenger in a 2003 Ford Taurus driven by her boyfriend, Philip Kerr, when it rear-ended another vehicle. The Taurus was owned by Bonner's aunt or uncle and was insured under an automobile insurance policy issued by Citizens Insurance Company of the Midwest (Citizens). The police report generated by the Jackson Police Department concerning the accident identified the applicable insurance for the Taurus as "Citizens Insurance." It also contained Kerr's name, a description of the vehicle, the vehicle registration number, and the vehicle identification number. It did not, however, identify Bonner as a passenger in the Taurus or as an injured party. Bonner did not seek immediate medical attention, but she was treated for rib pain by plaintiff's emergency department the following day. Bonner's emergency department chart indicates that she told medical providers that she was involved in a motor vehicle accident the previous day in which she was a passenger in a vehicle that had rear-ended another vehicle. It does not appear that any employees of plaintiff asked Bonner about applicable automobile insurance. Plaintiff provided Bonner with medical services valued at $9,113. During the year following the accident, plaintiff repeatedly attempted to contact Bonner to obtain information concerning applicable insurance coverage. Plaintiff sent letters, telephoned Bonner, and hired a private investigator eight months after the accident. The private investigator eventually made contact with Bonner in June 2015. Bonner stated that neither she nor her boyfriend had automobile insurance but that her aunt owned the vehicle that Kerr had been driving. Neither plaintiff nor its investigator obtained any contact information for Bonner's aunt or boyfriend, apparently failing even to obtain Bonner's aunt's or Kerr's name. They also did not obtain the police report from the accident. On September 3, 2015 (one day before the one-year anniversary of the accident), plaintiff filed a claim with defendants, seeking no-fault personal protection insurance benefits (also called personal injury protection benefits or PIP benefits) on Bonner's behalf under Michigan's no-fault insurance act, MCL 500.3101 et seq . Under the no-fault act, an injured person may seek PIP benefits from defendants within one year of the injury when no personal protection insurance applicable to the injury can be identified. MCL 500.3172(1) ; MCL 500.3145. The following day, and before any response from defendants, plaintiff filed suit requesting that the trial court enter a judgment declaring that defendants had a duty to promptly assign its claim to an insurer and that, upon assignment, the insurer would be responsible to process and pay the claim. On September 17, 2015, defendants responded to plaintiff's claim with a letter indicating that it was unable to process the claim without additional information. The letter requested that additional information be forwarded to defendants and stated that the claim would be reviewed once complete information was received. In October 2015, defendants answered plaintiff's complaint, asserting, among other defenses, that plaintiff had failed to state a claim for which relief could be granted, that plaintiff had not submitted a completed claim for PIP benefits, that defendants did not owe benefits because they were not "incurred" by Bonner, and that plaintiff was precluded from obtaining relief because plaintiff had "failed to obtain primary coverage within the obligation of the primary carrier(s)" to the detriment of defendants. Bonner was deposed in December 2015. She testified that her aunt owned the vehicle and maintained insurance on it, although she did not know the name of the insurer. Citizens was subsequently identified as the insurer of the vehicle. Plaintiff attempted to submit a claim for PIP benefits to Citizens, but Citizens denied the claim as being beyond the one-year deadline contained in MCL 500.3145. Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff's claim was ineligible for assignment because applicable insurance had been identified and because plaintiff could have recovered PIP benefits from Citizens if it had acted in a timely fashion. Plaintiff responded and also moved for summary disposition, arguing that defendants were required to promptly assign plaintiff's claim at the time of the claim application unless the claim was obviously ineligible and that defendants had failed to do so. Plaintiff argued that the subsequent discovery of information concerning the Citizens policy did not alter this obligation. After a hearing on the parties' motions, the trial court denied plaintiff's motion for summary disposition and granted defendants' motion for summary disposition, reasoning that plaintiff had failed to demonstrate that it could not have identified applicable insurance at the time it submitted its application for PIP benefits to defendants. Further, plaintiff could have learned of the Citizens policy if it had filed suit directly against Bonner for the unpaid medical bills, if it had obtained proper information from Bonner at the time of treatment, if it had obtained the police report concerning the automobile accident, or if it had followed up on information that Bonner's aunt owned the vehicle in question. This appeal followed. During the pendency of this appeal, our Supreme Court issued its opinion in Covenant Med. Ctr., Inc. v. State Farm Mut. Auto Ins. Co. , 500 Mich. 191, 895 N.W.2d 490 (2017). Covenant reversed decisions of this Court that had recognized that healthcare providers could maintain direct causes of action against insurers to recover PIP benefits, instead holding that no such statutory cause of action exists. Id ., at 195-196, 895 N.W.2d at 493. On August 1, 2017, defendants filed motions with this Court for immediate consideration and for leave to file a nonconforming supplemental authority brief addressing Covenant and its effect on this case. This Court granted the motions and accepted the supplemental briefs that had been submitted by both plaintiff and defendants. II. STANDARD OF REVIEW This Court reviews de novo the grant or denial of motions for summary disposition under MCR 2.116(C)(10). See Johnson v. Recca , 492 Mich. 169, 173, 821 N.W.2d 520 (2012). MCR 2.116(C)(10) provides that a trial court may grant judgment on all or part of a claim when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003). We also review de novo questions of statutory interpretation, see Saffian v. Simmons , 477 Mich. 8, 12, 727 N.W.2d 132 (2007), as well as whether a judicial decision applies retroactively, McNeel v. Farm Bureau Gen. Ins. Co. of Mich. , 289 Mich.App. 76, 94, 795 N.W.2d 205 (2010). III. ANALYSIS Plaintiff argues that the trial court improperly granted defendants' motion for summary disposition and instead should have granted summary disposition in favor of plaintiff because defendants were obligated to assign its claim to an insurer under MCL 500.3172(1). Because we hold that Covenant controls this issue and applies to this case, we disagree. We therefore affirm the trial court's grant of summary disposition in favor of defendants, albeit for reasons other than those stated by the trial court. We remand this case to the trial court for further proceedings consistent with this opinion. A. GENERAL LEGAL PRINCIPLES UNDER THE NO-FAULT ACT Michigan's no-fault insurance act, MCL 500.3101 et seq ., requires motor vehicle owners or registrants to carry no-fault insurance coverage that provides for PIP benefits. PIP benefits are payable "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle...." MCL 500.3105(1). When a person suffers injury as the result of a motor vehicle accident, the person typically has one year to commence an action to recover PIP benefits. MCL 500.3145(1). The injured person must look first to his or her own no-fault policy or to a no-fault policy issued to a relative with whom he or she is domiciled. MCL 500.3114(1) ; see also Corwin v. DaimlerChrysler Ins. Co. , 296 Mich.App. 242, 262, 819 N.W.2d 68 (2012). If neither the injured person nor any relatives with whom the person is domiciled have no-fault coverage, the person may seek to recover benefits from "[t]he insurer of the owner or registrant of the vehicle occupied" and "[t]he insurer of the operator of the vehicle occupied," in that order. MCL 500.3114(4). If the person is unable to recover under any of these options, the person may seek PIP benefits through Michigan's assigned claims plan under MCL 500.3172(1), which provides: A person entitled to [a] claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through the assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, the personal protection insurance applicable to the injury cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, or the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. In that case, unpaid benefits due or coming due may be collected under the assigned claims plan and the insurer to which the claim is assigned is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility. Accordingly, a person may recover PIP benefits from the assigned claims plan when (1) no personal protection insurance is applicable to the injury, (2) no personal protection insurance applicable to the injury can be identified, (3) the applicable insurance cannot be ascertained due to a dispute among insurers, or (4) the only applicable insurance is inadequate due to financial inability. See MCL 500.3172(1) ; Spectrum Health v. Grahl , 270 Mich.App. 248, 251-252, 715 N.W.2d 357 (2006). B. THE COVENANT DECISION MCL 500.3112 states, in pertinent part, that "[p]ersonal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents." Before our Supreme Court's decision in Covenant , this Court had held that this language permitted a healthcare provider who had provided services to an insured to seek recovery of those benefits directly from the insurer. See Wyoming Chiropractic Health Clinic, PC v. Auto-Owners Ins. Co. , 308 Mich.App. 389, 401, 864 N.W.2d 598 (2014), overruled by Covenant , 500 Mich. at 191, 895 N.W.2d at 494. In Covenant , our Supreme Court examined the language of MCL 500.3112 and held that the statute did not create an independent cause of action for healthcare providers to pursue PIP benefits from an insurer. Covenant . 500 Mich. at 195, 895 N.W.2d at 493. Our Supreme Court also determined that no other provision of the no-fault act grants a statutory cause of action to a healthcare provider for recovery of PIP benefits from an insurer: And further, no other provision of the no-fault act can reasonably be construed as bestowing on a healthcare provider a statutory right to directly sue no-fault insurers for recovery of no-fault benefits. We therefore hold that healthcare providers do not possess a statutory cause of action against no-fault insurers for recovery of personal protection insurance benefits under the no-fault act. The Court of Appeals caselaw concluding to the contrary is overruled to the extent that it is inconsistent with this holding. * * * In sum, a review of the plain language of the no-fault act reveals no support for plaintiff's argument that a healthcare provider possesses a statutory cause of action against a no-fault insurer. This conclusion does not mean that a healthcare provider is without recourse; a provider that furnishes healthcare services to a person for injuries sustained in a motor vehicle accident may seek payment from the injured person for the provider's reasonable charges. However, a provider simply has no statutory cause of action of its own to directly sue a no-fault insurer. [ Id . at 196, 217-218, 895 N.W.2d at 497-506, 504-05 (citation omitted).] Although our Supreme Court did not specifically address MCL 500.3172(1) in its analysis, it is clear from the opinion in Covenant that healthcare providers such as plaintiff cannot pursue a statutory cause of action for PIP benefits directly from an insurer. Nothing in Covenant or the language of MCL 500.3172(1) suggests a different outcome when a healthcare provider seeks benefits from an insurer assigned by defendants as opposed to a known insurer. Indeed, it would seem nonsensical to prohibit direct actions by healthcare providers seeking PIP benefits from known insurers while permitting such direct actions by healthcare providers when there is no known or applicable insurer. See Turner v. Auto Club Ins. Ass'n. , 448 Mich. 22, 28, 528 N.W.2d 681 (1995) ("[W]hen courts interpret a particular phrase in a statute, they must, whenever possible, construe the phrase in such a way that the interpretation does not conflict with, or deny effect to, other portions of the statute."). Accordingly, because our Supreme Court has determined that a healthcare provider cannot maintain a direct action for PIP benefits under the no-fault act and because nothing in MCL 500.3172(1) creates an exception to that rule, Covenant bars plaintiff's claim if its holding is applicable in this case. The question then becomes whether Covenant applies only prospectively or whether it applies to cases pending on appeal when it was issued. This question was the subject of the parties' supplemental briefing. C. WAIVER AND PRESERVATION Before reaching that question, we must decide whether it is properly before us. We conclude that it is. We find unpersuasive plaintiff's assertion that defendants waived or failed to preserve the issue of whether plaintiff possessed a statutory cause of action against them. First, the defense of "failure to state a claim on which relief can be granted" is not waived even if not asserted in a responsive pleading or motion. MCR 2.111(F)(2). Second, defendants asserted such an affirmative defense in this case and also asserted the defenses that plaintiff lacked standing to sue and that defendants did not owe benefits to plaintiff because plaintiff was not the one who had "incurred" them. This, in essence, is an assertion that plaintiff did not have a statutory right to sue defendants directly, in recognition of our holding that MCL 500.3112"confers a cause of action on the injured party and does not create an independent cause of action for the party who is legally responsible for the injured party's expenses." Hatcher v. State Farm Mut. Auto. Ins. Co. , 269 Mich.App. 596, 600, 712 N.W.2d 744 (2006). Rather, "the right to bring an action for personal protection insurance benefits ... belongs to the injured party." Id . Third, given the state of the caselaw at the time of the proceedings in the trial court and defense counsel's statements at the summary disposition motion hearing, it is clear that counsel was aware that then-applicable Court of Appeals precedent likely would have rendered any such argument futile at the time. Finally, while plaintiff cites Dell v. Citizens Ins. Co. of America , 312 Mich.App. 734, 751 n. 40, 880 N.W.2d 280 (2015), for the proposition that "[g]enerally, an issue must be raised, addressed, and decided in the trial court to be preserved for review," this Court said in its very next breath that "[t]his Court may [nonetheless] address the issue because it concerns a legal question and all of the facts necessary for its resolution are present," id . The same is true here. We therefore conclude that the issue has not been waived and has been adequately preserved. D. RETROACTIVITY VERSUS PROSPECTIVITY 1. GENERAL PRINCIPLES " '[T]he general rule is that judicial decisions are to be given complete retroactive effect.' " McNeel , 289 Mich.App. at 94, 795 N.W.2d 205, quoting Hyde v. Univ. of Mich. Bd. of Regents , 426 Mich. 223, 240, 393 N.W.2d 847 (1986) (alteration by the McNeel Court). " 'We have often limited the application of decisions which have overruled prior law or reconstrued statutes. Complete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.' " McNeel, 289 Mich.App. at 94, 795 N.W.2d 205. quoting Hyde , 426 Mich. at 240, 393 N.W.2d 847. If a rule of law announced in an opinion is held to operate retroactively, it applies to all cases still open on direct review. Id . at 94, 795 N.W.2d 205, citing Harper v. Virginia Dep't of Taxation , 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). On the other hand, a rule of law that applies only prospectively does not apply to cases still open on direct review and does "not even apply to the parties in the case[ ]" in which the rule is declared. McNeel , 289 Mich.App. at 94, 795 N.W.2d 205. 2. SUMMARY OF THE PARTIES' POSITIONS Plaintiff would have us follow a line of cases that employ a "flexible approach" to determining whether a judicial decision has retroactive effect. See, e.g., Bezeau v. Palace Sports & Entertainment, Inc. , 487 Mich. 455, 462, 795 N.W.2d 797 (2010) (opinion by WEAVER, J.) ("In general, this Court's decisions are given full retroactive effect. However, there are exceptions to this rule. This Court should adopt a more flexible approach if injustice would result from full retroactivity. Prospective application may be appropriate where the holding overrules settled precedent.") (citations omitted); see also Tebo v. Havlik , 418 Mich. 350, 360, 343 N.W.2d 181 (1984) (opinion by BRICKLEY, J.) ("Although it has often been stated that the general rule is one of complete retroactivity, this Court has adopted a flexible approach."). Under this line of reasoning, "resolution of the retrospective-prospective issue ultimately turns on considerations of fairness and public policy." Riley v. Northland Geriatric Ctr. (After Remand) , 431 Mich. 632, 644, 433 N.W.2d 787 (1988) (opinion by GRIFFIN, J.); see also Placek v. Sterling Heights , 405 Mich. 638, 665, 275 N.W.2d 511 (1979). Plaintiff argues that it would be unfair to apply Covenant retroactively because plaintiff and others have relied on a long line of pre- Covenant decisions from this Court that recognized a healthcare provider's statutory right to bring suit against an insurer under MCL 500.3112. Plaintiff further argues that Covenant satisfies the initial threshold question for determining whether prospective application is warranted, i.e., "whether the decision clearly established a new principle of law." Pohutski v. City of Allen Park , 465 Mich. 675, 696, 641 N.W.2d 219 (2002). Having thus satisfied the threshold question, plaintiff argues that the resulting three-factor test for prospective application is also satisfied. See id . ("[T]hree factors [are] to be weighed in determining when a decision should not have retroactive application. Those factors are: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice."). Defendants concede that a certain level of unfairness exists whenever judicial decisions alter the actual or perceived state of the law, but counter that such a flexible approach would turn every court into a court of equity. Defendants further recognize that the threshold question and three-factor test have been often repeated in Michigan caselaw. But defendants characterize prospective judicial decision-making as "a relatively new and somewhat novel concept that conflicts with the traditional fundamental understanding of the nature of the judicial function." Defendants therefore advance a line of cases that recognize that the general and usual rule is that of retroactivity. Under this line of reasoning, "[p]rospective application is a departure from [the] usual rule and is appropriate only in 'exigent circumstances,' " Devillers v. Auto Club Ins. Ass'n , 473 Mich. 562, 586, 702 N.W.2d 539 (2005) (citation omitted) (retroactively overruling a 19-year-old legal precedent determined to be inconsistent with plain statutory language), that warranting "the 'extreme measure' of prospective application," Wayne Co. v. Hathcock , 471 Mich. 445, 484 n. 98, 684 N.W.2d 765 (2004) (retroactively overruling a 23-year-old legal precedent determined to be inconsistent with proper constitutional interpretation), citing Gladych v. New Family Homes, Inc. , 468 Mich. 594, 605, 664 N.W.2d 705 (2003) (retroactively overruling a 32-year-old legal precedent determined to be inconsistent with plain statutory language). Even more fundamentally, defendants argue that the United States Supreme Court in Harper definitively established that judicial decisions regarding federal law "must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule," Harper , 509 U.S. at 97, 113 S.Ct. 2510, and that the Michigan courts have essentially adopted (or, alternatively, that we should adopt) that definitive rule in Michigan state court jurisprudence. Indeed, defendants argue that it is difficult to discern any reason why the Harper reasoning would not "perfectly harmonize" with Michigan jurisprudence and that it can no more be said of Michigan jurisprudence (than of federal jurisprudence) that we can "permit 'the substantive law [to] shift and spring' according to 'the particular equities of [individual parties'] claims' of actual reliance on an old rule and of harm from a retroactive application of the new rule." Id . (citation omitted; alterations by the Harper Court). Defendants further argue that Covenant did not establish a new principle of law but instead corrected judicial misinterpretations of statutory law to return the law to what it always had been, such that the threshold question of Pohutski , if applicable, is not satisfied. Defendants do not concede that Pohutski 's three-factor test, if applicable, favors prospective application of Covenant but acknowledge that their stronger arguments lie elsewhere. 3. UNPACKING THE EVOLVING CASELAW On the basis of our analysis of the shifting sands of the evolving caselaw-both in Michigan and in the United States Supreme Court-on the issue of the retroactivity/prospectivity of judicial decisions, we conclude that it would be nigh to impossible to divine a rule of law that lends complete consistency and clarity to the various espousements of the Courts, with their shifting makeups, over the years. Rather, the caselaw has evolved over time and, in at least some respects, is not today where it once was. The one constant is that the general rule is, and always has been, that judicial decisions apply retroactively. The jurisprudential debate over the years has instead been over whether and under what circumstances deviations should be made from the general rule of retroactivity. The underpinnings of what we have described, for purposes of Michigan state court jurisprudence, as the "threshold question" and "three-part test" of Pohutski derive from decisions of the United States Supreme Court in Linkletter v. Walker , 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Chevron Oil Co. v. Huson , 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed. 2d 296 (1971). Subsequently, and without belaboring the path that led to Harper , the United States Supreme Court ultimately reversed the direction it had taken in those cases and instead definitively adopted the following rule: When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. [ Harper , 509 U.S. at 97, 113 S.Ct. 2510.] State courts nonetheless appear to remain free to adopt their own approach to retroactivity under state law, so long as it does not extend to an interpretation of federal law. See id . at 100, 113 S.Ct. 2510 ("Whatever freedom state courts may enjoy to limit the retroactive operation of their own interpretations of state law cannot extend to their interpretations of federal law.") (citations omitted). See also Great N. R. Co. v. Sunburst Oil & Refining Co. , 287 U.S. 358, 364-366, 53 S.Ct. 145, 77 L.Ed. 360 (1932) ; Riley , 431 Mich. at 644, 433 N.W.2d 787 (opinion by GRIFFIN, J.). And indeed, the Michigan courts did so, adopting and applying the "threshold question" and "three-part test" in numerous cases over the years. Defendants concede that the Michigan Supreme Court has never expressly adopted the reasoning of Harper into Michigan jurisprudence and indeed that no Michigan appellate court has actually considered whether the Harper rule should be adopted in Michigan. Nonetheless, defendants invite us to read this Court's citation of Harper in McNeel as effectively extending the Harper rule to Michigan's state court jurisprudence so as to require that all decisions of the Michigan Supreme Court (like Covenant ) must be given full retroactive effect. We decline that invitation, inasmuch as McNeel did not cite Harper in order to mandate retroactivity but rather merely to explain that when a decision applies retroactively, it applies to all pending cases. We must therefore consider defendants' alternative invitation to so extend Harper ourselves. We are an error-correcting Court, however, and such a determination is therefore one that is best decided by our Supreme Court in the first instance. See People v. Woolfolk , 304 Mich.App. 450, 475, 848 N.W.2d 169 (2014). We therefore look to the current state of our Supreme Court's pronouncements on the issue for guidance. In Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 821 N.W.2d 117 (2012), the Court overturned an earlier judicial interpretation of a provision of the no-fault act, just as it later did in Covenant . As in Covenant , the Court did so on the basis of its conclusion that the earlier judicial decision was inconsistent with the plain meaning of the statute. The Court in Spectrum Health held that its decision was "retrospective in its operation," and it did so without undertaking any analysis of the Pohutski "threshold question" or "three-factor test." Spectrum Health , 492 Mich. at 537, 821 N.W.2d 117. Instead, its stated rationale was as follows: " 'The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law.' " This principle does have an exception: When a "statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision." [ Id . at 536, 821 N.W.2d 117 (citations omitted).] Given that this is the most recent pronouncement of our Supreme Court on this issue, it is critical to informing our analysis of whether Covenant should be applied retroactively or prospectively. 4. AS APPLIED TO COVENANT a. DISCERNING DIRECTION FROM THE SUPREME COURT IN AND AFTER COVENANT Defendants argue that the Supreme Court conclusively determined in Covenant itself that its decision applied retroactively. While defendants acknowledge that neither the words "retroactive" nor "prospective" appear in the Court's opinion, defendants glean a conclusive determination of retroactivity from the Court's remand of the case to the trial court for entry of summary disposition in favor of the defendant-insurer. In effect, this is a restatement of defendants' position regarding the applicability of Harper to Michigan state court jurisprudence. Plaintiff argues, to the contrary, that the remand for entry of summary disposition is not dispositive, pointing out that this Court has occasionally declared a case to have only prospective effect despite the fact that our Supreme Court had applied its holding to the parties before it. In support of this argument, plaintiff cites our decision in People v. Gomez , 295 Mich.App. 411, 820 N.W.2d 217 (2012), concerning the prospective effect of a United States Supreme Court decision announcing a new rule of criminal procedure. However, we conducted that analysis under federal law regarding changes to criminal procedure, under which "a new rule of criminal procedure generally cannot be applied retroactively to alter a final judgment." Id . at 415, 820 N.W.2d 217. And although we did declare that our Supreme Court's decision in Rory v. Continental Ins. Co., 473 Mich. 457, 703 N.W.2d 23 (2005), was prospective only, see West v. Farm Bureau Gen. Ins. Co. of Mich. (On Remand ), 272 Mich.App. 58, 60, 723 N.W.2d 589 (2006), our Supreme Court applied Rory retroactively two years later in McDonald v. Farm Bureau Ins. Co. , 480 Mich. 191, 205-206, 747 N.W.2d 811 (2008). Nonetheless, and particularly because the Supreme Court has not expressly adopted the Harper rationale, we accept plaintiff's position that the Supreme Court's remand in Covenant (for entry of summary disposition) is not necessarily dispositive, and we therefore will assume for purposes of this opinion that we have the authority to decide the issue of retroactivity. However, the Supreme Court has not only remanded Covenant for entry of summary disposition, but it has also subsequently remanded at least two cases to this Court for reconsideration in light of Covenant in lieu of granting leave to appeal. See Bronson Methodist Hosp. v. Mich. Assigned Claims Facility , 500 Mich. 1024, 897 N.W.2d 735 (2017) ; Spectrum Health Hosps. v. Westfield Ins. Co. , 500 Mich. 1024, 897 N.W.2d 166 (2017). Thus, the Supreme Court both applied the rule of law it announced in Covenant to the parties before it and also directed this Court to consider Covenant 's application to cases pending on direct appeal. While still not dispositive, we interpret both actions as suggesting that the Court did not intend the rule of law announced in Covenant to be applied prospectively only. b. SPECTRUM HEALTH IS DISPOSITIVE We next must address the question of how to apply the caselaw that we have endeavored to unpack in this opinion. As noted, we find little basis on which to reconcile the various pronouncements of the Courts over time. We are therefore guided by two parallel considerations: (1) the evolution of the caselaw in the United States Supreme Court and (2) the evolution of the caselaw in the Michigan Supreme Court. As we have indicated, the latter derived from the former. That is, the principles adopted and applied by the Michigan Supreme Court with respect to retroactivity/prospectivity had their genesis in the jurisprudence of the United States Supreme Court. That does not necessarily mean that Michigan jurisprudence will continue to follow (for state law purposes) the jurisprudence of our nation's highest Court, but we find it instructive nonetheless. The evolution of the caselaw in the United States Supreme Court culminated in Harper , wherein, as we have noted, the Court definitively held: When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. [ Harper , 509 U.S. at 97, 113 S.Ct. 2510.] The evolution of the caselaw in the Michigan Supreme Court has culminated to date in Spectrum Health , wherein, as we have also noted, the Court held: " 'The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law.' " [ Spectrum Health , 492 Mich. at 536, 821 N.W.2d 117 (citation omitted).] At its core, this means that notwithstanding the understandable reliance of plaintiff and others on prior decisions of this Court, those decisions did not represent "the law." Rather, "the law" in this instance is the pronouncement of the Legislature in the statutory text of MCL 500.3112. Absent legislative revision, that law is immutable and unmalleable; its meaning does not ebb and flow with the waves of judicial preferences. See Mayor of Lansing v. Pub.Serv. Comm. , 470 Mich. 154, 161, 680 N.W.2d 840 (2004) ("Our task, under the Constitution, is the important, but yet limited, duty to read and interpret what the Legislature has actually made the law. We have observed many times in the past that our Legislature is free to make policy choices that, especially in controversial matters, some observers will inevitably think unwise. This dispute over the wisdom of a law, however, cannot give warrant to a court to overrule the people's Legislature."). We recognize that the application of this principle can sometimes lead to seemingly unfair results. However, any unfairness ultimately derives not from the application of the law itself, but rather from the judiciary's determination to stray from the law. And our first obligation must be to maintain the rule of law. We therefore must apply the Supreme Court's pronouncement in Spectrum Health . In doing so, we note that it hardly breaks new ground. Rather, it returns us to the foundational principles as expressed by Sir William Blackstone: For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law , but that it was not law [.] [1 Blackstone, Commentaries on the Laws of England, p. 70.] The jurisprudential footing of Spectrum Health is therefore both solid and of long standing. And, importantly for purposes of our analysis, its Blackstonian pronouncement lies at the core of the longstanding judicial debate over the proper role of the judiciary generally and the propriety of prospective decision-making specifically. As Justice Scalia stated in Harper : Prospective decisionmaking is the handmaid of judicial activism, and the born enemy of stare decisis . It was formulated in the heyday of legal realism and promoted as a "techniqu[e] of judicial lawmaking" in general, and more specifically as a means of making it easier to overrule prior precedent.... ...The true traditional view is that prospective decisionmaking is quite incompatible with the judicial power, and that courts have no authority to engage in the practice..... [The dissent] asserts that " '[w]hen the Court changes its mind, the law changes with it.' " That concept is quite foreign to the American legal and constitutional tradition. It would have struck John Marshall as an extraordinary assertion of raw power. The conception of the judicial role that he possessed, and that was shared by succeeding generations of American judges until very recent times, took it to be "the province and duty of the judicial department to say what the law is ," Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (emphasis added)-not what the law shall be . That original and enduring American perception of the judicial role sprang not from the philosophy of Nietzsche but from the jurisprudence of Blackstone, which viewed retroactivity as an inherent characteristic of the judicial power, a power "not delegated to pronounce a new law, but to maintain and expound the old one." 1 W. Blackstone, Commentaries [on the Laws of England] 69 (1765). Even when a "former determination is most evidently contrary to reason ... [or] contrary to the divine law," a judge overruling that decision would "not pretend to make a new law, but to vindicate the old one from misrepresentation."Id . at 69-70. "For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law , but that it was not law ." Id . at 70 (emphasis in original). Fully retroactive decisionmaking was considered a principal distinction between the judicial and the legislative power: "[I]t is said that that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases." T. Cooley, Constitutional Limitations *91. The critics of the traditional rule of full retroactivity were well aware that it was grounded in what one of them contemptuously called "another fiction known as the Separation of powers." Kocourek, Retrospective Decisions and Stare Decisis and a Proposal , 17 A.B.A.J. 180, 181 (1931). Prospective decisionmaking was known to foe and friend alike as a practical tool of judicial activism, born out of disregard for stare decisis . [ Harper , 509 U.S. at 105-108, 113 S.Ct. 2510 (Scalia, J., concurring) (citation omitted; alteration in original).] This Court also discussed these competing judicial philosophies in Lincoln v. Gen. Motors Corp. , 231 Mich.App. 262, 307-308, 314,, 586 N.W.2d 241 (1998) (WHITBECK, P.J., concurring), wherein Judge WHITBECK observed: As noted by former Justice MOODY "[n]otions of retrospectivity and prospectivity have their roots in two diametrically opposed theories of jurisprudence." The first view, widely attributed to Blackstone, is that courts function to discover and declare the law rather than to make it. Therefore, when judges change legal rules, they do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law; but that it was not law .... Justice MOODY observed that, under this view, a law-changing decision, because it is merely a statement of what had always been the "true" law, must of necessity be retroactively applied. A second view asserts that judges not only discover law but make law. Under this theory, decisions that change the law should not automatically apply retrospectively. The tension between these two views is evident throughout much of our jurisprudence regarding this subject.... * * * ...Applying Blackstone's formulation, the interpretation of the [Worker's Disability Compensation Act, MCL 418.101 et seq .,] in [ Wozniak v. Gen. Motors Corp. , 198 Mich.App. 172, 497 N.W.2d 562 (1993),] was always the "true law" and it must therefore be given full retroactive effect. With this backdrop, it becomes readily apparent that the underpinnings of Spectrum Health and Harper are one and the same. That is to say, judicial decisions of statutory interpretation must apply retroactively because retroactivity is the vehicle by which "the law" remains "the law." As Spectrum Health dictates, intervening judicial decisions that may have misinterpreted existing statutory law simply are not, and never were, "the law." The necessary consequence is that those decisions of this Court that were overruled by our Supreme Court in Covenant were not "the law" and therefore did not, and do not, afford plaintiff a statutory right to recover PIP benefits directly from an insurer. Because plaintiff has no such right under the pre- Covenant caselaw and because, as our Supreme Court in Covenant determined, plaintiff has no such right under the no-fault act, summary disposition was properly entered in favor of defendants in this case, albeit for reasons other than the pre- Covenant rationale given by the trial court. In essence, we conclude that our Supreme Court in Spectrum Health essentially adopted the rationale of the United States Supreme Court in Harper relative to the retroactive applicability of its judicial decisions of statutory interpretation to "all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule." Harper , 509 U.S. at 97, 113 S.Ct. 2510. Having so concluded, we invite our Supreme Court to expressly state whether or to what extent it adopts the Harper rationale into Michigan state court jurisprudence. (C). THE "THRESHOLD QUESTION" AND "THREE-FACTOR TEST" For the foregoing reasons, we conclude that we need not address the "threshold question" and "three-factor test" that have often been cited in Michigan caselaw. The Court's holding in Spectrum Health , which the Court notably reached without so much as a mention of Pohutski , effectively repudiated the application of the "threshold question" and "three-factor test," at least in the context of judicial decisions of statutory interpretation. Even if we were to consider them, however, the result would be unchanged. First, and for the reasons we have already articulated, we would not get past the threshold question. Plainly and simply, and for the reasons already noted, the law did not change. Covenant did not "clearly establish[ ] a new principle of law," Pohutski , 465 Mich. at 696, 641 N.W.2d 219, because MCL 500.3112 at no time provided plaintiff with a right of action against defendants, and the intervening caselaw from this Court "never was the law." Spectrum Health , 492 Mich. at 536, 821 N.W.2d 117 (quotation marks and citation omitted). Covenant merely recognized that the law as set forth in MCL 500.3112 is and always was the law. We particularly reach that conclusion under the circumstances of this case because the law at issue concerns the very existence of a right of action. In other words, we are not merely being asked to decide whether a judicial decision of statutory interpretation should be given retroactive effect; we are being asked to decide whether a judicial decision of statutory interpretation concerning the existence of a right of action should be given retroactive effect. We conclude that it would be particularly incongruous for us to decide that Covenant effected a change in the law such that it should not be applied retroactively, because we would effectively be creating law that does not otherwise exist and thereby affording to plaintiff a right of action that the Legislature saw fit not to provide. In effect, we would not only be changing the law from that which the Legislature enacted, but in doing so we would be creating a cause of action that does not exist; for the reasons noted in this opinion, that is outside the proper role of the judiciary. Were we to advance past the threshold question and consider the three-factor test, the question certainly would become a closer one. But even under pre- Spectrum Health caselaw, we are not prepared to conclude that the factors, taken together, would weigh in favor of the prospective-only application of Covenant . Again, the three factors to be weighed under Pohutski are: "(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice." Pohutski , 465 Mich. at 696, 641 N.W.2d 219. With regard to the first factor, our Supreme Court stated in Covenant that the purpose of its decision was to "conform our caselaw to the text of the applicable statutes to ensure that those to whom the law applies may look to those statutes for a clear understanding of the law." Covenant , 500 Mich. at 201, 895 N.W.2d 490. While Pohutski suggests that such a purpose might favor prospective application, Pohutski , 465 Mich. at 697, 641 N.W.2d 219, McNeel found that a rule of law that is intended to "give meaning to the statutory language" and to "clarif[y]" the state of the law weighs in favor of retroactive application, see McNeel , 289 Mich.App. at 96, 795 N.W.2d 205. This apparent divergence of viewpoint itself highlights what is perhaps the most inherent problem with prospectivity: the law requires consistency, see Robinson v. Detroit , 462 Mich. 439, 463, 613 N.W.2d 307 (2000), and prospectivity undermines rather than advances that objective. Instead, the law becomes subject to divergent interpretations depending on the particular tribunal that is then interpreting it. With regard to the extent of reliance on our prior caselaw, there can be no doubt that plaintiff and others have heavily relied on our prior caselaw over the course of many years. We do not in any way seek to diminish that fact or to minimize the negative effects that might be felt by those who relied on pre- Covenant decisions. The reliance is real, as are the consequences that flow from it. Yet, "[c]omplete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law." McNeel , 289 Mich.App. at 94, 795 N.W.2d 205 (quotation marks and citation omitted). And while plaintiff argues with some justification that Covenant upset "decades of settled expectations" concerning healthcare provider lawsuits, the Supreme Court in Covenant noted that the cases repeatedly cited in support of this "well-settled" principle generally had not actually litigated the issue whether a healthcare provider possessed a statutory cause of action for PIP benefits under the no-fault act. Covenant , 500 Mich. at 200-204, 895 N.W.2d at 495-97. In fact, Wyoming Chiropractic Health Clinic derived from earlier cases that had not directly litigated the right of a healthcare provider to seek PIP benefits from an insurer. Id . at 203 n. 24, 895 N.W.2d 490. And, despite allowing healthcare providers to directly claim PIP benefits from insurers, we have also stated that MCL 500.3112"confers a cause of action on the injured party" and that "the right to bring an action for personal protection insurance benefits ... belongs to the injured party." Hatcher , 269 Mich.App. at 600, 712 N.W.2d 744. This raises the question of "how reasonable the reliance ... was." McNeel , 289 Mich.App. at 96, 795 N.W.2d 205. On close inspection, it is less than clear that the state of the law that was overturned by Covenant was so "clear and uncontradicted" as to predominate in favor of only prospective application. Id. at 94, 795 N.W.2d 205 (quotation marks and citation omitted). As in McNeel , the mere fact that insurers and healthcare providers may have acted in reliance on the caselaw that Covenant overturned is not dispositive of the question of retroactivity; every retroactive application of a judicial decision has at least the potential to upset some litigants' expectations concerning their pending suits. Id. at 96, 795 N.W.2d 205. And "a return to an earlier rule and a vindication of controlling legal authority" such as the plain language of a statute further supports the conclusion that the overruled caselaw was not "clear and uncontradicted." See Devillers , 473 Mich. at 587, 702 N.W.2d 539 ; Hathcock , 471 Mich. at 484, 684 N.W.2d 765. Finally, with regard to the administration of justice, we again conclude that the weighing of this factor is at best inconclusive. Plaintiff cites Moorhouse v. Ambassador Ins. Co. Inc. , 147 Mich.App. 412, 422, 383 N.W.2d 219 (1985), for the proposition that "[i]t is essential to the administration of our legal system that practitioners be able to rely upon well-established legal principles...." But in our judgment, that objective is not furthered by a system of justice that allows the law to ebb and flow at the whim of the judiciary. It is instead furthered, and its legitimacy in the eyes of our society is advanced, by demanding consistency in the law, which can only be attained in perpetuity if judicial decisions applying statutory law as enacted by our Legislature are applied retroactively. Ultimately, even under pre- Spectrum Health caselaw, prospective application of a judicial decision is appropriate only as an "extreme measure," Hathcock , 471 Mich. at 484 n. 98, 684 N.W.2d 765, and in "exigent circumstances," Devillers , 473 Mich. at 586, 702 N.W.2d 539. Considering (as Covenant recognized) that providers have always been able to seek reimbursement from their patients directly or to seek assignment of an injured party's rights to past or presently due benefits, we do not find a level of exigency that would justify contravening the general rule of full retroactivity. d. CONCLUSION REGARDING RETROACTIVITY We therefore conclude that Spectrum Health controls our decision and that the application of Spectrum Health requires that we apply Covenant retroactively to this case. Further, even if we were to consider pre- Spectrum Health caselaw, we would conclude that Covenant applies retroactively. We therefore affirm the trial court's grant of summary disposition in favor of defendants. IV. REMAND TO THE TRIAL COURT The only remaining question is whether this Court should (as plaintiff requested in the alternative in the event we were to conclude, as we do, that Covenant applies to this case) treat the pleadings as amended or remand this case to the trial court to allow the amendment of the complaint so that plaintiff may advance alternative theories of recovery, including the pursuit of benefits under an assignment theory. The Supreme Court in Covenant expressly noted that its decision in that case was "not intended to alter an insured's ability to assign his or her right to past or presently due benefits to a healthcare provider." Covenant , 500 Mich. at 217 n. 40, 895 N.W.2d at 504 n. 40. We conclude that the most prudent and appropriate course for us to take at this time is to remand this case to the trial court with direction that it allow plaintiff to move to amend its complaint so that the trial court may address the attendant issues in the first instance. Affirmed. Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Swartzle, J., concurred with Boonstra, P.J. The investigator's report states that an unnamed employee of plaintiff called the investigator with "Zoie on the other line" and relayed information to the investigator from Bonner. The applicable limitations period may be extended if written notice of injury has been provided to the insurer within 1 year after the accident. MCL 500.3145(1). Apparently, it was actually Bonner's uncle who owned and purchased insurance on the vehicle. W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan , unpublished order of the Court of Appeals, issued August 4, 2017 (Docket No. 333360). The Michigan Assigned Claims Plan is adopted and maintained by the Michigan Automobile Insurance Placement facility. See MCL 500.3171(2). The parties agree that the statutory section pertinent to this case is that requiring that "no personal protection insurance applicable to the injury can be identified." MCL 500.3172(1). Plaintiff argues that MCL 500.3172(1) does not specify a particular level of diligence that must be exercised in attempting to identify an insurer of the injury. However, it acknowledges that use of the verb phrase "can be" relates to an ability to identify a responsible insurer, as opposed merely to whether such an insurer has in fact been identified. And we must give effect to the words the Legislature has chosen. See Jesperson v. Auto Club Ins. Ass'n , 499 Mich. 29, 36-37, 878 N.W.2d 799 (2016). Assuming (as the trial court found) that some level of diligence is implicit in the statute, plaintiff then suggests that the applicable standard should be that of a "reasonable person" and that it satisfied that standard in this case. We need not decide these issues for the reasons stated later in this opinion. Indeed, the Supreme Court has remanded one such action to this Court for further consideration in light of Covenant . See Bronson Methodist Hosp. v. Mich. Assigned Claims Facility , 500 Mich. 1024, 897 N.W.2d 735 (2017). We appreciate that in Hatcher the "party who [was] legally responsible for the injured party's expenses" was the injured party's mother, rather than a healthcare provider. Nonetheless, because Congress has seen fit to declare as a matter of public policy that healthcare providers are obligated in certain circumstances to provide healthcare services without regard to an injured party's ability to pay or insurance status, see 42 USC 1395dd, they to some extent stand in similar shoes as do responsible parents and thus fall within the proscription recognized in Hatcher (and Covenant ). Without meaning to get ahead of ourselves, our determination that the issue before us is adequately preserved means that we need not decide at this time whether (assuming for the moment that Covenant should apply retroactively) it is full or limited retroactivity that should apply. See McNeel , 289 Mich.App. at 95 n. 7, 795 N.W.2d 205 (noting that a judicial decision with full retroactivity would apply to all cases then pending, whereas with limited retroactivity it would apply in pending cases in which the issue had been raised and preserved). Nonetheless, we note that our Supreme Court has, at times, held that a judicial decision should apply according to the "usual" rule of retroactivity, rather than prospectively, and-albeit without discussing full retroactivity versus limited retroactivity-has added language that is consistent with a holding of limited retroactivity. See e.g., Wayne Co. v. Hathcock , 471 Mich. 445, 484, 684 N.W.2d 765 (2004) (citations omitted), wherein the Court stated, [T]here is no reason to depart from the usual practice of applying our conclusions of law to the case at hand. Our decision today does not announce a new rule of law, but rather returns our law to that which existed before [Poletown Neighborhood Council v. Detroit , 410 Mich. 616, 304 N.W.2d 455 (1981) ] and which has been mandated by our Constitution since it took effect in 1963. Our decision simply applies fundamental constitutional principles and enforces the "public use" requirement as that phrase was used at the time our 1963 Constitution was ratified. Therefore, our decision to overrule Poletown should have retroactive effect, applying to all pending cases in which a challenge to Poletown has been raised and preserved. At other times, the Court has ruled similarly, while noting that "this form of retroactivity is generally classified as 'limited retroactivity,' " see, e.g., Devillers v. Auto Club Ins. Ass'n , 473 Mich. 562, 587 and n. 57, 702 N.W.2d 539 (2005) ("[O]ur decision in this case is to be given retroactive effect as usual and is applicable to all pending cases in which a challenge to [Lewis v. Detroit Auto Inter-Ins Exch. , 426 Mich. 93, 393 N.W.2d 167 (1986) ]'s judicial tolling approach has been raised and preserved."), but without addressing the rationale for when to apply limited rather than full retroactivity. See also Hyde v. Univ. of Mich. Bd. of Regents , 426 Mich. 223, 240-241, 393 N.W.2d 847 (1986) (noting that "the general rule is that judicial decisions are to be given complete retroactive effect," yet holding that "the rules articulated in [Ross v. Consumers Power Co. (On Rehearing ), 420 Mich. 567, 363 N.W.2d 641 (1984) ] should be applied to all cases ... pending either in trial or appellate courts ... which properly raised and preserved a governmental immunity issue"). At still other times, the Court has suggested that limited retroactivity may be appropriate when there has been "extensive reliance" on prior caselaw in order to "minimize[ ] the effect of [a later] decision on the administration of justice." Gladych v. New Family Homes, Inc. , 468 Mich. 594, 606, 664 N.W.2d 705 (2003). This Court has, at times, subsequently cited certain of these and other Supreme Court cases for the rather anomalous proposition that "[g]enerally, judicial decisions are given full retroactive effect, i.e., they are applied to all pending cases in which the same challenge has been raised and preserved ." Paul v. Wayne Co. Dept. of Pub. Serv. , 271 Mich.App. 617, 620, 722 N.W.2d 922 (2006) (emphasis added). See also Clay v. Doe , 311 Mich.App. 359, 362, 876 N.W.2d 248( 2015), quoting Paul , 271 Mich.App. at 620, 722 N.W.2d 922. We therefore invite our Supreme Court to clarify the respective circumstances in which full retroactivity and limited retroactivity should apply. As noted earlier in this opinion, it is not entirely clear to us whether the general rule of complete retroactivity means full retroactivity or limited retroactivity. Nonetheless, for the reasons noted, it does not matter to our analysis in this case. We are similarly unpersuaded by defendants' citation of Hall v. Novik , 256 Mich.App. 387, 392, 663 N.W.2d 522 (2003). Defendants contend that Hall implicitly held that when a judicial decision specifies the order to be entered by the trial court on remand (as occurred in Covenant ), rather than merely remanding "for further proceedings consistent with this opinion," it necessarily applied the law to the parties before it, which defendant contends is the legal equivalent of expressly stating that the decision applies retroactively. We believe that defendants overread Hall in advancing this argument. Specifically, the Court disavowed an earlier opinion of the Supreme Court-and overturned decisions of this Court that applied it-that had recognized a "family joyriding exception" to MCL 500.3113(a) (which prohibited persons who had willingly operated or used a motor vehicle that was taken unlawfully from receiving PIP benefits). We note that the disavowed Supreme Court opinion was a plurality opinion, and the Court in Spectrum Health therefore found that the principles of stare decisis did not apply. Spectrum Health , 492 Mich. at 535, 821 N.W.2d 117. As noted earlier, the Court in Spectrum Health recognized an exception to that rule. We will discuss that exception later in this opinion. Spectrum Health effectively repudiated Pohutski on this issue; in Pohutski , the Court stated, "Although this opinion gives effect to the intent of the Legislature that may be ... reasonably be inferred from the text of the governing statutory provisions, practically speaking our holding is akin to the announcement of a new rule of law, given the erroneous interpretations set forth in [intervening judicial decisions]." Pohutski , 465 Mich. at 696, 641 N.W.2d 219. See Moody, Retroactive application of law-changing decisions in Michigan , 28 Wayne L R 439, 441 (1982). 1 Blackstone, Commentaries on the Laws of England (3d ed. 1884) *69. See also Linkletter v. Walker , 381 U.S. 618, 623, n. 7, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Moody, n. 31, supra at 441. See Carpenter, Court decisions and the common law , 17 Colum. L R 593, 594-595 (1917). We emphasize that our decision is limited to the context of judicial decisions of statutory interpretation. We need not and do not consider whether the same principles apply in the context of judicial decisions affecting the common law. We fully appreciate the conundrum faced by litigants who follow and endeavor to conform their behavior to what they legitimately understand to be the guidance and directives of our courts, only to be confronted with a subsequent judicial change of direction that seemingly pulls the rug out from under them. But we must be true to the law. The remedy is not to be found in a judiciary that adapts the law as and when it sees fit; such judicial policymaking necessarily creates its own inequities. Rather, the remedy, if any, is twofold: (1) adherence to the proper role of the judiciary (such that retroactive application of a judicial decision need never be employed) and (2) in the Legislature. We offer no opinion on the subject of legislative action insofar as it relates to the issues raised in this case; that determination is best left to the Legislature. We do note, however, that healthcare providers, at least in certain circumstances, stand in a far different position than do most other members of our society because they have been mandated to provide certain services without regard to payment or insurance coverage. See 42 USC 1395dd. We therefore encourage the bringing of those concerns to the Legislature and the Legislature's consideration of them. Again, as noted, the Court in Spectrum Health recognized an exception to the rule. We conclude that the exception is inapplicable in this case, however, because it is premised on parties having made contracts and acquired rights under and in accordance with statutory construction given by the courts of last resort of this state. Spectrum Health , 492 Mich. at 536, 821 N.W.2d 117. In this case, by contrast, plaintiff's suit against defendants is premised on the absence of any insurance contract, and, in any event, the caselaw on which plaintiff relies in bringing suit was not that of a court of last resort of this state, i.e., the Supreme Court. Counsel for plaintiff acknowledged at oral argument that while he could (and did) identify caselaw in which courts had applied judicial decisions of statutory interpretation prospectively, he was unaware of any such decisions that afforded a right of action when the underlying statute itself did not. Moorhouse prospectively applied a judicial decision holding that a legal malpractice cause of action is not assignable in Michigan. Moorhouse , 147 Mich.App. at 421-422, 383 N.W.2d 219. There was therefore no underlying statutory law as there is in this case. Moreover, Moorhouse relied on Tebo , see id . at 421, 383 N.W.2d 219, which we conclude was undermined by our Supreme Court's holding in Spectrum Health . In any event, Moorhouse is not binding on this Court. See MCR 7.215(J)(1).

On order of the Chief Justice, the motions for immediate consideration and to allow the Attorney General to participate in oral argument by sharing five minutes of plaintiffs-appellants' allotted time for argument are GRANTED. On further order of the Chief Justice, the separate motions of Fair Lines America and the American Civil Liberties Union of Michigan to file briefs amicus curiae are GRANTED. The amicus briefs submitted by those entities on July 13, 2018, are accepted for filing.

On order of the Chief Justice, the motion of defendants-appellees to extend the time for filing their brief is GRANTED. The brief will be accepted as timely filed if submitted on or before August 15, 2018.

On order of the Chief Justice, the motion of defendants-appellees to extend the time for filing their answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before August 24, 2018.

Boonstra, J. In these consolidated cases, garnishee-defendant Empire Fire and Marine Insurance Company appeals by right the June 2, 2016 final judgments entered by the trial court in favor of garnishor-plaintiffs Marie Hunt (as personal representative of the estate of Eugene Wayne Hunt), Brandon James Huber, and Thomas and Noreen Luczak (collectively, plaintiffs or garnishor-plaintiffs) The final judgments held Empire liable for the amounts awarded in consent judgments that had been entered into in three underlying cases against defendants Roger Drielick, doing business as Roger Drielick Trucking ( Trucking) and Corey Drielick plus prejudgment and postjudgment interest. The trial court had entered a separate but similar judgment in each underlying case; the judgments differed only with respect to the amount awarded to each plaintiff. Empire challenges the trial court's September 28, 2015 written opinion, issued in all three cases, holding that insurance coverage for a multivehicle accident was not precluded under the leasing clause of a business-use exclusion in an "Insurance for Non-Trucking Use" policy issued by Empire to Drielick Trucking. Empire also challenges the trial court's decision to award garnishor-plaintiffs statutory interest which made the total award exceed Empire's policy limits. We affirm in part, vacate in part, and remand for further proceedings. I. PERTINENT FACTS AND PROCEDURAL HISTORY A. BUSINESS-USE EXCLUSION This case has a lengthy procedural history involving multiple prior appeals. Relevant to this appeal, our Supreme Court remanded the case to the trial court "for further fact-finding to determine whether Drielick Trucking and [GLC] entered into a leasing agreement for the use of Drielick Trucking's semi-tractors as contemplated under the policy's clause related to a leased covered vehicle." Hunt v. Drielick , 496 Mich. 366, 369, 852 N.W.2d 562 (2014). The trial court had previously concluded that the business-use exclusion did not preclude coverage, even if there was a lease between Drielick Trucking and GLC. Id. at 371, 852 N.W.2d 562. This Court disagreed, holding that the first clause of the business-use exclusion, which precluded coverage if injury or damage occurred "while a covered auto is used to carry property in any business," applied despite the fact that the truck was not actually carrying property at the moment of the accident. Hunt v. Drielick , 298 Mich.App. 548, 557; 828 N.W.2d 441 (2012), rev'd 496 Mich. 366, 852 N.W.2d 562 (2014). Our Supreme Court granted garnishor-plaintiffs' applications for leave to appeal. Hunt v. Drielick , 495 Mich. 857 (2013). In its 2014 decision, our Supreme Court set forth the following relevant facts: Roger Drielick owns Drielick Trucking, a commercial trucking company. It seems that throughout most of the year in 1995, Drielick Trucking leased its semi-tractors to Sargent Trucking (Sargent). Around October 1995, Roger orally terminated the lease agreement with Sargent and began doing business with Bill Bateson, one of the operators of GLC, the other being his wife at the time, Jamie Bateson. On January 12, 1996, Bill Bateson dispatched Corey Drielick, a truck driver employed by Drielick Trucking, to pick up and deliver a trailer of goods stored on GLC's property. While driving the semi-tractor without an attached trailer, Corey picked up his girlfriend and proceeded to GLC's truck yard.[ ] When he was less than two miles away from the yard, Corey was involved in a multivehicle accident. Eugene Hunt died, and Noreen Luczak and Brandon Huber were seriously injured. Marie Hunt (on behalf of her deceased husband), Thomas and Noreen Luczak, and Huber filed suits against Corey and Roger Drielick, Drielick Trucking, Sargent, and GLC. Empire, which insured Drielick Trucking's semi-tractors under a non-trucking-use, or bobtail, policy, denied coverage and refused to defend under the policy's business-use and named-driver exclusions. Plaintiffs settled with Sargent and GLC. Plaintiffs later entered into consent judgments with the Drielicks and Drielick Trucking.[ ] The parties also entered into an "Assignment, Trust, and Indemnification Agreement," wherein they agreed that Roger Drielick would assign the rights under the insurance policy with Empire to plaintiffs, Sargent, and GLC. Sargent and GLC agreed to help plaintiffs' collection efforts from Empire in exchange for a portion of any proceeds received from Empire. Sargent and GLC filed writs of garnishment against Empire. In response, Empire filed a motion to quash, arguing again that the policy exclusions apply, among other things. The trial court denied Empire's motion and entered an order to execute the consent judgments, reasoning that the business-use exclusion does not apply and the named-driver exclusion is invalid under MCL 500.3009(2). The Court of Appeals affirmed the trial court's ruling regarding the named-driver exclusion but reversed the trial court's ruling regarding the business-use exclusion, holding that further factual determinations were necessary because the fact that the semi-tractor "was traveling bobtail at the time of the accident, creat[ed] a question of fact whether the truck was being used for a business purpose at that time." Hunt v. Drielick , unpublished opinion per curiam of the Court of Appeals, issued October 5, 2004 (Docket Nos. 246366, 246367, and 246368), p. 5, The Court mentioned that the policy exclusions are clear but "whether this accident was a covered event is not," explaining that Roger Drielick orally revoked his lease with Sargent, and, contrary to federal regulations, there was no written lease with GLC. [ Hunt , 496 Mich. at 369-371, 852 N.W.2d 562.] In reversing this Court's decision, the Supreme Court concluded that the first clause of the business-use exclusion precludes coverage only if the covered vehicle is carrying attached property and that, because it was undisputed that the semi-tractor was not carrying attached property at the time of the accident, the first clause did not preclude coverage in this case. Hunt , 496 Mich. at 376, 379, 852 N.W.2d 562. The Supreme Court further stated: Because we hold that the first clause of the business-use exclusion does not preclude coverage, it is necessary to determine whether the second clause does. After considering the record in light of the trial court's prior factual findings, we conclude that this case requires that the trial court make further findings of fact. It is clear that Drielick Trucking and the Batesons did not enter a written lease regarding the use of Drielick Trucking's semi-tractors, contrary to federal regulations. Because Drielick Trucking's and the Batesons' business relationship was in direct contravention of applicable federal regulations, our order granting leave to appeal focused primarily on the potential lease agreement and whether the Court of Appeals should have, instead, resolved this case under the policy's leasing clause. Apparently considering that clause, the trial court previously explained that the parties had agreed that there are no material issues of fact in dispute; however, that does not appear to be the case. Bill and Jamie Bateson operated Great Lakes Logistics & Services (GLLS), in addition to the carrier company, GLC. GLLS was a brokerage company that connected semi-tractor owners, such as Roger Drielick, with carriers that are federally authorized to transport goods interstate, such as GLC. The parties dispute whether Bill Bateson dispatched Corey under GLC's authority or merely brokered the deal under GLLS's authority. Furthermore, the trial court considered the parties' "verbal agreement and course of conduct," concluding that the payment terms and the fact that Corey was not bound by a strict pick-up deadline meant that the business relationship was not triggered until Corey actually picked up for delivery the trailer of goods. Yet it remains uncertain whether the parties entered into a leasing agreement as contemplated by the terms of the insurance policy . Barring GLLS's alleged involvement, an oral arrangement or course of conduct might have existed between GLC and Drielick Trucking. but whether that agreement constituted a lease for the purposes of the policy is a threshold factual determination that has not yet been fully considered. Accordingly, we direct the trial court on remand to consider the parties' agreement to decide whether there was, in fact, a leasing agreement between Drielick Trucking and GLC as contemplated by the business-use exclusion's leasing clause. If so, the precise terms of that agreement must be determined, and the trial court should reconsider whether Corey was acting in furtherance of a particular term of the leasing agreement at the time of the accident. [ Id . at 379-381, 852 N.W.2d 562.] On remand from the Supreme Court, trial court held that there was no lease agreement as contemplated by the leasing clause of the business-use exclusion and that Corey Drielick was not acting in furtherance of a particular term of any leasing agreement at the time of the accident. Therefore, the court again concluded that the leasing clause of the business-use exclusion did not preclude coverage under the insurance policy between Drielick Trucking and Empire. B. JUDGMENT INTEREST Thereafter, garnishor-plaintiffs moved for entry of judgment against Empire, seeking a judgment that Empire was liable for payment of the amounts owing under the consent judgments, including statutory interest. Empire argued that its responsibility for payment of the liabilities under the consent judgments was limited to the $750,000 policy limit because the policy contained no provision for the payment of prejudgment interest in excess of the policy limit, and because the policy's "Supplementary Payments" provision contained an interest clause that provides that postjudgment interest will be paid only in suits in which Empire assumes the defense. In other words, Empire argued that it was not obligated to pay postjudgment interest because it did not defend the underlying suits. The trial court found that Empire had breached its duty to defend under the policy and that the breach had negated the provision in the policy that limited the payment of postjudgment interest to those suits in which Empire had assumed the defense. The trial court entered final orders of judgment inclusive of statutory judgment interest from the date the underlying complaints were filed through June 2, 2016, obligating Empire to pay garnishor-plaintiffs $1,342,722.78 for the Hunt consent judgment, $113,912.97 for the Huber consent judgment, and $439,831.90 for the Luczak consent judgment. This appeal followed. II. STANDARD OF REVIEW We review de novo the interpretation of an insurance contract. Morley v. Auto. Club of Mich. , 458 Mich. 459, 465, 581 N.W.2d 237 (1998). We review for clear error the trial court's findings of fact. Alan Custom Homes, Inc. v. Krol , 256 Mich.App. 505, 512, 667 N.W.2d 379 (2003). We review de novo questions regarding the interpretation and application of a statute. Vitale v. Auto Club Ins Ass'n, , 233 Mich.App. 539, 542, 593 N.W.2d 187 (1999). III. THE LEASING CLAUSE OF THE BUSINESS-USE EXCLUSION The narrow issue presented is whether the second clause (the leasing clause) of the business-use exclusion in Empire's insurance policy applies to preclude coverage for the accident in this case. As framed by the Supreme Court, the question is whether Drielick Trucking and GLC "entered into a leasing agreement as contemplated by the terms of the insurance policy." Hunt , 496 Mich at 380. We conclude that the trial court correctly determined that the leasing clause did not preclude coverage. An insurance policy is similar to any other contractual agreement, and, thus, the court's role is to "determine what the agreement was and effectuate the intent of the parties." Auto-Owners Ins. Co. v. Churchman , 440 Mich. 560, 566, 489 N.W.2d 431 (1992). "[W]e employ a two-part analysis" to determine the parties' intent. Heniser v. Frankenmuth Mut. Ins. Co. , 449 Mich. 155, 172, 534 N.W.2d 502 (1995). First, it must be determined whether "the policy provides coverage to the insured," and, second, the court must "ascertain whether that coverage is negated by an exclusion." Id . (citation and quotation marks omitted). While "[i]t is the insured's burden to establish that his claim falls within the terms of the policy," id .,"[t]he insurer should bear the burden of proving an absence of coverage," Fresard v. Mich. Millers Mut. Ins. Co. , 414 Mich. 686, 694, 327 N.W.2d 286 (1982) (opinion by Fitzgerald, CJ). See, also, Ramon v. Farm Bureau Ins. Co. , 184 Mich.App. 54, 61, 457 N.W.2d 90 (1990). Additionally, "[e]xclusionary clauses in insurance policies are strictly construed in favor of the insured." Churchman , 440 Mich. at 567 [489 N.W.2d 431]. See, also, Group Ins. Co. of Mich. v. Czopek , 440 Mich. 590, 597, 489 N.W.2d 444 (1992) (stating that "the exclusions to the general liability in a policy of insurance are to be strictly construed against the insurer"). However, "[i]t is impossible to hold an insurance company liable for a risk it did not assume," Churchman , 440 Mich. at 567 [489 N.W.2d 431], and, thus, "[c]lear and specific exclusions must be enforced," Czopek , 440 Mich. at 597 [489 N.W.2d 444]. [ Hunt , 496 Mich. at 372-373, 852 N.W.2d 562 (alterations in original).] In addition, clear and unambiguous policy language must be enforced according to its plain meaning. Auto-Owners Ins. Co. v. Harvey , 219 Mich.App. 466, 469, 556 N.W.2d 517 (1996). The leasing clause provides that the policy does not apply "while a covered 'auto' is used in the business of anyone to whom the 'auto' is leased or rented." There is no dispute that Drielick Trucking and GLC did not enter into a written lease regarding the use of Drielick Trucking's semi-tractors. However, the plain language of the leasing clause of the business-use exclusion does not require a written lease. In the context of the first clause of the business-use exclusion, the Supreme Court stated in Hunt , 496 Mich. at 375, 852 N.W.2d 562 : Considering the commonly used meaning of the undefined terms of the clause to ascertain the contracting parties' intent, Czopek , 440 Mich. at 596 [489 N.W.2d 444], the word "while" means "[a]s long as; during the time that," The American Heritage Dictionary of the English Language (1981). Further, "use" is defined as " 'to employ for some purpose; put into service[.]' " Hunt , 298 Mich. App. at 556 [828 N.W.2d 441], quoting Random House Webster's College Dictionary (2001). See, also, The American Heritage Dictionary of the English Language (1981) (defining "employ" as "[t]o engage in the services of; to put to work"). [Alterations in original.] "Lease" is defined as "a contract conveying land, renting property, etc., to another for a specified period." Random House Webster's College Dictionary (2001). "Rent" means "to grant the possession and use of (property, machinery, etc.) in return for payment of rent." Id . As our Supreme Court noted, the parties do not dispute that the semi-tractor being operated without an attached trailer was a "covered 'auto' " under the policy. See Hunt , 496 Mich. at 374 n. 6, 852 N.W.2d 562. Applying these definitions, the leasing clause makes clear that there is no coverage when an accident occurs during the time that the auto is being used in the business of anyone who has been given possession and use of the auto for a specified period in return for the payment of rent. Empire argues, as it did in the trial court, that an exclusive, ongoing oral lease existed between Drielick Trucking and GLC. The trial court found that a lease as contemplated by the business-use exclusion did not exist between Drielick Trucking and GLC at the time of the accident. The evidence supports the trial court's finding that the parties did not mutually agree that Drielick Trucking would give possession and use of the semi-tractor to GLC for a specified period in return for the payment of rent. According to Roger Drielick, GLC was "supposed" to prepare a written lease agreement, but never did. Both Bill Bateson and Jamie Bateson (of GLC) denied that the semi-tractor was the subject of any type of lease with GLC. Corey Drielick used the semi-tractor for personal errands, including transporting another person, during the period that Drielick Trucking transported for GLC. Corey kept the semi-tractor at his home and, when dispatched, would drive to the GLC yard, at which time he would couple the semi-tractor with a trailer and obtain the necessary paperwork from GLC to carry out the delivery. There is no indication that Corey had to be at GLC's yard at a specific time or that he was not free to go where he wanted with the semi-tractor or that he could not decline an assignment. Drielick Trucking did not receive payment until arriving at GLC's yard and coupling the semi-tractor with the trailer. The broker, GLLS, paid Drielick Trucking for deliveries made using the semi-tractor. Bill Bateson did not provide Drielick Trucking with the lettering for the semi-tractor involved in the accident, and Bateson testified that he had no knowledge that GLC lettering had been placed on the semi-tractor. Drielick Trucking did not receive a Michigan Apportioned Registration Cab Card with GLC's name on it, Corey denied that any documents provided by GLC were inside the semi-tractor, and the accident report did not reveal that police officers were provided with any documentation at the scene indicating that the semi-tractor was under lease to GLC at the time of the accident. In light of this evidence, Empire failed to establish that Drielick Trucking and GLC had a contact and "a relationship, where use, control and possession had been transferred to GLC for a period, including the time of the accident," in return for the payment of rent. At most, the evidence supported a finding that a lease would be formed as of the time that Drielick Trucking arrived at the GLC yard to accept an assignment. Accordingly, we conclude that a lease, as contemplated by the insurance policy, did not exist at the time of the accident and that the leasing clause of the business-use exclusion does not apply. IV. JUDGMENT INTEREST MCL 600.6013 provides, in relevant part: (1) Interest is allowed on a money judgment recovered in a civil action, as provided in this section. .... * * * (8) Except as otherwise provided in subsections (5) and (7) and subject to subsection (13), for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action is calculated at 6-month intervals from the date of filing the complaint at a rate of interest equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, according to this section. Interest under this subsection is calculated on the entire amount of the money judgment, including attorney fees and other costs. MCL 600.6013 is remedial and primarily intended to compensate prevailing parties for expenses incurred in bringing suits for money damages and for any delay in receiving those damages. Heyler v. Dixon , 160 Mich.App. 130, 152, 408 N.W.2d 121 (1987). Because it is remedial, the statute should be liberally construed in favor of the plaintiff. See Denham v. Bedford , 407 Mich. 517, 528, 287 N.W.2d 168 (1980). Each of the consent judgments in this case provides for an amount of damages plus statutory interest from the date of the complaint was filed, in addition to costs and attorney fees. If the judgment was not satisfied by January 1, 2001, interest would continue to accrue until the judgment was satisfied. Empire objected to garnishor-plaintiffs' request for both prejudgment and postjudgment interest, relying on the following policy language to support its argument that it is not responsible under MCL 600.6013 for payment of prejudgment interest in excess of the policy limits and that postjudgment interest is limited to suits it defends: 2. COVERAGE EXTENSIONS a. Supplementary Payments. In addition to the Limit of Insurance, we will pay for the "insured": * * * (6) All interest on the full amount of any judgment that accrues after entry of the judgment in any "suit" we defend; but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance. A. PREJUDGMENT INTEREST Empire argues that MCL 600.6013 does not mandate that a defendant's liability insurer must pay prejudgment interest on a judgment entered against an insured in excess of the insurance policy limits when the plain, unambiguous terms of the policy state that the insurer is not obligated to do so. We agree that MCL 600.6013 does not speak to an insurer's liability for prejudgment interest; however, we disagree with Empire's assertion that it is not obligated to pay prejudgment interest under the terms of the policy at issue in this case. An insurer is permitted to contractually limit the risk it assumes. See, e.g., Cottrill v. Mich. Hosp. Serv. , 359 Mich. 472, 477, 102 N.W.2d 179 (1960) (holding that an insurer may limit the risk it assumes and fix its premiums accordingly); Cosby v. Pool , 36 Mich.App. 571, 578, 194 N.W.2d 142 (1971) (holding that an "insurer should be liable only for the interest that accrues on the amount of risk it has assumed"). In Matich v. Modern Research Corp. , 430 Mich. 1, 23, 420 N.W.2d 67 (1988), our Supreme Court held: [T]he law of Michigan with respect to an insurer's liability for pre judgment interest is well settled, at least to this extent: An insurer whose policy includes the standard interest clause is required to pay prejudgment interest from the date of filing of a complaint until the entry of judgment, calculated on the basis of its policy limits, not on the entire judgment, and interest on the policy limits must be paid even though the combined amount exceeds the policy limits. The "standard interest clause" at issue in Matich stated that the insurer shall pay "all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before ... [the insurer] has ... tendered or deposited in court that part of the judgment which does not exceed the limit of [the insurer's] liability thereon." Id . at 18, 420 N.W.2d 67. (quotation marks omitted; alterations in original). It was silent with regard to prejudgment interest. The interest clause in the instant insurance policy is similarly devoid of language related to prejudgment interest, and as a result, it does not contractually limit Empire's risk in that regard. Pursuant to Matich , Empire is therefore responsible for prejudgment interest calculated based on the policy limit, even if the judgment amounts plus prejudgment interest exceed the policy limits. See Matich , 430 Mich. at 23, 420 N.W.2d 67 ; see also Cochran v. Myers , 169 Mich.App. 199, 204, 425 N.W.2d 765 (1988). We do agree that the trial court erred when calculating the amounts of prejudgment interest owed. The trial court awarded prejudgment interest from the dates the underlying complaints were filed until the final judgments on the writs of garnishment were entered on June 2, 2016. Empire argues that prejudgment interest can only be measured from the date of the original complaints through March 14, 2000, the date of the consent judgments. We agree. The settling parties memorialized their agreements in consent judgments. When those judgments were entered, the prejudgment-interest period ended and the postjudgment-interest period began. Matich , 430 Mich at 20. See also Madison v. Detroit , 182 Mich.App. 696, 700-701; 452 N.W.2d 883 (1990). Therefore, prejudgment interest accrued until the consent judgments were entered; interest that accrued after entry of the consent judgments is postjudgment interest. Empire is obligated to pay prejudgment interest on the policy limits from the dates the complaints in the underlying actions were filed until the date of the consent judgements were entered. B. POSTJUDGMENT INTEREST Empire argues that the trial court erred by finding that it was subject to liability under MCL 600.6013 for payment of postjudgment interest because the express language of the "Supplementary Payments" provision of the policy limited its obligation to pay postjudgment interest to suits it defends. We agree. The trial court reasoned that if Empire had provided a defense for its insured, as it was obligated to do, it would have been required to pay postjudgment interest. Garnishor-plaintiffs did not, however, raise a claim that Empire had breached a duty under the policy to defend its insured, and such a claim was not litigated in the trial court. Our obligation is to give effect to the clear language of the insurance contract and not to invent or create an ambiguity and then resolve it to expand coverage. There is no ambiguity in Empire's interest clause. It clearly provides that postjudgment interest will be paid only in suits in which Empire assumes the defense. The purpose of such clauses is "to protect the insured when the insurer assumes the defense of a matter and therefore controls the timing of payment of any judgment which is entered against the insured." McCandless v. United Southern Assurance Co. , 191 Ariz. 167, 176; 953 P.2d 911 (Ariz App, 1997). If the insurer delays payment on the judgment-for example by taking an appeal-it must pay for this delay by assuming responsibility for interest on the entire amount of the judgment, even if the combined total exceeds the policy limit. Under the plain language of the insurance policy at issue in this case, however, Empire is not obligated to pay postjudgment interest because Empire did not defend against the underlying suits. V. CONCLUSION We hold that the leasing clause of the business-use exclusion does not apply to deny coverage in this case because a lease, as contemplated by the insurance policy, did not exist at the time of the accident. Accordingly, we affirm the trial court's holding that insurance coverage for the accident was not precluded under the leasing clause of the business-use exclusion. We also hold that Empire is obligated to pay prejudgment interest on the policy limits from the date the complaints in the underlying actions were filed until the date the consent judgements were entered, but that Empire is not obligated to pay postjudgment interest because Empire did not defend the underlying suits. Accordingly, we vacate that part of the trial court's final judgment that awarded prejudgment statutory interest through the date that judgment on the writs of garnishment entered and remand for calculation of prejudgment interest in accordance with this opinion. We otherwise affirm. Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction. M. J. Kelly, P.J., and RONAYNE Krause, J., concurred with Boonstra, J. It appears that, as part of a settlement agreement, defendants Great Lakes Carriers Corporation (GLC) and Sargent Trucking, Inc. assisted the garnishor-plaintiffs with their collection efforts by filing writs of garnishment with garnishor-plaintiffs' consent. GLC and Sargent were not designated as garnishor-plaintiffs in our Supreme Court or the trial court. The Corporate Division of Michigan's Department of Licensing and Regulatory Affairs (LARA) lists an entry for "Drielick Trucking, LLC" and identifies its owner and resident agent as Roger A. Drielick. It does not appear that the LLC was named in the actions below. No party has raised as an issue the existence of the LLC or its connection, if any, to the actions. See LARA, Corporations Online Filing System (accessed October 30, 2017) [https://perma.cc/NU5F-T2RD]. This Court stated that it did not need to address whether the second clause of the business-use exclusion, relating to a lease or rental agreement, applied in light of the Court's conclusion that the first clause of the business-use exclusion applied. Hunt . 298 Mich App at 557, 828 N.W.2d 441. The trial court had concluded that neither prong of the policy's business-use exclusion was applicable. id. at 553, 828 N.W.2d 441. The Supreme Court noted that this case involved a semi-tractor driven "bobtail," which means "without an attached trailer," and that a bobtail insurance policy typically provides coverage " 'only when the tractor is being used without a trailer or with an empty trailer, and is not being operated in the business of an authorized carrier.' " Hunt , 496 Mich. at 373-374, 852 N.W.2d 562, quoting PrestigeCas. Co. v. Mich. Mut. Ins. Co. , 99 F.3d 1340, 1343 (C.A.6, 1996). (quotation marks omitted). The March 14, 2000 consent judgments obligated Roger Drielick, doing business as Drielick Trucking Company, and Corey Drielick in the total amount of $780,000, payable as follows: $550,000 to Hunt, $50,000 to Huber, and $180,000 to Luczak. The consent judgments also provided for "statutory interest from the date of the filing of the Complaint" and for postjudgment interest in the event the judgment was not satisfied by January 1, 2001. Empire cites in its brief a number of cases discussing how courts of other states have found the absence of a written lease, which is required by49 CFR 376.11 and 49 CFR 376.12, to be irrelevant in determining carrier liability for leased equipment, because a lease will be implied in the absence of a written lease. None of these cases, however, addressed the issue presented in this case, i.e., whether a lease was formed. One check in the amount of $500 was issued by GLC to Drielick Trucking on November 20, 1995. According to Jamie Bateson, the check was mistakenly drawn on the GLC account by the bookkeeper. Empire distinguishes this case from Matich , in which the Court held that the language of the standard interest clause was clear and that the insurers, by the terms of their insurance policies, had assumed the obligation to pay postjudgment interest on the entire amount of the judgment, including the amount in excess of the policy limits. Matich , 430 Mich. at 24, 26, 420 N.W.2d 67. Empire argues that the policy in the present case differs from the policy in Matich because Empire's policy expressly limits liability for postjudgment interest in excess of policy limits to suits that Empire defends. An insurer's duty to defend is a contractual duty that is owed to its insured, not to a judgment creditor. See Lisiewski v. Countrywide Ins. Co. , 75 Mich.App. 631, 636, 255 N.W.2d 714 (1977). The record reflects, however, that the insured in this case, Drielick Trucking, assigned to garnishor-plaintiffs any and all claims for insurance coverage under the Empire policy. Consequently, garnishor-plaintiffs could have brought a direct action against Empire challenging its refusal to defend its insured. See Ward v. DAIIE , 115 Mich.App. 30, 36-37; 320 N.W.2d 280 (1982) ("A judgment creditor, armed with a valid assignment of an insured's cause of action for alleged unlawful refusal to defend or settle a claim, may institute a direct action against the insurer."); see also Davis v. Great American Ins. Co. , 136 Mich.App. 764, 768-769, 357 N.W.2d 761 (1984) (holding that the availability of a garnishment action does not preclude "a breach of contract action by a judgment creditor as assignee against an insurer as a remedy in addition to garnishment"). (Emphasis added.) Nonetheless, garnishor-plaintiffs did not bring a claim challenging Empire's refusal to defend. The postjudgment garnishment proceedings did not encompass a claim that Empire had breached its contract with its insured by refusing to defend. In Ward , 115 Mich.App. at 39, 320 N.W.2d 280 this Court noted that the judgment creditor's prior garnishment action against the judgment debtor's insurer "related to an attempted satisfaction of a default judgment," whereas the judgment creditor's subsequent action "concern[ed] an alleged breach of contract of an insurance policy." The Ward Court explained that "[t]he [subsequent] action [did] not raise an issue which was litigated between plaintiff and defendant in the garnishment action." Id . A comparison of the two matters displayed that they were different: "the the first was a post-judgment proceeding, and the [subsequent] litigation [was] an action by the insured, through an assignee, seeking enforcement of an insurance policy after an alleged breach of contract."Id . Because the issue of Empire's refusal to defend was not raised or litigated in this case, the trial court erred by ruling that Empire had breached the insurance contract when it failed to defend its insured and by consequently awarding postjudgment interest notwithstanding the policy language. We express no opinion regarding whether garnishor-plaintiffs may yet have a viable direct (by assignment) cause of action against Empire for its alleged breach. Cases from other jurisdictions are, of course, not binding on this Court, but they may be persuasive. Hiner v. Mojica , 271 Mich.App. 604, 612, 722 N.W.2d 914 (2006).

On order of the Court, the application for leave to appeal the September 15, 2017 order of the Court of Appeals is considered. We DIRECT the Monroe County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order. In particular, the prosecuting attorney shall address: (1) whether the trial court's preliminary sentence evaluation for probation with no more than one year in jail was for a sentence that the court lacked authority to impose for the defendant's no contest plea to delivery/manufacture of less than 50 grams of a controlled substance, per MCL 333.7401(2)(a)(iv) ; see People v. Davis , 392 Mich. 221, 220 N.W.2d 452 (1974) ; and (2) if so, what the appropriate remedy would be, if any, under the circumstances of this case. See MCL 761.2 ; MCL 771.1 ; People v. Wiley , 472 Mich. 153, 693 N.W.2d 800 (2005) ; People v. Cobbs , 443 Mich. 276, 283-285, 505 N.W.2d 208 (1993). The application for leave to appeal remains pending.

Stephen J. Markman, Chief Justice On order of the Court, the applications for leave to appeal the December 7, 2017 judgment of the Court of Appeals are considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE parts B.II. and B.III. of the Court of Appeals judgment and we REMAND this case to that court for further consideration. We express no opinion on the lower courts' waiver analysis; however, given the unusual facts of this case, we believe the lower courts should address the defendants' remaining arguments. Therefore, on remand, while retaining jurisdiction, the Court of Appeals shall remand this case to the Genesee Circuit Court for further consideration. The trial court shall: (1) determine whether the defendants should be estopped from arguing that the plaintiff committed intrinsic fraud or fraud on the court during the proceedings under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq ., given the entry into or failure to object to custody and parenting time orders with knowledge that the ROPA judgment was obtained through intrinsic fraud or fraud on the court; (2) conduct an evidentiary hearing to determine whether the plaintiff committed intrinsic fraud or fraud on the court during the ROPA proceedings; and (3) if so, determine to what, if any, remedy the defendants are entitled. At the conclusion of the hearing, the trial court shall forward the record and its findings to the Court of Appeals, which shall then rule on these issues. On remand, the Genesee Circuit Court and the Court of Appeals are DIRECTED to expedite their consideration and resolution of this case. We do not retain jurisdiction.

On order of the Court, the application for leave to appeal the October 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Per Curiam. Defendant appeals by leave granted a March 24, 2017 order denying without prejudice defendant's motion to change domicile and relocate with the parties' daughter to Pakistan. The underlying facts are not in dispute. Plaintiff and defendant, both Pakistani citizens, were married in Pakistan on June 24, 2011, and relocated to the United States, where plaintiff resided with an employment visa. In 2015, defendant moved to Michigan to live with her aunt, while plaintiff continued to reside in Maryland. The couple's only daughter was born in Oakland County on January 1, 2016, and the parties divorced on December 21, 2016. Pursuant to the judgment of divorce, the parties agreed to share joint legal custody of the minor child, while defendant would maintain sole physical custody. The divorce judgment contained a provision prohibiting the exercise of parenting time in any country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. At that time, the prohibition applied to Pakistan. Challenging only the trial court's denial of her motion for attorney fees, defendant filed a claim of appeal from the divorce judgment. That appeal is pending before this Court in Docket No. 336590. In March 2017, defendant filed the motion to change domicile that is the subject of this appeal, expressing her desire to relocate with the minor child to Pakistan as soon as possible and claiming that Pakistan had completed steps to become a party to the Hague Convention since entry of the judgment of divorce. Plaintiff objected, arguing that the trial court lacked authority to set aside or amend the judgment of divorce while defendant's appeal from that judgment was pending before this Court. Defendant responded that her first appeal was limited to the issue of attorney fees and that the appeal did not preclude the trial court's consideration of custody matters. The trial court adopted plaintiff's position and entered an order dismissing defendant's motion for change of domicile without prejudice, reasoning that pursuant to MCR 7.208(A), it lacked jurisdiction to modify any component of the judgment of divorce. Defendant filed a motion for reconsideration in the trial court, arguing that under MCR 7.208(A)(4), the trial court was not limited by the pending appeal from considering modification of the divorce judgment "as otherwise provided by law." Defendant argued that because MCL 722.27(1)(c) and MCL 552.17(1) permit a trial court to consider issues related to custody as they arise, the trial court did not need to wait for resolution of the pending appeal before it considered defendant's motion for change of domicile on the merits. In support of her position, defendant cited our Supreme Court's holding in Lemmen v. Lemmen , 481 Mich. 164, 167, 749 N.W.2d 255 (2008), in which the Court specifically held that MCL 552.17(1) satisfied the exception of MCR 7.208(A)(4). The trial court denied defendant's motion, concluding that Lemmen 's holding was limited to judgments concerning child or spousal support and did not extend to changes relating to custody or changes of domicile. On appeal, defendant argues that the trial court erred when it concluded that it lacked jurisdiction to consider the merits of her motion for change of domicile because the trial court was authorized to consider the issue of domicile under MCR 7.208(A)(4), MCL 722.27(1)(c), and MCL 552.17(1). We agree. "The proper interpretation and application of a statute presents a question of law that we review de novo." Petersen v. Magna Corp. , 484 Mich. 300, 306, 773 N.W.2d 564 (2009) (opinion by KELLY, C.J.). "We interpret court rules using the same principles that govern the interpretation of statutes." Ligons v. Crittenton Hosp. , 490 Mich. 61, 70, 803 N.W.2d 271 (2011). "Our goal when interpreting and applying statutes or court rules is to give effect to the plain meaning of the text. If the text is unambiguous, we apply the language as written without construction or interpretation." Id . We also review de novo the question of a trial court's subject-matter jurisdiction. Clohset v. No Name Corp. (On Remand), 302 Mich.App. 550, 559, 840 N.W.2d 375 (2013). In pertinent part, MCR 7.208(A) provides: After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from except (1) by order of the Court of Appeals, (2) by stipulation of the parties, (3) after a decision on the merits in an action in which a preliminary injunction was granted, or (4) as otherwise provided by law. There is no dispute that the first three exceptions to the broad prohibition of MCR 7.208(A) do not apply in this case. Defendant argues that MCL 552.17(1) and MCL 722.27(1)(c) give the trial court the authority to invoke the MCR 7.208(A)(4)"as otherwise provided by law" exception, thus allowing the court to consider defendant's motion for a change of domicile while the appeal in Docket No. 336590 is pending. MCL 552.17(1) provides: After entry of a judgment concerning annulment, divorce, or separate maintenance and on the petition of either parent, the court may revise and alter a judgment concerning the care, custody, maintenance, and support of some or all of the children, as the circumstances of the parents and the benefit of the children require. Similarly, MCL 722.27(1)(c) of the Child Custody Act (CCA), MCL 722.21 et seq., permits a trial court to "modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age .... " In Lemmen , our Supreme Court held that MCL 552.17(1) and a related statute, MCL 552.28, "satisfy the exception in MCR 7.208(A)(4) allowing a trial court to amend an order or judgment during an appeal 'as otherwise provided by law.' " Lemmen , 481 Mich. at 167, 749 N.W.2d 255. The Lemmen Court reasoned that because MCL 552.17(1) permits modification of a final judgment as necessary "to ensure the welfare of the children when the circumstances of the parents or the needs of the children have changed," its application should not be limited while the parties wait for resolution on appeal. Id . According to the Lemmen Court, to require the trial court to wait to make modifications until after an appeal is completed is contrary to the plain language of the statute[ ] and would defeat [its] purpose, which is to enable the trial court to make modifications to child and spousal support orders when such modifications are necessary. The appeals process might take several years to complete. If there is a change in circumstances that would affect the needs of one of the parties or their children, or the ability of one of the parties to pay, the trial court should not, and does not, have to wait until that time has passed to modify a support order. [ Id . ] Plaintiff correctly notes that there is no caselaw applying MCL 552.17(1) as an exception to MCR 7.208(A)(4) in a case involving a change of domicile. Plaintiff argues that because the Lemmen Court's consideration was limited to issues involving spousal and child support, it should not be expanded to all custody determinations. But plaintiff's reading of Lemmen is myopic. Although the Lemmen Court considered the interplay of MCL 552.17(1) and MCR 7.208(A) in the context of child support, the Court framed the issue before it in general and comprehensive terms: "At issue here is whether MCL 552.17(1) and MCL 552.28 fall within an exception to the rule of MCR 7.208(A) that a trial court may not amend a final judgment after a claim of appeal has been filed or leave to appeal has been granted." Lemmen , 481 Mich. at 165, 749 N.W.2d 255. While the Lemmen Court's consideration was specific to modifications related to support, its reasoning is equally applicable to situations involving custody. Under the plain language of MCL 552.17(1), a trial court is vested with authority to "alter a judgment concerning the care, custody, maintenance, and support of some or all of the children ...." (Emphasis added.) We are not persuaded by plaintiff's suggestion that after Lemmen , only one of these four coequal categories constitutes an exception under MCR 7.208(A). See Robinson v. City of Lansing , 486 Mich. 1, 16, 782 N.W.2d 171 (2010) (recognizing that "any attempt to segregate any portion or exclude any portion of a statute from consideration is almost certain to distort the legislative intent") (quotation marks and brackets omitted); G.C. Timmis & Co. v. Guardian Alarm Co. , 468 Mich. 416, 421, 662 N.W.2d 710 (2003) (explaining that "words in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole") (quotation marks and alteration omitted)). Under MCL 552.17(1), the trial court has the authority to modify support while an appeal is pending, and it has equal authority to modify "care" and "custody." Further, under MCL 722.27(1)(c), the trial court maintains the authority to modify or amend previous judgments involving the custody of a minor child at any time until the child is 18 years old, as long as the requesting party can show proper cause and a change in circumstances necessitating the modification. The parties also dispute whether a change in domicile is an issue concerning the care and custody of a child. In Rains v. Rains , 301 Mich.App. 313, 319-324, 836 N.W.2d 709 (2013), this Court considered the issue of whether a change in domicile is an order affecting the custody of a child that is appealable by right as a final order. The Court reasoned that because a change in domicile may affect a child's established custodial environment, it must be treated as an issue involving custody. Id . at 323-324, 836 N.W.2d 709. That the MCR 7.208(A)(4) exception applies when a trial court is presented with a motion to change domicile after a claim of appeal has been filed in this Court is consistent with the purpose of the CCA, the statutory scheme related to child custody matters. " 'It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other.' " Apsey v. Mem. Hosp. , 477 Mich. 120, 129 n. 4, 730 N.W.2d 695 (2007), quoting Detroit v. Mich. Bell Tel. Co. , 374 Mich. 543, 558, 132 N.W.2d 660 (1965). Although MCL 552.17(1) is not part of the CCA, they " 'relate[s] to the same person or thing, or the same class of persons or things,' " and should be read together harmoniously if possible. Apsey , 477 Mich. at 129 n. 4, quoting Detroit , 374 Mich. at 558, 132 N.W.2d 660. Indeed, a motion for change of domicile is brought pursuant to MCL 722.31(4) of the CCA, Yachcik v. Yachcik , 319 Mich.App. 24, 34-35, 900 N.W.2d 113 (2017), and, as in any dispute over custody, a court is required to consider the best-interest factors found in MCL 722.23 in considering whether to grant a motion for change of domicile, Rains , 301 Mich.App. at 325, 836 N.W.2d 709 ; Rivette v. Rose-Molina , 278 Mich.App. 327, 330 n. 1, 750 N.W.2d 603 (2008). The purpose of the CCA is "to promote the best interests of children." Berger v. Berger , 277 Mich.App. 700, 705, 747 N.W.2d 336 (2008). The issues of where a child will be domiciled and how the child's domicile will affect the established custodial environment are important. Neither the child nor the parties should be required to wait for resolution of a pending appeal when the trial court can decide whether an appropriate change of circumstances has already occurred and a change in domicile is in the child's best interests. The trial court erred when it determined that it lacked the authority to consider defendant's motion for change of domicile and to modify the parties' divorce judgment during the pendency of defendant's appeal. Reversed. We do not retain jurisdiction. O'BRIEN, P.J., and JANSEN and MURRAY, JJ., concurred. Safdar v. Aziz , unpublished order of the Court of Appeals, entered May 26, 2017 (Docket No. 337985).

Per Curiam. Defendant pleaded guilty of manufacturing methamphetamine, MCL 333.7401(2)(b)(i ) ;), operating or maintaining a laboratory involving methamphetamine, MCL 333.7401c(2)(f) ; and possession of methamphetamine, MCL 333.7403(2)(b)(i ). Defendant filed a delayed application for leave to appeal, which this Court denied. Defendant then sought leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded "this case to the Court of Appeals for consideration as on leave granted." People v. Baham , 500 Mich. 945, 890 N.W.2d 658 (2017). On remand, because the factual basis for defendant's plea supported his convictions, defendant's convictions did not violate double jeopardy, and defendant was not denied the effective assistance of counsel, we affirm. In May 2015, the police arrested defendant after discovering that he was operating a mobile methamphetamine laboratory in his vehicle. Defendant was charged with five criminal offenses and given notice that he could be sentenced as a fourth-offense habitual offender, MCL 769.12. The prosecutor offered defendant a plea deal, pursuant to which defendant would plead guilty of manufacturing methamphetamine, operating or maintaining a methamphetamine laboratory, and possession of methamphetamine. In exchange, the prosecutor agreed to dismiss the of charges of maintaining a drug house, MCL 333.7405(1)(d), and operating a vehicle while his license was suspended, second offense, MCL 257.904(3)(b). The prosecutor also agreed that defendant could be sentenced as a second-offense habitual offender, MCL 769.10, as opposed to a fourth-offense habitual offender. At the plea hearing, the trial court engaged in the following colloquy with defendant to ascertain the factual basis for defendant's plea: The Court : The Count I offense charges you with manufacture of [sic] making some methamphetamine. Is that true, did you make some methamphetamine? The Defendant : Yes. The Court : Did you know the substance that you were manufacturing or making was, in fact, methamphetamine? The Defendant : Yes, sir. The Court : And the Count II charge says that you were operating or maintaining a laboratory to make methamphetamine. Does that mean that you had chemicals or the necessary components to make it? The Defendant : Yes. The Court : And did you make it in a building or a residence that was under you control? The Defendant : Um, a vehicle, yes, sir. The Court : In a vehicle? The Defendant : Yes. Yes, I did. The Court : All right, and was that a vehicle of yours or one you controlled? The Defendant : Yes. The Court : Did you know that the stuff was there, the components in the vehicle, that you could use to make meth? The Defendant : Yes, sir. The Court : Were you successful, did you end up possessing some methamphetamine as a result of your manufacturing? The Defendant : One more time, please? The Court : Were you successful? Did you end up possessing some meth that you made? The Defendant : Yes. The Court : Because that's the Count III charge; that's why I'm asking you about that. It says you possessed some methamphetamine. Is that true, did you possess some methamphetamine that you had cooked or made? The Defendant : Yes. The Court : And you knew that substance was, in fact, methamphetamine; is that right? The Defendant : Yes. On the basis of on these admissions by defendant, the trial court accepted defendant's guilty plea, finding that it was factually supported. In keeping with the plea bargain, the trial court sentenced defendant as a second-offense habitual offender to concurrent terms of 51 months' to 30 years' imprisonment for manufacturing methamphetamine and operating or maintaining a methamphetamine laboratory as well as a concurrent sentence of 117 days for the possession of methamphetamine. The case is now before us on remand from the Michigan Supreme Court for consideration as on leave granted. I. PERSONAL-USE EXCEPTION On appeal, defendant first argues that his guilty plea for manufacturing methamphetamine should be set aside because, as set forth in MCL 333.7106(3)(a), there is a personal-use exception to prohibitions on manufacturing a controlled substance and, absent evidence that defendant did not intend to use the methamphetamine for personal use, the factual basis for his manufacturing conviction was lacking and trial counsel was ineffective for not raising this issue. We disagree. Initially, we note that defendant never moved to withdraw his guilty plea in the trial court. Under MCR 6.310(D), defendant's failure to file a motion to withdraw his guilty plea bars him from raising on appeal the argument that his plea was not an accurate one. In particular, MCR 6.310(D) states: A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirements of the rules in this subchapter, or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal. Defendant's challenge to the factual basis for his plea implicates the accuracy of his plea, and thus his claim falls squarely within the ambit of MCR 6.310(D). Because a motion to withdraw a plea constitutes a prerequisite for challenging the accuracy of a plea and defendant has not filed such a motion, our direct substantive review of this appellate argument is precluded under MCR 6.310(D). People v. Armisted , 295 Mich. App. 32, 48, 811 N.W.2d 47 (2011). However, defendant has also raised his argument as an ineffective-assistance claim, asserting that counsel provided ineffective assistance by not raising the personal-use issue in the trial court. While our direct substantive analysis of the personal use issue is precluded by MCR 6.310(D), this rule does not prevent us from considering the personal-use exception in the context of an ineffective assistance argument. As demonstrated by the Supreme Court order in People v. Broyles , 498 Mich. 927 (2015), a claim of ineffective-assistance of counsel can serve as a basis for relief relative to a plea despite a failure to comply with MCR 6.310. Specifically, the Court observed and ruled: Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the Kent Circuit Court's order denying the defendant's motion for plea withdrawal and/or to correct an invalid sentence and we REMAND this case to the Kent Circuit Court. That court shall treat the defendant's January 26, 2015 supplemental brief and February 20, 2015 supplemental motion as timely filed and evaluate the defendant's issues on the merits. The defendant's attorney acknowledges that the defendant did not contribute to the delay in filing a proper motion and admits her sole responsibility for the error. Because a motion to withdraw a plea or correct an invalid sentence is a prerequisite to substantive review on direct appeal under MCR 6.310 and MCR 6.429, the defendant was effectively deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. [ Broyles , 498 Mich. at 927-928, 871 N.W.2d 209.] Following the reasoning in Broyles , while we may not directly address the personal-use exception on appeal, we may consider it to determine whether counsel's failure to properly raise this issue in the trial court, and to file a motion to withdraw a plea on this basis, constituted the ineffective assistance of counsel. "To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v. Lockett , 295 Mich. App. 165, 187, 814 N.W.2d 295 (2012). "Effective assistance of counsel is presumed, and defendant bears a heavy burden to prove otherwise." People v. Dixon , 263 Mich. App. 393, 396, 688 N.W.2d 308 (2004). "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v. Ericksen , 288 Mich. App. 192, 201, 793 N.W.2d 120 (2010). To determine whether counsel provided ineffective assistance of counsel in this case, it is necessary to consider the factual basis for defendant's plea and the applicability of the personal-use exception. Under MCR 6.302(D)(1), if a defendant pleads guilty, "the court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading." "When reviewing whether the factual basis for a plea was adequate, this Court considers whether the fact-finder could have found the defendant guilty on the basis of the facts elicited from the defendant at the plea proceeding." People v. Fonville , 291 Mich. App. 363, 377, 804 N.W.2d 878 (2011). "Where the statements by a defendant at the plea procedure do not establish grounds for a finding that the defendant committed the crime charged, the factual basis for the plea-based conviction is lacking." People v. Mitchell , 431 Mich. 744, 748, 432 N.W.2d 715 (1988). Whether the conduct admitted by a defendant falls within the scope of the criminal statute at issue is a question of statutory interpretation. People v. Adkins , 272 Mich. App. 37, 39, 724 N.W.2d 710 (2006). The goal of statutory interpretation is to ascertain the legislature's intent. People v. Perry , 317 Mich. App. 589, 604, 895 N.W.2d 216 (2016). We begin with the plain language of the statute, interpreting words according to their ordinary meaning and within the context of the statute in order to give effect to the statute as a whole. Id. "[W]here that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed-no further judicial construction is required or permitted, and the statute must be enforced as written." People v. Barrera , 278 Mich. App. 730, 736, 752 N.W.2d 485 (2008) (quotation marks and citation omitted). Under the Public Health Code, MCL 333.1101 et seq., methamphetamine is a Schedule 2 controlled substance. MCL 333.7214(c)(ii ). The manufacture of controlled substances is prohibited by MCL 333.7401(1), which states, in relevant part, that "a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance. ...." "The elements of manufacturing a controlled substance are (1) the defendant manufactured a substance, (2) the substance manufactured was the controlled substance at issue, and (3) the defendant knowingly manufactured it." People v. Bosca , 310 Mich. App. 1, 23, 871 N.W.2d 307 (2015). In this case, defendant admitted that he made methamphetamine and that he did so knowingly. The question is whether his cooking or making of methamphetamine constitutes the illegal "manufacture" of methamphetamine in light of the personal-use exception set forth in MCL 333.7106(3)(a) as part of the definition of "manufacture." In particular, the term "manufacture" is defined in the Public Health Code as follows: "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance , directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. It includes the packaging or repackaging of the substance or labeling or relabeling of its container, except that it does not include either of the following : (a) The preparation or compounding of a controlled substance by an individual for his or her own use . (b) The preparation, compounding, packaging, or labeling of a controlled substance by either of the following: (i ) A practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of his or her professional practice. (ii ) A practitioner, or by the practitioner's authorized agent under his or her supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale. [ MCL 333.7106(3) (emphasis added).] Given the plain language of § 7106(3)(a), it is clear that an individual who engages in the "preparation or compounding of a controlled substance ... for his or her own use" cannot be found guilty of manufacturing a controlled substance within the meaning of § 7106(3). See People v. Pearson , 157 Mich. App. 68, 72, 403 N.W.2d 498 (1987). However, contrary to defendant's argument, it does not follow that the factual basis for his plea was invalid simply because the trial court did not elicit information to exclude the possibility that defendant intended to use the resulting methamphetamine for his own personal use. First of all, defendant mischaracterizes § 7106(3)(a) by suggesting that it provides a broad exemption for any manufacturing done for personal use. In actuality, as set forth in § 7106(3), in relevant part, the definition of "manufacture" provides a list of six activities that constitute manufacturing: production, preparation, propagation, compounding, conversion, and processing. From this list of six activities, the § 7106(3)(a) personal-use exception includes only two of these activities: preparation and compounding. "Generally, when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion." People v. McFall , 309 Mich. App. 377, 385, 873 N.W.2d 112 (2015) (quotation marks and citation omitted). By defining "manufacture" to include six activities and then including only two of those six activities under the personal-use exception, the Legislature made clear that a personal-use exception applies for "preparation or compounding," but that there is no similar personal-use exception for production, propagation, conversion, or processing. Pearson , 157 Mich. App. at 72, 403 N.W.2d 498. See also Mich. Crim. J.I. 12.1, Use Note 4. The Legislature has thus drawn a clear distinction between "preparation or compounding" as compared to the other methods of manufacturing identified in § 7106(3). Given this distinction, in considering the meaning of "preparation" and "compounding" in comparison to the other methods of manufacturing, it is also readily apparent that the personal-use exception applies only to a controlled substance already in existence, and it does not encompass the creation of a controlled substance. Pearson , 157 Mich. App. at 71-72, 403 N.W.2d 498. Specifically, as most relevantly defined, the term "preparation" means "the action or process of making something ready for use ...." Merriam-Webster's Collegiate Dictionary (11th ed). Likewise, in pertinent part, "compounding" denotes the action or process of putting "together (parts) so as to form a whole," such as by combining ingredients. Merriam-Webster's Collegiate Dictionary (2014 11th ed) (defining "compound" and "-ing"). Adhering to these ordinary definitions, as we recognized in Pearson , "the plain intent of the statutory personal use exception is to avoid imposing felony liability on individuals who, already in possession of a controlled substance, make it ready for their own use or combine it with other ingredients for use." Pearson , 157 Mich. App. at 71. Typical examples of preparation or compounding often involve marijuana, specifically making marijuana ready for use by "rolling marijuana into cigarettes for smoking" or combining marijuana with other ingredients to make it ready for use by "making the so-called 'Alice B. Toklas' brownies containing marijuana." Stone v. State , 348 Ark. 661, 667, 74 S.W.3d 591 (2002) (quotation marks and citations omitted). In both instances, the controlled substance already exists in finished form, and any further action is undertaken merely to enable use of the substance. In contrast to preparation and compounding, the other four methods of manufacturing controlled substances-i.e., production, propagation, conversion, and processing-"contemplate a significantly higher degree of activity involving the controlled substance," and thus these manufacturing activities are felonies regardless of "whether the controlled substance so 'manufactured' was for personal use or for distribution." Pearson , 157 Mich. App. at 71, 403 N.W.2d 498 (quotation marks and citation omitted). While we do not attempt to provide an exhaustive account of the activities that constitute production, propagation, conversion, and processing, we note that "production" has been statutorily defined as "the manufacture, planting, cultivation, growing, or harvesting of a controlled substance." MCL 333.7109(6). In turn, "manufacture" means "to make" from materials. Merriam-Webster's Dictionary (11th ed). In comparison, as commonly understood, (1) "propagation" involves "the act or action of propagating," such as to "increase (as of a kind of organism) in numbers," (2) "conversion" is "the act of converting," and (3) "processing" refers to "a series of actions or operations conducing to an end" or "a continuous operation or treatment esp. in manufacture." Merriam-Webster's Dictionary (11th ed) (defining "process" and adding-ing). From these various definitions, courts have recognized that production, propagation, conversion, and processing encompass "planting, growing, cultivating or harvesting of a controlled substance," creating a controlled substance "by any synthetic process or mixture of processes," as well as the alteration or extraction of a controlled substance, such as "taking a controlled substance and, by any process or conversion, changing the form of the controlled substance or concentrating it." State v. Childers , 41 N.C. App. 729, 732, 255 S.E.2d 654 (1979). See also People v. Hunter , 201 Mich. App. 671, 676-677, 506 N.W.2d 611 (1993). In view of these different methods of manufacturing, following the reasoning set forth in Pearson , we hold that one may not claim the personal-use exception for making or cooking methamphetamine. Making or cooking methamphetamine clearly involves the creation of methamphetamine, meaning that it constitutes production, propagation, conversion, or processing of methamphetamine as opposed to the mere "preparation or compounding" of existing methamphetamine for personal use. Accordingly, the personal-use exception does not apply, and one who knowingly makes or cooks methamphetamine is guilty of manufacturing methamphetamine without regard to whether the methamphetamine will be distributed or used personally. Turning to the present facts, at the plea hearing, when describing his activities, defendant admitted that he had chemicals and components to make methamphetamine, that he was "manufacturing or making" methamphetamine, and that he had "cooked or made" methamphetamine. Clearly, defendant admitted to the creation of methamphetamine, and his factual admissions were sufficient to support the conclusion that defendant produced, propagated, converted, or processed methamphetamine in contravention of MCL 333.7401(1) and MCL 333.7106(3). In contrast, this level of activity is not consistent with the assertion that defendant engaged in the "preparation or compounding" of existing methamphetamine merely to make it ready for use. Defendant is, therefore, ineligible for the personal-use exception, and it is immaterial whether or not defendant cooked methamphetamine for his own use or for distribution purposes. In sum, the personal-use exception simply had no bearing on this case, and the trial court's failure to exclude the possibility of personal-use does not undermine the factual basis of defendant's plea. In concluding that the trial court obtained a sufficient factual basis for defendant's plea, we also note that the personal use exception is an affirmative defense to a charge of manufacturing a controlled substance, meaning that it was not an element of the crime on which the trial court had to elicit factual support for defendant's plea. MCL 333.7401(1) creates a general prohibition on the manufacturing of controlled substances. While there are potential exceptions to this general prohibition, pursuant to MCL 333.7531(1) provides that, when offering proof of the elements of the offense, the prosecution has no obligation to negate any exemption or exception in Article 7 of the Public Health Code, which includes the personal-use exception in MCL 333.7106(3). Instead, "[t]he burden of proof of an exception or exception is upon the person claiming it." MCL 333.7531(1). Once the prosecution has presented a prima facie case of manufacturing a controlled substance, the burden shifts to the defendant to present some competent evidence regarding the applicability of the personal-use exception. See MCL 333.7531(1) ; People v. Pegenau , 447 Mich. 278, 293, 523 N.W.2d 325 (1994) (opinion by MALLETT, J.) ; People v. Hartuniewicz , 294 Mich. App. 237, 245-246, 816 N.W.2d 442 (2011). In other words, the personal-use exception functions as an affirmative defense, and the prosecutor is not required to disprove personal use as an element of the offense. Cf. Pegenau , 447 Mich. at 293, 523 N.W.2d 325 ; (opinion by MALLETT , J.); Hartuniewicz , 294 Mich. App. at 245, 816 N.W.2d 442 Accordingly, if defendant believed he was entitled to a personal-use defense, the burden was on defendant to raise the issue as an affirmative defense and to present some competent evidence of preparation or compounding for personal use. Rather than pursue this defense, defendant pleaded guilty; and, as we have discussed, his admissions provided an adequate factual basis for his plea. Further, because the inapplicability of the personal-use exception is not an element of manufacturing a controlled substance, when accepting defendant's plea, the trial court did not have to exclude the possibility of preparation or compounding for personal use in order to find a factual basis to support the conclusion that defendant's admitted conduct fell within the scope of the criminal statute. See Fonville , 291 Mich. App. at 377, 804 N.W.2d 878 ; Adkins , 272 Mich. App. at 38, 724 N.W.2d 710. In other words, in accepting defendant's plea, the trial court was not obligated to examine defendant regarding potential defenses or to advise defendant of possible defenses. MCR 6.302(B)(1) ; People v. Burton , 396 Mich. 238, 242, 240 N.W.2d 239 (1976). At this juncture, having pleaded guilty and provided an adequate factual basis for his plea, defendant has waived the opportunity to assert a factual defense to the crime charged. People v. Jex , 489 Mich. 983 (2011). Given that defendant's challenges to the factual basis for his plea and his reliance on the personal-use exception are without merit, it is also apparent that counsel did not provide ineffective assistance by failing to raise this meritless issue in the trial court. Ericksen , 288 Mich. App. at 201, 793 N.W.2d 120. II. DOUBLE JEOPARDY Next, defendant argues that his convictions for manufacturing methamphetamine and possession of methamphetamine violate double jeopardy and that trial counsel provided ineffective assistance by failing to raise this issue below. Specifically, defendant contends that it is impossible to manufacture methamphetamine without also possessing methamphetamine, given that the offense of possession does not contain any element different from the elements required for the offense of manufacturing. Consequently, defendant maintains that he may not be convicted for both manufacturing and possessing the same unit of methamphetamine. We disagree. The United States and Michigan Constitutions protect a defendant from being placed in jeopardy twice for the same offense. U.S. Const., Am. V ; Const. 1963, art. 1, § 15. Defendant maintains that conviction and sentencing for both manufacturing methamphetamine and possession of methamphetamine violates double jeopardy by imposing multiple punishments for "the same offense." See People v. Calloway , 469 Mich. 448, 450, 671 N.W.2d 733 (2003). [W]hen considering whether two offenses are the "same offense" in the context of the multiple punishments strand of double jeopardy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream[ ] to discern legislative intent. [ People v. Miller, 498 Mich. 13, 19, 869 N.W.2d 204 (2015) (2015) (citation omitted).] Under the abstracts-legal-elements test, "two offenses will only be considered the 'same offense' where it is impossible to commit the greater offense without also committing the lesser offense." Id. In other words, "it is not a violation of double jeopardy to convict a defendant of multiple offenses if each of the offenses for which defendant was convicted has an element that the other does not." Id. (quotation marks, citation and ellipsis omitted). "Because the statutory elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements." People v. Ream , 481 Mich. at 223, 238; 750 N.W.2d 536 (2008). In this case, defendant was convicted under MCL 333.7401(2)(b)(i ) and MCL 333.7403(2)(b)(i ), neither of which express a clear legislative intent with regard to the permissibility of multiple punishments. See Miller , 498 Mich. at 19, 869 N.W.2d 204. Consequently, whether the Legislature intended multiple punishments for manufacturing and possession of a controlled substance is determined by applying the abstract-legal-elements test. "With respect to manufacturing methamphetamine, the elements are (1) the defendant manufactured a controlled substance, (2) the substance manufactured was methamphetamine, and (3) the defendant knew he was manufacturing methamphetamine." People v. Meshell , 265 Mich. App. 616, 619, 696 N.W.2d 754 (2005). In comparison, to obtain a conviction under MCL 333.7403(2)(b), the prosecution must prove that the defendant "knowingly or intentionally possess[ed]" methamphetamine. "The element of possession ... requires a showing of dominion or right of control over the drug with knowledge of its presence and character." People v. McKinney , 258 Mich. App. 157, 165, 670 N.W.2d 254 (2003) (quotation marks and citations omitted). Possession may be actual or constructive, joint or exclusive. Id. at 166, 670 N.W.2d 254. "The essential issue is whether the defendant exercised dominion or control over the substance." Id. Considering these elements, the offenses differ in that one requires the "manufacture" of a controlled substance and the other requires "possession" of a controlled substance. In particular, manufacturing methamphetamine requires proof that the defendant manufactured methamphetamine, while a conviction for possession of methamphetamine does not require proof of manufacturing. Conversely, possession of methamphetamine requires proof that the defendant possessed methamphetamine, while the manufacture of methamphetamine does not require proof of possession. Because each contains an element not required for the other, the two offenses are not the same offense for double-jeopardy purposes. See Miller , 498 Mich. at 19, 869 N.W.2d 204 ; People v. Welshans , unpublished per curiam opinion of the Court of Appeals, issued December 9, 2014 (Docket No. 318040, pp. 7-8. In concluding that manufacturing and possession are not the "same offense," we do not ignore the practical reality that in many, if not most, cases, proof of manufacturing a controlled substance will also establish possession of that controlled substance. See, e.g., Meshell , 265 Mich. App. at 622-623, 696 N.W.2d 754 (considering manufacturing activities as evidence of possession). But we are simply not prepared to state that possession is necessarily inherent in manufacturing or that it would be impossible to manufacture a controlled substance without also possessing it. See Miller , 498 Mich. at 19, 869 N.W.2d 204. Previously, in concluding that possession is not a lesser included offense of delivering a controlled substance, we rejected a similar argument and we cautioned against injecting a possession requirement into the manufacturing and delivery statute, stating: One might argue that it is impossible for a party to manufacture, deliver or intend to manufacture or deliver a controlled substance without at least constructive possession of it. However, in our estimation, such an analysis unnecessarily adds the element of constructive possession to the crime. Requiring proof of constructive possession inappropriately creates a doorway through which drug traffickers, particularly those high in the distribution chain, can escape. [ People v. Binder (On Remand) , 215 Mich. App. 30, 35-36, 544 N.W.2d 714 (1996), vacated in part on other grounds 453 Mich. 915, 554 N.W.2d 906 (1996).] The same is true of manufacturing insofar as individuals responsible for some aspect of manufacturing could attempt to escape responsibility by claiming a lack of dominion or right of control over the controlled substance despite the fact that the plain language of the manufacturing statute includes no element of "possession" with respect to the controlled substance. In actuality, manufacturing a controlled substance may be a process with various steps, and the Legislature broadly defined the term "manufacture" to encompass myriad activities in this process, including tasks that may potentially be carried out without a right of control over the substance, such as labeling containers or mixing the brownie batter to which a controlled substance is added. See People v. Eggers , unpublished per curiam opinion of the Court of Appeals, issued February 14, 2006 (Docket No. 256618), p.5. Depending on the drug and the method of manufacturing, it is also possible that there will be no controlled substance to possess until the manufacturing process is complete, and the fact that one undertakes the manufacture of a controlled substance is no guarantee that there will be a right of control or dominion over the finished product. Ultimately, while manufacturing may often involve possession, it is not invariably the case that one who manufactures a controlled substance will also have possession of the substance manufactured. Because it is not impossible to manufacture a controlled substance without also possessing that controlled substance, there is no double-jeopardy violation arising from convictions for manufacture and possession of the same substance. See Miller , 498 Mich. at 19, 869 N.W.2d 204. In this case, defendant admitted both manufacturing methamphetamine and possessing methamphetamine. Although his conviction for possession stems from the possession of the same methamphetamine that he manufactured, possession and manufacturing are distinct offenses. Consequently, defendant's conviction and sentencing for both offenses does not violate double jeopardy. Having concluded that defendant's convictions do not violate double jeopardy, we also reject defendant's argument that counsel provided ineffective assistance by failing to raise this meritless argument in the trial court. See Ericksen , 288 Mich. App. at 201, 793 N.W.2d 120. Affirmed. Hoekstra, P.J., and Murphy and K. F. Kelly, JJ., concurred. Manufacturing also includes the "packing or repackaging" of a controlled substance as the well as "labeling or relabeling of its container." MCL 333.7106(3). However, it is undisputed that these activities are not at issue in this case and that defendant is not entitled to the exception for practitioners set forth in § 7106(3)(b). We are not alone in this understanding of the personal-use exception as set forth in Pearson . Consistently with Pearson , numerous state courts interpreting the terms "preparation" and "compounding" have concluded that the personal-use exception applies "when [an] individual is] [already in possession of the controlled substance and is simply making it ready for use ... or combining it with other ingredients for use." See, e.g., State v. Wilson , 421 N.J. Super. 301, 308, 23 A.3d 489 (App Div, 2011) ; State v. Bossow , 274 Neb. 836, 845-846; 744 N.W.2d 43 (2008) ; Owens v. State , 325 Ark. 110, 124, 926 S.W.2d 650 (1996) ; State v. Underwood , 168 W. Va. 52, 57-58; 281 S.E.2d 491 (1981) ; State v. Boothe , 285 N.W.2d 760, 762 (Iowa App, 1979). Although decisions from other states are not precedentially binding, they may be considered persuasive. People v Jackson, 292 Mich. App. 583, 595 n 3; 808 N.W.2d 541 (2011). See alsoMCL 333.1111(1) ; MCL 333.7121(2) ; People v. Thompson , 477 Mich. 146, 155 n. 9, 730 N.W.2d 708 (2007). Our decision today rests in large part on the reasoning and analysis performed by this Court in Pearson , wherein we similarly determined that growing marijuana is not protected by the personal-use exception. Pearson , 157 Mich. App. at 71-72, 403 N.W.2d 498. As a published decision of this Court decided before November 1, 1990, Pearson is not precedentially binding. MCR 7.215(J)(1). Nevertheless, we consider Pearson persuasive and we use it as a guide. See People v. Barbarich , 291 Mich. App. 468, 476 n. 2, 807 N.W.2d 56 (2011). Other courts interpreting comparable personal-use provisions have likewise determined that making or cooking methamphetamine is not protected by the personal-use exception. See, e.g., Stallard v. State , 225 Md. App. 400, 412, 124 A.3d 1165 (2015) ; Owens , 325 Ark. at 124, 926 S.W.2d 650. Though these cases are not binding, we find them persuasive and consistent with Michigan's statutory provisions. Jackson , 292 Mich. App. at 595 n 3. See also Thompson , 477 Mich. at 155 n. 9, 730 N.W.2d 708. MCL 333.7531(1), which is contained in Article 7 of the Public Health Code, states as follows: "It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it." It is not apparent that a double-jeopardy challenge would be precluded on direct appeal by MCR 6.310(D). However, even assuming that defendant's double-jeopardy argument is also problematic under MCR 6.310(D), as we have discussed, it would be properly considered in the ineffective-assistance context. People v. Ream , 481 Mich. 223, 238; 750 N.W.2d 536 (2008). While unpublished opinions are not precedentially binding, MCR 7.215(C)(1), they may be considered for their persuasive value. People v. Green , 260 Mich. App. 710, 720 n. 5, 680 N.W.2d 477 (2004). See id. Courts in other jurisdictions have also reached this conclusion. See, e.g., State v. Davis , 117 Wash. App. 702, 709, 72 P.3d 1134 (2003) ("Although possession is usually inherent in manufacture, that is not invariably the case ...."); Galbreath v. State , 213 Ga. App. 80, 81, 443 S.E.2d 664 (1994) ("Possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana by cultivating or planting...."); State v. Brown , 106 Or. App. 291, 297, 807 P.2d 316 (1991) ("Each of the statutory provisions defining possession and manufacture of a controlled substance requires proof of an element that the other does not...."); State v. Peck , 143 Wis. 2d 624, 645-646, 422 N.W.2d 160 (1988) ("Possession, however, is not an element of the offense of manufacturing a controlled substance....").

Per Curiam. In this estate case involving Rhea Brody's personal assets, Rhea's husband-appellant Robert Brody-appeals as of right the probate court's order appointing Mary Lyneis as Rhea's conservator. Rhea and Robert's daughter, Cathy B. Deutchman, filed the petition for conservatorship, which was opposed by Robert and Jay Brody, the son of Robert and Rhea. We affirm. I. APPOINTMENT OF A CONSERVATOR Robert argues on appeal that the probate court abused its discretion by appointing a conservator to manage Rhea's estate and affairs under MCL 700.5401. We disagree. This Court reviews for an abuse of discretion a probate court's appointment of a conservator. In re Bittner Conservatorship , 312 Mich.App. 227, 235, 879 N.W.2d 269 (2015). "An abuse of discretion occurs when the court's decision falls outside the range of reasonable and principled outcomes." Id . This Court reviews for clear error the probate court's factual findings and reviews de novo its legal conclusions. Id. at 235-236, 879 N.W.2d 269. "A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." In re Townsend Conservatorship , 293 Mich.App. 182, 186, 809 N.W.2d 424 (2011) (quotation marks and citation omitted). "The reviewing court will defer to the probate court on matters of credibility, and will give broad deference to findings made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily available to the reviewing court." In re Erickson Estate , 202 Mich.App. 329, 331, 508 N.W.2d 181 (1993). Article V of the Estates and Protected Individuals Code (EPIC), MCL 700.5101 et seq ., provides protection for individuals under disability. The standards governing conservatorship appointments are described in MCL 700.5401, which, in relevant part, provides: (3) The court may appoint a conservator or make another protective order in relation to an individual's estate and affairs if the court determines both of the following: (a) The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance. (b) The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual's support, care, and welfare or for those entitled to the individual's support, and that protection is necessary to obtain or provide money. These prerequisites must be established by clear and convincing evidence. MCL 700.5406(7). "The clear-and-convincing-evidence standard is 'the most demanding standard applied in civil cases ....' " Bittner , 312 Mich.App. at 237, 879 N.W.2d 269, quoting In re Martin , 450 Mich. 204, 227, 538 N.W.2d 399 (1995). Clear and convincing proof produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [ Martin , 450 Mich. at 227, 538 N.W.2d 399 (quotation marks and citations omitted; alterations in original).] Robert does not dispute that MCL 700.5401(3)(a) is satisfied given that Rhea's frontotemporal dementia renders her unable to manage her property or business affairs effectively. On appeal, Robert argues only that the probate court clearly erred by concluding that Rhea "has property that will be wasted or dissipated unless proper management is provided...." We hold that the probate court did not clearly err when it found that Rhea had property that would be wasted or dissipated without proper protection and oversight, and it did not abuse its discretion when it appointed a conservator to oversee Rhea's estate. The probate court thoughtfully considered Rhea's circumstances and the nature of each of the assets in Rhea's personal estate-composed of a Fifth Third bank account for tax refunds, an individual retirement account (IRA), a jointly held Chase Bank account, and jointly owned homes in Michigan and Florida-before concluding that the requirements of MCL 700.5401(3) had been established by clear and convincing evidence. The Fifth Third bank account, containing only $580.60 at the time of the hearing, existed for depositing tax refunds. Lyneis testified that, as the special conservator temporarily appointed during the pendency of the conservatorship proceedings, she was responsible for reviewing Rhea's personal tax return and paying any tax liabilities, which included taxes associated with Rhea's potentially substantial income from the Rhea Brody Living Trust (the Rhea Trust). Rhea risked negative tax consequences if she failed to file her signed return and pay any liabilities. While the probate proceedings were ongoing, Jay completed Rhea's tax return but refused to provide it to Lyneis for review. Without the ability to review Rhea's tax return, Lyneis was unable to verify whether any refund was properly deposited into the Fifth Third account. Accordingly, assets involving tax liabilities and refunds, including the Fifth Third account dealing with refunds, risked waste or dissipation without proper management. The probate court noted that Rhea's IRA required an election of annual distributions. The probate court also noted that with no one in place to authorize mandatory distributions, Rhea's IRA would be subject to tax penalties, which created a risk of waste and dissipation of the IRA funds. Robert argues that the probate court could not have found the IRA subject to waste or dissipation as a result of tax penalties because distributions from the IRA had been occurring automatically for years, and Rhea's IRA requires "minimal involvement." Respondent fails to explain how the fact that an asset requires only minimal oversight renders the asset less likely to fall victim to waste or dissipation. Further, Robert's argument is not supported by the record. Although Lyneis testified that Rhea's annual IRA distribution was deposited into the Rhea Trust for 2015, there was no evidence regarding annual distributions, automatic or otherwise, before 2015. Further, there is no evidence that appropriate distributions are guaranteed to occur absent intervention. Rhea shares an interest in two homes, one in Michigan and one in Florida, with her husband Robert. The two also share a Chase Bank account, which is used to fund payments on the Florida home. The Brody family bookkeeper, Bonnie Dellinger, testified that she had actively requested that funds be transferred from the Rhea Trust account to the Chase Bank account in order to satisfy mortgage payments on the Florida home. Because the Florida home is not regularly used, it is particularly susceptible to waste. Rhea herself is incapable of traveling to the Florida home. The probate court reasoned that without management of the Florida home's mortgage payments or oversight of each home's maintenance, both the Michigan home and the Florida home risked waste or dissipation. Robert suggests that it was improper for the probate court to consider joint assets when evaluating the risk of waste or dissipation because a conservator would be unable to change the nature of jointly owned property. Robert cites for authority our Supreme Court's 1988 opinion in In re Wright Estate , 430 Mich. 463, 469-470, 424 N.W.2d 268 (1988), wherein the Court held that while "a conservator has the power to collect, hold, and retain assets of the estate, he may not change the nature of joint accounts created by the disabled adult before the adult was declared incompetent." (Quotation marks, citations, and brackets omitted.) Robert misinterprets the Court's holding in that case. Although Wright precludes a conservator from changing the nature of joint accounts after the conservator's appointment, the case does not limit a conservator's power to manage the accounts. Similarly, the Wright case does not preclude a probate court from considering the joint assets at the conservatorship hearing. See id. Under MCL 700.5419, "[a]ppointment of a conservator vests in the conservator title as trustee to all of the protected individual's property ... held at the time of or acquired after the order...." (Emphasis added.) The probate court did not err when it considered whether the jointly held assets would be subject to waste or dissipation for purposes of MCL 700.5401(3)(b). Dellinger testified that she stopped managing payments for Rhea's expenses in January 2016 when Lyneis was appointed special conservator. Dellinger was concerned that without a conservator, Rhea's expenditures would not receive continued oversight. The probate court agreed, stating, "If no one is making decisions, it is a certainty, frankly, that property will be wasted or dissipated." Given these facts, the probate court did not clearly err by concluding that, because Rhea's is unable to manage her property and business affairs, Rhea's property would be wasted without proper management. Robert also argues that the probate court erred by appointing a conservator to act on behalf of Rhea because Robert-who held a durable power of attorney (DPOA), executed by Rhea in 2009, naming him as Rhea's attorney-in-fact-was already in a position to prevent waste and dissipation of Rhea's estate. At the very least, according to Robert, he should have been given priority over Lyneis as a potential conservator. The existence of a DPOA does not prohibit the appointment of a conservator, see MCL 700.5503(1) (stating the powers of a conservator appointed after execution of a DPOA, including the same power as the principal to revoke the power of attorney), and selection of an individual to be appointed as an incapacitated person's conservator is a matter committed largely to the discretion of the probate court, In re Williams Estate , 133 Mich.App. 1, 11, 349 N.W.2d 247 (1984). The statute governing appointment of a conservator, MCL 700.5409(1), allows a court to determine if the individuals who fall within the statutory priority guidelines are "suitable." Additionally, MCL 700.5409(2), grants the probate court authority to pass over "a person having priority and appoint a person having less priority or no priority" for the role of conservator if good cause exists. The statute's priority classifications are merely a guide for the probate court's exercise of discretion. Under MCL 700.5409(1)(c), a protected individual's spouse is entitled to consideration for appointment as conservator, and the spouse is granted priority over all other individuals except "[a] conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides," MCL 700.5409(1)(a), and "[a]n individual or corporation nominated by the protected individual if he or she is 14 years of age or older and of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney," MCL 700.5409(1)(b). But under MCL 700.5409(1)(h), if the individuals having priority under MCL 700.5409(1) are unsuitable, the probate court may consider anyone it determines is suitable and willing to serve. Considering the evidence before it, the probate court found Robert unsuitable for the conservatorship. The probate court found that Robert had abdicated his responsibilities under the DPOA and failed to act on Rhea's behalf to protect her estate assets. The record supports the probate court's finding. Robert is over 91 years old and requires a caregiver. Testimony established that Robert, who relied on others to help with his own financial decisions, did not handle Rhea's estate matters using the DPOA. Instead, according to Dellinger, Jay acted on Robert's behalf to make decisions for the Rhea Trust. Witnesses also testified that Jay exhibited controlling behavior over Robert. Given these facts regarding the relationship between Jay and Robert, it was not unreasonable for the probate court to infer that Jay would attempt to influence Robert's decision-making with respect to Rhea's estate in the future. The probate court did not abuse its discretion when it selected Lyneis, an independent fiduciary, over Robert as conservator. Robert also argues that the probate court's appointment of a conservator was an abuse of discretion because there was no evidence that any asset of the estate had already been wasted or dissipated. However, the Legislature's use of the word "will" to modify the phrase "be wasted or dissipated unless proper management is provided" in MCL 700.5401(3)(b) supports the probate court's decision to focus on the likelihood that assets would be prospectively wasted or dissipated if a conservator was not appointed. See In re DeCoste Estate , 317 Mich.App. 339, 346, 894 N.W.2d 685 (2016) (explaining that the drafters of a statute are "assumed to have intended the effect of the language plainly expressed" and that this Court must give every word of the statute its plain and ordinary meaning) (quotation marks and citation omitted). The probate court properly concluded that it was unnecessary to find that any waste or dissipation had already occurred. Rhea's disability made her unable to manage her property and business affairs effectively. Although she had appointed Robert as her attorney-in-fact under the DPOA, he had abdicated his duties under the DPOA to Jay. Moreover, in addition to protecting against waste or dissipation of the assets currently in the estate, Lyneis testified that a conservator could protect the estate by interacting with the health insurance company, serving as the Social Security payee, and managing credit card bills and car lease payments. We are not left with a definite and firm conviction that the probate court erred by finding that a conservator was appropriate to fulfill these responsibilities. We also reject Robert's argument that the probate court improperly shifted the burden of proof from Cathy to Robert when it asked Robert's attorney: "[W]hy do you care" and "[Y]ou're the one objecting to it. I'm, I'm asking you for your reasons for opposing having Ms. Lyneis be [a] conservator ..." Robert takes the probate court's remarks out of context. The probate court's inquiry was in direct response to Robert's argument before the probate court. Robert claimed to oppose the appointment of a conservator because, when compared to the Rhea Trust, Rhea's personal estate was insignificant. The probate court merely asked Robert why he had bothered to oppose the petition if the assets were that insignificant. Later, the probate court judge stated, "[T]hese assets regardless of how small people seem to view this estate, require, uh, decisions being made and there's a question, therefore, as to who has the legal authority to make decisions." Finally, the probate court demonstrated that it understood the proper burden of proof when it stated on the record that Robert and Jay had no obligation to testify or present a defense. In sum, the probate court did not clearly err by finding that Rhea's property would be wasted or dissipated without proper management. Because there was clear and convincing evidence to support this conclusion, the probate court acted within its discretion in appointing a conservator under MCL 700.5401. II. COURT-APPOINTED GUARDIAN AD LITEM Next, Robert argues that the court-appointed guardian ad litem (GAL), William J. Petersmark, failed to fulfill his statutory duties under MCL 700.5406(4). Robert failed to challenge the GAL's performance in the probate court, and this issue is unpreserved. In re Smith Trust , 274 Mich.App. 283, 285, 731 N.W.2d 810 (2007). Although this Court may address an unpreserved issue if it involves a question of law and the necessary facts have been presented, Smith v. Foerster-Bolser Constr., Inc. , 269 Mich.App. 424, 427, 711 N.W.2d 421 (2006), we decline to fully address this issue because the record is simply undeveloped. Robert argues that the GAL failed to consider whether an alternative to conservatorship may be appropriate, but cites only the lack of explicit written consideration of the matter in Petersmark's report. Petersmark's failure to specifically note the full extent of consideration is not evidence that Petersmark failed to carry out his statutory obligation. Petersmark's report indicated that he complied with the duties of a GAL as required by statute and court rule, which would have included consideration of whether there was an alternative to conservatorship, MCL 700.5406(4)(a), and whether limiting the scope or duration of the conservator's authority was appropriate before ultimately recommending a conservatorship without limitation, MCL 700.5406(4)(b). Petersmark was discharged before the conservatorship hearing and did not testify regarding his thought processes or conclusions. On this record, we cannot conclude that Petersmark failed to perform his statutory duties. III. COURT-APPOINTED ATTORNEY Robert also raises two complaints regarding the probate court's appointment of an attorney for Rhea, arguing that the probate court denied Rhea her right to retain an attorney of her choosing and that appointed counsel failed to vigorously represent Rhea's interests at the conservatorship hearing. Even assuming that Robert has standing to challenge an alleged deprivation of Rhea's constitutional rights, Robert's claims fail because he has not demonstrated that Rhea possessed these rights in the probate court. Robert asserts that there is a constitutional right to retained counsel under Const. 1963, art. 1, § 13, which states that "[a] suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney." However, Robert fails to explain how this constitutional provision guarantees any individual, especially a nonsuitor, the right to an attorney, or how the probate court's decision to appoint an attorney for Rhea violates this constitutional provision. Indeed, Robert concedes that the appointment was an exercise of the probate court's discretion. Further, although the right to the effective assistance of counsel applies in criminal prosecutions, Const. 1963, art. 1, § 20, child protective proceedings, MCR 3.915(B)(1), and paternity proceedings, Haller v. Haller , 168 Mich.App. 198, 199, 423 N.W.2d 617 (1988), Robert makes no claim that there is a constitutional right to the effective assistance of counsel in probate proceedings. Robert's argument is also inconsistent with the record. The probate court appointed an attorney out of concern that Rhea, who was mentally incapacitated, was unable to hire an attorney on her own behalf. The probate court stated that if Rhea hired counsel after the appointment, he would revisit his decision to appoint an attorney on her behalf. Robert argues that he could have hired an attorney for Rhea as her attorney-in-fact under the DPOA, but he never attempted to do so. Robert did not object to the performance of appointed counsel during the conservatorship hearing, and we note that appointed counsel actively engaged in the proceedings. Robert has not indicated what appointed counsel should have done differently. Because Robert has failed to support his arguments, his claim is abandoned. See Houghton v. Keller , 256 Mich.App. 336, 339, 662 N.W.2d 854 (2003) (explaining that "[a]n appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority") (citations omitted); see also id. at 339-340 ("An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue."). IV. TRUST EVIDENCE Next, Robert argues that the probate court improperly admitted and relied on evidence from a concurrent proceeding in the probate court-one involving matters related to the Rhea Trust's assets-to conclude that Rhea's estate assets were at risk of waste or dissipation. However, " '[a] party may not claim as error on appeal an issue that the party deemed proper in the trial court because doing so would permit the party to harbor error as an appellate parachute.' " Hoffenblum v. Hoffenblum , 308 Mich.App. 102, 117, 863 N.W.2d 352 (2014) (citation omitted). Not only did Robert fail to object to the inclusion of information about the trust proceedings at the conservatorship hearing, Robert incorporated trust evidence into his own strategy, repeatedly referring to the trust proceedings during cross-examination of witnesses and in closing argument. Robert's attorney specifically questioned Lyneis about the trust and her role as trustee, stating: "I want to segregate these. ... I've got questions for you as the conservator, I've got questions for you as trustee." Robert waived any error related to the admission of evidence regarding the Rhea Trust when he intentionally contributed to the error at the hearing below. See Genna v. Jackson , 286 Mich.App. 413, 422, 781 N.W.2d 124 (2009). Regardless, we conclude that Robert's argument also fails on its merits. Generally, all relevant evidence is admissible. MRE 402 ; Morales v. State Farm Mut. Auto Ins. Co. , 279 Mich.App. 720, 729, 761 N.W.2d 454 (2008). "Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence." Lewis v. LeGrow , 258 Mich.App. 175, 199, 670 N.W.2d 675 (2003), citing MRE 401. "[R]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Tobin v. Providence Hosp. , 244 Mich.App. 626, 637-638, 624 N.W.2d 548 (2001), citing MRE 403. When a trial court serves as the trier of fact in a case, it is presumed to consider evidence for its proper purpose. See People v. Wofford , 196 Mich.App. 275, 282, 492 N.W.2d 747 (1992). In the related trust case, the probate court found on the record that Jay was complicit in Robert's breaches of fiduciary duty and identified a "whole pattern of favoring Jay Brody at the expense of Cathy ...." However, at the conservatorship hearing, the probate court expressly refused to consider that complicity. The probate court stated that the evidence presented by the parties regarding Jay's manipulation of Robert was consistent with "what's been going on in the trust case. Uh, Jay Brody has a, has a history of this behavior in the other case but that's not evidence here . Uh, but this is, this is quintessential Jay Brody, frankly." (Emphasis added.) Moreover, as Robert acknowledges, when Cathy's questioning focused on the trustee's monthly expense payments for the Rhea Trust, the probate court instructed her attorney, "Arguably, if you go far enough, it does have to do with the trust, but I would like to bring it back closer to, uh, you know, the handling of her personal estate." The probate court limited the testimony just as Robert argues on appeal it should have done, and Robert's arguments are therefore unsupported by the record. To the extent that the trust matter and the handling of Rhea's estate were inextricably linked, the probate court properly allowed the introduction of evidence related to the trust matter. Robert complains about the introduction of a letter Dellinger sent to the guardian ad litem for the trust that detailed Jay's order for Dellinger to pay for Robert's past expenses from the Rhea Trust. Robert claims that the letter was irrelevant on a number of grounds. First, Robert claims that the letter was not material because it only involved funds in the Rhea Trust. But the record demonstrated that income from the Rhea Trust flows directly to Rhea's personal estate. The probate court could infer that if Jay planned to invade the investment portfolio in the Rhea Trust to pay Robert's expenses, the personal income from that portfolio could be reduced and proper management was necessary under MCL 700.5401(3)(b). Second, Robert claims the letter was irrelevant because it involved Jay's statements to Dellinger, and Robert did not intend to act on those plans. But the record demonstrated throughout the proceedings that Jay attempted to exert control over Robert's decisions. For that reason, the court could infer that Jay may have exerted control with respect to the repayment of Robert's expenses as well. Robert also complains that Cathy's attorney improperly injected considerations of the Rhea Trust in arguments to the probate court. But it is well settled that an attorney's statements and arguments are not evidence. See Guerrero v. Smith , 280 Mich.App. 647, 658, 761 N.W.2d 723 (2008) ; Int'l Union, United Auto., Aerospace & Agricultural Implement Workers of America v. Dorsey (On Remand) , 273 Mich.App. 26, 45, 730 N.W.2d 17 (2006). The probate court appointed Lyneis to her separate roles as trustee and conservator, and the court was aware of the role she served in each capacity. Robert has not offered any argument to overcome the presumption that the court considered the evidence for its proper purpose. V. JUDICIAL BIAS Robert also suggests that the probate judge harbored bias against Robert and Jay as a result of his knowledge of the trust case. Robert challenges the probate court's reliance on Dellinger's letter regarding Jay's plan to repay Robert for past expenses as well as the court's reference to Jay's and Robert's decisions not to attend parts of the proceedings, and Jay's decision to withhold certain financial information from Lyneis. Robert failed to state a claim for judicial bias in his statement of questions presented, and this argument may be considered waived. See River Investment Group, LLC v. Casab , 289 Mich.App. 353, 360, 797 N.W.2d 1 (2010) ("This issue is waived because plaintiff failed to state it in the statement of questions presented in its brief on appeal."). Regardless, it is well established that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings ... do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Cain v. Dep't of Corrections , 451 Mich. 470, 496, 548 N.W.2d 210 (1996) (quotation marks and citation omitted). In this case, the probate court was tasked with determining whether Rhea's estate risked waste or dissipation. The probate court's reference to Dellinger's letter, which evidenced an intent to invade trust property and might affect the income to Rhea's estate, did not demonstrate bias or antagonism. Further, the probate court did not demonstrate favoritism when it acknowledged the absence and lack of involvement by interested parties at various portions of the proceedings, especially when the probate court was required to consider those particular parties as candidates for the conservatorship appointment. The record simply does not support Robert's claim. VI. LIMITED CONSERVATORSHIP OR PROTECTIVE ORDER Finally, Robert argues that the probate court should not have ordered a full conservatorship, but instead should have entered a less restrictive order, such as a limited conservatorship or a protective arrangement. Again, we disagree. The need for assistance in managing financial affairs does not necessarily demonstrate an inability to manage finances or a mishandling of finances, and a need for some assistance will not support the imposition of a full conservatorship when an individual remains capable of making responsible decisions. Bittner , 312 Mich.App. at 240-241, 879 N.W.2d 269. Therefore, when determining whether there is cause for a conservatorship, the probate court must endeavor to maintain an individual's autonomy by ordering the least restrictive means of protecting assets. Id . at 241-242, 879 N.W.2d 269. See also MCL 700.5407(1) ("The court shall exercise the authority conferred in this part to encourage the development of maximum self-reliance and independence of a protected individual and shall make protective orders only to the extent necessitated by the protected individual's mental and adaptive limitations and other conditions warranting the procedure."). Under MCL 700.5408(1), courts may impose limited protective arrangements in lieu of a full conservatorship. When considering whether a full conservatorship is appropriate, a probate court should approach the task from a perspective of respect for the individual's right to acquire, enjoy, and dispose of his or her property as the individual sees fit. Any restrictions on this fundamental right must be narrowly tailored to the individual's specific capabilities and incapacities, bearing in mind the heightened evidentiary threshold for judicial interference. [ Bittner , 312 Mich.App. at 242, 879 N.W.2d 269.] In Bittner , this Court ruled that the probate court erred by appointing a conservator because Shirley Bittner understood her sources of income and economic responsibilities; in addition, her financial affairs were well managed because she had arranged for assistance from her daughter. Id . at 240-243, 879 N.W.2d 269. This Court explained that Shirley Bittner's "grant of a durable power of attorney to [her daughter] confirms rather than negatives her ability to effectively manage her property and business affairs." Id. at 243, 879 N.W.2d 269. Although Robert equates Rhea's situation to Shirley Bittner's, we believe the two cases are distinguishable. Unlike Rhea, Shirley Bittner suffered only math and memory difficulties that "plague many elderly (and not so elderly) individuals," and Shirley Bittner did not have a mental disability that made her unable to manage property or business affairs. Id. at 239, 879 N.W.2d 269. Moreover, because Bittner had never mismanaged or mishandled her affairs in the past, and she had appointed an agent under a DPOA, there was no clear and convincing evidence that the property would be wasted or dissipated without proper management. Id. at 240-241, 879 N.W.2d 269. In contrast, Rhea was not aware of the assets in her estate, let alone able to manage them. There is no evidence that Rhea continues to possess any ability to acquire, enjoy, and dispose of her property as she sees fit. Before she was struck with disability, Rhea appointed Robert as her attorney-in-fact via the DPOA. Although her act demonstrated some self-reliance and independence, her chosen method of oversight was rendered ineffective when Robert abdicated his duties. The probate court specifically acknowledged that the least restrictive means of protecting Rhea's assets, aside from a conservatorship, would be the DPOA. However, facts in the record called into question Robert's ability to make decisions on Rhea's behalf, including Robert's abdication of such decisions in the past and the control Jay has exerted over Robert. On the basis of the testimony presented, the probate court opined that Jay was "overbearing, manipulative, abusive toward his father ... and he was attempting to be the one in control ...." We defer to the probate court on matters of credibility and give broad deference to its factual findings. Erickson , 202 Mich.App. at 331, 508 N.W.2d 181. We are not definitely and firmly convinced that the probate court made a mistake when it concluded that the DPOA was insufficient to protect Rhea's assets. Robert does not adequately explain how Rhea would be able to maintain oversight of some, but not all, of her property under a limited conservatorship. Moreover, although Robert argues that a protective order may have been less invasive, Lyneis testified that she was not sure whether some of the tasks needed by Rhea would be satisfactorily achieved with such an order. The probate court cited evidence that a DPOA or patient advocate form would be insufficient to manage responsibilities, such as dealing with Rhea's insurance companies. Given these facts, the probate court did not clearly err by finding that a conservatorship, as opposed to a limited conservatorship or a protective arrangement, was most appropriate for Rhea. Affirmed. O'BRIEN, P.J., and JANSEN and MURRAY, JJ., concurred. The parties dispute whether the Fifth Third bank account was held by Rhea individually or held jointly by Rhea and Robert. In light of our determination that the probate court properly considered both Rhea's individually-held assets and her jointly-held assets, we conclude that the distinction is irrelevant. The probate court's order in the concurrent proceeding was also appealed in this Court. See In re Brody Living Trust , 321 Mich.App. 304, 910 N.W.2d 348 (2017).

Murphy, J. Plaintiffs, Drago Kostadinovski and Blaga Kostadinovski, husband and wife, appeal as of right the trial court's order denying their motion to file an amended medical malpractice complaint after the court had earlier granted summary disposition in favor of defendants, Steven D. Harrington, M.D. (the doctor) and Advanced Cardiothoracic Surgeons, PLLC, on plaintiffs' original complaint. Mr. Kostadinovski suffered a stroke during the course of a mitral-valve-repair (MVR) surgery performed by the doctor in December 2011. Plaintiffs timely served defendants with a notice of intent to file a claim (NOI), MCL 600.2912b, and later timely filed a complaint for medical malpractice against defendants, along with the necessary affidavit of merit, MCL 600.2912d. In the NOI, affidavit of merit, and the complaint, plaintiffs set forth multiple theories with respect to how the doctor allegedly breached the standard of care in connection with the surgery. After nearly two years of litigation and the close of discovery, plaintiffs' experts effectively disavowed and could no longer endorse the previously identified negligence or breach-of-care theories and the associated causation claims, determining now, purportedly on the basis of information gleaned from discovery, that the doctor had instead breached the standard of care by failing to adequately monitor Mr. Kostadinovski's hypotension (low blood pressure) and transfuse him, resulting in the stroke. Plaintiffs agreed to the dismissal of the existing negligence allegations and complaint, but sought to file an amended complaint that included allegations regarding Mr. Kostadinovski's hypotensive state and the failure to adequately transfuse him. While the trial court believed that any amendment would generally relate back to the filing date of the original complaint, the court ruled that an amendment would be futile, considering that the existing NOI would be rendered obsolete because it did not include the current malpractice theory. And, absent the mandatory NOI, a medical malpractice action could not be sustained. The denial of plaintiffs' motion to amend the complaint, in conjunction with the dismissal of the original complaint, effectively ended plaintiffs' lawsuit. On appeal, plaintiffs challenge the denial of their motion to amend the complaint. Defendants cross-appeal, arguing that, aside from futility, amendment of the complaint should not be permitted because plaintiffs unduly delayed raising the new negligence theory and because such a late amendment would prejudice defendants. On the strength of Bush v. Shabahang , 484 Mich. 156, 772 N.W.2d 272 (2009), we hold that the trial court-as opposed to automatically disallowing plaintiffs to amend their complaint because of the NOI conundrum that would be created-was required to assess whether the NOI defect could be disregarded or cured by an amendment of the NOI under MCL 600.2301 in the context of futility analysis. Accordingly, we reverse and remand for further proceedings under MCL 600.2301. I. BACKGROUND On December 9, 2013, plaintiffs served defendants with the NOI, asserting that on December 14, 2011, the doctor had performed robotic-assisted MVR surgery on Mr. Kostadinovski and that, as subsequently determined, Mr. Kostadinovski suffered a stroke during the course of the procedure. The NOI listed six specific theories with respect to the manner in which the doctor allegedly breached the applicable standard of care relative to the surgery and preparation for the surgery, along with identifying related causation claims. On June 4, 2014, an expert for plaintiffs executed an affidavit of merit that listed the same six negligence theories outlined in the NOI in regard to the alleged breaches of the standard of care. On June 5, 2014, plaintiffs filed their medical malpractice complaint against defendants, along with the affidavit of merit, alleging that the doctor breached the standard of care in the six ways identified in the NOI and affidavit of merit. The causation claims were also identical in all three legal documents. In resolving this appeal, it is unnecessary for us to discuss the particular nature of these negligence and causation theories. On March 21, 2016, defendants filed a motion for summary disposition, arguing that, as revealed during discovery, plaintiffs' expert witnesses could not validate or support the six negligence theories set forth in the NOI, affidavit of merit, and complaint. On that same date, March 21, 2016, plaintiffs filed a motion to amend their complaint. Plaintiffs asserted that discovery had recently been completed and that discovery showed that Mr. Kostadinovski "was in a hypotensive state during the operation and was not adequately transfused." According to plaintiffs, this evidence was previously unknown and only came to light following the deposition of the perfusionist, the continuing deposition of the doctor, and the depositions of plaintiffs' retained experts. Plaintiffs sought to amend the complaint to allege negligence against the doctor "for failing to adequately monitor Mr. Kostadinovski's hypotension during the operation and failing to transfuse the patient so as to maintain the patient's blood pressure." On March 28, 2016, a hearing was held on plaintiffs' motion to amend the complaint, and the trial court decided to take the matter under advisement. On April 25, 2016, a hearing was conducted on defendants' motion for summary disposition, at which time plaintiffs agreed to the dismissal of their original complaint, given that their theories of negligence now lacked expert support, as did the causation claims that had been linked to the defunct negligence theories. Plaintiffs' motion to amend the complaint remained pending. On April 29, 2016, the trial court issued a written opinion and order denying plaintiffs' motion to amend the complaint. The court initially ruled, under MCR 2.118(D), that because the proposed amendment of plaintiffs' complaint arose from the same transactional setting as that covered by the original complaint, any amendment would relate back to the date that the original complaint was filed for purposes of the period of limitations. However, after citing language in MCR 2.118 and associated caselaw regarding principles governing the amendment of pleadings, along with MCL 600.2912b on notices of intent, the trial court ruled: The Court finds that plaintiffs' NOI did not set forth the minimal requirements to provide notice of the claim of breach of the standard of care with regard to the failure to monitor hypotension levels during the operation and the failure to transfuse the patient [as] a potential cause of injury as required by MCL 600.2912b. Accordingly, defendants were not given the opportunity to engage in any type of settlement negotiation with regard to the hypotension and transfusion claims because they were not given notice of the existence of any such claims. Even if plaintiffs had included these new allegations in their original complaint, defendants lacked the requisite notice mandated by MCL 600.2912b because they were not raised in the NOI. Plaintiffs' failure to adhere to the statutory mandates renders the new allegations contained in the proposed amended complaint futile, as these new allegations of medical malpractice must fail as a matter of law. Therefore, plaintiffs' motion to amend is properly denied. [Citations omitted.] Plaintiffs appeal as of right. II. ANALYSIS A. STANDARDS OF REVIEW This Court reviews for an abuse of discretion a trial court's ruling on a motion for leave to file an amended pleading. Franchino v. Franchino , 263 Mich.App. 172, 189, 687 N.W.2d 620 (2004). "Thus, we defer to the trial court's judgment, and if the trial court's decision results in an outcome within the range of principled outcomes, it has not abused its discretion." Wormsbacher v. Phillip R. Seaver Title Co., Inc. , 284 Mich.App. 1, 8, 772 N.W.2d 827 (2009). "A trial court ... necessarily abuses its discretion when it makes an error of law." People v. Al-Shara , 311 Mich.App. 560, 566, 876 N.W.2d 826 (2015). We review de novo matters of statutory construction, as well as questions of law in general. Wells Fargo Bank, NA v. SBC IV REO, LLC , 318 Mich.App. 72, 89-90, 896 N.W.2d 821 (2016). B. AMENDMENT OF PLEADINGS-BASIC PRINCIPLES A pleading may be amended once as a matter of course if done so within a limited period; otherwise, "a party may amend a pleading only by leave of the court or by written consent of the adverse party." MCR 2.118(A)(1) and (2). Plaintiffs were no longer entitled to amend their complaint as of right, necessitating their motion to amend the complaint. MCR 2.118(A)(2) provides that "[l]eave shall be freely given when justice so requires." Therefore, a motion to amend should ordinarily be granted. Weymers v. Khera , 454 Mich. 639, 658, 563 N.W.2d 647 (1997). A court must give a particularized reason for denying leave to amend a pleading, and acceptable reasons for denial include undue delay, bad faith or dilatory motive by the party seeking leave, repeated failures to cure deficiencies after previously allowed amendments, undue prejudice to the nonmoving party, and futility. Miller v. Chapman Contracting , 477 Mich. 102, 105, 730 N.W.2d 462 (2007) ; Wormsbacher , 284 Mich.App. at 8, 772 N.W.2d 827. The amendment of a pleading is properly deemed futile when, regardless of the substantive merits of the proposed amended pleading, the amendment is legally insufficient on its face. Hakari v. Ski Brule, Inc. , 230 Mich.App. 352, 355, 584 N.W.2d 345 (1998) ; Gonyea v. Motor Parts Fed. Credit Union , 192 Mich.App. 74, 78, 480 N.W.2d 297 (1991). With respect to the question whether an amendment of a pleading relates back to the date that the original pleading was filed, MCR 2.118(D) provides: An amendment that adds a claim or a defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit. In Doyle v. Hutzel Hosp. , 241 Mich.App. 206, 218-219, 615 N.W.2d 759 (2000), this Court analyzed MCR 2.118(D) and the caselaw regarding the amendment of pleadings, holding: When placed in context against a backdrop providing that leave to amend pleadings must be freely granted, MCR 2.118(A)(2), the principle to be gleaned from these cases is the necessity for a broadly focused inquiry regarding whether the allegations in the original and amended pleadings stem from the same general "conduct, transaction, or occurrence." The temporal setting of the allegations is not, in and of itself, the determinative or paramount factor in resolving the propriety of an amendment of the pleadings, and undue focus on temporal differences clouds the requisite broader analysis. It does not matter whether the proposed amendment introduces new facts, a different cause of action, or a new theory, so long as the amendment springs from the same transactional setting as that pleaded originally. Id. at 215, 615 N.W.2d 759. C. MEDICAL MALPRACTICE ACTIONS-NOTICE OF INTENT TO FILE A CLAIM The focus of the trial court's ruling and the arguments of the parties concern the NOI and the fact that plaintiffs' proposed amended complaint set forth a negligence or breach-of-care theory that was not recited in the NOI. MCL 600.2912b provides, in pertinent part: (1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. * * * (4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following: (a) The factual basis for the claim. (b) The applicable standard of practice or care alleged by the claimant. (c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility. (d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care. (e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice. (f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim. * * * (6) After the initial notice is given to a health professional or health facility under this section, the tacking or addition of successive 182-day periods is not allowed, irrespective of how many additional notices are subsequently filed for that claim and irrespective of the number of health professionals or health facilities notified. In Bush , 484 Mich. at 174, 772 N.W.2d 272, our Supreme Court noted the legislative intent behind MCL 600.2912b, observing: The stated purpose of § 2912b was to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs. [Citation, quotation marks, and ellipsis omitted.] D. DISCUSSION AND HOLDING Our analysis today entails the question whether the Bush Court's application of MCL 600.2301 in a case involving a defective NOI governs the approach to be applied in the context of the procedural circumstances present in the instant case, or whether two published opinions from this Court that arguably lend some support for defendants' position are controlling. MCL 600.2301 provides in full: The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. In Gulley-Reaves v. Baciewicz , 260 Mich.App. 478, 479-482, 679 N.W.2d 98 (2004), the plaintiff served an NOI on the defendants, claiming medical malpractice in the performance of a mediastinoscopy, and the plaintiff later filed a complaint against the defendants, along with two supporting affidavits of merit. The Gulley-Reaves panel summarized the defendants' response as follows: Defendants filed a motion for summary disposition challenging plaintiff's compliance with the statutory requirements for providing presuit notice of intent to file a medical-malpractice action. Specifically, defendants asserted that the notice of intent alleged malpractice with respect to the surgical procedure only. Upon the filing of the medical-malpractice complaint, defendants learned that plaintiff was also challenging the administration of the anesthesia during the surgical procedure. The notice of intent allegedly did not comply with the statutory requirements because it did not advise of the claimed wrongdoing with regard to the anesthesia. That is, it did not allege a breach of the standard of care and proximate cause based on anesthesia given during the surgical procedure. [ Id. at 482-483, 679 N.W.2d 98 ]. The Gulley-Reaves panel agreed that the NOI was defective because it "did not set forth the minimal requirements to identify that the anesthesia was a potential cause of plaintiff's injury," and because the NOI "was silent with regard to any breach of the standard of care during the administration of anesthesia." Id. at 487, 679 N.W.2d 98. This Court held that the trial court erred by denying the defendants' motion for summary disposition, given that the "[p]laintiff failed to provide notice of the claim of breach of the standard of care with regard to the administration of anesthesia as required by" the NOI statute. Id. at 490, 679 N.W.2d 98. The opinion did not include any discussion whatsoever of MCL 600.2301, and the Bush opinion was still five years on the horizon. In Bush , a case involving claims of medical malpractice arising out of surgery to repair an aortic aneurysm, the NOI, among other alleged defects, purportedly failed to identify the particular actions taken by physician assistants and the nursing staff that breached the standard of care, failed to state how the hiring and training practices of one of the defendants breached the standard of care, and failed to set forth some necessary theories of causation. Bush , 484 Mich. at 161-162, 179-180, 772 N.W.2d 272. The Bush Court rejected the proposition that mandatory dismissal of a medical malpractice action is the sole remedy for a defective NOI or violation of MCL 600.2912b. Id. at 170-181, 772 N.W.2d 272. Next, the Court, focusing on the alleged NOI defects, held: We agree with the Court of Appeals that these omissions do constitute defects in the NOI. However, we disagree with the Court of Appeals regarding the appropriate remedy. We are not persuaded that the defects ... warrant dismissal of a claim. These types of defects fall squarely within the ambit of § 2301 and should be disregarded or cured by amendment. It would not be in the furtherance of justice to dismiss a claim where the plaintiff has made a good-faith attempt to comply with the content requirement of § 2912b. A dismissal would only be warranted if the party fails to make a good-faith attempt to comply with the content requirements. Accordingly, we hold that the alleged defects can be cured pursuant to § 2301 because the substantial rights of the parties are not affected, and "disregard" or "amendment" of the defect is in the furtherance of justice when a party has made a good-faith attempt to comply with the content provisions of § 2912b. [ Id. at 180-181, 772 N.W.2d 272.] After Bush was decided, this Court issued an opinion in Decker v. Rochowiak , 287 Mich.App. 666, 791 N.W.2d 507 (2010). In Decker , the plaintiff, by his next friend, filed a medical malpractice action that was predicated on an alleged failure to properly monitor the plaintiff's glucose level; the plaintiff was diagnosed "with cerebral palsy from an early anoxic (lack of oxygen) brain injury." Id. at 670-671, 791 N.W.2d 507. After serving his NOI on the defendants and filing his complaint with supporting affidavits of merit, the plaintiff sought leave to file an amended complaint in order to allege 17 specific ways in which the defendants breached the applicable standards of care. Id. at 671, 791 N.W.2d 507. This Court summarized the plaintiff's argument in favor of allowing the amended complaint: Plaintiff argued that the amendment was proper because (1) discovery remained open and experts had not been deposed, (2) the amendment merely clarified allegations and issues and was made possible after particular information was learned through the discovery process, (3) the clarifications ultimately relate back to the underlying lynch pin of this entire case which is that they did not appropriately monitor and maintain this baby's glucose level, and (4) defendants would not be prejudiced by the amendment. [ Id. (quotation marks and brackets omitted).] The trial court granted the request to file an amended complaint and subsequently denied various motions for summary disposition filed by the defendants, with this Court granting and consolidating multiple applications for leave to appeal pursued by the defendants. Id. at 671-674, 791 N.W.2d 507. The defendants in Decker argued that the plaintiff's amended complaint had asserted new theories of medical malpractice that were not contained in the NOI; therefore, amendment of the complaint should not have been allowed or the amended complaint should have been summarily dismissed pursuant to Gulley-Reaves . Decker , 287 Mich.App. at 679-682, 791 N.W.2d 507. The Decker panel found that the plaintiff, while providing some details and clarification, had not actually alleged any new negligence or causation claims in the amended complaint that were not already encompassed by the claims in the NOI, so the purpose of the notice requirement was realized. Id. at 677-682, 791 N.W.2d 507. The Court observed that "[t]his is not a case where, as in Gulley-Reaves , the plaintiff set forth a totally new and different potential cause of injury in an amended complaint compared to the potential cause of injury set forth in her NOI, e.g., the manner in which a particular surgical procedure was performed compared to the manner in which anesthesia was administered during the surgery." Id. at 680-681, 791 N.W.2d 507. This statement by the Decker panel might lead one to believe at first glance that, when a totally new breach-of-care or causation theory actually is pursued, as in the instant case, summary dismissal or disallowance of an amended complaint would be appropriate. We conclude that Bush controls our analysis. If MCL 600.2301 is implicated and potentially applicable to save a medical malpractice action when an NOI is defective because of a failure to include negligence or causation theories required by MCL 600.2912b(4), then, by analogy, MCL 600.2301 must likewise be implicated and potentially applicable when an NOI is deemed defective because it no longer includes the negligence or causation theories required by MCL 600.2912b(4) and alleged in the complaint due to a postcomplaint change in the theories being advanced by a plaintiff as a result of information gleaned from discovery. There is no sound or valid reason that the principles from Bush should not be applied here. Indeed, as a general observation, the factual circumstances are even more compelling for the invocation of MCL 600.2301 when an NOI is not defective from the outset but becomes defective because discovery has shed new light on the case and given rise to a new liability theory. Assuming that Gulley-Reaves supports defendants' position here, it was issued prior to Bush , and the Court did not entertain an argument under MCL 600.2301. Second, the Court in Decker also did not entertain an argument under MCL 600.2301, nor would it have been necessary for the panel to have even reached an argument under MCL 600.2301, given the nature of its ruling that no new claims were asserted in the amended complaint that were not already accounted for in the NOI. The Decker Court simply distinguished Gulley-Reaves , and we can only speculate whether it would have applied the Bush § 2301 analysis had it determined that new claims were being raised, or whether it would have applied the Gulley-Reaves opinion and dismissed the case. Ultimately, Decker did not address the effect of Bush and MCL 600.2301 on a case involving new theories of negligence and causation that differed from those identified in the NOI. Moreover, Bush is controlling Supreme Court precedent, trumping decisions by this Court. See MCR 7.215(J)(1). We do find it necessary to address Driver v. Naini , 490 Mich. 239, 243, 802 N.W.2d 311 (2011), wherein our Supreme Court held "that a plaintiff is not entitled to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations...." (Emphasis added.) The Driver Court rejected the plaintiff's argument that he should be allowed to amend his original NOI pursuant to Bush and MCL 600.2301. Id. at 251-259, 802 N.W.2d 311. The Court in Driver explained: Bush is inapplicable to the present circumstances. At the outset we note that the holding in Bush that a defective yet timely NOI could toll the statute of limitations simply does not apply here because CCA [the nonparty defendant] never received a timely, albeit defective, NOI. More importantly, and contrary to the dissent's analysis, the facts at issue do not trigger application of MCL 600.2301.... By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. An action is not pending if it cannot be commenced..... In Bush , however, this Court explained that an NOI is part of a medical malpractice proceeding. The Court explained that, since an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice proceeding. As a result, MCL 600.2301 applies to the NOI process. Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any proceeding against CCA because plaintiff's claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case. [ Driver , 490 Mich. at 253-254, 802 N.W.2d 311 (citations, quotation marks, brackets, and emphasis omitted).] The Driver Court later emphasized that the Bush opinion concerned "the content requirements of MCL 600.2912b(4)." Id. at 257, 802 N.W.2d 311. In the instant case, the NOI was timely served on defendants, as was the complaint, an amended NOI would not entail adding a new party, and we, like the Bush Court, are concerned with the content requirements of MCL 600.2912b(4). Therefore, Driver is factually and legally distinguishable, and MCL 600.2301 can be considered. For purposes of guidance on remand, we provide the following direction. The trial court is to engage in an analysis under MCL 600.2301 to determine whether amendment of the NOI or disregard of the prospective NOI defect would be appropriate. If the trial court concludes that amendment or disregard of the defect would not be proper under MCL 600.2301, the court's prior futility analysis relative to plaintiff's motion to amend the complaint shall stand and the motion to amend the complaint shall be denied, ending the case, subject, of course, to appeal on the § 2301 analysis. If the trial court determines that MCL 600.2301 supports amendment of the NOI or disregard of the NOI defect, thereby negating the court's prior futility analysis, amendment of the complaint shall be allowed, with one caveat. Aside from futility, defendants had proffered additional reasons why amendment of the complaint should not be allowed, i.e., undue delay and undue prejudice, see Miller , 477 Mich. at 105, 730 N.W.2d 462, which were not reached by the trial court and are repeated by defendants in their appellate brief as alternative bases to affirm. The trial court shall entertain those arguments if the court rules in plaintiffs' favor on MCL 600.2301. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiffs are awarded taxable costs under MCR 7.219. Borrello, P.J., and Ronayne Krause, J., concurred with Murphy, J. A seventh nonspecific allegation indicated that the doctor had "failed to adhere to any and all additional requirements of the standard of care as may be revealed through the discovery process." By order dated April 25, 2016, the trial court indicated that plaintiffs' allegations of negligence and causation as stated in the NOI, complaint, and affidavit of merit were dismissed with prejudice. The plaintiff's affidavits of merit and complaint in Gulley-Reaves did reveal a malpractice claim based on the faulty administration of anesthesia. Gulley-Reaves , 260 Mich.App. at 481-482, 679 N.W.2d 98. We note that plaintiffs contemplated such a possibility when they included language in the NOI that the doctor failed to adhere to the standard of care in additional ways that might be revealed through discovery. See note 1 of this opinion. The Decker panel was aware of Bush , considering that it cited Bush with respect to explaining the purpose of an NOI. Decker , 287 Mich.App. at 675-676, 791 N.W.2d 507. Plaintiffs argue that MCL 600.2912b simply requires the service of an NOI before suit is filed and that once this is accomplished through the service of a proper and compliant NOI, as judged at the time suit is filed and by the language in the original complaint , the requirements of the statute have been satisfied, absent the need to revisit the NOI even if a new theory of negligence or causation is later developed that was not included in the NOI and that forms the basis of an amended complaint. If this were the law, the entire analysis in Decker would have been completely unnecessary because a proper and compliant NOI had been served on the defendants, as judged on the date the original complaint was filed and by the language in that complaint. Moreover, the approach suggested by plaintiffs would undermine the legislative intent and purpose behind MCL 600.2912b. We conclude that it would not be proper for us to conduct the analysis under MCL 600.2301 in the first instance; that, at least initially, is the trial court's role, which we shall not intrude upon.

On order of the Court, the motion to extend time is GRANTED. By order of February 20, 2018, the prosecuting attorney was directed to answer the application for leave to appeal the May 11, 2017 order of the Court of Appeals. The answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), and in light of the prosecutor's concession that the defendant was erroneously sentenced as a habitual offender, we REMAND this case to the Wayne Circuit Court Family Division for resentencing without habitual offender enhancement. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction.

On order of the Court, the application for leave to appeal the September 14, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the June 13, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. Clement, J., did not participate due to her prior involvement as chief legal counsel for the Governor.

On order of the Court, the application for leave to appeal the November 16, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the November 28, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the September 19, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

On order of the Court, the Judicial Tenure Commission having filed a motion to withdraw the petition for interim suspension, the motion is GRANTED. The motion for immediate consideration of the petition is DENIED as moot.

On order of the Court, the application for leave to appeal the September 26, 2017 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order, addressing: (1) to what extent the sentencing guidelines should be considered to determine whether the trial court abused its discretion in applying the principle of proportionality under People v. Steanhouse , 500 Mich. 453, 902 N.W.2d 327 (2017) ; and (2) whether, when a jury convicted the defendant of second-degree murder, the trial court abused its discretion in applying the principle of proportionality if it either (a) sentenced the defendant according to an independent finding that she committed first-degree murder; or (b) departed upward from the sentencing guidelines for second-degree murder based on facts established by a preponderance of the evidence that the jury did not find were established beyond a reasonable doubt. See MCL 777.36(2)(a) ; People v. Ewing (After Remand) , 435 Mich. 443, 458 N.W.2d 880 (1990) ; People v. Milbourn , 435 Mich. 630, 654, 461 N.W.2d 1 (1990). In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellee's brief. The parties should not submit mere restatements of their application papers. We further direct the Clerk to schedule the oral argument in this case for the same future session of this Court when it will hear oral argument in People v. Beck (Docket No. 152934). The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

Per Curiam. Early in the afternoon on January 23, 2015, the victim and defendant, longtime friends, took a bus together to a walk-in clinic. They returned around 4:00 p.m. The victim went back to her apartment alone. Defendant texted the victim that evening indicating that she should come over around 8:00 p.m. for a drink at his apartment. She went and had one spiced rum and coke. From there she went home to meet another friend. The victim and her friend drove around a park and went to the store. As that friend dropped the victim off at her apartment, the victim witnessed defendant stumbling and staggering back from the Kon Tiki Bar. After the victim's friend dropped her off, the victim started walking to her girlfriend's house, and she passed by defendant's apartment. Remembering she had left a basket of clean laundry at defendant's apartment, she decided to stop by and retrieve it. While there, the assault occurred. Defendant appeals by right the sentence imposed by the trial court after his jury trial conviction of assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve a prison term of 5 to 25 years. We affirm. A trial court's factual determinations under the sentencing guidelines must be supported by a preponderance of the evidence and are reviewed for clear error. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id . at 438, 835 N.W.2d 340. MCL 769.12. "[W]hen determining how offense variables should be scored, this Court reads the sentencing guideline statutes as a whole." People v. Bonilla-Machado , 489 Mich. 412, 422, 803 N.W.2d 217 (2011). "The cardinal rule of statutory construction is to identify and to give effect to the intent of the Legislature." Turner v. Auto Club Ins. Ass'n , 448 Mich. 22, 27, 528 N.W.2d 681 (1995). See also Mull v. Equitable Life Assurance Society of the United States , 444 Mich. 508, 514, n. 7, 510 N.W.2d 184 (1994). We found first on the plain language of the statute. Lamphere Schools v. Lamphere Federation of Teachers , 400 Mich. 104, 110, 252 N.W.2d 818 (1977). Individual words and phrases are not only read for bare meaning but are also read in the context of the entire legislative scheme. Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). "When, as here, 'the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted.' " Malpass v. Dep't of Treasury , 494 Mich. 237, 249, 833 N.W.2d 272 (2013) quoting Sun Valley Foods Co. v. Ward , 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Defendant does not dispute the conviction but alleges there to be an error in the scoring of Offense Variable 4 (OV) 4, resulting in an incorrect sentence. Defendant argues that OV 4 was scored on the basis of inaccurate information and, thus, that OV 4 was scored in violation of his state and federal due process rights. OV 4 should be scored at 10 points when "[s]erious psychological injury requiring professional treatment occurred to the victim[.]" MCL 777.34(1)(a). "In making this determination, the fact that treatment has not been sought is not conclusive[,]" MCL 777.34(2). Defendant argues that the record does not support a score of 10 points because it cannot be proved that the victim sustained a serious psychological injury from his attack, let alone an injury requiring professional treatment. Further, defendant emphasizes that the victim did not supply a victim impact statement or explicitly testify that defendant caused her psychological injuries. An OV 4 score of 10 points resulted in a total OV score of 50 points, the lowest number for OV Level V (50-74 points) for a Class D offense. MCL 777.21(1)(a). While the Crime Victim's Rights Act, MCL 780.751 et seq., affords a victim the right to submit an impact statement for the presentence investigation report and at sentencing, such a submission is not necessary in order to establish evidence of psychological harm. The term "right" is defined, in relevant part, as "the power or privilege to which one is justly entitled" or "something to which one has a just claim." Merriam Webster 's Collegiate Dictionary (11th ed.) Although the victim did not provide a statement, she did testify at trial, relaying how the assault occurred. She stated that after walking into defendant's basement to pick up a load of clean laundry she had finished there because her apartment did not have a washer or dryer, defendant shut and locked the door behind her, and pinned her in a bear hug, picked her up, and lifted her up the stairs into his apartment. There, he pinned her against the refrigerator and pulled off her t-shirt, repeatedly punching her in the face with his fists. She testified that he then laid atop her and stated, "I will drag you bloody and beaten to my bed and then rape you," threatening to kill her if she refused. When he momentarily lost his footing, she escaped and called 911. She testified that she had been "scared for [her] life" and that the beating had been "traumatic." The police described the victim as "hysterical" and noted that she had multiple facial lacerations and was dripping in blood upon their arrival. "When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a [presentence investigation report]." People v. Thompson , 314 Mich.App. 703, 708-709; 887 N.W.2d 650 (2016). A sentencing court may also consider "plea admissions[ ] and testimony presented at a preliminary examination." People v. McChester , 310 Mich.App. 354, 358, 873 N.W.2d 646 (2015). Based on an analysis of the statute's clear meaning, the scoring of OV 4 was not clearly erroneous. Whether the victim had undergone psychological treatment is not determinative. MCL 777.34(2). The trial court explained that 10 points was the appropriate score "[n]ot simply because these events that occurred to an ordinary person would give rise [to psychological injury which would require professional treatment], but in her particular case, they, in fact, did give rise [to psychological injury]," noting the victim's reluctance and difficulty in giving testimony and appearing on the witness stand. Furthermore, we note that the preliminary examination was closed to the public by the trial court at the victim's request. The trial court explained that cases involving criminal sexual conduct are "very sensitive" and can be "emotionally traumatic for the victims involved," and the court emphasized that this case involved a "fairly significant alleged violent act with blood...." Also of note, the victim was allowed to bring her mother as a support person to the preliminary examination, and during cross-examination at trial, the victim stated that she was "going to need a break pretty quick" as she was "pretty shook up." In addition, the victim was currently on disability for her anxiety and post-traumatic stress disorder. This Court has held that a victim's "statements about feeling angry, hurt, violated, and frightened" support a score of 10 points for OV 4. People v. Williams , 298 Mich.App. 121, 124, 825 N.W.2d 671 (2012). This approach also comports with People v. Calloway , 500 Mich. 180, 895 N.W.2d 165 (2017), which reversed this Court's opinion in People v. Calloway , the unpublished per curiam opinion of the Court of Appeals, issued March 22, 2016, 2016 WL 1125760 (Docket Nos. 323776 and 325524). Therefore, this Court affirms defendant's sentence by extending Calloway , which involved OV 5, in deference to the plain meaning and the exact verbiage of both OV 4 and OV 5. The statutory language of OV 5, concurring serious psychological injury to victim's family requiring treatment, MCL 777.35, is as follows: (1) Offense variable 5 is psychological injury to a member of a victim's family. Score offense variable 5 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: (a) Serious psychological injury requiring professional treatment occurred to a victim's family......................... 15 points (b) No serious psychological injury requiring professional treatment occurred to a victim's family............... 0 points (2) Score 15 points if the serious psychological injury to the victim's family may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive. Considering the trial court's scoring of OV 5 at 15 points, this Court's Calloway panel noted that although the victim's stepfather reported that the "incident has had a tremendous, traumatic effect on him and his family" that the incident "will change them for the rest of their lives," "there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident." Calloway , 500 Mich. at 183, 895 N.W.2d 165 (quotation marks and citation omitted). In its review of this Court's opinion in Calloway, the Michigan Supreme Court examined the language of MCL 777.35. The Court reasoned that "[a]t first blush, the second subsection of MCL 777.35 appears to contradict the first concerning whether professional treatment is required for points to be assessed. However, the more specific second subsection is clearly intended as a further explication of the circumstances justifying a 15-point score." Calloway , 500 Mich. at 185, 895 N.W.2d 165. The Court noted that "serious" means " 'having important or dangerous possible consequence[s].' " Id . at 186 895 N.W.2d 165, quoting Merriam-Webster 's Collegiate Dictionary (11th ed.). In contrast to what the Court of Appeals had held, the Supreme Court ultimately interpreted MCL 777.35 to mean that a family member need not be, at present, seeking or receiving professional treatment or intending to do so, Calloway , 500 Mich. at 186, 895 N.W.2d 165. In deciding Calloway , the Supreme Court noted that "the Court of Appeals did not discuss any details regarding the victim's grandmother's 'emotional response to the [victim's] death,' or consider the letter she submitted 'that spoke about her disbelief, grief, anger, and heartbreak at the loss of the [victim].' " Calloway at 187-188, 895 N.W.2d 165. Given the similarity between the language of MCL 777.34 and MCL 777.35, we extend the Supreme Court's analysis of OV 5 in Calloway to OV 4. There is no reason to assume that OV 4 and OV 5 should be interpreted differently when they are two branches stemming from the same tree, for "why[ should we] abandon our usual presumption that 'identical words used in different parts of the same statute' carry 'the same meaning' " ? Henson v. Santander Consumer USA Inc. , 582 U.S. ----, ----, 137 S.Ct. 1718, ----, 198 L.Ed.2d 177 (2017), quoting IBP , Inc. v. Alvarez , 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). When the Legislature uses identical words or phrases, this Court interprets them as synonymous. The Supreme Court, in applying the plain language of MCL 777.35 to the facts of Calloway , determined that the score of 15 points for OV 5 was appropriate given the statements of the victim's family in the presentence investigation report, which demonstrated the serious psychological issues they were suffering that could require future professional treatment. The Court referred to one particular statement made by the victim's stepfather. Addressing the trial court at the sentencing, the stepfather stated that " 'since [the day of the murder], [he had] thought about this every single day" and how he would "probably think about it for the rest of [his] life.' " This statement in Calloway is no great departure from the statements the victim in this case made at trial. The victim here has explained that the assault was traumatic for her and that one of the lasting effects on her was how her "everyday life was harder now." Moreover, her body language was evidence of this difficulty; while testifying she was "fidgeting" and nervous, not wanting to have to be in the same room with defendant. She also testified about her continuing memory loss. Furthermore, all involved in the trial, save for the jury, acknowledged that the victim had been experiencing some digestive issues since the incident. She was experiencing them on the day she testified-while trying to get to the courthouse to give her testimony, she had to stop at several rest stops on her way to court. Therefore, we adhere to the Legislature's intent and hold that the victim's statements support a score of 10 points for OV 4 and the trial court did not clearly err in its decision to assess 10 points for OV 4. Affirmed. Markey, P.J., and Ronayne Krause and Boonstra, JJ., concurred. MCL 780.763(1)(c) and (f). At defendant's preliminary examination, the trial court stated that the prosecutor had been in counseling at Pathways. This clearly is a transcription error, or the judge misspoke, because it is obvious from the context that the court meant the victim.

Murphy, J. This appeal concerns the enforcement of Mich. Admin. Code, R. 436.1011(6)(e), which precludes an establishment licensed by defendant, the Liquor Control Commission (LCC), from "[a]llow[ing] narcotics paraphernalia to be used, stored, exchanged, or sold on the licensed premises." The question posed to us involves the proper identification of products or merchandise that fall under the umbrella of "narcotics paraphernalia" as that term is employed in Rule 436.1011(6)(e). Plaintiff, Brang, Inc. (the store) appeals by leave granted the circuit court's order affirming the LCC's affirmation of a determination by an LCC hearing commissioner that recovered items that had been displayed and on sale in the store constituted narcotics paraphernalia in violation of Rule 436.1011(6)(e). We hold that Rule 436.1011(6)(e) is unconstitutionally vague with respect to the meaning of "narcotics paraphernalia." Accordingly, we reverse and remand for further proceedings. I. BACKGROUND On September 16, 2013, the LCC issued a complaint against the store alleging that on August 8, 2013, LCC investigators had discovered numerous items in the store, available for purchase by customers, that the LCC characterized as narcotics paraphernalia under and in violation of Rule 436.1011(6)(e). A violation hearing before an LCC hearing commissioner was held on December 11, 2013, and the two LCC investigators who conducted the inspection of the store on August 8, 2013, testified on behalf of the LCC. On the basis of their experience and under the totality of the circumstances-including product placement in glass cases, price, function, design, size, and location in conjunction with other items-the investigators opined that the merchandise at issue constituted narcotics paraphernalia. According to the investigators, stickers indicating that the items were for tobacco use only did not mean that the merchandise was not narcotics paraphernalia. The investigators seized the products, packaged them up, and transported them back to an LCC district office. One of the store's owners testified that the items were merely tobacco accessories and that they were kept in glass cases because they were expensive and because some of the products were very small and susceptible to easy shoplifting if not protected by encasement. He further indicated that more than 100 pounds of loose tobacco was on sale in the store, including some in the glass cases. The owner also testified that the township liquor inspector, who was unaffiliated with the LCC, along with local law enforcement, had often been in the store and voiced no concerns about the merchandise now being described as narcotics paraphernalia. The owner claimed that the items were not for use in association with narcotics. A document, described as an LCC interpretive statement, which was accessible on the LCC's website, was admitted into evidence at the hearing. The interpretive statement, before setting forth a nonexhaustive list of items that could be characterized as narcotics paraphernalia, provided that "[n]arcotics paraphernalia can best be described as any equipment, product, or materials used in concealing, producing, processing, preparing, injecting, ingesting, inhaling or otherwise introducing into the human body controlled substances, which are unlawful under state, federal or local law." The interpretive statement's references to some of the listed items, e.g., water pipes and pipe screens, contain exceptions when the items are sold in conjunction with loose tobacco or tobacco products. On January 10, 2014, the LCC commissioner issued an order finding that the evidence substantiated all 27 paragraphs of allegations, or charges, contained in the LCC complaint against the store. The commissioner imposed a fine of $50 for each of the 27 charges ($1,350 total), ordered a one-day suspension (Saturday/weekday) of the store's liquor license, and directed that the seized items be disposed of in accordance with the law. The store then requested a violation appeal hearing, and a three-member LCC Appeal Board (the Board) granted the request. A violation appeal hearing was conducted over two days on September 9 and December 9, 2014. The Board remanded the case back to the hearing commissioner, indicating that it had concerns about whether the merchandise constituted narcotics paraphernalia in light of the evidence, the developments in the law regarding medical marijuana under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq ., and the definition of "drug paraphernalia" under the Public Health Code (PHC), MCL 333.1101 et seq. On remand on March 25, 2015, another hearing was conducted by the hearing commissioner, and the parties agreed to incorporate the record from the prior evidentiary hearing. In addition, the LCC presented the testimony of one of its investigators who had not previously testified and who, having worked as a police officer, had gained extensive knowledge and experience regarding narcotics and narcotics paraphernalia. He indicated that he had never smoked tobacco and had no specialized training with respect to tobacco use. However, the investigator opined on the basis of his background, training, and experience and under a totality of the circumstances, that all the seized merchandise, except for the rolling papers, was primarily, if not exclusively, used in association with narcotics, not tobacco, and constituted narcotics paraphernalia. The hearing commissioner concluded that the evidence substantiated 25 of the 27 charges in the complaint, dismissing the two charges pertaining to rolling papers. He again imposed a $50 fine for each violation and a one-day license suspension, and he directed the disposal of the seized items. Once again, an appeal to the Board ensued, and this time the Board, in a 2-1 ruling, affirmed the hearing commissioner's decision following a hearing on October 6, 2015, concluding that he did not err with respect to his findings of fact and conclusions of law. The store appealed in the circuit court, and the court affirmed the Board's ruling, stating that the seized merchandise met "the plain language definition of drug paraphernalia....." The store now appeals by leave granted. II. THE CREATION AND AUTHORITY OF THE LCC The Legislature "may by law establish a liquor control commission which, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof." Const. 1963, art. 4, § 40. Currently in place, statutorily speaking, is the Michigan Liquor Control Code (the Code), MCL 436.1101 et seq. Except as otherwise provided by the Code, the LCC "shall have the sole right, power, and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within this state, including the manufacture, importation, possession, transportation and sale thereof." MCL 436.1201(2). Under MCL 436.1215(1), the LCC is authorized to "adopt rules and regulations governing the carrying out of [the Code] and the duties and responsibilities of licensees in the proper conduct and management of their licensed places." Rules of the LCC must be promulgated pursuant to the Administrative Procedures Act (APA), MCL 24.201 et seq. MCL 436.1215(1). III. STANDARDS OF REVIEW Findings and decisions of the LCC are reviewable pursuant to Const. 1963, art. 6, § 28. Semaan v. Liquor Control Comm. , 425 Mich. 28, 40-41, 387 N.W.2d 786 (1986) ; see also Kotmar, Ltd. v. Liquor Control Comm. , 207 Mich.App. 687, 689, 525 N.W.2d 921 (1994). Const. 1963, art. 6, § 28, provides as follows: All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.[ ] We review de novo the construction of an administrative rule. Coldwater v. Consumers Energy Co. , 500 Mich. 158, 167, 895 N.W.2d 154, 158-59 (2017). With respect to this Court's review of the circuit court's examination of agency action, we must determine whether the circuit court applied correct legal principles and whether the circuit court misapprehended or grossly misapplied the substantial-evidence test in relation to the agency's factual findings. Hanlon v. Civil Serv. Comm. , 253 Mich. App. 710, 716, 660 N.W.2d 74 (2002). "This latter standard is essentially a clearly erroneous standard of review...." Id. This Court gives great deference to a circuit court's review of the factual findings made by an administrative agency, but substantially less deference, if any, is afforded to the circuit court's decisions on matters of law. Mericka v. Dep't of Community Health , 283 Mich.App. 29, 36, 770 N.W.2d 24 (2009). IV. ADMINISTRATIVE RULES-PRINCIPLES OF CONSTRUCTION Just as with statutes, the foremost rule in construing an administrative rule, and our primary task, is to discern and give effect to the administrative agency's intent. Coldwater , 500 Mich. at 167, 895 N.W.2d at 158-59. This Court begins with an examination of the language of the administrative rule, which provides the most reliable evidence of the agency's intent, and if the language is unambiguous, the rule must be enforced as written without any further judicial construction. Id. We may go beyond the words of the administrative rule to ascertain the agency's intent only when the rule is ambiguous. Id. This Court must give effect to every clause, phrase, and word in an administrative rule and avoid a construction that would render any part of the rule surplusage or nugatory. Id. at 167-168, 895 N.W.2d 154. When the rule is ambiguous, we generally defer to the construction of an administrative rule given by the agency charged with administration of the rule; "[h]owever, this deference does not mean that a reviewing court abandons its ultimate responsibility to give meaning to ... administrative rules." Romulus v. Dep't of Environmental Quality , 260 Mich. App. 54, 65, 678 N.W.2d 444 (2003). Deference is not afforded to the agency's interpretation of a rule when the rule is unambiguous or when the agency's interpretation is clearly wrong. Id. at 65-66, 678 N.W.2d 444. MCL 24.232(1) of the APA provides that the "[d]efinitions of words and phrases and rules of construction prescribed in any statute that are made applicable to all statutes of this state also apply to rules unless clearly indicated to the contrary." And MCL 8.3 states that "[i]n the construction of the statutes of this state, the rules stated in sections [ MCL 8.3a to MCL 8.3w ] shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature." MCL 8.3a provides: All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. V. DISCUSSION AND RESOLUTION Again, Rule 436.1011(6)(e) precludes an establishment licensed by the LCC from "[a]llow[ing] narcotics paraphernalia to be used, stored, exchanged, or sold on the licensed premises." There is no administrative rule defining "narcotics paraphernalia." And the LCC's interpretive statement simply cannot be relied on to resolve this case. See MCL 24.232(5). An interpretative statement is not a rule; an interpretive statement is merely explanatory. MCL 24.207(h). We hold that the term "narcotics paraphernalia," standing alone as it does in Rule 436.1011(6)(e), i.e., without any parameters, is unconstitutionally vague. "In order to find a law unconstitutionally vague, there must be a showing that (1) it is overbroad, impinging on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed." Kotmar , 207 Mich.App. at 696, 525 N.W.2d 921 (examining the constitutionality of an LCC rule). The instant case does not concern possible intrusions on First Amendment freedoms; rather, our focus is on whether Rule 436.1011(6)(e) provides fair notice and whether it is too indefinite. "Vagueness challenges to ... administrative rules which do not involve First Amendment freedoms must be examined in light of the facts at hand." Ron's Last Chance, Inc. v. Liquor Control Comm. , 124 Mich.App. 179, 182, 333 N.W.2d 502 (1983). Due process requires the existence of reasonably precise standards to be employed by administrative agencies in performing their delegated legislative tasks. Adkins v. Dep't of Civil Service , 140 Mich.App. 202, 213-214, 362 N.W.2d 919 (1985). In Allison v. Southfield , 172 Mich.App. 592, 595-596, 432 N.W.2d 369 (1988), this Court observed: A statute or, in this case, a regulation is violative of due process on the ground of vagueness when it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Essentially, the doctrine of vagueness ensures that a regulation give its readers fair notice of what types of conduct are prohibited.... Even if one of the evils sought to be prevented by the vagueness doctrine is the vesting of unstructured discretion and the resultant arbitrary and discriminary enforcement of the law, the doctrine is not triggered unless the wording of the promulgation is itself vague. [Quotation marks and citations omitted.] Agency standards must be as reasonably precise as the subject matter permits or requires. Adkins , 140 Mich.App. at 214, 362 N.W.2d 919. "A purpose of this requirement is to close the door to favoritism, discrimination and arbitrary uncontrolled discretion on the part of administrative agencies, and provide adequate protection to the interests of those affected." Id. at 214, 362 N.W.2d 919 (citation omitted). "[S]tandards must be sufficiently broad to permit efficient administration ...., but not so broad that the people are unprotected from uncontrolled or arbitrary power in the hands of administrative officials." Mich. Waste Sys. v. Dep't of Natural Resources , 147 Mich.App. at 739, 383 N.W.2d 112. Former United States Supreme Court Justice Potter Stewart once famously observed, "I know it when I see it," with regard to identifying "hard-core pornography," while adding that he would not attempt to define the term and questioning whether he could even "succeed in intelligibly doing so." Jacobellis v. Ohio , 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). Our visceral reaction is similar when it comes to identifying "narcotics paraphernalia," giving us pause in finding the term unconstitutionally vague and initially making us wonder whether the language is as reasonably precise as the subject matter requires. However, after careful reflection and for the reasons expressed below, we conclude that the term "narcotics paraphernalia" is simply too vague for purposes of fair enforcement and that reasonably precise standards could indeed be easily crafted in a promulgated rule to avoid the vagueness problem. First, we find it problematic and confusing that the LCC treats the term "narcotics paraphernalia" as effectively being interchangeable with the term "drug paraphernalia," such that the LCC necessarily views marijuana paraphernalia as violative of Rule 436.1011(6)(e), as evidenced by the interpretive statement and the positions of the three LCC investigators, the hearing commissioner, and the Board. The LCC has used the language "narcotics paraphernalia" ever since Rule 436.1011 first became effective on February 3, 1981, see 1979 Quarterly Admin. Code Supp. No. 4, R. 436.1011, and at that time our Legislature did not include marijuana in the PHC's definition of "narcotic drug," see MCL 333.7107, as enacted by 1978 P.A. 368, effective September 30, 1978. All narcotics are drugs, but not all drugs are narcotics. See MCL 333.7107 ; Merriam-Webster's Collegiate Dictionary (11th ed.) (defining "narcotic" as "a drug (as opium or morphine ) that in moderate doses dulls the senses, relieves pain, and induces profound sleep but in excessive doses causes stupor, coma, or convulsions"); Stedman's Medical Dictionary (21st ed.) (defining "narcotic" as "[a] drug which, used in moderate doses, produces stupor, insensibility, or sound sleep"). In Michigan v. Long , 463 U.S. 1032, 1044 n. 10, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the United States Supreme Court commented: At the time that the 1963 Michigan Constitution was enacted, it is clear that marijuana was considered a narcotic drug. See 1961 Mich. Pub. Acts, No. 206 § 1(f). Indeed, it appears that marijuana was considered a narcotic drug in Michigan until 1978, when it was removed from the narcotic classification. Given this background, and although we appreciate that the definition of "narcotic drug" in MCL 333.7107 specifically pertains to Article 7 of the PHC (controlled substances), see MCL 333.7101(1) ("for purposes of this article ..."), it escapes us why the LCC, if it indeed intended to capture marijuana paraphernalia within Rule 436.1011(6)(e), did not simply use the term drug paraphernalia. To be clear, we are not ruling that the LCC did not intend to encompass marijuana paraphernalia in crafting Rule 436.1011, although that is certainly arguable for the reasons earlier expressed. Instead, we are simply recognizing that the decision to specifically reference "narcotics" paraphernalia in Rule 436.1011(6)(e), while ostensibly intending to bar all drug paraphernalia, leads to the very indefiniteness, uncertainty, and lack of fair notice and precision that the void-for-vagueness doctrine seeks to eliminate. Moreover, aside from serious concerns about the soundness and validity of including marijuana paraphernalia under Rule 436.1011(6)(e), the same indefiniteness, uncertainty, and lack of fair notice and precision exist with respect to paraphernalia connected to other drugs that are not technically recognized as narcotics in the field of medicine and under the PHC. Additionally, the interpretive statement, which the LCC advises licensees to review, speaks in terms of paraphernalia that is used in connection with unlawful controlled substances. Rule 436.1011(6)(e) does not indicate whether narcotics paraphernalia includes paraphernalia used in association with a controlled substance that, in some cases, might be used by an individual in a lawful manner. Thus, the effect of the MMMA on what constitutes narcotics paraphernalia for purposes of Rule 436.1011(6)(e) creates further uncertainty and confusion, assuming that marijuana can be viewed under the rule as a narcotic in the first place. The primary reason that we hold that Rule 436.1011(6)(e) is unconstitutionally vague is that it fails to supply any parameters, guidance, standards, criteria, or quantifiers in regard to identifying "narcotics paraphernalia," other than those necessarily arising out of the term itself, thereby making the rule susceptible to arbitrary and discriminatory enforcement. The Legislature, in outlawing the sale of drug paraphernalia under the PHC, has astutely required proof that a vendor know that the merchandise is to be used in relation to a controlled substance, MCL 333.7453(1), and that the product be "specifically designed" for use in connection with a controlled substance, MCL 333.7451. No such precision is found in Rule 436.1011(6)(e). In relevant part, the dictionary broadly defines "paraphernalia" as "articles of equipment" or "accessory items." Merriam-Webster's Collegiate Dictionary (11th ed.). Articles of equipment or accessory items relative to the use of narcotics could encompass such items as pipes for smoking, scales, rolling papers, razor blades, spoons, baggies, syringes, pacifiers, lighters, mirrors, elastics, etc.-all of which can generally be used for legal purposes, but which can also be employed for illegal purposes, differing with respect to the likelihood of a narcotic-related use or whether the manufacturer intended or envisioned such a use. Rule 436.1011(6)(e) simply does not provide any criteria or guidance to determine, for example, whether a pipe that can actually be used to smoke tobacco and to smoke a narcotic drug constitutes narcotics paraphernalia, thereby causing persons of common intelligence to guess at whether the pipe violates the rule. Does an item need to be primarily or predominantly used in connection with a narcotic in order to be designated as narcotics paraphernalia, or can rare or occasional use suffice? Is it pertinent for identifying narcotics paraphernalia whether the manufacturer specifically designed a product for use in relationship to a narcotic, or is the manufacturer's intent irrelevant? Does a licensee's knowledge, or lack thereof, regarding an item's use or intended use play any role in the equation? Rule 436.1011(6)(e) provides no insight or answer to these questions. And although it is true that the LCC investigators testified that certain products were almost always or primarily used in connection with narcotics, Rule 436.1011(6)(e) itself contains no such standard, quantifier, or demand, resulting in the indefiniteness, uncertainty, and lack of fair notice and precision that even the Board found concerning. In sum, Rule 436.1011(6)(e) is unconstitutionally vague and is therefore void and unenforceable by the LCC. Accordingly, we reverse the rulings of the circuit court, the Board, and the hearing commissioner and remand for entry of an order dismissing the LCC complaint against the store. Reversed and remanded for further proceedings consistent this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, the store is awarded taxable costs under MCR 7.219. Hoekstra, P.J., and K. F. Kelly, J., concurred with Murphy, J. Brang, Inc. v. Liquor Control Comm. , unpublished order of the Court of Appeals, entered August 23, 2016 (Docket No. 333007). As contained in the complaint, the alleged violations of Rule 436.1011(6)(e) were separated into 27 numbered paragraphs that grouped together certain products that had been confiscated from the store by the LCC. The 27 paragraphs, or charges, identified and classified the following items or products as narcotics paraphernalia: (1) 46 assorted metal pipes; (2) 12 glass tube pipes; (3) 3 bowl wood pipes; (4) 5 wood metal folding pipes; (5) 2 magnet pipes; (6) 13 one-hitter pipes; (7) 3 splitter lighters and 5 "splitters-EZ-split"; (8) 3 glass pipes and 2 yellow glass pipes; (9) 3 stone pipes and 1 pipe head; (10) 1 pack of 4 glass tubes with 4 accessories; (11) 1 dish of assorted glass screens, 1 pack of assorted rubber accessories, 1 pack of assorted glass screens in baggies, 1 dish of metal screens, and 1 pack of 5 metal pipe fittings; (12) 69 assorted glass pipes; (13) 12 glass tube pipes; (14) 29 glass bongs; (15) 2 "vehicle glass and plastic/metal bong/pipe system"; (16) 2 medium glass pipes; (17) 3 boxes of "Toke Token Papers and 1 box of Randy's wired papers (both opened)"; (18) 1 open box of letter postal scales and 15 box pocket scales; (19) 8 grinders; (20) 1 Tootsie Roll storage container with false bottom; (21) 1 magic flight kit; (22) 1 "stok vaporizer" and 3 "eclipse Vake kits"; (23) 4 open boxes of Zig Zag wraps; (24) 2 theme bongs; (25) 8 large glass bongs; (26) 3 colored plastic bongs; and (27) "1 dish chicken bones 2 pipes, 1 dish 9mm 1 pipe, 1 dish 12 glass pipes, 1 dish 9 glass pipes, 1 dish of 31 [3-inch] glass pipes, 1 dish of 13 [4-inch] and [6-inch] glass pipes and 1 dish of 21 glass pipes 8mm[.]" MCL 333.7453(1) provides that "a person shall not sell or offer for sale drug paraphernalia, knowing that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance." MCL 333.7451 states that "drug paraphernalia" is "any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance[.]" MCL 333.7451(a) through (m) set forth a nonexhaustive list of examples, with each example providing that the item must be "specifically designed" for use in connection with a controlled substance. Also, MCL 24.306, which is part of the APA, provides: (1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following: (a) In violation of the constitution or a statute. (b) In excess of the statutory authority or jurisdiction of the agency. (c) Made upon unlawful procedure resulting in material prejudice to a party. (d) Not supported by competent, material and substantial evidence on the whole record. (e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. (f) Affected by other substantial and material error of law. (2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings. MCL 24.232(5) provides: A guideline, operational memorandum, bulletin, interpretive statement, or form with instructions is not enforceable by an agency, is considered merely advisory, and shall not be given the force and effect of law. An agency shall not rely upon a guideline, operational memorandum, bulletin, interpretive statement, or form with instructions to support the agency's decision to act or refuse to act if that decision is subject to judicial review. A court shall not rely upon a guideline, operational memorandum, bulletin, interpretive statement, or form with instructions to uphold an agency decision to act or refuse to act. The store does not specifically argue that the term "narcotics paraphernalia" is unconstitutionally vague; however, the store's complaints about Rule 436.1011(6)(e), e.g., that there is no definition of narcotics paraphernalia and that there are inadequate standards or principles governing its application, are essentially in the nature of a vagueness challenge. In part, MCL 333.7107 provides today, and provided in 1978, that a "narcotic drug" encompasses: (a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate. (b) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in subdivision (a), but not including the isoquinoline alkaloids of opium. Other courts have made the same observation. For instance, in United States v. Miller , 179 F.3d 961, 965 n. 7 (C.A. 5, 1999), the United States Court of Appeals for the Fifth Circuit noted, "We assume that the Government is aware that marijuana is not a narcotic and that references in its brief are meant to include all drugs, and not just narcotics...." And the dissent in People v. Summit , 183 Colo. 421, 430, 517 P.2d 850 (1974), stated that "[a]s candidly conceded by the majority opinion, the overwhelming weight of eminent scientific authority points to the conclusion that marijuana is not a Narcotic drug."

Gadola, P.J. This case involves the offense of possession with intent to deliver a controlled substance, as set forth by MCL 333.7401 of the controlled substances act (CSA), MCL 333.7101 et seq. , Article 7 of the Public Health Code, MCL 333.1101 et seq. The prosecution appeals by leave granted an order of the trial court containing three rulings. First, the trial court ruled that, under People v. Wolfe , 440 Mich. 508, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992), defendant was entitled to the use of a former version of the applicable model jury instruction, M. Crim. J.I. 12.3, rather than the current version, which was amended effective August 2016. Next, the trial court ruled that, under People v. Gridiron , 185 Mich.App. 395, 460 N.W.2d 908 (1990) ( Gridiron I ), the offense of possession of a controlled substance (simple possession), MCL 333.7403, is a lesser included offense of the offense of possession with intent to deliver a controlled substance. The trial court also determined that defendant would be entitled to a directed verdict if he produced evidence of a valid prescription because having a prescription is a defense to prosecution for simple possession under MCL 333.7403(1). Finally, the trial court ruled that, under People v. Pegenau , 447 Mich. 278, 523 N.W.2d 325 (1994), defendant bore the burden to produce some competent evidence of his authority to possess the controlled substances, after which the burden of persuasion would shift to the prosecution to prove that defendant lacked that authority beyond a reasonable doubt. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I. BACKGROUND FACTS AND PROCEDURAL HISTORY Defendant is charged with one count of possession with intent to deliver less than 50 grams of a mixture containing acetaminophen and hydrocodone, MCL 333.7401(2)(a)(iv ), and one count of possession with intent to deliver Methylin, MCL 333.7401(2)(b)(ii ). At the preliminary examination, the parties stipulated that defendant had possessed the controlled substances at issue and that he had admitted to the police that he had intended to sell the substances. Defense counsel indicated that defendant had a valid prescription for both substances, and the prosecution conceded that defendant "has a prescription." Defendant moved to dismiss the charges at the preliminary examination, arguing that simple possession, MCL 333.7403(1), is a lesser included offense of possession with intent to deliver a controlled substance under Gridiron I and that having a valid prescription exempts a defendant from prosecution for simple possession. The prosecution argued that Gridiron I was no longer binding because a more recent case, People v. Lucas , 188 Mich.App. 554, 470 N.W.2d 460 (1991), held that simple possession was merely a cognate lesser offense of possession with intent to deliver a controlled substance and that having a valid prescription was not a defense to prosecution for possession with intent to deliver a controlled substance under MCL 333.7401(1). Following a hearing, the district court agreed with the prosecution and bound defendant over to the circuit court on the charged offenses. Defendant subsequently moved in the circuit court to modify the current model jury instruction, M. Crim. J.I. 12.3, arguing that the instruction mischaracterized the law because it required a defendant to produce evidence that he or she was authorized to deliver a controlled substance to avoid prosecution under MCL 333.7401, while Wolfe required the prosecution to prove that a defendant lacked authority to possess a controlled substance as an element of the crime of possession with intent to deliver a controlled substance. The prosecution responded that the former version of M. Crim. J.I. 12.3 included the element that "the defendant was not legally authorized to possess " the controlled substance, but the instruction was amended in August 2016 to replace the word "possess" with "deliver," which, the prosecution argued, accurately reflected the law as set forth in MCL 333.7401. The prosecution agreed that having a valid prescription exempts a defendant from prosecution for simple possession under the plain language of MCL 333.7403(1) but argued that the plain language of MCL 333.7401(1) does not provide that exemption. Additionally, citing Justice BOYLE'S concurring opinion in Pegenau , the prosecution contended that defendant bore the burden of both production and persuasion under MCL 333.7531(1) to prove that he was authorized to possess and deliver the controlled substances. The trial court concluded that it was bound by the Wolfe Court's formulation of the elements of the offense of possession with intent to deliver a controlled substance. One of the elements set forth by Wolfe requires the prosecution to show that a defendant was not authorized to possess the controlled substance. The trial court therefore agreed to use the former, rather than the current, version of M. Crim. J.I. 12.3. The trial court also concluded that simple possession is a lesser included offense of possession with intent to deliver a controlled substance under Gridiron I . Therefore, defendant would be entitled to a directed verdict under the possession with intent to deliver a controlled substance statute if he could adequately establish the existence of a valid prescription for each substance because having a valid prescription is a defense to prosecution for simple possession. Finally, the trial court rejected the prosecution's position that MCL 333.7531(1) places the burdens of production and persuasion on a defendant to prove authorization, concluding that under Pegenau , a defendant need only produce some competent evidence of authorization before the burden of persuasion shifts back the prosecution to prove lack of authorization beyond a reasonable doubt. II. JURY INSTRUCTIONS The prosecution contends that the trial court erred by ruling that defendant was entitled to use the former version of M. Crim. J.I. 12.3 because the current version accurately states the law. We review de novo claims of instructional error involving legal questions and issues of statutory interpretation. People v. Bush , 315 Mich.App. 237, 243, 890 N.W.2d 370 (2016). A criminal defendant "is entitled to have a properly instructed jury consider the evidence against him or her." People v. Dobek , 274 Mich.App. 58, 82, 732 N.W.2d 546 (2007). Jury instructions must set forth all of the elements of any charged offense and must include any material issues, theories, or defenses supported by the evidence. Bush , 315 Mich.App. at 243, 890 N.W.2d 370. Model jury instructions do not have the force or effect of a court rule, MCR 2.512(D)(1), but pertinent portions of the instructions "must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party," MCR 2.512(D)(2). The current model jury instruction for possession with intent to deliver a controlled substance is M. Crim. J.I. 12.3, which states, in pertinent part, the following: (1) The defendant is charged with the crime of illegally possessing with intent to deliver [state weight ] of a [mixture containing a] controlled substance. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt: (2) First, that the defendant possessed [identify controlled substance ]. (3) Second, that the defendant knew that [he / she] possessed a controlled substance. (4) Third, that the defendant intended to deliver the controlled substance to someone else. (5) Fourth, that the controlled substance that the defendant intended to deliver [was in a mixture that] weighed (state weight ). [ (6) Fifth, that the defendant was not legally authorized to deliver the controlled substance.]3 3 This paragraph should be given only when the defense has presented some competent evidence beyond a mere assertion that the defendant was authorized to deliver the substance. If the defense presents such evidence, the prosecution must prove lack of authorization beyond a reasonable doubt. People v. Pegenau , 447 Mich. 278, 523 N.W.2d 325 (1994). [Fourth and fifth emphasis added; brackets in original.] Before the August 2016 amendment of M. Crim. J.I. 12.3, Paragraph (6) stated the following: [ (6) Fifth, that the defendant was not legally authorized to possess this substance.]4 4 This paragraph should be given only when the defense has presented some competent evidence beyond a mere assertion that the defendant was authorized to possess the substance. If the defense presents such evidence, the prosecution must prove lack of authorization beyond a reasonable doubt. People v. Pegenau , 447 Mich. 278, 523 N.W.2d 325 (1994).] [Emphasis added; brackets in original.] The Committee on Model Criminal Jury Instructions explained that it amended M. Crim. J.I. 12.3 to "correct the final element" of the instruction. The question before us is whether this amendment accurately reflects Michigan law. MCL 333.7401 sets forth the offense of possession with intent to deliver a controlled substance and provides, in pertinent part, the following: (1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. In Wolfe , 440 Mich. at 516-517, 489 N.W.2d 748, our Supreme Court set forth the following elements for the offense of possession with intent to deliver cocaine: "(1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture weighing less than fifty grams, (3) that defendant was not authorized to possess the substance, and (4) that defendant knowingly possessed the cocaine with the intent to deliver." We are bound to follow decisions of the Supreme Court unless those decisions have clearly been overruled or superseded. People v. Beasley , 239 Mich.App. 548, 556, 609 N.W.2d 581 (2000). The principle of stare decisis requires courts to reach the same result as in one case when the same or substantially similar issues are presented in another case with different parties. Stare decisis does not arise from a point addressed in obiter dictum. However, an issue that is intentionally addressed and decided is not dictum if the issue is germane to the controversy in the case, even if the issue was not necessarily decisive of the controversy in the case. This Court is bound by stare decisis to follow the decisions of our Supreme Court. [ Griswold Props., LLC v. Lexington Ins. Co. , 276 Mich.App. 551, 563, 741 N.W.2d 549 (2007) (citations omitted).] Wolfe has not been overruled, and the language of MCL 333.7401(1) has not changed since the Supreme Court issued the opinion in 1992. However, we conclude that the formulation of the elements set forth by Wolfe is not alone dispositive because (1) Wolfe is factually distinguishable from the instant case and did not address the issue presented here, (2) our Supreme Court has also recited the elements of possession with intent to deliver a controlled substance in a way that does not include as an element that a "defendant was not authorized to possess the substance," and (3) the plain language of MCL 333.7401(1) does not support a conclusion that possessing a valid prescription is relevant to whether a defendant committed the offense of possession with intent to deliver a controlled substance. In Wolfe , 440 Mich. at 511, 489 N.W.2d 748, our Supreme Court analyzed whether sufficient evidence supported the defendant's conviction for possession with intent to deliver cocaine. After articulating the elements of the offense, the Wolfe Court explained that the defendant "challenged the sufficiency of the evidence only with respect to the fourth element-that he knowingly possessed cocaine with intent to deliver." Id. at 516-517, 489 N.W.2d 748. The Court did not analyze the other articulated elements and did not address the issues we are faced with today, those being whether a prescription authorizing a defendant to possess a controlled substance exempts a defendant from prosecution for the offense of possession with intent to deliver a controlled substance or whether a defendant must instead show authorization to deliver the substance to avoid prosecution. We conclude that we are not bound by the rule of stare decisis to accept the formulation of the elements set forth in Wolfe because the case did not involve "the same or substantially similar issues" as those presented here. Griswold Props. , 276 Mich.App. at 563, 741 N.W.2d 549. Moreover, the Wolfe Court did not construe MCL 333.7401 or otherwise analyze how it determined that the earlier mentioned four elements were the elements of the offense. Id. at 516-517, 489 N.W.2d 748. The Wolfe Court cited People v. Lewis , 178 Mich.App. 464, 468, 444 N.W.2d 194 (1989), for the elements of the offense, and the Lewis Court merely adopted the elements of the offense articulated in People v. Acosta , 153 Mich.App. 504, 511-512, 396 N.W.2d 463 (1986). Both Acosta and Lewis involved cocaine and cited the same jury instruction, CJI 12:2:00, to include as an element of the offense "that the defendant was not authorized by law to possess the substance." Acosta , 153 Mich.App. at 511, 396 N.W.2d 463 (emphasis added). Accordingly, the elements of possession with intent to deliver a controlled substance as articulated in Wolfe were not derived from statutory analysis. Additionally, Wolfe and the line of cases that provided authority for the Wolfe Court's formulation of the elements all involved cocaine rather than a controlled substance that could be obtained by a valid prescription, as is the case here. Next, the formulation of the elements in Wolfe is not the only formulation that our Supreme Court has articulated for the offense of possession with intent to deliver a controlled substance. In People v. Crawford , 458 Mich. 376, 389, 582 N.W.2d 785 (1998), our Supreme Court stated that the elements of the offense of possession with intent to deliver cocaine are as follows: "(1) the defendant knowingly possessed a controlled substance; (2) the defendant intended to deliver this substance to someone else; (3) the substance possessed was cocaine and the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed between 50 and 225 grams." The Crawford Court cited CJI2d 12.3 as its authority for these elements and did not independently construe the statutory language of MCL 333.7401. Id . Our Supreme Court and a panel of this Court in published opinions have both subsequently cited Crawford for this formulation of the elements of the offense. See People v. Johnson , 466 Mich. 491, 499-500, 647 N.W.2d 480 (2002) (stating the elements of the offense in the context of analyzing an entrapment defense); People v. Williams , 268 Mich.App. 416, 419-420, 707 N.W.2d 624 (2005) (reviewing the defendant's challenge to the sufficiency of the evidence supporting his conviction of possession with intent to deliver marijuana). The fact that there are two different formulations used by this Court and our Supreme Court supports that we should not only consider Wolfe 's formulation of the elements when assessing whether the current version of M. Crim. J.I. 12.3 accurately states the applicable law. We therefore also find it necessary to review the language of the statute itself. When interpreting statutes, courts must assess statutory language in context and must construe the language according to its plain and ordinary meaning. People v. Lowe , 484 Mich. 718, 721-722, 773 N.W.2d 1 (2009). If statutory language is unambiguous, courts must apply the language as written and further construction is neither required nor permitted. People v. Borchard-Ruhland , 460 Mich. 278, 284, 597 N.W.2d 1 (1999). "If a word is defined by statute, the word must be applied in accordance with its statutory definition." Bush , 315 Mich.App. at 246, 890 N.W.2d 370. "It is well settled that criminal statutes are to be strictly construed, absent a legislative statement to the contrary." People v. Boscaglia , 419 Mich. 556, 563, 357 N.W.2d 648 (1984). Statutes that relate to the same are read in pari materia . Bloomfield Twp. v. Kane , 302 Mich.App. 170, 176, 839 N.W.2d 505 (2013). "This general rule of statutory interpretation requires courts to examine the statute at issue in the context of related statutes," and statutes that involve the same subject matter are in pari materia and "must be construed together for purposes of determining legislative intent." Id . Generally, when statutory language is included in one statutory section but omitted from another, we presume that the drafters acted intentionally to include or exclude the language. People v. Peltola , 489 Mich. 174, 185, 803 N.W.2d 140 (2011). As previously noted, the pertinent part of the possession with intent to deliver a controlled substance statute, MCL 333.7401(1), states the following: Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance , a prescription form, or a counterfeit prescription form. [Emphasis added.] Considering this sentence, there are two classes of crimes defined by MCL 333.7401(1). First, and not at issue in this case, it is a crime to "manufacture, create, [or] deliver" the defined substances. Second, it is a crime to "possess with intent to manufacture, create, or deliver " the defined substances. The phrase "with intent to manufacture, create, or deliver" modifies the word "possess." There are no other words modifying the word "possess." As the prosecution points out, the statute does not include a modifier that refers to lawful or unlawful possession. Accordingly, the statute is directed at the evil of possessing "a controlled substance, a prescription form, or a counterfeit prescription form" with a particular intent-the intent to "manufacture, create, or deliver" the substance-regardless of whether the possession would otherwise be lawful or unlawful if the person lacked that particular intent. In contrast, the crime of simple possession, which is defined by MCL 333.7403(1), provides the following: A person shall not knowingly or intentionally possess a controlled substance , a controlled substance analogue, or a prescription form unless the controlled substance , controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.[ ][Emphasis added.] This statute makes it a crime to possess a controlled substance "knowingly or intentionally" but creates an exception for a person who has obtained the substance "from, or pursuant to, a valid prescription ...." Id. The statute also allows a person to possess a controlled substance if the possession is "otherwise authorized by this article." The simple-possession statute is therefore directed at the evil of mere possession of these substances, unless a person is legally authorized to possess them. A person's actual or intended use is irrelevant to the crime of simple possession; unlawful possession is the prohibited conduct. See also People v. Hartuniewicz , 294 Mich.App. 237, 246, 816 N.W.2d 442 (2011) (" MCL 333.7403(1) proscribes the knowing or intentional possession of a controlled substance without authorization."). There is no such exception in MCL 333.7401 that negates culpability because of a valid prescription. The legality of a person's possession, by itself, is irrelevant to the crime of possession with intent to deliver a controlled substance. Rather the only statutory exception to this offense is created by the opening phrase: "Except as authorized by this article ...." See MCL 333.7401(1). Under the CSA, a person must meet certain requirements before he or she may lawfully deliver or intend to deliver a controlled substance. See MCL 333.7303. Before considering these requirements, however, we must first examine several pertinent statutory definitions. The CSA defines the terms "deliver" and "delivery" as "the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship." MCL 333.7105(1). " 'Dispense' means to deliver or issue a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner ...." MCL 333.7105(3). The CSA further defines the term "distribute" as "to deliver other than by administering or dispensing a controlled substance." MCL 333.7105(5). " 'Ultimate user' means an individual who lawfully possesses a controlled substance for personal use or for the use of a member of the individual's household ...." MCL 333.7109(8). The CSA defines "person" as "a person as defined in [ MCL 333.1106 ] or a governmental entity." MCL 333.7109(1). And MCL 333.1106(4) defines "person" as "an individual, partnership, cooperative, association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity." MCL 333.7101(1) states that "[e]xcept as otherwise provided in [ MCL 333.7341 ], ... the words and phrases defined in sections 7103 to 7109 have the meanings ascribed to them in those sections." MCL 333.7303 provides, in relevant part, the following: (1) A person who manufactures, distributes, prescribes, or dispenses a controlled substance in this state or who proposes to engage in the manufacture, distribution , prescribing, or dispensing of a controlled substance ... shall obtain a license issued by the administrator in accordance with the rules. ... (2) A person licensed by the administrator under this article to manufacture, distribute, prescribe, dispense, or conduct research with controlled substances may possess, manufacture, distribute, prescribe, dispense, or conduct research with those substances to the extent authorized by its license and in conformity with the other provisions of this article. * * * (4) The following persons need not be licensed and may lawfully possess controlled substances or prescription forms under this article: (a) An agent or employee of a licensed manufacturer, distributor, prescriber, or dispenser of a controlled substance if acting in the usual course of the agent's or employee's business or employment. (b) A common or contract carrier or warehouseman, or an employee thereof, whose possession of a controlled substance or prescription form is in the usual course of business or employment. (c) An ultimate user or agent in possession of a controlled substance or prescription form pursuant to a lawful order of a practitioner or in lawful possession of a schedule 5 substance. (5) The administrator may waive or include by rule the requirement for licensure of certain manufacturers, distributors, prescribers, or dispensers, if it finds the waiver or inclusion is consistent with the public health and safety. [Emphasis added.] Therefore, under MCL 333.7303(1), once a person "proposes to engage" in the distribution or dispensing, i.e., the "delivery" of a controlled substance, that person generally must obtain a license to do so lawfully. See also MCL 333.7105(3) and (5). The CSA does not define the term "proposes," but "when a term is not defined in a statute, the dictionary definition of the term may be consulted or examined," which "assists the goal of construing undefined terms in accordance with their ordinary and generally accepted meanings." Kane , 302 Mich.App. at 175, 839 N.W.2d 505. Merriam-Webster's Collegiate Dictionary (11th ed.) defines the word "propose" as "to form or put forward a plan or intention." In other words, a person who forms an intention to deliver a controlled substance generally must obtain a license to do so under MCL 333.7303(1). MCL 333.7303(4) and (5) provide limited exceptions to the general licensure requirement in MCL 333.7303(1). MCL 333.7303(4) identifies three categories of persons who "need not be licensed and may lawfully possess controlled substances or prescription forms under this article[.]" First, an "agent or employee" of a person licensed under MCL 333.7303(1) need not be licensed so long as the agent or employee is "acting in the usual course of the agent's or employee's business or employment." MCL 333.7303(4)(a). Second, a "common or contract carrier or warehouseman, or an employee thereof" need not be licensed so long as such a person's "possession of a controlled substance ... is in the usual course of business or employment." MCL 333.7303(4)(b). Third, an "ultimate user or agent" need not obtain a license to possess a controlled substance under MCL 333.7303(1) so long as his or her possession is "pursuant to a lawful order of a practitioner ...." MCL 333.7303(4)(c). Finally, MCL 333.7303(5) states that the administrator may waive the licensure requirement for "certain manufacturers, distributors, prescribers, or dispensers" if it determines the waiver is "consistent with the public health and safety." Reading the above statutes in pari materia , we conclude that MCL 333.7401(1) makes it a crime to possess a controlled substance-whether lawfully or not-with the intent to deliver that substance unless the person possessing the controlled substance either (1) has obtained a valid license to deliver the substance under MCL 333.7303(1) and (2), or (2) falls within one of the limited exceptions provided by MCL 333.7303(4) and (5). The statutory offense is aimed at preventing a person from possessing a controlled substance with unlawful intent regardless of whether the possession would otherwise be lawful absent this intent. See MCL 333.7401(1) ; Kane , 302 Mich.App. at 176, 839 N.W.2d 505. Intent to deliver may be "inferred from the quantity of narcotics in a defendant's possession, from the way in which those narcotics are packaged, and from other circumstances surrounding the arrest." Wolfe , 440 Mich. at 524, 489 N.W.2d 748. Contrary to defendant's argument, a person is not criminally culpable under MCL 333.7401 for merely possessing a prescription medication; culpability arises when a person possessing a controlled substance displays overt actions showing an intent to unlawfully deliver the substance to someone else. Therefore, the current version of M. Crim. J.I. 12.3, which phrases the relevant inquiry as whether a defendant was legally authorized to deliver the controlled substance as opposed to being legally authorized to possess the controlled substance, comports with the statutory definition of the offense. M. Crim. J.I. 12.3 does not conflict with Michigan caselaw because both this Court and our Supreme Court have recently employed at least two formulations of the elements of possession with intent to deliver a controlled substance. See Wolfe , 440 Mich. at 516-517, 489 N.W.2d 748 ; Crawford , 458 Mich. at 389, 582 N.W.2d 785. Only one of those formulations includes as an element that a defendant was not authorized to possess the controlled substance, and that formulation was developed in the context of offenses involving cocaine, in which the possible possession of a prescription was not at issue. See Wolfe , 440 Mich. at 516-517, 489 N.W.2d 748. The current version of M. Crim. J.I. 12.3 accurately states the law and should be used in this case. MCR 2.512(D)(2). Therefore, the trial court erred by granting defendant's motion to modify the jury instruction. III. LESSER INCLUDED OFFENSE The prosecution next argues that the trial court erred by concluding that simple possession is a lesser included offense of possession with intent to deliver a controlled substance. Defendant argues that because having a valid prescription exempts a defendant from prosecution under the simple-possession statute, MCL 333.7403, so such a prescription should likewise exempt a defendant from prosecution under MCL 333.7401. We review de novo questions of law, including whether an offense constitutes a lesser included offense. People v. Heft , 299 Mich.App. 69, 73, 829 N.W.2d 266 (2012). As a preliminary matter, defendant argues that this issue is not ripe for review because neither party has moved for a lesser-included-offense instruction on simple possession. To determine whether an issue is justiciably ripe, "a court must assess whether the harm asserted has matured sufficiently to warrant judicial intervention." People v. Bosca , 310 Mich.App. 1, 56, 871 N.W.2d 307 (2015) (quotation marks and citation omitted), held in abeyance --- Mich. ----, 872 N.W.2d 492 (2015). "Inherent in this assessment is the balancing of any uncertainty as to whether [a party] will actually suffer future injury, with the potential hardship of denying anticipatory relief." Bosca , 310 Mich.App. at 56, 871 N.W.2d 307 (quotation marks and citation omitted). Stated another way, the ripeness doctrine precludes adjudication of merely hypothetical claims. Id. at 57, 871 N.W.2d 307. In the order appealed, the trial court concluded that simple possession is a lesser included offense of possession with intent to deliver a controlled substance. The court then concluded that, because having a valid prescription is a defense to the offense of simple possession, the defense was equally applicable to the greater charge of possession with intent to deliver a controlled substance. The trial court explained that it would enter a directed verdict against the prosecution if defendant produced evidence that he had a valid prescription to possess the controlled substances at issue. Given the trial court's ruling, the prosecution will suffer future harm, and its injury is not merely hypothetical because the trial court has indicated precisely what it intends to do. Furthermore, the parties have thoroughly briefed this issue, and it is well framed for a decision by this Court. We therefore conclude that the harm asserted warrants judicial intervention. Id. at 56, 871 N.W.2d 307. "A necessarily lesser included offense is an offense whose elements are completely subsumed in the greater offense." People v. Mendoza , 468 Mich. 527, 540, 664 N.W.2d 685 (2003). In contrast, cognate offenses share with a greater offense several elements and are of the same class or category, but they contain elements not found in the greater offense. Id. at 543, 664 N.W.2d 685. A determination of whether a lesser offense is necessarily included within a greater offense "requires a comparison of the elements of the offenses ...." People v. Jones , 497 Mich. 155, 164, 860 N.W.2d 112 (2014). In Gridiron I , 185 Mich.App. at 397, 400, 460 N.W.2d 908, this Court addressed whether a defendant charged with possession with intent to deliver cocaine was entitled to a jury instruction on simple possession and stated, "[I]t is evident that simple possession is a necessarily lesser included offense to possession with intent to deliver since the only distinguishing characteristic is the additional element of the intent to deliver in the greater offense." The Court opined that "one obviously cannot possess a controlled substance with the intent to deliver it without having also committed the offense of possession." Id. at 401, 460 N.W.2d 908. Likewise, in People v. Torres (On Remand) , 222 Mich.App. 411, 416-417, 564 N.W.2d 149 (1997), citing People v. Gridiron (On Rehearing) , 190 Mich.App. 366, 369, 475 N.W.2d 879 (1991) ( Gridiron II ), this Court stated that "[p]ossession of more than 650 grams of cocaine has been considered to be a necessarily included lesser offense of possession with intent to deliver that amount of cocaine, because the only distinguishing characteristic is the additional element of the intent to deliver." The prosecution argues that this Court's opinion in Lucas , 188 Mich.App. 554, 470 N.W.2d 460, controls. In Lucas , this Court stated that "[p]ossession of a controlled substance is a cognate lesser included offense of possession with intent to deliver involving a differently categorized statutory amount." Id. at 581, 470 N.W.2d 460. The Lucas Court made this statement without any analysis, but it cited to People v. Marji , 180 Mich.App. 525, 531, 447 N.W.2d 835 (1989), remanded on other grounds by People v. Thomas , 439 Mich. 896, 478 N.W.2d 445 (1991), and People v. Leighty , 161 Mich.App. 565, 578-579, 411 N.W.2d 778 (1987). In Marji , 180 Mich.App. at 531, 447 N.W.2d 835, this Court explained that delivery of a lesser amount of cocaine was a cognate lesser offense of delivery of over 225 grams of cocaine because the offenses "contain essential elements not present in the greater offense, namely proof of lesser quantities of controlled substances." In Leighty , 161 Mich.App. at 578, 411 N.W.2d 778, this Court treated possession of less than 50 grams of cocaine as a cognate lesser offense of possession with intent to deliver 225 grams or more of cocaine. These cases thus stand for the proposition that simple possession can be a lesser included offense of possession with intent to deliver the same amount of a controlled substance, but if the offenses involve differently categorized statutory amounts, possession will be treated as a cognate lesser offense. Both Gridiron I and Torres involved the offense of possession with intent to deliver cocaine, a drug which could not be obtained using a valid prescription. However, comparing the elements of the two offenses, we agree that, absent a difference in the amount of the substance involved, the elements of simple possession are completely subsumed within the elements of possession with intent to deliver a controlled substance. The elements of possession with intent to deliver a controlled substance under MCL 333.7401 are (1) that a defendant possessed a controlled substance, (2) that the defendant knew he or she possessed the controlled substance, (3) that the defendant intended to deliver the controlled substance to someone else, and (4) the amount of the controlled substance, if applicable. See Crawford , 458 Mich. at 389, 582 N.W.2d 785 ; M. Crim. J.I. 12.3 ; MCL 333.7401. In comparison, the elements of simple possession are (1) that a defendant possessed a controlled substance, (2) that the defendant knew he or she possessed the controlled substance, and (3) the amount of the controlled substance, if applicable. M. Crim. J.I. 12.5 ; MCL 333.7403. Because the elements of simple possession are completely subsumed within the elements of the greater offense of possession with intent to deliver a controlled substance, the trial court did not err by concluding that simple possession is a necessarily included lesser offense of possession with intent to deliver a controlled substance. See Mendoza , 468 Mich. at 540, 664 N.W.2d 685. The trial court went astray, however, by then concluding that evidence of a valid prescription, which exempts a defendant from prosecution under the simple-possession statute, MCL 333.7403(1), constitutes an equally applicable defense to the greater offense of possession with intent to deliver a controlled substance. In Pegenau , 447 Mich. 278, 523 N.W.2d 325, our Supreme Court analyzed the elements of simple possession under MCL 333.7403(1). In his lead opinion, Justice MALLETT wrote that the elements of this offense were limited to whether a person "knowingly or intentionally possess[es] a controlled substance ...." Id. at 292, 523 N.W.2d 325 (opinion by MALLET , J.) (quotation marks omitted). Justice MALLETT explained that the "presence of a prescription is analogous to an affirmative defense," id. at 289, so the statutory "language concerning a prescription or other authorization refers to an exemption rather than an element of the crime," id. at 292, 523 N.W.2d 325. In Hartuniewicz , 294 Mich.App. at 245-246, 816 N.W.2d 442, this Court further explained: Before Pegenau , this Court repeatedly considered the burden of proof in relation to exceptions to the CSA. And, having done so, this Court consistently ruled that these exceptions are affirmative defenses, not elements of the underlying offense. See People v. Bates , 91 Mich.App. 506, 513-516, 283 N.W.2d 785 (1979) (the defendant has the burden to prove the exemption now located in MCL 333.7531 [2] because the lack of authorization to deliver a controlled substance is not an element of a delivery charge); People v. Bailey , 85 Mich.App. 594, 596, 272 N.W.2d 147 (1978) (same); People v. Beatty , 78 Mich.App. 510, 513-515, 259 N.W.2d 892 (1977) (the CSA creates a general prohibition on the delivery of controlled substances and the defendant has the burden to establish a specific exception); People v. Dean , 74 Mich.App. 19, 21-28, 253 N.W.2d 344 (1977), mod in part on other grounds 401 Mich. 841, 282 N.W.2d 924 (1977) (the Legislature did not unconstitutionally shift the burden of proof onto defendants under the CSA; defendants merely have the burden of establishing statutory exceptions as an affirmative defense). The common theme of these opinions is that exceptions, exemptions, and exclusions from the legal definition of "controlled substance" are not elements of a controlled substance offense. Rather, they are affirmative defenses that a defendant may present to rebut the state's evidence. [Brackets in original.] The presence of a valid prescription thus constitutes an exemption from prosecution for simple possession, not an element of the offense. See MCL 333.7403(1) ("A person shall not knowingly ... possess a controlled substance ... unless the controlled substance ... was obtained directly from, or pursuant to, a valid prescription ...."). MCL 333.7401(1) likewise contains an exception, but it is not based on the holding of a valid prescription. Rather, 333.7401(1) provides that, "[e]xcept as authorized by this article , a person shall not ... possess with intent to ... deliver a controlled substance ...." (Emphasis added.) As described earlier in this opinion, a person may possess a controlled substance with intent to deliver the same if the person either (1) holds a valid license to deliver the substance under MCL 333.7303(1) and (2), or (2) falls within one of the limited exceptions provided by MCL 333.7303(4) and (5). Therefore, although the trial court did not err by concluding that simple possession is a lesser included offense of possession with intent to deliver a controlled substance, it erroneously concluded that having a valid prescription, which exempts a defendant from prosecution for simple possession under MCL 333.7403(1), also exempts a defendant from prosecution for the offense of possession with intent to deliver a controlled substance under MCL 333.7401(1). Instead, to establish the exception under MCL 333.7401(1), a defendant must show that he or she was authorized to deliver the controlled substance possessed by either having a valid license to deliver the substance or by falling within one of the exceptions to the general licensure requirement. See MCL 333.7303(1), (4), and (5). IV. BURDEN OF PROOF Finally, the prosecution argues that the trial court erred by concluding that, to establish an exemption or exception under the CSA, defendant bore only the burden to produce some competent evidence of his authorization to possess or deliver the controlled substances, after which the burden of persuasion shifted to the prosecution to prove lack of authorization beyond a reasonable doubt. The prosecution contends that the burdens of production and persuasion should be placed on defendant under MCL 333.7531. Issues regarding the allocation of the burden of proof under the CSA involve "the interpretation and coordination of various provisions of the CSA," which presents an issue of statutory interpretation that we review de novo. Hartuniewicz , 294 Mich.App. at 241, 816 N.W.2d 442. MCL 333.7531 sets forth the presumptions and burdens of proof applicable to a defendant claiming an exemption or exception under the CSA and provides the following: (1) It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it. (2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut that presumption. [Emphasis added.] In People v. Hartwick , 498 Mich. 192, 216, 870 N.W.2d 37 (2015), our Supreme Court explained that there are two distinct legal concepts involved in the assignment of the burden of proof: The first, the burden of production, requires a party to produce some evidence of that party's propositions of fact. The second, the burden of persuasion, requires a party to convince the trier of fact that those propositions of fact are true. The prosecution has the burden of proving every element of a charged crime beyond a reasonable doubt. This rule of law exists in part to ensure that there is a presumption of innocence in favor of the accused ... and its enforcement lies at the foundation of the administration of our criminal law. To place the burden on a criminal defendant to negate a specific element of a crime would clearly run afoul of this axiomatic, elementary, and undoubted principle of law. [Quotation marks and citations omitted; ellipsis in original.] In Pegenau , 447 Mich. 278, 523 N.W.2d 325, our Supreme Court addressed whether MCL 333.7531 could constitutionally place the burden of proving the existence of a valid prescription on a defendant charged with unlawful possession of Valium and Xanax. The defendant challenged the constitutionality of MCL 333.7531 by "claiming its allocation of the burden of proof regarding an exemption constitutes an impermissible presumption." Id. at 288, 523 N.W.2d 325 (opinion by MALLETT , J.). Citing Patterson v. New York , 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), Justice MALLETT explained in his lead opinion that "a statute that places the burden of proof on a defendant is not violative of due process if the fact the defendant is required to prove is not determinative of an essential element of the crime as defined in the statute." Pegenau , 447 Mich. at 289, 523 N.W.2d 325 (opinion by MALLETT , J.). Justice MALLETT concluded that the presence of a prescription for purposes of MCL 333.7403(1) was not an essential element of simple possession but was instead "analogous to an affirmative defense." Id. Therefore, the lead opinion concluded, the assignment of the burden of proof in MCL 333.7531 did not violate the defendant's constitutional due-process rights. Id. at 293, 523 N.W.2d 325. Relying on People v. Wooster , 143 Mich.App. 513, 517, 372 N.W.2d 353 (1985), People v. Bailey , 85 Mich.App. 594, 596, 272 N.W.2d 147 (1978), and People v. Bates , 91 Mich.App. 506, 516, 283 N.W.2d 785 (1979), Justice MALLETT opined that the burden of proof imposed by MCL 333.7531 first required a defendant to produce "some competent evidence," which required "more than his own mere assertion that he had a prescription." Pegenau , 447 Mich. at 295, 523 N.W.2d 325 (opinion by MALLETT , J.). Justice MALLETT concluded that the defendant had failed to produce evidence sufficient to meet the burden of production under MCL 333.7531. Id. at 300, 523 N.W.2d 325. In doing so, however, he explained that "we have left open the question whether in Michigan [ MCL 333.7531 ] can or should be interpreted to shift to defendant the burden of persuasion in addition to the burden of production." Id. Justices LEVIN and BRICKLEY concurred with Justice MALLETT 's lead opinion. Chief Justice CAVANAGH , in his partial concurrence and partial dissent, wrote that he concurred "in the holding of the lead opinion" but dissented "from its characterization of 'some competent evidence.' " Id. at 304, 523 N.W.2d 325 ( CAVANAGH , C.J., concurring in part and dissenting in part). In his discussion of the relevant statute, Chief Justice CAVANAGH stated: "[T]he defendant may show an exception to or exemption from the statutory mandate by offering some competent evidence of a prescription during trial. At that point, the prosecution is required to establish the contrary beyond a reasonable doubt ." Id. at 307, 523 N.W.2d 325 (emphasis added). Chief Justice CAVANAGH 's opinion, however, was joined only by Justice LEVIN . Justice BOYLE argued in a partial dissenting opinion that the statutory phrase "burden of proof" as used in MCL 333.7531 by its plain terms shifted both the burden of production and persuasion to the defendant to prove an exemption or exception under the CSA. Pegenau , 447 Mich. at 309-310, 523 N.W.2d 325 ( BOYLE , J., concurring in the result). Justice BOYLE stated: I write separately because the lead opinion's interpretation of MCL 333.7531 ignores the plain meaning of the statute. Contrary to its assurances that only the constitutionality of this particular conviction is being addressed, by refusing to recognize that the statute shifts the burdens of production and persuasion onto the defendant, the lead opinion would alter the burden of proof established by the statute. [ Id. (citation omitted).] Justices GRIFFIN and RILEY concurred with Justice BOYLE . Responding to Justice BOYLE 's opinion, Justice MALLETT argued that the phrase "burden of proof" is capable of two alternate meanings: Burden of proof is a term which describes two different concepts; first, the "burden of persuasion," which under traditional view never shifts from one party to the other at any stage of the proceeding, and second, the "burden of going forward with the evidence," which may shift back and forth between the parties as the trial progresses. Far from being plain, the Legislature's use of the term "burden of proof" is ambiguous. Our Court of Appeals has consistently interpreted the language in this statute as shifting only the burden of going forward with the evidence, also known as the burden of production, to the defendant. People v. Bates [91 Mich.App. 506], People v. Bailey [85 Mich.App. 594], and People v. Wooster [143 Mich.App. 513]. [ Id. at 300-301 [523 N.W.2d 325] (opinion by MALLETT , J.) (quotation marks and citation omitted).] Further, citing People v. Dempster , 396 Mich. 700, 242 N.W.2d 381 (1976), and People v. Henderson , 391 Mich. 612, 218 N.W.2d 2 (1974), Justice MALLETT wrote that the Michigan Supreme Court "has interpreted similar statutory provisions as shifting the burden of production, rather than the burden of persuasion" to a defendant. Pegenau , 447 Mich. at 301, 523 N.W.2d 325 (opinion by MALLETT , J.). Justice MALLETT conceded that Dempster and Henderson were decided before the United States Supreme Court decided Patterson , which held that a statute placing the burden of proof on a defendant does not violate due process if the fact the defendant is required to prove is not an essential element of the crime. Id. at 302, 523 N.W.2d 325. However, Justice MALLETT "decline[d] to reinterpret the statute in the guise of 'plain meaning' so that it lines up with the United States Supreme Court's pronouncement, especially without the benefit of argument and briefing by the parties." Id. As an initial matter, we note that a majority of the Supreme Court in Pegenau did not decide whether MCL 333.7531 shifts the burden of persuasion to a defendant claiming an exemption or exception under the CSA. See id. at 300, 523 N.W.2d 325 ("[W]e have left open the question whether in Michigan [ MCL 333.7531 ] can or should be interpreted to shift to defendant the burden of persuasion in addition to the burden of production."). Although Justice MALLETT relied on this Court's opinions in Bates , Bailey , and Wooster , to abstain from ruling that MCL 333.7531 shifted both the burden of production and persuasion to a defendant claiming an exemption or exception under the CSA, these opinions are not binding on this Court. MCR 7.215(J)(1). Further, our Supreme Court's opinions in Dempster and Henderson did not involve the CSA and MCL 333.7531, and as Justice MALLETT noted in his lead opinion, these opinions were decided before the United States Supreme Court decided Patterson . Accordingly, Pegenau and the line of cases cited by Justice MALLETT in his lead opinion do not require us to conclude that only the burden of production falls on a defendant under MCL 333.7531. Instead, we conclude that the articulation of the burden of proof adopted by a majority of our Supreme Court in People v. Mezy , 453 Mich. 269, 551 N.W.2d 389 (1996), applies in this case. In Mezy , our Supreme Court addressed whether successive state and federal prosecutions for conspiracy to possess with intent to deliver cocaine were prohibited by the double jeopardy provisions of the United States and Michigan Constitutions, or by MCL 333.7409 of the CSA, which states, "If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state." In her lead opinion, Justice WEAVER , joined by Justice BOYLE and Justice RILEY , concluded that the "state and federal governments may punish the same offenses," and that the defendants' subsequent state prosecution therefore did not violate the double jeopardy provisions of the state and federal Constitutions. Mezy , 453 Mich. at 281, 551 N.W.2d 389 (opinion by WEAVER , J.). Addressing the possible application of MCL 333.7409, Justice WEAVER then stated the following: We would hold that the defendants bear the burden both of production and persuasion to prevail on their argument that the statute applies to bar a second prosecution. As a general rule, this Court has the power to allocate the burden of proof. People v. D'Angelo , 401 Mich. 167, 182, 257 N.W.2d 655 (1977). Because the statute does not state who shall bear the burden of proof, we are free to assign it as we see fit, as long as we do not transgress the constitutional requirement that we not place on the defendant the burden of persuasion to negate an element of the crime. Patterson v. New York , 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ; People v. Pegenau , 447 Mich. 278, 317, 523 N.W.2d 325 (1994) ( BOYLE , J., concurring in the result). This statutory exclusion does not call into question defendant's guilt or innocence. The defendant is alleging that he should be insulated from prosecution regardless of whether he is guilty. MCL 333.7531 provides: It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it. As in People v. Pegenau , supra , defendant is attempting to establish an exemption or exception to a controlled substances offense. In this situation, the presence of a conviction or acquittal under federal law or the law of another state for the same act is analogous to an affirmative defense. Id. at 289 [523 N.W.2d 325]. Thus, it is appropriate to place the burden of proof by a preponderance of the evidence on the defendant. See D'Angelo , supra at 182 [257 N.W.2d 655]. [ Mezy , 453 Mich. at 282-283 [551 N.W.2d 389] (opinion by WEAVER , J.) (citation omitted).] Justice WEAVER concluded that a remand was required to determine whether the defendants could satisfy this newly established burden of proof under MCL 333.7531. Id. , at 286, 551 N.W.2d 389. Although Justice WEAVER 's opinion was joined in full only by Justices RILEY and BOYLE , Chief Justice BRICKLEY wrote an opinion concurring in part and dissenting in part in which he expressly agreed with the lead opinion's conclusion regarding the applicable burden of proof under MCL 333.7531. See Mezy , 453 Mich. at 286, 551 N.W.2d 389 ( BRICKLEY , C.J., concurring in part and dissenting in part) ("I agree with the decision of the lead opinion to remand the case so that the trial courts may determine whether there were multiple conspiracies for purposes of the statute under the newly articulated burden of proof. Accordingly, I concur with part[ ] ... IV ... of the lead opinion."). Therefore, a majority of our Supreme Court agreed that MCL 333.7531 places both the burden of production and persuasion on a defendant claiming an exemption or exception under the CSA and that a defendant must establish such an exemption or exception by a preponderance of the evidence. As discussed earlier in this opinion, authorization either to possess a controlled substance for purposes of MCL 333.7403(1) or to possess with the intent to deliver a controlled substance for purposes of MCL 333.7401(1) constitutes an exemption or exception to prosecution for those offenses, and the absence of authorization is not an essential element of the crimes. Therefore, under Mezy , 453 Mich. at 282-283, 551 N.W.2d 389 (opinion by WEAVER , J.); id. at 286, 551 N.W.2d 389 ( BRICKLEY , C.J., concurring in part and dissenting in part), defendant bears both the burden of production and the burden of persuasion to establish these exceptions or exemptions and must do so by a preponderance of the evidence. The trial court therefore erred by concluding that, under Pegenau , 447 Mich. 278, 523 N.W.2d 325, defendant bore only the burden to produce some competent evidence of his authority to possess or deliver the controlled substances at issue, after which the burden of persuasion shifted to the prosecution to prove that defendant lacked such authority beyond a reasonable doubt. For the same reason, we also conclude that the footnote accompanying bracketed Paragraph (6) of M. Crim. J.I. 12.3 does not accurately state the law. Citing Pegenau , 447 Mich. 278, 523 N.W.2d 325, the footnote states that Paragraph (6), which refers to a defendant's authorization to deliver a controlled substance, "should be given only when the defense has presented some competent evidence beyond a mere assertion that the defendant was authorized to deliver the substance. If the defense presents such evidence, the prosecution must prove lack of authorization beyond a reasonable doubt." M. Crim. J.I. 12.3 n. 3. Under Mezy , 453 Mich. at 282-283, 551 N.W.2d 389 (opinion by WEAVER , J.); id. at 286, 551 N.W.2d 389 ( BRICKLEY , C.J., concurring in part and dissenting in part), a defendant claiming an exception or exemption under the CSA bears both the burden of production and the burden of persuasion and must demonstrate by a preponderance of the evidence that he or she is legally authorized to deliver a controlled substance. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Talbot, C.J., and Gleicher, J., concurred with Gadola, P.J. People v. Robar , unpublished order of the Court of Appeals, entered January 27, 2017 (Docket No. 335377). Vacated by People v. Gridiron (On Rehearing) , 190 Mich.App. 366, 475 N.W.2d 879 (1991) (Gridiron II ), amended with regard to remedy by People v. Gridiron , 439 Mich. 880, 476 N.W.2d 411 (1991) (Gridiron III ). The prosecution later filed briefs in the trial court and before this Court asserting that it does not concede that defendant has a valid prescription for the substances. Wolfe has been cited in multiple opinions for these elements of possession with intent to deliver a controlled substance, including the element "that defendant was not authorized to possess the substance ...." See, e.g., People v. McGhee , 268 Mich.App. 600, 604, 622, 709 N.W.2d 595 (2005) (analyzing a challenge to the possession element only and involving the controlled substances cocaine, heroin, and marijuana). The Legislature recently amended this statute by way of 2016 PA 307, which took effect on January 4, 2016. This amendment did not affect the statutory language at issue in this appeal. The Legislature did not make any changes to Subsection (8) in the recent amendment of MCL 333.7109. See 2016 PA 383. MCL 333.7303(4)(b) rationally allows a "common or contract carrier or warehouseman, or an employee thereof" in possession of a controlled substance to lawfully intend to deliver the substance so long as such delivery "is in the usual course of business or employment" of that person or entity. Like the exception in MCL 333.7303(4)(b), we also conclude that MCL 333.7303(4)(c) only rationally allows an "ultimate user or agent" in possession of a controlled substance to lawfully intend to deliver the substance if the delivery is "pursuant to a lawful order of a practitioner," such as may be the case if a person retrieves a controlled substance from a pharmacy, pursuant to a valid prescription, for an ailing friend or family member. Our conclusion on this issue only applies to the main body of the text in M. Crim. J.I. 12.3, and not to the footnote accompanying bracketed paragraph (6). We discuss in Part IV of this opinion the burdens of production and persuasion applicable to a defendant claiming that he or she was authorized to possess or deliver a controlled substance. The opinion in Gridiron I was vacated on rehearing by Gridiron II , 190 Mich.App. at 370, 475 N.W.2d 879, for reasons unrelated to the statements of law set forth in this opinion, namely, on grounds of ineffective assistance of counsel. The Gridiron II Court vacated the defendant's conviction and prohibited retrial. Id . In Gridiron III , 439 Mich. at 880, 476 N.W.2d 411, our Supreme Court amended this Court's judgment in Gridiron II because it concluded that "[t]he appropriate remedy on a finding of ineffective assistance of counsel is retrial and not the discharge of the defendant." Justice Mallett 's opinion was joined in full only by Justice Levin and Justice Brickley ; however, Chief Justice Cavanagh and Justice Boyle each authored opinions concurring with this portion of the lead opinion. See Pegenau , 447 Mich. at 304, 523 N.W.2d 325 ( Cavanagh , C.J., concurring in part and dissenting in part) (dissenting only with regard to the lead opinion's characterization of the "some competent evidence" standard); id . at 309, 523 N.W.2d 325 ( Boyle , J., concurring in the result) (agreeing with the lead opinion's rejection of the defendant's constitutional argument). Justice Levin concurred with Chief Justice Cavanagh 's opinion, and Justice Griffin and Justice Riley concurred with Justice Boyle 's opinion. Again, the opinions authored by Chief Justice Cavanagh and Justice Boyle agreed with this portion of Justice Mallett 's lead opinion. See Pegenau , 447 Mich. at 304, 523 N.W.2d 325 ( Cavanagh , C.J., concurring in part and dissenting in part) (dissenting only with regard to the lead opinion's characterization of the "some competent evidence" standard); id . at 309, 523 N.W.2d 325 ( Boyle , J., concurring in the result) (agreeing with the lead opinion's rejection of the defendant's constitutional argument). It is worth pointing out that in Justice Mallett 's lead opinion, there is a statement that "[a]fter a defendant has met his burden of going forward with evidence on an issue, the burden shifts to the prosecution to prove this issue beyond a reasonable doubt." Id. at 303, 523 N.W.2d 325. This statement was made, however, in the context of describing the burden allocation under 21 USC 885(a)(1) of the federal Controlled Substances Act, 21 USC 801 et seq. , and should not be considered a legal ruling by the lead opinion regarding the burden allocation under MCL 333.7531. In Bailey , 85 Mich.App. at 596, 599, 272 N.W.2d 147, this Court held that "[l]ack of authorization is not an element of the crime of delivery of a controlled substance under the present statute" and that "if the defendant adduces any evidence of authorization, the people must also prove beyond a reasonable doubt that he had no such authorization." See also Wooster , 143 Mich.App. at 517, 372 N.W.2d 353 (citing the same language from Bailey ); Bates , 91 Mich.App. at 516, 283 N.W.2d 785 ("The prosecution establishes a prima facie case by evidence linking defendant with each element of the crime of delivery of heroin. Upon defendant's presentation of some competent evidence that he is authorized by license ... the people must then prove to the contrary beyond a reasonable doubt."). In Dempster , 396 Mich. at 711-714, 242 N.W.2d 381, our Supreme Court interpreted a provision of the former Uniform Securities Act, MCL 451.501 et seq. , repealed by 2008 PA 551, stating that, "[i]n any proceeding under this act, the burden of proving an exemption or an exception is upon the person claiming it," and concluded that this provision shifted only the burden of production to a defendant. In Henderson , 391 Mich. at 616, 218 N.W.2d 2, our Supreme Court concluded that, in the context of a prosecution for carrying a concealed weapon, once the prosecution establishes a prima facie violation, the defendant has the burden of offering some proof that he or she has some license to carry the weapon, after which the prosecution is obliged to establish the contrary beyond a reasonable doubt. Furthermore, we agree with Justice Boyle 's opinion that the term "burden of proof" by its plain meaning encompasses both the burdens of production and persuasion. Pegenau , 447 Mich. at 309-310 ( Boyle , J., concurring in the result). When the Legislature places the "burden of proof" on a defendant, this requires no additional gloss or parsing from the judiciary. Had the Legislature intended to shift only the burden of production to a defendant, it could easily have said so. As the Legislature chose not to subdivide the term "burden of proof," it is logical to conclude that the Legislature intended to shift both burdens to a defendant. U.S. Const., Am. V ; Const. 1963, art. 1, § 15.

Per Curiam. In this case involving the Rhea Brody Living Trust (the Rhea Trust), Rhea's husband, Robert Brody, appeals as of right the probate court's order granting partial summary disposition to Rhea and Robert's daughter, Cathy B. Deutchman. In relevant part, the order resolved claims relating to two family businesses, Brody Realty No. I, LLC, and Macomb Corporation, declared Rhea Brody disabled pursuant to the terms of the trust, and removed Robert as successor trustee of the trust. Jay Brody, Rhea and Robert's son and the brother of Cathy, cross-appeals. We affirm in part, reverse in part, and remand for further proceedings. I. PROBATE COURT JURISDICTION On appeal, Robert and Jay ask this Court to vacate the probate court's orders for lack of subject-matter jurisdiction. According to Robert and Jay, the trust action included a "business or commercial dispute" as defined in MCL 600.8031(1)(c) and was therefore within the mandatory jurisdiction of the business court under MCL 600.8035. We disagree. Neither Robert nor Jay raised the jurisdictional issue in the lower court. However, "[s]ubject-matter jurisdiction cannot be waived and can be raised at any time by any party or the court." In re Contempt of Dorsey , 306 Mich. App. 571, 581, 858 N.W.2d 84 (2014), vacated in part on other grounds 500 Mich. 920, 888 N.W.2d 61 (2016). " 'Whether the trial court had subject-matter jurisdiction is a question of law that this Court reviews de novo.' " Bank v. Mich. Ed. Ass'n-NEA , 315 Mich. App. 496, 499, 892 N.W.2d 1 (2016), quoting Rudolph Steiner Sch. of Ann Arbor v. Ann Arbor Charter Twp. , 237 Mich. App. 721, 730, 605 N.W.2d 18 (1999). "We review de novo questions of statutory interpretation, with the fundamental goal of giving effect to the intent of the Legislature." Bank , 315 Mich. App. at 499, 892 N.W.2d 1. "Subject-matter jurisdiction is conferred on the court by the authority that created the court." Reed v. Yackell , 473 Mich. 520, 547, 703 N.W.2d 1 (2005) (CORRIGAN, J., dissenting), citing Detroit v. Rabaut , 389 Mich. 329, 331, 206 N.W.2d 625 (1973). The probate court is a court of limited jurisdiction and derives its power from statutes. Manning v. Amerman , 229 Mich. App. 608, 611, 582 N.W.2d 539 (1998). Specifically, MCL 700.1302 grants the probate court "exclusive legal and equitable jurisdiction" over matters concerning "the validity, internal affairs, or settlement of a trust; the administration, distribution, modification, reformation, or termination of a trust; or the declaration of rights that involve a trust, trustee, or trust beneficiary." Additionally, MCL 700.1303(h) provides for concurrent legal and equitable jurisdiction over claims by or against a fiduciary or trustee. A business court's jurisdiction is established by MCL 600.8035, which provides that "[a]n action shall be assigned to a business court if all or part of the action includes a business or commercial dispute." MCL 600.8035(3). Under MCL 600.8031(1)(c), a "business or commercial dispute" means, among other things, "[a]n action involving the sale, merger, purchase, combination, dissolution, liquidation, organizational structure, governance, or finances of a business enterprise." Notwithstanding the broad definition of "business or commercial dispute" found in MCL 600.8031(1)(c), the Legislature specifically excluded proceedings under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq ., in MCL 600.8031(3)(e). Robert and Jay first argue that this action fell within the mandatory jurisdiction of the business court because it involved "the rights or obligations of ... members ... or managers" of a company, MCL 600.8031(2)(b), an action "arising out of contractual agreements or other business dealings," MCL 600.8031(2)(c), and an action "involving the sale, ... purchase, ... or finances of a business enterprise," MCL 600.8031(1)(c)(iv ). Accordingly, they contend, Cathy was required to bring the action in the circuit court for business court assignment. This argument lacks merit. Matters brought under EPIC are specifically excluded from the definition of "business or commercial dispute" by MCL 600.8031(1)(e). Cathy sought Robert's removal as trustee of the Rhea Trust, and reversal of the damage she alleged that Robert had already caused to the interests of the trust. Cathy's petition seeking Robert's removal as trustee, delivery of all accountings of trust property to an appointed trustee, temporary court supervision of the trust, an order rescinding transactions Robert had entered into as trustee, and damages for the Rhea Trust, was brought under various provisions of the EPIC. To the extent the petition involved transactions of the Brody family businesses or existing contracts, these matters arose only tangentially to the central issue of Robert's breach of fiduciary duty as trustee of the Rhea Trust. Cathy's petition clearly fell within the range of matters specifically excluded from the definition of "business or commercial dispute" under the business court statute. Next, Robert and Jay argue that, regardless of the nature of Cathy's petition, her claims fell within the mandatory jurisdiction of the business court under MCL 600.8035(3), which states, in part, that "[a]n action that involves a business or commercial dispute that is filed in a court with a business docket shall be maintained in a business court although it also involves claims that are not business or commercial disputes, including excluded claims under section 8031(3) ." (Emphasis added.) Robert and Jay ask this Court to interpret this language as requiring every case affecting or affected by a business matter, including a trust case, to be brought before the business court. We decline to do so. When this Court interprets a statute, our goal is to give effect to the Legislature's intent as determined by the statutory language. Bukowski v. Detroit , 478 Mich. 268, 273, 732 N.W.2d 75 (2007). "In order to accomplish this goal, this Court interprets every word, phrase, and clause in a statute to avoid rendering any portion of the statute nugatory or surplusage." Id . at 273-274, 732 N.W.2d 75. Here, we find Robert and Jay's proposed construction of the second sentence of MCL 600.8035(3) inconsistent with the plain language of the statute. Specifically, we note that the Legislature employed in its jurisdictional mandate the phrases "an action ... filed in a court with a business docket" and "shall be maintained in a business court." Id. (emphasis added). These phrases indicate a legislative intent to retain cases originally filed in the business court for the entirety of the proceedings, regardless of whether the business dispute also involves, or comes to involve, excluded subject matter. This simple reading of the statutory language is consistent with the Legislature's stated purpose in establishing the business court, which is to "[a]llow business or commercial disputes to be resolved with expertise, technology, and efficiency," MCL 600.8033(3)(b), and "[e]nhance the accuracy, consistency, and predictability of decisions in business and commercial cases," MCL 600.8033(3)(c). To read this section as requiring every action affecting a business to be originally filed in the business court or transferred to the business court upon the inclusion of matters affecting a business would be to read language into the statute that simply does not exist and to brush aside the Legislative goal of accuracy and efficiency by imposing on the business courts mandatory jurisdiction over a seemingly endless variety of nonbusiness-related matters. Further, Robert and Jay's proposed construction of the business court statute would create a direct conflict between the mandatory jurisdiction of the business court over all matters affecting or involving a business with the exclusive jurisdiction of the probate court to consider probate and trust matters. "If two statutes lend themselves to a construction that avoids conflict, that construction should control." Parise v. Detroit Entertainment, LLC , 295 Mich. App. 25, 27, 811 N.W.2d 98 (2011) (quotation marks and citation omitted). The construction of MCL 600.8035(3) proposed by Robert and Jay would render the probate court without jurisdiction to consider any trust matter that also involved or affected, however tangentially, a business transaction. We cannot reconcile this construction with the Legislature's grant of exclusive jurisdiction to the probate court over trust matters. Nor can we reconcile the proposed construction of MCL 600.8035(3) with the Legislature's stated purpose for its broad grant of exclusive jurisdiction on the probate court, which is "to simplify the disposition of an action or proceeding involving a decedent's, a protected individual's, a ward's, or a trust estate by consolidating the probate and other related actions or proceedings in the probate court." MCL 700.1303(3). Finally, to the extent the probate court's grant of exclusive jurisdiction over trust matters in MCL 700.1302 and MCL 700.1303 conflicts with the broad inclusion of trust-related matters within the exclusive jurisdiction of the business court under MCL 600.8035(3), we conclude that the more specific grant of jurisdiction in MCL 700.1302 and MCL 700.1303 controls. Both statutes confer jurisdiction on a court, and "[w]hen two statutes are in pari materia but conflict with one another on a particular issue, the more specific statute must control over the more general statute." Donkers v. Kovach , 277 Mich. App. 366, 371, 745 N.W.2d 154 (2007). "While it is true that a judgment entered by a court that lacks subject-matter jurisdiction is void, subject-matter jurisdiction is established by the pleadings and exists when the proceeding is of a class the court is authorized to adjudicate and the claim stated in the complaint is not clearly frivolous." Clohset v. No Name Corp. (On Remand), 302 Mich. App. 550, 561, 840 N.W.2d 375 (2013) (quotation marks and citations omitted). Cathy's petition was brought under the EPIC, and the probate court had exclusive jurisdiction over Cathy's claims under MCL 700.1302 and MCL 700.1303. Robert and Jay's jurisdictional challenge therefore fails. II. STANDING Robert and Jay both argue that Cathy did not have standing (i.e., she was not a proper party) to request adjudication of the issues in her petition, including Robert's removal as trustee of the Rhea Trust and reversal of actions taken by Robert as trustee. We disagree. The parties dispute whether, at the time Cathy filed her petition, the trust was revocable or irrevocable. Robert and Jay argue that Cathy has no beneficial interest in the trust because she is a contingent beneficiary and that the trust is revocable. Robert and Jay's argument is premised on three assumptions: (1) that Rhea has not been declared disabled pursuant to the trust and that her trust is revocable by its plain terms, or (2) that the trust's terms render it revocable by Robert, the trustee and holder of a durable power of attorney (DPOA), indefinitely, and (3) that Cathy, as a contingent beneficiary does not have standing to bring an action regarding the administration of a revocable trust. We need not consider the validity of Robert and Jay's first two assumptions, however, because we conclude that their argument fails on its third assumption. Whether a party has standing is a question of law that this Court reviews de novo. Glen Lake-Crystal River Watershed Riparians v. Glen Lake Ass'n , 264 Mich. App. 523, 527, 695 N.W.2d 508 (2004). "[S]tanding refers to the right of a party plaintiff initially to invoke the power of the court to adjudicate a claimed injury in fact." Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 290, 715 N.W.2d 846 (2006). In Pontiac Police & Fire Retiree Prefunded Group Health & Ins. Trust Bd. of Trustees v. City of Pontiac No. 2 , 309 Mich. App. 611, 621-622, 873 N.W.2d 783 (2015), this Court explained the relationship between standing and a real party in interest: MCR 2.201(B) provides that "[a]n action must be prosecuted in the name of the real party in interest ...." The real party in interest is a party who is vested with a right of action in a given claim, although the beneficial interest may be with another. In general, standing requires a party to have a sufficient interest in the outcome of litigation to ensure vigorous advocacy and "in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy." Both the doctrine of standing and the included real-party-in-interest rule are prudential limitations on a litigant's ability to raise the legal rights of another. Further, "a litigant has standing whenever there is a legal cause of action." But plaintiffs must assert their own legal rights and cannot rest their claims to relief on the rights or interests of third parties. The real party in interest is one who is vested with the right of action as to a particular claim, or, stated otherwise, is the party who under the substantive law in question owns the claim asserted. [Citations omitted.] The probate court concluded that Cathy had standing pursuant to MCL 700.7201, which provides, in pertinent part, that "[a] court of this state may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law." MCL 700.7201(1) (emphasis added). MCL 700.7201(3) provides: A proceeding involving a trust may relate to any matter involving the trust's administration, including a request for instructions and a determination regarding the validity, internal affairs, or settlement of a trust; the administration , distribution, modification, reformation, or termination of a trust; or the declaration of rights that involve a trust, trustee, or trust beneficiary, including, but not limited to, proceedings to do any of the following: (a) Appoint or remove a trustee . (b) Review the fees of a trustee. (c) Require, hear, and settle interim or final accounts. (d) Ascertain beneficiaries. (e) Determine a question that arises in the administration or distribution of a trust, including a question of construction of a trust. (f) Instruct a trustee and determine relative to a trustee the existence or nonexistence of an immunity, power, privilege, duty, or right. (g) Release registration of a trust. (h) Determine an action or proceeding that involves settlement of an irrevocable trust. [Emphasis added.] The definition of "interested person" is provided in MCL 700.1105(c), which states: "Interested person" or "person interested in an estate" includes, but is not limited to, the incumbent fiduciary; an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person. Identification of interested persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, a proceeding, and by the supreme court rules. The probate court correctly determined that Cathy is an interested person under MCL 700.1105(c). There is no dispute that Cathy is Rhea's child. In addition, Cathy is a "beneficiary." Under MCL 700.1103(d)(i), a beneficiary includes a "trust beneficiary," defined in MCL 700.7103(1)(i) as a person with "a present or future beneficial interest in a trust, vested or contingent." The term "beneficial interest" is defined as follows: "A right or expectancy in something (such as a trust or an estate), as opposed to legal title to that thing. For example, a person with a beneficial interest in a trust receives income from the trust but does not hold legal title to the trust property." Black's Law Dictionary (10th ed), p 934. The plain language of the trust indicates that Cathy has a future (upon Rhea's death), contingent (assuming no revocation or amendment) interest in the trust property. See Restatement Trusts, 1st, § 56, illustration 7, p. 172 (an intervivos trust in which the death of settlor is a condition precedent establishes a "contingent equitable interest in remainder"). Specifically, Cathy will receive Rhea's clothing and jewelry. In addition, if Robert predeceases Rhea, then a subtrust composed of 50% of the Rhea Trust's remaining assets is created for Cathy. If Rhea predeceases Robert, then a marital trust and a family trust are created, and under the marital trust, Rhea's descendants are each entitled to net income distributions and any principal necessary for education, health, support, and maintenance. Robert and Jay ask this Court to adopt the approach of other jurisdictions in holding that a contingent beneficiary lacks standing to challenge the administration of a revocable trust. Robert and Jay's reliance on the Uniform Trust Code (UTC) and cases from other jurisdictions is misplaced. Cases from other jurisdictions are inapposite because they involve statutory language that does not control here. Although we may look to decisions from other jurisdictions for guidance, In re Lampart , 306 Mich. App. 226, 235 n. 6, 856 N.W.2d 192 (2014), we need not look outside our jurisdiction when our own law is clear, see Dewey v. Tabor , 226 Mich.App. 189, 193-194, 572 N.W.2d 715 (1997). Because Cathy is an interested person under MCL 700.1105(c) and could invoke the court's jurisdiction to remove a trustee under MCL 700.7201(3)(a), she had standing to file her petition. Given our conclusion, we find it unnecessary to address the parties' dispute over whether Rhea was "disabled" under the trust terms during the relevant periods or whether the trust is revocable or irrevocable. III. BREACH OF FIDUCIARY DUTIES BY ROBERT In his cross-appeal, Jay argues that the probate court erred when it found no genuine issue of material fact regarding Robert's breach of fiduciary duty to the trust and granted partial summary disposition in favor of Cathy. Robert makes a similar claim in his reply brief on appeal. We disagree. Because the probate court necessarily relied on facts outside the pleadings, we treat the court's award of summary disposition as though it was granted under MCR 2.116(C)(10). See Sharp v. City of Lansing , 238 Mich. App. 515, 518, 606 N.W.2d 424 (1999). A motion is properly granted under this subrule if no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc. , 267 Mich. App. 708, 713, 706 N.W.2d 426 (2005). In reviewing a lower court's decision, this Court must view all the submitted admissible evidence in a light most favorable to the nonmoving party. In re Smith Estate , 252 Mich. App. 120, 123, 651 N.W.2d 153 (2002). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003). "This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law." Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). This Court generally reviews the probate court's decision to remove a trustee for an abuse of discretion. In re Duane v. Baldwin Trust , 274 Mich. App. 387, 396, 733 N.W.2d 419 (2007). An abuse of discretion occurs only when the probate court's decision falls outside the range of principled outcomes considering the facts and circumstances of the case. Saffian v. Simmons , 477 Mich. 8, 12, 727 N.W.2d 132 (2007). This Court reviews the language in a will or trust de novo, and the objective of a court in construing a trust is to "give effect to the intent of the settlor." In re Stillwell Trust , 299 Mich. App. 289, 294, 829 N.W.2d 353 (2013) (quotation marks and citation omitted). According to the terms of the Rhea Trust, Robert, as trustee, was required to act in the best interests of the trust beneficiaries. Robert was also a trust beneficiary, and under the plain language of the trust, Robert was prohibited from possessing powers that would permit him to enlarge or shift the beneficial interests under the trust. According to the trust's terms, if Robert came to possess such power, he was required to appoint an independent cotrustee. The Rhea Trust held a 98% interest in Brody Realty, one of the companies owned and operated by the Brody family. As manager of Brody Realty, Robert possessed the power to sell interests belonging to or affecting the Rhea Trust, and he acted pursuant to that power. First, Robert sold Brody Realty's membership interest in the Brittany Park property to the Jay Howard Brody Trust (the Jay Trust) and Jay's two children, Stuart Brody and Rachel Brody. Second, Robert sold Jay an option to purchase the Rhea Trust's interest in both Brody Realty and the Macomb Corporation. In arguing that Robert did not breach his fiduciary duty by entering into these transactions, Robert and Jay call attention to provisions in the Rhea Trust the DPOA executed by Rhea appointing Robert as her attorney-in-fact, which grant Robert broad authority over the trust property. But Rhea limited those powers with the trust provision requiring appointment of a cotrustee. Robert failed to appoint a cotrustee to ensure that the beneficiaries' best interests were served while he served in a potentially conflicting role, and there is no dispute that his failure constituted a breach of his duties under the trust. Jay argues that the Brittany Park property was not an asset of the Rhea Trust, and any provisions limiting a shift in beneficial interests under the trust did not apply to the Brittany Park sale. Jay also claims that an option agreement between Robert and Jay, which gave Jay an option to purchase the Rhea Trust's interests in Brody Realty and Macomb Corporation, did not enlarge or shift any interests because even if he exercised his option under the agreement, Jay and Cathy would still each receive 50% of the Rhea Trust's assets. These arguments fail. Brittany Park was owned by Brody Realty. The Rhea Trust owned 98% of Brody Realty, and the Rhea Trust was therefore interested in the Brittany Park sale. Under the option agreement, Jay's acceptance would shift Cathy's interest from 50% of Brody Realty to 50% of any proceeds from its sale. There is no guarantee that these separate interests would be equivalent, especially given the potential of income from Brody Realty. Under the Rhea Trust, Jay and Cathy would have each shared 50% of the remaining trust property following the deaths of their parents, including Brody Realty. The probate court did not clearly err by concluding that the option contract shifted beneficial interests under the trust to favor Jay. Robert and Jay further argue that there was no breach of fiduciary duty with respect to the option agreement because Robert was not required to treat his children equally and the Rhea Trust allowed him to make unequal distributions or to delay distributions. They are correct that, under Articles 8 and 9 of the Rhea Trust, if Rhea predeceases Robert, the trust provisions will benefit Robert and he will have the power to appoint and distribute assets in "equal or unequal proportions." But Rhea has not predeceased Robert, and the probate court did not clearly err by determining that the Rhea Trust was created with the general intent to treat Cathy and Jay equally. Article 10 of the Rhea Trust provides that upon the death of the survivor of Rhea and Robert, the trust property not previously distributed will be divided into separate trusts, with 50% to Jay and 50% to Cathy. Both Robert and Cathy testified that Rhea intended an equal distribution between the two siblings. It is uncertain who will live longer-Rhea or Robert-or which article of the Rhea Trust will control. While any inequities in the option agreement may be permissible under Articles 8 and 9, any inequity created by the Brittany Park sale or the option agreement would be inconsistent with the 50/50 split under Article 10. The probate court did not err by concluding that there was no genuine issue of material fact regarding Robert's breach of fiduciary duty. IV. APPROPRIATE REMEDIES Robert and Jay also take issue with the remedies imposed by the probate court with respect to both the Brittany Park sale and the option agreement, arguing that the probate court lacked the power to reform or rescind a contract. We agree, in part, as to the Brittany Park sale. "This Court reviews equitable decisions of the probate court de novo, but overturns any underlying factual findings only upon a finding of clear error." In re Filibeck Estate , 305 Mich. App. 550, 553, 853 N.W.2d 448 (2014). "A finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake was made." Loutts v. Loutts , 298 Mich. App. 21, 26, 826 N.W.2d 152 (2012) (quotation marks and citations omitted). "The granting of equitable relief is ordinarily a matter of grace, and whether a court of equity will exercise its jurisdiction, and the propriety of affording equitable relief, rests in the sound discretion of the court, to be exercised according to the circumstances and exigencies of each particular case." Tkachik v. Mandeville , 487 Mich. 38, 45, 790 N.W.2d 260 (2010) (quotation marks, citation, and brackets omitted). A. REFORMATION OF THE BRITTANY PARK AGREEMENT Pursuant to a 2013 purchase agreement, Brody Realty sold its 63.5% interest in Brittany Park to the Jay Brody's Trust, Jay's daughter Rachel, and Jay's son Stuart. One purchase agreement documented the sale of the interest in two separate transactions, occurring on December 17, 2013 (13.6%) and December 31, 2013 (49.9%). Due to a purported lack of marketability and control, as well as the extensive capital improvements required, Robert reduced the first sale price with a 15% discount and the second sale price with a 40% discount. The total amount of the sale price was $3,348,857.18, which included a down payment of $1,050,000. Pursuant to the agreement, the Jay Trust was required to repay the entire amount of the outstanding debt at an interest rate of 1.65% over 91/2 years. Robert personally loaned Jay $850,000 to help him make the repayments. Ultimately, the Jay Trust attained a 62% interest in the Brittany Park Apartments, while Rachel and Stuart each received a 10% interest. The probate court determined that Jay was complicit in Robert's breaches of fiduciary duty and identified a "whole pattern of favoring Jay Brody at the expense of Cathy ...." After the probate court removed Robert, it reformed the Brittany Park purchase agreement to increase the purchase price to $4,293,406.64 and to increase the interest rate on the balance to 3.99%. Reformation was not appropriate in this case. Reformation is an equitable remedy that is available for contracts if the writing "fails to express the intentions of the parties ... as the result of accident, inadvertence, mistake, fraud, or inequitable conduct ...." Najor v. Wayne Int'l Life Ins. Co. , 23 Mich. App. 260, 272, 178 N.W.2d 504 (1970) (quotation marks and citation omitted). See also Holda v. Glick , 312 Mich. 394, 403-404, 20 N.W.2d 248 (1945). Courts of equity have the power to reform contracts so that they may "conform to the agreement actually made." Casey v. Auto-Owners Ins. Co. , 273 Mich. App. 388, 398, 729 N.W.2d 277 (2006) (quotation marks and citation omitted). If the basis for a proposed reformation is mistake, the mistake must be mutual. Holda , 312 Mich. at 403-404, 20 N.W.2d 248. "A mistake in law-a mistake by one side or the other regarding the legal effect of an agreement-is not a basis for reformation." Casey , 273 Mich. App. at 398, 729 N.W.2d 277 (citation omitted). The probate court erred when it reformed the purchase agreement for the Brittany Park sale because the parties to the Brittany Park sale intended the purchase price and interest rate to be the amounts delineated in the plain language of the purchase agreement. There is no evidence that they intended anything different. Cathy argues that, regardless of the rules of contract, the probate court was permitted to reform the purchase agreement for the Brittany Park sale pursuant to its broad power under MCL 700.7901 to remedy a breach of trust. Specifically, Cathy argues that the probate court could "trace trust property wrongfully disposed of and recover the property or its proceeds" under MCL 700.7901(2)(i). We disagree. MCL 700.7901 provides: (1) A violation by a trustee of a duty the trustee owes to a trust beneficiary is a breach of trust. (2) To remedy a breach of trust that has occurred or may occur, the court may do any of the following: (a) Compel the trustee to perform the trustee's duties. (b) Enjoin the trustee from committing a breach of trust. (c) Compel the trustee to redress a breach of trust by paying money, restoring property, or other means. (d) Order a trustee to account. (e) Appoint a special fiduciary to take possession of the trust property and administer the trust. (f) Suspend the trustee. (g) Remove the trustee as provided in section 7706. (h) Reduce or deny compensation to the trustee. (i) Subject to section 7912, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds. (j) Order any other appropriate relief. The language of MCL 700.7901 does not expressly refer to reformation. Rather, through MCL 700.7901, the Legislature only empowered the probate court with authority to void a sale, impose a lien or constructive trust on property, or recover property and its proceeds. Cathy also argues that reformation was permissible under the probate court's authority to "[o]rder any other appropriate relief" under MCL 700.7901(2)(j). This Court has defined "appropriate" as " 'particularly suitable; fitting; compatible,' " or " '[s]uitable for a particular person, condition, occasion, or place; proper; fitting.' " Morinelli v. Provident Life & Accident Ins. Co. , 242 Mich. App. 255, 262, 617 N.W.2d 777 (2000) (alteration in original), quoting Random House Webster's College Dictionary (2d ed., 1997) and The American Heritage Dictionary: Second College Edition (1985). In this case, the reformation of the purchase agreement was not fitting because, as discussed earlier, the Brittany Park sale did not fail to express the intent of the parties. An order to recover proceeds from a sale could have been tailored to remedy the specific breach of fiduciary duty-here, Robert and Jay's complicity in managing the trust contrary to Rhea's intent and without appointing a cotrustee to protect the beneficiaries' best interests-by ordering the responsible parties to pay for any inequity. Moreover, the probate court's chosen remedy was not particular to the circumstances because the reformation affected the interests of Jay's trust, Stuart, and Rachel. There is no evidence in the record that Stuart and Rachel played a role in any improper conduct. Reformation was not appropriate under the plain language of MCL 700.7901(2)(j). Cathy argues that the probate court's contract reformation was appropriate given its broad equitable powers. Cathy cites Evans v. Grossi , 324 Mich. 297, 305, 37 N.W.2d 111 (1949), for the proposition that a court of equity "may do whatever is necessary, not only for the preservation of trust property but, also, whatever is necessary for the protection of the rights of beneficiaries and the promotion of their interests." But a court's equity powers are not unlimited. Our Supreme Court has explained, "Although courts undoubtedly possess equitable power, ... [a] court's equitable power is not an unrestricted license for the court to engage in wholesale policymaking...." Devillers v. Auto Club Ins. Ass'n , 473 Mich. 562, 590-591, 702 N.W.2d 539 (2005). "Equity jurisprudence mold[s] its decrees to do justice amid all the vicissitudes and intricacies of life." Tkachik , 487 Mich. at 45-46, 790 N.W.2d 260 (quotation marks and citation omitted; alteration in original). The probate court's order did not weigh the intricacies of the sale against the parties responsible for the misconduct, and it erred when it chose the remedy of reformation of the Brittany Park purchase agreement. In his brief on cross-appeal, Jay claims that he should now have the option to rescind the Brittany Park agreement because of mistake or material change to the subject of the contract. But a party who bears the risk of a mistake is not entitled to rescind the contract. Lenawee Co. Bd. of Health v. Messerly , 417 Mich. 17, 30, 331 N.W.2d 203 (1982). In this case, the probate court found that Jay was complicit in Robert's breaches of his fiduciary duties. Therefore, it would not be unreasonable to allocate the risk of mistake to Jay. However, the probate court did not consider this issue, and we will not decide it on appeal. The probate court should consider whether rescinding the contract for mutual mistake is appropriate on remand. Jay also argues that the probate court could have treated the Brittany Park sale as a gift or advance on future distributions. Indeed, under the terms of the Rhea Trust, the trustee was permitted to make gifts to Rhea's descendants for the best interests of Rhea, her family, and the estate. Any gift was required to be "deemed a satisfaction of such legacy or distribution, pro tanto, and that the gift or transfer made by the Trustee is not considered to be in addition to such legacy or distribution." Although MCL 700.7901(2)(j) authorizes the court to "[o]rder any other appropriate relief," it is for the probate court on remand, not this Court on review, to determine whether treating the sale as a gift is particularly suited to the circumstances. Finally, Jay argues that the probate court incorrectly eliminated the discounts for lack of marketability and control in the Brittany Park sale when it increased the purchase price. Because we have concluded that the probate court's reformation of the Brittany Park purchase agreement was in error, we find it unnecessary to address the propriety of the marketability discounts at this time. Any remaining factual questions must be resolved on remand. B. SETTING ASIDE THE OPTION AGREEMENT Robert and Jay also argue that the probate court improperly set aside an option agreement between Robert and Jay that grants Jay the option to purchase substantial amounts of the Rhea Trust interest upon Rhea's death. We disagree. In exchange for approximately $103,322 and $33,325.24, Robert sold Jay an option to purchase "everything," including the Rhea Trust's interest in Brody Realty and the Macomb Corporation, as well as the interest in Brody Realty and the Macomb Corporation held by Robert's trust. The period to exercise the option would begin on the nine-month anniversary of Rhea's death and end on the 15-year anniversary of her death. Due to the option's existence, the Rhea Trust's assets would remain frozen until the option was exercised or the 15-year option period had expired. The purchase price would be determined by the "fair market value of the membership interests or capital stock . . . considering all applicable valuation discounts." If Jay exercised the option related to the Rhea Trust interest in Brody Realty, Jay would repay the purchase price to the Rhea Trust in monthly payments over nine years at the midterm applicable federal rate of interest. Pursuant to the option agreement, Jay also received an irrevocable proxy to vote Robert's interest in Brody Realty, which prevented Robert from exercising his rights to vote and directly conflicted with his responsibilities under the Rhea Trust: From the date of Rhea's death until all the options provided under this agreement have expired, Rhea's trust shall use all means at its disposal to ensure that Jay (and not Cathy Deutchman or Jim Deutchman) manages Brody Realty ... and Macomb Management includes [sic] voting control of Brody Realty and Macomb, amending articles, by-laws, operating agreements and entering into all contracts including agreements to sell and property management agreements. To ensure the foregoing, Rhea's Trust will provide Jay with irrevocable proxies to represent Rhea's Trust at any meeting of the members or managers of Brody Realty and any meeting of the Macomb Shareholders. The option agreement further provided: In the event Cathy Deutchman or James Deutchman, directly or indirectly, interfere with or attempt to interfere with Jay Brody's rights under this agreement then the purchase price shall be reduced by $2 million, and Jay shall determine how this reduction in the purchase price shall be allocated. The option agreement did not contain any provisions pertaining to Cathy's interests in the Rhea Trust or the family's businesses. Cathy was not given the option to purchase the assets of the trust. "Rescission of a contract is an equitable remedy to be exercised in the sound discretion of the trial court." Schmude Oil Co. v. Omar Operating Co. , 184 Mich. App. 574, 587, 458 N.W.2d 659 (1990). In this case, the probate court concluded that the option agreement was part of a pattern of favoring Jay over Cathy. The probate court reasoned that the option's delay of distribution to Cathy and the fact that the option was offered only to Jay, along with the present proxy to vote Robert's interest in Brody Realty and the $2,000,000 penalty, supported this conclusion. On appeal, Robert and Jay argue that there is a question of fact regarding whether the option favored Jay over Cathy. Robert argues that any discounts to the purchase price would only be applied by an independent appraiser after determining the fair market value and that Cathy would not necessarily be disadvantaged by the repayment period if Jay exercised the option. However, the probate court did not solely rely on either the discounts or the repayment period in setting aside the option agreement. Rather, the probate court appropriately considered the overall delay in distribution to Cathy, which ran contrary to the terms of the Rhea Trust. Pursuant to the option agreement, Jay would be able to purchase the entire interest in Brody Realty immediately upon exercising the option, while Cathy would not be paid for her interest for 15 years. Jay suggests that the 15-year option period was not more beneficial to Jay than to Cathy and that distribution delays are allowed under the terms of the Rhea Trust. Jay is correct that, under the trust, the trustee may "delay making the distributions and divisions ... for a reasonable period of time if the Trustee, in its sole discretion, determines that such delay will accomplish one or more of the trust's purposes." Even if a 15-year delay is deemed a "reasonable period of time" under the language of the trust, the delay itself affected Cathy and Jay unequally. Neither Cathy's nor Jay's interests in Brody Realty would be distributed until the option was exercised or expired. But Jay would enjoy the full control over the entity through the voting proxy during that period. The inequity in that arrangement is clear. Additionally, the language of the option agreement evidences a clear intent to favor Jay's interests over Cathy's, Robert's, and the Rhea Trust's. Robert and Jay have failed to establish any error requiring reversal of the portion of the order setting aside the option agreement. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. O'BRIEN, P.J., and JANSEN and MURRAY, JJ., concurred. Cathy argues that because Jay had no pecuniary interest in Robert's removal as trustee, he is not an aggrieved party pursuant to MCR 7.203(A), and therefore, he lacks standing to file a claim of cross-appeal. We disagree. The order removing Robert as trustee is a final order. "To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency." Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 291, 715 N.W.2d 846 (2006) (quotation marks and citation omitted). The probate court's prior orders included remedies for breaches by Robert, including reformation of the terms of a sale of the Brittany Park property to Jay and canceling an option agreement to which Jay was a party. "Where a party has claimed an appeal from a final order, the party is free to raise on appeal issues related to other orders in the case." Bonner v. Chicago Title Ins. Co. , 194 Mich. App. 462, 472, 487 N.W.2d 807 (1992). Because the probate court's remedies for Robert's breaches affected Jay, Jay has standing to file a cross-appeal challenging the probate court's rulings related to Robert's conduct, which served as the basis for the court's decision to remove Robert as trustee. Notably, by amendment effective October 11, 2017, the Legislature has amended MCL 600.8031 to remove any "action involving the sale, ...purchase, ... or finances of a business enterprise" from its broad definition of "business or commercial dispute." 2017 PA 101. Once the statute takes effect, a "business or commercial dispute" will include only actions in which at least one party is a business enterprise. MCL 600.8031(1)(c) (as amended). We find the Legislature's recent amendment persuasive evidence of a Legislative intent to limit the business court's jurisdiction to matters substantially involving the affairs of a business. Robert did not raise this argument in his statement of questions presented in his opening brief on appeal. Therefore, the claim would be waived, except that it is properly raised by Jay. See People v. Fonville , 291 Mich. App. 363, 383, 804 N.W.2d 878 (2011). In light of this outcome, we decline to address Jay's argument that no claim regarding the Brittany Park sale was properly before the probate court given that Robert was acting as a manager of Brody Realty when he executed the sale, not as a trustee of the Rhea Trust. Robert and Jay also argue that the probate court violated Stuart's and Rachel's right to due process by reforming the purchase agreement for the Brittany Park sale without giving Stuart and Rachel notice and an opportunity to be heard regarding the matter. In light of our decision, it is unnecessary to address this constitutional issue. Moreover, Stuart and Rachel have not complained of any violation, and Robert and Jay do not have standing to assert Stuart's and Rachel's due-process claims on their behalf. Barrows v. Jackson , 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Peripherally, the parties dispute whether the proxy and the $2,000,000 penalty in the option agreement were permissible under Michigan law. We need not decide these questions because we conclude that the probate court did not err when it set aside the option agreement containing those provisions.

Swartzle, J. The Restatement (Second) of Torts § 559 lists membership in the Ku Klux Klan as the quintessential illustration of a defamatory statement. In an opinion piece in The Detroit News , columnist Bankole Thompson asserted that radio talk-show host James Edwards is a "leader" of the Ku Klux Klan. There is no record evidence to suggest that Edwards holds a formal leadership position in the Ku Klux Klan, nor is there any record evidence to suggest that he is even a member. Notwithstanding this lack of formal relationship, Edwards has espoused views consistent with those associated with the Klan and, equally as important, he has repeatedly and publicly embraced several individuals who are strongly associated with the Klan. Mindful of Aesop's lesson, "A man is known by the company he keeps," we hold that Edwards cannot make claims of defamation or invasion of privacy and affirm summary disposition in favor of defendants. I. BACKGROUND A. THE CONTEXT-THE KU KLUX KLAN AND THE POLITICAL CESSPOOL To better understand the underlying dispute, it is helpful to review briefly the history of the Ku Klux Klan as well as James Edwards' radio show, The Political Cesspool . 1. A BRIEF HISTORY OF THE KU KLUX KLAN The Ku Klux Klan has a long, sordid history. From a secret club started by six young ex-Confederate soldiers, the Klan transformed itself into a terrorist force bent on turning back Reconstruction in the years immediately following the Civil War. The Klan's reputed first leader-the Imperial Wizard-was Confederate Army General Nathan Bedford Forrest. In response to the Klan's growing power, Congress held hearings and passed a strong anti-Klan law that, among other things, authorized the President to declare martial law and suspend the writ of habeas corpus. The Ku Klux Klan faded away in the late 1800s. The terrorist group experienced a rebirth of sorts during World War I, inspired in no small part by the silent film The Birth of a Nation (1915). During the decades that followed, the strength of the Ku Klux Klan ebbed and flowed, reaching its near-apex during the Civil Rights clashes of the 1960s. Again, in response, Congress held hearings and the Klan's visibility waned. During the 1970s, David Duke became the face of the modern-day Ku Klux Klan. Joining the Klan in the late 1960s, Duke eventually became the Grand Wizard of the Knights of the Ku Klux Klan. Duke later left the organization and started the National Association for the Advancement of White People, a white nationalist group. Duke currently hosts a radio show and is a frequent guest on The Political Cesspool. Stephen Donald "Don" Black succeeded Duke as Grand Wizard of the Knights of the Ku Klux Klan. Black was later arrested and convicted of trying to overthrow a small island republic the Commonwealth of Dominica. He later started a bulletin-board system in the 1990s called Stormfront.org. The bulletin board remains active today as an online forum for white nationalism, white separatism, Holocaust denial, neo-Nazism, and racism, among other topics. While its messaging and tactics have changed over the years, at its core, the Ku Klux Klan has remained a loosely organized movement fueled by racism, white supremacism, anti-Semitism, and nativism. 2. THE POLITICAL CESSPOOL Edwards is the creator and host of The Political Cesspool radio show and website. He started the radio show in October 2004. Based in Memphis, Tennessee, the show went on a brief hiatus in 2008, but otherwise has been on the air continuously to present day. The radio show is currently carried on the Liberty News Radio Network. Edwards published his "Statement of Principles" on the show's website. Among other statements, Edwards proclaims the following: • "The Political Cesspool Radio Program stands for the [sic] The Dispossessed Majority. We represent a philosophy that is pro-White." • "We wish to revive the White birthrate above replacement level fertility and beyond to grow the percentage of Whites in the world relative to other races." • "America would not be a prosperous land of opportunity if the founding stock were not Europeans.... You can't have a First World nation with a Third World population." • "Secession is a right of all people and individuals. It was successful in 1776 and this show honors those who tried to make it successful from 1861-1865." • "OUR MOTTO: No Retreat, No Surrender, No Apologies." • As part of his published principles, Edwards includes an endorsement from a person asserting that there is a "genocide against European-Americans," subsequently expanded or clarified to mean "the genocide of immigration and intermarriage." Immediately below his Statement of Principles, Edwards is pictured with Duke, sitting together at a speaking engagement in Memphis, Tennessee. Also included on the website is a page titled "A Short History of the Political Cesspool Radio Program." As part of the radio show's history, Edwards claims that the show has filled an important gap in the public debate "because nobody else was speaking up for our People." As part of the show's political activism, he recounts how his radio show "save[d] three confederate parks" from the efforts of "a couple of black malcontents in Memphis" and other "black agitators." One of the parks in question was named after General Nathan Bedford Forrest, and, according to Edwards, the park is "the burial site of the legendary hero." Edwards characterizes his show's listeners as "pro-Confederate supporters," and he maintains that as the host, he has "an unapologetically pro-White viewpoint" and his is "the premier voice for European Americans in the mainstream media." With regard to his show's reach and influence, Edwards recounts his show's expansion in the section titled "Sitting on the Cusp of Greatness." Although in his eyes the show was "quite accomplished" as of October 2006, the show had not reached its potential in terms of listenership. But, in Edwards' words, "This was when Don and Derek Black offered to run the Cesspool simultaneously on their internet radio network, giving the Memphis dynamo access to another legion of loyal listeners. The marriage was a perfect fit." As noted earlier, Don Black was the one-time Grand Wizard of the Knights of the Ku Klux Klan, and his Internet radio network is the aforementioned Stormfront.org website that he created. As for guests and interviewees of the show, Edwards claims that they span the political and ideological spectrum. In his complaint, he asserts that he has interviewed Patrick Buchanan, Lieutenant General Hal Moore, actor Gary Sinise, Dr. Alveda King (the niece of the late Rev. Dr. Martin Luther King, Jr.), legislators, and religious leaders, among others. It does appear from the record that Edwards has interviewed leaders and thinkers with diverse political and ideological viewpoints, some of whom could be considered in the mainstream. With that said, Edwards makes clear in his show's Statement of Principles that he makes "no attempt to give [listeners] 'both sides.' " He has a strong ideological viewpoint, he voices this viewpoint on the show, and he highlights this through several of the show's frequent guests, including Duke and Sam Dickson, Jr. (Duke's association with the Ku Klux Klan is noted earlier. As for Dickson, he has represented Ku Klux Klan members in court in the past.) Both have been on the radio show dozens of times, and Duke often writes posts for The Political Cesspool 's blog, including, among other things, a piece addressing the purported "Jewish extremist takeover of America." B. BANKOLE THOMPSON'S OPINION PIECE IN THE DETROIT NEWS On March 17, 2016, The Detroit News published an opinion piece by Bankole Thompson in its "Think" section. The piece was titled, "Jewish leaders fear Trump presidency." The piece centered on concerns expressed by Detroit-area Jewish leaders regarding the involvement of white supremacists during the 2016 presidential campaign. In the piece, Thompson made the following assertion: Of particular note to some in the Jewish community is the unprecedented support the Trump campaign has received among white supremacist groups like the Ku Klux Klan and its leaders like James Edwards, David Duke and Thomas Robb, the national director of the Knights of the Ku Klux Klan in Arkansas. C. A DEMAND LETTER, A RESPONSE LETTER, AND A PUBLISHED CLARIFICATION Edwards became aware of Thompson's opinion piece shortly after publication. Edwards' lawyer, Mr. Kyle Bristow, sent defendants a letter in April 2016 demanding a retraction. Mr. Bristow asserted that Edwards "is not now, nor has he ever been, associated with the Ku Klux Klan-much less a leader of it." He further maintained that Edwards "has no criminal history whatsoever, while the Ku Klux Klan is a criminal terrorist organization which has been responsible for beatings, bombings, murders, and other heinous crimes throughout American history." Thompson's opinion piece constituted libel per se, according to the letter. Defendants' legal counsel responded in writing several days later. In that letter, defendants did not argue that Edwards did, in fact, have a formal leadership role with the Ku Klux Klan. Rather, defendants pointed out that the statement at issue was made in an editorial about the campaign for the presidency, that Edwards invited criticism with his on-air and written views, and that the First Amendment protects political debate. Without admitting that any reasonable reader would be confused, the letter closed by stating that The Detroit News would soon provide a clarification to its readers. As promised, on April 12, 2016, The Detroit News published a clarification in its print and electronic editions, and as-of the date of this opinion, the clarification continues to sit at the beginning of the electronic version of the piece. The clarification reads in full, "James Edwards, the Memphis-area host of the radio show 'The Political Cesspool' has no formal position with the Ku Klux Klan." Moreover, the newspaper modified the sentence in question online by omitting the word "its" before the word "leaders." The sentence now reads in full: Of particular note to some in the Jewish community is the unprecedented support the Trump campaign has received among white supremacist groups like the Ku Klux Klan and leaders like James Edwards, David Duke and Thomas Robb, the national director of the Knights of the Ku Klux Klan in Arkansas. Notwithstanding the clarification, Edwards sued defendants, claiming that the original sentence was defamatory and that the clarification did not cure the injury or otherwise make him whole. Edwards asserted claims of defamation (libel per se), defamation by implication (libel per se), and invasion of privacy (false light). Defendants moved for summary disposition on all claims under MCR 2.116(C)(8) and (10). The trial court granted defendants' motion, holding that the term "leader" was inherently ambiguous and that the statements in the piece were subjective opinions rather than statements of fact. Edwards timely appealed as of right. II. ANALYSIS A. STANDARD OF REVIEW Defendants moved in the trial court for summary disposition on all three claims under both MCR 2.116(C)(8) and (10). The trial court granted summary disposition, but it did not specify whether under Subrule (C)(8) or (10). Because the trial court considered factual matters outside the four corners of the complaint, we will review whether summary disposition was appropriate under MCR 2.116(C)(10). See MCR 2.116(G)(5). Summary disposition is appropriate under MCR 2.116(C)(10) when, except as to damages, "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." We construe the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to Edwards as the nonmovant. Latham v. Barton Malow Co. , 480 Mich. 105, 111, 746 N.W.2d 868 (2008). B. DEFAMATION AND THE FIRST AMENDMENT This Court will consider simultaneously Edwards' claims of defamation and invasion of privacy given that they share common factual allegations and in light of the protections of the First Amendment. Battaglieri v. Mackinac Ctr. for Pub. Policy , 261 Mich.App. 296, 303-304 & n. 4, 680 N.W.2d 915 (2004). When considering a defamation claim, the Court must make an "independent examination" of the facts to make sure that the speaker's First Amendment right of free expression is preserved. Kevorkian v. American Med. Ass'n , 237 Mich.App. 1, 5, 602 N.W.2d 233 (1999). To make a claim of defamation, a plaintiff must prove the following: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. [ Lakin v. Rund , 318 Mich.App. 127, 133, 896 N.W.2d 76 (2016) (quotation marks and internal citation omitted).] An additional requirement exists when the communication is made with reference to a public figure as opposed to a nonpublic private individual. With respect to a public figure, the defamatory statement must also have been made with actual malice, not just negligence. Kevorkian , 237 Mich.App. at 9, 602 N.W.2d 233. The parties agree that Edwards is a public figure for purposes of this lawsuit. Not all defamatory statements, even those made with actual malice, are actionable. The First Amendment protects communications that "cannot be reasonably interpreted as stating actual facts about the plaintiff," i.e., "expressions of opinion are protected." Ireland v. Edwards , 230 Mich.App. 607, 614, 584 N.W.2d 632 (1998). This Court has previously identified several categories of speech that fall within the constitutionally protected class of opinion speech, including: (1) statements that are both objectively verifiable but also necessarily subjective; (2) parodies, political cartoons, satires, and other statements that, while "factual on their face and provable as false, could not reasonably be interpreted as stating actual facts about the plaintiff"; (3) "statements that both do and do not state actual facts about a person"; and (4) expressions of opinion that otherwise "constitute no more than 'rhetorical hyperbole' or 'vigorous epithet,' " such as calling someone a "crook" or "traitor." Kevorkian , 237 Mich.App. at 6-8, 602 N.W.2d 233 (citations omitted). As our caselaw makes clear, the First Amendment provides "maximum protection to public speech about public figures with a special solicitude for speech of public concern." Id. at 9, 602 N.W.2d 233 (citation, ellipsis, and brackets omitted). The First Amendment's "maximum protection" is not, however, an absolute bar against a public figure's defamation claim. "Statements that are not protected and therefore are actionable include false statements of fact, i.e., those that state actual facts but are objectively provable as false and direct accusations or inferences of criminal conduct." Id. at 8, 602 N.W.2d 233. See also Lakin , 318 Mich.App. at 138, 896 N.W.2d 76 (identifying the types of criminal accusations that fall within the category of defamation per se). Simply being a member or an official of the Ku Klux Klan is not, by itself, a criminal act. Therefore, to have an actionable claim, Edwards must show, among other things, that Thompson's communication stated an actual, objectively verifiable factual assertion not otherwise protected under the First Amendment. In this context, if the statement can be understood both to be objectively verifiable but also to mean different things to different people-in other words, the statement is subjective and therefore open to several plausible interpretations-then the statement is not actionable. C. WHO IS A "LEADER"? Turning to the statement at issue-"white supremacist groups like the Ku Klux Klan and its leaders like James Edwards, David Duke and Thomas Robb, the national director of the Knights of the Ku Klux Klan in Arkansas"-defendants do not dispute that the possessive pronoun "its" refers to "the Ku Klux Klan" and not "white supremacist groups." If, in fact, "its" had referred to "white supremacist groups," then even Edwards admits he would not have a viable claim, as he has conceded on appeal that calling him a "white supremacist" would not be defamatory. Defendants' position makes sense for two reasons. First, the word "its" is singular, and it is therefore grammatically consistent with the singular "Ku Klux Klan" and not with the plural "white supremacist groups"-otherwise, "their" would have been the more appropriate possessive pronoun. Second, when defendants published the clarification, they also edited the opinion piece by deleting the word "its," thereby making "leaders" stand on its own without grammatical relation to either "white supremacist groups" or "the Ku Klux Klan." It is doubtful that defendants would have made this change had the word "its" referred to something other than "the Ku Klux Klan." For that reason, it appears clear that in his original opinion piece, Thompson described Edwards as a "leader" of the Klan, and we must determine whether this assertion is actionable under the circumstances. As noted earlier, defendants do not argue, and there is no record evidence to suggest, that Edwards holds or has held an official leadership role with the Klan or even that he was ever a member of the organization. In Edwards' view, these uncontested facts are dispositive, as he contends that the meaning of the term "leader," when referring to a formal group, necessarily implies membership in that group. He takes support from the fact that both Duke and Robb have held official leadership roles with Klan groups in the past. Under something akin to the canon of construction that a court should interpret a general term in light of the more specific ones in a series, Edwards argues that a reader would necessarily presume that he had an official affiliation with the Ku Klux Klan because both Duke and Robb had official affiliations with the Klan. We find this argument unconvincing for several reasons. Initially, we note that in newspaper editorials and opinion pieces a reasonable reader "expects to find the opinions and biases of the individual writers," Garvelink v. Detroit News , 206 Mich.App. 604, 611, 522 N.W.2d 883 (1994), whereas in statutes or contracts such opinions and biases are not similarly expected. Given this, and for a myriad of other reasons, a court should not hold an opinion piece in a newspaper to the same grammatical rigor as a statute or contract. And this leads to a second, crucial point-it is undeniable that there are multiple accepted definitions of the term "leader," and they are not nearly as constrained as Edwards would have us believe. The Oxford English Dictionary (2nd ed.) lists, in relevant part, the following definitions of the term: "One who conducts, precedes as a guide, leads a person by the hand..."; "One who leads a body of armed men; a commander, a captain"; "One who guides others in action or opinion; one who takes the lead in any business, enterprise or movement"; "[O]ne who is 'followed' by disciples or adherents; the chief of a sect or party"; "The foremost or most eminent member (of a profession); also, in wider sense, a person of eminent position and influence." For its part, the term "member" is defined, in part, as follows: "Each of the individuals belonging to or forming a society or assembly." Id . Edwards is correct in the narrow sense that one meaning of "leader" includes being "[t]he foremost or most eminent member" of a group. Thus, one plausible inference could be that Edwards, like Duke and Robb, had an official role with the Ku Klux Klan. Yet, Edwards is incorrect in a more fundamental sense because the term can be used and understood more broadly-e.g., a leader may be someone who "guides others in action or opinion," "one who takes the lead in any ... movement," "one who is 'followed' by disciples or adherents," or "in [a] wider sense, a person of eminent position and influence." Id . None of these latter meanings necessarily implies official affiliation with a particular group. Considering the multiple meanings that "leader" can have, we do not read the sentence to imply necessarily that Edwards must have held some official, designated leadership role in the Ku Klux Klan. Certainly, Edwards is correct that this could be one plausible interpretation. Yet, the sentence was part of a newspaper opinion piece, not a statute or contract, and just because the other two cited individuals once held office in the Klan, it does not logically follow that a reasonable reader would necessarily infer that the third listed individual also held office in the Klan. Another interpretation could be that Edwards was an opinion leader, one with position and influence over those who have sympathies for the Klan or who are actual members of the Klan. Edwards' own words and deeds lend plausibility to this latter interpretation. As recounted earlier, his radio show and website are replete with references to "pro-White" sentiments. One of his stated principles is to "grow the percentage of Whites in the world relative to other races," and he favorably cites opinions that intermarriage and immigration constitute a "genocide" against "European-Americans." Moreover, Edwards goes beyond "mere" white nationalism and ventures into even more extreme territory. For example, Edwards refers on several occasions to nonwhite persons in derogatory terms (e.g., "black malcontents"). Likewise, Duke and Dickson are frequent guests on the radio show, and both have past associations with the Ku Klux Klan. In fact, Edwards has embraced Duke to such an extent that the two are repeatedly photographed together, and Duke is a frequent writer of blog entries on the radio show's website. Most critically, Edwards himself has embraced those listeners who are interested in extreme forms of racism, white supremacy, anti-Semitism, and nativism. Specifically, Edwards publicly celebrated the fact that, beginning in 2006, his radio show would be carried on the "internet radio network"-i.e., Stormfront.org operated by Don Black, a person long associated with the Klan and with extremist views on race and ethnicity-and that this would give Edwards' radio show "access to another legion of loyal listeners" and was, in his estimation, a "perfect fit." Similarly to how Dr. Jack Kevorkian sought to inject himself into the debate on assisted suicide, see Kevorkian , 237 Mich.App. at 13-14, 602 N.W.2d 233, Edwards has sought to inject himself into the national debate on racism and ethnicity. He has staked out some extreme positions, has publicly eschewed giving his listeners "both sides" of the debate, and has enthusiastically embraced several individuals, including Duke, Black, and Dickson, who are publicly associated with the Ku Klux Klan. Edwards may not believe that he is a leader of the Ku Klux Klan, but it is plausible that a reader of the statement who was also aware of Edwards' views and associates could conclude otherwise. Edwards did not discuss or even cite this Court's controlling Kevorkian decision on defamation in either of his appellate briefs. Instead, he asks that we follow the Supreme Court of Montana's decision in Roots v. Montana Human Rights Network , 275 Mont. 408, 913 P.2d 638 (1996). We decline the invitation to do so, given that Roots is not binding precedent in Michigan, see Wells Fargo Bank, NA v. Null , 304 Mich.App. 508, 533; 847 N.W.2d 657 (2014), and the facts in that case are materially different from those here. For example, the plaintiff in Roots was not labeled a "leader" of the Ku Klux Klan but rather an "organizer" of the group, which calls to mind a more-specific relationship with the group. Roots , 275 Mont at 410, 913 P.2d 638. Moreover, the assertion was made in a booklet, not a newspaper opinion piece, and there was a question of fact whether the plaintiff was a public figure. Id . at 410, 412, 913 P.2d 638. These and other differences make Roots not particularly persuasive in this case. Our reading that defendants' statement is necessarily subjective gains further support from the only other judicial decision cited by the parties or found in our research involving the meaning of "leader" in the context of a defamation claim. In Egiazaryan v. Zalmayev , 880 F.Supp.2d 494, 499 (S.D.N.Y 2012), the plaintiff sued the defendant for defamation based on several communications, including the assertion that the plaintiff was a "leader" of a Russian political party that had strong anti-Semitic and xenophobic strands. The federal district court noted that the assertion was an expression of opinion, not fact. Id . at 507-508. The court also focused on the context of the statement: When used in political discourse, terms of relation and association often have meanings that are "debatable, loose, and varying," rendering the relationships they describe insusceptible of proof of truth or falsity. The word "leader" has a debatable, loose and varying meaning when used to describe the relationship of a prominent politician to the political party he overtly represents. Egiazaryan is an admittedly "prominent" former banker who assumed managerial roles in the Duma while occupying an LDPR [Liberal Democratic Party of Russia] seat there for over a decade. Given the vagueness of the word "leader" in this context, and given Egiazaryan's admitted prominence and overt association with the LDPR, the assertion that he is a "leader" of the LDPR is a non-provable opinion. [ Id. at 512 (citation omitted).] The federal district court concluded that the assertion was a "non-provable opinion." Under the framework our Court set out in Kevorkian , we arrive at a similar conclusion. In the context of an opinion piece about a crucially important topic-the 2016 presidential campaign-defendants' use of the term "leader" was ambiguous and could plausibly be understood to mean different things to different readers. The term could be understood to mean that Edwards had an official leadership position with the Ku Klux Klan, similar to that of Duke and Robb. Alternatively, the term could be understood to mean that Edwards was someone who guided "disciples or adherents" of the Ku Klux Klan "in action or opinion" or that, "in a wider sense," Edwards was "a person of eminent position and influence" to the Ku Klux Klan and its sympathizers. Or, a reader could simply assume that Thompson and The Detroit News were unacceptably biased in their political leanings and reject outright the assertions and arguments made in the opinion piece. Any of these interpretations, and likely others, would be plausible readings of defendants' opinion piece. Given this, defendants' use of the term "leader" was both "necessarily subjective" and "objectively verifiable," and, therefore, the statement, even if otherwise defamatory, was not actionable under Michigan law. Kevorkian , 237 Mich.App. at 5-6, 13-14, 602 N.W.2d 233. Because we find that defendants' statement is protected opinion speech, we do not address defendants' other arguments that the statement was substantially true or that Edwards is libel-proof. III. CONCLUSION As a radio show host, the First Amendment protects Edwards' right of free speech. But similarly, the First Amendment also protects defendants' right of free speech. As explained here, defendants made a statement in a newspaper opinion piece that, given Edwards' expressed views and his close associates, necessarily could be interpreted in different ways by different readers-in other words, the statement is inherently imprecise and indefinite and thus open to several plausible interpretations rather than provably true or false. The statement is, therefore, protected opinion speech. Accordingly, there is no genuine issue of material fact regarding Edwards' defamation and invasion-of-privacy claims. We affirm the trial court's grant of summary disposition in favor of defendants, and as the prevailing parties on appeal, defendants may tax costs. Gleicher, P.J., and Fort Hood, J., concurred with Swartzle, J. Aesop, The Ass & His Purchaser in Aesop's Fables (Ware, Hertfordshire: Wordsworth Editions Limited, 1994), p 142. This background is gleaned from the parties' briefs and exhibits, as well as Edwards' radio show website (www.thepoliticalcesspool.org), the latter of which is quoted and cited extensively in the complaint and briefs. We also reviewed the following public records and judicial decisions: United States House of Representatives Committee on Un-American Activities, The Present-Day Ku Klux Klan Movement , H R Doc No 90-377 (1967); Virginia v. Black , 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ; United States v. Milbourn , 600 F.3d 808 (C.A. 7, 2010) ; United States v. Black , 685 F.2d 132 (C.A. 5, 1982) ; State v. Duke , 362 So.2d 559 (La. 1978), overruled by State v. Johnson , 664 So.2d 94 (La. 1995). See MRE 201 (judicial notice of adjudicative facts); Johnson v. Dep't of Natural Resources , 310 Mich. App. 635, 649, 873 N.W.2d 842 (2015) (noting that MRE 201 allows a court to take judicial notice of public records). The following newspaper articles were also consulted: Saslow, The White Flight of Derek Black , Washington Post (Octtober 15, 2016); Applebome, Duke: The Ex-Nazi Who Would Be Governor , New York Times (Nov. 10, 1991). We acknowledge that the two articles were not included in the record and that Court cannot take judicial notice of a newspaper article for the truth of the matters asserted therein because of the general prohibition against inadmissible hearsay. People v. McKinney , 258 Mich.App. 157, 161 n. 4, 670 N.W.2d 254 (2003). We can, however, take notice of the fact that the two articles were published, and this is especially pertinent in a defamation case implicating First Amendment principles, where the inquiry focuses on, among other things, what reasonable readers would have understood at the time the communication was made and how a plaintiff's reputation in the community was impacted. Cf. Washington Post v. Robinson , 290 U.S.App.D.C. 116, 935 F.2d 282, 291-292 (1991). In any event, the two articles merely supplement the cited public records and judicial decisions with respect to background on David Duke and Stephen Donald "Don" Black, and they have no direct bearing on our analysis of Edwards' claims against defendants.

On order of the Court, the application for leave to appeal the June 27, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.

Per Curiam. A jury convicted defendant of child sexually abusive activity, MCL 750.145c(2), possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v), and disseminating sexually explicit material, MCL 722.675. The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to 15 to 40 years' imprisonment for the child-sexually-abusive-activity conviction, two to eight years for the possession of cocaine conviction, and 2½ to 4 years for the dissemination-of-sexually-explicit-material conviction. Defendant appeals as of right. We affirm. The 52-year-old defendant's convictions arise from his interaction with his neighbor, a 16-year-old male, in defendant's Dearborn apartment on August 12, 2015. The prosecution presented evidence that defendant spoke to the victim outside, asked the victim his age, and then invited the victim into his apartment. While inside defendant's apartment, the victim sat on the couch, defendant put his arm around the victim, and defendant used his cell phone to show the victim a video of two men engaging in sexual intercourse. Defendant offered the victim $25 if he would allow defendant to insert his fingers in the victim's anus and masturbate on the victim, and defendant later offered the victim $100 to engage in sexual intercourse. The victim declined both offers, and thereafter, when defendant briefly left the apartment, the victim fled and reported the incident to a neighbor. The neighbor contacted police, and officers arrested defendant. During an inventory search, officers found cocaine in the pocket of defendant's pants. At trial, defendant denied any wrongdoing and asserted that the testimony of the victim and the police was inconsistent and not credible. On appeal, defendant first argues that there was insufficient evidence to support his conviction for child sexually abusive activity. We disagree. We review de novo a challenge to the sufficiency of the evidence. People v. Bailey , 310 Mich.App. 703, 713, 873 N.W.2d 855 (2015). When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Reese , 491 Mich. 127, 139, 815 N.W.2d 85 (2012). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury's verdict." People v. Nowack , 462 Mich. 392, 400, 614 N.W.2d 78 (2000). Initially, we reject defendant's claim that MCL 750.145c is limited to criminalizing conduct involving the production of child sexually abusive material. Whether conduct falls within the scope of a criminal statute, in this case MCL 750.145c(2), is a question of statutory interpretation that we review de novo. People v. Hill , 486 Mich. 658, 667-668, 786 N.W.2d 601 (2010). When construing a statute, our primary goal is to ascertain and give effect to the intent of the Legislature. People v. Perry , 317 Mich.App. 589, 604, 895 N.W.2d 216 (2016). To that end, we begin by examining the plain language of the statute, and "where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed and enforce that statute as written." People v. Holder , 483 Mich. 168, 172, 767 N.W.2d 423 (2009). "[O]nly where the statutory language is ambiguous may we look outside the statute to ascertain legislative intent." Id . The statute proscribing child sexually abusive activity provides: A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, copies, reproduces, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any child sexually abusive activity or child sexually abusive material for personal, distributional, or other purposes is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. [ MCL 750.145c(2) (emphasis added).] Thus, among the types of conduct expressly proscribed by MCL 750.145c(2) is "arrang[ing] for ... or ... attempt[ing] or prepar[ing] or conspir[ing] to arrange for ... any child sexually abusive activity or child sexually abusive material ...." (Emphasis added.) MCL 750.145c(1)(n) defines "child sexually abusive activity" as "a child engaging in a listed sexual act." "Child" means "a person who is less than 18 years of age." MCL 750.145c(1)(b) and MCL 750.145c(6). A listed sexual act is defined to include "sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity." MCL 750.145c(1)(i). The statute provides a separate definition for "child sexually abusive material." See MCL 750.145c(1)(o). This Court has recognized that MCL 750.145c(2) applies to three distinct groups of persons. People v. Adkins , 272 Mich.App. 37, 40, 724 N.W.2d 710 (2006). The first category includes a person "who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material...." MCL 750.145c(2) ; Adkins , 272 Mich.App. at 40, 724 N.W.2d 710. This category refers to those who are engaged in the production of pornography. It is undisputed that defendant does not fall within this group. The second category includes a person who "arranges for, produces, makes, copies, reproduces, or finances ... any child sexually abusive activity or child sexually abusive material...." MCL 750.145c(2) ; Adkins , 272 Mich.App. at 41, 724 N.W.2d 710. The last category is defined to include a person "who attempts or prepares or conspires to arrange for, produce, make, copy, reproduce, or finance any child sexually abusive activity or child sexually abusive material...." MCL 750.145c(2) ; Adkins , 272 Mich.App. at 41, 724 N.W.2d 710. The use of the disjunctive "or" in the second and third categories clearly and unambiguously indicates that persons who arrange for or attempt or prepare to arrange for child sexually abusive activity face criminal liability. See Adkins , 272 Mich.App. at 41, 724 N.W.2d 710. "The Legislature thus omitted from the second and third groups subject to criminal liability any requirement that the individuals therein must have acted for the ultimate purpose of creating any child sexually abusive material, a specific requirement applicable to the first group of criminals." Id. at 42, 724 N.W.2d 710. Accordingly, we reject defendant's argument that MCL 750.145c is limited to conduct involving the production of sexually abusive material. The allegations against defendant squarely place him within the group of persons on whom MCL 750.145c(2) imposes criminal liability. Turning to the sufficiency of the evidence to support defendant's conviction, we conclude that, viewed in a light most favorable to the prosecution, the evidence was factually sufficient to show that defendant arranged for, or attempted to arrange or prepare for, child sexually abusive activity with the 16-year-old victim. The evidence showed that the 52-year-old defendant invited the 16-year-old victim into his apartment, showed the victim a pornographic video of two men engaging in sexual intercourse, offered the victim $25 to allow defendant to insert his fingers into the victim's anus while he masturbated, and later offered the victim $100 to engage in sexual intercourse. This was sufficient for a rational trier of fact to find that the essential elements of child sexually abusive activity were proved beyond a reasonable doubt. As discussed earlier, the prosecution was not required to prove that defendant's conduct involved the production of child sexually abusive material. Our conclusion is supported by People v. Aspy , 292 Mich.App. 36, 808 N.W.2d 569 (2011). In that case, the defendant, who was from Indiana, communicated in a website chatroom with a woman pretending to be a 14-year-old girl. Id . at 38, 808 N.W.2d 569. Eventually, the defendant and the woman pretending to be the 14-year-old girl made plans to meet in person, and when the defendant arrived at the address provided, the police arrested him. Id . at 39-40, 808 N.W.2d 569. The defendant was subsequently charged and convicted under MCL 750.145c(2). Id . at 38, 808 N.W.2d 569. Defendant in this case correctly points out that Aspy dealt with whether a Michigan court had jurisdiction over the Aspy defendant, but, as part of that determination, the parties in Aspy disputed, and the Aspy Court had to determine, whether the prosecution presented sufficient record evidence to support a criminal prosecution. Id . at 42, 808 N.W.2d 569. This Court concluded that "the prosecution presented more than sufficient evidence to allow a rational jury to conclude that [the] defendant prepared and attempted to commit child sexually abusive activity...." Id . at 42-43, 808 N.W.2d 569. Relying on Adkins , the Aspy Court concluded that MCL 750.145c(2) only requires that a defendant prepare to arrange for child sexually abusive activity and " 'does not require that those preparations actually proceed to the point of involving a child.' " Id . at 43, 808 N.W.2d 569, quoting Adkins , 272 Mich.App. at 46, 724 N.W.2d 710. The Aspy Court held that there was sufficient evidence that the "defendant acted consistently with the preparations he had made to commit child sexually abusive activity" by driving "into Michigan to a location where he intended to meet a child whom he believed to be under the age of 18" and "engage in behavior wrongful under MCL 750.145c(2)." Aspy , 292 Mich.App. at 43-44, 808 N.W.2d 569. Next, defendant argues that a new trial is required because the trial court's conduct pierced the veil of judicial impartiality and denied him a fair trial. We disagree. "The question whether judicial misconduct denied defendant a fair trial is a question of constitutional law that this Court reviews de novo." People v . Stevens , 498 Mich. 162, 168, 869 N.W.2d 233 (2015). A defendant must overcome a heavy presumption of judicial impartiality when claiming judicial bias. People v. Jackson , 292 Mich.App. 583, 598, 808 N.W.2d 541 (2011). In determining whether a trial judge's conduct deprives a defendant of a fair trial, this Court considers whether the "trial judge's conduct pierces the veil of judicial impartiality." Stevens , 498 Mich. at 164, 170, 869 N.W.2d 233. "A judge's conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party." Id . at 171, 869 N.W.2d 233. This is a fact-specific inquiry, and this Court considers the "cumulative effect" of any errors. Id . at 171-172, 869 N.W.2d 233. A single instance of misconduct generally does not create an appearance that the trial judge is biased, unless the instance is "so egregious that it pierces the veil of impartiality." Id . at 171, 869 N.W.2d 233. In evaluating the totality of the circumstances, this Court should consider a "variety of factors," including the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge's conduct was directed at one side more than the other, and the presence of any curative instructions. [ Id . at 172, 869 N.W.2d 233.] In this case, defendant takes exception to the trial court limiting defense counsel's cross-examination of Dearborn Police Sergeant Brian Kapanowski about the sergeant's incorrect assumption that defendant was prohibited from being around schools pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq ., and purportedly belittling defense counsel by reading out loud the substance of MRE 611 when issuing its ruling. The following is the exchange from trial that defendant takes issue with on appeal: [Defense Counsel ]: And one of the things you were concerned about is if he could be alone with a minor, correct? [Sergeant Kapanowski ]: I believe it was a CSC [criminal sexual conduct] under thirteen year old [sic], so, yes, I was concerned whether or not he could have children in the residence as well as be close to schools and difference [sic] stipulations. [Defense Counsel ]: In the video you didn't say anything about being close to schools, correct, that we heard? [Sergeant Kapanowski ]: No, but that's part of the sexual offender registry. That's what I was assuming, too. I was thinking, I should say. [Defense Counsel ]: Thank you. And when you made that assumption were you saying- The Court : What assumption? [Defense Counsel ]: What he just said, the assumption about him not being able to be near minors or be around schools. [Defense Counsel ]: Whatever assumptions you made, okay, did you later come to find out after you arrested Mr. Willis that you were wrong? The Court : That's beyond that, [defense counsel]. [Defense counsel ]: Okay. The Court : Hold on, one second. Okay. I just want to say that Michigan Rule Evidence 6.11 [sic] says, that the Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. So as to, one, make the interrogation and presentation effective for the ascertainment of the truth; two, avoid needless consumption of time as applies here. So that was the reason for my limiting this to what was on the video and that's my reason for stopping that last question. One form of judicial bias is biased commentary in front of the jury. Stevens , 498 Mich. at 173, 869 N.W.2d 233. Reversal is proper "when the trial judge's ... comments were such as to place his great influence on one side or the other in relation to issues which our law leaves to jury verdict." Id . at 177, 869 N.W.2d 233 (citation and quotation marks omitted). In general, however, a trial judge's comment that is critical of or hostile to a party or his or her counsel is not sufficient to pierce the veil of judicial impartiality. Jackson , 292 Mich.App. at 598, 808 N.W.2d 541. A trial judge's rulings or opinions do not pierce the veil of judicial impartiality "unless there is a deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible." Id . (citation and quotation marks omitted). In this case, the general nature of the judicial intervention-controlling the proceedings-was not inappropriate. MRE 611(a) ; Stevens , 498 Mich. at 173, 869 N.W.2d 233. It is well established that the trial court has a duty to control trial proceedings in the courtroom and has wide discretion and power in fulfilling that duty. People v. Conley , 270 Mich.App. 301, 307, 715 N.W.2d 377 (2006). While a defendant's constitutional right to confront his accusers is secured by the right of cross-examination guaranteed by the Confrontation Clause, U.S. Const., Am. VI ; Const. 1963, art. 1, § 20, a court has latitude to impose reasonable limits on cross-examination, People v. Sexton , 250 Mich.App. 211, 221, 646 N.W.2d 875 (2002). Further, the trial court must "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." MRE 611(a). The trial court's remarks were not of such a nature as to unduly influence the jury. The record shows that the trial court appropriately exercised its discretion to control the trial to prevent improper questioning of the sergeant and avoid wasting time. Before the sergeant took the stand, the parameters of his testimony were discussed. On the basis of the parties' agreement, the trial court allowed a portion of a videorecording from the sergeant's squad car that depicted a conversation between the sergeant and the victim. The sergeant's testimony was limited to what transpired on the recording. Defense counsel, however, sought to ask the sergeant whether his assumption that defendant could not be around schools was incorrect. Similar testimony was previously placed before the jury at trial when a detective testified that it was not correct that defendant could not be around schools. Thus, the trial court evidently prevented further exploration on this matter because it was outside the scope of the trial court's ruling regarding the sergeant's testimony, irrelevant to the proceedings inasmuch as defendant was not charged with violating SORA, and repetitive. Defendant has provided no explanation, argument, or authority indicating how the evidentiary objection was improper and not in accordance with MRE 611(a). Instead, defendant focuses on the trial court "reading from a court rule" and the "tone and demeanor" in which the trial court recited the court rule, but defendant fails to also observe that defense counsel's behavior of ignoring the court's ruling very likely necessitated the court's reference to MRE 611. Before defense counsel's question that prompted the trial judge's reference to MRE 611, the trial court had interrupted defense counsel, noting that her questions about the sergeant's training were "beyond the redirect." In an apparent effort to continue, defense counsel stated, "Well, no, Judge, I understand that, but they never produced this witness." The trial court explained that defendant may call the sergeant as a defense witness but that her question was "beyond what we've gone into and what I said you should do or could cover on recross." Thus, the trial court's specific mention of MRE 611 occurred after the trial court had already cautioned defendant about the limitations on cross-examination. Yet defense counsel chose to question the sergeant on a matter that was outside the trial court's ruling. Considering the totality of the circumstances, the trial court's reading of MRE 611 was not calculated to cause the jury to believe that the court had any opinion regarding the case and was not likely to unduly influence the jury to defendant's detriment. Rather, it appears that the trial court was merely explaining its interruptions and was not intending to belittle defense counsel. Moreover, the trial court instructed the jury that the case must be decided only on the evidence, that its comments and rulings were not evidence, that it was not trying to influence the vote or express a personal opinion about the case when it made a comment or a ruling, and that if the jury believed that the court had an opinion, that opinion must be disregarded. Accordingly, to the extent that the trial court's conduct could be deemed improper, its instructions were sufficient to cure any error. Stevens , 498 Mich. at 190, 869 N.W.2d 233. Lastly, defendant argues that he is entitled to be resentenced because the trial court imposed an unreasonable departure sentence. However, defendant incorrectly asserts that the trial court imposed a departure sentence. The trial court scored the sentencing guidelines for defendant's conviction of child sexually abusive activity, which is a Class B offense. MCL 777.16g. Defendant received a total offense variable (OV) score of 10 points, which, combined with his 80 prior record variable (PRV) points, placed him in the F-II cell of the applicable sentencing grid, for which the minimum sentence range is 78 to 130 months. But because defendant was sentenced as a third-offense habitual offender, MCL 769.11, the upper limit of the guidelines range was increased by 50%, MCL 777.21(3)(b), resulting in an enhanced range of 78 to 195 months. MCL 777.63. Therefore, in sentencing defendant to a minimum sentence of 180 months, the trial court imposed a sentence within the appropriate guidelines range. Defendant does not allege a scoring error or argue that the court relied on inaccurate information when imposing his sentence. Accordingly, we affirm defendant's sentence. MCL 769.34(10) ; People v. Schrauben , 314 Mich.App. 181, 196 n. 1, 886 N.W.2d 173 (2016). Affirmed. Talbot, C.J., and Murray and O'Brien, JJ., concurred. Defendant also directs our attention to instances when the trial court issued unfavorable rulings on evidentiary matters and a request for an adjournment, which he alleges demonstrate bias. However, defendant has provided no explanation, argument, or authority indicating how the trial court's rulings were improper and not in accordance with the applicable rules. Judicial rulings on their own, even those unfavorable to a litigant, are not sufficient to demonstrate bias. Jackson , 292 Mich.App. at 598, 808 N.W.2d 541. Defendant has not shown that the trial court's conduct was improper.

Stephen J. Markman, Chief Justice On order of the Chief Justice, the motion to extend the time for filing the plaintiff-appellee's supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before September 27, 2018.

On order of the Court, the motion for reconsideration of this Court's May 28, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G).

On order of the Court, the motion for reconsideration of this Court's April 30, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G).

On order of the Court, the motion for reconsideration of this Court's May 28, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G).

On order of the Court, the motions to file a supplement are GRANTED. The applications for leave to appeal the March 12, 2019 orders of the Court of Appeals are considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND the case of People v. Jackson , Wayne CC: 09-003770-FC, to the Wayne Circuit Court for reconsideration of whether the defendant's May 24, 2016 motion for relief from judgment is a successive motion, as the circuit court states in the November 21, 2016 order denying relief from judgment, and for further proceedings as set forth in this order. We first note that the circuit court record is in disarray and possibly incomplete. Based on the record provided to this Court, the defendant filed his first motion for relief from judgment on July 16, 2015. The defendant sought to amend that motion on October 16, 2015. The amended motion for relief from judgment was returned to the defendant by order dated January 21, 2016, because it exceeded the page limit. The defendant was encouraged to resubmit the motion after redacting his issues and arguments to a more manageable length. The defendant refiled the motion on May 24, 2016. This motion was denied by the circuit court on November 21, 2016, in an order that characterized the motion as successive and denied relief under MCR 6.502(G). In support of its characterization of the motion for relief from judgment as a successive motion, the circuit court's November 21, 2016 order states that an earlier motion for relief from judgment was denied on November 24, 2015. No such order can be found in the record provided to this Court. The Register of Actions states that an order was entered on November 24, 2015, but it does not describe the order and this appears to be a reference to an unrelated order dated November 23, 2015, denying the defendant's request for a copy of the Register of Actions. We further note that the circuit court's description of the procedural history of the case in its January 26, 2016 opinion returning the motion for relief from judgment to the defendant, and in a March 11, 2016 order denying the defendant's request for the appointment of counsel, does not support the conclusion that the defendant's May 24, 2016 motion for relief from judgment is a successive motion. Under these circumstances, we REMAND the case of People v. Jackson to the Wayne Circuit Court for reconsideration of whether the defendant's May 24, 2016 motion for relief from judgment is a successive motion under MCR 6.502(G). On remand, the circuit court shall issue an opinion setting forth its analysis. If the circuit court determines that the defendant's motion for relief from judgment is not a successive motion, as appears to be the case based on the circuit court record provided to this Court, the circuit court shall decide the motion under the standard set forth in MCR 6.508(D). If, however, the court determines that the motion for relief from judgment was correctly denied under MCR 6.502(G) as a successive motion, it shall then rule on the motion for reconsideration that the defendant filed on December 9, 2016. A date-stamped copy of the motion for reconsideration is contained in the circuit court file, but the motion is not listed in the Register of Actions, and there is no order in the circuit court file deciding the motion. We do not retain jurisdiction.

On order of the Chief Justice, the separate motions to file briefs amicus curiae are GRANTED, and the amicus briefs submitted by the following entities are accepted for filing: 1) Charles River Laboratories, brief submitted on September 5, 2019. 2) Electricity Consumers Resource Council, brief submitted on September 6, 2019. 3) Foundry Association of Michigan, brief submitted on September 6, 2019. 4) Michigan Schools Energy Cooperative, brief submitted on September 6, 2019. 5) Michigan Chemistry Council and Grand Rapids Area Chamber of Commerce, brief submitted on September 6, 2019. 6) United States Steel Corporation, brief submitted on September 9, 2019. 7) Midcontinent Independent System Operator, Inc., brief submitted on September 10, 2019.

On order of the Court, the motion for rehearing is considered, and it is DENIED.

On order of the Court, the application for leave to appeal the March 14, 2019 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed whether the claims set forth in the plaintiffs' complaints are subject to arbitration. The time allowed for oral argument shall be 20 minutes for each side. MCR 7.314(B)(1). Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

M. J. Kelly, J. In this third-party automobile negligence claim, Gavino Piccione (by and through his next friend, plaintiff Mario Piccione) appeals as of right the trial court order granting summary disposition in favor of defendants Lyle A. Gillette and Plumber's Portable Toilet Service. We reverse the court's order and remand for further proceedings. I. BASIC FACTS This case arises out of a motor vehicle accident that occurred on December 5, 2016. It is undisputed that Gavino, who was three years old at the time, sustained injuries in the accident and was transported by ambulance to the hospital. Two days later, he returned because of pain in his left shoulder when he tried to lift his arm over his head. A CT scan showed that Gavino had an "[o]blique fracture of the mid diaphysis of the left clavicle." He was prescribed a sling, told to use ibuprofen and ice as needed for discomfort, and told to follow up with his primary care physician for a checkup in one week. Gavino's pediatrician later prescribed a clavicle strap. Gavino's parents testified regarding how Gavino's life differed after the injury, but they also testified that after three or four months, he was physically recovered from his injury and was able to resume his normal life. Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that Gavino's injury did not constitute a serious impairment of a body function because his injury required minimal treatment and only minimally restricted his lifestyle for a short period of time. At oral argument, defendants clarified that they were specifically arguing that plaintiff could not demonstrate that Gavino's injury affected his general ability to lead his normal life because after a three- or four-month period, he was no longer physically restricted. The trial court noted that "certainly when Gavino was in the sling he missed, you know, three to four-months of his normal life," adding that it is "obvious that a sling is going to slow down anyone that wears it for four-months." Yet, the court concluded that because Gavino had returned to "his probably very happy normal life as a four-year old," his injury did not rise to the level of a serious impairment of a body function. The court concluded that Gavino's normal life was "running around and playing and focusing on his toys and other kids that might be around," and given that he was able to resume almost entirely his preaccident normal life, the injury did not constitute a serious impairment of body function. Accordingly, the court granted summary disposition in favor of defendants. This appeal followed. II. SUMMARY DISPOSITION A. STANDARD OF REVIEW Plaintiff argues that the trial court erred by granting summary disposition. We review de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering , Inc. , 285 Mich. App. 362, 369; 775 N.W.2d 618 (2009). Under MCR 2.116(C)(10), summary 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." Patrick v. Turkelson , 322 Mich. App. 595, 605, 913 N.W.2d 369 (2018) (quotation marks and citation omitted). When considering such a motion, the reviewing court must review the "pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v. Barton Malow Co. , 480 Mich. 105, 111; 746 N.W.2d 868 (2008). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183; 665 N.W.2d 468 (2003). "Courts are liberal in finding a factual dispute sufficient to withstand summary disposition." Patrick , 322 Mich. App. at 605; 913 N.W.2d 369 (quotation marks and citation omitted). A court may not "make findings of fact; if the evidence before it is conflicting , summary disposition is improper." Id . at 605-606, 913 N.W.2d 369 (quotation marks and citation omitted). B. ANALYSIS Under Michigan's no-fault act, MCL 500.3101 et seq ., tort liability is limited. McCormick v. Carrier , 487 Mich. 180, 189; 795 N.W.2d 517 (2010). However, "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement." MCL 500.3135(1). Serious impairment of a body function "means an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life." MCL 500.3135(5). To prove a serious impairment of a body function, a plaintiff must establish: (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person's general ability to lead his or her normal life (influences some of the plaintiff's capacity to live in his or her normal manner of living). [ McCormick , 487 Mich. at 215, 795 N.W.2d 517.] In making that determination, "there is no bright-line rule or checklist to follow[.]" Chouman v. Home Owners Ins. Co. , 293 Mich. App. 434, 441; 810 N.W.2d 88 (2011). Instead, "[w]hether someone has suffered a serious impairment is 'inherently fact- and circumstance-specific and [the analysis] must be conducted on a case-by-case basis.' " Id ., quoting McCormick , 487 Mich. at 215, 795 N.W.2d 517 (brackets in original). In this case, the only question is whether the fracture to Gavino's clavicle affected his general ability to lead his normal life. In Patrick , this Court reiterated that an "impairment to an important body function affects a person's general ability to lead a normal life if it has 'an influence on some of the person's capacity to live in his or her normal manner of living.' " Patrick , 322 Mich. App. at 607, 913 N.W.2d 369, quoting McCormick , 487 Mich. at 202, 795 N.W.2d 517. Because no two people are alike, "the extent to which a person's general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person's normal manner of living is...." McCormick , 487 Mich. at 202-203, 795 N.W.2d 517. In other words, the inquiry is subjective. Patrick , 322 Mich. App. at 607, 913 N.W.2d 369. To show that the impaired person's ability to lead his or her normal life has been affected, we compare the person's life before and after the injury. Nelson v. Dubose , 291 Mich. App. 496, 499; 806 N.W.2d 333 (2011). Important to making this comparison is the fact that "the statute merely requires that a person's general ability to lead his or her normal life has been affected , not destroyed." McCormick , 487 Mich. at 202, 795 N.W.2d 517. Therefore, "courts should consider not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person's general ability to do so was nonetheless affected." Id . Additionally, "the statute only requires that some of the person's ability to live in his or her normal manner of living has been affected, not that some of the person's normal manner of living has itself been affected." Id . Lastly, as our Supreme Court explained in McCormick , "[w]hile the Legislature required that a 'serious disfigurement' be 'permanent,' it did not impose the same restriction on a 'serious impairment of body function.' " Id . at 203, 795 N.W.2d 517, quoting MCL 500.3135(1). Thus, there is no "express temporal requirement as to how long an impairment must last in order to have an effect on the person's general ability to live his or her normal life." McCormick , 487 Mich. at 203, 795 N.W.2d 517 (quotation marks omitted). In this case, Gavino was a three-year-old child at the time he suffered the impairment. His parents testified that as a result of the impairment, he was unable to go to school for approximately two weeks and that when he did return to school he was unable to use the play equipment. Additionally, they testified that after the accident they had to help him go to the bathroom, including by carrying him to the bathroom. His father testified that before the accident, Gavino could dress himself, but afterward he could not. There was also testimony that Gavino needed help going up and down stairs because his balance was negatively affected by his impairment. Further, at times, his ability to sleep without pain was also compromised; his father testified that on occasion Gavino would wake up complaining about shoulder pain. The record also reflects that before the accident Gavino liked to color, but after the accident he did not want to do so. And before the accident he rode his bicycle, played soccer, and played with his scooter in the basement, but after he was injured he was unable to do so. His mother testified that, generally, Gavino was "cautious" about physical activities after the accident. Viewing these facts in the light most favorable to plaintiff, a jury could conclude that Gavino's general ability to lead his normal life was affected by the impairment. Still, defendants direct our attention to facts in the record showing that Gavino's impairment did not last the entire three-to-four-month period he was in a sling/clavicle strap, and there is also evidence that Gavino's inability to go to school was only limited for two weeks. Although certainly relevant, that evidence suggests that there is a factual conflict with regard to the nature and extent of his injury. In such cases, summary disposition is not appropriate. See Nelson , 291 Mich. App. at 499, 806 N.W.2d 333 ("The question whether there is a serious impairment of body function is a question of law if there is no factual dispute about the injuries, or if any factual dispute is immaterial to the question."). Defendants also contend that Gavino's impairment eventually healed and he was able to return, unaffected, to his normal life. The trial court agreed, finding that although there was evidence that Gavino's general ability to lead his normal life was affected by the fracture to his clavicle, he was presently unaffected by the impairment, so he could not satisfy the third prong of the McCormick test. Yet, a person's ability to lead his or her general life does not have to be destroyed in order to constitute a threshold injury; it only needs to have been affected, and here the evidence allows for an inference that Gavino's general ability to lead his normal life was affected even though it was not completely destroyed. See McCormick , 487 Mich. at 202, 795 N.W.2d 517. Moreover, a serious impairment of body function-unlike a permanent serious disfigurement-does not have to be permanent, so the fact that the impairment to Gavino's important body function only lasted three or four months has no bearing on the question at hand. See id . Therefore, given that there is a genuine issue of material fact with regard to the third prong of the McCormick test, and given that the trial court erred in its application of the statute, summary disposition was not appropriate. Reversed and remanded for further proceedings. Plaintiff may tax costs as the prevailing party. MCR 7.219(A). We do not retain jurisdiction. Markey, P.J., and Swartzle, J., concurred. Markey, P.J. and Swartzle, J. (concurring ). We concur with the lead opinion. This case is factually analogous to Neci v. Steel , 488 Mich. 971, 790 N.W.2d 828 (2010). For reasons similar to those set out by Justice YOUNG in his concurring opinion in Neci , we conclude that binding precedent compels reversal and remand in this case.

On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing its brief is GRANTED. The brief will be accepted as timely filed if submitted on or before June 5, 2019.

On order of the Chief Justice, the motion of the Michigan Legislature to file a reply to the brief amicus curiae filed by Michigan One Fair Wage et al . is GRANTED. The reply submitted on March 27, 2019, is accepted for filing.

On order of the Chief Justice, the motion of defendants-appellees Darnell Earley, Gerald Ambrose, and Mike Brown to extend the time for filing their answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before April 18, 2019.

On order of the Chief Justice, the motion of respondents-appellees to extend the time for filing their supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before October 1, 2019.

On order of the Chief Justice, the motion of appellant United Educators to extend the time for filing its reply is GRANTED. The reply will be accepted as timely filed if submitted on or before August 27, 2019.

On order of the Chief Justice, the motions of plaintiffs-appellees to extend the time for filing their brief and to allow a brief that is no more than 65 pages are GRANTED. The brief will be accepted for filing if submitted on or before October 16, 2019.

On order of the Court, the stipulation signed by counsel for the parties agreeing to the dismissal of this application for leave to appeal is considered, and the application for leave to appeal is DISMISSED with prejudice and without costs. The motions to expedite and to stay the trial are DENIED as moot.

By order of October 5, 2018, the application for leave to appeal the December 28, 2017 judgment of the Court of Appeals was held in abeyance pending the decision in Henderson v. Civil Serv. Comm. On order of the Court, the case having been decided on March 15, 2019, 503 Mich. 978, 923 N.W.2d 595 (2019), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the motion for reconsideration of this Court's February 4, 2019 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G).

By order of October 5, 2018, the application for leave to appeal the December 28, 2017 judgment of the Court of Appeals was held in abeyance pending the decision in Henderson v. Civil Serv. Comm. (Docket No. 156270). On order of the Court, the case having been decided on March 15, 2019, --- Mich. ---- (2019), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the June 21, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion for sanctions and costs is DENIED.

On order of the Court, the application for leave to appeal the November 26, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the December 11, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the November 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the July 24, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Chief Justice, the motion of the Judicial Tenure Commission to file a responsive brief in excess of the page limitation is GRANTED. The responsive brief submitted on May 30, 2019, is accepted for filing.

On order of the Court, the application for leave to appeal the August 9, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of In re Robert E. Whitton Revocable Trust (Docket No. 158408) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case.

On order of the Chief Justice, Appellant's motion for reconsideration of the May 17, 2019 order is denied because it does not appear that the order was entered erroneously. Within 21 days of the date of this order, Appellant shall submit a copy of the May 17, 2019 order and refile a copy of the pleadings as ordered. Failure to comply with this order shall result in the administrative dismissal of Appellant's appeal.

On order of the Court, the application for leave to appeal the June 28, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the August 9, 2018 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether the Oakland Probate Court had jurisdiction to entertain the request for declaratory relief in light of McLeod v. McLeod , 365 Mich. 25, 112 N.W.2d 227 (1961). In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellees shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellees' brief. The parties should not submit mere restatements of their application papers. The Probate and Estate Section of the State Bar of Michigan is invited to file a brief amicus curiae. Other persons or groups interested in the determination of this issue may move the Court for permission to file briefs amicus curiae.

On order of the Chief Justice, the motion of the Michigan Legislature to file a reply to the brief amicus curiae filed by Michigan One Fair Wage et al . is GRANTED. The reply submitted on March 27, 2019, is accepted for filing.

Gadola, J. In Docket No. 337724, appellant, Jude and Reed, LLC, appeals by leave granted the order of the circuit court reversing the determination of the Chikaming Township Zoning Board of Appeals (ZBA) granting appellant's application for a nonuse zoning variance. In Docket No. 337726, appellant appeals as of right the same order of the circuit court. In both appeals, appellant challenges whether appellees are aggrieved parties who may contest the final order of the ZBA. We reverse and remand. I. FACTS AND BACKGROUND In 1957, Preston and Doris Sweet platted a 17-lot subdivision near Lake Michigan called the Merriweather Shores subdivision. In the following years, the Sweets conveyed some of the lots to buyers, while retaining other lots. This case involves Lot 6 of the subdivision. Lot 6 has 118 feet of frontage along Huntington Drive, is 82 feet deep, and has a total area of 9,676 square feet. The subdivision is located in Chikaming Township. At the time Merriweather Shores was platted, the township did not have a zoning ordinance. The township thereafter enacted a zoning ordinance in 1964, and in 1981, it enacted a new zoning ordinance. The parties agree that at some point after enactment of the 1981 ordinance, Lot 6 was rendered nonconforming because the ordinance required all lots to have a minimum area of 20,000 square feet for buildability. Regarding nonconforming lots, § 4.02(B) of the 1981 ordinance provided: If two or more lots or combination of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this ordinance, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this ordinance and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this ordinance, nor shall any division of any parcel be made which creates a lot with width or area less than the requirements stated in this ordinance. In 1982, Doris Sweet, as survivor of Preston Sweet, conveyed the remaining lots to herself and to David Sweet as joint tenants with rights of survivorship. The parties do not dispute that in 1989, David Sweet, as survivor of Doris Sweet, conveyed Lots 8 through 10 to unrelated parties but maintained ownership of Lots 6 and 7. In 1996, a prospective buyer, David Zilke, was interested in purchasing Lots 6 and 7 from David Sweet. Combined, Lots 6 and 7 had an area of 19,352 square feet, and Zilke requested a variance from the 20,000 square foot minimum for buildability and from the rear and side setback requirements. The ZBA denied the variance application, and Zilke declined to purchase the property. In 1998, the township adopted a new zoning ordinance, which remained in effect at the times relevant to this case. In 2011, the Berrien County Treasurer foreclosed on David Sweet's interest in Lot 7 for nonpayment of property taxes, and T&W Holdings, LLC, purchased Lot 7 at a tax foreclosure sale. In 2013, the Berrien County Treasurer foreclosed on David Sweet's interest in Lot 6 for nonpayment of property taxes, and appellant purchased Lot 6 at a tax foreclosure sale. Seeking to build a residential cottage on Lot 6, appellant filed an application with Chikaming Township for a nonuse variance under § 4.02(C) of the zoning ordinance. Appellant requested a nonuse dimensional variance under § 14.02, which requires all R-1 lots to have a minimum lot area of 20,000 square feet and a rear setback of 50 feet. Lot 6 had square footage of 9,676 and would require a rear setback of 30 feet. Appellant argued that as a nonconforming lot, Lot 6 was eligible for a variance pursuant to § 4.02 and § 4.06 of the zoning ordinance and that without the variance, Lot 6 would be rendered unusable. Before the ZBA held a hearing to address appellant's application, the township sent notice to property owners who owned property within a 300-foot radius of Lot 6. At the ZBA hearing, some of the neighboring property owners appeared by counsel to argue against the variance. Following public comment and extensive discussion by the ZBA members, the ZBA voted to approve the variance request. Appellees appealed the ZBA's decision in the circuit court, and the circuit court permitted appellant to intervene in the circuit court action. The ZBA moved to dismiss the circuit court action for lack of subject-matter jurisdiction, arguing that appellees lacked standing to challenge the ZBA's decision to grant the variance. Appellant joined the ZBA in the motion. Appellant and the ZBA argued that only an "aggrieved" party could appeal the ZBA's decision and that appellees were not aggrieved because they could not show that they suffered special damages. At the conclusion of the hearing on the motion, the trial court ruled that appellees had standing to appeal the ZBA decision to the circuit court, explaining: I find in this circumstance that the Legislature has a scheme that implies it intended to confer standing on these litigants. The Zoning Enabling Act [ MCL 125.3101 et seg.] provides, in section 3103, that notice shall be given to persons-all persons who have real property that is assessed within 300 feet of the property that is [the] subject of the request, and it seems to me that in the context of the [appellees] challenging the actions of the Zoning Board of Appeals, I-I must find that this notice requirement implies that the Legislature intended to confer standing to those individuals so as to qualify as aggrieved part[ies] for the purposes of the appeal under 3606.... [W]ere this not true ... only an applicant who's denied a variance would have standing to appeal save ... they can show themselves to otherwise have a special interest, the door would be open to those individuals. But, again, is that only individuals within the 300 feet, or is that any ole person that can show some other-some other interest .... [M]y interpretation is that the Legislature wouldn't intend that result to only confer the-the appeal status, particularly as I said, within the context of the Statute indicating that they must give notice to these folks within 300 feet. And also specifically indicating what that notice has to have when and where written comments will be received concerning the request. The circuit court also noted that the ordinance generally required a 50-foot setback for a septic system, and the ZBA provided appellant with a 20-foot variance for the septic system. The circuit court noted, "that seems to me that arguably there may be a special interest with respect to that, particularly with the contiguous properties." The circuit court denied the motion to dismiss, concluding that "given the notice Statute, it seems that ... [t]he Statute implies an intent to confer standing on [appellees]." After further proceedings, the circuit court reversed the ZBA's decision. The circuit court held that the ZBA did not have authority to grant the variance because appellant did not satisfy § 23.04 of the township's zoning ordinance, which permits the ZBA to grant a variance under specific conditions. Specifically, the circuit court found that any hardship was self-created, explaining: In the instant case, this Court finds that the hardship was self-created. Although [appellant and the ZBA] insist that "it was the passage of time and application of the Zoning Ordinance to the existing lots of record that created the hardship," the analysis in Johnson [v. Robinson Twp. , 420 Mich. 115, 359 N.W.2d 526 (1984) ] does not support that argument. When the 1964 Zoning Ordinance went into effect, Lot 6 was under common ownership and held continuous frontage with Lots 7, 8, 9 and 10 and thus, the lots were deemed as one lot for purposes of the Zoning Ordinance. Accordingly, Lot 6 was not a standalone lot and could not be considered a grandfathered nonconforming lot of record. The Sweets, the prior owners, then violated the Zoning Ordinance when they split Lot 6 and Lot 7 from the remaining lots and as a result, Lot 6 and Lot 7 could not be developed as standalone building sites. Like the plaintiff in Johnson , the zoning ordinance preceded the division of the property .... Moreover, it is worth noting that the Owner was a sophisticated buyer who was aware of the limitation on Lot 6 when it purchased the property for $6,054.00. The property remains available for use in conjunction with an adjacent parcel. Therefore, the Zoning Board of Appeals erred when they granted the variance because the practical difficulty was one that was produced by the Sweets, the Owner's predecessor in title, and accordingly, Section 23.04.D. was not satisfied. Appellant claimed an appeal in this Court (Docket No. 337726), challenging the circuit court's determination that appellees were aggrieved parties able to appeal the decision of the ZBA to the circuit court. Appellant also sought leave to appeal the same order of the circuit court (Docket No. 337724), raising additional challenges to the circuit court's ruling. This Court granted appellant's application for leave to appeal and consolidated the appeals. II. ANALYSIS Appellant first contends that appellees lacked standing to challenge the decision of the ZBA before the circuit court because they are not "aggrieved parties" within the meaning of the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq . We agree that appellees are not aggrieved parties within the meaning of the MZEA, and therefore were not able to invoke judicial review by the circuit court of the ZBA's decision granting appellant a nonuse variance. Municipalities have no inherent power to regulate land use through zoning. Whitman v. Galien Twp. , 288 Mich. App. 672, 679, 808 N.W.2d 9 (2010). Our state's Legislature, however, has granted this authority to municipalities through enabling legislation. Sun Communities v. Leroy Twp. , 241 Mich. App. 665, 669, 617 N.W.2d 42 (2000). In 2006, our Legislature consolidated three previous zoning enabling acts for cities and villages, townships, and counties into the MZEA. Whitman , 288 Mich. App. at 679, 808 N.W.2d 9. The MZEA grants local units of government authority to regulate land development and use through zoning. Maple BPA, Inc. v. Bloomfield Charter Twp. , 302 Mich. App. 505, 515, 838 N.W.2d 915 (2013). The MZEA also provides for judicial review of a local unit of government's zoning decisions. Specifically, § 605 of the MZEA, MCL 125.3605, provides that a decision of a zoning board of appeals is final, subject to appellate review by the circuit court. The circuit court is authorized under the MZEA to review the decision of a ZBA to determine whether the decision of the ZBA (a) complied with the Constitution and laws of this state, (b) was based on proper procedure, (c) was supported by competent, material, and substantial evidence, and (d) represented the ZBA's reasonable exercise of discretion. MCL 125.3606(1) ; Edw. C. Levy Co. v. Marine City Zoning Bd. of Appeals , 293 Mich. App. 333, 340, 810 N.W.2d 621 (2011). Our review of a circuit court's decision in an appeal from a decision of a zoning board of appeals is de novo to determine whether the circuit court " 'applied the correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the [ZBA's] factual findings.' " Hughes v. Almena Twp. , 284 Mich. App. 50, 60, 771 N.W.2d 453 (2009), quoting Boyd v. Civil Serv. Comm. , 220 Mich. App. 226, 234, 559 N.W.2d 342 (1996). In addition, we review de novo issues involving the construction of statutes and ordinances. Soupal v. Shady View, Inc. , 469 Mich. 458, 462, 672 N.W.2d 171 (2003). We also review de novo the legal question whether a party has standing. Barclae v. Zarb , 300 Mich. App. 455, 467, 834 N.W.2d 100 (2013). We note, however, that the term "standing" generally refers to the right of a plaintiff initially to invoke the power of a trial court to adjudicate a claimed injury. Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 290, 715 N.W.2d 846 (2006). In this case, appellees did not seek initially to invoke the power of the circuit court, but rather sought appellate review by the circuit court of the decision of the ZBA under § 605 of the MZEA. Section 605 of the MZEA provides: The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the circuit court for the county in which the property is located as provided under section 606. [ MCL 125.3605.] Thus, under the MZEA, a party seeking relief from a decision of a ZBA is not required to demonstrate "standing" but instead must demonstrate to the circuit court acting in an appellate context that he or she is an "aggrieved" party. MCL 125.3605. In discussing the similar provision of MCR 7.203(A), which provides that this Court has jurisdiction of an appeal of right filed by an "aggrieved party," our Supreme Court observed the difference between standing and the comparable interest in an appellate context of being an "aggrieved party," stating that "[t]o be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case and not a mere possibility arising from some unknown and future contingency." Federated Ins. Co. , 475 Mich. at 291, 715 N.W.2d 846 (quotations marks and citations omitted). An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court's power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [ Id . at 291-292, 715 N.W.2d 846 ]. Thus, the question in this case is more properly framed as not whether appellees had "standing," but specifically whether appellees were "parties aggrieved by the decision" of the ZBA within the meaning of the MZEA and thereby empowered by the MZEA to invoke appellate review of the ZBA's decision by the circuit court. To answer that inquiry, we look first to the provisions of the MZEA. Because the MZEA does not define the term "party aggrieved," we must engage in statutory interpretation, adhering to the well-settled rules governing such an inquiry. In doing so, our "primary goal is to discern the intent of the Legislature by first examining the plain language of the statute." Driver v. Naini , 490 Mich. 239, 246-247, 802 N.W.2d 311 (2011). "Statutory provisions must be read in the context of the entire act, giving every word its plain and ordinary meaning." Id . at 247, 802 N.W.2d 311"When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted." Id . The relevant statutory language provides that a "party aggrieved by the decision [of the ZBA] may appeal to the circuit court ...." MCL 125.3605. We do not assume that language chosen by the Legislature was inadvertent, Bush v. Shabahang , 484 Mich. 156, 169, 772 N.W.2d 272 (2009), and when interpreting statutory language that previously has been subject to judicial interpretation, we presume that the Legislature used the words in the sense in which they previously have been interpreted, People v. Wright , 432 Mich. 84, 92, 437 N.W.2d 603 (1989) ; People v. Powell , 280 Mich. 699, 703, 274 N.W. 372 (1937). In other contexts, this Court has defined the term "aggrieved party" as "one whose legal right is invaded by an action, or whose pecuniary interest is directly or adversely affected by a judgment or order." Dep't of Consumer & Indus. Servs. v. Shah , 236 Mich. App. 381, 385, 600 N.W.2d 406 (1999) (quotation marks and citations omitted). In the context of zoning, but before enactment of the MZEA, this Court interpreted and applied the phrase "aggrieved party" in cases arising under former zoning enabling acts. In doing so, this Court consistently concluded that to be a "party aggrieved" by a zoning decision, the party must have "suffered some special damages not common to other property owners similarly situated[.]" Unger v. Forest Home Twp. , 65 Mich. App. 614, 617, 237 N.W.2d 582 (1975), citing Joseph v. Grand Blanc Twp. , 5 Mich. App. 566, 571, 147 N.W.2d 458 (1967). Generally, a neighboring landowner alleging increased traffic volume, loss of aesthetic value, or general economic loss has not sufficiently alleged special damages to become an aggrieved party, Village of Franklin v. Southfield , 101 Mich. App. 554, 557, 300 N.W.2d 634 (1980), because those generalized concerns are not sufficient to demonstrate harm different from that suffered by people in the community generally. In Unger , the township granted a building permit for the construction of a condominium. The appellant appealed the decision in the circuit court, and the circuit court dismissed the appeal because the appellant was not an "aggrieved party." This Court affirmed, explaining that the appellant had not alleged facts sufficient to show special damages, alleging only the possibility of increased traffic on the lake and an effect on property values. Unger , 65 Mich. App. at 618, 237 N.W.2d 582. This Court concluded: In order to have any status in court to challenge the actions of a zoning board of appeals, a party must be "aggrieved[.]" The plaintiff must allege and prove that he has suffered some special damages not common to other property owners similarly situated[.] It has been held that the mere increase in traffic in the area is not enough to cause special damages[.] Nor is proof of general economic and aesthetic losses sufficient to show special damages[.] [ Id . at 617, 237 N.W.2d 582 (citations omitted).] In Western Mich. Univ. Bd. of Trustees v. Brink , 81 Mich. App. 99, 265 N.W.2d 56 (1978), the Kalamazoo Zoning Board of Appeals granted the defendant's petition to expand a nonconforming use and for variances to accommodate the expansion. The plaintiff university owned property within 300 feet of the defendant, and it sought in the circuit court to set aside the petition. This Court affirmed the circuit court's holding that the plaintiff was not an "aggrieved party" entitled to challenge the board's decision, rejecting plaintiff's argument that because it was entitled to notice under the former zoning legislation, it had standing to challenge the board's decision. Id . at 102-103, 265 N.W.2d 56. This Court also rejected the plaintiff's argument that it had standing because it was an adjoining property owner, stating: We see little reason for abandoning the general rule that third parties will be permitted to appeal to the courts as persons aggrieved if they can show that ... their property will suffer some special damages as a result of the decision of the board complained of, which is not common to other property owners similarly situated. ... If the board's decision does not pose a threat of unique harm to the neighbor, then the courts would be ill-served by a rule allowing his suit. [ Id. at 103 n. 1, 265 N.W.2d 56 (quotation marks and citations omitted).] In Village of Franklin , the defendant city council approved a site plan for a residential and commercial development. The village and a property owner challenged the decision in the circuit court, but the circuit court granted summary disposition to the defendant after concluding that the plaintiffs were not aggrieved parties under the former zoning legislation. On appeal, this Court expressly rejected the argument of the plaintiff property owner that she had standing because she owned land that adjoined the proposed development, holding that the property owner "failed to allege or prove special damages." Village of Franklin , 101 Mich. App. at 557, 300 N.W.2d 634. This Court explained: In order for a party to have standing in court to attack the actions of a zoning board of appeals, the party must be an aggrieved party, and standing cannot be based solely on the fact that such party is a resident of the city. In the present case, the circuit court relied on MCL 125.590, which authorizes an appeal to circuit court by a "party aggrieved" by a board of zoning appeals decision. We agree with the circuit court's decision that the present plaintiffs lacked standing because they were not aggrieved parties. [ Id . at 556-557, 300 N.W.2d 634 (citations omitted).] Given the long and consistent interpretation of the phrase "aggrieved party" in Michigan zoning jurisprudence, we interpret the phrase "aggrieved party" in § 605 of the MZEA consistently with its historical meaning. Therefore, to demonstrate that one is an aggrieved party under MCL 125.3605, a party must "allege and prove that he [or she] has suffered some special damages not common to other property owners similarly situated[.]" Unger , 65 Mich. App. at 617, 237 N.W.2d 582. Incidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes are insufficient to show that a party is aggrieved. See id . ; Joseph , 5 Mich. App. at 571, 147 N.W.2d 458. Instead, there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience. See Brink , 81 Mich. App. at 103 n. 1, 265 N.W.2d 56. Moreover, mere ownership of an adjoining parcel of land is insufficient to show that a party is aggrieved, Village of Franklin , 101 Mich. App. at 557-558, 300 N.W.2d 634, as is the mere entitlement to notice, Brink , 81 Mich. App. at 102-103, 265 N.W.2d 56. A review of the record in this case indicates that, contrary to the holding of the circuit court, appellees failed to demonstrate that they were aggrieved parties for purposes of the MZEA. Appellees argued before the circuit court that they were aggrieved because (1) they relied on the 1996 variance denial concluding that Lot 6 was unbuildable, (2) they relied on the zoning ordinance to be enforced as it is written, (3) they were entitled to receive notice of the public hearing before the ZBA as owners of real property within 300 feet of Lot 6, and (4) they would suffer aesthetic, ecological, practical, and other alleged harms from the grant of the zoning variance. These alleged injuries, however, do not establish appellees as aggrieved parties under MCL 125.3605. Aesthetic, ecological, and practical harms are insufficient to show "special damages not common to other property owners similarly situated[.]" Unger , 65 Mich. App. at 617, 237 N.W.2d 582. Similarly, appellees' expectations that the 1998 zoning ordinance would be interpreted in the same manner as the 1981 zoning ordinance, or that the ZBA would arrive at the same decision as the 1996 denial of an altogether different variance request, were not sufficient to show special damages. Because appellees failed to show that they suffered a unique harm different from similarly situated community members, they failed to establish that they are parties aggrieved by the decision of the ZBA. Although the circuit court noted that septic systems and setback requirements specifically affected the property of neighboring landowners, there is no evidence that such damages are more than speculation or anticipation of future harm. Presumably, appellant would not be permitted to install a septic system that did not satisfy all the requisite county health codes and building requirements. Thus, assuming that appellant obtained the requisite permits, there is nothing to support the conclusion that adjoining landowners would suffer the harm they anticipate. The circuit court also held that appellees had standing to challenge the issuance of the nonuse variance because they owned real property within 300 feet of Lot 6 and therefore were entitled to notice under the MZEA. MCL 125.3103 provides in relevant part: (1) Except as otherwise provided under this act, if a local unit of government conducts a public hearing required under this act, the local unit of government shall publish notice of the hearing in a newspaper of general circulation in the local unit of government not less than 15 days before the date of the hearing. (2) Notice required under this act shall be given as provided under subsection (3) to the owners of property that is the subject of the request. Notice shall also be given as provided under subsection (3) to all persons to whom real property is assessed within 300 feet of the property that is the subject of the request and to the occupants of all structures within 300 feet of the subject property regardless of whether the property or structure is located in the zoning jurisdiction. This statutory notice provision does not confer the status of aggrieved party on appellees. In Brink , this Court addressed and rejected this argument, explaining: Plaintiff, as an owner of land located within 300 feet of defendant Brink's premises, was entitled to and did receive notice of the proceedings before the Zoning Board of Appeals .... However, plaintiff argues that [notice under] § 11 not only made plaintiff a proper party to any appeal taken by an aggrieved party, but also gave plaintiff itself standing to institute such an appeal, regardless of whether it was an aggrieved party. Plaintiff cites no authority for this construction of the statute, and we do not find it persuasive. The "aggrieved party" requirement is a standard limitation in state zoning acts providing for review of zoning board of appeals decisions. This requirement has repeatedly been recognized and applied in the decisions of this Court. Had the Legislature meant to unshoulder this burden from parties in plaintiff's status it could have done so in simple terms. However, § 11 does not speak in terms of standing to seek review, but only of notice and a right to appear .... We do not read this language as broadening the class of parties privileged to begin such reviews. [ Brink , 81 Mich. App. at 102, 265 N.W.2d 56 (citations omitted).] As in Brink , appellees' entitlement to notice under MCL 125.3103 of the ZBA proceedings does not create "aggrieved party" status for appellees under MCL 125.3105. Nothing in the MZEA or in Michigan's zoning jurisprudence supports reading "aggrieved party" status into the MZEA's notice requirement. Indeed, this reading of the notice provision runs contrary to this Court's decisions establishing that mere ownership of adjoining property is insufficient to establish a property owner as an aggrieved party. Accordingly, the circuit court erred by holding that appellees achieved status as "aggrieved parties" merely because they were entitled to notice under MCL 125.3103. Appellees rely on Brown v. East Lansing Zoning Bd. of Appeals , 109 Mich. App. 688, 311 N.W.2d 828 (1981), to support their "aggrieved" status, but a review of that case indicates that this argument is misguided. In Brown , the defendant East Lansing Zoning Board of Appeals granted the intervenor a variance to permit the construction of a duplex. The plaintiffs were neighboring landowners who objected to the construction of the duplex, and they appealed the decision in the circuit court. Id . at 690-691, 311 N.W.2d 828. The circuit court held that the plaintiffs were not parties aggrieved by the decision of the board. Id . at 692-693, 311 N.W.2d 828. On appeal, this Court held that the neighboring landowners had standing to appeal the defendant's grant of the variance, explaining: In Village of Franklin [101 Mich. App. at 556], 300 N.W.2d 634 ] this Court expressly relied on the fact that the appeal in that case was taken under [ MCL 125.590 ], which requires a party to be "aggrieved" in order to have standing to appeal. In the present case, on the other hand, plaintiffs' appeal was taken under [ MCL 125.585(6) ], which requires only that a person have "an interest affected by the zoning ordinance. " The fact that plaintiffs have an interest affected by defendant's decision to grant the variance is manifest in their active opposition to the variance and their participation in the different hearings. [ Id . at 699, 311 N.W.2d 828 (emphasis added).] Brown is unpersuasive here because it involved the application of a more permissive threshold for standing under a previous enabling statute that a person have '' 'an interest affected by the zoning ordinance.' " In contrast, the cases discussed above- Unger , 65 Mich. App. at 617, 237 N.W.2d 582 ; Brink , 81 Mich. App. at 102, 265 N.W.2d 56 ; and Village of Franklin , 101 Mich. App. at 556, 300 N.W.2d 634 -applied the "aggrieved person" threshold. Because the MZEA incorporated the "aggrieved person" threshold, see MCL 125.3605, we align our decision interpreting that language in the MZEA with the body of caselaw interpreting the "aggrieved person" threshold. We next address appellees' contention that appellant waived the issue of standing by not raising it before the ZBA. Appellees argue that they appeared before the ZBA together with counsel and presented their arguments in that forum without appellant challenging their right to do so and that appellant therefore waived any challenge to appellees' standing to pursue the appeal in the circuit court. Appellees rely on this Court's opinion in Glen Lake-Crystal River Watershed Riparians v. Glen Lake Ass'n , 264 Mich. App. 523, 695 N.W.2d 508 (2004), and also in Frankling v. Van Buren Charter Twp. , unpublished per curiam opinion of the Court of Appeals, issued July 15, 2008 (Docket No. 271228), 2008 WL 2744340. We conclude that appellees' reliance on these cases is misplaced. Glen Lake did not involve an appeal from a zoning decision of a local unit of government. Rather, Glen Lake involved a dispute under the inland-lake-levels part of Michigan's Natural Resources and Environmental Protection Act, MCL 324.30701. In that case, the Glen Lake Association, which earlier had been ordered by the trial court to operate the dam in question so as to maintain the water level of the lake at the ordered level, completely shut off the water flow into the Crystal River while constructing a new dam. A group of riparian property owners and a canoe livery on the river filed suit against the Glen Lake Association. After the trial court entered its order modifying the established lake level, the Association appealed in this Court, arguing that the trial court lacked subject-matter jurisdiction because the property owners did not have standing to bring the action. Glen Lake , 264 Mich.App. at 526-527, 695 N.W.2d 508. This Court recognized that the Association's challenge was actually a challenge to the property owners' legal capacity to sue and that the Association therefore should have raised the challenge in its first responsive pleading in the trial court, but instead the Association had acquiesced in the proceedings, then later attempted to assert the challenge. This Court concluded that because the Association had not challenged plaintiff's legal capacity to sue in its first responsive pleading, it had waived the issue. Id. at 528, 695 N.W.2d 508. The Glen Lake decision was thereafter cited by this Court in its unpublished opinion in Frankling for the proposition that "[c]hallenges to standing are waived if not timely raised." Id . at 3, citing Glen Lake , 264 Mich. App. at 528, 695 N.W.2d 508. We find these cases inapplicable here. Initially, we note that neither of these cases involved application of the MZEA or the same language used in the MZEA. Glen Lake did not involve an appeal from a zoning decision of a local unit of government. Frankling involved the application of MCL 125.293a, a provision of the now-repealed township zoning act, which provided that "a person having an interest affected by the zoning ordinance may appeal" a decision of the board of zoning appeals in the circuit court. Neither Glen Lake nor Frankling persuades us that appellant in this case was obligated to challenge appellees' right to appeal in the circuit court before appellees actually appealed. Appellees argue that appellant should have challenged their standing when they appeared before the ZBA. Appellant, however, is not challenging the appellees' right to appear at the public hearing before the ZBA and make public comments; rather, appellant is challenging the ability of appellees to thereafter appeal the decision of the ZBA in the circuit court. The ZBA was not the appropriate forum to address whether appellees were empowered to appeal the ZBA's decision as aggrieved parties. The question who may seek review of the ZBA decision before the circuit court is a question for initial determination by the circuit court, not by the ZBA. Moreover, at the time of the proceedings before the ZBA, the ZBA had not yet granted the variance and thus any challenge to appellees' ability to appeal that future decision would have been premature. So, although appellees had a right to participate in the ZBA's public hearing, the issue whether appellees were parties "aggrieved by the decision" of the ZBA under the MZEA with the right to appeal the decision of the ZBA in the circuit court was a question properly raised for the first time before the circuit court. Indeed, it could not have been raised any earlier. Lastly, we address appellees' reliance on our Supreme Court's opinion in Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 792 N.W.2d 686 (2010) (LSEA ). Appellees argue that under LSEA , they have standing to challenge the decision of the ZBA in this case. We disagree. LSEA involved the question whether the teachers in that case had standing to sue the school board for refusing to expel certain students who allegedly had physically assaulted the teachers. In that case, our Supreme Court stated: We hold that Michigan standing jurisprudence should be restored to a limited, prudential doctrine that is consistent with Michigan's longstanding historical approach to standing. Under this approach, a litigant has standing whenever there is a legal cause of action. ... Where a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if a statutory scheme implies that the Legislature intended to confer standing on the litigant. [ Id . at 372, 792 N.W.2d 686.] LSEA is inapplicable here. As discussed, this case involves not general notions of standing, that is, a plaintiff's right to invoke the power of the trial court regarding a claimed injury by another party, but instead application of a specific statutory provision of the MZEA that permits appellate review of a local unit of government's zoning decision when review is sought by a "party aggrieved" by the decision of that local tribunal. That is, the inquiry whether there is a "legal cause of action" that would justify finding that a plaintiff has standing to initiate an action, see id ., is not relevant where, as here, our inquiry is whether a party is empowered to seek appellate review under a particular statutory scheme. But we note that even if the LSEA analysis were applicable here, appellees would nonetheless lack standing because, just as they have not demonstrated that they are "aggrieved" within the meaning of the MZEA, they have not demonstrated "a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large" under LSEA . See id . In either situation, a party must establish that they have special damages different from those of others within the community. Appellees have not done so, asserting only the complaints of anticipated inconvenience and aesthetic disappointment that any member of the community might assert. But we reiterate that the inquiry here involves not an application of concepts of standing generally, but a specific assessment of whether, under the MZEA, appellees have established their status as aggrieved parties empowered to challenge a final decision of the ZBA. We conclude that appellees are not parties "aggrieved" under MCL 125.3605, having failed to demonstrate special damages different from those of others within the community. Accordingly, appellees did not have the ability to invoke the jurisdiction of the circuit court, and the circuit court erred by denying the township's and appellant's motion to dismiss the circuit court action. In light of our conclusion that appellees were not properly able to invoke the jurisdiction of the circuit court, it is unnecessary to address appellant's additional contentions of error in the circuit court's ruling. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. Murray, C.J., and Hoekstra, J., concurred with Gadola, J. Appellees, Martha Cares Olsen, Fritz Olsen, and others are neighboring property owners. In Docket No. 337724, this Court granted the motion of appellees Ronald DeVlam and Michelle DeVlam to be substituted as successors in interest for the Zwier Family Trust. Olsen v. Chikaming Twp. , unpublished order of the Court of Appeals, entered May 11, 2017 (Docket No. 337724). MCL 125.3103(2) requires notice of the public hearing to persons to whom property is assessed within 300 feet of the subject property. Olsen v. Chikaming Twp. , unpublished order of the Court of Appeals, entered July 14, 2017 (Docket No. 337724); Olsen v. Twp. of Chikaming , unpublished order of the Court of Appeals, entered July 14, 2017 (Docket No. 337726). We emphasize that we are not referring to the doctrine of "legislative acquiescence," which is highly disfavored in Michigan as an indicator of legislative intent. See Ray v. Swager , 501 Mich. 52, 78 n. 63, 903 N.W.2d 366 (2017), citing Donajkowski v. Alpena Power Co. , 460 Mich. 243, 258, 596 N.W.2d 574 (1999). Under the doctrine of legislative acquiescence, a court assumes that the Legislature tacitly approves a judicial interpretation if the Legislature does not thereafter correct the interpretation by the enactment of new legislation. By contrast, we apply here the established precept of statutory interpretation that when our Legislature enacts a statute including language that already has been subject to judicial interpretation, the Legislature intends the established interpretation of those words. We also note that Frankling is unpublished, and this Court's unpublished opinions are not binding on this Court. MCR 7.215(C) ; Paris Meadows , LLC v. Kentwood , 287 Mich. App. 136, 145 n. 3, 783 N.W.2d 133 (2010). And while before the ZBA, appellant could not possibly know of, and object to, the entire universe of possible parties who might in the future appeal a future decision of the ZBA. It has been notably observed that in LSEA , our Supreme Court overruled the previous understanding of standing in this state, establishing in its place a " 'limited, prudential doctrine' that uncoupled standing from its constitutional moorings," thereby creating a standing doctrine that should itself be overruled. Ader v. Delta College Bd. of Trustees , 493 Mich. 887, 888, 822 N.W.2d 221 (2012) ( Markman , J., dissenting). As Justice Corrigan in her dissent in LSEA observed, the standard for standing established in that case is a "broad and amorphous principle that promises to be nearly impossible to apply in a society that operates under the rule of law." LSEA, 487 Mich. at 417, 792 N.W.2d 686 ( Corrigan , J., dissenting).

On order of the Court, the application for leave to appeal the October 30, 2018 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The appellants shall file a supplemental brief within 42 days of the date of this order addressing whether the Court of Appeals erred when it concluded that there was a genuine question of fact as to whether there was an attorney-client relationship between the plaintiffs and the attorney who sent the initial letter on their behalf to one of the defendants. In addition to the brief, the appellants shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of being served with the appellants' brief. The appellees shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellants. A reply, if any, must be filed by the appellants within 14 days of being served with the appellees' brief. The parties should not submit mere restatements of their application papers.

Per Curiam. In August 2016, defendant was charged with two counts of first-degree criminal sexual conduct (CSC), MCL 750.520b, for conduct that allegedly occurred approximately 19 years earlier, on September 6, 1997. Defendant moved to dismiss the charges. The trial court granted the motion, concluding that the delay violated defendant's due-process rights. The prosecution now appeals as of right the trial court's order dismissing the charges with prejudice. Because defendant failed to show that he was prejudiced by the delay, the trial court abused its discretion by granting defendant's motion to dismiss. Accordingly, we reverse and remand for reinstatement of the charges. The procedural history in this case is uncontested. Defendant was originally charged with CSC in 1997 for allegedly assaulting PM, the victim in this case. In 1997, defendant was also charged with CSC for crimes perpetrated against two additional victims-RO and GF. At the preliminary examination for the PM case, PM failed to appear, purportedly because she was never subpoenaed. The examination was adjourned, but when PM failed to appear at the rescheduled preliminary examination, the trial court dismissed the case without prejudice. Meanwhile, proceedings related to the RO and GF cases were ongoing, and defendant eventually reached a plea agreement with the prosecution regarding those cases. On March 4, 1998, defendant was sentenced to concurrent terms of 15 to 25 years' imprisonment for three counts of first-degree CSC and one count of first-degree home invasion, MCL 750.110a(2), as enacted by 1994 PA 270. Defendant was released from prison on November 19, 2015. In August 2016, after obtaining DNA evidence implicating defendant in the PM case, the prosecution refiled the CSC charges that had been dismissed in 1997. Defendant moved to dismiss, arguing that the prosecution's delay in refiling the charges violated his constitutional due-process rights. The trial court agreed and granted defendant's motion. The prosecution now appeals, arguing that defendant failed to establish that he was prejudiced by the delay and that the trial court therefore abused its discretion by granting defendant's motion. We agree. "This Court reviews a trial court's ruling regarding a motion to dismiss for an abuse of discretion." People v. Adams , 232 Mich. App. 128, 132, 591 N.W.2d 44 (1998). "A trial court may be said to have abused its discretion only when its decision falls outside the range of principled outcomes." People v. Nicholson , 297 Mich. App. 191, 196, 822 N.W.2d 284 (2012). The underlying legal question, "whether the delay in charging defendant violated his right to due process of law," is a question of law that we review de novo. People v. Reid (On Remand ), 292 Mich. App. 508, 511, 810 N.W.2d 391 (2011). "A prearrest delay that causes substantial prejudice to a defendant's right to a fair trial and that was used to gain tactical advantage violates the constitutional right to due process." People v. Woolfolk , 304 Mich. App. 450, 454, 848 N.W.2d 169 (2014). Michigan applies a balancing test to determine whether a delay violates a defendant's constitutional right to due process of law. People v. Cain , 238 Mich. App. 95, 108, 605 N.W.2d 28 (1999). Under this balancing test, a defendant bears the initial burden of demonstrating prejudice. Adams , 232 Mich. App. at 134, 591 N.W.2d 44. [O]nce a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end. [ Id. (quotation marks and citation omitted).] To meet the initial burden of demonstrating prejudice, the defendant must present evidence of "actual and substantial prejudice to his right to a fair trial." Id. (quotation marks and citation omitted). Actual prejudice cannot be shown by mere speculation; that is, "[a] defendant cannot merely speculate generally that any delay resulted in lost memories, witnesses, and evidence, even if the delay was an especially long one." Woolfolk , 304 Mich. App. at 454, 848 N.W.2d 169 (citations omitted). "Substantial prejudice is that which meaningfully impairs the defendant's ability to defend against the charge in such a manner that the outcome of the proceedings was likely affected." People v. Patton , 285 Mich. App. 229, 237, 775 N.W.2d 610 (2009). In this case, the court found that defendant was prejudiced by the passage of time between the dismissal of charges in 1997 and the refiling of the charges in 2016. Specifically, the trial court concluded that defendant was prejudiced by the delay because, had the charges been pursued in 1997, (1) defendant "might have had an alibi witness" and (2) the charges relating to PM could have been included in the plea agreement relating to RO and GF, whereas defendant now essentially faces consecutive sentencing "that was never contemplated or bargained for or agreed upon in his original plea." Contrary to the trial court's conclusions, speculations regarding a possible alibi and the potential for adverse sentencing consequences do not constitute actual and substantial prejudice to defendant's right to a fair trial, and therefore defendant's due-process argument must fail because he has not shown prejudice. Adams , 232 Mich. App. at 134, 591 N.W.2d 44. In particular, the trial court first reasoned that defendant "might" have lost an alibi witness. The trial court hypothesized that, for all anyone knew, defendant "might have been on the clock at McDonald's that day...." However, regardless of the passage of time, speculation as to lost witnesses or evidence is insufficient to establish prejudice. See Woolfolk , 304 Mich. App. at 454, 848 N.W.2d 169. Defendant is tasked with presenting evidence of prejudice that is actual and substantial. Id. ; Adams , 232 Mich. App. at 134, 591 N.W.2d 44. Defendant has failed, however, to name any actual alibi witnesses, and he has failed to provide any details of a possible alibi defense. Cf. Patton , 285 Mich. App. at 237, 775 N.W.2d 610. Defendant has not shown prejudice based on the speculative possibility that he might have had an alibi. In attempting to establish prejudice, on appeal defendant refers to a specific witness-PM's son-who has died and is therefore no longer available as a witness. PM's son witnessed the assault on PM, and defendant now claims prejudice because this witness is unavailable. However, defendant also admits that he has no idea what testimony the witness would have offered, and there is no indication that the loss of this testimony actually and substantially prejudiced defendant's ability to receive a fair trial. "[A] defendant does not show actual prejudice based on the death of a potential witness if he has not given an indication of what the witness's testimony would have been ...." Adams , 232 Mich. App. at 136, 591 N.W.2d 44 (quotation marks and citation omitted). Indeed, given that the witness was a potential prosecution witness, it would seem that if any party has been prejudiced by the passage of time, it is the prosecution that will be detrimentally affected by the loss of this witness. See id. at 137, 591 N.W.2d 44. In short, the death of PM's son does not establish that defendant has suffered actual and substantial prejudice. Finally, the trial court also found that defendant was prejudiced with regard to sentencing because of the plea agreement in the RO and GF cases. The trial court theorized that defendant would have been able to include the charges relating to PM in that plea agreement and that defendant could have served his sentences concurrently, whereas now, if convicted and sentenced, defendant will effectively have received consecutive sentences. There are two flaws with the trial court's reasoning. First, while it is possible that the charges relating to PM could have been included in the plea agreement in 1997, there is nothing in the record to suggest that this possibility is anything more than speculation. That is, there is no indication that the parties intended for the plea agreement to apply to the PM case. Defendant cannot establish prejudice based on speculation regarding his plea agreement. See Woolfolk , 304 Mich. App. at 454, 848 N.W.2d 169. Second, and more importantly, defendant's attempt to show prejudice by demonstrating unfavorable sentencing ramifications is misplaced in the context of the due-process analysis before us. When considering whether a defendant was prejudiced by a delay in pursuing charges, "[w]hat must be kept in mind is that the prejudice to the defendant must impair his right to a fair trial, not merely that it has an adverse impact upon the sentence imposed upon the defendant." People v. Ervin , 163 Mich. App. 518, 520, 415 N.W.2d 10 (1987). See also United States v. Ivy , 678 Fed.Appx. 369, 374 n. 3 (CA 6, 2017) (finding that the defendant cited "no authority for the proposition that a delay that may affect one's ability to serve sentences concurrently ... implicates due process"). In other words, the question before the trial court was whether defendant's ability to defend against the charges had been meaningfully impaired by the prearrest delay, Patton , 285 Mich. App. at 237, 775 N.W.2d 610, not whether defendant might have received a better "package" deal or served concurrent sentences had the PM case been litigated in 1997, see Ervin , 163 Mich. App. at 520, 415 N.W.2d 10. Accordingly, the trial court erred by finding prejudice to defendant based on potentially negative sentencing consequences. Overall, defendant has not shown that his ability to defend against the CSC charges was impaired by the delay, and the burden therefore did not shift to the prosecution to establish the reasonableness of the delay. See Adams , 232 Mich. App. at 137, 591 N.W.2d 44. Because defendant has not presented evidence of prejudice, his due process claim is without merit. Accordingly, the trial court abused its discretion by granting defendant's motion to dismiss based on the delay in pursuing the charges related to PM. Id. at 138-139, 591 N.W.2d 44. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Sawyer, P.J., and Hoekstra and Murray, JJ., concurred. The trial court also suggested that defendant's original attorney, who has since died, could be considered ineffective for failing to ensure that the PM charges were included in the plea agreement; but without some indication that the prosecution was amenable to including the PM charges in the plea offer, there is no basis for concluding that defense counsel was ineffective during the plea-bargaining process, and defendant is not entitled to relief on this basis. See People v. Douglas , 496 Mich. 557, 592, 852 N.W.2d 587 (2014). Moreover, defendant's claim is not one for ineffective assistance; instead, he claimed a due-process violation based on the delay in pursuing charges relating to PM. As noted, the due-process inquiry focuses on a defendant's ability to defend against the charges, not his ability to obtain a plea bargain that would include concurrent sentencing. We see no basis for concluding that defendant's due-process rights were violated because his attorney failed to obtain resolution of the PM charges in 1997.

On order of the Chief Justice, the motion of respondent judge to file a reply in excess of the page limitation is GRANTED. The reply submitted on June 18, 2019, is accepted for filing.

On order of the Court, the application for leave to appeal the July 12, 2018 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether the Court of Appeals erred in holding that 2016 PA 341 does not authorize the Michigan Public Service Commission to impose a local clearing requirement on individual alternative electric suppliers. In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellees shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the respective appellee's brief. The parties should not submit mere restatements of their application papers. We further ORDER that this case be argued and submitted to the Court together with the case of In re Reliability Plans of Electric Utilities for 2017-2021 (Docket Nos. 158307-8), at such future session of the Court as both cases are ready for submission. The total time allowed for oral argument shall be 40 minutes: 20 minutes for Consumers Energy Company and Michigan Public Service Commission, and 20 minutes for Energy Michigan, Inc. and Association of Businesses Advocating Tariff Equity, to be divided at their discretion. MCR 7.314(B)(2). The Michigan Chamber of Commerce, Midcontinent Independent System Operator, and DTE Electric Company are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae. Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these cases should be filed in In re Reliability Plans of Electric Utilities for 2017-2021 (Docket Nos. 158305-6) only and served on the parties in both cases.

On order of the Court, the application for leave to appeal the July 12, 2018 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether the Court of Appeals erred in holding that 2016 PA 341 does not authorize the Michigan Public Service Commission to impose a local clearing requirement on individual alternative electric suppliers. In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellees shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the respective appellee's brief. The parties should not submit mere restatements of their application papers. We further ORDER that this case be argued and submitted to the Court together with the case of In re Reliability Plans of Electric Utilities for 2017-2021 (Docket Nos. 158305-6), at such future session of the Court as both cases are ready for submission. The total time allowed for oral argument shall be 40 minutes: 20 minutes for Consumer Energy Company and Michigan Public Service Commission, and 20 minutes for Energy Michigan, Inc. and Association of Business Advocating Tariff Equity, to be divided at their discretion. MCR 7.314(B)(2). The Michigan Chamber of Commerce, Midcontinent Independent System Operator, and DTE Electric Company are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae. Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these cases should be filed in In re Reliability Plans of Electric Utilities for 2017-2021 (Docket Nos. 158305-6) only and served on the parties in both cases.

On order of the Chief Justice, the motion to waive fees is considered and it is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be liable for filing fees. Initially, MCL 600.2963(8) does not bar the present application based on outstanding fees appellant owes this Court in Goldman v. Dept. of Corrections, MSC 155758 under In re Jackson , --- Mich. App. ----, --- N.W.3d ----, 2018 WL 6815416 (Docket No. 339724, issued December 27, 2018) because this application relates to an underlying criminal case and it is manifest that appellant cannot currently pay the outstanding fees. Appellant is not required to pay an initial partial fee. However, for an appeal to be filed, within 21 days of the date of this order, appellant shall submit a copy of this order and refile the copy of the pleadings returned with this order . By doing this, appellant becomes responsible to pay the $ 375.00 filing fee. Failure to comply with this order shall result in the appeal not being filed in this Court. If appellant timely refiles the pleadings, monthly payments shall be made to the Department of Corrections in the amount of 50 percent of the deposits made to appellant's account until the payments equal the balance due of $ 375.00. This amount shall then be remitted to this Court. Pursuant to MCL 600.2963(8), appellant shall not file a new civil action or appeal in this Court until the entry fee in this case is paid in full. The Clerk of the Court shall furnish two copies of this order to appellant and return a copy of appellant's pleadings with this order.

On order of the Court, the request by the Judicial Tenure Commission for the appointment of a Master is considered, and the Honorable William J. Caprathe is hereby appointed Master to hear Formal Complaint No. 100.

Per Curiam. These consolidated appeals involve a wrongful death action filed by Rebecca Goodwin as personal representative of Ezekiel Goodwin's estate (plaintiff). Following a jury trial, the trial court entered a judgment against defendant Northwest Michigan Fair Association in the amount of $1,000,000. Later, the trial court also entered an order awarding plaintiff taxable costs and prejudgment interest. Defendant now appeals as of right. For the reasons explained in this opinion, we conclude that the trial court erred by denying defendant's request to name Jeff Goodwin as a nonparty at fault and that on the facts of this case, failure to vacate the jury verdict would be inconsistent with substantial justice. Accordingly, we vacate the judgment in plaintiff's favor, we vacate the award of taxable costs and prejudgment interest, and we remand for a new trial. I. FACTS On August 8, 2012, while riding his bike, six-year-old Ezekiel Goodwin was hit by a truck driven by Tad Thompson. The accident occurred on a service drive on defendant's 80-acre fairground property during "fair week," an event featuring a carnival and amusement rides as well as 4-H club animal exhibitions and activities. Children and young adults ranging in age from 5 to 19 years old participated in the 4-H events, and many of the children and their families camped on-site during the week. Between the campground area and the animal barns there was a private service drive, and it was on this service drive that Ezekiel was struck. During fair week, pedestrians and bicycle riders, including children, used the service drive to travel from the campground area to the barns. Fair organizers were aware that pedestrians and bike riders used the service drive. However, unlike other roads on the property, the service drive was not closed to motor vehicle traffic during fair week. Motor vehicle use of the service drive was restricted insofar as only people with passes could drive onto the fairgrounds, and the speed limit on the fairgrounds was 5 ½ miles per hour. Those with passes included 4-H families, the members of the fair board, and service vehicles related to the fair, including vehicles hauling manure, emptying dumpsters, and tending outhouse facilities. Emergency vehicles could also use the drive if necessary. In other words, the service drive saw bicycle and pedestrian traffic as well as "intermittent" motor vehicle traffic during the fair. Ezekiel and his siblings were participating in 4-H events, and Ezekiel and members of his family-his father Jeff Goodwin, his sister, and his brother-were camping at the fairgrounds. On the morning of August 8, 2012, Jeff allowed Ezekiel to ride his bike, unaccompanied, from the family's campsite to the barns where Ezekiel planned to tend to his pony. Jeff was going to the bathhouse, and after shaving and brushing his teeth, he intended to meet Ezekiel at the barns. As Ezekiel was leaving, Jeff told Ezekiel that he would meet him at the door to the pony stall. Thompson had a pass to drive on the fairgrounds because he had a daughter participating in 4-H events. On the morning of August 8, 2012, Thompson drove his daughter to the fairgrounds to feed her cow. While driving on the service drive toward the animal barns, Thompson saw Ezekiel riding his bike on the road. After passing Ezekiel, Thompson's daughter reminded him that he forgot to stop at the feed lot. Thompson checked his mirrors and then began to back up. Unbeknownst to Thompson, Ezekiel was behind his truck in a blind spot, where someone of Ezekiel's height would not be visible on a bike. According to an eyewitness to the accident, Ezekiel sat on his bike and appeared to just watch the truck slowly back up into him. Tragically, Ezekiel was pinned beneath the truck, and he later died of his injuries. Following Ezekiel's death, Ezekiel's mother, Rebecca Goodwin, as the personal representative of Ezekiel's estate, filed the current wrongful-death lawsuit against defendant. Plaintiff's basic theory of the case was that the service drive was unreasonably dangerous because defendant allowed motor vehicle traffic on a path used by pedestrians and bike riders. According to plaintiff, defendant should have banned all motor vehicles, used "spotters" for vehicles, or erected barriers to create a separate bike path. Notably, defendant maintained that Jeff was negligent in his supervision of Ezekiel, and defendant attempted to name Jeff as a nonparty at fault. The trial court ultimately denied defendant's request, reasoning that the jury could not consider Jeff's potential fault because Jeff was entitled to parental immunity. Consistently with this ruling, the trial court instructed the jury that it could not consider whether Ezekiel's parents were negligent, and the jury was told to apportion 100% of the fault between defendant and Thompson. Following trial, the jury returned a verdict in favor of plaintiff on a "premises liability/nuisance" theory. With regard to Thompson, the jury concluded that he had been negligent. The jury then apportioned 50% of the fault to defendant and 50% of the fault to Thompson. The jury awarded a total of $2,000,000 in damages. Based on the jury's verdict, the trial court entered an order against defendant for 50% of the damages, i.e., $1,000,000. After trial, the trial court also awarded plaintiff taxable costs under MCR 2.625 and prejudgment interest under MCL 600.6013(8). Defendant now appeals as of right. Specifically, in Docket No. 335292, defendant challenges the jury verdict and the judgment in plaintiff's favor. Plaintiff has filed a cross-appeal in Docket No. 335292. In Docket No. 335963, defendant challenges the trial court's award of costs and prejudgment interest. II. NONPARTY AT FAULT On appeal, defendant first argues that a new trial should be granted because the trial court refused to allow the jury to consider Jeff as a nonparty at fault. Although Jeff is entitled to parental immunity from a lawsuit by Ezekiel or Ezekiel's estate, defendant maintains that this grant of immunity does not eliminate Jeff's parental duty to supervise Ezekiel, and because of this duty, defendant argues that Jeff may be named as a nonparty at fault for purposes of determining defendant's "fair share" of liability. Defendant also argues that there is substantial evidence that Jeff was negligent in his supervision of Ezekiel and that this negligence was a proximate cause of Ezekiel's death. According to defendant, a new trial is required to allow the jury to consider whether Jeff was negligent and to apportion fault to Jeff on the basis of his negligence. We agree. A. STANDARDS OF REVIEW "Statutory construction is a question of law subject to review de novo." Vandonkelaar v. Kid's Kourt, LLC , 290 Mich. App. 187, 196, 800 N.W.2d 760 (2010). Likewise, whether a duty exists is a question of law, which is reviewed de novo. Hill v. Sears, Roebuck & Co. , 492 Mich. 651, 659, 822 N.W.2d 190 (2012). If the trial court erred by refusing to allow the jury to consider Jeff's alleged negligence when apportioning fault, reversal is not required unless failure to vacate the jury verdict would be inconsistent with substantial justice. MCR 2.613(A) ; Pontiac Sch. Dist. v. Miller, Canfield, Paddock & Stone , 221 Mich. App. 602, 630, 563 N.W.2d 693 (1997). B. ANALYSIS Traditionally, Michigan followed a joint and several liability approach in tort cases involving multiple tortfeasors. Kaiser v. Allen , 480 Mich. 31, 37, 746 N.W.2d 92 (2008). Under this approach, "the injured party could either sue all tortfeasors jointly or he could sue any individual tortfeasor severally, and each individual tortfeasor was liable for the entire judgment, although the injured party was entitled to full compensation only once." Gerling Konzern Allgemeine Versicherungs AG v. Lawson , 472 Mich. 44, 49, 693 N.W.2d 149 (2005). A defendant's liability for the entire judgment existed even when one of the tortfeasors could not be held civilly responsible because of immunity. Bell v. Ren-Pharm, Inc. , 269 Mich. App. 464, 470, 713 N.W.2d 285 (2006). "In such a situation, a [defendant] who is not immune and who is subject to suit is jointly and severally liable for damages arising out of the acts of a person not named as a party because of some immunity protection." Id . However, in 1995, the Legislature enacted tort-reform legislation that "generally abolished joint and several liability and replaced it with fair share liability where each tortfeasor only pays the portion of the total damages award that reflects that tortfeasor's percentage of fault." Id . at 467, 713 N.W.2d 285 (quotation marks and citation omitted). These principles of fair-share liability are set forth in the comparative-fault statutes: MCL 600.2956, MCL 600.2957, and MCL 600.6304. Vandonkelaar , 290 Mich. App. at 190 n. 1, 800 N.W.2d 760. In particular, under MCL 600.2956, "[e]xcept as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint." In relevant part, MCL 600.2957 provides: (1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action . * * * (3) Sections 2956 to 2960 do not eliminate or diminish a defense or immunity that currently exists, except as expressly provided in those sections. Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action . [Emphasis added.] MCL 600.6304 states: (1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following: (a) The total amount of each plaintiff's damages. (b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action . (2) In determining the percentages of fault under subsection (1)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed. * * * (4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6) [in medical malpractice cases], a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1).... * * * (8)‰As used in this section, "fault" includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party. [Emphasis added.] As made plain in these provisions, the fact-finder must "allocate fault among all responsible torfeasors," regardless of whether the tortfeasor was or could have been named as a party to the action, and "each tortfeasor need not pay damages in an amount greater than his allocated percentage of fault." Gerling , 472 Mich. at 51, 693 N.W.2d 149. See also Barnett v. Hidalgo , 478 Mich. 151, 167, 732 N.W.2d 472 (2007). However, when there is an assertion that a person's negligence is a proximate cause of the damage sustained by a plaintiff, before fault may be allocated to that person under the comparative-fault statutes, there must be proof that the person owed a legal duty to the injured party. Romain v. Frankenmuth Mut. Ins. Co. , 483 Mich. 18, 21-22, 762 N.W.2d 911 (2009). "Without owing a duty to the injured party, the 'negligent' actor could not have proximately caused the injury and could not be at 'fault' for purposes of the comparative fault statutes." Id . at 22, 762 N.W.2d 911. 1. PARENTAL DUTY TO SUPERVISE Before fault may be apportioned to Jeff, there must be a threshold determination that Jeff owed Ezekiel a duty. Id. at 21-22, 762 N.W.2d 911. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person." Moning v. Alfono , 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977) (citations omitted). Michigan has long recognized that "both nature and the law impose" on parents "the duty of care and watchfulness" with regard to their children. Ryan v. Towar , 128 Mich. 463, 479, 87 N.W. 644 (1901). See also Lyshak v. Detroit , 351 Mich. 230, 234, 88 N.W.2d 596 (1958) (opinion by SMITH , J.). As persons responsible for their children, parents cannot allow their children "too young to understand danger" to wander unattended; rather, parents, as persons with "special dealings" with children, are expected to provide care and protection. Hoover v. Detroit, G.H. & M. R. Co. , 188 Mich. 313, 321-323, 154 N.W. 94 (1915) (quotation marks and citation omitted). Stated differently, "parents have a duty to supervise their own children, or determine that their children are of sufficient age and maturity to no longer need such supervision." Stopczynski v. Woodcox , 258 Mich. App. 226, 236, 671 N.W.2d 119 (2003) (quotation marks and citation omitted). This duty to supervise one's child includes an obligation "to see that the child's behavior does not involve danger to the child," 62 Am. Jur. 2d, Premises-Liability § 227, p. 600, or to other persons, American States Ins. Co. v. Albin , 118 Mich. App. 201, 206, 324 N.W.2d 574 (1982). Parents are expected to exercise "reasonable care" to "control" their minor child, Reinert v. Dolezel , 147 Mich. App. 149, 157, 383 N.W.2d 148 (1985), and to provide "instructions and education" to ensure that the child is aware of dangers to his or her well-being, McCallister v. Sun Valley Pools, Inc. , 100 Mich. App. 131, 139, 298 N.W.2d 687 (1980). See also Rodebaugh v. Grand Trunk W. R. Co. , 4 Mich. App. 559, 567, 145 N.W.2d 401 (1966). Generally, unless the parent entrusts the child to another person who agrees to assume the duty to supervise the child, the parent's duty to supervise extends to exercising reasonable care for the safety of the child while on the property of another, including an obligation to protect and guard the child against dangers that are open and obvious to the parent. See 62 Am. Jur. 2d, Premises Liability, § 227 to § 229, pp. 600-604 ; 65A CJS, Negligence § 537, pp. 369-370 ; Stopczynski , 258 Mich. App. at 236, 671 N.W.2d 119. See also Powers v. Harlow , 53 Mich. 507, 516, 19 N.W. 257 (1884) (concluding that a father could not be found at fault for a child's injuries on the property of another because a person of "ordinary prudence" in the father's position would not have suspected the danger to the child). 2. PARENTAL IMMUNITY Although parents undoubtedly have a duty to supervise their children, the law generally does not allow children to recover damages from their parents for a breach of this duty. In particular, "[a]t common law, a minor could not sue his or her parents in tort." Haddrill v. Damon , 149 Mich. App. 702, 705, 386 N.W.2d 643 (1986). The Michigan Supreme Court generally abolished intra-family tort immunity in Plumley v. Klein , 388 Mich. 1, 8, 199 N.W.2d 169 (1972), holding that a child could maintain a lawsuit against his or her parents for an injury resulting from a parent's negligence. However, the Plumley Court retained two exceptions to this rule, concluding that parental immunity remained: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. [ Id . ] A claim for negligent parental supervision of a child falls within the first Plumley exception, meaning that a parent is granted immunity and a child may not sue a parent for negligent supervision. See Spikes v. Banks , 231 Mich. App. 341, 349, 586 N.W.2d 106 (1998) ; McCallister , 100 Mich. App. at 139, 298 N.W.2d 687. 3. APPORTIONING FAULT TO IMMUNE PARENTS In this case, the trial court acknowledged that Jeff, as Ezekiel's parent, generally owed Ezekiel a duty to supervise him; however, the trial court precluded the jury from considering Jeff's alleged negligence, or apportioning fault to Jeff, based on the conclusion that Jeff's entitlement to parental immunity barred the jury's consideration of his fault. In reaching this conclusion, the trial court distinguished between a "duty" and a "legally cognizable duty that can serve as a basis for allocation of fault ..." The trial court focused its analysis on whether the comparative-fault statutes allowed for recovery against parents, noting, for instance, that the statutes did not address "what is the legal duty, the duty that you can recover against with respect to a parent and a child in a wrongful death case." In light of the trial court's reasoning, the basic question before us is whether immunity, specifically parental immunity, bars the allocation of fault to an immune individual under the comparative-fault statutes. In contrast to the trial court's conclusions, given the plain language of the comparative-fault statutes and the distinction between immunity and duty, we conclude that a person entitled to parental immunity may nevertheless be named as a nonparty at fault and allocated fault for purposes of determining a defendant's liability under the comparative-fault statutes. First of all, the trial court erred by focusing on whether Ezekiel's estate could obtain a recovery against Jeff. Quite simply, under MCL 600.2957 and MCL 600.6304, the allocation of fault is not dependent on whether a plaintiff can recover damages from the nonparty. Following the enactment of tort-reform legislation, the finder of fact must allocate fault among all responsible persons, "regardless of whether the person is, or could have been, named as a party to the action." MCL 600.2957(1). See also MCL 600.6304(1)(b). A finding that a nonparty is at fault "does not subject the nonparty to liability in that action...." MCL 600.2957(3). Rather, the sole purpose of assessing the fault of nonparties is to "accurately determine the fault of named parties," MCL 600.2957(3), to ensure that each named defendant-tortfeasor does not "pay damages in an amount greater than his allocated percentage of fault," Gerling , 472 Mich. at 51, 693 N.W.2d 149. In other words, the nonparty's "liability" to the plaintiff is not at issue under the comparative-fault statutes, and it is immaterial whether a plaintiff could have named the nonparty as a defendant. There is, accordingly, no merit to the trial court's suggestion that the allocation of fault under MCL 600.2957 and MCL 600.6304 depends on the plaintiff's ability to obtain a recovery against the nonparty at fault; that interpretation has no basis in the statutory language, and it wholly eviscerates the requirement that a person's fault should be considered "regardless of whether the person is, or could have been, named as a party to the action." MCL 600.2957(1). See also MCL 600.6304(1)(b). Accordingly, while the trial court correctly noted that a child cannot recover against a parent for negligent supervision, this inability to recover damages against a parent in no way precludes an assessment of a parent's fault for purposes of accurately determining a defendant's liability and ensuring that a defendant only pays his or her fair share. Rather than focus on whether a child could "recover" against a parent, the threshold question the trial court should have considered under MCL 600.2957 and MCL 600.6304 was whether Jeff owed a duty to his child. See Romain , 483 Mich. at 21-22, 762 N.W.2d 911. Second, to the extent the trial court attempted to analyze the duty question, it erred by injecting the concept of immunity into the threshold duty determination and using the parental-immunity doctrine to determine whether there was a duty that could be considered for purposes of allocating fault. In actuality, a parent may have a duty-and therefore may be allocated fault under MCL 600.2957 and MCL 600.6304 -regardless of whether the parent is entitled to immunity. Generally speaking, the question of whether a duty exists is a separate and distinct inquiry from whether an individual is immune from liability for a breach of that duty. See McGoldrick v. Holiday Amusements, Inc. , 242 Mich. App. 286, 298 n. 5, 618 N.W.2d 98 (2000) ; Jones v. Wilcox , 190 Mich. App. 564, 569-570, 476 N.W.2d 473 (1991). For example, this distinction between duty and immunity was recognized by the Michigan Supreme Court, in the context of governmental immunity, as follows: Because immunity necessarily implies that a "wrong" has occurred, we are cognizant that some tort claims, against a governmental agency, will inevitably go unremedied. Although governmental agencies may be under many duties, with regard to services they provide to the public, only those enumerated within the statutorily created exceptions are legally compensable if breached. [ Nawrocki v. Macomb Co. Rd. Comm. , 463 Mich. 143, 157, 615 N.W.2d 702 (2000).] Similarly, in the context of parental immunity, this Court has acknowledged the distinction between a grant of immunity and a determination regarding the existence of a duty, recognizing that "[t]he logical predicate to the [parental] immunity question ... is an assumption that the [parent's] conduct was negligent, and hence unreasonable; the issue is whether the parent should be shielded from liability for that unreasonable conduct." Thelen v. Thelen , 174 Mich. App. 380, 384 n. 1, 435 N.W.2d 495 (1989). See also Spikes , 231 Mich. App. at 348-349, 586 N.W.2d 106. Indeed, while traditionally a parent's negligence was not a basis to reduce a child's recovery in a lawsuit against a third-party tortfeasor, a finding of parental negligence-i.e., a determination that a parent breached a duty-has long been considered as a basis to reduce or foreclose a parent's recovery in a lawsuit by the parent based on the loss of a child's services, society, and companionship. See Feldman v. Detroit United R. , 162 Mich. 486, 489, 127 N.W. 687 (1910) ; Byrne , 190 Mich. App. at 189, 475 N.W.2d 854. As these cases make plain, while a parent may be immune from a lawsuit by his or her child or the child's estate, a parent nevertheless owes a duty to the child. In other words, contrary to the trial court's attempt to define a parent's duty based on parental immunity, "the availability of an immunity has no bearing on whether a duty exists, but rather focuses on redressability." Vandonkelaar , 290 Mich. App. at 212, 800 N.W.2d 760 ( MURRAY , J., dissenting). Consistently with this distinction between duty and immunity, the comparative-fault statutes make plain that the availability of immunity does not control the existence of a duty that can give rise to an allocation of fault to a nonparty under MCL 600.2957 and MCL 600.6304. That is, while preserving any immunity held by a nonparty, the statutes allow for consideration of a nonparty's fault for a breach of duty, regardless of whether immunity would preclude a plaintiff from naming the immune person as a party. See MCL 600.2957(1) ; MCL 600.6304(3), and (8). More fully, Judge MURRAY 's dissenting opinion in Vandonkelaar aptly examines this distinction between immunity and duty as well as the implications of immunity in the comparative-fault statutes as follows: Concerning immunity, MCL 600.2957(3) provides: Sections 2956 to 2960 [ MCL 600.2956 to MCL 600.2960 ] do not eliminate or diminish a defense or immunity that currently exists, except as expressly provided in those sections. Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action. [Emphasis supplied.] By stating that a fact-finder's assessment of the percentage of a nonparty's fault does not eliminate or diminish an immunity, § 2957(3) necessarily presupposes that an immunity does not abrogate a duty. Otherwise, there would be no need to preserve that immunity after fault has been allocated. Put differently, if an immunity were to abrogate a duty, an allocation of fault could never come into play because as Romain held, a nonparty's duty is necessary to allocate nonparty fault in the first place. Without an allocation of fault, no predicate would exist to eliminate the immunity § 2957(3) otherwise seeks to preserve. [ Vandonkelaar , 290 Mich. App. at 212-213, 800 N.W.2d 760 ( MURRAY , J., dissenting ).] Overall, given the clear distinction between immunity and duty, and bearing in mind that fault may be apportioned when there is a duty regardless of whether the person may be named as a party, there is simply no basis for the trial court's conclusion that parental immunity prohibits the consideration of a parent's fault under MCL 600.2957 and MCL 600.6304. 4. APPLICATION Having concluded that a parent can be named as a nonparty at fault notwithstanding the parental-immunity doctrine, the question before us becomes whether Jeff should have been named as a nonparty at fault in this case and, if so, whether the refusal to allow the jury to consider Jeff's alleged negligence warrants a new trial. In this regard, despite defendant's request to include Jeff as a nonparty at fault, the jury was given a verdict form that required it to assign 100% of the fault for Ezekiel's death, and the jury was only given the option of apportioning that fault between defendant and Thompson. Indeed, under M. Civ. JI 13.09, the trial court affirmatively instructed the jury not to consider any negligence by Ezekiel's parents. By denying defendant's request to include Jeff as a nonparty at fault and omitting Jeff's name from the verdict form, the trial court denied defendant one of its primary defenses-namely, that Jeff was negligent in allowing a six-year-old child to ride his bike unescorted on a road open to intermittent motor vehicle traffic. Moreover, this error cannot be considered harmless given that there was evidence to support the conclusion that Jeff breached a duty to Ezekiel and that this breach of duty was a proximate cause of Ezekiel's death. As Ezekiel's parent, Jeff owed Ezekiel a duty of supervision and a duty to protect him from open and obvious dangers on the property. Lyshak , 351 Mich. at 234, 88 N.W.2d 596 opinion by SMITH , J.); Stopczynski , 258 Mich. App. at 236, 671 N.W.2d 119 ; 62 Am. Jur. 2d, Premises Liability, § 227, pp. 600-601. In this case, the purportedly dangerous condition on defendant's property was the mixed-use nature of the service drive, i.e., intermittent motor vehicle traffic on a road that campers also used to traverse from the campgrounds to the barns on their bikes or on foot. Faced with this mixed-use roadway, Jeff allowed six-year-old Ezekiel to ride his bike alone from the family's campsite to the barn. Jeff's only justification for this decision was his assertion that he believed there was an unwritten rule that the service drive was a "bike path" that was not open to traffic during the fair. Indeed, Jeff testified that he would never have let his six-year-old ride a bike alone on a road that was open for traffic; rather, Jeff stated that he would have accompanied Ezekiel to the barn. However, despite Jeff's claim that he thought the road was closed to motor vehicle traffic, in his trial testimony, Jeff conceded that, though "rare," he actually saw motor vehicles on the service drive. Additionally, he knew that there were "official" vehicles going to the barns, and more than once, Jeff saw an unofficial red convertible parked at the barn with hay in its trunk. Aside from seeing the "rare" vehicle on the road, Jeff also acknowledged that there were no signs or barriers prohibiting vehicles from driving on the service road, that numerous vehicles were parked along the service drive (though Jeff asserted that he did not believe these vehicles would move), and that, more generally, campers with vehicles parked on the campgrounds could come and go with their vehicles during the week. Likewise, other campers testified that they used the road to walk and ride to the barn, but they also confirmed that they saw vehicles using the drive, including garbage trucks, a backhoe or other vehicles gathering manure, golf carts, "Gators," and people coming to tend to the portable toilets. The testimony of the fair organizers also indicated that, unlike other roadways on the property, the service drive was not closed to motor vehicles. Given Jeff's admissions and the other evidence of vehicles using the road, Jeff clearly knew-or would have been reasonably expected to know-that there was intermittent motor vehicle traffic on the service drive. Yet Jeff allowed a six-year-old to ride on the service drive unaccompanied. Bearing in mind "the immaturity, inexperience and carelessness of children," Moning , 400 Mich. at 446, 254 N.W.2d 759, reasonable minds could well conclude that a six-year-old should not have been on the roadway unsupervised. Cf. Feldman , 162 Mich. at 490, 127 N.W. 687 ; Price v. Manistique Area Pub. Sch. , 54 Mich. App. 127, 132, 220 N.W.2d 325 (1974). In other words, Jeff's decision to allow Ezekiel to ride alone could be considered a breach of Jeff's duty to supervise his child. Indeed, plaintiff's theory of the case was that defendant was unreasonable in allowing even intermittent motor vehicle traffic on a road used by child bicyclists; and if such a purportedly dangerous condition poses an "unreasonable risk of harm" sufficient to support a premises-liability claim, see Hoffner v. Lanctoe , 492 Mich. 450, 460, 821 N.W.2d 88 (2012), it is challenging to see how a parent could not be considered negligent in allowing a six-year-old to confront this danger alone when the parent knew or should have known of intermittent motor vehicle traffic on the roadway. See 62 Am. Jur. 2d, Premises Liability, § 227, pp. 600-601. Ultimately, there is a question of fact regarding Jeff's negligence that the jury should have been allowed to resolve. See Case v. Consumers Power Co. , 463 Mich. 1, 7, 615 N.W.2d 17 (2000) ("Ordinarily, it is for the jury to determine whether [an actor's] conduct fell below the general standard of care."). Further, given the evidence at trial, the jury could also find that this act of negligence constituted a proximate cause of Ezekiel's death. Thompson struck Ezekiel while backing up his truck at a speed of 5 miles per hour. Thompson testified that he checked his mirrors but did not see Ezekiel, and the accident reconstruction indicated that a child of Ezekiel's height would be in a vehicle's blind spot. Rebecca testified that Ezekiel would not have known how to respond to a reversing vehicle, and the eyewitness testimony indicated that Ezekiel just sat on his bike and watched Thompson back up. Taken together, this evidence supports the inference that had Jeff accompanied Ezekiel to provide supervision, the accident would not have occurred because, as an adult, Jeff would have been more visible to Thompson and as Ezekiel's parent, he would have controlled Ezekiel's response to the situation and protected Ezekiel from the obvious danger of a slowly reversing vehicle. Moreover, a car striking a child bicyclist on a mixed-use roadway is a reasonably foreseeable consequence of allowing a six-year-old to ride on the road unsupervised. Therefore, Jeff's failure to supervise may be considered a proximate cause of Ezekiel's death. See generally Haliw v. Sterling Hts. , 464 Mich. 297, 310, 627 N.W.2d 581 (2001) ("Proof of causation requires both cause in fact and legal, or proximate, cause."). On the whole, there is significant evidence supporting the conclusion that Jeff knew or should have known that the service drive was being used by motor vehicles. In these circumstances, his decision to allow his six-year-old to ride on the road, unsupervised by an adult, can be considered a breach of duty that was a proximate cause of Ezekiel's death. Consequently, defendant was entitled to argue Jeff's fault to the jury, and the jury should have been allowed to apportion fault to Jeff. See MCL 600.2957 ; MCL 600.6304 ; Barnett , 478 Mich. at 170, 732 N.W.2d 472 ; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co. , 280 Mich. App. 16, 34, 761 N.W.2d 151 (2008). Yet, the trial court refused to allow the jury to apportion fault to Jeff and affirmatively instructed the jury not to consider the negligence of Ezekiel's parents. In these circumstances, failure to vacate the judgment in plaintiff's favor and remand for a new trial would be inconsistent with substantial justice. Cox v. Bd. of Hosp. Managers , 467 Mich. 1, 15, 651 N.W.2d 356 (2002). See also Case , 463 Mich. at 10, 615 N.W.2d 17 (concluding that reversal was warranted when jury instructions failed to present one of the defendant's primary defenses to the jury). Consequently, we vacate the judgment in plaintiff's favor and remand for a new trial. III. OPEN AND OBVIOUS DANGER DOCTRINE Next, defendant argues that the trial court erred by refusing to instruct the jury on the open and obvious doctrine. Specifically, defendant contends that the open and obvious doctrine should be applied to Ezekiel, meaning that defendant would have no duty to protect or warn Ezekiel of open and obvious hazards. In contrast, plaintiff argues, and the trial court concluded, that the open and obvious doctrine does not apply to children under the age of seven. A. STANDARDS OF REVIEW Claims of instructional error are reviewed de novo. Case , 463 Mich. at 6, 615 N.W.2d 17. "The instructions should include all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them." Id. "[T]he trial court's determination that a jury instruction is accurate and applicable to the case is reviewed for an abuse of discretion." Hill v. Hoig , 258 Mich. App. 538, 540, 672 N.W.2d 531 (2003). "Instructional error warrants reversal if the error resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice." Cox , 467 Mich. at 8, 651 N.W.2d 356 (quotation marks and citation omitted). B. ANALYSIS "In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v. Dart Props., Inc. , 270 Mich. App. 437, 440, 715 N.W.2d 335 (2006). "With regard to invitees, a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner's land." Hoffner , 492 Mich. at 460, 821 N.W.2d 88. Integral to a landowner's duty to an invitee is whether the defect in question is "open and obvious." Id . (quotation marks and citation omitted). Absent special aspects, "[t]he possessor of land 'owes no duty to protect or warn' of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid." Id . at 460-461, 821 N.W.2d 88 (citation omitted). With regard to adult invitees, whether a danger is open and obvious is judged from an objective standard, considering "whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Id . at 461, 821 N.W.2d 88. When it comes to children, this Court has recognized that the open and obvious danger doctrine may apply to children as young as 11 years old. Bragan v. Symanzik , 263 Mich. App. 324, 326, 328, 335, 687 N.W.2d 881 (2004). However, when applying the doctrine to minors, children are not held to the same standard as an average adult of ordinary intelligence. Id . at 328, 335, 687 N.W.2d 881. As a general matter, the law recognizes that children can only be expected to act with "that degree of care which a reasonably careful minor of the age, mental capacity and experience of other similarly situated minors would exercise under the circumstances." Id . at 328, 687 N.W.2d 881 (quotation marks and citation omitted). In contrast, adults are expected to "exercise greater vigilance" around children, and landowners owe a "heightened duty of care" to children on their property, including children who are known trespassers or licensees. Id . at 328, 333-335, 687 N.W.2d 881. See also Woodman v. Kera, LLC , 280 Mich. App. 125, 154, 760 N.W.2d 641 (2008) (opinion by TALBOT , J.) ("Landowners owe minor invitees the highest duty of care."). In particular, when there are children on the land, a landowner is "obligated to anticipate and take into account [the child's] propensities to inquire into or to meddle with conditions which he finds on the land, his inattention, and his inability to understand or appreciate the danger, or to protect himself against it." Bragan , 263 Mich. App. at 330, 687 N.W.2d 881 (quotation marks and citation omitted). Given the unique characteristics of children and the heightened duty that adults owe to children, the Bragan Court concluded that a child invitee cannot be held to the same "open and obvious danger" standard as adult invitees. Id. at 335, 687 N.W.2d 881. More fully, this Court reasoned: Based on this long history of treating children differently under the law and entitling child trespassers and licensees to a heightened duty of care, we find the instant case legally distinguishable from the line of open and obvious cases involving adult invitees. Landowners owe the greatest duty of care to invitees as a class. Even the Restatement of Torts, upon which Michigan's open and obvious doctrine was originally based, recognizes that child invitees are entitled to greater protection because of their "inability to understand or appreciate the danger, or to protect [themselves] against it." It would, therefore, be illogical to find that child invitees are entitled to less protection than child licensees or trespassers. Furthermore, as minors in Michigan are only held to the standard of care of "a reasonably careful minor," it would be similarly illogical to hold child invitees to the standard of an objective, reasonably prudent person; i.e., an adult. Accordingly, we must consider whether a dangerous condition would be open and obvious to a reasonably careful minor; that is, whether the minor would discover the danger and appreciate the risk of harm. [ Id. (citations omitted; alteration in original).] Whether a dangerous condition is open and obvious "in the eyes of a child, and if open and obvious, whether the condition was unreasonably dangerous" in light of the presence of children are ordinarily questions for the fact-finder. Id . at 336, 687 N.W.2d 881. Although Bragan applied a reasonable-child version of the open and obvious danger doctrine to children, the Court did so in a case involving an 11-year-old, and the Court did not address whether the doctrine should also be applied to younger children under the age of seven. The age of seven is significant because traditionally age seven has been treated as a "dividing line" in Michigan. Burhans v. Witbeck , 375 Mich. 253, 255, 134 N.W.2d 225 (1965). "Children under the age of seven are presumptively incapable of committing negligent or criminal acts or intentional torts." Bragan , 263 Mich. App. at 333-334, 687 N.W.2d 881. See also Queen Ins. Co. v. Hammond , 374 Mich. 655, 658, 132 N.W.2d 792 (1965). In comparison, the capabilities of children older than seven pose "a question of fact for the jury, which is to determine it on the basis of whether the child had conducted himself as a child of his age, ability, intelligence and experience would reasonably have been expected to do under like circumstances." Burhans , 375 Mich. at 255, 134 N.W.2d 225. See also Woodman , 486 Mich. at 256, 785 N.W.2d 1 (2010) (opinion by YOUNG , J.). Under the tender-years rule, the law presumes that children under seven cannot be held accountable because they are "without discretion," Baker v. Alt , 374 Mich. 492, 501, 132 N.W.2d 614 (1965) (quotation marks and citation omitted), they are "unconscious of the nature of their acts," and they have "no appreciation of attending danger to themselves or others," Hoover , 188 Mich. at 321, 154 N.W. 94. See also Muscat v. Khalil , 150 Mich. App. 114, 122, 388 N.W.2d 267 (1986) (noting that individuals in the tender-years age group lack the "intellectual capacity" to appreciate danger that would be obvious to older individuals). Under these special rules for children, "the common law protects children by creating an incentive to exercise greater care for minors because it limits a defendant's ability to escape liability on the basis of the child's contributory negligence." Woodman , 486 Mich. at 257, 785 N.W.2d 1 (opinion by YOUNG , J.). The question before us in this case is whether the presumed incapabilities of children under seven also preclude a finding that it is reasonable to expect children under that age to discover a dangerous condition, appreciate the danger, and take reasonable measures to avoid it. Given Michigan's long history of treating children under the age of seven differently under the law, we conclude that the open and obvious danger doctrine is inapplicable to children under the age of seven and that children under that age cannot be expected to conform their conduct to a reasonable-child standard. In other words, while Bragan , 263 Mich. App. at 335, 687 N.W.2d 881, applied a reasonable-child standard to children over seven, this was consistent with long-established caselaw holding that a child over seven is expected to conduct himself "as a child of his age, ability, intelligence and experience would reasonably have been expected to do under like circumstances." Burhans , 375 Mich. at 255, 134 N.W.2d 225. The open and obvious danger doctrine is premised on the proposition that it is "reasonable to expect" the invitee to discover the danger, Hoffner , 492 Mich. at 461, 821 N.W.2d 88, and given the capabilities of children over the age of seven, it can be reasonably expected that children over seven will conform their conduct to a reasonable-child standard. In contrast, "the incapacity and irresponsibility" of children under the age of seven have longed been recognized, Queen Ins. Co. , 374 Mich. at 658, 132 N.W.2d 792, and in view of this incapacity, there can be no reasonably careful minor standard for children under seven, see Baker , 374 Mich. at 498, 505, 132 N.W.2d 614. Consequently, in the context of the open and obvious danger doctrine, it is not reasonable to expect that a child under seven will conform to a reasonable-child standard in discovering dangers, appreciating the danger involved, and responding to those dangers. Rather, the law presumes that a child under seven will not appreciate the danger, and therefore a landowner remains obligated to exercise reasonable care to protect a child under seven from open and obvious dangers on the property, even if those dangers would be open and obvious to adults and older children. This rule is consistent with a landowner's obligation to exercise greater care for minors, Bragan , 263 Mich. App. at 330, 687 N.W.2d 881, and it safeguards children by placing the burden on landowners to protect child-invitees under seven from open and obvious dangers on the property as opposed to expecting small children to protect themselves. See generally Woodman , 486 Mich. at 257 & n. 73, 785 N.W.2d 1 (opinion by YOUNG , J.). Although the imposition of a bright-line rule may seem arbitrary in some cases, the age of seven is the long-established "dividing line" in Michigan. Adhering to this dividing line, we adopt a bright-line rule that landowners cannot reasonably expect children under seven to recognize a dangerous condition, to appreciate the danger, and to exercise any degree of reasonable care in response to that condition. Given our conclusion that the open and obvious danger doctrine does not apply to children under seven, it is inapplicable to Ezekiel, who was six years old at the time of the accident. Consequently, the trial court did not err by concluding that the open and obvious danger doctrine did not apply to Ezekiel. Defendant is not entitled to relief on this basis. IV. CAMPGROUND REGULATIONS Defendant argues that the trial court erred by instructing the jury under M. Civ. JI 12.05 with regard to defendant's alleged violation of Mich. Admin. Code, R. 326.1556(8) and Mich. Admin. Code, R. 326.1558(1). According to defendant, these rules are irrelevant to this case and any violation could not be considered a proximate cause of the accident. We agree that the trial court erred by instructing the jury under M. Civ. JI 12.05 with regard to the number of campsites (Rule 326.1556(8)); however, we conclude that the trial court did not abuse its discretion in concluding that M. Civ. JI 12.05 was applicable with regard to the size of the service drive (Rule 326.1558(1)). "In Michigan, the violation of administrative rules and regulations is evidence of negligence, and therefore when a violation is properly pled it may be submitted to the jury." Zalut v. Andersen & Assoc., Inc. , 186 Mich. App. 229, 235, 463 N.W.2d 236 (1990). See also Kennedy v. Great Atlantic & Pacific Tea Co. , 274 Mich. App. 710, 720, 737 N.W.2d 179 (2007) (applying this rule in a premises-liability case). Specifically, an instruction regarding violations of regulations as evidence of negligence is set forth in M. Civ. JI 12.05, which states: The [ name of state agency ] in Michigan has adopted certain regulations pursuant to authority given to it by a state statute. [ Rule / Rules ] ________ of [ name of state agency ] [ provides / provide ] that [ here quote or paraphrase applicable parts of regulation(s) as construed by the courts ]. If you find that defendant violated [ this regulation / one or more of these regulations ] before or at the time of the occurrence, such [ violation / violations ] [ is / are ] evidence of negligence which you should consider, together with all the other evidence, in deciding whether defendant was negligent. If you find that defendant was negligent, you must then decide whether such negligence was a proximate cause of the [ injury / damage ] to plaintiff. This instruction should only be given if: (1) the regulation is intended to protect against the injury involved; (2) the plaintiff is within the class intended to be protected by the regulation; and (3) the evidence will support a finding that the violation was a proximate cause of the injury involved. M. Civ. JI 12.03, use notes; M. Civ. JI 12.05, use notes. "These factors are necessary to a determination of relevance." Klanseck v. Anderson Sales & Serv., Inc. , 426 Mich. 78, 87, 393 N.W.2d 356 (1986). That is, "[w]hen a party is alleged to have violated [a regulation], the court may apply the factors above in assessing whether the claimed violation is relevant to the facts presented at trial." Id ."[R]elevance must be specifically established" before evidence of a violation may be used as evidence of negligence. Id . See also Zalut , 186 Mich. App. at 235, 463 N.W.2d 236. In this case, the two regulations at issue are rules created by the Department of Environmental Quality under its authority to "promulgate rules regarding sanitation and safety standards for campgrounds and public health." MCL 333.12511. First, under Mich. Admin. Code R. 326.1556(8), "[a] campground owner shall ensure that the number of sites in a campground is not more than the number authorized by the license." Regarding defendant's compliance with this regulation, the evidence at trial indicated that there were 399 sites on the campgrounds and that defendant only had a license for 133 campsites. Fair organizers maintained that they had a "temporary" permit for 399 campsites during the fair, and there was evidence that defendant was approved for 399 sites on August 31, 2012. However, a jury could certainly reject defendant's claim of an undocumented "temporary" license and conclude that defendant was in violation of Rule 326.1556(8) at the time of the accident because defendant had more campsites than allowed by its license. Nevertheless, a violation of Rule 326.1556(8) is not relevant to this case, and the jury should not have been allowed to consider it. In particular, in the trial court, plaintiff maintained that the excessive number of campsites was relevant because it suggested congestion or overcrowding that would have increased both vehicular and bike traffic. But, first of all, the regulation says nothing about traffic, and it cannot reasonably be supposed that this licensing requirement is designed to prevent traffic accidents. Second, plaintiff's assertion that there were too many people for the campground to handle safely is belied by the fact that defendant was approved for 399 campsites shortly after the accident. In other words, defendant may have violated the regulation by failing to obtain a license for 399 sites before the fair, but, the approval shortly after the fair makes plain that it was not an issue of insufficient space or overcrowding that prevented defendant from obtaining a license. Third, and perhaps most importantly, there is no evidence that this purported overcrowding contributed to-let alone proximately caused-Ezekiel's death. Ezekiel was killed in an accident between a single vehicle and a single bike rider. There was no evidence that the service drive was overly crowded with pedestrians, bikes or moving vehicles at the time of the accident, and there is no evidence that overcrowding contributed to the accident. Quite simply, the license issue was irrelevant, and the jury should not have been allowed to consider the issue. Accordingly, the trial court erred by instructing the jury under M. Civ. JI 12.05 with regard to Rule 326.1556(8). The second regulation at issue is Rule 326.1558(1), which states: A campground owner shall provide a road right-of-way that is not less than 20 feet wide. A campground owner shall ensure that the right-of-way is free of obstructions and provides free and easy access to abutting sites. A campground owner shall maintain the traveled portion of the right-of-way in a passable and relatively dust-free condition when the campground is in operation. Regarding defendant's compliance with this rule, measurements of the service drive indicated that it was 13.5 feet wide, and therefore the jury could conclude that defendant violated its obligation to maintain a "road right-of-way that is not less than 20 feet wide." Whether this potential violation was relevant is a close question. In terms of the injury the regulation was designed to protect against, the regulation focuses mainly on providing access to campsites, but the size requirements for the road, the "free and easy" access, the passable-road requirements, and even the "dust-free" caveats can be read as an indication that the regulation is intended to ensure safe road access to the campsites and safe travel while on the road. It is true that nothing in the regulation mentions bikes in particular, and certainly the regulations do not require defendant to maintain a separate bike path. But, it could nevertheless be concluded that the regulation was intended to guard against accidents resulting from insufficient space for a motor vehicle to maneuver while on the campgrounds. Ezekiel, as a camper using the road to travel to and from his campsite, would be within the class of people the road requirements were designed to protect. The real issue is whether the size of the road can be considered a proximate cause of plaintiff's injuries. Although the question is a close one, the trial court did not abuse its discretion by allowing the jury to consider the issue. The claim in this premises-liability case is that a proximate cause of Ezekiel's injuries was defendant's alleged failure to protect Ezekiel from the unreasonable risks of harm posed by a dangerous condition on defendant's land-namely, a mixed-use roadway on which vehicles, bikes, and pedestrians were allowed to travel. See Hoffner , 492 Mich. at 460, 821 N.W.2d 88. In this context, though only one of many potential factors, the width of the service drive and defendant's failure to abide by Rule 326.1558(1), could be significant to a determination of whether the service drive was unreasonably dangerous and whether defendant's failure to protect Ezekiel from this unreasonable danger constituted a proximate cause of his injuries. In other words, defendant's decision to allow mixed-use access of the road is a "but-for" cause of Ezekiel's death, and the width of the road is a significant factor bearing on the reasonableness of defendant's decision and the foreseeability of the consequences of defendant's decision for purposes of determining whether defendant may be held legally responsible. See generally Haliw , 464 Mich. at 310, 627 N.W.2d 581. On the whole, the trial court did not abuse its discretion in instructing the jury under M. Civ. JI 12.05 with regard to Rule 326.1558(1). V. TAXABLE COSTS AND PREJUDGMENT INTEREST Finally, defendant argues, and plaintiff concedes, that if the underlying judgment is vacated, the award of costs and prejudgment interest in plaintiff's favor should also be vacated. We agree. That is, having vacated the underlying judgment, it follows that plaintiff is no longer a "prevailing party," and therefore plaintiff is not entitled to costs under MCR 2.625. See Ivezaj v. Auto Club Ins. Ass'n. , 275 Mich. App. 349, 368, 737 N.W.2d 807 (2007). Likewise, absent a "judgment" in plaintiff's favor, there is no basis for awarding plaintiff pre-judgment interest as the prevailing party under MCL 600.6013(8). See generally Hunt v. Drielick , 322 Mich. App. 318, 333-335, 914 N.W.2d 371 (2017) (" MCL 600.6013 is remedial and primarily intended to compensate prevailing parties for expenses incurred in bringing suits for money damages and for any delay in receiving those damages."). Consequently, we also vacate the award of costs and prejudgment interest. Vacated and remanded for a new trial. We do not retain jurisdiction. Murray, P.J., and Hoekstra and Gadola, JJ., concurred. Plaintiff also sued Tad Thompson, the driver of the vehicle that killed Ezekiel, as well as Thompson's wife and Thompson's employer, TMT, Inc., which operates a Subway restaurant franchise. However, plaintiff reached a settlement with these defendants, and by stipulation of the parties these defendants were dismissed with prejudice. These defendants are not parties to this appeal. As used in this opinion, the term "defendant" refers solely to defendant Northwest Michigan Fair Association. The fair rules required children to have "one parent per family on site." Ezekiel was among the youngest class of 4-H members, known as "clover buds." As a clover bud, Ezekiel could not enter the pony stall unless accompanied by an adult. Initially, Jeff was a named plaintiff in the case. As an individual plaintiff, he alleged a claim of negligent infliction of emotional distress (NIED). He later dropped his NIED claim after admitting that he did not see the accident and that he did not see Ezekiel removed from under the vehicle. Defendant filed its notice of nonparty fault regarding Jeff as soon as Jeff dropped his claim and became a nonparty. See Salter v. Patton , 261 Mich. App. 559, 567, 682 N.W.2d 537 (2004) ; MCR 2.112(K)(3)(c). Plaintiff also brought a claim of negligence, but the jury rejected this claim. With regard to the "premises liability/nuisance" count, the jury was instructed on a premises-liability theory consistent with M. Civ. JI 19.03. The instruction as it related to "nuisance" was likewise premised on the assertion that there was a dangerous condition on the land and that defendant acted negligently by failing to protect Ezekiel from this condition. Despite the added "nuisance" label, the claim was in substance a premises-liability claim-namely, that Ezekiel was injured because of an unreasonably dangerous condition on defendant's land. See Buhalis v. Trinity Continuing Care Servs. , 296 Mich. App. 685, 692-693, 822 N.W.2d 254 (2012). With regard to other persons, "a parent is under a duty to exercise reasonable care ... to control his minor children [so] as to prevent them from intentionally harming others or from so conducting themselves as to create an unreasonable risk of bodily harm to them if the parent knows or has reason to know that he has the ability to control his children and knows or should know of the necessity and opportunity for exercising such control." American States , 118 Mich. App. at 206, 324 N.W.2d 574. Although parents have a duty to supervise their children, a parent's presence on the property does not abrogate the duty a premises owner owes to children. See Woodman v. Kera, LLC , 280 Mich. App. 125, 154, 760 N.W.2d 641 (2008) (opinion by Talbot , J.), aff'd 486 Mich. 228 (2010) ; see also 62 Am. Jur. 2d, Premises Liability, § 227, p. 601. "[L]andowners owe a duty to exercise reasonable care to protect children from dangerous conditions on their premises notwithstanding the presence of the children's parents." Wheeler v. Central Mich. Inns, Inc. , 292 Mich. App. 300, 304, 807 N.W.2d 909 (2011). Before the enactment of the tort-reform statutes, the fact that parental immunity prevented a child from suing a parent for negligent supervision also prevented consideration of a parent's fault in a lawsuit brought by the child or the child's estate. See Byrne v. Schneider's Iron & Metal, Inc. , 190 Mich. App. 176, 189, 475 N.W.2d 854 (1991) ; Wymer v. Holmes , 144 Mich. App. 192, 196-197, 375 N.W.2d 384 (1985). The trial court relied on these cases when ruling that Jeff could not be named as a nonparty at fault. However, these cases did not involve consideration of the statutes that now control the allocation of fault in tort suits, and therefore these cases have no bearing on the propriety of considering parental fault under MCL 600.2957 and MCL 600.6304. In analyzing the parental-fault question, the trial court indicated that as a matter of public policy, juries should not be allowed to pass judgment on parental decisions. Parental immunity serves a number of purposes, including "preservation of domestic tranquility and family unity, protection of family resources, and recognition of the need to avoid judicial intervention into the core of parenthood and parental discipline ...." Hush v. Devilbiss Co. , 77 Mich. App. 639, 645, 259 N.W.2d 170 (1977). However, contrary to the trial court's reasoning, there have long been circumstances when a parent's negligence was considered by the finder of fact. See, e.g., Feldman , 162 Mich. at 489-490, 127 N.W. 687 ; Byrne , 190 Mich. App. at 185-189, 475 N.W.2d 854. More importantly, it would be improper to use policy concerns as a reason to prevent consideration of a parent's fault under MCL 600.2957 and MCL 600.6304. When interpreting statutory language, our obligation is to enforce statutes as written, not "to independently assess what would be most fair or just or best public policy." Tull v. WTF, Inc. , 268 Mich. App. 24, 36, 706 N.W.2d 439 (2005) (quotation marks and citations omitted). In other words, the question before us is whether MCL 600.2957 and MCL 600.6304 require consideration of parental fault, not whether consideration of parental fault is the best public policy. The question of whether immune parents may be named as nonparties at fault was raised in Vandonkelaar , 290 Mich. App. at 191, 800 N.W.2d 760. However, the Vandonkelaar majority did not decide the issue. Id . at 195, 800 N.W.2d 760. In a dissenting opinion, Judge Murray addressed the question of parental immunity in the context of the comparative-fault statutes and concluded that parental immunity does not eliminate parental duty, meaning that this immunity would not preclude consideration of parental fault for purposes of allocating responsibility under the comparative fault statutes. Id . at 209-216, 800 N.W.2d 760 ( Murray , J., dissenting). We find Judge Murray 's decision persuasive, and we adopt its reasoning. While nonbinding, several other jurisdictions have similarly determined that, notwithstanding parental immunity, parents owe their children a duty and that parental negligence may be therefore be considered when allocating fault. See, e.g., Doering v. Copper Mountain, Inc. , 259 F.3d 1202, 1216 (C.A. 10, 2001) ; Witte v. Mundy , 820 N.E.2d 128, 133 (Ind., 2005) ; Fitzpatrick v. Allen , 24 Kan. App. 2d 896, 904, 955 P.2d 141, (1998) ; Y.H. Investments, Inc. v. Godales , 690 So.2d 1273, 1278 (Fla., 1997). We find these cases persuasive. M. Civ. JI 13.09 states, "You must not consider whether there was negligence on the part of [name of child ]'s parents, because, under the law, any negligence on the part of the parents cannot affect a claim on behalf of the child." This instruction is inapplicable when a parent is named as a nonparty at fault. See M. Civ. JI 13.09, use note. Jeff never denied that he was responsible for supervising Ezekiel, and testimony from parents and organizers confirmed that parents were generally responsible for their children while at the fair. Indeed, several parents described entrusting their children to other adults if they could not supervise them personally. In the trial court, plaintiff moved for a directed verdict on the issue of Jeff's fault, asserting that naming Jeff as a nonparty at fault was inappropriate as a factual matter because there was no evidence that Jeff was negligent. The trial court denied the motion, concluding that if a parent could be named as a nonparty at fault, there was sufficient evidence of Jeff's fault to submit the matter to a jury. On cross-appeal, plaintiff argues that the trial court erred by denying its motion for a directed verdict, and on appeal, plaintiff argues that any error in failing to allow the jury to consider Jeff's fault was harmless because there was no evidence of negligence. In making these arguments, plaintiff adopts the reasoning of the trial court, noting that after trial, the trial court expressed the opinion that it would be "inconceivable" that a jury would have found Jeff at fault. The trial court's "inconceivable" statement after trial wholly conflicts with the trial court's earlier pronouncement, on the fifth day of trial, that "[i]f we don't address the issue of parental fault and we should have it taints the entire case and it has to be tried again." Setting aside this inconsistency, there are several flaws in the trial court's reasoning and plaintiff's reliance thereon. Most notably, plaintiff's arguments and the trial court's reasoning are premised on the belief that the service drive was a "bike path," despite the considerable evidence that the service drive was open to intermittent traffic and that Jeff knew or should have known that it was open to traffic. The trial court's characterization of the road as a "bike path" simply ignores the fact that the danger posed by a mixed-use road could easily be considered an open and obvious danger to Jeff. Whether Jeff knew there was traffic on the road, whether the danger of the road was open and obvious, and whether Jeff was negligent under the circumstances are questions for the jury to resolve. See Case v. Consumers Power Co. , 463 Mich. 1, 7, 615 N.W.2d 17 (2000). Therefore, contrary to plaintiff's arguments, the trial court's refusal to allow consideration of Jeff's fault was not harmless, and plaintiff was not entitled to a directed verdict on the question of Jeff's fault. See Alfieri v. Bertorelli , 295 Mich. App. 189, 192, 813 N.W.2d 772 (2012). On appeal, defendant's request for relief asks this Court to remand with instructions to enter judgment notwithstanding the verdict (JNOV). Although there is clearly evidence that would allow a jury to hold Jeff at least partially at fault for Ezekiel's accident, there are questions of fact surrounding the use of the road, and the reasonableness of Jeff's conduct should be evaluated by the jury in light of all the circumstances. See Case , 463 Mich. at 7, 615 N.W.2d 17. Further, even if Jeff was negligent, this would not necessarily absolve defendant of its duty to Ezekiel. See Wheeler , 292 Mich. App. at 304, 807 N.W.2d 909 ; Woodman , 280 Mich. App. at 154, 760 N.W.2d 641 (opinion by Talbot , J.); see also 62 Am. Jur. 2d Premises Liability, § 227, pp. 600-601. Ultimately, the jury should be given the opportunity to consider the fault of all persons, including Jeff. See Zaremba , 280 Mich. App. at 34, 761 N.W.2d 151. Accordingly, defendant's request for JNOV or some other more conclusive relief is denied. In the trial court, defendant maintained that the open and obvious danger doctrine applied to Ezekiel's caretaker, meaning that the jury should have been instructed on the doctrine in relation to whether the dangers of the road were open and obvious to Jeff and whether Jeff could be considered at fault for allowing Ezekiel to confront an open and obvious danger. Given its conclusion that Jeff could not be named as a nonparty at fault, the trial court also concluded that the open and obvious danger doctrine had no applicability to Jeff. As discussed, the trial court erred by refusing to allow the jury to consider Jeff's fault. On remand, defendant should be given the opportunity to raise an open and obvious danger defense-and receive an open and obvious danger instruction-in terms of whether Jeff was negligent in allowing Ezekiel to ride unaccompanied on the service drive. However, whether the doctrine applies to Jeff is a distinct question from whether it applies to Ezekiel. "[A]n open and obvious hazard that ordinarily precludes liability can have special aspects that give rise to liability in one of two ways: (1) the hazard is, in and of itself, unreasonably dangerous or (2) the hazard was rendered unreasonably dangerous because it was effectively unavoidable for the injured party." Bullard v. Oakwood Annapolis Hosp. , 308 Mich. App. 403, 410, 864 N.W.2d 591 (2014). This is not to say that a child's conduct is irrelevant at trial. A child's conduct may be admissible as it relates to the question whether a defendant breached a duty to a child. See Baker , 374 Mich. at 505, 132 N.W.2d 614. We simply hold that the incapability and irresponsibility of children under seven precludes the conclusion that an adult landowner has no duty to protect a tender-years invitee from an open and obvious danger. For instance, in this case, Ezekiel was only two days shy of his seventh birthday at the time of the accident. Klanseck involved a violation of a statute, but the factors for assessing the relevance of a statutory violation are the same as those for violation of a regulation. Although the trial court erred, reversal is not required on this basis. M. Civ. JI 12.05 does not render defendant negligent as a matter of law; rather, it simply allowed the jury to consider a violation of the regulation as evidence of negligence. Even if the jury determined that defendant was in violation of Rule 326.1556(8) on August 8, 2012, it is unlikely such a determination would have affected the outcome of trial. The issue of the number of licensed campsites was a relatively minor issue at trial, and given the weighty issues involved, it seems improbable that a jury would have held defendant liable for the death of child because defendant had too many campsites, particularly when the evidence plainly demonstrated that defendant had the space for those campsites. See Jimkoski v. Shupe , 282 Mich. App. 1, 9, 763 N.W.2d 1 (2008) ("Reversal is not warranted when an instructional error does not affect the outcome of the trial."). The evidence indicated that the "gravel" portion of the road was 13.5 feet wide. There was a witness who claimed that the "right-of-way" was actually 16 or 20 feet wide and that the traveled portion of the road was smaller than the right-of-way because grass had grown in on some of the gravel. Defendant emphasizes this distinction on appeal and asserts that, while the right-of-way must be 20-feet wide, the traveled portion may be smaller because it is only the "traveled portion" that must be "passable and relatively dust-free" under Rule 326.1558(1). Even assuming that the traveled portion can be smaller than 20-feet wide, a 16-foot right-of-way would not comply with the regulation. See Rule 326.1558(1). Accordingly, a jury could find that defendant violated this provision.

On order of the Court, the application for leave to appeal the January 24, 2019 judgment of the Court of Appeals is considered and, it appearing to this Court that the cases of Mays v. Governor (Docket Nos. 157335-7, 157340-2), --- Mich. ----, 926 N.W.2d 803 (2019) are pending on appeal before this Court and that the decisions in those cases may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decisions in those cases. Clement, J., not participating due to her prior involvement as chief legal counsel for the Governor.

On order of the Court, the application for leave to appeal the February 8, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the stipulation signed by counsel for the parties agreeing to the dismissal of this application for leave to appeal is considered, and the application for leave to appeal is DISMISSED with prejudice and without costs. Clement, J., did not participate due to her prior involvement as chief legal counsel for the Governor.

On order of the Chief Justice, the motion for the temporary admission of out-of-state attorneys Gregory F. Jacob, Samuel R. Lehman, and Reuben C. Goetzl to appear and practice in this case under MCR 8.126(A) is GRANTED.

On order of the Court, the application for leave to appeal the May 22, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Gadola, P.J. In these consolidated cases, plaintiff, Tomra of North America Inc., appeals as of right the orders of the Court of Claims granting summary disposition to defendant, the Department of Treasury. In its opinion, the Court of Claims concluded that plaintiff's beverage-container-recycling machines did not qualify for the industrial-processing exemption to tax liability as set forth in the General Sales Tax Act (GSTA), MCL 205.51 et seq ., and the Use Tax Act (UTA), MCL 205.91 et seq . We reverse and remand. I. FACTS The facts relevant to this appeal are largely undisputed. Plaintiff sells and leases the container-recycling machines commonly found in grocery stores and also sells repair parts for those machines. These machines accept aluminum cans, glass bottles, and plastic bottles for recycling. When a can or bottle is placed in the machine, the machine reads the universal product code (UPC) and then sorts the accepted cans and bottles. Aluminum cans are crushed; plastic bottles are sorted by color, punctured, and compacted; and glass bottles are sorted by color. All containers are then moved to collection bins and thereafter transported to a recycling facility. At the recycling facility, the containers are dumped onto conveyor belts. Glass bottles are stored, while aluminum cans and plastic bottles are compacted into bales. The recycling facility sells the cans and bottles to manufacturers who remanufacture the materials into other products. In this case, the parties dispute plaintiff's obligation to pay sales and use tax with respect to the container-recycling machines for the period of March 1, 2011 through December 31, 2011. During that tax period, plaintiff collected sales tax from customers to whom they sold or leased container-recycling machines, and plaintiff paid the sales tax collected to defendant. Similarly, during that tax period, plaintiff paid use tax to defendant related to parts used in repairing the container-recycling machines sold or leased by plaintiff. Plaintiff thereafter sought a refund of these amounts on the basis that its sales of recycling machines and repair parts were exempt from taxation under the GSTA and UTA. After defendant failed to respond to the refund request, plaintiff filed this action in the Court of Claims. Plaintiff thereafter moved for summary disposition pursuant to MCR 2.116(C)(10), seeking a ruling on the question whether plaintiff's container-recycling machines and repair parts perform, or are used in, an industrial-processing activity under the GSTA and UTA. The Court of Claims denied plaintiff's motion, and pursuant to MCR 2.116(I)(2), instead granted defendant summary disposition, holding that plaintiff's container-recycling machines and repair parts are not used in an industrial-processing activity under the GSTA and the UTA and that plaintiff therefore is not entitled to exemption from sales and use tax for the sale and lease of the machines and their repair parts. Plaintiff now appeals. II. DISCUSSION Plaintiff contends that the Court of Claims erred by holding that plaintiff's container-recycling machines and repair parts are not used in an industrial-processing activity under the GSTA and the UTA, and therefore erred by granting summary disposition to defendant. We agree. We review de novo a trial court's grant or denial of summary disposition. Hoffner v. Lanctoe , 492 Mich. 450, 459, 821 N.W.2d 88 (2012). In reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), we review the record in the same manner as the trial court, considering the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion. Maiden v. Rozwood , 461 Mich. 109, 120, 597 N.W.2d 817 (1999). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim and is appropriately granted when, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Joseph v. Auto Club Ins. Ass'n , 491 Mich. 200, 206, 815 N.W.2d 412 (2012). We also review de novo the proper interpretation of statutes such as the GSTA and the UTA. See Fradco, Inc. v. Dep't of Treasury , 495 Mich. 104, 112, 845 N.W.2d 81 (2014) ; see also Granger Land Dev. Co. v. Dep't of Treasury , 286 Mich. App. 601, 608, 780 N.W.2d 611 (2009). Section 4t of the GSTA, MCL 205.54t, sets forth the industrial-processing exemption from the sales tax. The statute provides, in relevant part: (1) The sale of tangible personal property to the following ... is exempt from the tax under this act: (a) An industrial processor for use or consumption in industrial processing. (b) A person, whether or not the person is an industrial processor, if the tangible personal property is intended for ultimate use in and is used in industrial processing by an industrial processor. (c) A person, whether or not the person is an industrial processor, if the tangible personal property is used by that person to perform an industrial processing activity for or on behalf of an industrial processor. * * * (3) Industrial processing includes the following activities: * * * (d) Inspection, quality control, or testing to determine whether particular units of materials or products or processes conform to specified parameters at any time before materials or products first come to rest in finished goods inventory storage. * * * (g) Remanufacturing. * * * (i) Recycling of used materials for ultimate sale at retail or reuse. (j) Production material handling. (k) Storage of in-process materials. (4) Property that is eligible for an industrial processing exemption includes the following: * * * (b) Machinery, equipment, tools, dies, patterns, foundations for machinery or equipment, or other processing equipment used in an industrial processing activity and in their repair and maintenance. * * * (6) Industrial processing does not include the following activities: (a) Purchasing, receiving, or storage of raw materials. (b) Sales, distribution, warehousing, shipping, or advertising activities. * * * (7) As used in this section: (a) "Industrial processing" means the activity of converting or conditioning tangible personal property by changing the form, composition, quality, combination, or character of the property for ultimate sale at retail or for use in the manufacturing of a product to be ultimately sold at retail. Industrial processing begins when tangible personal property begins movement from raw materials storage to begin industrial processing and ends when finished goods first come to rest in finished goods inventory storage. (b) "Industrial processor" means a person who performs the activity of converting or conditioning tangible personal property for ultimate sale at retail or use in the manufacturing of a product to be ultimately sold at retail. Entitlement to an exemption under the GSTA is determined by what use the customer makes of the product sold by the taxpayer. Elias Bros. Restaurants, Inc. v. Treasury Dep't , 452 Mich. 144, 154, 156, 549 N.W.2d 837 (1996) ; accord Detroit Edison Co. v. Dep't of Treasury , 498 Mich. 28, 37, 869 N.W.2d 810 (2015). Tax exemptions are disfavored, and the burden of proving entitlement to a tax exemption is upon the party asserting the right to the exemption. Elias Bros. , 452 Mich. at 150, 549 N.W.2d 837. Further, tax exemptions are strictly construed against the taxpayer and in favor of the taxing unit. Ladies Literary Club v. Grand Rapids , 409 Mich. 748, 753, 298 N.W.2d 422 (1980) (citation omitted). As set forth under MCL 205.54t(1)(c), the sale of tangible personal property is exempt from sales tax if the tangible personal property is used by the buyer to perform an industrial-processing activity for or on behalf of an industrial processor. Under MCL 205.54t(4)(b), property that is eligible for an industrial-processing exemption includes "[m]achinery, equipment, tools, dies, patterns, foundations for machinery or equipment, or other processing equipment used in an industrial processing activity and in their repair and maintenance." In this appeal, the question is whether the container-recycling machines plaintiff sells and leases are machinery used by plaintiff's customers in an "industrial processing activity" within the meaning of the statute. An "industrial processing activity" is not defined by the statute, but the statute does define "industrial processing" as "the activity of converting or conditioning tangible personal property by changing the form, composition, quality, combination, or character of the property for ultimate sale at retail or for use in the manufacturing of a product to be ultimately sold at retail." MCL 205.54t(7)(a). MCL 205.54t also specifies activities that are considered to be industrial processing, including, under Subsection (3)(d), the "[i]nspection, quality control, or testing to determine whether particular units of materials or products or processes conform to specified parameters at any time before materials or products first come to rest in finished goods inventory storage"; under Subsection (3)(g), remanufacturing; under Subsection (3)(i), recycling of used materials for ultimate sale at retail or reuse; under Subsection (3)(j), production material handling; and under Subsection (3)(k), storage of in-process materials. The statute also specifies activities that are not included in industrial processing, including, under Subsection (6)(a), the purchasing, receiving, or storage of raw materials, and under Subsection (6)(b), sales, distribution, warehousing, shipping, or advertising activities. Subsection (7)(a), in addition to defining industrial processing, also provides that "[i]ndustrial processing begins when tangible personal property begins movement from raw materials storage to begin industrial processing and ends when finished goods first come to rest in finished goods inventory storage." In light of this provision, the Court of Claims in this case concluded that plaintiff's container-recycling machines could not be engaged in an industrial-processing activity because the machines do not perform their task after tangible personal property begins movement from raw-materials storage to begin industrial processing. That is, the tangible personal property in this case that is to be converted or conditioned through industrial processing is the cans and bottles that consumers commonly return to a grocery store. Generally, these cans and bottles are not first placed in "raw materials storage" before the consumer places them in the machines. The Court of Claims concluded that because the cans and bottles were not first placed in raw-material storage before being placed in the machines, whatever function the machines performed could never be considered an industrial-processing activity. The Court of Claims stated: [R]egardless of whether Plaintiff's recycling machines perform tasks that might fit within any specific provision of MCL 205.54t(3) or MCL 205.94o(3), because those activities occur before the industrial process begins, the exemptions found in MCL 205.54t and MCL 205.94o do not apply. The Court of Claims construed this provision as meaning precisely what it says-that industrial processing begins when tangible personal property begins movement from raw-materials storage to begin industrial processing. We agree. However, the Court of Claims also construed this sentence to mean that industrial processing can never occur unless, first, tangible personal property begins movement from raw-materials storage. The statute does not so provide, and we think it unlikely that the Legislature intended that interpretation. A court's primary task when interpreting a statute is to discern and give effect to the intent of the Legislature. Ford Motor Co. v. Dep't of Treasury , 496 Mich. 382, 389, 852 N.W.2d 786 (2014). In doing so, we first consider the statutory language itself; if the language is unambiguous, we conclude that the Legislature must have intended the clearly expressed meaning and we enforce the statute as written. Id . A statute is not ambiguous merely because a term is undefined or has more than one definition, but ambiguity exists when statutory language ''is equally susceptible to more than a single meaning." Klida v. Braman , 278 Mich. App. 60, 65, 748 N.W.2d 244 (2008) ; see also Marcelle v. Taubman , 224 Mich. App. 215, 219, 568 N.W.2d 393 (1997). Moreover, "what is plain and unambiguous often depends on one's frame of reference," U.S. Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing) , 484 Mich. 1, 13, 795 N.W.2d 101 (2009) (quotation marks and citation omitted); to determine that frame of reference, one must consider the context of the passage by reading it "in relation to the statute as a whole and [to] work in mutual agreement" with the remainder of the statute. Id . We therefore read a statute " 'as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined.' " Book-Gilbert v. Greenleaf , 302 Mich. App. 538, 541, 840 N.W.2d 743 (2013), quoting In re Receivership of 11910 South Francis Rd. , 492 Mich. 208, 222, 821 N.W.2d 503 (2012). In so doing, we "avoid a construction that would render any part of a statute surplusage or nugatory, and '[w]e must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.' " People v. Redden , 290 Mich. App. 65, 76-77, 799 N.W.2d 184 (2010) (citation omitted). We also note that, although tax exemptions are construed strictly against the taxpayer, Ladies Literary Club , 409 Mich. at 753, 298 N.W.2d 422, any ambiguity found in a tax statute is construed in favor of the taxpayer, Signature Villas, LLC v. Ann Arbor , 269 Mich. App. 694, 702, 714 N.W.2d 392 (2006). As noted, MCL 205.54t provides for an industrial-processing exemption for the tax imposed by the GSTA. The statute therefore focuses, of necessity, on which activities fall within the purview of "industrial processing." Indeed, the statute is devoted almost entirely to describing the activities that constitute, or do not constitute, industrial processing. Among the activities that are specified by the statute as falling within the definition of industrial processing are activities that are unlikely to begin with "tangible personal property begin[ning] movement from raw materials storage to begin industrial processing...." MCL 205.54t(7)(a). Subsection (3)(e) provides that industrial processing includes "[p]lanning, scheduling, supervision, or control of production or other exempt activities." Subsection (3)(f) provides that industrial processing includes "[d]esign, construction, or maintenance of production or other exempt machinery, equipment, and tooling." Clearly, the activities of planning, scheduling, and designing are likely to predate tangible personal property beginning movement from raw-materials storage to begin industrial processing. Nonetheless, our Legislature clearly intended, as evidenced by the language of these statutory provisions, to include these activities within the definition of industrial processing. We will not, therefore, read the language of Subsection (7)(a)-that "[i]ndustrial processing begins when tangible personal property begins movement from raw materials storage to begin industrial processing"-as a temporal requirement that would render these portions of the statute meaningless. That is, we will not read into the plain language of the statute the stricture that no activity qualifies as industrial processing unless it is predated by tangible personal property leaving raw-material storage. The statute does not state that industrial processing must begin this way but rather states that when tangible personal property begins movement from raw-materials storage to begin industrial processing, one can rest assured that industrial processing has begun. To discern the intention of the Legislature, statutory provisions should not be read in isolation, which can lead to a distortion of legislative intent. Robinson v. Lansing , 486 Mich. 1, 15, 782 N.W.2d 171 (2010). "A provision that may seem ambiguous in isolation often is clarified by the remainder of the statutory scheme." MidAmerican Energy Co. v. Dep't of Treasury , 308 Mich. App. 362, 370, 863 N.W.2d 387 (2014) (citation and quotation marks omitted). In this case, we observe that Subsection (6) of the statute specifies activities that are not considered industrial processing. Among the activities not considered to be industrial processing is the "storage of raw materials." MCL 205.54t(6)(a). Having made clear that the storage of raw materials is not industrial processing, Subsection (7)(a) then makes clear that once "tangible personal property begins movement from raw materials storage to begin industrial processing," the activity does qualify as industrial processing. Our Legislature thus articulated exactly which activities related to the storage of raw materials are and are not included in industrial processing, thereby providing guidance for determining exactly when in the continuum tangible personal property makes the transition from storage (not exempt) to activities of industrial processing (exempt). This provision does not attempt to foreclose the possibility that industrial processing could occur without the initial step of moving raw materials from storage, or when tangible items are never in raw-materials storage, and we decline to so expand the provision. In construing the statute, and in keeping with the statute's intent, our Supreme Court has emphasized that entitlement to an exemption under the GSTA is determined by what use the customer makes of the product sold by the taxpayer. Elias Bros. , 452 Mich. at 154, 156, 549 N.W.2d 837. In reaching its conclusion in this case, the Court of Claims found determinative not the use to which the container-recycling machines were put, but rather when, and perhaps where, the equipment was used in relation to raw-materials storage. In light of our Supreme Court's directive, we remand to the Court of Claims for reconsideration of whether plaintiff is entitled to a tax exemption under the GSTA and UTA. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Riordan, J., concurred with Gadola, P.J. K.F. Kelly (dissenting.) I respectfully dissent. Because the machines are not involved in "industrial processing" as that term is defined in MCL 205.54t(7)(a), I would affirm the Court of Claims' well-reasoned decision. The analysis in this case should begin and end with the statutory definition of "industrial processing" as set forth in Subsection (7)(a), which provides: "Industrial processing" means the activity of converting or conditioning tangible personal property by changing the form, composition, quality, combination, or character of the property for ultimate sale at retail or for use in the manufacturing of a product to be ultimately sold at retail. Industrial processing begins when tangible personal property begins movement from raw materials storage to begin industrial processing and ends when finished goods first come to rest in finished goods inventory storage . [Emphasis added.] "When a statute specifically defines a given term, that definition alone controls." Haynes v. Neshewat , 477 Mich. 29, 35, 729 N.W.2d 488 (2007). However, rather than focusing on the Legislature's definition of "industrial processing" in Section (7)(a), the majority mistakenly looks to those activities specifically enumerated in MCL 205.54t(3). Contrary to the majority's conclusion, Subsection (3) does not expand the definition specifically set forth in Subsection (7)(a). Rather, as the Court of Claims aptly noted, Subsection (7)(a) has a temporal requirement that must be met before the activities in Subsection (3) are even considered. That is, only after the definition in Subsection (7)(a) is met do the activities set forth in Subsection (3) have any relevance. Those activities must occur within the statutorily defined period in Subsection (7)(a). The Court of Claims correctly recognized that the machines perform activities before the industrial process begins. The machines may sort, separate, and compress items and, in that regard, some processing necessarily occurs. However, while some processing may occur, the machines do not perform "industrial processing" as statutorily defined. Instead, the machines simply facilitate the collection of raw materials. In order to be exempt, the machines must perform an activity at some point after tangible personal property begins movement from raw-material storage and before the finished goods first come to rest in inventory. The machines in this case are used before the start of the industrial process and, therefore, the equipment is not exempt. Thus, any inspection, quality control, and recycling that the machines perform is irrelevant because those activities take place before the industrial process begins. The majority erroneously concludes that the Court of Claims made its decision contingent on the existence of raw materials. However, it is clear that the Court of Claims made no such finding. Instead, the Court of Claims appropriately recognized that where, as here, there is raw material, then the industrial process begins when tangible personal property begins movement from raw-materials storage to begin industrial processing. In so doing, the Court of Claims was faithful to the definition as set forth by our Legislature. I find plaintiff's reliance on Detroit Edison Co. v. Dep't of Treasury , 498 Mich. 28, 869 N.W.2d 810 (2015), unavailing. The focus in the Detroit Edison case involved electricity. The issue was not whether there was raw storage, but whether electricity ever "came to rest" in inventory storage. Our Supreme Court concluded that "industrial processing of electricity does not become complete until final distribution to the consumer because there is simply no point within the electric system at which 'finished goods first come to rest in finished goods inventory storage' before that point." Id . at 42, 869 N.W.2d 810. Our Supreme Court further concluded that "the nonexempt activities in MCL 205.94o(6)(b) are in no way within the scope of MCL 205.94o(7)(a), and the exempt activity in MCL 205.94o(7)(a) is in no way within the scope of MCL 205.94o(6)(b)." Id . at 45, 869 N.W.2d 810. Therefore, as applied to the statutes at issue here, once there is industrial processing as defined in Subsection (7)(a), the exclusions set forth in Subsection (6) no longer apply. The only premise that Detroit Edison confirmed was that Subsection (6) does not modify the definition in Subsection (7)(a). Again, the Court of Claims did not rely on Subsection (6), which excluded storage of raw materials as an industrial activity; rather, the Court of Claims relied exclusively on the statutory definition of ''industrial processing'' in Subsection (7)(a). Because the machines perform activities that occur before an industrial process begins, I would affirm. During this tax period, plaintiff remitted $673,511.65 in sales tax and $24,992.95 in use tax to defendant. The UTA sets forth parallel provisions in MCL 205.94o such that, as the Court of Claims noted, "whether addressing the GSTA or the UTA, the analysis of the question presented by Plaintiff is the same." One can envision exceptions, such as when the cans and bottles are first collected at some other point, such as at a retailer that does not have a container-recycling machine, before being transported to a location that does have a container-recycling machine. An apt analogy is the statement "The movie starts at 9:00." The statement means what it says-that the movie starts at 9:00. But shall we read into the statement the additional meaning that "the movie starts at no other time than 9:00"? There may, perhaps, also be a 7:00 showing, and another at 11:00. We note that our Supreme Court in Detroit Edison Co. , 498 Mich. at 42, 869 N.W.2d 810, reached an analogous conclusion that industrial processing had occurred despite the inability to meet the industrial-processing continuum described in MCL 205.54t. In that case, because the property involved was electricity, our Supreme Court determined that industrial processing was complete when the electricity reached the consumer, despite the fact that "there is simply no point within the electric system at which 'finished goods first come to rest in finished goods inventory storage' before [reaching the consumer].'' Id. The failure of electricity to come to rest as a finished good in inventory storage did not disqualify the transmission of electricity to consumers from the exemption. Similarly in this case, because of the nature of deposit-return recycling, there is simply no point at which (other than in the hands of the consumer) the cans and bottles are in raw-materials storage. But as in Detroit Edison Co. , that fact does not create a statutory barrier to entitlement to the exemption for qualifying activities that happen to take place at the beginning of the process rather than the end. If the container-recycling machines were located somewhere less convenient to consumers than grocery stores, such as at a distant recycling facility, the cans and bottles would presumably need to be collected and stored before reaching the machines. Assuming for the sake of argument that the machines are performing tasks that otherwise would be considered an industrial-processing activity, under the Court of Claims' analysis the location of the machines becomes determinative of whether an exemption is warranted, which is contrary to the Supreme Court's determination in Elias Brothers . The record does not reflect whether any of these raw materials are ever, in fact, recycled into a finished product. It is just as likely that they will come to rest in a landfill in the United States or abroad. For example, see Albeck-Ripka, Your Recycling Gets Recycled, Right? Maybe, or Maybe Not , New York Times (May 29, 2018), available at https://www.nytimes.com/2018/05/29/climate/recycling-landfills-plastic-papers.html; [https://perma.cc/28SN-GUTG]; Watson, China Has Refused to Recycle The West's Plastics. What Now? , NPR (June 28, 2018), available athttps://www.npr.org/sections/goatsandsoda/2018/06/28/623972937/china-has-refused-to-recycle-the-wests-plastics-what-now [https://perma.cc/37QC-ZVU3].

On order of the Court, the applications for leave to appeal the August 30, 2018 judgment of the Court of Appeals are considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, VACATE the June 13, 2018 opinion and order of the Genesee Circuit Court, and REMAND this case to the trial court for further consideration. Although the plaintiff has asserted the defenses of waiver and estoppel, neither defense applies in this case. "A true waiver is an intentional, voluntary act and cannot arise by implication. It has been defined as the voluntary relinquishment of a known right." Landelius v. Sackellares , 453 Mich. 470, 480, 556 N.W.2d 472 (1996), quoting Kelly v. Allegan Circuit Judge , 382 Mich. 425, 427, 169 N.W.2d 916 (1969). There is no dispute that neither defendant knowingly and voluntarily relinquished their respective right to assert intrinsic fraud or fraud on the court. And because the defendants' motion for relief from judgment constitutes a timely challenge to the validity of the paternity judgment in the same civil action under the Revocation of Paternity Act (ROPA), MCL 722.1431 et seq ., collateral estoppel does not apply. See Jones v. Chambers , 353 Mich. 674, 680-681, 91 N.W.2d 889 (1958). Accordingly, on remand, the Genesee Circuit Court shall: (1) conduct an in-person evidentiary hearing to determine whether the plaintiff committed intrinsic fraud or fraud on the court during the ROPA proceedings, which shall include consideration of relevant evidence discovered after entry of the ROPA judgment; and (2) if so, determine to what, if any, remedy the defendants are entitled. The Genesee Circuit Court is DIRECTED to expedite its consideration and resolution of this case. We do not retain jurisdiction.

On order of the Court, the application for leave to appeal the June 27, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted.

On order of the Court, the applications for leave to appeal the July 3, 2018 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant are considered. We direct the Clerk to schedule oral argument on the plaintiff's applications. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether the Court of Appeals clearly erred in its application of the principles of People v. Hana , 447 Mich. 325, 524 N.W.2d 682 (1994), to the defendants' motions for separate trials. In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellees shall file supplemental briefs within 21 days of being served with the appellant's brief. The appellees shall also electronically file appendices, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the respective appellee's brief. The parties should not submit mere restatements of their application papers. The total time allowed for oral argument shall be 40 minutes: 20 minutes for the appellant, and 20 minutes for the appellees, to be divided at their discretion. MCR 7.314(B)(2). The application for leave to appeal as cross-appellant remains pending.

The application for leave to appeal the April 10, 2018 judgment of the Court of Appeals and the motion for miscellaneous relief are considered. The motion for miscellaneous relief is GRANTED in part. On order of the Court, it appearing to this Court that the case of W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan (Docket No. 156622) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case.

On order of the Chief Justice, the second motions of defendant-appellant to extend the time for filing an amended application for leave to appeal are GRANTED. The amended application submitted on March 11, 2019, is accepted for filing.

On order of the Court, the motion for immediate consideration and the motion to accept supplemental filings are GRANTED. The application for leave to appeal the February 25, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Per Curiam. Respondent, Julian M. Gordon, appeals as of right the final order issued by petitioner, the Department of Licensing and Regulatory Affairs' Board of Psychology Disciplinary Subcommittee, which found that respondent, a psychologist, violated MCL 333.16221(b)(i ) (incompetence) and suspended respondent's license. We affirm. I. FACTS Respondent's psychologist license was revoked in 1999 following his conviction for criminal sexual conduct. His license was reinstated in 2011, but he was placed on probation for a year. During that time, his practice was required to be supervised. After respondent became employed at the Nardin Park Recovery Center, the clinical director, Willy Scott, Ph.D., supervised respondent's psychology practice for "purposes of the board's [re-licensing] requirements." A complaint filed in June 2015 alleged that respondent previously treated AE, an adult male, for substance abuse at Nardin Park from June 2011 through December 29, 2012; that in 2012, respondent invited AE to join him at an outing for the area humane society, the two had dinner and drinks, and AE spent the night at respondent's home; and that shortly after, respondent allowed AE to move in with him and respondent initiated physical contact with AE. The complaint further alleged that on May 11, 2014, the police were called to respondent's home after AE stabbed respondent. AE claimed that the stabbing occurred following an altercation in which respondent attempted to touch AE's penis. The complaint asserted that AE was not charged with respect to the incident. The complaint asserted that respondent violated MCL 333.16221(a) (negligence), (b)(i ) (incompetence), (b)(vi ) (lack of good moral character), and (h) (violating or aiding and abetting in a violation of Article 15 of the Public Health Code, MCL 333.1101 et seq., or a rule promulgated under Article 15), and Mich. Admin. Code, R. 338.2515(b) (involvement in a multiple relationship with a current or former patient) and (g) (psychologist soliciting or engaging in a sexual relationship with former patient within two years after termination of the treatment or professional relationship). On August 3, 2015, an administrative hearing was held before an administrative law judge (ALJ). At the hearing, petitioner orally amended the complaint to remove the allegation that respondent violated R. 338.2515(g) because, although petitioner had subpoenaed AE at two different addresses, petitioner was uncertain whether AE would be appearing and AE was necessary to substantiate that allegation. In its opening statement, petitioner claimed that "this case really [came] down to a limited issue that [respondent] allowed a ... former patient... to live with him in his home." At the hearing, it was established that respondent obtained a personal protection order (PPO) against AE after AE stabbed respondent on May 11, 2014. The PPO indicated that respondent was residing or had resided in the same household as AE. The PPO also indicated that AE had been evicted from respondent's residence on June 30, 2013, and that AE had started threatening respondent around November 2013. According to the PPO, respondent never contacted the police or talked to his Nardin Park supervisor regarding "any concerns or issues with AE" prior to the stabbing incident. Detective Sergeant Brent Ross testified that after the stabbing, respondent told him that he had met AE approximately a year before the assault and that AE had been his roommate for the previous eight months. An investigator for the Bureau of Professional Licensing testified that during an interview with respondent, respondent had acknowledged that AE had lived with him at some point. According to the investigator, respondent told her that "[AE] would come and go and the door would be left unlocked for him to enter and exit." Respondent testified that he began treating AE in approximately June 2011 and terminated treatment in December 2012. According to respondent, AE "showed up" at respondent's apartment in October 2012 but did not start living there until November 2012. Respondent testified that AE "forcibly stay[ed] there" from November 2012 until June 2013. Respondent testified that when AE moved in with him, respondent was "extremely frightened" because AE had threatened to harm respondent and to make allegations against him. However, respondent did not call the police. According to respondent, he told Dr. Scott that AE had forced himself into respondent's home "[p]robably [in] November, December." Respondent also testified that he told Dr. Scott that AE was harassing him, but he could not remember if he mentioned that AE was staying in his home. Respondent further testified that he did not call the police or place anything in AE's patient record about AE harassing him because the Nardin Park administration's judgment was "very bad with a lot of these kinds of situations." Respondent said that he feared reporting AE's actions to the Nardin Park administration because, even though he had done nothing wrong, he ''certainly would have lost [his] job." However, respondent later contradicted this testimony. Respondent testified that he "had a long discussion with both [administrator] Paul Scott and [Dr.] Scott about what was going on" and that he told Nardin Park administration, via a letter, that AE was using his address. However, respondent conceded that nothing in the letter, which was dated December 29, 2012, indicated that AE was threatening respondent, that AE had pushed his way into respondent's home, or that AE had been staying in respondent's house since November. In fact, the letter stated that respondent had "NO contact" with AE since his discharge from Nardin Park. When asked to clarify whether he had told the Nardin Park administration about AE's threats, respondent testified that he had "told Dr. Scott personally" and that he had tried to tell Paul Scott about it but he was ''not easy to talk to, so [respondent] confided in Dr. Scott ... who was fully understanding of how difficult it [was] to deal with Paul Scott." When questioned whether a psychologist allowing a patient to live in his home was consistent with the standard of care for a psychologist, respondent testified: That would be in general, but I mean by today's standards of the ethics code that would be very, very much unusual. I mean, it's not-for me in my situation, my background, it's extremely inappropriate. That would not be something I would do. You just asked me and I would not. Respondent testified that he had tried to resolve the issue by living elsewhere, by trying to have AE involuntarily hospitalized, and, eventually, by talking to the property owner, Gillian Levy. Levy eventually filed a notice for eviction of AE in March 2013. According to Detective Ross, respondent told him during an interview following the May 2014 stabbing that respondent had recently allowed AE to move back in. Following the hearing, the ALJ issued a proposal for decision, recommending that the Board of Psychology Disciplinary Subcommittee dismiss the administrative complaint. The ALJ's proposed decision found that AE was "forcibly staying" with respondent, that respondent had informed his supervisor of this, and that there "were ongoing episodes" in which AE threatened respondent. On the basis of these findings, the ALJ concluded that petitioner had failed to establish by a preponderance of evidence any of the allegations in the complaint. However, the disciplinary subcommittee disagreed with the ALJ's findings and conclusion. Based on the hearing record, the subcommittee made the following findings of fact: The Disciplinary Subcommittee rejects the findings that patient A.E. forcibly began staying in Respondent's home in October 2012. During a police investigation regarding an altercation in May 2014 between Respondent and A.E., Respondent referred to A.E. as having been his "roommate" for eight months.... Additionally, a detective testified that Respondent stated that he had allowed A.E. to move back in after A.E. was evicted ... and that A.E. had been living with him because A.E. was homeless and Respondent was trying to help him.... Furthermore, Respondent signed a statement when filing a petition for a personal protection order against A.E. that stated the threats did not start until November 2013, over a year after A.E. allegedly forcibly began living with Respondent.... The Disciplinary Subcommittee also rejects the finding that Respondent notified Respondent's employer or supervisor that A.E. was forcibly staying in Respondent's home. On December 29, 2012, Respondent provided a signed statement indicating that he had learned from his employer that A.E. used his home address and phone number at another treatment facility. Respondent did not disclose that A.E. had been living in his home for over a month. In fact, Respondent did just the opposite, stating: "Since his discharge from NPRC, I have had NO contact with Mr. [E]. In the future, I will be much more careful to inform NPRC administration about any time clients obtain or suggest using information inappropriately." (Respondent's Exhibit C) In his testimony, Respondent contradicted his own statements by stating that he had told his supervisor, Willy Scott, Ph.D., that A.E. was harassing him and showing up at his home.... Later in his testimony, Respondent stated that he "certainly would have lost [his] job" had he told his employer that A.E. was staying in his home.... Furthermore, Department Investigator Christine Murray testified that Respondent indicated to her during her investigation that he did not tell anyone at work about A.E. living in his home.... The Disciplinary Subcommittee finds that Respondent voluntarily allowed A.E. to live in his home. Respondent's statement that A.E.'s threatening behavior began over a year after A.E. began living with Respondent; Respondent's lack of communication to his employer or others regarding the alleged threats during that year; and Respondent's reference in regard to A.E. as his "roommate" to police support that Respondent voluntarily allowed A.E. to live with him in his home. Based on its findings, the subcommittee made the following conclusions: The Disciplinary Subcommittee rejects the conclusion that Petitioner has not proven, by a preponderance of evidence, that Respondent violated section 16221(b)(i ) of the Public Health Code, 1978 PA 368, as amended, MCL 333.1011 et seq, as alleged in the Administrative Complaint executed February 19, 2015. * * * The Disciplinary Subcommittee concludes that Respondent's conduct of allowing a patient to live with him constitutes incompetence in violation of section 16221(b)(i ) of the Public Health Code, supra. Ultimately, the disciplinary subcommittee issued consequences for respondent's violation, which included a suspension of respondent's license for six months, the requirement that he work under an approved licensed psychologist supervisor upon reinstatement, and that his license be limited for two years following reinstatement. Respondent now appeals. II. ANALYSIS A. STANDARD OF REVIEW "Rulings by disciplinary subcommittees of regulated professions are reviewed on appeal solely under Const. 1963, art. 6, § 28." In re Butler , 322 Mich. App. 460, 464, 915 N.W.2d 734 (2017). Const. 1963, art. 6, § 28, provides: All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. In Huron Behavioral Health v. Dep't. of Community Health , 293 Mich. App. 491, 497, 813 N.W.2d 763 (2011), this Court stated: When reviewing whether an agency's decision was supported by competent, material, and substantial evidence on the whole record, a court must review the entire record and not just the portions supporting an agency's findings. Substantial evidence is what a reasoning mind would accept as sufficient to support a conclusion. Substantial evidence is more than a mere scintilla but less than a preponderance of evidence. A reviewing court must not substitute its discretion for that of the administrative tribunal even if the court might have reached a different result. Deference must be given to an agency's findings of face, especially with respect to conflicts in the evidence and the credibility of witnesses. [Quotation marks and citations omitted.] B. COMPETENT, MATERIAL, AND SUBSTANTIAL EVIDENCE On appeal, respondent argues that the disciplinary subcommittee's findings of fact were not supported by competent, material, and substantial evidence on the whole record. Respondent alleges that the disciplinary subcommittee "opted to cherry pick facts to support" its narrative and that the record as a whole suggests a contrary finding. We disagree. Respondent first argues that the disciplinary subcommittee ignored that AE's threatening behavior actually began before November 2013. In support of his argument, respondent relies on his testimony and the testimony of his witness, Levy. While this testimony may have supported a conclusion contrary to that of the disciplinary subcommittee, a reviewing court "may not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record." Edw. C. Levy Co. v. Marine City Zoning Bd. of Appeals , 293 Mich. App. 333, 341, 810 N.W.2d 621 (2011). This appeared to be a credibility determination: other evidence contradicted respondent's and Levy's testimony and supported a finding that AE's harassing behavior started in November 2013, not before. In particular, the PPO signed by respondent indicated that the threats started in November 2013. The disciplinary subcommittee also found it significant that respondent never reported the alleged threats to either the police or to his supervisors. Giving deference to the disciplinary subcommittee's findings of fact based on a credibility determination, Huron Behavioral Health , 293 Mich. App. at 497, 813 N.W.2d 763, we conclude that the disciplinary subcommittee's finding was supported by competent, material, and substantial evidence on the whole record. Respondent also argues that the record does not support the disciplinary subcommittee's finding that he failed to communicate to his supervisor that AE was threatening him. Respondent again relies on his own testimony to rebut the subcommittee's finding. Respondent argues, essentially, that he explained that his fear of reprisal prevented him from reporting AE's threats, which sufficiently rebuts the subcommittee's finding. While respondent's explanation is plausible, again, we "may not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record." Edw. C. Levy Co. , 293 Mich. App. at 341, 810 N.W.2d 621. The disciplinary subcommittee concluded that respondent had a different reason for not reporting AE's alleged threats: respondent had voluntarily allowed AE to reside with him. The subcommittee found it significant that while AE was living with respondent, he wrote a letter to the Nardin Park administration stating that he had "NO contact" with AE; that respondent gave conflicting statements and changing testimony about whom in the administration he had reported AE's behavior to; and that respondent referred to AE as his "roommate" while police were investigating the May 2014 stabbing. Giving deference to the agency's findings of fact based on credibility determinations and conflicting evidence, Huron Behavioral Health , 293 Mich. App. at 497, 813 N.W.2d 763, we conclude that the disciplinary subcommittee's finding was supported by competent, material, and substantial evidence on the whole record. C. STANDARD OF CARE Respondent next argues that petitioner failed to carry its burden of proof that he was "incompetent" because petitioner never established a standard with which to measure ''incompetence'' for purposes of MCL 333.16221(b)(i). Respondent alternatively argues that even were this standard established, petitioner failed to recognize that respondent was employed as a counselor at Nardin Park, not as a psychologist, and the standard of practice applicable to a counselor may be different from the one applicable to a psychologist. We disagree with both arguments. First addressing respondent's argument that his applicable standard of practice was that of a "counselor," we find that argument unpersuasive. Respondent, throughout his hearing testimony, established that he was practicing as a psychologist at Nardin Park. Specifically, respondent testified that (1) he signed his patient progress reports for AE with his psychology credentials, (2) the 2000 hours of supervision that he was undergoing at Nardin Park was for his practice as a psychologist "in order to fulfill [his] licensing requirements," and (3) Dr. Scott supervised him "for purposes of the board's requirements" that his psychology practice be supervised. Therefore, even though respondent testified that he was employed as a counselor at Nardin Park, he clearly testified that he was practicing as a psychologist. With regard to respondent's argument that petitioner failed to establish the standard of practice for a psychologist, MCL 333.16221 provides, in relevant part: The disciplinary subcommittee shall proceed under section 16226 if it finds that 1 or more of the following grounds exist: * * * (b) Personal disqualifications consisting of 1 or more of the following: (i ) Incompetence. " 'Incompetence' means a departure from, or failure to conform to, minimal standards of acceptable and prevailing practice for a health profession, whether or not actual injury to an individual occurs." MCL 333.16106(1). We need not address this argument because it is waived. Waiver is the intentional relinquishment of a known right. Sweebe v. Sweebe , 474 Mich. 151, 156-157, 712 N.W.2d 708 (2006). "It is ... well-settled that a waiver may be shown by express declarations or by declarations that manifest the parties' intent and purpose." Id. at 157, 712 N.W.2d 708 At the hearing, respondent argued that he was not incompetent because AE forcibly stayed with him without his acquiescence. To that end, respondent repeatedly admitted throughout the hearing that if he voluntarily allowed AE to reside with him, it would fall below an acceptable standard of practice. Respondent testified that allowing a patient to live with him would be "very, very much unusual"; that it would be "extremely inappropriate"; and that if he told that information to the Nardin Park administration, he "certainly would have lost [his] job." Therefore, by respondent's testimony at trial, he expressly conceded that voluntarily allowing a patient to reside with a psychologist would fall below a minimal standard of acceptable practice for a psychologist. But even if this issue were not waived, respondent's argument would still fail. In the context of medical malpractice, the Michigan Supreme Court has recognized that it is unnecessary "to establish the applicable standard of care and to demonstrate that the professional breached that standard" when "the lack of professional care is so manifest that it would be within the common knowledge and experience of the ordinary layman that the conduct was careless and not conformable to the standards of professional practice and care employed in the community." Sullivan v. Russell , 417 Mich. 398, 407, 338 N.W.2d 181 (1983) (quotation marks and citations omitted). This Court has applied this standard in the context of disciplinary subcommittees regulating professional licenses. See Sillery v. Bd. of Med. , 145 Mich. App. 681, 689, 378 N.W.2d 570 (1985) ("Where a professional's work product lacks such basic integrity as we believe that it is within the province of the layperson to determine that the conduct constitutes a failure to exercise due care."), citing Sullivan, 417 Mich. at 407, 338 N.W.2d 181. In this case, we conclude that respondent's voluntarily allowing a patient to live in his home is so lacking of professional care "that it would be within the common knowledge and experience of the ordinary layman that the conduct," Sullivan , 417 Mich. at 407, 338 N.W.2d 181, failed to meet "minimal standards of acceptable and prevailing practice for a" psychologist, MCL 333.16106. D. PROCEDURAL DUE PROCESS Lastly, respondent argues that he was denied a fair hearing because he was denied his constitutional right to confront AE because of AE's absence at the hearing. We disagree. This Court reviews de novo a claim of constitutional error. People v. McPherson , 263 Mich. App. 124, 131, 687 N.W.2d 370 (2004). The Confrontation Clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const., Am. VI. Michigan has also adopted this right. Const. 1963, art. 1, § 20. Although this is an administrative agency case, the agency must still provide adequate procedural due process to the involved parties. City of Livonia v. Dep't. of Social Servs. , 423 Mich. 466, 505, 378 N.W.2d 402 (1985). In this case, the initial complaint asserted that respondent had an improper sexual relationship with AE. When it became apparent that AE was not going to appear at the administrative hearing, petitioner amended the complaint to remove this allegation because AE's testimony was necessary to prove it. Afterwards, petitioner limited its evidence to the issue of whether respondent improperly allowed AE to live in his home. AE's testimony on this subject was neither necessary nor required because respondent conceded that AE had lived with him at his residence. After the hearing, the disciplinary subcommittee did not base any of its findings on any statements made by AE; instead it relied entirely on the statements made by respondent. These statements came from respondent's testimony at the hearing, testimony from other persons as to statements respondent had made to them, and statements made by respondent in documents that were submitted at the hearing. Respondent has failed to show that he was unable to present any relevant evidence or that he was unable to adequately explore any issues because of the absence of AE. Accordingly, respondent has not established a violation of due process owing to the inability to confront AE at the hearing. Affirmed. We note that Rule 338.2515 was rescinded in 2015. 2015 Mich. Reg. 17 (October 1, 2015), p. 3. However, the rule was in effect when the alleged events occurred. Although respondent signed the PPO, he testified that the PPO was wrong and that the threats had actually "started much earlier than that." Respondent contests the subcommittee's reliance on this fact because, according to respondent, it "was made under duress and while under the influence of prescription pain medications while [respondent] was still recovering in the hospital" from the May 2014 stabbing. Respondent essentially is contesting the weight that the disciplinary subcommittee gave to this evidence. Therefore, we reject respondent's argument because we may not substitute the agency's judgment for our own. Huron Behavioral Health , 293 Mich. App. at 497, 813 N.W.2d 763. Respondent's argument appears to be premised on the notion that he had a right to confront AE because AE was an "adverse witness." However, because AE never appeared at the hearing, AE was not a "witness," let alone an "adverse witness." And as stated, the disciplinary subcommittee relied entirely on respondent's own statements in concluding that he voluntarily allowed AE to live with him. Respondent has provided no authority for the proposition that he had a right to confront AE based solely on the fact that AE was the complainant. See Prince v. MacDonald , 237 Mich. App. 186, 197, 602 N.W.2d 834 (1999) ("And, where a party fails to cite any supporting legal authority for its position, the issue is deemed abandoned.").

Beckering, J. These appeals arise in the aftermath of the United States Supreme Court's proclamation that mandatory life-without-parole sentencing schemes are unconstitutional with respect to juvenile offenders and the Michigan Legislature's enactment of MCL 769.25a in an attempt to retroactively rectify the problem. In Docket No. 336898, defendant Christopher Wiley appeals by right the trial court's order resentencing him under MCL 769.25a to 25 to 60 years' imprisonment for his 1995 conviction of first-degree murder, MCL 750.316. In Docket No. 338870, defendant William Lawrence Rucker appeals by right the trial court's order resentencing him under MCL 769.25a to 30 to 60 years' imprisonment for his 1993 conviction of first-degree murder, MCL 750.316. Both defendants allege on appeal that MCL 769.25a(6) unconstitutionally deprives them of having earned disciplinary credits applied to their term-of-years sentences. These appeals were consolidated by order of this Court. We affirm the sentences defendants received at the time of their resentencings, but we agree with their contention that MCL 769.25a(6) is unconstitutional. Put simply, we agree with the analysis of our federal colleague Judge Mark A. Goldsmith in Hill v. Snyder , 308 F.Supp.3d 893 (E.D. Mich., 2018), in which he concluded that MCL 769.25a(6) runs afoul of the Ex Post Facto Clause of the United States and Michigan Constitutions. I. RELEVANT LEGAL HISTORY As alluded to above, these appeals arise following the United States Supreme Court's decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), and our Legislature's concomitant enactment of MCL 769.25a. The Miller Court held, in relevant part: [A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment. [ Miller , 567 U.S. at 489, 132 S.Ct. 2455.] Subsequently, the Supreme Court recognized that the ruling in Miller had resulted in some confusion and disagreement among various state courts about whether Miller applied retroactively. Montgomery , 577 U.S. at ----, 136 S.Ct. at 725. In determining that Miller was to be afforded retroactive application, the Court subsequently explained: Miller's conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution. Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition-that children who commit even heinous crimes are capable of change. [ Id. at ----, 136 S.Ct. at 736 (citations omitted).] After Miller but before Montgomery , our Legislature enacted MCL 769.25, which set forth the procedure for resentencing criminal defendants who fit Miller 's criteria, provided either that their case was still pending in the trial court or that the applicable time periods for appellate review had not elapsed. In other words, MCL 769.25 applied only to cases that were not yet final; MCL 769.25 did not retroactively apply Miller to cases that were final. See 2014 PA 22, effective March 4, 2014. However, in anticipation of the possibility that Miller might be determined to apply retroactively, our Legislature simultaneously enacted MCL 769.25a, which set forth the procedure for resentencing defendants who fit Miller 's criteria even if their cases were final. See 2014 PA 22, effective March 4, 2014. In other words, if Miller were determined to apply retroactively, MCL 769.25a would apply it retroactively to cases that were final. MCL 769.25a states: (1) Except as otherwise provided in subsections (2) and (3), the procedures set forth in section 25 of this chapter do not apply to any case that is final for purposes of appeal on or before June 24, 2012.[ ] A case is final for purposes of appeal under this section if any of the following apply: (a) The time for filing an appeal in the state court of appeals has expired. (b) The application for leave to appeal is filed in the state supreme court and is denied or a timely filed motion for rehearing is denied. (c) If the state supreme court has granted leave to appeal, after the court renders its decision or after a timely filed motion for rehearing is denied. (2) If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v. Alabama , 576 [sic] U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407]; 183 L.Ed.2d 407; 132 S. Ct. 2455 (2012), applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for a violation set forth in section 25(2) of this chapter shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section. For purposes of this subsection, a decision of the state supreme court is final when either the United States supreme court denies a petition for certiorari challenging the decision or the time for filing that petition passes without a petition being filed. (3) If the state supreme court or the United States supreme court finds that the decision of the United States supreme court in Miller v. Alabama , 576 [sic] U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407]; 183 L.Ed.2d 407; 132 S. Ct. 2455(2012), applies retroactively to all defendants who were convicted of felony murder under section 316(1)(b) of the Michigan penal code, 1931 PA 328, MCL 750.316, and who were under the age of 18 at the time of their crimes, and that the decision is final for appellate purposes, the determination of whether a sentence of imprisonment shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section. For purposes of this subsection, a decision of the state supreme court is final when either the United States supreme court denies a petition for certiorari challenging the decision with regard to the retroactive application of Miller v. Alabama , 576 [sic] U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407], 567 U.S. 460; 183 L.Ed.2d 407; 132 S. Ct. 2455 (2012), to defendants who committed felony murder and who were under the age of 18 at the time of their crimes, or when the time for filing that petition passes without a petition being filed. (4) The following procedures apply to cases described in subsections (2) and (3): (a) Within 30 days after the date the supreme court's decision becomes final, the prosecuting attorney shall provide a list of names to the chief circuit judge of that county of all defendants who are subject to the jurisdiction of that court and who must be resentenced under that decision. (b) Within 180 days after the date the supreme court's decision becomes final, the prosecuting attorney shall file motions for resentencing in all cases in which the prosecuting attorney will be requesting the court to impose a sentence of imprisonment for life without the possibility of parole. A hearing on the motion shall be conducted as provided in section 25 of this chapter. (c) If the prosecuting attorney does not file a motion under subdivision (b), the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years. Each victim shall be afforded the right under section 15 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.765, to appear before the court and make an oral impact statement at any resentencing of the defendant under this subdivision. (5) Resentencing hearings under subsection (4) shall be held in the following order of priority: (a) Cases involving defendants who have served 20 or more years of imprisonment shall be held first. (b) Cases in which the prosecuting attorney has filed a motion requesting a sentence of imprisonment for life without the possibility of parole shall be held after cases described in subdivision (a) are held. (c) Cases other than those described in subdivisions (a) and (b) shall be held after the cases described in subdivisions (a) and (b) are held. (6) A defendant who is resentenced under subsection (4) shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence. The instant appeals challenge the proscription in MCL 769.25a(6) against applying good-time and disciplinary credits when resentencing juvenile offenders to sentences during which they will become eligible for parole, in addition to raising other constitutional challenges. II. FACTUAL AND PROCEDURAL HISTORIES A. DOCKET NO. 336898-DEFENDANT WILEY The events leading to Wiley's conviction of first-degree murder involved the death of Jamal Cargill on June 22, 1994, and were described by this Court as follows: Defendant entered the backyard of a home where several people, including the victim, were playing basketball. Defendant, who had a gun concealed on his person, asked who had been messing with his car. No one threatened defendant or tried to hurt him. Defendant twice asked the victim why he was smiling, and placed his hand on the gun. The victim told defendant that he was not scared, but did not rush defendant and made no motions toward him. Defendant pulled out the gun, cocked it, and pointed at the victim's chest area. Defendant then fired seven to eight shots at the victim. After the victim fell, defendant ran away but then came back when the victim began to get up. Defendant then fired two more shots at the victim. [ People v. Wiley , unpublished per curiam opinion of the Court of Appeals, issued November 21, 1997 (Docket No. 193252), 1997 WL 33331087.] At the time this crime was committed, Wiley was 16 years and 9 months old. Wiley was convicted on August 30, 1995, after a jury trial, of first-degree murder, MCL 750.316, and felony-firearm, MCL 750.227b, and he was originally sentenced on December 19, 1995, to life in prison without parole for his first-degree murder conviction and two years' imprisonment for his felony-firearm conviction. After the issuance of Miller and Montgomery , and the enactment of MCL 769.25a, the Wayne County Prosecutor's Office prepared a sentencing memorandum indicating that it would not seek to resentence Wiley to life in prison without parole but would instead seek to have Wiley resentenced on his first-degree murder conviction "to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years" as set forth in MCL 769.25a(4)(c). While numerous prison misconducts were documented for Wiley from 1996 until 2008, the prosecutor's office noted that, while in prison, Wiley had completed his general equivalency diploma (GED), had enrolled in several community college courses, and had maintained employment in the prison in various capacities since 1999. The prosecution specifically requested that the trial court resentence Wiley to a term of 35 to 60 years' imprisonment for his first-degree murder conviction. Wiley's resentencing hearing was held on December 21, 2016. After a statement from the victim's family and Wiley's allocution, the trial court reviewed the history of the case and sentencing, as well as Wiley's record while in prison and his achievements. The trial court then stated as follows: I think it was a horrific crime, and I certainly hope that you don't ever forget about what you've done, and before there's any confrontational situation again, you think about what happened the last time you didn't think, 'cuz I think you really went looking for trouble. But I am going to, I think there is sufficient time for completion of programming within the 25 years and a review at that point by the Parole Board for determining whether or not he has met the standards that they feel are adequate for parole, and they've got the ability to keep him up to 60 years, so the sentence will be 25 to 60 years on the first[-]degree murder with credit for 7,441 days served, consecutive to the felony firearm which he will get credit for 700, the 2 years on the felony firearm, and be given credit for the 730 days served. I know that that may not be satisfactory to the Cargill family, but there is nothing that this court can do to restore the life of your brother, son, or friend, and I'm, I think we're looking at a situation in all of these cases where it's not just one family but multiple families and multiple people whose lives are destroyed by the senselessness of these actions. I only hope that with the sentence that you will continue to grow and that you will, if paroled, become a productive member of society. A judgment of resentencing was entered on December 21, 2016. Wiley appealed, contending that MCL 769.25a(6), which deprives him of sentencing credits on his term-of-years sentence, violates the Ex Post Facto Clause of both the Michigan and United States Constitutions, U.S. Const., art. I, § 10, and Const. 1963, art. 1, § 10. He also contends that the statute violates Const. 1963, art. 2, § 9, because it repealed "Proposal B" concerning parole eligibility, and Const. 1963, art. 4, § 24, because it violates the Title-Object Clause. B. DOCKET NO. 338870-DEFENDANT RUCKER The events leading to Rucker's conviction of first-degree murder involved the death of Earl Cole on November 27, 1992, and were described by this Court as follows: There was evidence of animosity between defendant and the decedent because of defendant's replacement by the decedent as the drug seller at the Tireman address. Further, defendant brought a shotgun to the Tireman address and talked the decedent into leaving the home with him. Later, a neighbor heard someone say, "Please don't shoot me," just prior to shots being fired. The decedent was found dead from five gunshot wounds, which were inflicted from a gun that had to be reloaded each time it was fired. Finally, defendant told various stories to different people regarding what had happened. [People v. Rucker , unpublished memorandum opinion of the Court of Appeals, issued December 29, 1994 (Docket No. 167012).] At the time this crime was committed, Rucker was 17 years and 3 months old. Rucker was convicted on May 20, 1993, after a jury trial, of first-degree murder, MCL 750.316, and felony-firearm, MCL 750.227b. Rucker was originally sentenced on June 8, 1993, to life in prison without parole for his first-degree murder conviction and to two years' imprisonment for his felony-firearm conviction. After Miller and Montgomery were issued and MCL 769.25a was enacted, the Wayne County Prosecutor's Office prepared a sentencing memorandum indicating that it would not seek to resentence Rucker to life in prison without parole, but would instead seek to have Rucker resentenced on his first-degree murder conviction "to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years," as set forth in MCL 769.25a(4)(c). The prosecution detailed Rucker's juvenile record. While numerous misconducts were documented for Rucker from 1993 until 2016, the prosecutor's office noted that, while incarcerated, Rucker completed his GED and participated in numerous training and employment opportunities or classes. The prosecution requested that the trial court resentence Rucker to a term of 32 to 60 years' imprisonment for his first-degree murder conviction. Rucker's resentencing hearing was held on February 28, 2017. After a statement from the victim's mother and Rucker's allocution, the trial court resentenced Rucker to 30 to 60 years in prison for the first-degree murder conviction, with credit for 8,132 days on the first-degree murder conviction and 730 days credit on the felony-firearm conviction. At the conclusion of the resentencing hearing, Rucker's counsel, for purposes of record preservation, stated the following: Any challenges to mandatory sentencing range of twenty-five to forty on the minimum, and sixty on the maximum per [ Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ]. I'm just placing them on the record, and to preserve any ex-post facto challenges to the denial of disciplinary credits, per MCL 769.25a(6). A judgment of resentencing was entered on February 28, 2017. Rucker appealed, contending that MCL 769.25a(6) unconstitutionally deprives him of disciplinary credits in violation of the Ex Post Facto Clause of the United States Constitution, U.S. Const., art. I, § 10, and that his minimum sentence was imposed in contravention of Alleyne because it was based on judge-found facts. III. SUBJECT-MATTER JURISDICTION Before addressing the substantive issues on appeal, it is necessary to address the prosecution's initial contention that this Court lacks subject-matter jurisdiction to review defendants' claims. Specifically, the prosecution asserted in both appeals: Since defendant's constitutional claim has no effect on the validity of his sentence, but only to how the Department of Corrections is calculating parole eligibility, it seems that defendant's challenge would be better directed in a suit against the Department of Corrections and not in an appeal of his validly imposed sentence. The prosecution in Wiley's case further expanded on this argument in its brief as follows: Judicial review of a Parole Board decision is governed by MCL 791.234(11). While the statute provides an avenue for the prosecution to appeal the granting of a prisoner's release on parole, it does not extend the same for a defendant seeking to challenge the Board's parole decisions, including the awarding or denial of disciplinary credits.... Importantly, this Court has no subject-matter jurisdiction to consider defendant's challenge to the Parole Board's decisions in determining a prisoner's eligibility for parole or to deny him parole. The prosecution therefore contended that the "current appeal[s are] not the correct vehicle for such review" and suggested that these defendants can only seek redress "by filing a complaint for habeas corpus challenging the legality of [their] detention or an action for mandamus to compel the Board to comply with its statutory duties." We disagree. First, the prosecution is mistaken regarding the gist of these appeals. It is well recognized and undisputed that the Department of Corrections "possesses sole jurisdiction over questions of parole." Hopkins v. Parole Bd. , 237 Mich. App. 629, 637, 604 N.W.2d 686 (1999), citing MCL 791.204. However, defendants are not challenging a decision of the Parole Board. Rather, defendants are challenging the constitutionality of the statutory provision, MCL 769.25a(6), that allows "credit for time already served" but that precludes the receipt of "any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence." This Court is neither usurping nor trespassing on the Parole Board's authority and "exclusive discretion to grant or deny parole." Hopkins , 237 Mich. App. at 637, 604 N.W.2d 686. Under MCR 7.203(A)(1), this Court has jurisdiction over "[a] final judgment or final order of the circuit court ...." In a criminal case, a final order or judgment encompasses "a sentence imposed following the granting of a motion for resentencing[.]" MCR 7.202(6)(b)(iii ). We therefore reject the prosecution's initial challenge to this Court's subject-matter jurisdiction over these appeals. Second, the prosecution's desire to prevent this Court from weighing in on a constitutional question of law that directly affects defendants' sentences of incarceration and their eligibility for parole-unless they file a habeas corpus complaint or a mandamus action, for which appointment of counsel for the indigent is discretionary, not mandatory-smacks of gamesmanship. Regardless, our appellate courts have, in fact, weighed in on similar issues before without requiring civil actions to do so. See People v. Tyrpin , 268 Mich. App. 368, 710 N.W.2d 260 (2005) (determining whether a defendant was entitled to good-time credits at resentencing when credits were earned "in conjunction with an illegal sentence"), and People v. Cannon , 206 Mich. App. 653, 522 N.W.2d 716 (1994) (holding that according to MCL 51.282, a prisoner may not be deprived of good-time credits by setting a specific release date and preventing the prisoner from earning the credits). Moreover, the relevant entities that would be involved in a habeas corpus complaint or mandamus action are actively involved in this case. The Michigan Attorney General, who acts as the chief law enforcement officer for the State and has the authority to intervene in any matter "when in his own judgment the interests of the state require it," filed amicus briefs in both appeals, and his Deputy Solicitor General actively participated in oral argument. The Attorney General also took over briefing for the prosecution. Thus, the executive branch, which speaks for the Michigan Department of Corrections (MDOC) and the Parole Board, has stated its position. In any event, we are not reviewing a challenge to the conduct of either the MDOC or the Parole Board. We are simply analyzing the constitutionality of a law passed by the third branch of government, our Legislature, and our decision will directly impact Wiley and Rucker because MCL 769.25a(6) affects both their minimum and maximum sentences. Because everyone agrees that time is of the essence with respect to this constitutional issue, we deem it appropriate to address the question of law that was raised on appeal by Wiley and Rucker. And finally, it is worth noting that the tables have turned on the parties' opposing positions with respect to whether we should address the constitutionality of MCL 769.25a(6). Shortly after the prosecution filed its briefs challenging subject-matter jurisdiction as to the constitutional questions presented, it changed its stance when the United States Court of Appeals for the Sixth Circuit issued an opinion in Hill v. Snyder , 878 F.3d 193, 213 (C.A. 6, 2017), remanding a federal civil rights act case to the federal district court for a substantive analysis of what it deemed to be a "plausible" allegation that MCL 769.25a(6) violates the Ex Post Facto Clause. Following the Sixth Circuit's remand, the prosecution filed motions to expedite the appeals before us "on the merits," conceding that determining the matter immediately in these cases was appropriate because each Defendant asserts that he is being denied good time and disciplinary credits that would permit early parole consideration by the Michigan Department of Corrections or a reduction of the maximum sentence. Those claimed credits will continue to accrue during the pendency of this appeal and cannot possibly be applied, if defendant's claim is successful, until the appeal reaches finality. This Court granted the prosecution's motions to expedite these appeals. And it was after the Sixth Circuit tipped a hopeful hand to defendants when remanding Hill that they each filed motions seeking to voluntarily withdraw their appeals from this Court. The prosecution objected to defendants' motions, asking in its briefs that we either "deny the motion[s], or, alternatively, grant the motion[s] and dismiss the appeal[s] with prejudice, ruling that [defendants Wiley and Rucker have] waived any claim that [they are] entitled to disciplinary credits under the Ex Post Facto Clause." The prosecution accused defendants of forum shopping while claiming that it was not seeking to do the same thing itself, explaining: The State is not looking to obtain a tactical advantage, but rather seeks resolution of the underlying question of state law in the appropriate forum. The State courts are that proper forum and are best suited to interpret state law on how Michigan's credit system operates.... The proper resolution of [Wiley's and Rucker's motions to dismiss] is to deny the motion[s] and leave [Wiley and Rucker] to [their] arguments on appeal. In his reply brief, Wiley accused the prosecution of forum shopping because it objected to his motion to withdraw, but he also requested that if we denied his motion, we hold his appeal in abeyance pending a decision in Hill . This panel denied defendants' motions to withdraw their appeals, and the matter proceeded to oral arguments, where all interested parties had their say. IV. MCL 769.25a(6) AND THE EX POST FACTO CLAUSE Defendants contend that MCL 769.25a(6) violates the Ex Post Facto Clause of the United States and Michigan Constitutions, U.S. Const., art. I, § 10, and Const. 1963, art. 1, § 10, because it precludes them from having disciplinary credits applied to their term-of-years sentences, and thus, MCL 769.25a(6) is a retroactive provision that increases their potential sentences or punishments. We agree. To be preserved for appellate review, an issue must be raised before and addressed by the trial court. People v. Giovannini , 271 Mich. App. 409, 414, 722 N.W.2d 237 (2006). Wiley did not raise concerns regarding the Ex Post Facto Clause or any other constitutional claim at his resentencing. Consequently, this issue is not preserved with regard to Wiley. Nonetheless, we conclude that appellate review of his constitutional challenge is appropriate. See People v. Wilson , 230 Mich. App. 590, 593, 585 N.W.2d 24 (1998) ("Although [a] defendant should have challenged the constitutionality of the statute in the trial court to preserve the issue for appellate review, we may still consider this constitutional question absent a challenge below."); People v. Blunt , 189 Mich. App. 643, 646, 473 N.W.2d 792 (1991) ("[W]here a significant constitutional question is presented, as in this case, appellate review is appropriate."). Although Rucker did not ask the trial court to decide either of his challenges-his ex post facto challenge or his challenge under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), to the minimum sentence imposed-he did place his objections on the record, so they could arguably be considered preserved. This Court reviews de novo constitutional issues and questions of statutory interpretation. People v. Harris , 499 Mich 332, 342, 885 N.W.2d 832 (2016). However, we review unpreserved constitutional issues for plain error affecting the defendant's substantial rights. People v. Bowling , 299 Mich. App. 552, 557, 830 N.W.2d 800 (2013). Under the plain error rule, a "defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v. Jones , 468 Mich 345, 355, 662 N.W.2d 376 (2003). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id . at 356, 662 N.W.2d 376. "[R]eversal is only warranted if the defendant is actually innocent or the error seriously undermined the fairness, integrity, or public reputation of the trial." People v. Pipes , 475 Mich. 267, 274, 715 N.W.2d 290 (2006). As a starting point, we recognize that any challenge to the constitutionality of a statute is governed by certain precepts. Specifically: Statutes are presumed to be constitutional unless their unconstitutionality is clearly apparent. Statutes must be construed as proper under the constitution if possible. The party opposing the statute bears the burden of overcoming the presumption and proving the statute unconstitutional. [ People v. MacLeod , 254 Mich. App. 222, 226, 656 N.W.2d 844 (2002) (citations omitted).] The particular statutory provision being challenged as unconstitutional and violative of the Ex Post Facto Clause is MCL 769.25a(6), which states as follows: A defendant who is resentenced under subsection (4) shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence. MCL 769.25a(4) refers to the procedure for resentencing juvenile offenders convicted of first-degree murder both when the prosecution seeks to continue a life-in-prison-without-parole sentence (regardless of the sentence ultimately imposed), MCL 769.25a(4)(b), and when the prosecution does not seek to continue a life-in-prison-without-parole sentence, MCL 769.25a(4)(c). The latter Subdivision, which applies to defendants in the instant cases, directs that a trial court at resentencing "shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years." Id . As discussed by this Court in People v. Tucker , 312 Mich. App. 645, 651, 879 N.W.2d 906 (2015) : The United States and Michigan Constitutions prohibit ex post facto laws. People v. Callon , 256 Mich. App. 312, 316-317, 662 N.W.2d 501 (2003), citing U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10. This Court has declined to interpret the Ex Post Facto Clause of the Michigan Constitution as affording broader protection than its federal counterpart. Callon , 256 Mich. App. at 317 [662 N.W.2d 501]. All laws that violate ex post facto protections exhibit the same two elements: "(1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant." Id . at 318 [662 N.W.2d 501]. "The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date." Id . (quotation marks and citations omitted; alteration in original). This Court has identified four circumstances that implicate the Ex Post Facto Clauses: A statute that affects the prosecution or disposition of criminal cases involving crimes committed before the effective date of the statute violates the Ex Post Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence. [ Riley v. Parole Bd. , 216 Mich. App. 242, 244, 548 N.W.2d 686 (1996).] The purpose underlying ex post facto prohibitions is "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed," and to "restrict[ ] governmental power by restraining arbitrary and potentially vindictive legislation." Weaver v. Graham , 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), overruled in part on other grounds California Dep't of Corrections v. Morales , 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). As stated and explained by the United States Supreme Court in Weaver : [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.... [A] law need not impair a "vested right" to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements. The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. [ Weaver , 450 U.S. at 29-31, 101 S.Ct. 960 (citations omitted).] Therefore, "[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date." Id. at 31, 101 S.Ct. 960 (holding that as applied to a prisoner whose crime was committed before a statute's effective date, the statute reducing the amount of good-time credit violated the Ex Post Facto Clause). "The imposition of a punishment more severe than that assigned by law when the criminal act occurred is a violation of the Constitution's ex post facto prohibition." Hallmark v. Johnson , 118 F.3d 1073, 1077 (C.A. 5, 1997), citing Weaver , 450 U.S. at 30, 101 S.Ct. 960. It is undisputed that MCL 769.25aalters the punishment for both convicted and future juvenile offenders who committed or who will commit first-degree murder. Our inquiry therefore focuses on "[w]hether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor ...." Weaver , 450 U.S. at 33, 101 S.Ct. 960. In other words, for purposes of these appeals, does the challenged statutory provision serve to increase the punishment for a prisoner by imposing "new restrictions on eligibility for release" and therefore "make[ ] more onerous the punishment for crimes committed before its enactment"? Id . at 34, 36, 101 S.Ct. 960. We conclude that it does. As noted at the outset of this opinion, we are not the first court faced with assessing the constitutionality of MCL 769.25a(6). Just a few weeks ago, Judge Goldsmith issued his opinion analyzing this very issue in Hill , 308 F.Supp.3d 893, 2018 WL 1782710. In that case, brought by individuals similarly situated to Wiley and Rucker, Judge Goldsmith determined that MCL 769.25a(6) violates the United States Constitution's ban on ex post facto laws, and in fact, he certified a class of plaintiffs that includes Wiley and Rucker. Hill , 308 F.Supp.3d at 911, 915. Although this Court is not bound by the decisions of lower federal courts, we may find their "analyses and conclusions persuasive." Abela v. General Motors Corp. , 469 Mich. 603, 606-607, 677 N.W.2d 325 (2004). After a careful review of Judge Goldsmith's opinion and the applicable law, we find his analysis and conclusions to be, in the words of the Sixth Circuit, "thoughtful and well-reasoned." The salient portion of Judge Goldsmith's analysis, Hill , 308 F.Supp.3d at 900-911, which we find persuasive and respectfully adopt as our own, states as follows: The crux of Plaintiffs' claim ... hinges on an interpretation of the good time and disciplinary credit statutes, and whether these statutes previously afforded credit to individuals who were sentenced to life without parole. * * * ... [T]he Court concludes that state law regarding good time and disciplinary credits is unmistakably clear and solidly supports [the incarcerated] Plaintiffs' position. Before modification by the Michigan legislature in 2014, Michigan law regarding good time and disciplinary credits made no distinction based on whether the prisoner was serving a life sentence and allowed such a prisoner to earn credit if otherwise eligible. * * * Good time and disciplinary credits are applied to a prisoner's minimum and/or maximum sentence in order to determine his or her parole eligibility dates.7 Thus, if Michigan's statutory scheme permitted any Plaintiff to earn good time or disciplinary credits at the time the Plaintiff's crime was committed, the removal of such credits increases the Plaintiff's punishment and violates the Ex Post Facto Clause. * * * i. Statutory Interpretation Michigan's statutory scheme regarding good time and disciplinary credits has changed over the years. Prior to 1978, prisoners could apply good time credits to both their minimum and maximum terms; the law was amended in 1978 to provide that prisoners convicted for certain crimes, including first and second-degree murder, could only apply good time credits to their maximum terms. See Wayne Cty. Prosecuting Atty. v. Mich. Dep't of Corrections, No. 186106, 1997 WL 33345050, at *2 (Mich. Ct. App. June 17, 1997). In 1987, good time credits were eliminated altogether for offenses committed on or after April 1, 1987. Id. Disciplinary credits were created in 1982, and were deducted from both the minimum and maximum sentences of prisoners convicted of certain crimes, including first and second-degree murder. See Mich. Comp. Laws § 800.33(5). Disciplinary credits were less favorable to prisoners than good time credits, as the amount of good time credits available to a prisoner increased with each year of imprisonment, while disciplinary credits remained constant over the entirety of the term to which they applied. See Lowe v. Dep't of Corrections, 206 Mich. App. 128, 521 N.W.2d 336, 338 (1994). The law changed again in 1998 to provide that prisoners who committed certain crimes, including first and second-degree murder, on or after December 15, 1998, or any other crime on or after December 15, 2000, are unable to earn disciplinary credits. See Mich. Comp. Laws §§ 800.33(14) and 800.34(5)....[ ] The broad language used in both the good time and the disciplinary credit statutes does not draw any distinction based on whether the prisoner is serving a life sentence.[ ] The good time credit statute provides as follows: (2) Except as otherwise provided in this section, a prisoner who is serving a sentence for a crime committed before April 1, 1987, and who has not been found guilty of a major misconduct or had a violation of the laws of this state recorded against him or her shall receive a reduction from his or her sentence as follows: (a) During the first and second years of his or her sentence, 5 days for each month. (b) During the third and fourth years, 6 days for each month. [...] (g) From and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month. Mich. Comp. Laws § 800.33(2). The statute providing for disciplinary credit provides, (3) ... [A]ll prisoners serving a sentence for a crime that was committed on or after April 1, 1987 are eligible to earn disciplinary and special disciplinary credits as provided in subsection (5). Disciplinary credits shall be earned, forfeited, and restored as provided in this section. Accumulated disciplinary credits shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility date and discharge date. [...] (5) ... [A]ll prisoners serving a sentence on December 30, 1982, or incarcerated after December 30, 1982, for the conviction of a crime enumerated in section 33b(a) to (cc) of 1953 PA 232, MCL 791.233b, are eligible to earn a disciplinary credit of 5 days per month for each month served after December 30, 1982. Accumulated disciplinary credits shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility dates. Mich. Comp. Laws § 800.33(3), (5). Nothing in the text of the good time credit or disciplinary credit statutes excludes their application to prisoners serving life sentences. In fact, both statutes use language that is all encompassing. See Mich. Comp. Laws § 800.33(2) ("[A] prisoner who is serving a sentence for a crime ..."); Mich. Comp. Laws § 800.33(5) ("[A]ll prisoners serving a sentence ...").[ ] Further, the disciplinary credit statute states explicitly that first-degree murderers earn disciplinary credit; it provides that disciplinary credits are earned by those convicted of a crime enumerated in Mich. Comp. Laws § 791.233b -which includes first-degree murder. See § 791.233b(n) (listing Section 316 of the Michigan penal code as one of the enumerated crimes); § 750.316 (first degree murder).8 Despite this unambiguous language, Defendants argue there is some shade of gray. They point out that the good time statute indicates that a prisoner "shall receive a reduction" from his or her sentence, up to and including the "period fixed for the expiration of the sentence." Mich. Comp. Laws § 800.33(2). They argue that prisoners serving a life sentence cannot have that sentence "reduced," and that there is no time "fixed" for the "expiration" of such sentence; therefore, they say, this statute cannot be applied to prisoners serving a life term.... This argument is unconvincing. The language may mean that the good time credits are not actually applied to a life sentence so long as it remains a life sentence. But there is no reason to think that a prisoner serving a life sentence could not, nonetheless, earn good time credits. They would be applied if and when the sentence was converted, for some reason, to a fixed sentence. Once changed to a term of years, there is an "expiration" that is "fixed," and the sentence can then be "reduced." In fact, this view of the statutory language is precisely the view of the MDOC, whose practice has routinely been to calculate credits when a prisoner previously serving a life sentence is subsequently resentenced to a term of years.... As for the disciplinary credit statute, Defendants have no explanation for the explicit inclusion of first-degree murder as one of the crimes for which credits could be earned. They maintain that the language in other parts of the statute, which references deductions from a minimum and maximum sentence, means that the statute cannot apply to those serving a life sentence, as such prisoners have no minimum or maximum term.... But again, a plausible interpretation of the statute-and one that renders the statute as a whole internally consistent-is that the disciplinary credits are not applied to a life sentence, although prisoners serving such term still earn them. To agree with Defendants would be to ignore a portion of the statute, and courts have a "duty to give effect, if possible, to every clause and word of a statute." Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal quotations omitted); see also Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (describing this rule as "a cardinal principle of statutory construction"). The lack of any ambiguity in the statutory language is, perhaps, best evidenced by the action of the Michigan legislature itself, in adopting Mich. Comp. Laws § 769.25a(6). If the legislature had believed that Michigan law did not provide credits to those convicted of first-degree murder, there would have been no purpose for a provision that expressly stripped them of those credits. The inference is ineluctable that the legislature understood that these individuals would invoke these credits unless the legislature affirmatively repealed them. In doing so, the legislature eloquently testified to the state of Michigan law prior to the adoption of Section 769.25a(6). ii. Michigan Case Law The Michigan Supreme Court is in accord with the view that good time credit is earned even by individuals serving life sentences. In Moore v. Buchko, 379 Mich. 624, 154 N.W.2d 437 (1967), the Michigan Supreme Court considered whether a prisoner who had been unconstitutionally sentenced to life imprisonment in 1938 for first-degree murder should receive credit, including good time credit, when he was resentenced following vacation of his conviction, retrial, and conviction for second-degree murder in 1958. Although no opinion received a majority of votes, all the Justices agreed that the prisoner was entitled to good time credit for the time he had served. Justice Souris's opinion, which was joined by Chief Justice Dethmers, concluded that the prisoner was "entitled by statute to the credit he seeks," which was "the nearly 20 calendar years he served under his invalidated conviction ... and the regular and special good time credit he earned during that time." Id. at 438, 441 (Souris, J.). Justice Adams, writing for three other justices, wrote that a sentencing judge "shall give credit for time served under an illegal sentence," and that "[i]t follows, A [sic] fortiori, that such credit includes recognition of regular or special good time earned during an illegal incarceration." Id. at 445 n.3 (Adams, J.). Justice Brennan addressed the issue of whether the prisoner had earned good time credits in much greater detail, ultimately concluding that "the good time statute purports to give good time credits to every convict who behaves himself in prison." Id. at 447 (Brennan, J.). He described the rationale behind allowing all prisoners, even those serving a life term, to earn credits: Clearly, the purpose of this enactment is to encourage good behavior by prisoners and thus generally to improve conditions in the prisons and reduce custodial costs to the taxpayers. Presumably, the statute makes no distinction between lifers and other convicts by reason of the fact that the legislature wanted to encourage good behavior by lifers as well as by all other prisoners. Admittedly, the good time credit incentive is rather nebulous in the case of a convict imprisoned for life. But since hope and post conviction pleas spring eternal within the incarcerated human breast, it cannot be said the good time credit law is not at least some encouragement to them. At least, it appears that the legislature thought it would be so, and its policy determination is binding on this Court. Id. Thus, seven of the eight justices joined an opinion that held that the prisoner was entitled to good time credit.9 Defendants attempt to distinguish Moore by arguing that Moore was resentenced to a term of years under law that existed at the time of his crime in 1938.... Plaintiffs' new sentencing options, they contend, did not exist until 2014.... However, Defendants have not explained why this should make a difference. Nothing in Moore suggests that the availability of a term-of-years sentence while Moore served his first-imposed sentence had some bearing on the question of his entitlement to credit. Additionally, Defendants' position that Plaintiffs should not receive credit because Michigan law did not provide a constitutional sentence for them until 2014 would punish Plaintiffs for the shortcomings of Michigan's unconstitutional sentencing of youth offenders. Defendants argue that the Michigan Supreme Court recognized that the good time statute does not apply to someone serving a life sentence in Meyers v. Jackson, 245 Mich. 692, 224 N.W. 356 (1929).[ ] In Meyers, the petitioner was convicted of murder and sentenced to life in prison; the governor later commuted his sentence "so that the same will expire 15 years from the date of sentence." Id. at 356. The court denied the petitioner's request for good time credit, stating that "if he accepts the benefit of the commutation granted[, he] must accept it in accordance with the terms imposed by the executive authority granting it." Id. at 356-357. The court also noted that "the question of good time applies only to those where the date of expiration of sentence is fixed. Petitioner was sentenced to imprisonment for life. The period of his imprisonment was not fixed." Id. at 356. This last statement is dictum, as it was not necessary to the Meyers court's holding that a prisoner who accepts a commutation must accept it according to its terms. See Moore, 154 N.W.2d at 447 (Brennan, J.) ("[T]he language in the Meyers Case to the effect that good time allowances do not apply to life sentences was not essential to the decision there."); see also Petition of Cammarata, 341 Mich. 528, 67 N.W.2d 677, 682 (Mich. 1954) ("In Meyers... we held that a prisoner who accepts the benefit of a commutation must accept it in accordance with the terms imposed by the executive authority granting it."). Thus, the only decision by the Michigan Supreme Court containing a holding applicable to our case accords with the view that credits are earned by those convicted of first-degree murder and applied to their sentences once those sentences become term-of-years sentences....10 * * * For all of the above reasons, this Court interprets Mich. Comp. Laws § 800.33 to provide good time and disciplinary credits to prisoners who were serving a term of life imprisonment. The elimination of those credits by Mich. Comp. Laws § 769.25a(6), therefore, violates the Ex Post Facto Clause of the Constitution ... Defendants must apply good time and disciplinary credits in calculating parole eligibility dates for prisoners resentenced under Mich. Comp. Laws § 769.25a. 7 As the Sixth Circuit noted ... "[C]redits deducted from a term-of-years sentence do not automatically result in earlier release; they merely hasten the date on which prisoners fall within the jurisdiction of the Michigan Parole Board. Even after an inmate falls within its jurisdiction, the Board retains discretion to grant or deny parole." [Citation omitted.] 8 Whatever exceptions to credit that exist in the statutes have nothing to do with whether the defendant committed first-degree murder. For example, the good time credit statute excepts those who have committed later crimes or were guilty of prison misconduct. See Mich. Comp. Laws § 800.33(2). 9 Justice Black concurred only in the result and did not join any opinion. 10 Defendants cite People v. Tyrpin, 268 Mich.App. 368, 710 N.W.2d 260 (2005), for support, but that case is distinguishable.[ ] There, the defendant was originally given a determinate one-year jail sentence. After serving some time, the sentence was reversed, based on the prosecutor's appeal that an indeterminate sentence was required. Defendant argued on resentencing that he should receive disciplinary credit that he earned on the initial improper sentence. The court of appeals affirmed the trial court's refusal to award any disciplinary credit, reasoning that if the defendant had been properly sentenced to an indeterminate sentence originally, he would not have been entitled to such credit based on an express exclusion in the statutory language. (This was because, as discussed supra, individuals sentenced for assaultive crimes committed on or after December 15, 1998 were not eligible for disciplinary credits.) Our case is entirely different. Tyrpin sought credit that he would not have received had he been sentenced properly initially. Here, Plaintiffs do not seek any credit they would not have received had they been sentenced properly initially. Tyrpin thus is no help to Defendants. [ ]. In light of our determination that MCL 769.25a(6) violates the Ex Post Facto Clause, we need not address Wiley's other constitutional arguments claiming that the statute repeals an initiative adopted by the voters as "Proposal B" concerning parole eligibility or his claim that the statute violates the Title-Object Clause of the Michigan Constitution, Const 1963, art 4, § 24. V. USE OF JUDICIAL FACT-FINDING Finally, Rucker contends that his resentencing under MCL 769.25a(4)(c) violated the Sixth Amendment because the trial court used judicially found facts in imposing a minimum sentence of 30 years' imprisonment (rather than 25 years' imprisonment). Citing Alleyne , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and People v. Lockridge , 498 Mich 358, 870 N.W.2d 502 (2015), Rucker argues that the only sentence that could be imposed was 25 to 60 years' imprisonment. According to Rucker , the increase in the minimum sentence from 25 to 30 years was improper because such an increase required the use of facts found either by a jury or to which he admitted. We disagree. "This Court reviews de novo the proper interpretation of statutes." People v. Allen , 295 Mich. App. 277, 281, 813 N.W.2d 806 (2012). Constitutional issues are also reviewed de novo. People v. Pennington , 240 Mich. App. 188, 191, 610 N.W.2d 608 (2000). A trial court's factual findings are reviewed for clear error. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). Any questions of law are to be reviewed de novo, and the trial court's decision about the sentence imposed is reviewed for an abuse of discretion. People v. Malinowski , 301 Mich. App. 182, 185, 835 N.W.2d 468 (2013). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes. A trial court necessarily abuses its discretion when it makes an error of law." People v. Franklin , 500 Mich 92, 100, 894 N.W.2d 561 (2017) (quotation marks and citations omitted). "A trial court's factual finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Id . (quotation marks and citation omitted). In accordance with MCL 769.25a(4)(c), if the prosecution opts not to seek resentencing to life in prison without parole, the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years. Each victim shall be afforded the right under section 15 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.765, to appear before the court and make an oral impact statement at any resentencing of the defendant under this subdivision. At Rucker's resentencing, the victim's mother, Cynthia Cole, addressed the court and opposed Rucker's receipt of less than a life sentence. The trial court also had available for its review sentencing memoranda prepared by the prosecution and defense counsel, detailing the original offense, Rucker's prior juvenile criminal history and misconduct while in prison, in addition to any accomplishments attained, such as the procurement of his GED. The prosecution requested that Rucker be resentenced to a term of 32 to 60 years' imprisonment. The trial court elected to impose a sentence of 30 to 60 years for the first-degree murder conviction, seeking to balance punishment for the crime with the severity of the crime, while respecting the concerns expressed by the victim's family. Contrary to Rucker's argument, the trial court's imposition of a 30-year minimum sentence did not constitute a Sixth Amendment violation proscribed by Alleyne . This Court squarely addressed this issue in this very context in People v. Hyatt , 316 Mich. App. 368, 394-395, 891 N.W.2d 549 (2016), stating: For all that was said in Apprendi [v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] and its progeny, we note that the Supreme Court's holding in those cases must not be read as a prohibition against all judicial factfinding at sentencing. Indeed, the rules from Apprendi and its progeny do not stand for the proposition that a sentencing scheme in which judges are permitted "genuinely to exercise broad discretion ... within a statutory range" is unconstitutional; rather, as articulated in Cunningham , "everyone agrees" that such a scheme "encounters no Sixth Amendment shoal." Cunningham [v. California ], 549 U.S. [270,] 294[, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) ] (citation and quotation marks omitted; alteration in original; emphasis added). See also Alleyne , 570 U.S. at [116], 133 S.Ct. at 2163 ("Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment."). Therefore, a judge acting within the range of punishment authorized by statute may exercise his or her discretion-and find facts and consider factors relating to the offense and the offender-without violating the Sixth Amendment. Id . at [116], 136 [133] S.Ct. at 2163, citing Apprendi , 530 U.S. at 481, 120 S.Ct. 2348. As explained in Alleyne , 570 U.S. at [117], 133 S.Ct. at 2163 : [W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. [1 J. Bishop, Criminal Procedure 50 (2d ed., 1872), § 85, at 54.] [E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things. Apprendi , [530 US] at 519, 120 S.Ct. 2348 ( THOMAS, J. , concurring). Rucker's reliance on Lockridge is similarly unavailing. In Lockridge , 498 Mich. at 364, 870 N.W.2d 502, our Supreme Court was clear that the use of judge-found facts in conjunction with mandatory sentencing guidelines was the source of the constitutional infirmity. Following the release of Lockridge , this Court in People v. Biddles , 316 Mich. App. 148, 158, 896 N.W.2d 461 (2016) further explained: The constitutional evil addressed by the Lockridge Court was not judicial factfinding in and of itself; it was judicial fact-finding in conjunction with required application of those found facts for purposes of increasing a mandatory minimum sentence range. Lockridge remedied this constitutional violation by making the guidelines advisory, not by eliminating judicial fact-finding. Rucker was resentenced within the minimum range statutorily mandated by MCL 769.25a(4)(c). The trial court was afforded discretion in determining and imposing a minimum sentence for Rucker that comported with the required statutory range. There is no Sixth Amendment violation as contemplated by Alleyne , Lockridge , or their progeny. VI. CONCLUSION This Court has subject-matter jurisdiction of defendants' appeals. MCL 769.25a(6) unconstitutionally deprives defendants of having earned disciplinary credits applied to their term-of-years sentences in violation of the Ex Post Facto Clause of the United States and Michigan Constitutions, U.S. Const., art. I, § 10; Const 1963, art. 1, § 10. MCL 769.25a(6) may not be used to prevent Wiley or Rucker from receiving disciplinary credits on their minimum and maximum sentences. We need not address Wiley's other challenges to the constitutionality of the statute. And Rucker's argument regarding the use of judicial fact-finding when imposing a minimum sentence of 30 years' imprisonment lacks merit. We affirm defendants' sentences, but we declare MCL 769.25a(6) to be unconstitutional. Ronayne Krause, J., concurred with Beckering, J. I agree with the parties (both plaintiff and defendants at various times) that the constitutional ex post facto issue is not properly before us. Further, I discern-from the issues and arguments raised on appeal-no challenge to any aspect of the sentences imposed by the trial court (apart from an Alleyne challenge); rather, the sole issue raised is whether a nonparty (the Parole Board or the Michigan Department of Corrections (MDOC) ) may-in the future-constitutionally apply MCL 769.25a(6) to the unchallenged sentences imposed by the trial court. I dissent from the majority's determination to decide the ex post facto issue in the current context. I concur with the majority's disposition of the Alleyne challenge. Accordingly, I would affirm. I. THE ISSUES ON APPEAL In Docket No. 336898, defendant Christopher Wiley ostensibly appeals by right the trial court's order resentencing him to 25 to 60 years' imprisonment for his 1995 conviction of first-degree murder, MCL 750.316, under MCL 769.25a. Wiley's brief on appeal contains neither the required "statement of the basis of jurisdiction," MCR 7.212(C)(4), nor the required "statement of questions involved," MCR 7.212(C)(5). Wiley's arguments on appeal are limited, however, to raising constitutional challenges to MCL 769.25a. Wiley did not raise any constitutional claims at his resentencing. To be preserved for appellate review, an issue must be raised before and addressed by the trial court. Consequently, the constitutional issues are not preserved with regard to Wiley. People v. Giovannini , 271 Mich. App. 409, 414, 722 N.W.2d 237 (2006). We review unpreserved constitutional issues for "plain error affecting defendant's substantial rights." People v. Bowling , 299 Mich. App. 552, 830 N.W.2d 800 (2013). Under the plain error rule, a "defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v. Jones , 468 Mich. 345, 355, 662 N.W.2d 376 (2003). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id . at 356, 662 N.W.2d 376. "[R]eversal is only warranted if the defendant is actually innocent or the error seriously undermined the fairness, integrity, or public reputation of the trial." People v. Pipes , 475 Mich. 267, 274, 715 N.W.2d 290 (2006). Wiley concedes that the proper analysis is that of plain error, but does not articulate what errors the trial court purportedly made. In Docket No. 338870, defendant William Lawrence Rucker ostensibly appeals by right the trial court's order resentencing him to 30 to 60 years' imprisonment for his 1993 conviction of first-degree murder, MCL 750.316, under MCL 769.25a. Rucker's brief on appeal asserts that this Court "has jurisdiction of this appeal under MCR 7.203(A)(1) and MCR 7.202(6)(b)(iii). Rucker raises two issues on appeal: (1) an Alleyne challenge and (2) a constitutional ex post facto challenge. Rucker arguably preserved those issues in the trial court. With regard to the constitutional challenge, however, Rucker-like Wiley-does not articulate on appeal any errors that the trial court purportedly made. II. THE PARTIES' MORPHING LEGAL POSITIONS In responding to Wiley's appeal, plaintiff argued, in part, as follows: The People first note that this Court has no subject-matter jurisdiction to consider defendant's claim. Defendant's challenge has no relevancy to the validity of his sentence. Defendant was sentenced to a term of years within the range of sentences proscribed [sic] by statute. Defendant's challenge is not that the courts or the prosecution are denying him constitutional rights that would affect the validity of his sentence. The sentencing court does not have authority to award disciplinary or special disciplinary credits. Defendant's challenge is to the legislative branch's denial of credit reductions and the executive branch's execution of that legislative directive in determining when defendant is eligible for parole. Once a defendant is committed to the custody of the Michigan Department of Corrections, authority over a defendant passes out of the hands of the judicial branch. The Michigan Department of Corrections, an administrative agency within the executive branch of government, possesses exclusive jurisdiction over questions of parole. Parole can be granted solely by the Michigan Parole Board, a division of the MDOC. Once a defendant has been lawfully committed to the custody of the MDOC, the Michigan Legislature has determined that the only body that can release defendant from prison is the Parole Board, not the sentencing court or any subsequent reviewing courts. Whether or when a defendant should be released on parole is devoted exclusively to the discretion of the Parole Board. Because parole is a discretionary function, no due process right is implicated. "That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained ... [ ] a hope which is not protected by due process." The Michigan parole statute ... does not create a right to be paroled. Because the Michigan Parole Board has the discretion whether to grant parole, a defendant does not have a protected liberty interest in being paroled prior to the expiration of his or her sentence. The Sixth Circuit has held that Michigan Complied [sic] Laws § 791.233 does not create a protected liberty interest in parole, because the statute does not place any substantive limitations on the discretion of the parole board through the use of particularized standards that mandate a particular result. Since defendant's constitutional claim has no effect on the validity of his sentence, but only to how the Department of Corrections is calculating parole eligibility, it seems that defendant's challenge would be better directed in a suit against the Department of Corrections and not in an appeal of his validly imposed sentence. Judicial review of a Parole Board decision is governed by MCL 791.234(11). While the statute provides an avenue for the prosecution to appeal the granting of a prisoner's release on parole, it does not extend the same for a defendant seeking to challenge the Board's parole decisions, including the awarding or denial of disciplinary credits. Prisoners "have no legal right to seek judicial review of the denial of parole by the Parole Board." Importantly, this Court has no subject-matter jurisdiction to consider defendant's challenge to the Parole Board's decisions in determining a prisoner's eligibility for parole or to deny him parole. The judiciary has limited review of the Parole Board's process in determining parole. But, defendant's current appeal is not the correct vehicle for such review. Challenges to the procedures used by the Parole Board in determining whether to grant parole, how the Board exercised those procedures, or the decisions reached by the Board based on those procedures are properly subject to a totally different appellate procedure. The Parole Board is an administrative body. By statute, the Parole Board has been entrusted to develop its own guidelines for exercising its discretion in considering prisoners for parole and deciding whether to grant parole. In Hopkins v. Parole Board , this Court determined that there were three avenues for a prisoner to challenge the Parole Board's decisions: (1) review pursuant to a procedure specified in a statute applicable to the particular agency, here the applicable statute being MCL 791.234 ; (2) the method of review for contested cases under the Administrative Procedures Act (APA), MCL 24.201 [et. seq.;] or (3) an appeal pursuant to the Revised Judicature Act (RJA), MCL 600.631. The Court then determined that review under either the APA and RJA was unavailable to prisoners because parole hearings are not contested cases and because the prisoner has no private right to parole. The final avenue for review, MCL 791.234, as previously mention[ed], also does not provide for review. Although none of the avenues for review listed in Hopkins are available, the legality of a prisoner's detention "is not insulated from judicial oversight." The prisoner is still able to challenge the Parole Board's action by filing a complaint for habeas corpus challenging the legality of his detention or an action for mandamus to compel the Board to comply with its statutory duties. It is only by these avenues, and not by an appeal of the underlying sentences, that defendant may challenge the guidelines or decisions of the Parole Board concerning parole. This Court has no subject-matter jurisdiction to review the guidelines of the Parole Board, the process the Parole Board conducted in determining defendant's eligibility for parole, or the Board's final decision regarding parole. [Citations omitted.] Plaintiff argued similarly-and to a large extent verbatim-in response to Rucker's appeal. The Attorney General subsequently filed amicus curiae briefs in support of plaintiff in both appeals, addressing only the constitutional ex post facto issue. After the filing of plaintiff's briefs on appeal, both defendants moved to voluntarily dismiss their appeals under MCR 7.218. Plaintiff, then represented principally by the Attorney General, opposed the motions, arguing that the ex post facto issue presented questions of state law that should be decided by a state court. Plaintiff claimed that defendants had moved to dismiss their appeals because of the related putative class action challenge pending in the United States District Court captioned Hill v. Snyder , Case No. 10-cv-14568. This Court denied defendants' motions to dismiss in separate orders. At oral argument, counsel for defendants agreed with the position stated in plaintiff's briefs-that the proper parties were not before the Court, that the matter was not ripe, and that the sentencing judge had no authority to compute good-time or disciplinary credits or to order the Parole Board or the MDOC to do so. III. SUBJECT-MATTER JURISDICTION Because Rucker raises an arguably preserved Alleyne challenge, and because these appeals were consolidated by order of this Court, I conclude that this Court has subject-matter jurisdiction over these appeals generally. I therefore disagree with plaintiff's initial characterization that this Court lacks subject-matter jurisdiction. However, for the reasons that follow, I also conclude-as plaintiff initially asserted and as defendants now assert-that these appeals of defendants' sentences are not the proper vehicle by which to decide the constitutional challenge asserted. Rather, because the constitutional issues are not properly before us, I conclude that we should address only Rucker's Alleyne challenge. IV. RIPENESS: AGGRIEVED PARTY Irrespective of whether, as plaintiff now argues, the ex post facto issue presents questions of state law, such that a state court should weigh in on those questions apart from the federal court's April 9, 2018 decision in Hill , the question remains whether this Court, in these cases, is the proper forum in which to decide the issue. I conclude that it is not. In appealing their sentences, defendants did not challenge the sentences themselves, but essentially sought from this Court a declaration that MCL 769.25a(6) is unconstitutional and that it must not be applied so as to affect their future parole eligibility. Plaintiff argued that the request was improper in this context. Now, in an unusual swapping of legal positions, defendants essentially concede that their request was improper, and plaintiff now advocates that we issue the diametrically opposed declaration. I conclude that the claims presented (if indeed they can be described as claims in this criminal-sentencing context) are not ripe, that defendants are not aggrieved by any decision of the trial court (and therefore are not "aggrieved parties"), and that the constitutional issues presented are otherwise not appropriately decided by this Court in this context, for several reasons. First, it bears repeating that defendants did not seek, by their constitutional challenges, any relief from their convictions or from their sentences as imposed by the trial court. Yet the rules of this Court limit its jurisdiction over appeals by right to those filed by an "aggrieved party" from an order of the trial court. See MCR 7.203(A). To be aggrieved, a party "must have suffered a concrete and particularized injury." Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 291, 715 N.W.2d 846 (2006). Further, "a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case ." Id . at 292, 715 N.W.2d 846 (emphasis added). None of the parties has identified any injury arising from any action of the trial court. I therefore conclude that, apart from Rucker's Alleyne challenge, defendants are not "aggrieved parties" for the purpose of challenging MCL 769.25a(6) in this context. Moreover, and regardless of whether defendants presented their constitutional challenges in the trial court, it is far from clear to me that the trial court would have possessed the authority, in the context of the criminal proceedings then before it, to essentially enter a declaratory judgment that would have bound the Parole Board or the MDOC; our Supreme Court has stated that, depending on the type of underlying claim, a complaint for declaratory relief against a state agency must be filed in either the Court of Claims or the circuit court. See Parkwood Ltd. Dividend Housing Ass'n v. State Housing Dev. Auth. , 468 Mich. 763, 773-774, 664 N.W.2d 185 (2003). These cases are criminal prosecutions, however, not actions for declaratory relief. No such complaint was filed, nor could one realistically have been filed, in the course of these criminal proceedings. Yet defendants essentially sought (and plaintiff now seeks) to transform these appeals into declaratory judgment proceedings originating in this Court. We lack original jurisdiction over such actions. Id . Further, we are an error-correcting court. See W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 181, 909 N.W.2d 38 (2017). But the parties have not identified any errors by the trial court that they seek to have us correct, and the declaratory relief that defendants essentially sought (and that plaintiff now seeks) was never even considered by a court with original jurisdiction over such matters. In any event, even if we possessed the ability to order declaratory relief in this context, our ripeness doctrine precludes "the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon ' "contingent future events that may not occur as anticipated, or indeed may not occur at all." ' See Mich. Chiropractic Council v. Comm'r of OFIS , 475 Mich. 363, 371 n. 14, 716 N.W.2d 561 (2006), overruled on other grounds by Lansing Sch. Ed.Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 792 N.W.2d 686 (2010), quoting Thomas v. Union Carbide Agricultural Prod. Co. , 473 U.S. 568, 580-581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (citation omitted); see also Van Buren Charter Twp. v. Visteon Corp. , 319 Mich. App. 538, 554, 904 N.W.2d 192 (2017). In this case, even assuming that defendants accrued disciplinary credits during their terms of imprisonment before resentencing, MCL 800.33(3) provides that such credits "shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility date and discharge date." See also MCL 800.33(5). MCL 800.33 also empowers the warden of a prison, as well as the Parole Board in the case of parole violations, to both reduce and restore such credits on the basis of prisoner conduct. See MCL 800.33(8), (10) and (13). In other words, the language of MCL 800.33 pointedly does not indicate that a trial court, when resentencing a defendant, may consider the disciplinary credits then earned by the defendant because the amount of credits earned is not then known or even a sum certain-a defendant may gain and lose credits on the basis of his or her conduct in prison. Rather, these credits are to be considered by the Parole Board or the MDOC to determine parole eligibility at the appropriate future time. Although defendants appeal from their resentencings, they had suffered no injury to their parole eligibility at the time of the resentencings. Rather, their claims appear to rest on a contingent future event, i.e., a denial of disciplinary credits, assuming they were earned and have not been forfeited by misconduct, at the time that their parole eligibility is determined (again, assuming that MCL 769.25a(6) exists in its current form at that time). Such a claim is not ripe. See Mich. Chiropractic , 475 Mich. at 371 n. 14, 716 N.W.2d 561 ; see also In re Parole of Johnson , 235 Mich. App. 21, 25, 596 N.W.2d 202 (1999) ("[A] prisoner is not truly 'eligible' for parole until each and every one of the statutory 'conditions' [for granting parole] has been met[.]"). My conclusion is strengthened by the fact that a prisoner may not take an appeal, either by claim of right or by leave granted, from the denial of his or her parole. See MCL 791.234(11) ; Morales v. Parole Bd. , 260 Mich.App. 29, 42, 676 N.W.2d 221 (2003). A prisoner has no constitutional right to parole. Morales , 260 Mich.App. at 39, 676 N.W.2d 221. A prisoner may, however, use the "legal tools of habeas corpus and mandamus" actions in order to "have the judiciary review the legality of an inmate's imprisonment[.]" Id . at 42, 676 N.W.2d 221. I see no reason why this same standard should not apply to a prisoner aggrieved by a potential future denial of parole, should he or she overcome the ripeness problem. I note that cases relied on by the federal court in Hill v. Snyder , 308 F.Supp.3d at 908-909, for the proposition that "good time credit is earned even by individuals serving life sentences," arose in such contexts. See Moore v. Parole Bd. , 379 Mich. 624, 154 N.W.2d 437 (1967) (mandamus); Meyers v. Jackson , 245 Mich. 692, 224 N.W. 356 (1929) (habeas corpus); In re Cammarata , 341 Mich 528, 67 N.W.2d 677 (1954) (habeas corpus). The Attorney General, as amicus curiae, nonetheless contended at oral argument in this case that we should decide the ex post facto issue in the context of these criminal sentencing appeals because this Court and our Supreme Court have previously considered issues involving good-time credits or disciplinary credits on direct review. The majority agrees. But I find these cases distinguishable. For example, in People v. Tyrpin , 268 Mich. App. 368, 710 N.W.2d 260 (2005), the defendant had originally been sentenced to a jail term and was later resentenced, after the prosecution appealed, to a prison term. Id . at 370, 710 N.W.2d 260. The defendant argued that the jail good-time credit that he had earned under MCL 51.282 should have been applied on resentencing by increasing the number of days for which he would have received credit for time served. Id . at 371, 710 N.W.2d 260. The defendant made no argument concerning parole eligibility, but was aggrieved by what he believed to be the trial court's failure to add 61 days to his sentencing credit as reflected in the judgment of sentence. Id . The injury alleged by the defendant (although his claim was ultimately unsuccessful) was neither contingent nor hypothetical; the defendant alleged that the trial court had erred by calculating his credit for time served. Id . Our analysis of good-time and disciplinary-time statutes was conducted in that context. By contrast, there are no alleged errors by the trial court in the instant appeals. In People v. Cannon , 206 Mich. App. 653, 522 N.W.2d 716 (1994), the defendant argued that the imposition of a fixed jail sentence with a specified release date violated his right to receive good-time jail credits under MCL 51.282. Id . at 654, 522 N.W.2d 716. Again, the defendant was aggrieved by the trial court's sentencing order, which had already injured him by fixing his release date to a specific date regardless of sentencing credits. Id . at 656-657, 522 N.W.2d 716 (holding that "a court may not deprive a prisoner of good-time credit to which the prisoner may be entitled under statute before that prisoner has even begun serving the term of imprisonment.") And in People v. Johnson , 421 Mich. 494, 364 N.W.2d 654 (1984), our Supreme Court considered the effects of Proposal B on life sentences. Id . at 497-498, 364 N.W.2d 654. Although the Court did declare Proposal B to be binding on the Parole Board with regard to indeterminate sentences, the context of the defendant's appeal was that the trial court had not correctly informed him of the consequences of his guilty plea. Id . at 496, 364 N.W.2d 654. Once again, the defendant was aggrieved by an action of the trial court. V. CONCLUSION For all of these reasons, I would not reach the constitutional issues presented. They are not properly raised in the context of these appeals, inasmuch as they do not present any claim of error by the trial court in its resentencing decisions. Plaintiff is already litigating the ex post facto issue with a class of plaintiffs (which includes Wiley and Rucker) in federal court, and plaintiff or defendants remain free to additionally raise the issue in a proper state court proceeding in which the proper parties are present. By contrast, Wiley and Rucker are the only persons who will be directly affected by this Court's disposition of the issue in the context of these criminal sentencing appeals; in essence, we would be declaring the rights of two individuals with regard to this statute, while in the meantime a class action (of which Rucker and Wiley are also a part) is already proceeding and has already resulted in declaratory relief. Because I would not reach the constitutional issues and because I agree with the majority's treatment of the Alleyne issue, I would affirm, but, unlike the majority, I would not issue a declaration of unconstitutionality. Both Wiley and Rucker were also convicted of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Their sentences for those convictions were not altered on resentencing, have been served, and are not relevant to the issues presented in these appeals. See People v. Wiley , unpublished order of the Court of Appeals, entered January 17, 2018 (Docket Nos. 336898 and 338870). Miller was decided on June 25, 2012. Fieger v. Cox , 274 Mich. App. 449, 465, 734 N.W.2d 602 (2007). MCL 14.28 See People v. Wiley , unpublished order of the Court of Appeals, entered November 1, 2017 (Docket No. 336898), and People v. Rucker , unpublished order of the Court of Appeals, entered November 1, 2017 (Docket No. 338870). See People v. Wiley , unpublished order of the Court of Appeals, entered March 23, 2018 (Docket Nos. 336898 and 338870). Judge Goldsmith's April 9, 2018 opinion, which will be discussed further, was the outcome of that remand. People v. Wiley , unpublished order of the Court of Appeals, entered January 17, 2018 (Docket Nos. 336898 and 338870). People v. Rucker , unpublished order of the Court of Appeals, entered February 16, 2018 (Docket No. 338870); People v. Wiley , unpublished order of the Court of Appeals, entered March 5, 2018 (Docket No. 336898). Wiley's appellate counsel in this Court, who represented other parties in the class action, was appointed to serve as class counsel. Hill , 308 F.Supp.3d at 915. Hill v. Snyder , unpublished order of the United States Court of Appeals for the Sixth Circuit, entered April 18, 2018 (Case No. 18-1418). The Sixth Circuit offered this sentiment when denying the state parties' recent motion for a 14-day stay so that they could appeal Judge Goldsmith's permanent injunction, which included enjoining the state parties from enforcing or applying MCL 769.25a(6) and ordering them to calculate the good-time credits and disciplinary credits for each member of the class who has been resentenced. The party designations would be switched, however, because the plaintiffs in Hill are similarly situated to defendants in the instant case. MCL 769.25a(6) only affects individuals who (1) were convicted of first-degree murder for offenses committed before December 15, 1998, when the individuals were under the age of 18, and (2) receive a post-Miller sentence and will be eligible for parole. Although neither Wiley nor Rucker is entitled to good-time credits based on the dates they committed their offenses, the statutory language used in both the good-time and the disciplinary-credit statutes is relevant to the constitutional question before this Court. See also MCL 800.33(3) ("[A]ll prisoners serving a sentence...."). The Michigan Attorney General cited Meyers and made the same argument in its amicus brief filed in the present case. The Michigan Attorney General cited Tyrpin and made the same argument in the amicus brief he filed in the present case. Some alterations in Hill . Reporter's Note: The Court of Appeals' decision in Hyatt was reversed in part on other grounds after the release of the opinion in this case. People v. Hyatt , 502 Mich. 89 (2018). Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The constitutional issues raised by Wiley on appeal include (1) whether MCL 769.25a(6) violates the Ex Post Facto Clause of United States and Michigan Constitutions, U.S. Const. art. I, § 10; Const. 1963, art. 1, § 10 ; (2) whether MCL 769.25a(6) improperly repeals an initiative adopted by voters as "Proposal B," in violation of Const. 1963, art. 2, § 9 ; and (3) whether MCL 769.25a(6) violates the Title-Object Clause of the Michigan Constitution, Const. 1963, art. 4, § 24. In light of its disposition of the first of these issues, the majority does not reach the remaining two issues. I would not reach any of them in the context of these appeals. MCR 7.203(A)(1) provides for an appeal of right of a "final judgment or final order of the circuit court ... as defined in MCR 7.202(6)...." MCR 7.202(6)(b)(iii) defines a "final judgment or final order" in a criminal case to include "a sentence imposed following the granting of a motion for resentencing." See People v. Rucker , unpublished order of the Michigan Court of Appeals, entered February 16, 2018 (Docket No. 338870); People v. Wiley , unpublished order of the Michigan Court of Appeals, entered March 5, 2018 (Docket No. 336898). As noted, the parties' positions in this case have morphed and shifted with the developments in Hill . For example, plaintiff's briefs on appeal (in part challenging this Court's subject matter jurisdiction) were filed before the December 20, 2017 decision of the United States Court of Appeals for the Sixth Circuit, see Hill v. Snyder , 878 F.3d 193 (C.A. 6, 2017), that reversed the district court's earlier dismissal of the ex post facto challenge in that case, see Hill v. Snyder , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 7, 2017 (Case No. 10-14568). And defendants filed their motions to dismiss their appeals-and plaintiff opposed those motions-after the December 2017 decision of the Sixth Circuit. See People v. Wiley , People v. Rucker , unpublished order of the Michigan Court of Appeals, issued January 17, 2018 (Docket Nos. 336898/338870). Hill v. Snyder , 308 F.Supp.3d 893 (E.D. Mich., 2018). It is unknown whether Wiley or Rucker will ever become eligible for parole, when either of them might become eligible, or whether MCL 769.25a(6) will continue to exist in its current form at any such time. A circuit court may order the reduction or forfeiture of credits only in limited circumstances related to a prisoner's malicious or vexatious court filings. See MCL 800.33(15) and MCL 600.5513. Hill itself arose in the context of a claim under 42 U.S.C. 1983. I note also that our Supreme Court is much freer than we, as an intermediate appellate court, to consider issues beyond the claimed errors of the lower courts and to opine on broader issues of Michigan law. See People v. Woolfolk , 304 Mich.App. 450, 475-476, 848 N.W.2d 169 (2014). Although I do not express any opinion on the constitutional issues, I note that the parties have not briefed (nor does it appear to me that either the federal court in Hill or the majority in the instant appeals has addressed) whether a finding of unconstitutionality would relate solely to MCL 769.25a(6), or whether, alternatively, and given that the Legislature's enactment of that statutory provision was made in the context of the sentencing scheme set forth in MCL 769.25a(4), the entire sentencing scheme would be rendered unconstitutional. This gives me additional pause about deciding the constitutional issues in the current context.

On order of the Court, the motion for immediate consideration is GRANTED. The petition for interim suspension is considered, and it is GRANTED. The Honorable Catherine B. Steenland, Judge of the 39th District Court, is suspended with pay until further order of this Court. In order to expedite the resolution of this matter, should the Judicial Tenure Commission issue a 28-day letter and a formal complaint, we ORDER the Commission and the Master to coordinate their schedules to ensure that the JTC decision and recommendation of action, if any, will be submitted to this Court within nine months of the date of this order. See MCR 9.207(F) and MCR 9.219(A). We also ORDER the JTC to redact all Social Security numbers from its Attachments, which at this time have been filed under seal. In addition, so as to preserve the confidentiality required by MCR 9.219(A)(2) and MCR 9.221(A), with the exception of this order, the Supreme Court file is suppressed and shall remain confidential until further order of this Court.

On order of the Chief Justice, the motion to strike the reply of the Judicial Tenure Commission is DENIED.

On order of the Court, the application for leave to appeal the February 16, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted.

On order of the Chief Justice, the motion of plaintiff-appellant to waive fees is GRANTED as to this case only.

Jansen, P.J. This case involves consolidated appeals from an October 26, 2016 opinion and order of the Court of Claims granting partial summary disposition in favor of defendants Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (DEQ), and the Michigan Department of Health and Human Services (DHHS) (collectively, the state defendants), and defendants Darnell Earley and Jerry Ambrose (the city defendants), who are former emergency managers for the city of Flint, in this putative class action brought by plaintiff water users and property owners in the city of Flint, Michigan. For the reasons that follow, we affirm. I. FACTS AND PROCEDURE This case arises from the situation commonly referred to as the "Flint water crisis." The lower court record is only modestly developed, and the facts of the case are highly disputed. Because this is an appeal from an opinion of the Court of Claims partially granting and partially denying defendants' motion for summary disposition, we must construe the factual allegations in a light most favorable to plaintiffs. The Court of Claims summarized the factual allegations in plaintiffs' complaint as follows: From 1964 through late April 2014, the Detroit Water and Sewage Department ("DWSD") supplied Flint water users with their water, which was drawn from Lake Huron. Flint joined Genesee, Sanilac and Lapeer Counties and the City of Lapeer, in 2009, to form the Karegondi Water Authority ("KWA") to explore the development of a water delivery system that would draw water from Lake Huron and serve as an alternative to the Detroit water delivery system. On March 28, 2013, the State Treasurer recommended to the Governor that he authorize the KWA to proceed with its plans to construct the alternative water supply system. The State Treasurer made this decision even though an independent engineering firm commissioned by the State Treasurer had concluded that it would be more cost efficient if Flint continued to receive its water from the DWSD. Thereafter, on April 16, 2013, the Governor authorized then-Flint Emergency Manager Edward Kurtz to contract with the KWA for the purpose of switching the source of Flint's water from the DWSD to the KWA beginning in mid-year 2016. At the time Emergency Manager Kurtz contractually bound Flint to the KWA project, the Governor and various state officials knew that the Flint River would serve as an interim source of drinking water for the residents of Flint. Indeed, the State Treasurer, the emergency manager and others developed an interim plan to use Flint River water before the KWA project became operational. They did so despite knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water and despite the absence of any independent state scientific assessment of the suitability of using water drawn from the Flint River as drinking water. On April 25, 2014, under the direction of then Flint Emergency Manager Earley and the Michigan Department of Environmental Quality ("MDEQ"), Flint switched its water source from the DWSD to the Flint River and Flint water users began receiving Flint River water from their taps. This switch was made even though Michael Glasgow, the City of Flint's water treatment plant's laboratory and water quality supervisor, warned that Flint's water treatment plant was not fit to begin operations. The 2011 study commissioned by city officials had noted that Flint's long dormant water treatment plant would require facility upgrades costing millions of dollars. Less than a month later, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Flint residents began complaining in June of 2014 that they were becoming ill after drinking the tap water. On October 13, 2014, General Motors announced that it was discontinuing the use of Flint water in its Flint plant due to concerns about the corrosive nature of the water. That same month, Flint officials expressed concern about a Legionellosis outbreak and possible links between the outbreak and Flint's switch to the river water. On February 26, 2015, the United States Environmental Protection Agency ("EPA") advised the MDEQ that the Flint water supply was contaminated with iron at levels so high that the testing instruments could not measure the exact level. That same month, the MDEQ was also advised of the opinion of Miguel Del Toral of the EPA that black sediment found in some of the tap water was lead. During this time, state officials failed to take any significant remedial measures to address the growing public health threat posed by the contaminated water. Instead, state officials continued to downplay the health risk and advise Flint water users that it was safe to drink the tap water while at the same time arranging for state employees in Flint to drink water from water coolers installed in state buildings. Additionally, the MDEQ advised the EPA that Flint was using a corrosion control additive with knowledge that the statement was false. By early March 2015, state officials knew they faced a public health emergency involving lead poisoning and the presence of the deadly Legionella bacteria, but actively concealed the health threats posed by the tap water, took no measures to effectively address the dangers, and publicly advised Flint water users that the water was safe and that there was no widespread problem with lead leaching into the water supply despite knowledge that these latter two statements were false. Through the summer and into the fall of 2015, state officials continued to cover up the health emergency, discredit reports from Del Toral of the EPA and Professor Marc Edwards of Virginia Tech confirming serious lead contamination in the Flint water system, conceal critical information confirming the presence of lead in the water system, and advise the public that the drinking water was safe despite knowledge to the contrary. In the fall of 2015, various state officials attempted to discredit the findings of Dr. Mona [Hanna]-Attisha of Hurley Hospital, which reflected a "spike in the percentage of Flint children with elevated blood lead levels from blood drawn in the second and third quarter of 2014." In early October of 2015, however, the Governor acknowledged that the Flint water supply was contaminated with dangerous levels of lead. He ordered Flint to reconnect to the Detroit water system on October 8, 2015, with the reconnection taking place on October 16, 2015. This suit followed. [Mays v. Governor , unpublished opinion of the Court of Claims, issued October 26, 2016 (Docket No. 16-000017-MM), pp. 3-6 (citation omitted).] On January 21, 2016, plaintiffs brought a four-count verified class action complaint against all defendants in the Court of Claims "on behalf of Flint water users, which include but are not limited to, tens of thousands of residents ... of the City of Flint ...." Plaintiffs brought their complaint pursuant to the Michigan's Constitution's Due Process/Fair and Just Treatment Clause, Const. 1963, art. 1, § 17, and Unjust Takings Clause, Const. 1963, art. 10, § 2, alleging that since "April 25, 2014 to the present, [plaintiffs] have experienced and will continue to experience serious personal injury and property damage caused by Defendants' deliberately indifferent decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, correctional facilities, workplaces and public places." Specifically, plaintiffs alleged that defendants (1) "knowingly took from Plaintiffs safe drinking water and replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes," (2) for more than 18 months, ignored irrefutable evidence that the Flint River water was extremely toxic and causing serious injury to persons and property, (3) failed to properly sample and monitor the Flint River water, (4) knowingly delivered false assurances that the Flint River water was being tested and treated and was safe to drink, and (5) deliberately delayed notification to the public of serious safety and health risks. Plaintiffs sought class certification and elected to pursue causes of action against all defendants for state-created danger (Count I), violation of plaintiffs' due-process right to bodily integrity (Count II), denial of fair and just treatment during executive investigations (Count III), and unconstitutional taking via inverse condemnation (Count IV). Plaintiffs sought an award of economic and noneconomic damages for, among other things, bodily injury, pain and suffering, and property damage, for "deliberately indifferent fraud" and "unconscionable" deception on the part of defendants while acting in their official capacities. The state and city defendants separately moved for summary disposition on all four counts, arguing that, among other things, plaintiffs had (1) failed to satisfy the statutory notice requirements of MCL 600.6431, (2) failed to allege facts to establish a constitutional violation for which a judicially inferred damage remedy is appropriate, and (3) failed to allege facts to establish the elements of any of their claims. In a detailed opinion and order, the Court of Claims granted defendants' motions for summary disposition on plaintiffs' causes of action under the state-created-danger doctrine and the Fair and Just Treatment Clause of the Michigan Constitution after concluding that neither cause of action is cognizable under Michigan law. However, the court denied summary disposition on all of defendants' remaining grounds. II. STATUTORY NOTICE REQUIREMENTS On appeal, defendants first argue that the Court of Claims erred when it denied defendants' motions for summary disposition under MCR 2.116(C)(4) and (7) because plaintiffs failed to satisfy the requirement of statutory notice to avoid governmental immunity and seek relief against the state in the Court of Claims. We disagree. "We review a trial court's decision regarding a motion for summary disposition de novo." City of Fraser v. Almeda Univ. , 314 Mich. App. 79, 85, 886 N.W.2d 730 (2016). A motion for summary disposition under MCR 2.116(C)(4) tests the trial court's subject-matter jurisdiction. Weishuhn v. Catholic Diocese of Lansing , 279 Mich. App. 150, 154, 756 N.W.2d 483 (2008). "We review a trial court's decision on a motion for summary disposition based on MCR 2.116(C)(4) de novo to determine if the moving party was entitled to judgment as a matter of law, or if affidavits or other proofs demonstrate there is an issue of material fact." Southfield Ed. Ass'n v. Southfield Pub. Sch. Bd. of Ed. , 320 Mich. App. 353, 373, 909 N.W.2d 1 (2017) (quotation marks and citation omitted). Whether a court has subject-matter jurisdiction over a claim is a question of law this Court reviews de novo. Jamil v. Jahan , 280 Mich. App. 92, 99-100, 760 N.W.2d 266 (2008). Likewise, "whether MCL 600.6431 requires dismissal of a plaintiff's claim for failure to provide the designated notice raises questions of statutory interpretation," which this Court reviews de novo. McCahan v. Brennan , 492 Mich. 730, 736, 822 N.W.2d 747 (2012). Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred because of immunity granted by law. Dextrom v. Wexford Co. , 287 Mich. App. 406, 428, 789 N.W.2d 211 (2010). "When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them." Id ."If no material facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred by governmental immunity is an issue of law." Willett v. Waterford Charter Twp. , 271 Mich. App. 38, 45, 718 N.W.2d 386 (2006) (quotation marks, citation, and brackets omitted). We hold that the Court of Claims did not err when it determined that genuine issues of material fact still exist regarding whether plaintiffs satisfied the statutory notice requirements of MCL 600.6431. Further, we hold that the harsh-and-unreasonable-consequences exception relieves plaintiffs from the statutory notice requirements and that, depending on plaintiffs' ability to prove the allegations of their complaint, the fraudulent-concealment exception of MCL 600.5855 may provide an alternative basis to affirm the court's denial of summary disposition. A. STATUTORY NOTICE REQUIREMENTS In Michigan, governmental agencies engaged in governmental functions are generally immune from tort liability. Kline v. Dep't of Transp. , 291 Mich. App. 651, 653, 809 N.W.2d 392 (2011). The government, by statute, may voluntarily subject itself to liability and "may also place conditions or limitations on the liability imposed." McCahan , 492 Mich. at 736, 822 N.W.2d 747. "Indeed, it is well established that the Legislature may impose reasonable procedural requirements, such as a limitations period, on a plaintiff's available remedies even when those remedies pertain to alleged constitutional violations." Rusha v. Dep't of Corrections , 307 Mich. App. 300, 307, 859 N.W.2d 735 (2014). "[I]t being the sole province of the Legislature to determine whether and on what terms the state may be sued, the judiciary has no authority to restrict or amend those terms." McCahan , 492 Mich. at 732, 822 N.W.2d 747. Thus, "no judicially created saving construction is permitted to avoid a clear statutory mandate." Id . at 733, 822 N.W.2d 747. When the language of a limiting statute is straightforward, clear, and unambiguous, it must be enforced as written. Rowland v. Washtenaw Co. Rd. Comm. , 477 Mich. 197, 219, 731 N.W.2d 41 (2007). One statutory condition on the right to sue governmental agencies of the state of Michigan is the notice provision of the Court of Claims Act (CCA), MCL 600.6401 et seq . McCahan , 492 Mich. at 736, 822 N.W.2d 747. The provision, MCL 600.6431, provides: (1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths. * * * (3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action. Our Supreme Court has directed that "[c]ourts may not engraft an actual prejudice requirement or otherwise reduce the obligation to comply fully with statutory notice requirements." McCahan , 492 Mich. at 746-747, 822 N.W.2d 747. The notice requirement of MCL 600.6431 is an unambiguous "condition precedent to sue the state," McCahan v. Brennan , 291 Mich. App. 430, 433, 804 N.W.2d 906 (2011), aff'd 492 Mich. 730, 822 N.W.2d 747 (2012), and a claimant's failure to strictly comply warrants dismissal of the claim, McCahan , 492 Mich. at 746-747, 822 N.W.2d 747. There is no dispute that plaintiffs' action involves personal injury and property damage. Plaintiffs filed their complaint in the instant suit on January 21, 2016, without having filed a separate notice of intention to file a claim. Therefore, to have strictly complied with the notice requirement of MCL 600.6431, plaintiffs' claims must have accrued on or after July 21, 2015, the date six months prior to the date of filing. Defendants argue that plaintiffs' claims accrued, and the statutory notice period began to run, in either June 2013, when plaintiffs allege that the state "ordered and set in motion the use of highly corrosive and toxic Flint River water knowing that the [water treatment plant] was not ready," or on April 25, 2014, when Flint's water source was switched over to the Flint River and residents began receiving Flint River water from their taps. In either circumstance, according to defendants, plaintiffs' complaint was not filed within the six-month statutory notice period and plaintiffs' claims must be dismissed. As the Court of Claims observed, accepting defendants' position would require a finding that plaintiffs should have filed suit or provided notice at a time when the state itself claims it had no reason to know that the Flint River water was contaminated. Like the Court of Claims, we are disinclined to accept defendants' position. At a minimum, summary disposition on this ground is premature. Plaintiffs have alleged personal injury and property damage sustained as a result of defendants' allegedly knowing and deliberate decision to supply plaintiffs with contaminated and unsafe drinking water. Although defendants assert that plaintiffs' causes of action could only have arisen on the date of the physical switch, our Legislature has not defined claim accrual so narrowly. Rather, for purposes of statutory limitations periods, our Legislature has stated that a claim accrues "at the time the wrong upon which the claim is based was done," MCL 600.5827, and our Supreme Court has clarified that "the 'wrong' ... is the date on which the defendant's breach harmed the plaintiff, as opposed to the date on which defendant breached his duty," Frank v. Linkner , 500 Mich. 133, 147, 894 N.W.2d 574 (2017) (quotation marks and citation omitted). Therefore, the date on which defendants acted to switch the water is not necessarily the date on which plaintiffs suffered the harm giving rise to their causes of action. Although our Supreme Court has abrogated the application of the discovery doctrine in this state, it has also made clear that it is not until "all of the elements of an action for ... injury, including the element of damage, are present, [that] the claim accrues and the statute of limitations begins to run." Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club , 283 Mich. App. 264, 290, 769 N.W.2d 234 (2009), quoting Connelly v. Paul Ruddy's Equip. Repair & Serv. Co. , 388 Mich. 146, 151, 200 N.W.2d 70 (1972) (quotation marks omitted). In other words, while a claimant's knowledge of each element of a cause of action is not necessary for claim accrual, a claim does not accrue until each element of the cause of action, including some form of damages, exists . See Henry v. Dow Chem. Co. , 319 Mich. App. 704, 720, 905 N.W.2d 422 (2017), rev'd in part on other grounds 905 N.W.2d 601 (2017). Determination of the time at which plaintiffs' claims accrued therefore requires a determination of the time at which plaintiffs were first harmed. See id . Plaintiffs allege various affirmative actions taken by defendants in this case that resulted in distinct harm to plaintiffs. As plaintiffs concede, not every injury suffered by every user of Flint water is necessarily actionable. However, questions of fact remain regarding whether and when each plaintiff suffered injury and when each plaintiff's claims accrued relative to the filing of plaintiffs' complaint. For example, plaintiffs have alleged economic damage in the form of lost property value that did not occur on the date of the water switch. Plaintiffs' claim for lack of marketability did not accrue until the values of their homes decreased, which would have occurred when the water crisis became public and marketability of property in Flint became significantly impaired in October 2015. Further, it is not clear on what date plaintiffs suffered actionable personal injuries as a result of their use and consumption of the contaminated water. Plaintiffs should be permitted to conduct discovery and should be given the opportunity to prove the dates on which their distinct harms first arose before summary disposition may be appropriate. This is especially true where, as here, there are multiple events giving rise to plaintiffs' causes of action. "[T]he fact that some of a plaintiff's claims accrued outside the applicable limitations period does not time-bar all the plaintiff's claims." Dep't of Environmental Quality v. Gomez , 318 Mich. App. 1, 28, 896 N.W.2d 39 (2016). Thus, even if strict compliance with the statutory notice provision is required, summary disposition, at least at this juncture, is premature. Further, as the Court of Claims observed, there are factual questions that, if resolved in plaintiffs' favor, would justify "relieving [plaintiffs] of the requirements of" MCL 600.6431(3). Rusha , 307 Mich. App. at 312, 859 N.W.2d 735 (quotation marks and citation omitted). B. HARSH AND UNREASONABLE CONSEQUENCES Plaintiffs have asserted only constitutional claims against the state and various agencies. In Rusha , 307 Mich. App. at 311, 859 N.W.2d 735, the Court of Appeals acknowledged that "Michigan courts routinely enforce statutes of limitations where constitutional claims are at issue." However, the Court also acknowledged an exception to enforcement when strict enforcement of a limitations period is so harsh and unreasonable in its consequences that it "effectively divest[s]" a plaintiff "of the access to the courts intended by the grant of [a] substantive right." Id. (quotation marks and citation omitted). The Court then noted that there is no obvious reason not to extend this exception, typically applied to relieve a plaintiff of the effects of statutory limitations periods, to statutory notice requirements. Specifically considering MCL 600.6431(3), the Rusha Court opined: We see no reason-and plaintiff has provided none-to treat statutory notice requirements differently [than statutes of limitations]. Indeed, although statutory notice requirements and statutes of limitations do not serve identical objectives, both are procedural requirements that ultimately restrict a plaintiff's remedy, but not the substantive right. [ Rusha , 307 Mich. App. at 311-312, 859 N.W.2d 735 (citations omitted).] Defendants argue that Rusha was incorrectly decided and should not influence our decision here. Specifically, defendants assert that the Rusha Court's conclusions, first that a harsh-and-unreasonable-consequences exception may relieve plaintiffs from the statute of limitations and second that the same exception applies to statutory notice requirements, are directly contradicted by three earlier decisions of the Michigan Supreme Court: Trentadue v. Buckler Automatic Lawn Sprinkler Co. , 479 Mich. 378, 738 N.W.2d 664 (2007) ; Rowland , 477 Mich. 197, 731 N.W.2d 41, and McCahan , 492 Mich. 730, 822 N.W.2d 747. Defendants argue that these cases unequivocally prohibit the application of any type of judicial "saving construction" to avoid the "clear statutory mandate" of a legislatively imposed limitations period. Defendants are correct that these cases stand for the proposition that a court may not craft an exception to the statutory notice or limitations periods by recognizing viability of a substantially compliant notice, engrafting a prejudice requirement, or similarly reducing the requirements of the statute, even when constitutional claims are at issue. Indeed, the Court in Rusha acknowledged that "a claimant's failure to comply strictly with [the notice provision of MCL 600.6431 ] warrants dismissal of the claim, even if no prejudice resulted." Rusha , 307 Mich. App. at 307, 859 N.W.2d 735, citing McCahan , 492 Mich. at 746-747, 822 N.W.2d 747. However, the Court also recognized that the strict compliance requirement must be set aside when its application completely divests a plaintiff of the opportunity to assert a substantive right. Id . at 311, 859 N.W.2d 735. Despite defendants' assertion to the contrary, Rusha should not be read as advocating for the creation of a judicial saving construction to supplement an otherwise valid statute. Rather, it seems that the Rusha Court properly recognized the longstanding principle that while the Legislature retains the authority to impose reasonable procedural restrictions on a claimant's pursuit of claims under self-executing constitutional provisions, "the right guaranteed shall not be curtailed or any undue burdens placed thereon." Id. at 308, 859 N.W.2d 735 (quotation marks and citation omitted). The Michigan Constitution is the preeminent law of our land, and its provisions restrict the conduct of the state government. See Burdette v. Michigan , 166 Mich. App. 406, 408, 421 N.W.2d 185 (1988). Indeed, the Due Process Clause of the Michigan Constitution, as a Declaration of Rights provision, "ha[s] consistently been interpreted as limited to protection against state action." Sharp v. Lansing , 464 Mich. 792, 813, 629 N.W.2d 873 (2001) (quotation marks and citation omitted; emphasis added). The Legislature may not impose a procedural requirement that would, in practical application, completely divest an individual of his or her ability to enforce a substantive right guaranteed thereunder. The harsh-and-unreasonable-consequences exception is merely a judicial recognition that in limited cases, when the practical application of the Legislature's statutorily imposed procedural requirements is unreasonable or completely divests a claimant of his or her right to pursue a constitutional claim, those procedural requirements are unconstitutional. The Rusha Court's recognition of this limitation on legislative power does not conflict with the holdings in Trentadue , Rowland , or McCahan . Importantly, these cases advocate strict compliance with statutory limitations and notice requirements in the context of legislatively granted rights rather than rights granted under the provisions of our Constitution itself. See McCahan , 492 Mich. at 733, 822 N.W.2d 747 (considering the statutory notice period in relation to a claim for personal injury and property damage arising from a motor vehicle accident); Trentadue , 479 Mich. at 386-387, 738 N.W.2d 664 (considering the statute of limitations on a wrongful-death action); Rowland , 477 Mich. at 200, 731 N.W.2d 41 (considering the statutory notice period for a claim against a county defendant under a statutory exception to governmental liability). The right to pursue the tort claims involved in each case arose from enumerated exceptions to the governmental tort liability act (GTLA), MCL 691.1401 et seq . -allowances structured by the Legislature's own authority and therefore subject to the Legislature's discretion. Additionally, Rusha was decided years after each of these cases and is supported by precedent that has not been overruled. Applying the harsh-and-unreasonable-consequences exception to the facts presented in Rusha , the Court concluded that there was no reason to relieve the plaintiff from the requirement of strict compliance with the statutory notice requirement. Rusha , 307 Mich. App. at 312-313, 859 N.W.2d 735. The Court explained: Here, it can hardly be said that application of the six-month notice provision of § 6431(3) effectively divested plaintiff of the ability to vindicate the alleged constitutional violation or otherwise functionally abrogated a constitutional right. Again, plaintiff waited nearly 28 months to file his claim. But § 6431(3) would have permitted him to file a claim on this very timeline had he only provided notice of his intent to do so within six months of the claim's accrual. Providing such notice would have imposed only a minimal procedural burden, which in any event would be significantly less than the "minor 'practical difficulties' facing those who need only make, sign and file a complaint within six months." To be sure, providing statutory notice " 'requires only ordinary knowledge and diligence on the part of the injured and his counsel, and there is no reason for relieving them from the requirements of this [statutory notice provision] that would not be applicable to any other statute of limitation.' " [ Id . (citations omitted; alteration by the Rusha Court).] In this case, unlike in Rusha , application of the harsh-and-unreasonable-consequences exception is clearly supported. To grant defendants' motions for summary disposition at this early stage in the proceedings would deprive plaintiffs of access to the courts and effectively divest them of the ability to vindicate the constitutional violations alleged. As the Court of Claims observed, this is not a case in which an ostensible, single event or accident has given rise to a cause of action, but one in which the "event giving rise to the cause of action was not readily apparent at the time of its happening." Mays , unpub. op. at 10. "Similarly, a significant portion of the injuries alleged to persons and property likely became manifest so gradually as to have been well established before becoming apparent to plaintiffs because the evidence of injury was concealed in the water supply infrastructure buried beneath Flint and in the bloodstreams of those drinking the water supplied via that infrastructure." Id . at 10-11. Plaintiffs in this case did not wait more than two years after discovering their claims to file suit. Rather, they filed suit within six months of the state's public acknowledgment and disclosure of the toxic nature of the Flint River water to which plaintiffs were exposed. Further supporting the application of the harsh-and-unreasonable-consequences exception to the requirement of statutory notice are plaintiffs' allegations of affirmative acts undertaken by numerous state actors, including named defendants, between April 25, 2014 and October 2015 to conceal both the fact that the Flint River water was contaminated and hazardous and the occurrence of any event that would trigger the running of the six-month notice period. Under these unique circumstances, to file statutory notice within six months of the date of the water source switch would have required far more than ordinary knowledge and diligence on the part of plaintiffs and their counsel. It would have required knowledge that defendants themselves claim not to have possessed at the time plaintiffs' causes of action accrued. Should plaintiffs' allegations be proved true, defendants' affirmative acts of concealment and frustration of plaintiffs' discovery of the alleged causes of action should not be rewarded. It would be unreasonable to divest plaintiffs of the opportunity to vindicate their substantive, constitutional rights simply because defendants successfully manipulated the public long enough to outlast the statutory notice period. Although circumstances such as these will undoubtedly be few, we believe that in this unique situation, we must not set a standard whereby the state and its officers may completely avoid liability if they manage to intentionally delay discovery of a cause of action until the six-month statutory notice period has expired. Plaintiffs must be afforded the opportunity to support the allegations of their complaint before dismissal of their claims may be deemed appropriate. Because application of the harsh-and-unreasonable-consequences exception to strict compliance with the statutory notice requirements is appropriate under the unique factual circumstances of this case, this Court need not consider whether, as defendants have asserted, plaintiffs improperly rely on the now-abrogated doctrines of discovery and continuing wrongs. Despite the unavailability of these previously accepted principles, see Henry , 319 Mich. App. at 718-720, 905 N.W.2d 422, plaintiffs' constitutional tort claims survive summary disposition on the nonconflicting basis that dismissal would result in a harsh and unreasonable deprivation "of the access to the courts intended by the grant of [a] substantive right," see Rusha , 307 Mich. App. at 311, 859 N.W.2d 735 (quotation marks and citation omitted). Finally, we briefly address the dissent's mention of similar pending federal district court and circuit court actions. The dissent argues that even though plaintiffs are precluded from recovery due to their alleged failure to provide proper notice, "the residents of Flint are not left entirely without remedies" due to several pending actions in the United States District Court for the Eastern District of Michigan and the United States Court of Appeals for the Sixth Circuit, including some actions in which a named plaintiff in this case is also involved. However, until those actions are fully resolved, any recovery is speculative. Further, while many federal statutory remedies are limited, the Court of Claims is able to fashion any reasonable remedy necessary to adequately address the constitutional violations plaintiffs have alleged. Accordingly, we disagree with the dissent that plaintiffs are able to avoid any "harsh consequences" by seeking relief in the federal courts. C. FRAUDULENT CONCEALMENT In a footnote, the Court of Claims rejected plaintiffs' argument that the fraudulent-concealment exception of MCL 600.5855 applied to toll the statute of limitations and the statutory notice period in this case. Mays , unpub. op. at 11 n. 4. We hold that the Court of Claims erred by reaching this conclusion; the fraudulent-concealment exception may provide an alternative basis for affirming the denial of defendants' motions for summary disposition. The fraudulent-concealment exception is a legislatively created exception to statutes of limitation. The exception is codified as part of the Revised Judicature Act (RJA), MCL 600.101 et seq ., in MCL 600.5855, which states: If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations. This statutory section permits the tolling of a statutory limitations period for two years if the defendant has fraudulently concealed the existence of a claim. For the fraudulent-concealment exception to apply, a "plaintiff must plead in the complaint the acts or misrepresentations that comprised the fraudulent concealment" and "prove that the defendant committed affirmative acts or misrepresentations that were designed to prevent subsequent discovery." Sills v. Oakland Gen. Hosp. , 220 Mich. App. 303, 310, 559 N.W.2d 348 (1996). The Legislature, in crafting the CCA, imported the fraudulent-concealment exception into its statute-of-limitations provision. MCL 600.6452(2). However, as defendants point out, the Legislature did not explicitly import the exception into the statutory notice provision of the CCA. See MCL 600.6431. The Court of Claims rejected plaintiffs' assertion that the fraudulent-concealment exception should apply to the CCA's statutory notice requirement, finding the absence of a similar provision directly applicable to MCL 600.6431 "persuasive evidence that the Legislature did not intend for the fraudulent concealment tolling provision of MCL 600.5855 to be read into the notice provisions of MCL 600.6431." Mays , unpub. op. at 12 n. 4. We disagree. It is a basic tenet of statutory construction that the omission of a statutory provision should be construed as intentional. GMACLLC v. Dep't of Treasury , 286 Mich. App. 365, 372, 781 N.W.2d 310 (2009). "Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there." Id . (quotation marks and citation omitted). However, in this case, the Legislature did not "omit" from the CCA any language from the statute-of-limitations provisions of the RJA. Rather, the Legislature specifically included language mandating application of the RJA's statute-of-limitations provisions-and exceptions-to the statute-of-limitations provisions of the CCA. See MCL 600.6452(2). The RJA contains no statutory notice period, and neither the Legislature nor our courts have ever had the occasion to consider whether the fraudulent-concealment exception might apply to such a provision. The Legislature's failure to specifically address the application of the fraudulent-concealment exception to the CCA's statutory notice period therefore cannot be presumed intentional under the above-mentioned rules of statutory construction. While "the Legislature is presumed to be aware of, and thus to have considered the effect [of a statutory enactment] on, all existing statutes," GMAC LLC , 286 Mich. App. at 372, 781 N.W.2d 310 (quotation marks and citation omitted; emphasis added), it makes no sense to presume knowledge of a potential future conflict without a context in which such knowledge would arise. Indeed, it would make as much sense to presume that the Legislature did not consider the issue of whether the fraudulent-concealment exception would apply to the statutory notice provision of the CCA because, had it done so, it would have made its determination explicit. The Legislature's omission here does not provide dispositive evidence of intent, and we therefore must proceed according to the well-established rules of statutory interpretation and construction. "The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature." Dawson v. Secretary of State , 274 Mich. App. 723, 729, 739 N.W.2d 339 (2007) (opinion by Wilder, P.J.). "This Court begins by reviewing the language of the statute, and, if the language is clear and unambiguous, it is presumed that the Legislature intended the meaning expressed in the statute." McCormick v. Carrier , 487 Mich. 180, 191, 795 N.W.2d 517 (2010). In such cases, "judicial construction is neither required nor permitted." Solution Source, Inc. v. LPR Assoc. Ltd. Partnership , 252 Mich. App. 368, 373, 652 N.W.2d 474 (2002). "However, if reasonable minds can differ concerning the meaning of a statute, judicial construction of the statute is appropriate." Id . We conclude that reasonable minds could differ regarding the meaning of MCL 600.5855 as applied in the context of claims brought under the CCA. First, it must be noted that while MCL 600.5855, a subsection of Chapter 58 of the RJA, is part of the Legislature's statutory scheme for statutory limitations periods, the statutory language does not otherwise express or imply that its exception operates only by exclusively tolling the limitations period. To the contrary, the plain language of the statute provides that an action that has been fraudulently concealed "may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim ...." MCL 600.5855. The statute's direction that such an action may proceed notwithstanding that "the action would otherwise be barred by the period of limitations" does not specifically limit the exception's application to those claims barred by the expiration of the limitations period. Considering only the plain language of MCL 600.5855, reasonable minds could differ on the question whether the provision, as imported into the CCA, is intended to grant a claimant whose claim has been fraudulently concealed an affirmative right to bring suit within two years of discovery, regardless of prior noncompliance with the statutory requirements, or whether the exception applies only to toll the statutory limitations period. The language of MCL 600.5855 becomes more ambiguous when it is practically applied in the context of a claim brought under the CCA. Although MCL 600.5855 clearly permits the commencement of an action within two years after a claimant discovers or should have discovered a fraudulently concealed claim, the statutory notice period of MCL 600.6431 prohibits the commencement of an action without notice filed within six months or one year of the date on which the claim accrued. As previously discussed, the discovery doctrine has been abrogated in this state, see Trentadue , 479 Mich. at 391-392, 738 N.W.2d 664, and a claim accrues on the date a claimant is harmed, regardless of when the claimant first learns of the harm. If MCL 600.6431 is strictly applied, as it must be, see McCahan , 492 Mich. at 746-747, 822 N.W.2d 747, then MCL 600.6431 is impossible to reconcile with the Legislature's clear intent to provide claimants with two years from the date of discovery to bring suit on a harm that the liable party has fraudulently concealed. "[S]tatutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole." Robinson v. Lansing , 486 Mich. 1, 16, 782 N.W.2d 171 (2010). The Legislature clearly intended to incorporate the statutory limitations periods and exceptions, including the fraudulent-concealment exception of MCL 600.5855, into the CCA. See MCL 600.6452(2). If the fraudulent-concealment exception is not applied equally to the statutory period of limitations and the statutory notice period of the CCA, it cannot be applied at all. See Apsey v. Mem. Hosp. , 477 Mich. 120, 131, 730 N.W.2d 695 (2007) ("A statute is rendered nugatory when an interpretation fails to give it meaning or effect."). "[C]ourts must interpret statutes in a way that gives effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory." O'Connell v. Dir. of Elections , 316 Mich. App. 91, 98, 891 N.W.2d 240 (2016) (quotation marks and citation omitted). Further, when there is "tension, or even conflict, between sections of a statute," this Court has a "duty to, if reasonably possible, construe them both so as to give meaning to each; that is, to harmonize them." Nowell v. Titan Ins. Co. , 466 Mich. 478, 483, 648 N.W.2d 157 (2002). In this case, to read MCL 600.5855, as imported into the CCA, and MCL 600.6431 in harmony requires the conclusion that when the fraudulent-concealment exception applies, it operates to toll the statutory notice period as well as the statutory limitations period. Importantly, application of the fraudulent-concealment exception to statutory notice periods does nothing to undermine the purpose of requiring timely statutory notice. As defendants concede, the purpose of the notice provision in MCL 600.6431 is to establish a "clear procedure" for pursuing a claim against the state and eliminate "ambiguity" about whether a claim will be filed. McCahan , 492 Mich. at 744 n 24, 822 N.W.2d 747. The provision gives the state and its agencies time to create reserves and reduces the uncertainty of the extent of future demands. Rowland , 477 Mich. at 211-212, 731 N.W.2d 41. But when the state and its officers, having knowledge of an event giving rise to liability and anticipating the possibility that claims may be filed, actively conceal information in order to prevent a suit, the state suffers no "ambiguity" or surprise. In cases in which the fraudulent-concealment exception may be applied, the state possesses the necessary information and the object of the statutory notice requirement is self-executing. Application of the fraudulent-concealment exception to the statutory notice requirement of the CCA is therefore consistent with both the legislative intent behind the exception itself and the purpose of the statutory notice period. In keeping with the principles of statutory construction and the Legislature's clear intent to permit the application of the fraudulent-concealment exception to claims brought under the CCA, we hold that the fraudulent-concealment exception applies at least to toll the statutory notice period commensurate with the tolling of the statute of limitations in situations in which its requirements have been met. If plaintiffs can prove, as they have alleged, that defendants actively concealed the information necessary to support plaintiffs' causes of action so that plaintiffs could not, or should not, have known of the existence of the causes of action until a date less than six months prior to the date of their complaint, application of the fraudulent-concealment exception will fully apply and plaintiffs should be permitted to proceed regardless of when their claims actually accrued. Whether plaintiffs can satisfy the exception is a question that involves disputed facts and is subject to further discovery. Summary disposition on this ground is therefore inappropriate. III. JURISDICTION OVER THE CITY DEFENDANTS Next, the state defendants argue that the Court of Claims erred when it found that it could exercise jurisdiction over claims brought against the city defendants because emergency managers are considered "state officers" under the CCA. We disagree. "Jurisdiction is a court's power to act and its authority to hear and decide a case." Riverview v. Sibley Limestone , 270 Mich. App. 627, 636, 716 N.W.2d 615 (2006). "The Court of Claims is created by statute and the scope of its subject-matter jurisdiction is explicit." O'Connell , 316 Mich. App. at 101, 891 N.W.2d 240 (quotation marks and citation omitted). "A challenge to the jurisdiction of the Court of Claims presents a statutory question that is reviewed de novo as a question of law." Id . at 97, 891 N.W.2d 240 (quotation marks and citation omitted). With MCL 600.6419(1)(a), the Legislature endowed the Court of Claims with exclusive jurisdiction "[t]o hear and determine any claim or demand, statutory or constitutional, ... against the state or any of its departments or officers notwithstanding another law that confers jurisdiction of the case in the circuit court." (Emphasis added.) In the same statutory section, the Legislature specified that [a]s used in this section, "the state or any of its departments or officers" means this state or any state governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of the state, or an officer, employee, or volunteer of this state or any governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of this state, acting, or who reasonably believes that he or she is acting, within the scope of his or her authority while engaged in or discharging a government function in the course of his or her duties. [ MCL 600.6419(7).] The jurisdiction of the Court of Claims does not extend to local officials. Doan v. Kellogg Community College , 80 Mich. App. 316, 320, 263 N.W.2d 357 (1977). Whether an emergency manager falls within the definition of state "officer" provided in MCL 600.6419(7) is a question of statutory interpretation. When interpreting a statute, "[o]ur duty is to ascertain and effectuate the intent behind the statute ... from the language used in it." Attorney General v. Flint , 269 Mich. App. 209, 211-212, 713 N.W.2d 782 (2005). "Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions." Halloran v. Bhan , 470 Mich. 572, 578, 683 N.W.2d 129 (2004). "When statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed and further construction is neither required nor permitted." Attorney General , 269 Mich. App. at 213, 713 N.W.2d 782 (quotation marks and citation omitted). The state defendants acknowledge that the Michigan Supreme Court has determined that the question whether an official is a state officer in a particular circumstance is "governed by the purpose of the act or clause in connection with which it is employed." Schobert v. Inter-Co. Drainage Bd. , 342 Mich. 270, 282, 69 N.W.2d 814 (1955). The state defendants assert that it is 2012 PA 436, the act creating and governing the office of an appointed emergency manager, that is the focus of this inquiry, and the state defendants devote substantial portions of their appellate briefs to explaining the purported distinction between state officers and emergency managers on the basis of the language of that act. The state defendants have either offered this Court a red herring or confused an otherwise straightforward determination. The question is not, as the state defendants contend, whether the Legislature in passing 2012 PA 436 intended to make emergency managers state officers. While 2012 PA 436 and its characterization of emergency managers may be relevant in another context, the question presented here is one of jurisdiction, and it is the intent behind the Legislature's grant of jurisdiction to the Court of Claims, through MCL 600.6419 in particular, that must direct this Court's analysis. See Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 521, 821 N.W.2d 117 (2012) ("[T]he first step of statutory interpretation is to review the language of the statute at issue, not that of another statute."). Thus, in determining whether claims against an emergency manager fall within the jurisdiction of the Court of Claims, we begin by examining the plain language of MCL 600.6419(7). This Court need not, and in fact may not, look past the CCA for a definition of "state officer" as employed therein. "Where a statute supplies its own glossary, courts may not import any other interpretation but must apply the meaning of the terms as expressly defined." People v. Schultz , 246 Mich. App. 695, 703, 635 N.W.2d 491 (2001). The Legislature has provided a definition of the term in the CCA. That definition includes "an officer, employee, or volunteer of this state or any governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of this state, acting, or who reasonably believes that he or she is acting, within the scope of his or her authority while engaged in or discharging a government function in the course of his or her duties." But the state defendants have not bothered to address this definition. Regardless of whether emergency managers might be considered state officers in any context outside of the CCA, the city defendants clearly fall within the act's own definition and, as intended, within the Court of Claims' jurisdiction. There is no dispute that the city defendants made the decision to switch the city of Flint's water supply to the Flint River while acting within the scope of their official authority and in the discharge of a government function. Further, there is no doubt that the city defendants were acting, at all times relevant to plaintiffs' claims, as employees or officers of the state of Michigan and its agencies. As the Court of Claims observed, "[a]n emergency manager is a creature of the Legislature with only the power and authority granted by statute. Kincaid v. City of Flint , 311 Mich. App. 76, 87, 874 N.W.2d 193 (2015). An emergency manager is appointed by the governor following a determination by the governor that a local government is in a state of financial emergency. MCL 141.1546(1)(b) ; MCL 141.1549(1). The emergency manager serves at the governor's pleasure. MCL 141.1549(3)(d) ; Kincaid , 311 Mich. App. at 88 [874 N.W.2d 193]. The emergency manager can be removed by the governor or by the Legislature through the impeachment process. MCL 141.1549(3)(d) and (6)(a). The state provides the financial compensation for the emergency manager. MCL 141.1549(3)(e) and (f). All powers of the emergency manager are conferred by the Legislature. MCL 141.1549(4) and (5) ; MCL 141.1550 - MCL 141.1559 ; Kincaid , 311 Mich. App. at 87 [874 N.W.2d 193]. Those powers include powers not traditionally within the scope of those granted municipal corporations. See MCL 141.1552(1)(a)-(ee). The Legislature conditioned the exercise of some of those powers upon the approval of the governor or his or her designee or the state treasurer. MCL 141.1552(1)(f), (x), (z) and (3) ; MCL 141.1555(1). The Legislature has also subjected the emergency manager to various codes of conduct otherwise applicable only to public servants, public officers and state officers. MCL 141.1549(9). Through the various provisions within the act, the state charges the emergency manager with the general task of restoring fiscal stability to a local government placed in receivership-a task which protects and benefits both the state and the local municipality and its inhabitants. The emergency manager is statutorily obligated to create a financial and operating plan for the local government that furthers specific goals set by the state and to submit a copy of the plan to the state treasurer for the treasurer's "regular[ ] reexamin[ation]." MCL 141.1551(2). The emergency manager is also obligated to report to the top elected officials of this state and to the state treasurer his or her progress in restoring financial stability to the local government. MCL 141.1557. Finally, the Act tasks the governor, and not the emergency manager, with making the final determination whether the financial emergency declared by the governor has been rectified by the emergency manager's efforts. MCL 141.1562(1) and (2). Under the totality of these circumstances, the core nature of the emergency manager may be characterized as an administrative officer of state government." [Mays , unpub. op. at 15-16, quoting Collins v. Flint , unpublished opinion of the Court of Claims, issued August 25, 2016 (Docket No. 16-000115-MZ), pp. 13-14 (citation omitted).] We agree that the totality of the circumstances indicates that an emergency manager operates as an administrative officer of the state. Further, it is beyond dispute that at a minimum, an emergency manager must be characterized as an employee of the state. Although the CCA does not provide a specific definition for "employee," this Court may look to dictionary definitions to "construe undefined statutory language according to common and approved usage." In re Casey Estate , 306 Mich. App. 252, 260, 856 N.W.2d 556 (2014). Black's Law Dictionary (10th ed.) defines "employee" as "[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance." Emergency managers, who are appointed by the governor, serve at the governor's pleasure, are subject to review by the state treasurer, and operate only within the authority granted by the state government, easily fall within this definition. Indeed, our Court has recognized that political appointees, like the emergency managers here, serve as at-will employees of the governmental agency that appointed them. See James v. City of Burton , 221 Mich. App. 130, 133-134, 560 N.W.2d 668 (1997). An emergency manager, as an appointee of the state government, is an employee of the state government. Claims against an emergency manager acting in his or her official capacity therefore fall within the well-delineated subject-matter jurisdiction of the Court of Claims. We note that if this Court were to accept the state defendants' suggestion that the Court must consider whether 2012 PA 436 authorizes the Court of Claims to assume subject-matter jurisdiction over claims against emergency managers, the result would be the same. The state defendants argue that 2012 PA 436 does not contemplate suits against emergency managers in the Court of Claims. However, while 2012 PA 436 does not expressly authorize suits against emergency managers in the Court of Claims, it specifically contemplates proceedings involving emergency managers in that court. Under PA 436, an emergency manager is granted the express authority to bring suits in the Court of Claims "to enforce compliance with any of his or her orders or any constitutional or legislative mandates, or to restrain violations of any constitutional or legislative power or his or her orders." MCL 141.1552(1)(q). This authorization acknowledges the status of an emergency manager as a state officer and is consistent with the CCA, which grants the Court of Claims jurisdiction over all claims brought by the "state or any of its departments or officers against any claimant ...." MCL 600.6419(1)(b). Because the city defendants' status as employees of the state during all times relevant to this appeal satisfies the jurisdictional question, we need not address the state defendants challenge to the Court of Claims' characterization of emergency managers as receivers for the state. However, we believe that the analogy is quite apt and provides additional support for the conclusion that claims against an emergency manager fall within the subject-matter jurisdiction of the Court of Claims. Under 2012 PA 436, an emergency managers' relationship with a municipality is specifically described as a "receivership." MCL 141.1542(q) (" 'Receivership' means the process under this act by which a financial emergency is addressed through the appointment of an emergency manager."). MCL 141.1549(2) provides, in pertinent part: Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government's capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. [Emphasis added.] Additionally, the powers and responsibilities delegated to an emergency manager under 2012 PA 436 mirror those of an appointed receiver: A receiver is sometimes said to be the arm of the court, appointed to receive and preserve the property of the parties to litigation and in some cases to control and manage it for the persons or party who may be ultimately entitled thereto. A receivership is primarily to preserve the property and not to dissipate or dispose of it. [ Westgate v. Westgate , 294 Mich. 88, 91, 292 N.W. 569 (1940) (emphasis added).] The state defendants argue that emergency managers cannot be compared to court-appointed receivers because unlike court-appointed receivers, emergency managers are appointed to represent the city rather than to act as neutral arbiters. The state defendants mischaracterize the relationship between emergency managers and the municipalities whose finances they are appointed to oversee. In their appellate brief, the city defendants aptly summarize the role of an appointed emergency manager: The concept behind emergency management is that the State needs to appoint a neutral party to help eliminate a financial emergency because local officials have proven (in the State's view) unable to govern in a financially responsible way. An [emergency manager]'s job is to create and implement a financial plan that assures full payment to creditors while still conducting all aspects of a municipality's operations. Once the Governor agrees that the emergency has been sustainably resolved, power passes from the neutral receiver back to local officials. [Citations omitted.] The city defendants' characterization of emergency managers as neutral overseers is supported by the provisions of 2012 PA 436. See MCL 141.1551(1)(a) and (b) ; MCL 141.1562(3) ; MCL 141.1543. It has long been recognized that a receiver serves as the administrative arm or officer of the authority exercising the power of appointment. See In re Guaranty Indemnity Co. , 256 Mich. 671, 673, 240 N.W. 78 (1932) ("Generally speaking a receiver is not an agent, except of the court appointing him .... He is merely a ministerial officer of the court, or, as he is sometimes called, the hand or arm of the court.") (quotation marks and citation omitted); Arbor Farms, LLC v. GeoStar Corp. , 305 Mich. App. 374, 392-393, 853 N.W.2d 421 (2014) (noting that a receiver is both an officer and an administrative arm of the appointing court); Hofmeister v. Randall , 124 Mich. App. 443, 445, 335 N.W.2d 65 (1983) (explaining that "a receiver is the arm of the court, appointed to receive and preserve the litigating parties' property"); Cohen v. Bologna , 52 Mich. App. 149, 151, 216 N.W.2d 586 (1974) (explaining that a receiver "function[s] as officer of the court" that appointed him). Again, the definition of "the state or any of its departments or officers" for purposes of Court of Claims jurisdiction includes any "arm, or agency of the state," or any officer or employee of an "arm, or agency of this state ...." MCL 600.6419(7). The Court of Claims did not err when it concluded that the city defendants, in their official capacities as emergency managers, operated as arms of the state during all times relevant to the instant suit. The state defendants argue that the characterization of emergency managers as ministerial arms or officers of the state "directly contradicts" this Court's holding in Kincaid , 311 Mich. App. 76, 874 N.W.2d 193, in which we concluded that an act of an emergency manager cannot be considered an act of the governor. In Kincaid , the Court considered whether an emergency manager could exercise power textually granted to the governor on a theory that an act of the emergency manager, as a gubernatorial appointee, was an act of the governor himself. Id . at 87-88, 874 N.W.2d 193. This Court rejected the city's argument that an emergency manager acts on behalf of the governor after considering the role of an emergency manager as described in 2012 PA 436. Id . at 88, 874 N.W.2d 193. Specifically, this Court held that 2012 PA 436 in no way authorized the governor to delegate his or her authority to an emergency manager, who could act "only on behalf of numerous local officials" and whose "authority is limited to the local level." Id . The state defendants argue that this holding precludes a finding that emergency managers are arms or agents of the state. However, the state defendants divorce this Court's holding from its context. The issue in Kincaid was not whether an emergency manager is a state official subject to the subject-matter jurisdiction of the Court of Claims, but whether the range of power granted to an emergency manager includes the governor's power to ratify. While the Kincaid Court held that emergency managers do not inherit all the powers of the governor, the Court did not hold that emergency managers cannot act as agents of the state. The fact that an emergency manager is not authorized to act as the governor does not mean that an emergency manager is not authorized to act as an agent of the governor. More importantly, the Kincaid holding in no way precludes a finding that emergency managers are employees of the state subject to the jurisdiction of the Court of Claims under MCL 600.6419, regardless of whether they are also considered agents acting on behalf of the governor. For these reasons, we hold that the Court of Claims did not err when it concluded that plaintiffs' claims against the city defendants, sued in their official capacities as employees and administrative officers of the state, are within the subject-matter jurisdiction of the Court of Claims. IV. INJURY TO BODILY INTEGRITY Next, defendants argue that the Court of Claims erred when it concluded that plaintiffs had pleaded facts that, if proved true, established a constitutional violation of plaintiffs' substantive due-process right to bodily integrity for which a judicially inferred damage remedy is appropriate. We disagree. Defendants moved for summary disposition of plaintiffs' injury-to-bodily-integrity claims under MCR 2.116(C)(8). Summary disposition is proper under MCR 2.116(C)(8) if the opposing party has failed to state a claim on which relief can be granted. Henry v. Dow Chem. Co. , 473 Mich. 63, 71, 701 N.W.2d 684 (2005). "A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows consideration of only the pleadings." MacDonald v. PKT, Inc. , 464 Mich. 322, 332, 628 N.W.2d 33 (2001). "For purposes of reviewing a motion for summary disposition under MCR 2.116(C)(8), all well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant." Ernsting v. Ave Maria College , 274 Mich. App. 506, 509, 736 N.W.2d 574 (2007). A motion under MCR 2.116(C)(8) may only be granted "where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Adair v. Michigan , 470 Mich. 105, 119, 680 N.W.2d 386 (2004) (quotation marks and citation omitted). This Court reviews constitutional questions de novo. Associated Builders & Contractors v. Lansing , 499 Mich. 177, 183, 880 N.W.2d 765 (2016). A. GENERAL PRINCIPLES OF CONSTITUTIONAL TORTS "Typically, a constitutional tort claim arises when a governmental employee, exercising discretionary powers, violates constitutional rights personal to a plaintiff." Duncan v. Michigan , 284 Mich. App. 246, 270, 774 N.W.2d 89 (2009), rev'd on other grounds 486 Mich. 1071, 784 N.W.2d 51 (2010). The Michigan Supreme Court has held that "[a] claim for damages against the state arising from [a] violation by the state of the Michigan Constitution may be recognized in appropriate cases." Smith v. Dep't of Pub. Health , 428 Mich. 540, 544, 410 N.W.2d 749 (1987). "The first step in recognizing a damage remedy for injury consequent to a violation of our Michigan Constitution is, obviously, to establish the constitutional violation itself." Marlin v. Detroit (After Remand) , 205 Mich. App. 335, 338, 517 N.W.2d 305 (1994) (quotation marks and citation omitted). Following Smith , this Court held that to establish a violation of the Constitution, a plaintiff must show that the state action at issue (1) deprived the plaintiff of a substantive constitutional right and (2) was executed pursuant to an official custom or policy. Carlton v. Dep't of Corrections , 215 Mich. App. 490, 505, 546 N.W.2d 671 (1996),, citing Monell v. New York City Dep't of Social Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court further directed that "[t]he policy or custom must be the moving force behind the constitutional violation in order to establish liability." Carlton , 215 Mich. App. at 505, 546 N.W.2d 671. We note at the outset that the Court of Claims articulated the proper test before engaging in a thorough analysis of the viability of plaintiffs' constitutional tort claim for injury to bodily integrity. However, we must review the matter de novo, giving no deference to the lower court decision, in order to determine whether defendants were entitled to judgment as a matter of law. Scalise v. Boy Scouts of America , 265 Mich. App. 1, 10, 692 N.W.2d 858 (2005). Thus, before we may decide whether it is appropriate to recognize a cause of action under the Due Process Clause of the Michigan Constitution for violation of plaintiffs' rights to bodily integrity, we must first determine whether plaintiffs have alleged facts that, if proved true, are sufficient to establish such a violation. B. SUBSTANTIVE RIGHT TO BODILY INTEGRITY The Due Process Clause of the Michigan Constitution provides, in pertinent part, that "[n]o person shall ... be deprived of life, liberty or property, without due process of law." Const. 1963, art. 1, § 17. "The due process guarantee of the Michigan Constitution is coextensive with its federal counterpart." Grimes v. Van Hook-Williams , 302 Mich. App. 521, 530, 839 N.W.2d 237 (2013). "The doctrine of substantive due process protects unenumerated fundamental rights and liberties under the Due Process Clause of the Fourteenth Amendment." Gallagher v. City of Clayton , 699 F.3d 1013, 1017 (C.A.8, 2012), citing Washington v. Glucksberg , 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). "The substantive component of due process encompasses, among other things, an individual's right to bodily integrity free from unjustifiable governmental interference." Lombardi v. Whitman , 485 F.3d 73, 79 (C.A.2, 2007) ; see Glucksberg , 521 U.S. at 720, 117 S.Ct. 2258 ("In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by the Due Process Clause includes the right[ ] ... to bodily integrity...."); Alton v. Texas A&M Univ. , 168 F.3d 196, 199 (1999) ("[T]he right to be free of state-occasioned damage to a person's bodily integrity is protected by the fourteenth amendment guarantee of due process.") (quotation marks and citation omitted). As early as 1891, the United States Supreme Court recognized that "[n]o right is held more sacred, or is more carefully guarded ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford , 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). The Court has since recognized a liberty interest in bodily integrity in circumstances involving such things as abortions, Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), end-of-life decisions, Cruzan v. Dir., Missouri Dep't of Health , 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), birth control decisions, Griswold v. Connecticut , 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), corporal punishment, Ingraham v. Wright , 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), and instances in which individuals are subject to dangerous or invasive procedures that restrain their personal liberty, see, e.g., Rochin v. California , 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (determining that a detainee's bodily integrity was violated when police ordered doctors to pump his stomach to obtain evidence of drugs); Screws v. United States , 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (holding that an individual's bodily integrity was violated when a citizen was beaten to death while in police custody). Violation of the right to bodily integrity involves "an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective." Rogers v. Little Rock, Arkansas , 152 F.3d 790, 797 (C.A.8, 1998), citing Sacramento Co. v. Lewis , 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In this case, plaintiffs clearly allege a nonconsensual entry of contaminated and toxic water into their bodies as a direct result of defendants' decision to pump water from the Flint River into their homes and defendants' subsequent affirmative act of physically switching the water source. Furthermore, we can conceive of no legitimate governmental objective for this violation of plaintiffs' bodily integrity. Indeed, defendants have not even attempted to provide one. However, to survive dismissal, the alleged "violation of the right to bodily integrity must be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Villanueva v. City of Scottsbluff , 779 F.3d 507, 513 (C.A.8, 2015) (quotation marks and citation omitted); see also Mettler Walloon, LLC v. Melrose Twp. , 281 Mich. App. 184, 198, 761 N.W.2d 293 (2008) (explaining that in the context of individual governmental actions or actors, to establish a substantive due-process violation, "the governmental conduct must be so arbitrary and capricious as to shock the conscience"). "Conduct that is merely negligent does not shock the conscience, but 'conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.' " Votta v. Castellani , 600 F.Appx. 16, 18 (2015), quoting Sacramento Co. , 523 U.S. at 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). At a minimum, proof of deliberate indifference is required. McClendon v. City of Columbia , 305 F.3d 314, 326 (C.A.5, 2002). A state actor's failure to alleviate "a significant risk that he should have perceived but did not" does not rise to the level of deliberate indifference. Farmer v. Brennan , 511 U.S. 825, 838, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To act with deliberate indifference, a state actor must " 'know[ ] of and disregard[ ] an excessive risk to [the complainant's] health or safety.' " Ewolski v. City of Brunswick , 287 F.3d 492, 513 (C.A.6, 2002), quoting Farmer , 511 U.S. at 837, 114 S.Ct. 1970. "The case law ... recognizes official conduct may be more egregious in circumstances allowing for deliberation ... than in circumstances calling for quick decisions ...." Williams v. Berney , 519 F.3d 1216, 1220-1221 (C.A.10, 2008). We agree with the Court of Claims' conclusion that "[s]uch conduct on the part of the state actors, and especially the allegedly intentional poisoning of the water users of Flint, if true, may be fairly characterized as being so outrageous as to be 'truly conscience shocking.' " Mays , unpub. op. at 28. Plaintiffs allege that defendants made the decision to switch the city of Flint's water source to the Flint River after a period of deliberation, despite knowledge of the hazardous properties of the water. Additionally, plaintiffs allege that defendants neglected to conduct any additional scientific assessments of the suitability of the Flint water for use and consumption before making the switch, which was conducted with knowledge that Flint's water treatment system was inadequate. According to plaintiffs' complaint, various state actors intentionally concealed scientific data and made false assurances to the public regarding the safety of the Flint River water even after they had received information suggesting that the water supply directed to plaintiffs' homes was contaminated with Legionella bacteria and dangerously high levels of toxic lead. At the very least, plaintiffs' allegations are sufficient to support a finding of deliberate indifference on the part of the governmental actors involved here. Plaintiffs have alleged facts sufficient to support a constitutional violation by defendants of plaintiffs' right to bodily integrity. We therefore proceed to consider whether the deprivation of rights resulted from implementation of an official governmental custom or policy. C. OFFICIAL CUSTOM OR POLICY "[T]his Court has held that liability for a violation of the state constitution should be imposed on the state only where the state's liability would, but for the Eleventh Amendment, render it liable under the standard for local governments as set forth in 42 USC 1983 and articulated in [ Monell ]." Reid v. Michigan , 239 Mich. App. 621, 628, 609 N.W.2d 215 (2000). Thus, the state and its officials will only be held liable for violation of the state constitution " 'in cases where a state "custom or policy" mandated the official or employee's actions.' " Carlton , 215 Mich. App. at 505, 546 N.W.2d 671, quoting Smith , 428 Mich. at 642, 410 N.W.2d 749 ( BOYLE, J. , concurring in part). Official governmental policy includes "the decisions of a government's lawmakers" and "the acts of its policymaking officials." Johnson v. VanderKooi , 319 Mich. App. 589, 622, 903 N.W.2d 843 (2017) (quotation marks and citation omitted). See also Monell , 436 U.S. at 694, 98 S.Ct. 2018 (stating that a governmental agency's custom or policy may be "made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy"). A "single decision" by a policymaker or governing body "unquestionably constitutes an act of official government policy," regardless of whether "that body had taken similar action in the past or intended to do so in the future[.]" Pembaur v. Cincinnati , 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). In Pembaur , the United States Supreme Court explained: To be sure, "official policy" often refers to formal rules or understandings-often but not always committed to writing-that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time. That was the case in Monell itself, which involved a written rule requiring pregnant employees to take unpaid leaves of absence before such leaves were medically necessary. However ... a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the [government] is equally responsible whether that action is to be taken only once or to be taken repeatedly. [ Id . at 480-481, 106 S.Ct. 1292.] The Court clarified that not all decisions subject governmental officers to liability. Id . at 481, 106 S.Ct. 1292. Rather, it is "where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id . at 483, 106 S.Ct. 1292. The facts of this case as plaintiffs allege, if true, are sufficient to support the conclusion that their constitutional claim of injury to bodily integrity arose from actions taken by state actors pursuant to governmental policy. Plaintiffs allege that various aspects of Flint's participation in the KWA project and the interim plan to provide Flint residents with Flint River water during the transition were approved and implemented by the Governor, the State Treasurer, the emergency managers, and other state officials, including officials employed by the DEQ. These allegations implicate the state and city defendants, state officers, and authorized decision-makers in the adoption of particular courses of action that ultimately resulted in violations of plaintiffs' substantial rights. Likewise, as the Court of Claims observed, the alleged decisions of various state officials to defend the original decision to switch to using the Flint River as a water source, to resist a return to the Detroit water distribution system, to downplay and discredit accurate information gathered by outside experts regarding lead in the water supply and elevated lead levels in the bloodstreams of Flint's children, and to continue to reassure the Flint water users that the water was safe and not contaminated with lead or Legionella bacteria, played a role in the alleged violation of plaintiffs' constitutional rights.... [ Mays , unpub. op. at 27.] Plaintiffs allege a coordinated effort involving various state officials, including multiple high-level DEQ employees, to mislead the public in an attempt to cover up the harm caused by the water switch. If these allegations are proved true, they also support the conclusion that governmental actors, acting in their official roles as policymakers, considered a range of options and made a deliberate choice to orchestrate an effort to conceal the awful consequences of the water switch, likely exposing plaintiffs and other water users to unnecessary further harm. The allegations in plaintiffs' complaint are therefore sufficient to establish a violation of constitutional rights arising from the implementation of official policy. D. AVAILABILITY OF DAMAGE REMEDY Because plaintiffs' allegations, if proved true, are sufficient to sustain a claim for injury to bodily integrity, we must determine whether this case is one for which it is appropriate to recognize a damage remedy for the state's violation of Article 1, § 17, of the 1963 Michigan Constitution. We conclude that this is such a case. As our appellate courts have done, the Court of Claims correctly addressed the propriety of an inferred damage remedy under the multifactor balancing test first articulated in an opinion by Justice Boyle in Smith , 428 Mich. at 648, 410 N.W.2d 749 (Boyle, J., concurring in part). See, e.g., Jones v. Powell , 462 Mich. 329, 336-337, 612 N.W.2d 423 (2000) ; Reid , 239 Mich. App. at 628-629, 609 N.W.2d 215. To apply the test, we consider the weight of various factors, including, as relevant here, (1) the existence and clarity of the constitutional violation itself, (2) the degree of specificity of the constitutional protection, (3) support for the propriety of a judicially inferred damage remedy in any "text, history, and previous interpretations of the specific provision," (4) "the availability of another remedy," and (5) "various other factors" militating for or against a judicially inferred damage remedy. See Smith , 428 Mich. at 648-652, 612 N.W.2d 423 (Boyle, J., concurring in part). We have already determined that plaintiffs have set forth allegations to establish a clear violation of the Michigan Constitution. Like the Court of Claims, we conclude that the first factor weighs in favor of a judicially inferred damage remedy. However, Justice Boyle rightly opined that the protections of the Due Process Clause are not as "clear-cut" as specific protections found elsewhere in the Constitution. Id. at 651. Michigan appellate courts have acknowledged that the substantive component of the federal Due Process Clause protects an individual's right to bodily integrity, see, e.g., People v. Sierb , 456 Mich. 519, 527, 529, 581 N.W.2d 219 (1998) ; Fortune v. City of Detroit Pub. Sch. , unpublished per curiam opinion of the Court of Appeals, issued October 12, 2004 ( Docket No. 248306), p. 2, 2004 WL 2291333, but this Court is unaware of any Michigan appellate decision expressly recognizing the same protection under the Due Process Clause of the Michigan Constitution or a stand-alone constitutional tort for violation of the right to bodily integrity. Although our Due Process Clause is interpreted coextensively with the Due Process Clause of the United States Constitution, Cummins v. Robinson Twp. , 283 Mich. App. 677, 700-701, 770 N.W.2d 421 (2009), we do not believe that the federal courts' application and interpretation of the right to bodily integrity provides an appropriate degree of claim specificity under our own prior jurisprudence. We therefore conclude that the second and third factors weigh slightly against recognition of a damage remedy for the injuries alleged. In considering the fourth factor, the availability of an alternate remedy, we note that we agree with the Court of Claims' conclusion that the question posed is whether plaintiffs have any available alternate remedies against these specific defendants. See Jones , 462 Mich. at 335-337, 612 N.W.2d 423 (contrasting claims against the state and state officials with claims against municipalities and individual municipal employees). Thus, at this stage of the proceedings, the fact that plaintiffs might be pursuing causes of action in another court is largely irrelevant. We proceed to determine whether plaintiffs are presented with alternative avenues for pursuit of remedies for the violations alleged. It seems clear that a judicially imposed damage remedy for the alleged constitutional violation is the only available avenue for obtaining monetary relief. A suit for monetary damages under 42 USC 1983 for violation of rights granted under the federal Constitution or a federal statute cannot be maintained in any court against a state, a state agency, or a state official sued in his or her official capacity because the Eleventh Amendment affords the state and its agencies immunity from such liability. Howlett v. Rose , 496 U.S. 356, 365, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ; Bay Mills Indian Community v. State of Michigan , 244 Mich. App. 739, 749, 626 N.W.2d 169 (2001). The state and its officials also enjoy broad immunity from liability under state law. "[T]he elective or highest appointive executive official of all levels of government" is absolutely immune from "tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her ... executive authority." MCL 691.1407(5). It is undisputed that this applies to the Governor, Duncan , 284 Mich. App. at 271-272, 774 N.W.2d 89, and for the reasons articulated by the Court of Claims, we conclude that it also applies to the city defendants for actions taken in their official roles as emergency managers, see Mays , unpub. op. at 37-40. Absent the application of a statutory exception, state agencies are also "immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1) ; Duncan , 284 Mich. App. at 266-267, 774 N.W.2d 89. Governmental employees acting within the scope of their authority are immune from tort liability unless their actions constitute gross negligence, MCL 691.1407(2), and even if governmental employees are found liable for gross negligence, the state may not be held vicariously liable unless an exception to governmental immunity applies under the GTLA. Yoches v. Dearborn , 320 Mich. App. 461, 476-477, 904 N.W.2d 887 (2017), citing MCL 691.1407(1). Further, there is no exception to governmental immunity for intentional torts committed by governmental employees exercising their governmental authority, Genesee Co. Drain Comm'r v. Genesee Co. , 309 Mich. App. 317, 328, 869 N.W.2d 635 (2015), and governmental employers may not be held liable for the intentional tortious acts of their employees, Payton v. Detroit , 211 Mich. App. 375, 393, 536 N.W.2d 233 (1995). We have already determined that plaintiffs' alleged constitutional violations occurred as a result of policy implementation by defendants in their official capacities. Like the Court of Claims, we hold on the basis of aforementioned principles that "the state, its agencies, and the Governor and former emergency managers acting in an official capacity, are not 'persons' under 42 USC 1983 and enjoy sovereign immunity under the Eleventh Amendment and statutory immunity under MCL 691.1407 from common law claims, [and] plaintiffs have no alternative recourse to enforce their respective rights against them." Mays , unpub. op. at 42, citing Jones , 462 Mich. at 335-337, 612 N.W.2d 423. Defendants argue for the first time on appeal that plaintiffs' constitutional tort claims, arising from plaintiffs' alleged exposure to toxic drinking water, may be vindicated under the federal Safe Drinking Water Act (SDWA), 42 USC 300f et seq ., and the Michigan Safe Drinking Water Act (MSDWA), MCL 325.1001 et seq . Defendants do not cite specific provisions of the statutes to support their argument. Generally, this Court will not address issues that were not raised in or addressed by the trial court, Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc. , 213 Mich. App. 317, 330, 539 N.W.2d 774 (1995), or those that are insufficiently briefed, Nat'l Waterworks, Inc. v. Int'l Fidelity & Surety, Ltd. , 275 Mich. App. 256, 265, 739 N.W.2d 121 (2007). However, we would note that while the SDWA contains a citizen-suit provision allowing for a private action against any person violating its terms, the statutory scheme provides for injunctive relief only. Boler v. Earley , 865 F.3d 391, 405-406 (C.A.6, 2017), citing 42 USC 300j-8. The MSDWA, as defendants concede, does not contain a citizen-suit provision. Contrary to defendants' assertion, the SDWA and its Michigan counterpart do not provide a legislative scheme for vindication of the alleged constitutional violations that would " 'militate against a judicially inferred damage remedy' " under Jones . Jones , 462 Mich. at 337, 612 N.W.2d 423, quoting Smith , 428 Mich. at 647 (Boyle, J., concurring in part). Indeed, in a related federal case, the Sixth Circuit Court of Appeals considered whether Congress intended for the SDWA to preclude remedies for constitutional violations and concluded that it did not. Boler , 865 F.3d at 409. The court explained: Under some circumstances, actions that violate the SDWA may also violate the ... Due Process Clause. The Defendants argue that this is necessarily the case, and that the Plaintiffs' [constitutional] claims could not be pursued without showing a violation of the SDWA. But as noted, that is often not the case, particularly where the SDWA does not even regulate a contaminant harmful to public drinking water users. The contours of the rights and protections of the SDWA and those arising under the Constitution, and a plaintiff's ability to show violations of each, are "not ... wholly congruent." This further supports the conclusion that Congress did not intend to foreclose [constitutional claims under 42 USC 1983 ] by enacting the SDWA. [ Id . at 408-409 (citation omitted).] Additionally, neither the SDWA nor the MSDWA addresses the conduct at issue in this case, which includes knowing and intentional perpetuation of exposure to contaminated water as well as fraudulent concealment of the hazardous consequences faced by individuals who used or consumed the water. These statutes therefore do not provide an alternative remedy for plaintiffs' claim of injury to bodily integrity. We note here that plaintiffs seek injunctive relief against several of the named defendants in a related federal court action. Plaintiffs' complaint in that action indicates that plaintiffs seek "prospective relief only" against the Governor and the state, but the complaint "describes the equitable relief sought as an order 'to remediate the harm caused by defendants [sic] unconstitutional conduct including repairs or [sic] property, [and] establishment of as [sic] medical monitoring fund ....' " Mays , unpub. op. at 35 n. 11. Plaintiffs also seek an award of compensatory and punitive damages. The "availability" of these remedies remains to be seen, and as previously noted, the fact that plaintiffs seek alternative remedies does not affect our decision regarding the availability of alternative remedies. We will not opine on the merits of plaintiffs' federal cause of action. However, we agree with the Court of Claims' observation that "[d]evelpments in that and other Flint Water Crisis litigation, including the extent to which any 'equitable' relief awarded may essentially equate to an award of monetary damages, may impact this Court's future conclusions both with regard to the availability of alternative remedies and other matters, including the remedies, if any, that may be appropriate in this action." Id. Defendants argue that this fourth factor must be considered dispositive and that the availability of any other remedy should foreclose the possibility of a judicially inferred damage remedy. Although the Supreme Court in Jones , 462 Mich. at 337, 612 N.W.2d 423, stated that " Smith only recognized a narrow remedy against the state on the basis of the unavailability of any other remedy," we agree with the Court of Claims' conclusion that the Jones Court's use of the word "only" referred to the sentence that followed, distinguishing claims against the state and specifically limiting the Court's holding to cases involving a municipality or an individual defendant. Mays , unpub. op. at 32, citing Jones , 462 Mich. at 337, 612 N.W.2d 423. In Smith , Justice Boyle described the availability of an alternative remedy only as a " 'special factor[ ] counselling hesitation,' ... which militate[s] against a judicially inferred damage remedy." Smith , 428 Mich. at 647, 410 N.W.2d 749 (Boyle, J., concurring in part), quoting Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 396, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We therefore decline to hold that the availability of an alternative remedy acts as a complete bar to a judicially inferred damage remedy. However, given the cautionary nature of Justice Boyle's language, we conclude that this factor, if satisfied, must be strongly weighted against the propriety of an inferred damage remedy. Finally, we agree with the Court of Claims' conclusion that it is appropriate to give significant weight "to the degree of outrageousness of the state actors' conduct as alleged by plaintiffs ...." Mays , unpub. op. at 43. If plaintiffs' allegations are proved true, "various state actors allegedly intentionally concealed data and made false statements in an attempt to downplay the health dangers posed by using Flint's tap water, despite possessing scientific data and actual knowledge that the water supply reaching the taps of Flint water users was contaminated with Legionella bacteria and dangerously high levels of toxic lead ...." Id . We agree that the egregious nature of defendants' alleged constitutional violations weighs considerably in favor of recognizing a remedy. On the basis of the totality of the circumstances presented, this Court holds that at this stage of the proceedings, it is appropriate to recognize a judicially inferred damage remedy for the injuries here alleged. Summary disposition of plaintiffs' injury-to-bodily-integrity claim is therefore inappropriate. V. STATE-CREATED DANGER On cross-appeal, plaintiffs argue that the Court of Claims erred when it granted defendants' motion for summary disposition of plaintiffs' constitutional claims under the state-created-danger doctrine. We disagree. This Court has never before considered whether a cause of action for state-created danger is cognizable under Michigan law. However, plaintiffs assert that this Court may recognize such a cause of action arising from "the broad protections of the Due Process Clause of the Michigan Constitution ...." The Due Process Clause of the Michigan Constitution commands that "[n]o person shall be ... deprived of life, liberty or property, without due process of law." Const. 1963, art. 1, § 17. This constitutional provision is nearly identical to the Due Process Clause of the United States Constitution, see U.S. Const. Am. XIV, § 1, and "[t]he due process guarantee of the Michigan Constitution is coextensive with its federal counterpart." Grimes , 302 Mich. App. at 530, 839 N.W.2d 237. "The substantive component of the due process guarantee 'provides heightened protection against government interference with certain fundamental rights and liberty interests.' " Id . at 531, 839 N.W.2d 237, quoting Glucksberg , 521 U.S. at 720, 117 S.Ct. 2258. As the Court of Claims aptly explained, "[s]ubstantive due process protects the individual from arbitrary and abusive exercises of government power; certain fundamental rights cannot be infringed upon regardless of the fairness of the procedures used to implement them." Mays , unpub. op. at 19-20, citing Sierb , 456 Mich. at 523, 581 N.W.2d 219. However, in general, "the due process clause does not require a state to protect its citizens' lives, liberty and property against invasion by private actors ... [or] require a state to guarantee a minimum level of safety and security." Markis v. Grosse Pointe Park , 180 Mich. App. 545, 554, 448 N.W.2d 352 (1989). Our courts have been reluctant to broaden the protections of the Due Process Clause without legislative guidance. Sierb , 456 Mich. at 531-532, 581 N.W.2d 219 ; Collins v. Harker Heights , 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (warning against expansion of "the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended"). Plaintiffs ask this Court to recognize and allow plaintiffs to pursue a cause of action under the so-called state-created-danger theory, first recognized by the United States Supreme Court in DeShaney v. Winnebago Co. Dep't of Social Servs. , 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). As the Court of Claims noted, "the very name of the theory, i.e. state-created danger, facially suggests that it could implicate what happened in Flint ...." Mays , unpub. op. at 24. However, the moniker "state-created danger" is somewhat misleading. The doctrine has been applied in all contexts as a narrow exception to the general rule that while the state may be held liable under the Due Process Clause for its own actions, the state has no affirmative obligation to protect people from each other . In DeShaney , the Court considered whether a minor who had been beaten by his father had been deprived of a due-process liberty interest by state social workers who failed to remove the minor from his father's custody despite receiving complaints of abuse. DeShaney , 489 U.S. at 191, 109 S.Ct. 998. After noting that the Due Process Clause of the United States Constitution imposes no affirmative duty on the state to protect individuals from private violence, the Court recognized a necessary exception to this general rule in cases in which the state has undertaken some responsibility for an individual's care and well-being or in which the state has deprived an individual of the freedom to care for himself or herself: [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs-e.g., food, clothing, shelter, medical care, and reasonable safety-it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means . [ Id . at 199-200, 109 S.Ct. 998 (citations omitted; emphasis added).] The Court explained that it is only in "certain limited circumstances [that] the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals" acting other than on behalf of the state. Id . at 198, 109 S.Ct. 998. Applying the foregoing principles to the facts in that case, the DeShaney Court found no due-process violation by the state because the minor's injuries were sustained while he was in his father's custody, rather than in the custody of the state, and the danger of abuse had not been made greater by any affirmative action of the state. Id . at 201, 109 S.Ct. 998. Although the United States Supreme Court did not explicitly adopt a cause of action for "state-created danger," various federal appellate courts have relied on the Court's language to support a constitutional claim for state-created danger under 42 USC 1983 and the Due Process Clause of the United States Constitution. McClendon , 305 F.3d at 330 (acknowledging that various federal circuit courts have "found a denial of due process when the state create[d] the ... dangers faced by an individual") (quotation marks and citation omitted). See also T.D. v. Patton , 868 F.3d 1209, 1221-1222 (C.A.10, 2017) ; Kennedy v. Ridgefield , 439 F.3d 1055, 1061-1062 (C.A.9, 2006) ; Bright v. Westmoreland Co. , 443 F.3d 276, 280-282 (C.A.3, 2006) ; Pena v. DePrisco , 432 F.3d 98, 108-109 (C.A.2, 2005) ; Gregory v. City of Rogers, Arkansas , 974 F.2d 1006, 1009-1010 (C.A.8, 1992) ; but see Doe v. Columbia-Brazoria Indep. Sch. Dist. , 855 F.3d 681, 688-689 (C.A.5, 2017) (noting that a state-created-danger exception has not yet been recognized in the Fifth Circuit). According to the principles announced by the United States Supreme Court in DeShaney , the state-created-danger exception applies in situations in which an individual in the physical custody of the state, by incarceration or institutionalization or some similar restraint of liberty, suffers harm from third-party violence resulting from an affirmative action of the state to create or make the individual more vulnerable to a danger of violence. So the state-created-danger theory arose, and so it has been consistently applied. Although the elements of a state-created-danger cause of action vary slightly between federal circuits, courts consistently require some third-party, nongovernmental harm either facilitated by or made more likely by an affirmative action of the state. See, e.g., Patton , 868 F.3d at 1222 (recognizing a constitutional violation when a "state actor affirmatively act[s] to create or increase[ ] a plaintiff's vulnerability to danger from private violence") (quotation marks and citation omitted); Gray v. Univ. of Colorado Hosp. Auth. , 672 F.3d 909, 921 (C.A.10, 2012) (describing the state-created-danger theory as a "narrow exception, which applies only when a state actor affirmatively acts to create, or increase[ ] a plaintiff's vulnerability to, danger from private violence") (quotation marks and citation omitted); Kneipp v. Tedder , 95 F.3d 1199, 1208 (C.A.3, 1996) (noting that a "third party's crime" is an element common to "cases predicating constitutional liability on a state-created danger theory"). Indeed, most federal appellate courts have adopted a test substantially similar to the one employed by the Sixth Circuit Court of Appeals, which enumerates the elements of a state-created-danger cause of action as follows: To show a state-created danger, plaintiff must show: 1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; 2) a special danger to the plaintiff wherein the state's actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and 3) the state knew or should have known that its actions specifically endangered the plaintiff. [ Cartwright v. City of Marine City , 336 F.3d 487, 493 (C.A.6, 2003).] Additionally, the Michigan Court of Appeals has applied the test articulated by the Sixth Circuit to claims brought under 42 USC 1983. See Manuel v. Gill , 270 Mich. App. 355, 365-367, 716 N.W.2d 291 (2006), aff'd in part and rev'd in part 481 Mich. 637, 753 N.W.2d 48 (2008) ; Dean v. Childs , 262 Mich. App. 48, 53-57, 684 N.W.2d 894 (2004), rev'd in part on other grounds 474 Mich. 914, 705 N.W.2d 344 (2005). As previously discussed, the "first step in recognizing a damage remedy for injury consequent to a violation of our Michigan Constitution is ... to establish the constitutional violation itself." Marlin , 205 Mich. App. at 338, 517 N.W.2d 305 (quotation marks and citation omitted). In this case, defendants argue that plaintiffs' state-created-danger cause of action cannot be sustained because plaintiffs have not alleged any actions by defendants that "created or increased the risk that ... plaintiff[s] would be exposed to an act of violence by a third party." Cartwright , 336 F.3d at 493. We agree. While plaintiffs suggest that harm committed by a third party is not a necessary element of a cause of action for state-created-danger, no court that has recognized or applied the state-created danger theory has done so in the absence of some act of private, nongovernmental harm. Indeed, plaintiffs acknowledge that, at the very least, the harm necessary to sustain a constitutional tort claim of state-created danger must spring from a source other than a state actor. Were this Court to recognize a cause of action for state-created danger arising from the Michigan Constitution, it would be narrow in scope and so limited. In this case, plaintiffs have alleged harms caused directly and intentionally by state actors. This is simply not the sort of factual situation in which a claim for state-created danger, according to its common conception, may be recognized. The Court of Claims did not err when it concluded that, even if a state-created-danger cause of action is cognizable under Michigan law, plaintiffs have not alleged facts to support it. Summary disposition in favor of all defendants on plaintiffs' state-created-danger claim is therefore appropriate. VI. INVERSE CONDEMNATION Next, defendants argue that the Court of Claims erred by denying their motion for summary disposition of plaintiffs' inverse-condemnation claims. We disagree. "Both the United States and Michigan constitutions prohibit the taking of private property for public use without just compensation." Wiggins v. City of Burton , 291 Mich. App. 532, 571, 805 N.W.2d 517 (2011), citing U.S. Const., Am. V ; Const. 1963, art. 10, § 2. "A de facto taking occurs when a governmental agency effectively takes private property without a formal condemnation proceeding." Merkur Steel Supply, Inc. v. Detroit , 261 Mich. App. 116, 125, 680 N.W.2d 485 (2004). Inverse condemnation is " 'a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.' " In re Acquisition of Land-Virginia Park , 121 Mich. App. 153, 158-159, 328 N.W.2d 602 (1982) (citation omitted). "Inverse condemnation can occur without a physical taking of the property; a diminution in the value of the property or a partial destruction can constitute a 'taking.' " Merkur Steel Supply, Inc. , 261 Mich. App. at 125, 680 N.W.2d 485. Further, [a]ny injury to the property of an individual which deprives the owner of the ordinary use of it is equivalent to a taking, and entitles him to compensation. So a partial destruction or diminution of value of property by an act of government, which directly and not merely incidentally affects it, is to that extent an appropriation. [ Peterman v. Dep't of Natural Resources , 446 Mich. 177, 190, 521 N.W.2d 499 (1994) (quotation marks and citation omitted).] "While there is no exact formula to establish a de facto taking, there must be some action by the government specifically directed toward the plaintiff's property that has the effect of limiting the use of the property." Dorman v. Clinton Twp. , 269 Mich. App. 638, 645, 714 N.W.2d 350 (2006) (quotation marks and citation omitted). "[A] plaintiff alleging inverse condemnation must prove a causal connection between the government's action and the alleged damages." Hinojosa v. Dep't of Natural Resources , 263 Mich. App. 537, 548, 688 N.W.2d 550 (2004). Stated simply, "a plaintiff alleging a de facto taking or inverse condemnation must establish (1) that the government's actions were a substantial cause of the decline of the property's value and (2) that the government abused its powers in affirmative actions directly aimed at the property." Blue Harvest, Inc. v. Dep't of Transp. , 288 Mich. App. 267, 277, 792 N.W.2d 798 (2010). Further, "[t]he right to just compensation, in the context of an inverse condemnation suit for diminution in value ... exists only where the landowner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated." Spiek v. Mich. Dep't of Transp. , 456 Mich. 331, 348, 572 N.W.2d 201 (1998). Plaintiffs allege that defendants made the decision to switch the city of Flint's water source from Lake Huron to the Flint River despite knowledge of the Flint River's toxic potential and the inadequacy of Flint's water treatment plant. Plaintiffs also allege that immediately after the switch was effected, toxic water flowed directly from the Flint River through the city's service lines to the water plant and then to plaintiffs' properties, where it caused physical damage to plumbing, water heaters, and service lines, leaving the infrastructure unsafe to use even after the delivery of toxic water was halted by the city's reconnection to the DWSD. According to plaintiffs, this damage resulted in reduced property values. Additionally, plaintiffs allege that various state actors concealed or misrepresented data and made false statements about the safety of Flint River water in an attempt to downplay the risk of its use and consumption. We agree with the Court of Claims' conclusion that "[t]he allegations are sufficient, if proven, to allow a conclusion that the state actors' actions were a substantial cause of the decline of the property's value and that the state abused its powers through affirmative actions directly aimed at the property, i.e., continuing to supply each water user with corrosive and contaminated water with knowledge of the adverse consequences associated with being supplied with such water." Mays , unpub. op. at 49. Disputing the conclusion reached by the Court of Claims, defendants take specific issue with each element of plaintiffs' inverse-condemnation claim. First, defendants argue that plaintiffs have not alleged any affirmative action to support a claim of inverse condemnation because a failure to license, regulate, or supervise cannot be considered an affirmative act. It is true that "alleged misfeasance in licensing and supervising" does not constitute an affirmative action to support a claim for inverse condemnation. Attorney General v. Ankersen , 148 Mich. App. 524, 562, 385 N.W.2d 658 (1986). However, plaintiffs have not alleged any failure to regulate or supervise; instead, plaintiffs have alleged an affirmative act of switching the water source with knowledge that such a decision could result in substantial harm. Defendants' argument in this regard is unsupported, and we therefore reject it. Further, the state defendants attempt to avoid responsibility for the action of switching Flint's water source by arguing that the city defendants alone made the decision and effectuated the switch. This argument, too, is unsupported. Plaintiffs have alleged both knowledge and action on the part of the state defendants, and while it may ultimately be discovered that the state defendants were not responsible for the injury suffered by plaintiffs, this Court here considers only the propriety of judgment as a matter of law and must therefore accept all of plaintiffs' well-pleaded allegations as true. Defendants also argue that plaintiffs have not alleged that any actions taken by defendants were directly aimed at plaintiffs' property. Defendants compare the act of changing Flint's water supply to the city's affirmative act of removing adjacent residential neighborhoods and diminishing commercial owners' property values in Charles Murphy, MD, PC v. Detroit , 201 Mich. App. 54, 56, 506 N.W.2d 5 (1993). In that case, this Court held that no inverse condemnation had occurred because while the city's actions had affected the value of the plaintiffs' commercial property, the city had taken no deliberate action toward the commercial property that deprived the owners of their right to use the property as they saw fit. Id . According to defendants, the city's act of demolishing residential neighborhoods, as described in Murphy , represents a more egregious allegation of inverse condemnation than that leveled by plaintiffs here. As in Murphy , defendants argue, the government's actions merely affected plaintiffs' property. Defendants' reliance on Murphy is misplaced. This is not a situation in which plaintiffs have alleged an incidental reduction in property value resulting from some unrelated administrative action by the government. Instead, plaintiffs allege deliberate actions taken by defendants that directly led to toxic water being delivered through Flint's own water delivery system directly into plaintiffs' water heaters, bathtubs, sinks, and drinking glasses, causing actual, physical damage to plaintiffs' property and affecting plaintiffs' property rights. Finally, defendants argue that plaintiffs have not alleged a unique injury, different in kind from harm suffered by all persons similarly situated. According to defendants, plaintiffs' injury, while perhaps different in degree, is no different from the harm suffered by all property owners exposed to Flint River water during the switch. Although defendants argue that plaintiffs' injuries should be compared only to those suffered by other users of Flint River water, defendants have cited no direct authority for this assertion and, indeed, the assertion is not logically supported by the caselaw on which defendants rely. In Richards v. Washington Terminal Co. , 233 U.S. 546, 554, 34 S.Ct. 654, 58 L.Ed. 1088 (1914), an opinion that the state defendants argue supports their position, the United States Supreme Court held that the plaintiffs, residents situated near a railroad tunnel, could not state a claim of inverse condemnation for cracks in their homes caused by vibrations from nearby trains because risk of such harm, while varying in degree, is shared generally by anyone living near a train. However, as defendants acknowledge, the Court held that the plaintiffs could state a claim for inverse condemnation for damage caused by a fanning system within the tunnel that blew smoke and gases into their homes because this particular harm was suffered uniquely by the plaintiffs. Id . at 556, 34 S.Ct. 654. On review, we conclude that the Richards holding actually supports plaintiffs' contention that the harm alleged should be compared to the harm suffered by all other municipal water users, rather than compared to all other Flint water users. In Richards , the Court did not compare the plaintiffs with all owners of property near a specific train, but with all property owners, in general, who own property near any train. Similarly, in Spiek , 456 Mich. at 333-335, 572 N.W.2d 201, the plaintiffs, who were owners of residential property, alleged entitlement to compensation for damages caused to their property from dust, vibration, and fumes emanating from a newly constructed interstate expressway. The Michigan Supreme Court rejected the plaintiffs' claim because the damage to the plaintiffs' property was no different than the damage "incurred by all property owners who reside adjacent to freeways or other busy highways." Id . at 333, 572 N.W.2d 201. In Spiek , as in Richards , the Court compared the plaintiffs to all similarly situated property owners, not just the owners of residential property adjacent to the newly constructed expressway at issue in that case. It follows, therefore, that plaintiffs' injury must be compared to the harm suffered by municipal water users generally, rather than to the harm suffered by other users of Flint River water. As in Richards and Spiek , plaintiffs have alleged injuries unique among similarly situated individuals, i.e., municipal water users, caused directly by governmental actions that resulted in exposure of their property to specific harm. Defendants also suggest that because they have taken no affirmative action directly aimed at plaintiffs' property, they cannot possibly have caused plaintiffs' injuries. However, defendants' argument rests on assumptions that this Court, for the reasons discussed, declines to accept. Questions of fact still exist that, if resolved in plaintiffs' favor, support each element of plaintiffs' inverse-condemnation claim. The Court of Claims therefore did not err when it concluded that summary disposition pursuant to MCR 2.116(C)(8) was, at this stage of the proceedings, inappropriate. VII. OFFICIAL-CAPACITY CLAIMS Finally, defendants argue that the Court of Claims erred by allowing plaintiffs to proceed with official-capacity claims against the Governor and defendant emergency managers. Again, we disagree. Defendants argued in the lower court that official-capacity suits against governmental officials for constitutional violations are not recognized in Michigan and, as a matter of law, plaintiffs could not assert their constitutional tort claims against the Governor, Earley, or Ambrose. After considering defendants' argument, the Court of Claims concluded that the relevant caselaw did not preclude a nominal official-capacity constitutional tort claim against these defendants. Because this is a question of law, this Court's review is de novo. In re Jude , 228 Mich. App. 667, 670, 578 N.W.2d 704 (1998). As previously discussed, the Michigan Supreme Court held in Smith that "[a] claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases." Smith , 428 Mich. at 544, 410 N.W.2d 749. The Jones Court noted that " Smith only recognized a narrow remedy against the state on the basis of the unavailability of any other remedy," and continued, explaining that "[t]hose concerns are inapplicable in actions against a municipality or an individual defendant. Unlike states and state officials sued in an official capacity, municipalities are not protected by the Eleventh Amendment." Jones , 462 Mich. at 337. The state defendants argue that with the above-cited language, the Jones Court acknowledged that state officials have the same immunity from suit under the Eleventh Amendment that the state has when they are sued in their official-capacity-a legal "fiction" designed only "to promote the vindication of federal rights." Because the Eleventh Amendment does not apply in state courts, argue the state defendants, the term "official capacity," as employed by the Jones Court, has no parallel meaning under Michigan law. The state defendants misread Jones . We agree with the Court of Claims' observation that the Jones Court's use of the term "only" derived from the fact that it was addressing claims against municipalities and individual municipal employees, as distinguished from claims against the state or individual state officials who are afforded protection by the Eleventh Amendment. Mays , unpub. op. at 32. The Jones Court's conclusions do not preclude a constitutional tort claim against individuals. Rather, the Jones Court specifically contemplated the availability of official-capacity suits and was careful to evaluate the availability of alternative remedies against municipalities and municipal employees as "[u]nlike states and state officials sued in an official capacity ...." Jones , 462 Mich. at 337, 612 N.W.2d 423. The Court of Claims correctly observed that "a proper reading of the pertinent caselaw compels the conclusion that the remedy allowed in Smith , while narrow, extends beyond the state itself to also reach state officials acting in their official capacity." Mays , unpub. op. at 32. Indeed, the Jones Court affirmed an opinion by the Court of Appeals that made even more clear that "the Smith rationale simply does not apply outside the context of a claim that the state (or a state official sued in an official capacity) has violated individual rights protected under the Michigan Constitution." Jones v. Powell , 227 Mich. App. 662, 675, 577 N.W.2d 130 (1998). We are also unconvinced by the state defendants' argument that Michigan's statutes governing governmental liability distinguish between governmental agencies and governmental officials and do not contemplate an official-capacity suit. Michigan courts have long recognized suits against state officials in their official capacities for claims arising outside of federal law. See, e.g., Bay Mills Indian Community , 244 Mich. App. at 748-749, 626 N.W.2d 169 (2001) ; Jones v. Sherman , 243 Mich. App. 611, 612-613, 625 N.W.2d 391 (2000) ; Carlton , 215 Mich. App. at 500-501, 546 N.W.2d 671 ; Lowery v. Dep't of Corrections , 146 Mich. App. 342, 348-349, 380 N.W.2d 99 (1985) ; Abbott v. Secretary of State , 67 Mich. App. 344, 348, 240 N.W.2d 800 (1976). And Michigan law does, in fact, contemplate official-capacity suits against governmental officials. Indeed, the very provisions of the CCA on which the state defendants rely to argue that emergency managers are not state officers expressly contemplate suits against "an officer, employee, or volunteer of this state ... acting, or who reasonably believes that he or she is acting" in his or her official capacity. MCL 600.6419(7). Contrary to the state defendants' assertions, nothing in the provisions of our state's governmental liability statutes precludes an official-capacity suit, particularly one predicated on allegations of constitutional violations. The governmental immunity statutes do not apply where, as here, a plaintiff has alleged violations of the Michigan Constitution. Smith , 428 Mich. at 544, 410 N.W.2d 749 ("Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action."). The fact that no statute specifically authorizes a suit against the Governor in his official capacity is irrelevant for the same reason. The liability of the state and its officers for constitutional torts is not something the state must affirmatively grant via statute. Under Smith , [a state] defendant cannot claim immunity where the plaintiff alleges that defendant has violated its own constitution. Constitutional rights serve to restrict government conduct. These rights would never serve this purpose if the state could use governmental immunity to avoid constitutional restrictions. [ Burdette v. State , 166 Mich. App. 406, 408-409, 421 N.W.2d 185 (1988).] Liability of the state and its officers for constitutional torts is simply inherent in the fact that the Constitution binds even the state government as the preeminent law of the land. Plaintiffs have sued Governor Snyder and emergency managers Earley and Ambrose in their official capacities only, rather than as individual governmental employees. As the Court of Claims noted, " 'a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.' " Mays , unpub. op. at 33, quoting Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ; see also McDowell v. Warden of Mich. Reformatory at Ionia , 169 Mich. 332, 336, 135 N.W. 265 (1912). In other words, if plaintiffs are successful in their causes of action against the Governor, Earley, or Ambrose, plaintiffs must look to recover monetary damages from the state. Plaintiffs' official-capacity suits cannot result in individual liability. As the Court of Claims carefully noted, the Governor, Earley, and Ambrose are merely nominal party defendants, "such that the state and the state alone ... [is] accountable for any damage award that may result in this action." Mays , unpub. op. at 33-34. Official-capacity suits are not merely redundant, as city defendants suggest. Rather, official capacity suits, while directed at the state, facilitate an efficient and expedient judicial process. In order to prevail on a constitutional-violation claim against the state, plaintiffs are required to prove that the violation of their rights occurred by virtue of a state custom or policy that governmental actors carried out in the exercise of their official authority. Plaintiffs have leveled specific allegations against the Governor, Earley, and Ambrose, and these defendants' participation in the judicial process is required. It is logical, if not necessary, to name the policymakers as nominal defendants in this case. Should plaintiffs' case be tried before a jury, a clear distinction between plaintiffs' allegations against the state as a party and against the Governor, Earley, and Ambrose in their official capacities will aid the jury in understanding the precise issues involved and prevent unnecessary confusion. Given our courts' history of recognizing official-capacity suits and the Court of Claims' care in explaining that these suits are nominal only, we conclude that the Court of Claims did not err by allowing plaintiffs' official-capacity suits against the Governor and the city defendants to proceed. VIII. CONCLUSION In sum, we hold that the Court of Claims did not err when it denied defendants' motion for summary disposition of plaintiffs' constitutional injury-to-bodily-integrity and inverse-condemnation claims. Questions of fact remain that, if resolved in plaintiffs' favor, could establish each of these claims and plaintiffs' compliance with, or relief from, the statutory notice requirements of the CCA. Further, for the reasons described, the Court of Claims did not err when it allowed plaintiffs to proceed with their claims against the Governor, Earley, Ambrose, and all other defendants in the Court of Claims, or when it granted summary disposition in favor of defendants on plaintiffs' constitutional claim for injury to bodily integrity. Affirmed. Fort Hood, J., concurred with Jansen, P.J. See Dalley v. Dykema Gossett PLLC , 287 Mich. App. 296, 304-305, 788 N.W.2d 679 (2010) (explaining that in deciding a motion under MCR 2.116(C)(8), this Court must accept the allegations as true and construe them in a light most favorable to the nonmoving party); Willett v. Waterford Charter Twp. , 271 Mich. App. 38, 45, 718 N.W.2d 386 (2006) (noting that when deciding a motion under MCR 2.116(C)(7), "all well-pleaded allegations must be accepted as true and construed in favor of the nonmoving party," unless contradicted by the submitted evidence) (quotation marks and citation omitted); Cork v. Applebee's of Mich., Inc. , 239 Mich. App. 311, 315, 608 N.W.2d 62 (2000) (explaining that genuine issues of material fact regarding a court's subject-matter jurisdiction preclude summary disposition under MCR 2.116(C)(4) ). On appeal, plaintiffs take no issue with the Court of Claims' dismissal of their claim for violation of the Fair and Just Treatment Clause. The Legislature imported this definition of claim accrual into the CCA under MCL 600.6452(2), which states that "[e]xcept as modified by this section, the provisions of [Revised Judicature Act] chapter 58, [MCL 600.5801 et seq.,] relative to the limitation of actions, shall also be applicable to the limitation prescribed in this section." Defendants argue that the Court of Claims erred by relying "only" on hypothetical claims of putative class members to find remaining issues of fact. It is true that a plaintiff who has not suffered an injury "cannot maintain the cause of action as an individual [and] is not qualified to represent [a] proposed class." Doe v. Henry Ford Health Sys. , 308 Mich. App. 592, 604, 865 N.W.2d 915 (2014) (quotation marks and citation omitted). However, the issue of class certification has not yet been raised, and in any case, defendants' argument is not supported by the record. The Court of Claims fully considered plaintiffs' complaint and cited specific allegations by plaintiffs in this case before concluding that questions of fact remained regarding plaintiffs' ability to establish claims accruing later than the date of the water switch. The Court of Claims did not err by recognizing that plaintiffs' complaint alleges multiple harms resulting from distinct tortious acts rather than a continuing harm resulting from the single tortious act of switching the water source. For purposes of accrual, each of plaintiffs' individual causes of action must be considered separately. See Joliet v. Pitoniak , 475 Mich. 30, 42, 715 N.W.2d 60 (2006). The Due Process Clause of the Michigan Constitution proscribes specific conduct and sets forth "a sufficient rule by means of which the right which it grants may be enjoyed and protected" and is therefore self-executing. See Rusha , 307 Mich. App. at 309, 859 N.W.2d 735 (quotation marks and citation omitted); see also Santiago v. New York State Dep't of Correctional Servs. , 945 F.2d 25, 27 (C.A.2, 1991) (considering the coextensive clause of the United States Constitution and opining that the substantive provisions of the Fourteenth Amendment are self-executing in nature). Indeed, the presumption is that all provisions of the Constitution, unless drafted only to reflect mere general principles, are self-executing. Detroit v. Oakland Circuit Judge , 237 Mich. 446, 450, 212 N.W. 207 (1927). Because we find no conflict between Rusha and the earlier Michigan Supreme Court cases cited by defendants here, we decline defendants' request to convene a conflict panel under MCR 7.215(J). The state defendants direct this Court's attention to Bacon v. Michigan , unpublished opinion of the Court of Claims, issued June 7, 2017 (Docket No. 16-000312-MM), in which the court suggested in a footnote that "defendants appear correct in their argument that the statement [from Rusha recognizing a harsh-and-unreasonable-consequences exception] is no longer a valid statement of the law as it pertains to statutes of limitations...." Id . at 8 n. 5. The Court of Claims correctly noted that in Curtin v. Dep't of State Highways , 127 Mich. App. 160, 339 N.W.2d 7 (1983), the case cited by Rusha , the Court relied for this language on a now-abrogated opinion, Reich v. State Highway Dep't , 386 Mich. 617, 194 N.W.2d 700 (1972), abrogated by Rowland , 477 Mich. at 206-207, 731 N.W.2d 41, for this language. Bacon , unpub op. at 8 n. 5. However, the Court of Claims incorrectly concluded that because Curtin cited bad caselaw, the principle announced in Rusha is "no longer ... valid." Id. Our courts have recognized a harsh-and-unreasonable-consequences exception to the Legislature's statute of limitations in various lines of cases that have not been overruled. Most recently, this Court affirmed the application of the exception in Genesee Co. Drain Comm'r v. Genesee Co. , 309 Mich. App. 317, 332-333, 869 N.W.2d 635 (2015), with the same language employed by the Court in Rusha . Rusha 's detailed discussion of the exception and its application to the statutory notice period remains valid despite the citation error. We note that the Michigan Supreme Court denied leave to appeal the Rusha decision. Rusha v. Dep't of Corrections , 498 Mich. 860, 865 N.W.2d 28 (2015). We flatly reject defendants' contention that the burden on plaintiffs to file statutory notice within six months of the water switch would have been "minimal" because plaintiffs only needed to know that a claim was possible, not that a claim was fully supported, in order to provide timely notice. Defendants assume that plaintiffs had any knowledge of a possible claim during the period when, as plaintiffs allege, defendants were actively concealing information that a claim had accrued and the notice period had begun. If plaintiffs' allegations are proved true, filing notice within six months after the physical water switch would have placed more than a "minimal" burden on plaintiffs and their counsel. Indeed, it would have required clairvoyant recognition of circumstances that the state was working to convince the public did not actually exist. We reject defendants' contention that to find a conflict between MCL 600.5855 and MCL 600.6431 one must "wrongly assume[ ] that a notice of intent is the same as a legal complaint." It is true that a claimant requires only minimal information to file a notice of intent and that the knowledge required distinguishes a notice of intent from a legal complaint. However, a claimant that can satisfy the fraudulent-concealment exception will have no knowledge of the potential claim prior to the date he or she discovers or should reasonably be expected to discover it. It is simply nonsensical to argue that a claimant may satisfy the notice requirement and still claim the benefit of the fraudulent-concealment tolling provision. We recognize that this Court, in two unpublished opinions, has declined to import the fraudulent-concealment provision into MCL 600.6431. See Brewer v. Central Mich. Univ. Bd. of Trustees , unpublished per curiam opinion of the Court of Appeals, issued November 21, 2013 (Docket No. 312374) ; Zelek v. State of Michigan , unpublished per curiam opinion of the Court of Appeals, issued October 16, 2012 (Docket No. 305191). These opinions are not binding on this Court. MCR 7.215(C)(1). Additionally, in both Brewer and Zelek , the panel's conclusion that the fraudulent-concealment exception did not apply to toll the statutory notice period was reached without recognition that the Legislature specifically imported the fraudulent-concealment exception into the statute-of-limitations provision of the CCA and without consideration of the practical conflict created when the fraudulent-concealment exception is applied to the statutory limitations period without also being applied to the statutory notice period. Because both cases also involved strikingly dissimilar factual situations, we find them unpersuasive. In the lower court and in this Court on appeal, the city defendants argue that in their official capacities as emergency managers, they were state officers subject to the jurisdiction of the Court of Claims under MCL 600.6419. However, state defendants argued in the lower court, and argue again on appeal, that the Court of Claims lacks subject-matter jurisdiction over plaintiffs' claims against Earley and Ambrose because neither, in his official capacity, was a state officer. Although neither the state defendants nor the city defendants raises the issue of standing on appeal, we note that because an official-capacity suit against city defendants is, for practical purposes, a suit against the state, Carlton v. Dep't of Corrections , 215 Mich. App. 490, 500-501, 546 N.W.2d 671 (1996), the state defendants have a significant interest in the outcome of plaintiffs' case. 2012 PA 436 created the Local Financial Stability and Choice Act, MCL 141.1541 et seq. Neither the Court of Claims opinion in this case nor the quoted opinion is binding on this Court. However, we adopt the court's accurate summary of the law as stated. The state defendants argue that this Court should find persuasive a recent opinion, Gulla v. Snyder , unpublished opinion of the Court of Claims, issued August 16, 2017 (Docket No. 16-000298-MZ), in which the Court of Claims judge concluded that emergency managers are not state officers for purposes of the CCA. This Court is not bound to follow the opinion of the Court of Claims, which directly conflicts with the Court of Claims opinion at issue here. Further, we note that the Court of Claims judge who considered the issue in Gulla had analyzed the issue according to the provisions of 2012 PA 436 rather than the jurisdictional provision of the CCA-an erroneous approach this Court, as discussed in this opinion, specifically disavows. Defendants ask this Court to rely on an extrajurisdictional opinion, Coshow v. City of Escondido, 132 Cal. App. 4th 687, 709-710, 34 Cal.Rptr.3d 19 (2005), as support for the conclusion that plaintiffs' right to bodily integrity is not implicated in the context of public drinking water because the Due Process Clause does not guarantee a right to contaminant-free drinking water. While the California court noted that "the right to bodily integrity is not coextensive with the right to be free from the introduction of an allegedly contaminated substance in the public drinking water," id . at 709, 34 Cal.Rptr.3d 19, it did not hold that the introduction of contaminated substances could never form the basis of a claim for an injury to bodily integrity. Additionally, this Court finds Coshow unpersuasive as factually dissimilar. The alleged "contaminant" in that case was fluoride, which is frequently introduced into water systems. Coshow did not address whether substantive due-process protections might be implicated in the case of intentional introduction of known contaminants by governmental officials, and its reasoning is inapplicable here. MCL 141.1560(1) of the Local Financial Stability and Choice Act, MCL 141.1541 et seq., specifically grants emergency managers immunity from liability as provided in MCL 691.1407, which grants complete immunity to "the elective or highest appointive executive official of all levels of government ...." The state defendants instruct this Court to "see" MCL 691.1407(1), (2), and (5), provisions of the GTLA, but provide nothing in the way of argument supporting their conclusory assertion that the GTLA "in no way contemplate[s] an 'official capacity' claim." "It is not sufficient for a party simply to announce a position ... and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments ...." Wilson v. Taylor , 457 Mich. 232, 243, 577 N.W.2d 100 (1998) (quotation marks and citation omitted). In any case, the state defendants' argument that the GTLA precludes official-capacity suits is belied by an immediately adjacent provision of the GTLA, which specifically contemplates causes of action "against an officer, employee, or volunteer of a governmental agency for injuries to persons or property ...." MCL 691.1408(1).

On order of the Chief Justice, the motion of the Legal Services Association of Michigan and the Michigan State Planning Body for Legal Services to file a brief amicus curiae is GRANTED. The amicus brief will be accepted for filing if submitted on or before September 14, 2018.

On order of the Chief Justice, the motion of appellee Association of Businesses Advocating Tariff Equity to extend the time for filing its answer is GRANTED. The answer will be accepted as timely filed if submitted on or before October 5, 2018.

On order of the Chief Justice, the motion of appellee Association of Businesses Advocating Tariff Equity to extend the time for filing its answer is GRANTED. The answer will be accepted as timely filed if submitted on or before October 5, 2018.