S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MICHIGAN EMPLOYMENT SECURITY UNPUBLISHED
COMMISSION, September 28, 1999
Plaintiff-Appellee,
v No. 210592
Saginaw Circuit Court
PARK LANE MANAGEMENT, INC., LC No. 96-016314 CZ
Defendant-Appellant.
Before: Talbot, P.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
Defendant appeals by right an order of judgment in favor of plaintiff entered following a bench
trial. Defendant challenges the trial court's ruling that plaintiff was entitled to collect $23,698.02 in
disputed employment taxes. We affirm.
I
Defendant first argues that the trial court abused its discretion by refusing to permit defendant to
present testimonial evidence to establish that it had not acquired one hundred percent of its predecessor
company's Michigan assets. We review the trial court's decision to admit or exclude evidence for an
abuse of discretion, Chmielewski v Xermac, Inc, 457 Mich 593, 614; 580 NW2d 817 (1998), and
we review de novo the court's application of the doctrine of res judicata, Phinisee v Rogers, 229 Mich
App 547, 551-552; 582 NW2d 852 (1998).
The doctrines of res judicata and collateral estoppel may prelude relitigation of MESC
administrative decisions that are adjudicatory in nature. Roman Cleanser Co v Murphy, 386 Mich
698, 700, 703-704 n 5; 194 NW2d 704 (1972); Senior Accountants, Analysts and Appraisers
Ass'n v City of Detroit, 399 Mich 449, 457-458; 249 NW2d 121 (1976). Defendant provided the
information upon which the MESC was able to determine that defendant had acquired one hundred
percent of its predecessor's Michigan assets.1 Having made that factual determination, the MESC
applied the law to that factual determination and ruled that defendant was subject to employment
compensation taxes at the ten percent rate for existing companies. The trial court found that the MESC
-1-
sent defendant a notice of the successorship determination; the notice alerted defendant that it had thirty
days to appeal the determination. Defendant's failure to timely appeal the MESC determination of
successorship rendered that determination res judicata to any subsequent challenges. Roman Cleanser
Co, supra. Therefore, the trial court correctly ruled that plaintiff could rely on this determination and
that defendant was precluded from relitigating the successorship determination.
II
Defendant also contends that plaintiff failed to demonstrate that the notice of successorship and
the yearly tax rate notices were mailed and received. The trial court determined that the notices were
mailed and further found no credible evidence that they were not received. We review the trial court's
factual findings for clear error. Traxler v Ford Motor Co, 227 Mich App 276, 282; 576 NW2d 398
(1998). A finding of fact is clearly erroneous when, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made. Id
Plaintiff relied on the "mailbox rule" to prove that defendant received the notice of
successorship and the yearly tax rate notices. In Stacey v Sankovich, 19 Mich App 688, 694; 173
NW2d 225 (1969), this Court stated that "[t]he proper addressing and mailing of a letter creates a legal
presumption that it was received. This presumption may be rebutted by evidence, but whether it was is
a question for the trier of fact." This presumption is not legally conclusive but rather is a factual
inference that arises because it is reasonable to assume that postal officials will do their duty to deliver
the mail. Rosenthal v Walker, 111 US 185, 193-194; 4 S Ct 382; 28 L Ed 395 (1884). When
evidence that letters were never received is presented, a question arises for the trier of fact to resolve,
and the presumption then must be weighed in light of all the other evidence. Id .; State ex rel Flores v
State, 183 Wis 2d 587, 612-613; 516 NW2d 362, 370 (Wis, 1994); Insurance Placements, Inc v
Utica Mutual Ins Co, 917 SW2d 592, 595 (Mo Ct App, 1996). Whether the presumption has been
rebutted is a question of fact for the trial court. Glasser v Glasser, 64 Cal App 4th 1004, 1010-1011
(1998). Citing Stacey, supra, this Court in Crawford v Michigan, 208 Mich App 117, 121; 527
NW2d 30 (1994), agreed that "there is authority for the presumption that items properly addressed and
placed in the mail reach their destination."
Plaintiff presented testimony and evidence to show that it mailed to defendant the notice of
successorship on May 17, 1993. Further testimony and evidence indicated that the revised ten percent
yearly rate notices, were mailed on May 18, 1993, February 14, 1994, and January 30, 1995. A
comparison of the address on the back of the notice of successorship and the address listed on the rate
notices, with the address on the employer's quarterly contribution reports filed by defendant, indicates
that plaintiff used the proper address for all the notices. Defendant's witness testified that he reviewed
the mail and did not see the notice of successorship or the rate notices; however, he also admitted that a
secretary opened and distributed the mail and that she sent tax-related documents to the firm that
prepared defendant's taxes.
Plaintiff also presented testimony concerning the MESC's normal mailing procedures and
introduced into evidence a copy of the notice of successorship and printed computer data showing that
the yearly rate notices had been mailed. Plaintiff's witness testified that the MESC mailed out over
200,000 notices each year. Where the volume of mail processed by the party seeking to utilize the
presumption is very large, "so that direct proof that a particular letter was mailed is impractical or not
feasible, evidence of the settled custom and usage of the sender in the regular and systematic transaction
of its business may be sufficient to give rise to a presumption of receipt by the addressee." Insurance
Placements, Inc, supra at 595-596. Plaintiff presented sufficient evidence to give rise to the common-
law presumption that defendant received the mailed documents.
To counter this presumption, as noted above, defendant presented only the testimony of a vice-
president who stated that he reviewed some of the mail received by defendant, but who also admitted
that a secretary received and distributed the mail. The secretary then forwarded tax-related items to the
firm that handled defendant's tax preparation and general payroll matters. This evidence and counter-
evidence, created an issue to be resolved by the trier of fact. State ex rel Flores, supra at 370;
Insurance Placements, Inc, supra at 595. The trial court, having considered this testimony and
evidence, and being in the best position to evaluate the credibility of the witnesses, Lumley v Univ of
Michigan Bd of Regents, 215 Mich App 125, 135; 544 NW2d 692 (1996), properly determined that
plaintiff mailed the notice of successorship and the rate notices and that defendant received them.
Defendant failed to demonstrate that the trial court clearly erred in making that determination.
Defendant contends that computer printouts that were admitted in lieu of copies of the yearly tax
rate notices were insufficient to establish that actual rate notices were mailed. MRE 1002 requires that
to prove the contents of a writing, the original must be admitted, except as the rules otherwise provide.
The exceptions to that rule include where the original is lost or destroyed MRE 1004(1). Because
plaintiff did not keep a copy of the original rate notices that were mailed out, and defendant claimed that
it had not received the rate notices, the original documents were effectively lost or destroyed. MRE
1001(3) provides in relevant part, however, that "[i]f data are stored in a computer or similar device,
any printout or other output readable by sight, shown to reflect the data accurately, is an `original.'"
Furthermore, MRE 803(6) provides that data compilations are not excluded from evidence by the
hearsay rule if they are "made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the . . . data compilation." Plaintiff's computer-generated
listings were not hearsay because plaintiff generated these data compilations in the course of its regularly
conducted business.
Plaintiff's regularly conducted business includes the mailing of some 200,000 rate determinations
and payment notices each year, which is accomplished by accumulating and maintaining a computer
database of information from which the notices are generated and mailed out. The raw data listings,
complied from the computer data, were admitted into evidence. The documents were therefore
sufficiently qualified as originals to be admitted into evidence in lieu of the actual yearly rate notices that
were mailed.
Finally, we reject defendant's contention that because tax rate notices are involved a higher
standard of proof of mailing should be imposed. Defendant cites no authority in support of this claim, so
it should not be considered. "[A] mere statement of position is insufficient to bring an issue before this
Court." Meagher v Wayne State Univ, 222 Mich App 700, 718; 565 NW2d 401 (1997). In any
event, this contention is meritless because the Legislature has not seen fit to require that plaintiff mail rate
notices by certified mail or that it maintain a proof of service as evidence that a notice was mailed. We
decline defendant's offer to impose these new mandates on plaintiff.
We affirm.
/s/ Michael J. Talbot
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
1 Defendant's vice-president testified that the woman whose name appeared on the successorship
document forwarded to plaintiff was not employed by and had no relationship with defendant. He later
testified that she was a secretary (even though the successorship document identified her as an
"administrative assistant"), and she would have had no knowledge concerning defendant's ownership of
various interests.