Opinion
No. 330417
02-21-2017
In re WOOD. CALLIE ANNE HUGHES, Personal Representative of the ESTATE OF SUZETTE WOOD, Plaintiff-Appellant, v. 82ND DISTRICT COURT JUDGE, Defendant-Appellee.
UNPUBLISHED Roscommon Circuit Court
LC No. 15-722643-AS Before: HOEKSTRA, P.J., and SAAD and RIORDAN, JJ. PER CURIAM.
The present case is an appeal from a circuit court order, which denied a request for superintending control over the district court, denied plaintiff's motion for summary disposition, and granted summary disposition to defendant. Because the circuit court did not abuse its discretion by refusing to exercise superintending control, we affirm.
The request for superintending control arises from a district court ruling allowing for alternate service by newspaper publication in a debt collection case. In particular, in district court, Midland Funding LLC filed two complaints against Suzette Wood, and attempted personal service on Wood on three separate occasions. See MCR 2.105(A)(1). Midland Funding, LLC did not attempt service by registered or certified mail. See MCR 2.105(A)(2). Instead, when personal service proved unsuccessful, Midland Funding LLC obtained orders from 82nd District Court Judge Richard E. Noble, allowing for alternate service, which was to include first-class mail and newspaper publication. See MCR 2.105(I). Notably, in the district court case, Wood filed ex parte motions to vacate the alternate service orders. The district court granted the relief sought by Wood. The district court entered orders vacating the alternate service orders, and Midland Funding LLC was ordered to cease newspaper publication.
Wood is now deceased, and Callie Anne Hughes, the representative of Wood's estate, has been substituted as a party. For continuity and ease of discussion, we will refer to Wood throughout this opinion.
Our review on appeal is of the circuit court record, which contains portions of the district court record, including the district court orders granting the relief requested by Wood. While we do not have the entire district court record, it is clear—indeed it is undisputed—that the district court granted Wood's request for relief and vacated its earlier orders allowing for alternate service.
Nevertheless, Wood filed a complaint for superintending control in the circuit court, naming Judge Noble as the defendant. Substantively, Wood contended that a court may only exercise its discretion under MCR 2.105(I) to allow alternate methods of service on an individual defendant when the plaintiff has made a showing that both service by delivery, MCR 2.105(A)(1), and service by registered or certified mail, MCR 2.105(A)(2), cannot be reasonably made. According to Wood's complaint for superintending control, the 82nd District Court "has established a continuing practice of issuing orders for alternate service of process on individuals in violation" of the rules for service and alternate service set forth in MCR 2.105. Wood requested that the circuit court exercise superintending control over the district court to enjoin the district court from issuing orders for alternative service absent a showing that both types of service identified in MCR 2.105(A) could not be reasonably made.
Wood moved for summary disposition in the circuit court under MCR 2.116(C)(10), and, in response, Judge Noble asserted that he was entitled to summary disposition under MCR 2.116(I)(2). The circuit court held a hearing on the parties' requests for summary disposition. At the hearing, the trial court did not reach the substantive merits of Wood's argument. Instead, the circuit court determined that superintending control was not appropriate because Wood had already obtained the relief she sought in district court and, on the facts of this case, she could not proceed on behalf of other similarly situated individuals. The circuit court explained:
Ms. Wood, went to the district court, said you can't serve it this way. Whether that is correct or not correct, that seems to be a question, but it's not for us to decide.For these reasons, the circuit court denied Wood's request for superintending control, denied Wood's motion for summary disposition, and granted summary disposition to Judge Noble. Wood now appeals to this Court as of right.
What is important is that she went to the district court; the district court said, "Okay. We'll quash it." And they quashed it. That's her remedy.
It's - - you can't list another series of cases for clients you don't represent without those clients being - - first of all, we don't know what their factual situation was. We - - we don't know what's involved in that. But more importantly, you - - this isn't a class action. It is not appropriate to issue a writ of superintending control in this case.
On appeal, Wood argues that the circuit court abused its discretion by denying her request for superintending control. Wood acknowledges that the district court vacated the orders giving rise to Wood's complaint for superintending control. Nonetheless, Wood contends that a live controversy remains—and that she is a proper party to pursue superintending control—because the district court's conduct with regard to allowing alternate service by publication constitutes a "general practice" of the district over which the circuit court may exercise superintending control, even if Wood has obtained a remedy. In other words, Wood maintains that, although she has obtained relief, there exists a class of individuals who have been harmed, and who will continue to be harmed, by the district court's general practices regarding alternate service unless she is allowed to pursue superintending control.
This Court reviews a grant or denial of summary disposition de novo. The Cadle Co v Kentwood, 285 Mich App 240, 246; 776 NW2d 145 (2009). In comparison, the denial of a petition for superintending control is reviewed for an abuse of discretion. Id. "An abuse of discretion occurs when the court's decision falls outside the range of reasonable and principled outcomes." Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 273; 761 NW2d 761 (2008). "A court does not abuse its discretion in refusing to grant a writ of superintending control where the party seeking the writ fails to establish grounds for granting a writ." The Cadle Co, 285 Mich App at 246.
The circuit court has superintending control over lower courts. Pub Health Dep't v Rivergate Manor, 452 Mich 495, 500; 550 NW2d 515 (1996); MCL 600.615; MCR 3.302. "The filing of a complaint for superintending control is not an appeal, but, rather, is an original civil action designed to order a lower court to perform a legal duty." Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 346-347; 675 NW2d 271 (2003). A plaintiff seeking an order of superintending control bears the burden of establishing the grounds for issuing the order. In re Gosnell, 234 Mich App 326, 342; 594 NW2d 90 (1999). "Superintending control is an extraordinary remedy generally limited to determining whether a lower court exceeded its jurisdiction, acted in a manner inconsistent with its jurisdiction, or failed to proceed according to law." In re Credit Acceptance Corp, 273 Mich App 594, 598; 733 NW2d 65 (2007). "For superintending control to lie, the plaintiff must establish that the defendant has failed to perform a clear legal duty and that plaintiff is otherwise without an adequate legal remedy." Id.
In this case, Wood has not met her burden of establishing the need for superintending control. To the contrary, the undisputed facts demonstrate there was a clear remedy available to Wood insofar as she was able to seek relief from the alternate service order by filing a motion to vacate those orders in the district court. See generally Fieger v Cox, 274 Mich App 449, 459; 734 NW2d 602 (2007) ("[I]f a litigant wishes to challenge a ruling by a court, the appropriate remedy is to seek a rehearing of the decision or file an appeal."). Wood in fact availed herself of this available remedy, and she obtained a favorable ruling from the district court. As a result, when she sought superintending control, the district court order which formed the basis for her complaint had already been vacated. In such circumstances, even if the district court's initial order was in error, a complaint for superintending control cannot lie because Wood has not shown that she was without an adequate legal remedy. See In re Credit Acceptance Corp, 273 Mich App at 598. Indeed, given that Wood has already received relief from the district court, her claims are moot, and the circuit court reasonably declined to consider this moot request for superintending control. See Intl Union, United Auto, Aerospace & Agr Implement Workers of Am-UAW v O'Rourke, 388 Mich 578, 582; 202 NW2d 290 (1972); Boyce v Bay Circuit Judge, 274 Mich 575, 576; 265 NW 469 (1936). See also In re Gerald L Pollack Trust, 309 Mich App 125, 154; 867 NW2d 884 (2015).
In contrast to this conclusion, Wood asserts that she should be able to maintain her action for superintending control because there are other individuals who have been, or who will be, harmed by the district court's general practice of improperly allowing for alternate service by publication. It is true that, in certain circumstances, a circuit court may exercise its discretion to exercise superintending control to review the "general practices of an inferior court" even though an individual litigant may have a legal remedy available and even when the litigant's claims might otherwise appear moot. See In re Lafayette Towers, 200 Mich App 269, 271-272; 503 NW2d 740 (1993); Smith v Common Pleas Court of Detroit, 106 Mich App 621, 623; 308 NW2d 586 (1981). Such review of general practices is appropriate when, for example, the issue is "of public significance and is likely to recur in the future, yet evade review," In re Lafayette Towers, 200 Mich App at 271 (citation omitted); or when there are a multitude of similar cases and to seek relief in each case "would be too time-consuming and burdensome" to be called an adequate remedy for the class of cases as a whole, Detroit v Recorder's Court Judge, 85 Mich App 284, 289; 271 NW2d 202 (1978); Cahill v Thomassen, 393 Mich 137, 143; 224 NW2d 24 (1974). However, to merit superintending control based on the assertion of a "general practice" or continuing conduct of a lower court, the various cases involved must "present a common, legal and factual situation." Detroit, 85 Mich App at 289. Moreover, bearing in mind that the circuit court's review is for an error in the lower court record, Drouillard v City of Roseville, 9 Mich App 239, 243; 156 NW2d 628 (1967), the plaintiff seeking superintending control must present the circuit court with reviewable evidence to establish the existence of a "general practice" common to the various cases. See In re Gosnell, 234 Mich App at 342.
In this case, Wood alleges that Judge Noble has engaged, and continues to engage, in an incorrect general practice with regard to allowing alternate service by publication in newspapers without the showing required by MCR 2.105(I). However, the only evidence of such purported error relates to Wood in particular and, as discussed, the district court in fact granted Wood her requested relief, alleviating any conceivable error. This one alleged instance of error—which was later corrected—does not establish that Judge Noble has engaged in a general or continuing practice of allowing for alternate service by publication without the showing required by MCR 2.105(I). Further, as noted by the circuit court, the present case is not a class action. There are no other plaintiffs and no other district court records were put before the circuit court for review. At most, Wood provided the circuit court with several district court case numbers and claimed that those cases were similar to the situation in Wood's case. But, these bare assertions were not substantiated with evidence relating to these other cases. Cf. In re Gosnell, 234 Mich App at 342-343. An action for superintending control must be supported by the record, and it was Wood's burden to establish the grounds necessitating superintending control by the circuit court. In re Rupert, 205 Mich App 474, 478; 517 NW2d 794 (1994). In the absence of proof demonstrating an improper general practice by Judge Noble, Wood has not met this burden and the circuit court did not abuse its discretion by denying her request for superintending control. See In re Gosnell, 234 Mich App at 342-343.
On appeal, Wood attempts to expand the lower court record by supplying this Court with additional documentation relating to alternate service in other district court cases before Judge Noble. However, such documents are not properly before us because appellate review is limited to "the evidence that had been presented to the circuit court at the time the motion was decided." Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009). "[A] party may not expand the record on appeal." Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). Having failed to present these materials to the circuit court in relation to the parties' motions for summary disposition, Wood cannot now rely on these materials on appeal. See Maiden v Rozwood, 461 Mich 109, 126 n 9; 597 NW2d 817 (1999).
Given the lack of evidentiary support for Wood's claims, we find it unnecessary to decide whether Wood's complaint should have been filed as a class action, cf. Cahill, 393 Mich at 143, or whether, given Wood's lack of injury, Wood had standing to pursue superintending control to obtain relief for others. See generally Barclae v Zarb, 300 Mich App 455, 483; 834 NW2d 100 (2013) ("A plaintiff must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties."); Beer v City of Fraser Civil Serv Com'n, 127 Mich App 239, 243; 338 NW2d 197 (1983) ("A party lacks standing to bring a complaint for superintending control where plaintiff has shown no facts whereby it was injured."). --------
Affirmed.
/s/ Joel P. Hoekstra
/s/ Henry William Saad
/s/ Michael J. Riordan