Opinion
Docket Nos. 49097, 49098.
Decided September 16, 1980.
Yuille, Zeleznik, Plourde Russell, P.C., for plaintiff.
Donovan Anderson, P.C., for defendants.
Defendants appeal from an order of the lower court forfeiting the $20,000 bond that had been posted to assure compliance with a consent judgment. Defendants complain that they were deprived of either an evidentiary hearing or jury trial on the issue of whether compliance had taken place.
In 1975, defendant The Stolaruk Corporation was given permission by plaintiff's board of zoning appeals to mine gravel in contravention of plaintiff's zoning ordinance. The permission was conditioned on Stolaruk's promise to conclude the mining and restore the property involved by the summer of 1978. On May 17, 1978, the deadline was extended, at Stolaruk's request, to December 1, 1978. When the mining continued beyond that date, plaintiff sought injunctive relief in the Oakland County Circuit Court. A consent judgment was entered into on February 16, 1979, providing that all work and restoration was to be completed by July 1, 1979, and that Stolaruk's failure to comply would result in automatic forfeiture of the $20,000 bond. On September 11, 1979, the circuit court entered a delayed order extending the completion date to September 7, 1979.
The lower court issued a show cause order on October 19, 1979, requiring defendants to demonstrate why the bond should not be forfeited. The order was not preceded by either a written motion or supportive affidavits. Although no evidence was introduced at the October 24, 1979, hearing, the lower court concluded "as a matter of law" that the consent judgment had not been complied with. Plaintiff contends on appeal that photographs proving noncompliance were shown to the court in chambers and attaches those photos, as well as the affidavit of the photographer, to its brief. Because the materials were not made a part of the record below, we will not consider them with regard to this appeal. Philips Industries, Inc v Smith, 90 Mich. App. 237, 249-250; 282 N.W.2d 788 (1979).
The entire transcript of the show cause hearing reads:
"The Clerk: Add 1, Independence Township versus Stolaruk, number 181655.
"Mr. Zeleznik [Attorney for plaintiff]: This is brought on before this Court as a motion to show cause why the bond as posted in the above-entitled two matters should not be forfeited. Upon discussion of these matters with the Court and with Counsel, I understand that the bond will be forfeited as prayed for.
"Mr. Donovan [Attorney for defendants]: My name is William Donovan appearing on behalf of Seaboard Insurance Company and The Stolaruk Corporation. In both cases, which have been consolidated, I'd like the record to reflect that I have demanded a jury trial. It is our position it is a factual question as to whether or not the requirements of the order have been complied with and in addition to that, the township ordinance does not permit a complete forfeiture of bond. It permits a — Any forfeiture of the bond can only be used according to the ordinance 59 of the township for restoration purposes and the only order that's entered should provide that the bond is not forfeited, but that the bond funds may be used, or have to be used only for restoration purposes and that in [sic] the restoration is done, then the bond money, any bond money that's turned over is to be, is to be returned to Stolaruk Corporation and in the form of a refund. And that — But the primary thing I want on the record is that we should be entitled to our jury trial.
"The Court: Well, we already made a finding that as a matter of law it's obvious it had not been complied with and the order could read the bond is forfeited in accordance with the township ordinance covered it with respect to the use to be put to it, and then they charge —
"Mr. Zeleznik: I'll put that language in the order and bring it up this afternoon."
Forfeiture of the bond was contingent on the resolution of a factual issue — whether Stolaruk had complied with the modified consent judgment by concluding operations by September 7, 1979. The lower court erred in ruling on the matter as a question of law. GCR 1963, 525 provides that judgment of liability on a bond may be entered "on motion and a showing that the condition has occurred giving rise to liability on the bond". Although the proceedings below consisted of a show cause hearing, the law requires that when liability on a bond is alleged due to the breach of a condition, the burden is on the party claiming liability to prove that the breach has occurred. Young v Stephens, 9 Mich. 500, 503-504 (1862). Since no evidence was entered at the hearing, it is plain that this burden has not been met and that reversal is mandated.
Defendants' contention that a jury trial is in order is without merit. Historically, the right to trial by jury is a fundamental one and is preserved by our state constitution. Const 1963, art 1, § 14. However, the court rules provide for more summary disposition in proceedings on bonds that are ancillary to other actions. GCR 1963, 525, 763. Determination of compliance with the consent judgment is necessarily a matter for the trial court and not an issue to be presented to a jury.
Reversed and remanded for further proceedings.