Summary
In Lamkin v Hamburg Twp Bd of Trustees, 318 Mich.App. 546, 549-551, 899 N.W.2d 408 (2017), this Court concluded that the circuit court's sua sponte grant of summary disposition resulted in a due process violation.
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No. 328836
01-19-2017
Mary Ann LAMKIN, Plaintiff–appellant, v. HAMBURG TOWNSHIP BOARD OF TRUSTEES And Hamburg Township Zoning Administrator, Defendants–appellees.
Mary Ann Lamkin in propria persona. Matecun, Thomas & Olson, PLC (by Daniel W. Mabis ), East Lansing, for defendants.
Mary Ann Lamkin in propria persona.
Matecun, Thomas & Olson, PLC (by Daniel W. Mabis ), East Lansing, for defendants.
Before: Ronayne Krause, P.J., and O'Connell and Gleicher, JJ.
Gleicher, J.Plaintiff, Mary Ann Lamkin, is a resident of Hamburg Township in Livingston County. Acting in propria persona , she filed a complaint in the circuit court, alleging that the Hamburg Township zoning administrator and the Hamburg Township Board of Trustees unlawfully failed to pursue a zoning violation action against one of her neighbors. Lamkin claims the neighbor unlawfully operates an industrial business involving sealcoating on property zoned as waterfront-residential. She seeks an order of mandamus or, alternatively, orders of superintending control or to show cause.
Six days after Lamkin filed her complaint and before it was served, the circuit court sua sponte dismissed it, invoking MCR 2.116(C)(5) ("[t]he party asserting the claim lacks the legal capacity to sue"), and MCR 2.116(I)(1), which permits a court to render summary disposition on the pleadings. In a written opinion and order, the circuit court explained that Lamkin "lacks standing to assert the claims alleged in the Complaint" as she "failed to establish that [the neighbor's conduct] results in special damages not common to other property owners similarly situated." The court opined that "[b]ecause Plaintiff lacks standing to assert the claims in her Complaint, this Court is not required to afford Plaintiff notice or an opportunity to be heard, and summary dismissal is appropriate under MCR 2.116(I)(1) and MCR 2.116(C)(5)."
We agree that Lamkin's complaint lacks any allegations of special damages. We cannot agree that the circuit court was entitled to dismiss the complaint without affording Lamkin notice and an opportunity to be heard. Further, dismissal on the pleadings was inappropriate under MCR 2.112(A)(1)(a).
We begin with the process that Lamkin and every other litigant is due. MCR 2.116(I)(1) states:
If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.
In Al–Maliki v. LaGrant , 286 Mich.App. 483, 489, 781 N.W.2d 853 (2009), this Court recognized that under MCR 2.116(I)(1), "the trial court has the authority to grant summary disposition sua sponte...." We emphasized, however, that "the trial court may not do so in contravention of a party's due process rights." Al–Maliki , 286 Mich.App. at 489, 781 N.W.2d 853.
"[T]here can be no question that, at a minimum, due process of law requires that deprivation of life, liberty, or property by adjudication must be preceded by notice and an opportunity to be heard." Bonner v. Brighton , 495 Mich. 209, 235, 848 N.W.2d 380 (2014). This basic and fundamental concept indisputably applies in the context of summary proceedings; this Court so held quite clearly in Al–Maliki . Sua sponte motions for summary disposition are permitted under the court rules, but no exception to basic due-process requirements exists in MCR 2.116(I)(1) or elsewhere. "It is a matter of simple justice in our system for a party to be given fair notice and an opportunity to be heard before the boom is lowered." DKT Mem. Fund Ltd. v. Agency for Int'l. Dev. , 281 U.S.App.D.C. 47, 887 F.2d 275, 301 n. 3 (1989) (Ginsburg, J., concurring in part and dissenting in part).
Federal district courts, too, may grant summary judgment sua sponte. In so doing, however, a district court must "determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried ...." Schwan–Stabilo Cosmetics GmbH & Co. v. Pacificlink Int'l. Corp. , 401 F.3d 28, 33 (C.A. 2, 2005) (quotation marks and citation omitted). This rule comports with the United States Supreme Court's observation in Celotex Corp. v. Catrett , 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), that "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that [it] had to come forward with all of [its] evidence ." (Emphasis added.) Here, the circuit court's failure to notify Lamkin that it was contemplating summary disposition of her claims constitutes a fatal procedural flaw necessitating reversal.
Nothing in the Michigan Court Rules requires a party to file a motion for reconsideration to preserve his or her challenge to a circuit court ruling. That Lamkin did not move for reconsideration following the dismissal of her case has no bearing whatsoever on her ability to pursue a due-process claim or on this Court's ability to decide that issue. This Court has jurisdiction of an appeal of right filed by an aggrieved party from a final order of the circuit court. MCR 7.203(A)(1). This Court's appellate jurisdiction does not hinge on the denial of a motion for reconsideration.
The circuit court made a second error when it granted summary disposition based on Lamkin's failure to plead her standing to sue. The circuit court ruled that Lamkin did not "establish" that her neighbor's actions resulted in special damages, and therefore that Lamkin lacked standing to challenge the zoning administrator's decisions. At the pleading stage, however, Lamkin was required only to set forth "[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called upon to defend [.]" MCR 2.111(B)(1). And under MCR 2.112(A)(1)(a), Lamkin simply was not required to allege in her complaint her "capacity" to sue. This court rule recognizes that standing to sue, for example, is a fact-bound concept more amenable to proof rather than to pleading. The court rules invite the production of such proof by way of a motion for summary disposition supported with facts, followed by the requisite evidentiary response. The end result of the circuit court's race to eliminate this case is that we are left with nothing to substantively review. On remand, the circuit court must allow the parties to develop a reviewable record before reaching a judgment, summary or otherwise.
Even if such specificity was required under Michigan's court rules, we observe that MCR 2.118(A)(2) instructs that leave to amend "shall be freely given when justice so requires." (Emphasis added.) "Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or where amendment would be futile." Jenks v. Brown, 219 Mich.App. 415, 420, 557 N.W.2d 114 (1996). Absent any record of evidence on the issue, it is impossible to determine at this juncture whether Lamkin can establish special damages. Furthermore, Lamkin is entitled to contest the legal premises underlying the court's summary disposition order.
We vacate the order of summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
O'Connell, J. (concurring).
I concur in the result. I write separately to state that the trial court, in its effort to be efficient, may have set a new land speed record for disposing of a case. While efficiency is an excellent goal for trial courts to obtain, it may collide with a plaintiff's right to notice and an opportunity to be heard and prevent this Court from being able to engage in meaningful appellate review.
In this case, plaintiff, acting in propria persona, filed her law suit on July 29, 2015. Two days later on July 31, 2015, before defendants were even served and perhaps even before the ink was dry on the complaint, the trial court sua sponte dismissed the suit. The resulting scant lower court record does not reflect how plaintiff's issues were raised, argued, or presented to the lower court, and it is devoid of any answer by defendants. The trial court's order consists of six conclusory paragraphs with a very limited recitation of the court's factual conclusions. The trial court's order does not provide sufficient information for this Court to evaluate the reasons for the dismissal or the merits of plaintiff's case.
Clearly, the trial court was frustrated by the numerous (and possibly frivolous) lawsuits that the plaintiff has filed. While I appreciate efficiency, I conclude that plaintiff was completely denied her day in court and her opportunity to present her case in a reasonable manner. Though due process may take a little time and patience on the part of the trial court, it is necessary to a fundamentally fair court system. See Al–Maliki v. LaGrant , 286 Mich.App. 483, 485–486, 781 N.W.2d 853 (2009).
I agree with Judge GLEICHERthat we must vacate the lower court decision and direct that on remand the trial court should give plaintiff an opportunity to present her case and create a reviewable lower court record.
Ronayne Krause, P.J. (concurring in part and dissenting in part).
I wholeheartedly agree with Judge GLEICHER'S observation that a party's right to seek redress in this Court does not depend on whether they moved for reconsideration in the trial court. However, while I understand my colleagues' reaction to the trial court's nearly immediate disposition of this case, I disagree that the trial court was not permitted to summarily dismiss plaintiff's case sua sponte without providing plaintiff advance notice that it was considering doing so. Furthermore, I find my colleagues' concerns about the sufficiency of the trial court's order baffling. Under the circumstances of this case, I nevertheless find the possibility that the trial court deprived plaintiff of her due-process rights by preventing her from filing a motion for reconsideration sufficiently troubling that I would remand for an evidentiary hearing on that issue.
Plaintiff's complaint sought a writ of mandamus, an order of superintending control, and an order to show cause, because defendants purportedly failed to enforce a zoning ordinance that plaintiff's neighbors were allegedly violating. This Court looks to the substance of pleadings rather than the formal names or labels given by the parties. Hartford v. Holmes , 3 Mich. 460, 463 (1855) ; Norris v. Lincoln Park Police Officers , 292 Mich.App. 574, 582, 808 N.W.2d 578 (2011). It is clear from the complaint that plaintiff's "show cause" count really is a request for a preliminary injunction, not a true cause of action. It is therefore entirely dependent on the validity of her other two counts.
The distinction between a claim for mandamus and a claim for superintending control is an often confused. See Choe v. Flint Charter Twp. , 240 Mich.App. 662, 665–667, 615 N.W.2d 739 (2000). However, they both seek to accomplish essentially the same result and on essentially the same bases: superintending control is directed to a lower court or tribunal, and mandamus is directed to a public official. See Jones v. Dept. of Corrections , 468 Mich. 646, 658, 664 N.W.2d 717 (2003), and In re Payne , 444 Mich. 679, 687–689, 514 N.W.2d 121 (1994). However, they are so closely related that they are sometimes treated as effectively synonymous. See, e.g., Kelly v. Bd. of Law Examiners , 447 Mich. 1204, 526 N.W.2d 915 (1994) ; Scullion v. State Bd. of Law Examiners , 102 Mich.App. 711, 716 n. 3, 302 N.W.2d 290 (1981) ; Choe , 240 Mich.App. at 667, 615 N.W.2d 739. Both serve as vehicles for compelling the performance of a clear legal duty. Genesee Prosecutor v. Genesee Circuit Judge , 386 Mich. 672, 680, 194 N.W.2d 693 (1972).Significantly, however, a right to mandamus or superintending control depends on the clear legal duty being effectively ministerial and the plaintiff being without any other remedy. Taylor v. Ottawa Circuit Judge , 343 Mich. 440, 444, 72 N.W.2d 146 (1955) ; Cadle Co. v. Kentwood , 285 Mich.App. 240, 246, 776 N.W.2d 145 (2009). They may compel the exercise of discretion, but not the outcome of any such exercise. Teasel v. Dep 't. of Mental Health , 419 Mich. 390, 410, 355 N.W.2d 75 (1984). To prevail in an action for mandamus (or superintending control), any legal right held by the plaintiff must be distinct from the legal rights held by citizens generally. Inglis v. Pub. Sch. Employees Retirement Bd. , 374 Mich. 10, 13, 131 N.W.2d 54 (1964). "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." Cadle Co. , 285 Mich.App. at 246, 776 N.W.2d 145. In this case, it is manifestly clear from plaintiff's complaint that the trial court's determination was correct, and precisely what record development my colleagues believe necessary escapes me.
Plaintiff alleged nothing that even hinted that she held a right to the enforcement of defendants' zoning ordinance distinct from rights held by the public generally, and the most generous interpretation of the allegations set forth in the complaint indicates that there is no way she could. A private citizen may, in appropriate circumstances, bring an action to abate a public nuisance caused by the violation of a zoning ordinance, but only when the nuisance affects the private citizen in some way distinct from the general public. MCL 125.3407 ; Towne v. Harr , 185 Mich.App. 230, 232–233, 460 N.W.2d 596 (1990). That is not the action plaintiff sought here. See Unger v. Forest Home Twp. , 65 Mich.App. 614, 618, 237 N.W.2d 582 (1975). Even beyond that failing, plaintiff's complaint contains extensive invective regarding various alleged illegalities but no specification of how she has in any way been harmed, let alone harmed in a way distinct from the general public. The trial court correctly observed that a direct challenge to the actions of the zoning board regarding the issuance or enforcement of zoning regarding the property of someone else is unmaintainable because plaintiff lacks standing to do so. Id . I fail to understand how the trial court's opinion to that effect is deficient.
Additionally, although plaintiff's complaint is not a model of coherent articulation, it appears that she seeks to compel not a ministerial act or even the exercise of discretion per se, but rather a particular discretionary determination.
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The trial court's nearly immediate sua sponte disposition of this case certainly might be perceived as startling. It is not, however, impermissible. My colleagues would read into MCR 2.116(I)(1) a requirement not written therein and already well established by caselaw as not existing. Trial courts are under enormous stresses to bring actions to conclusions within deadlines imposed not only by the needs of the parties before them, but also administratively dictated artificial deadlines. When it is readily apparent from the pleadings that a party's claims are not actionable or the matter is otherwise impossible to succeed on, MCR 2.116(I)(1) is one of a tiny number of tools given to the trial courts to help them allocate their finite resources to cases with at least possible merit. Although I do believe it would be the better practice, this Court has established that due process does not necessarily require prior notice and an opportunity to be heard before a trial court sua sponte dismisses an action under MCR 2.116(I)(1). Al–Maliki v. LaGrant , 286 Mich.App. 483, 485–486, 781 N.W.2d 853 (2009). My colleagues have invented such a requirement out of thin air. "[D]ue process can be satisfied by affording a party an opportunity for rehearing." Id . at 486, 781 N.W.2d 853.
The concerning element in this appeal derives from plaintiff's contention that the trial court did not, in fact, afford her an opportunity to file a motion for reconsideration. More specifically, she contends that she attempted to file such a motion, but that she was told by the trial court's administrative staff that she was not permitted to file postjudgment motions. Although plaintiff provides no concrete evidence of this, I appreciate that it is not obvious how she could do so presently. If true, I would find it impossible to deem such a denial of due process harmless, no matter how overwhelmingly meritless the complaint might appear. Therefore, I would remand for the limited purpose of requiring the trial court to hold an evidentiary hearing to determine whether the court truly prevented plaintiff from filing a motion for reconsideration, and I would retain jurisdiction.