Opinion
No. 334064
10-17-2017
MUSTAFA UFUK UNUVAR, Plaintiff/Counter-Defendant-Appellee, v. BURNAM FLEMING, Defendant/Counter-Plaintiff-Appellant.
UNPUBLISHED Genesee Circuit Court
LC No. 15-104257-NZ Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ. PER CURIAM.
Defendant/counter-plaintiff Burnam Fleming appeals as of right from the trial court's order denying his motion to set aside the judgment entered against him and amending the judgment in this lawsuit initiated by plaintiff/counter-defendant Mustafa Ufuk Unuvar, alleging defamation, abuse of process and malicious prosecution. We affirm.
Throughout this opinion Fleming will be referred to as defendant, and Unuvar will be referred to as plaintiff.
I. FACTS AND PROCEDURAL HISTORY
This appeal arises from an altercation that took place between plaintiff and defendant on July 5, 2013. According to the complaint filed in this case, on July 5, 2013, defendant contacted the Flint Police Department by calling 911 following a verbal altercation between himself and plaintiff. When defendant contacted the police, he accused plaintiff of assaulting him with a dangerous weapon "by pulling out [plaintiff's] holstered revolver and pointing it at [defendant]." During a subsequent statement to the police, defendant confirmed that plaintiff had pointed a revolver at him. After being arrested, fingerprinted and subsequently released contemporaneously to the altercation, in October 2013 plaintiff was charged with assault with a dangerous weapon, MCL 750.82(1). According to plaintiff's version of events in the complaint, "[plaintiff] never removed his revolver from his holster and never pointed the revolver at [d]efendant." The parties do not dispute that plaintiff subsequently entered a plea of no contest to a charge of aggravated assault, MCL 750.81a, and that criminal proceedings against plaintiff were dismissed. Specifically, an order entered in the criminal proceedings provides that plaintiff withdrew his no contest plea and the prosecution dismissed the criminal case against him with prejudice.
During a subsequent hearing pertaining to a personal protection order (PPO) defendant obtained against plaintiff, defendant stated that plaintiff had not in fact pointed a gun at him on July 5, 2013.
In a three-count complaint, plaintiff alleged defamation, malicious prosecution, and abuse of process against defendant. Plaintiff sought damages for emotional distress, lost wages, attorney fees, as well as "[h]umiliation, mortification, embarrassment, sleeplessness and anxiety." Defendant filed an answer and counterclaim, alleging intentional infliction of emotional distress. Trial was scheduled for March 22, 2016, and for reasons not entirely clear from the record, defendant did not appear for trial. After defendant did not appear, the trial court heard testimony from plaintiff concerning the events of July 5, 2013, the ensuing criminal proceedings, as well as the nature of plaintiff's damages. At the conclusion of plaintiff's testimony, counsel for plaintiff requested that the trial court "consider a default judgment in the amount of $25,000 dollars." The trial court, after inquiring if plaintiff was seeking attorney fees in addition to the $25,000, stated, "I think it's a terrible situation you had to go through Mr. Unuvar." The trial court then awarded a judgment in favor of plaintiff for $25,000. The trial court entered a written judgment on March 22, 2016, which also provided that defendant's counterclaim be dismissed.
Defendant subsequently filed a motion to set aside what he characterized as a default judgment. In the motion, defendant asserted that he received a copy of the default judgment in the mail, but that he "was never served with a notice to appear in court" for the March 22, 2016 trial, and that his counsel had withdrawn from the case. Further, defendant noted that he "was under the impression this matter was resolved." Defendant also noted that he had "a meritorious defense" to plaintiff's claims, and that allowing the default judgment to stand would be "manifestly unjust." Plaintiff filed a response to defendant's motion. In his response, plaintiff stated that it was not a default judgment that was entered against defendant, but rather, a judgment following trial. Plaintiff pointed out that the trial court had notified the parties, through counsel, of the trial date as early as May 2015, and that defendant's counsel did not withdraw until December 2015. Plaintiff accused defendant of "ignor[ing] this case until [defendant] received a copy of the Judgment in the mail." Plaintiff also questioned defendant's factual basis for concluding that the matter was resolved.
On June 6, 2016, the trial court held a hearing on defendant's motion. During the hearing, counsel for plaintiff and the trial court noted that the judgment entered on March 22, 2016 against defendant was not in fact a default judgment. After hearing argument from both parties, the trial court declined to set aside the judgment, but also sua sponte reduced the judgment amount to $15,000. It is from the resulting order that defendant now appeals as of right.
II. ANALYSIS
On appeal, defendant argues that the trial court abused its discretion in refusing to set aside the judgment entered against him. We disagree.
This Court will review for an abuse of discretion the trial court's determination regarding a motion to set aside a judgment brought pursuant to MCR 2.612. Rental Properties Owners Ass'n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 531; 866 NW2d 817 (2014). When the trial court's decision is one that is outside the range of "reasonable and principled outcomes[,]" its decision may be characterized as an abuse of discretion. Id. (quotation marks and citation omitted).
The applicable court rule, MCR 2.612 provides, in pertinent part, as follows:
(C) Grounds for Relief from Judgment.
(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment. [Emphasis added.]
This Court has recognized in King v McPherson Hosp, 290 Mich App 299, 304; 810 NW2d 594 (2010) that "[w]ell-settled policy considerations favoring finality of judgments circumscribe relief under MCR 2.612(C)(1)[.]" (citation and quotation marks omitted.) Further, in Adler v Dormio, 309 Mich App 702, 708; 872 NW2d 721 (2015), this Court set forth the legal principles that govern the trial court's decision concerning whether relief from judgment is appropriate pursuant to MCR 2.612(C)(1)(f):
(1) the reason for setting aside the judgment must not fall under sub-sections a through e, (2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and (3) extraordinary circumstances must exist that mandate setting aside the judgment in order to achieve justice. Generally, relief is granted under subsection f only when the judgment was obtained by the improper conduct of the party in whose favor it was
rendered. [Adler, 309 Mich App at 708, quoting Heugel v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121 (1999) (citations omitted in original; footnote omitted).]
The Adler Court observed that in Heugel, the Court had relaxed the first requirement by "stipulating that a trial court could 'properly grant relief from a judgment under MCR 2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under subsections a through e are present, when additional factors exist that persuade the court that injustice will result if the judgment is allowed to stand.' " Adler, 309 Mich App at 708 n 3.
Addressing the first factor set forth in Adler, in asserting that the judgment should be set aside, defendant argued that he mistakenly thought that this case had been resolved, presumably after conversations with his prior counsel pertaining to the outcome of case evaluation. Defendant also claimed that he had experienced unspecified medical issues and, in the words of defense counsel, had been "incapacitated for about five months." Defense counsel, in spite of conceding that the trial court had informed defendant personally of the March 22, 2016 trial date during a December 14, 2015 hearing on prior defense counsel's motion to withdraw, also argued that "[m]aybe [defendant] didn't understand what the [trial court] was saying." Accordingly, while defendant did not argue this point directly, he appears to be claiming that the judgment was entered as the result of "[m]istake, inadvertence, surprise, or excusable neglect." MCR 2.612(C)(1)(a). However, even if we concluded that defendant has made a successful showing of his alleged mistake, inadvertence or excusable neglect in not attending the March 22, 2016 trial date as set forth in MCR 2.612(C)(1)(a), this would not necessarily foreclose the inquiry into whether relief from judgment is proper under MCR 2.612(C)(1)(f), if "additional factors exist that persuade the court that injustice will result if the judgment is allowed to stand." Adler, 309 Mich App at 708 n 3. Therefore, defendant has arguably met the first requirement of the Adler analysis.
In this Court, as well as the trial court, defendant confined his arguments to the applicability of MCR 2.612(C)(1)(f). --------
Considering the second requirement, "the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside[,]" Adler, 309 Mich App at 708, as plaintiff points out, he would have certainly incurred some level of prejudice if the trial court's judgment against defendant were set aside. Specifically, witnesses to the July 5, 2013 altercation between plaintiff and defendant may no longer have been available, and plaintiff was no longer preparing to try the case. Therefore, defendant has not met the second requirement of the Adler analysis.
More importantly, with regard to the third requirement, the record does not yield any indication that "extraordinary circumstances" exist that would require setting aside the judgment to achieve justice. Adler, 309 Mich App at 708. Instead, the record reflects that defendant simply did not appear at the March 22, 2016 trial, which had been scheduled as such as early as May 2015, and aside from defense counsel's unsubstantiated assertions at the June 6, 2016 motion hearing regarding defendant's absence, defendant has not put forth any evidence to confirm why he did not attend trial. Likewise, there is nothing in the record to suggest that plaintiff engaged in any improper conduct that led to the entry of the judgment. King, 290 Mich App at 305. In his brief on appeal, defendant asserts that "extraordinary circumstances" are present in this case where the trial court claims to have conducted a bench trial, taking testimony from plaintiff, and did not render findings of fact or conclusions of law as required by MCR 2.517(A)(1). In King, this Court recognized that " 'extraordinary circumstances warranting relief from a judgment generally arise when the judgment was obtained by the improper conduct of a party.' " King, 290 Mich App at 305, quoting Rose v Rose, 289 Mich App 45, 62; 795 NW2d 611 (2010). We are not persuaded that any alleged failure on the part of the trial court to comply with MCR 2.517 amounted to the extraordinary circumstances that are necessary to consider setting aside the judgment pursuant to MCR 2.612(C)(1)(f). Further, as noted above, the record is completely devoid of any indication that plaintiff engaged in improper conduct in acquiring a judgment against defendant.
We acknowledge that the procedural posture of this case in the lower court is somewhat unusual. However, the dispositive question to be determined is whether the trial court erred in declining to set aside the judgment pursuant to MCR 2.612(C)(1)(f), for "[a]ny other reason justifying relief from the operation of the judgment[,]" and in our view, as noted above, defendant simply has not met the requirements necessary to warrant setting aside the judgment pursuant to this subsection of the court rule. Accordingly, where a close review of the record confirms that the requirements set forth in Adler are not met, the trial court did not abuse its discretion in declining to set aside the March 22, 2016 judgment against defendant. As an aside, it appears that the trial court duly considered defense counsel's assertions regarding why defendant did not appear for the March 22, 2016 trial date, and on its own volition, and presumably in an effort to be fair and equitable to defendant, reduced the amount of the judgment from $25,000 to $15,000.
On appeal, defendant claims that the judgment ought to be set aside where plaintiff has not proven his claims of defamation, abuse of process and malicious prosecution. As an initial matter, plaintiff is correct that aside from the claim pertaining to malicious prosecution, defendant did not raise these arguments in the trial court, and the trial court did not address the argument regarding whether plaintiff had established a claim for malicious prosecution. In any event, defendant is improperly attempting to collaterally attack a final judgment entered by the trial court, when defendant did not take steps to appeal that judgment to this Court. "An impermissible 'collateral attack [on a judgment] occurs whenever challenge is made to the judgment in any manner other than through a direct appeal.' " People v Iannucci, 314 Mich App 542, 544-545; 887 NW2d 817 (2016); see also Kosch v Kosch, 233 Mich App 346, 353; 592 NW2d 434 (1999) (where a party did not directly appeal a final divorce judgment that party is precluded from mounting a collateral attack on the merits of the decision). The March 22, 2016 judgment provided that it "resolve[d] the last pending claim and close[d] the case[,]" but defendant did not appeal the judgment to this Court. Therefore, any arguments questioning the validity of the judgment itself, as distinguished from seeking relief from it, are impermissible collateral attacks. Iannucci, 314 Mich App at 544-545.
III. CONCLUSION
Where the trial court properly determined that defendant was not entitled to relief from judgment pursuant to MCR 2.612, its decision did not amount to an abuse of discretion. The trial court's order denying defendant's motion to set aside the judgment is affirmed. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Elizabeth L. Gleicher
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle