Opinion
No. 349500
07-23-2020
UNIQUE LINEN SERVICES, INC., and NAMIR ALJIDA, Plaintiffs-Appellants, v. CITY OF HAZEL PARK, CITY OF HAZEL PARK POLICE DEPARTMENT, MAYOR PRO-TEM AMY AUBRY, HAZEL PARK CITY MANAGER EDWARD KLOBUCHER, JOHN DOE HAZEL PARK POLICE OFFICERS, HAZEL PARK POLICE CHIEF BRIAN BUCHHOLZ, and LACI CHRISTIANSEN, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-169647-CK Before: MARKEY, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM.
Plaintiffs Unique Linen Services, Inc. (ULS), and Namir Aljida appeal by right the trial court's order granting summary disposition in favor of defendants on the basis of governmental immunity, failure to exhaust administrative remedies, and the doctrine of ripeness. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Aljida owns and operates ULS, which is a company that provides industrial cleaning and laundry services for commercial businesses. Plaintiffs alleged that for many years, beginning in 1999, ULS had a license issued by defendant City of Hazel Park (the city) that allowed ULS to conduct business and to do so 24 hours a day. ULS is situated on land zoned for industrial uses and is subject to various code limitations, including noise and pollutant restrictions because of the close proximity to a residential neighborhood.
The city required business licenses for companies operating in Hazel Park to be renewed every two years. Since at least 2014, among other issues, there had been complaints about the noise generated by operations at ULS which had resulted in ULS's being both cited for code violations and having their hours of operation limited to 7:00 a.m. to 7:00 p.m. In 2015, the city revoked ULS's license. Afterward, despite being advised of the right to appeal, plaintiffs instead worked with the city to resolve the matter, and ULS was permitted to continue operating. In April 2017, plaintiffs applied to renew the license, but the application was denied for failing to obtain an inspection. In February 2018, plaintiffs received a letter indicating that ULS was operating without a license and needed to obtain an inspection. In spite of this lapse in licensing, the city did not attempt to shut down the business; it allowed ULS to continue running subject to the preexisting restriction on hours of operation, which was necessary to avoid the creation of a nuisance. Despite the availability of an administrative appeal to the city council on licensing matters, plaintiffs never pursued any appeal with respect to the business license and the condition that the city had placed on ULS regarding hours of operation.
In November 2018, plaintiffs sued defendants in a 10-count complaint, which included claims of negligence, misrepresentation, various intentional torts, constitutional infringements, and violations of federal law. Plaintiffs sought money damages with respect to those claims. They also alleged counts for mandamus and declaratory judgment. In lieu of filing an answer, defendants moved for summary disposition requesting dismissal of all 10 counts based, in part, on governmental immunity and failure to exhaust administrative remedies. Plaintiffs then moved for leave to amend their complaint to add a count of gross negligence. The trial court granted leave, and plaintiffs filed a first amended complaint.
The first amended complaint did not include a gross negligence claim and reduced the number of counts from ten to five, which were labeled as follows: (1) tortious interference with a contract, (2) tortious interference with a business relationship or expectancy, (3) intentional infliction of emotional distress, (4) mandamus; and (5) declaratory judgment. Plaintiffs alleged that in March 2018 they had completed all forms, requirements, and inspections as necessary for ULS to receive a license to operate the business, but it never received the requested license. Plaintiffs asserted that no reason was given for not issuing a business license. Plaintiffs claimed that since March 2018, ULS "had opportunities to engage in multiple commercial contracts, but has been frustrated and denied said opportunities as a direct result of [d]efendants' actions as alleged herein." They further argued that ULS had conducted its business affairs for years with unrestricted hours of operation until defendants illegally acted to limit those hours. Plaintiffs contended that in order for ULS to have entered into the aforementioned contracts, it would have been necessary to conduct business without any restriction on the hours of operation. They maintained that there were no zoning provisions, laws, regulations, or codes that authorized the placement of limitations or restrictions on licenses relative to hours of operation. Plaintiffs alleged that there was no lawful basis for the city to preclude ULS from operating 24 hours a day. They also alleged unlawful harassment, illegal discrimination, and financial hardship. The mandamus and declaratory judgment counts were essentially identical, both requesting an order declaring that plaintiffs had the right to operate the business without restriction on hours of operation and directing defendants to take the necessary licensing steps to recognize the right.
Defendants again moved for summary disposition, arguing once more that the claims were barred by governmental immunity and failure to exhaust administrative remedies. Defendants also argued numerous other bases to summarily dismiss the first amended complaint.
Following a hearing on the motion, the trial court issued an extensive written opinion and order granting summary disposition in favor of defendants. The trial court first ruled that plaintiffs lacked standing to pursue the claims for mandamus and declaratory relief. The court explained:
Having reviewed the case law and defendants' argument, this Court finds—as a matter of law—that plaintiffs failed to exhaust their administrative remedies before pursuing this action as to the 2014 decision to limit [ULS's] store hours[,] and their claim for a 2019 renewal license is not yet ripe because the renewal process just commenced and [ULS] would need to exhaust its administrative remedies before seeking a writ of mandamus.[]
During the pendency of the lawsuit, plaintiffs filed a 2019 application with the city to renew or issue a business license. The record does not reveal the outcome of that application.
With respect to the three tort causes of action, the trial court concluded that they were barred on the basis of governmental immunity. The court determined that plaintiffs' complaint failed to allege any facts in avoidance of governmental immunity. The trial court also ruled that there was no genuine issue of material fact that governmental immunity shielded defendants from liability. The court found that it was unnecessary to address any of defendants' additional arguments in support of summary disposition because the court's ruling effectively covered all five counts in the complaint. Plaintiffs now appeal.
II. ANALYSIS
We find it helpful to simplify this case for purposes of our analysis. With respect to the mandamus and declaratory judgment counts in the amended complaint, plaintiffs sought a determination, and enforcement thereof, that ULS was entitled to a license to operate its business absent the placement of any licensing restriction on the hours of operation. The trial court rejected this argument because plaintiffs had failed as a matter of law to exhaust or even exercise their administrative remedies, which would have entailed an appeal to the city council. In relation to whether plaintiffs were entitled to approval of the pending 2019 license application, the trial court found that the matter was not ripe for review. With respect to the three intentional tort counts in plaintiffs' amended complaint, plaintiffs sought relief and damages on the basis that the restriction on ULS's hours of operation had interfered with contractual and business opportunities and caused emotional distress. The trial court rejected this argument because plaintiffs had failed to plead in avoidance of governmental immunity and because there was no genuine issue of material fact that governmental immunity barred the claims. As reflected in our summary, this case is essentially about the restriction on ULS's hours of operation.
A. MANDAMUS AND DECLARATORY RELIEF - HOURS OF OPERATION
With respect to mandamus, this Court in Southfield Ed Ass'n v Bd of Ed of the Southfield Pub Sch, 320 Mich App 353, 378; 909 NW2d 1 (2017), observed:
A writ of mandamus is an extraordinary remedy that will only be issued if (1) the party seeking the writ has a clear legal right to the performance of the duty
sought to be compelled, (2) the defendant has a clear legal duty to perform the act requested, (3) the act is ministerial, that is, it does not involve discretion or judgement, and (4) no other legal or equitable remedy exists that might achieve the same result. [Quotation marks and citation omitted.]"In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted." MCR 2.605(A)(1). "The purpose of a declaratory judgment is to definitively declare the parties' rights and duties, to guide their future conduct and relations, and to preserve their legal rights." Barrow v Detroit Election Comm, 305 Mich App 649, 662; 854 NW2d 489 (2014).
"As this Court has repeatedly recognized, when an administrative scheme of relief exists an individual must exhaust those remedies before a circuit court has jurisdiction." In re Harper, 302 Mich App 349, 356; 839 NW2d 44 (2013). A writ of mandamus that is sought to compel a governmental unit to act should generally not be issued where the plaintiff failed to exhaust an appellate or administrative remedy available within said governmental unit. Lake Angelo Assoc v White Lake Twp, 198 Mich App 65, 73-74; 498 NW2d 1 (1993); see also Keaton v Village of Beverly Hills, 202 Mich App 681, 683-684; 509 NW2d 544 (1993). Similarly, in general, a plaintiff must exhaust administrative remedies before filing suit for declaratory relief. L & L Wine & Liquor Corp v Liquor Control Comm, 274 Mich App 354, 356-357; 733 NW2d 107 (2007).
The policy reasons behind the doctrine of exhaustion of administrative remedies are as follows:
(1) an untimely resort to the courts may result in delay and disruption of an otherwise cohesive administrative scheme; (2) judicial review is best made upon a full factual record developed before the agency; (3) resolution of the issues may require the accumulated technical competence of the agency or may have been entrusted by the Legislature to the agency's discretion; and (4) a successful agency settlement of the dispute may render a judicial resolution unnecessary. [Int'l Business Machines Corp v Michigan, 75 Mich App 604, 610; 255 NW2d 702 (1977).]
In their brief on appeal, plaintiffs contend that Aljida spoke to defendants about appealing the restriction on hours of operation, but they "refused to permit" him to appeal and told Aljida that they would get back to him, which never occurred. Like the rest of plaintiffs' appellate brief, there is no citation to the record in support of these factual claims as required by MCR 7.212(C)(6). Plaintiffs did not even submit a simple affidavit by Aljida to support the assertion that defendants prevented him from filing an appeal with the city council regarding ULS's license and the restriction on hours of operation; discovery was not needed to execute such an affidavit. Moreover, on appeal, plaintiffs do not even bother to address the doctrine of exhaustion of administrative remedies, which served as the basis for the court's summary dismissal of the mandamus and declaratory judgment counts. See Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015) ("When an appellant fails to dispute the basis of a lower court's ruling, we need not even consider granting the relief being sought by the appellant."). Although there are exceptions to the doctrine of exhaustion of administrative remedies, see L & L Wine, 274 Mich App at 358-363, plaintiffs make no argument on the matter. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998) (it is not this Court's obligation to discover, unravel, elaborate upon, or support a party's appellate arguments). Accordingly, on de novo review, we affirm the trial court's summary dismissal of the mandamus and declaratory judgment counts. The counts were barred for failure to exhaust administrative remedies.
Plaintiffs devote considerable time arguing that there is no statute, ordinance, regulation, or caselaw that allows for a restriction of ULS's hours of operation. And plaintiffs contend that discovery would establish that the business licenses issued to ULS over the years did not expressly limit ULS's hours of operations to 7:00 a.m. to 7:00 p.m. Plaintiffs also fail to appreciate that they first needed to overcome the trial court's ruling regarding the exhaustion of administrative remedies before the substance or merits of the mandamus and declaratory judgment counts became relevant.
A decision regarding whether a party has exhausted administrative remedies, which issue implicates a court's jurisdiction to hear a case, is reviewed de novo on appeal. Papas v Mich Gaming Control Bd, 257 Mich App 647, 656-657; 669 NW2d 326 (2003). A ruling on a motion for summary disposition is likewise subject to de novo review. Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011).
B. GOVERNMENTAL IMMUNITY
Summary dismissal of a claim is appropriate when a defendant enjoys "immunity granted by law." MCR 2.116(C)(7). In RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d 529 (2008), this Court discussed (C)(7) motions, explaining:
Under MCR 2.116(C)(7) . . ., this Court must consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence filed or submitted by the parties. The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. This Court must consider the documentary evidence in a light most favorable to the nonmoving party. If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide. If a factual dispute exists, however, summary disposition is not appropriate. [Citations omitted.]
In Moraccini v City of Sterling Hts, 296 Mich App 387, 391-392; 822 NW2d 799 (2012), this Court recited the well-established principles concerning governmental immunity:
Except as otherwise provided, the governmental tort liability act (GTLA), MCL 691.1401 et seq., broadly shields and grants to governmental agencies
immunity from tort liability when an agency is engaged in the exercise or discharge of a governmental function. The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency. A governmental agency can be held liable under the GTLA only if a case falls into one of the enumerated statutory exceptions. An activity that is expressly or impliedly authorized or mandated by constitution, statute, local charter, ordinance, or other law constitutes a governmental function. This Court gives the term "governmental function" a broad interpretation, but the statutory exceptions must be narrowly construed. [Quotation marks and citations omitted.]
"A plaintiff filing suit against a governmental agency must initially plead his claims in avoidance of governmental immunity." Odom v Wayne Co, 482 Mich 459, 478-479; 760 NW2d 217 (2008) (emphasis added). The tort claims plaintiffs alleged against the agency defendants—the city and the police department—simply do not fit within any of the statutory exceptions to governmental immunity; therefore, the trial court properly dismissed the tort claims against the city and the police department. Indeed, plaintiffs do not even claim application of any of the statutory exceptions to governmental immunity relative to a governmental-agency defendant. Plaintiffs argue that they sufficiently alleged causes of action for tortious interference with contracts and business relationships and expectancies, as well as intentional infliction of emotional distress. But that does not answer the question whether those causes of action implicate a statutory exception to governmental immunity with respect to agencies. We hold that they do not.
"The statutory exceptions to the governmental immunity provided to the state and its agencies are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-system-event exception, MCL 691.1417(2) and (3)." Odom, 482 Mich at 478 n 62.
We note that the doctrine of exhaustion of administrative remedies is inapplicable to plaintiffs' common-law tort claims seeking money damages because the city council has no authority or ability to provide relief in the form of money damages. Cummins v Robinson Twp, 283 Mich App 677, 691; 770 NW2d 421 (2009).
With respect to the individual defendants employed by the city, again, we note "the burden . . . fall[s] on the governmental employee to raise and prove his [or her] entitlement to immunity as an affirmative defense." Odom, 482 Mich at 479. Therefore, the trial court clearly erred by ruling that plaintiffs had to plead in avoidance of governmental immunity as to the individual defendants. But the court did not err by concluding that there was no factual dispute that governmental immunity shielded the individual defendants from liability.
Plaintiffs argue that there is no governmental immunity for gross negligence or for intentional torts; consequently, defendant Mayor Pro-Tem Amy Aubry can be held liable for the alleged torts because she was not engaged in a governmental function when harassing plaintiffs. First, plaintiffs did not allege a negligence tort, gross or otherwise, noting in their brief on appeal that they "inadvertently" failed to include a gross negligence claim in Count V of the first amended complaint. This excuse is meaningless—there was no negligence claim, and we will not further consider the matter, especially given that plaintiffs had sought and were leave to file the amended complaint specifically to add a gross negligence claim. Without a negligence tort being pleaded, a claim that the conduct at issue amounted to gross negligence is irrelevant. See Odom, 482 Mich at 479-480.
Plaintiffs did allege three intentional tort claims. In Odom, 482 Mich at 479-480, our Supreme Court explained:
To summarize and simplify the application of our decision, we provide these steps to follow when a defendant raises the affirmative defense of individual governmental immunity. The court must do the following:
(1) Determine whether the individual is a judge, a legislator, or the highest-ranking appointed executive official at any level of government who is entitled to absolute immunity under MCL 691.1407(5).
(2) If the individual is a lower-ranking governmental employee or official, determine whether the plaintiff pleaded an intentional or a negligent tort.
* * *
(4) If the plaintiff pleaded an intentional tort, determine whether the defendant established that he is entitled to individual governmental immunity . . . by showing the following:
(a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial.
Initially, plaintiffs agreed below that Police Chief Brian Buchholz was entitled to dismissal on the basis of absolute governmental immunity, and it would appear that City Manager Edward Klobucher would also have absolute immunity. Regardless, assuming that all of the individual defendants were lower-ranking governmental employees or officials, we agree they were protected from liability as a matter of law on the basis of governmental immunity. As indicated earlier, plaintiffs' entire case, in a nutshell, is ultimately focused on the restriction on ULS's hours of operation. The placement of this restriction on hours of operation was due to a noise nuisance created by the sounds emanating from ULS at nighttime and early morning.
The challenged activities were undertaken during the course of defendants' employment with the city and fell within the scope of their authority, entailing code enforcement, business licensing, and police activities. Odom, 482 Mich at 480. Additionally, given plaintiffs' extensive history of code violations and the evidence of noise issues and complaints, we agree the enforcement of restricted hours of operation was conducted in good faith and without malice. Id. Finally, defendants' conduct related to placing limits on and enforcing hours of operation appears discretionary, not ministerial, in nature. Id. Moreover, we note that defendants supported their motion for summary disposition with documentary evidence. And in responding to the motion, plaintiffs merely attached a copy of their original complaint and the amended complaint to their brief, which is not documentary evidence. Again, plaintiff did not even submit a simple affidavit from anyone that may have created a factual dispute on governmental immunity. In sum, the trial court did not err by concluding that the individual defendants were shielded by governmental immunity with respect to plaintiffs' intentional tort claims; therefore, the court properly granted the motion for summary disposition.
In light of our ruling, it is unnecessary to reach defendants' additional arguments in support of summary disposition. Furthermore, plaintiffs raise no issue concerning the trial court's ripeness ruling in regard to the 2019 license application. And we find no error with the court's determination. --------
We affirm. Having fully prevailed on appeal, defendants may tax costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Mark T. Boonstra