Opinion
353321 356520 356761
10-14-2021
SHORES HOME OWNERS ASSOCIATION and LEELANAU TOWNSHIP, Plaintiffs-Appellees, v. WILLIAM G. WIZINSKY and ANN M. WIZINSKY, Defendants-Appellants. WILLIAM G. WIZINSKY, Appellant, v. LEELANAU COUNTY and CONSTRUCTION CODE COMMISSION, Appellees.
UNPUBLISHED
Leelanau Circuit Court LC No. 18-010192-CZ
Construction Code Commission LC No. 00-000000-00Before: Redford, P.J., and K. F. Kelly and Letica, JJ.
Per Curiam.
In Docket No. 353321, defendants William G. Wizinsky (William) and Ann M. Wizinsky (Ann), appearing in propria persona (in pro per), appeal as of right the trial court's decision and order enforcing the settlement agreement and pocket judgment reached after mediation, and the decision to grant plaintiffs, The Shores Home Owners Association (HOA) and Leelanau Township (the township), costs and attorney fees for having to respond to defendants' frivolous motion for injunctive relief. In Docket No. 356520, defendants appeal as of right the order denying their motion to set aside attorney fees and granting plaintiffs costs and attorney fees for having to respond to the motion. In Docket No. 356761, William appeals as of right the Michigan Construction Code Commission's final decision. Finding no errors warranting reversal, we affirm.
A "pocket judgment" is defined as "[a] statute merchant which was enforceable at any time after nonpayment of the day assigned, without further proceedings." See < https://legaldictionary.lawin.org/pocket-judgment/> (accessed September 20, 2021). "A pocket consent judgment is a judgment for the full amount of the suit or the agreed-upon amount that is placed in the plaintiff's counsel's file until the defendant defaults on the payments. Under the settlement agreement . . . if a default lasts more than 15 days, the plaintiff may accelerate the balance, file an affidavit of noncompliance (sending a copy of it to the defendant's counsel or the defendant), and enter the pocket consent judgment with the court without further hearings, notice, or other delay." See < https://www.icle.org/modules/books/chapter.aspx?lib=creditor&book=2016551710&chapter=7&q=pock et%20judgment> (accessed September 20, 2021).
The three appeals were consolidated to advance the efficient administration of the appellate process. Shores Home Owners Ass'n v Wizinsky, unpublished order of the Court of Appeals, entered March 26, 2021 (Docket Nos. 353321; 356520); Wizinsky v Leelanau Co, unpublished order of the Court of Appeals, entered May 3, 2021 (Docket Nos. 353321; 356520; 356761).
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises out of construction on defendants' property, Lot 11, in Shores Subdivision in Leelanau County. Specifically, in 1992, a "gazebo" was constructed on defendants' property. Plaintiffs alleged that the constructed gazebo was intended as a temporary structure on the property until a permanent plan for the construction of a residence on the property was completed. However, the temporary structure remained on the property until 2015. In 2015, defendants apparently began to add an addition to the gazebo although defendants asserted that it was necessitated by damage to the structure. Plaintiffs asserted that defendants did not submit or obtain the necessary plans and permits to commence the construction even though William would have known of the requirements as he repeatedly alleged he is an architect and builder. Additionally, it was alleged that defendants were staying at the property for overnight visits although there was no sewer or water system on the property. Consequently, a notice of zoning violation and stop work order was issued for the gazebo. Further, when examining the construction that was occurring at the property, it was learned that the 1992 construction of the gazebo did not comport with the submitted plans. In response to the zoning issues, defendants alleged that there were no complaints about the gazebo for 23 years, and that the recent introduction of the couple's adopted African-American daughter to the community demonstrated that the violations were the result of racism and discrimination. In furtherance of their position that they were discriminated against, defendants contacted newspaper reporters and other media, sent correspondence to government officials, handed out flyers, and tried to arrange a corporate county boycott. Although defendants were the property owners and were Caucasian, defendants nonetheless alleged the discrimination began against them following their daughter's introduction, and the fact that she would inherit the property one day caused the unwarranted backlash against them in the form of zoning violations.
As a result of defendants' actions, HOA filed suit alleging nuisance per se, violation of the restrictive covenants applicable to the subdivision lot owners, recovery of the attorney fees and costs necessitated to obtain enforcement, and libel for the allegations of racism. The township joined the complaint for the claim of nuisance per se arising from the zoning violations. However, the validity of the allegations raised in the complaint were never resolved. Rather, a settlement agreement was reached when the parties, all of whom were represented by counsel, participated in a lengthy mediation conducted by attorney Todd Millar. The trial court closed the case in light of the settlement, and the order provided that the trial court maintained jurisdiction over the matter to enforce the settlement agreement.
However, three months later, plaintiffs filed a motion for entry of order, contending that defendants were in breach of the settlement agreement, and as a result, plaintiffs were entitled to the entry of the pocket judgment. Specifically, plaintiffs submitted that defendants breached the settlement agreement by removing trees without the permission of HOA, by failing to withdraw, dismiss, and continue any further allegations or investigation into discrimination by plaintiffs, by failing to execute the mutual release required by the settlement, and by failing to submit the proper notice of the intent to "dwell" overnight at the property. As a result of these claimed breaches, plaintiffs sought entry of the pocket judgment and recovery of attorney fees incurred to obtain compliance with the settlement agreement.
In September 2019, defendants retained a different attorney, Nicholas Klaus, who filed a limited appearance to investigate and answer plaintiffs' motion for entry of an order. In response to plaintiffs' motion, defendants alleged that they did not violate the settlement agreement's provision that they provide notice of their occupancy of the property. Further, they denied violating any provision by cutting down and removing trees. Rather, it was alleged that defendants' real estate agent requested that dead logs interfering with the easement on the property be removed in order to sell the property in compliance with the settlement agreement. Thus, healthy and living trees were not cut down on the property. Furthermore, defendants claimed that they did not breach the settlement agreement by sending emails in August 2019. The settlement agreement prohibited them from seeking a new investigation. Any emails by defendants did not rise to the level of a "claim" or "investigation," as set forth in the settlement agreement, but merely constituted defendants' expression of their right to free speech. Lastly, defendants claimed that they did not violate the settlement agreement by failing to sign the mutual release because it was never submitted to defendants for signature until it was attached as an exhibit to plaintiffs' motion. In any event, defendants submitted that plaintiffs' proposed mutual release was inappropriate because the release language was unduly broad and was not limited to the parties to the litigation.
In October 2019, the trial court entered its decision and order granting plaintiffs' motion for entry of an order, concluding in relevant part:
As noted above, under ¶9 of the Settlement Agreement, Defendant [sic] is prohibited from filing any new claims or seeking any new investigations pertaining to discrimination. The Plaintiffs have provided documentary evidence that on August 3, 8, 9, 10, 23, 27 and 28, 2019, Defendants emailed multiple individuals and entities claiming that the Plaintiffs have racially discriminated against Defendants' family prior to and beyond March 14, 2019. Furthermore, on August 9, 2019, Defendants sent an email to the Record Eagle referencing a "racist agenda" and asking the newspaper to investigate. This evidence clearly demonstrates that Defendants have breached the terms of the Settlement Agreement, therefore, Plaintiffs are entitled to entry of judgment.
This matter, having come before the Court upon motion and stipulation of the Parties, and the Court having fully reviewed the motion and stipulated facts and agreements and otherwise being fully advised HEREBY ORDERS that the Defendants shall remove the Structure located on the Property, shall remove any and all non-natural objects from the Property, and shall otherwise return the Property to its natural state within 90 days from entry of this Decision and Order. If the Defendants fail to cause the Removal, as defined by the Parties, the Plaintiffs may enter the Property and remove the Structure. Upon doing so, the removing entity will be entitled to put a lien on the Property for the cost of the removal and record the lien with the Leelanau County Register of Deeds. The Court retains jurisdiction to enforce the remaining terms of the Settlement Agreement. [Footnote omitted.]
In November 2019, plaintiffs filed a motion to enforce the settlement agreement by ordering defendants to execute the mutual release. It was alleged that defendants' prior counsel was tasked with and did prepare a mutual release, but defendants did not sign it. After the trial court ruled against defendants and ordered enforcement of the settlement agreement, defendants were ordered to sign a release. Plaintiffs alleged that the mutual release submitted by defendants was inconsistent with the parties' agreement and it added factual allegations. It was claimed that defendants refused to sign the first mutual release because, in late October 2019, William filed a complaint against the county's building official, zoning administrator, and board members in federal court, his second federal case, on the basis of the facts of this case. Plaintiffs alleged that they were entitled to the mutual release agreed to by the parties at the settlement agreement and were further entitled to costs and attorney fees for having to file the motion.
In late November 2019, a hearing was held on plaintiffs' motion to enforce the settlement. Plaintiffs' counsel appeared, but defendants did not. Plaintiffs' counsel represented that defendants' counsel, Klaus, did not plan to attend because he was not retained to respond to the mutual release issue. However, Klaus had not yet filed a notice of withdrawal as counsel for defendants. The trial court stated that it reviewed plaintiffs' request and it was "appropriate as a mutual release and . . . consistent with the Court's rulings in this case." Therefore, the trial court granted the motion. Plaintiffs' counsel further indicated that costs were requested because they attempted to resolve the issue with defendants, but did not get a response. The trial judge found that costs should be awarded because defendants clearly "failed to abide by the Court's requirements with regard to the execution of the mutual release in a good faith way, the terms were quite clear, and I think that their failure does justify the imposition of costs."
In early December 2019, defendants filed an objection to entry of the order enforcing the settlement agreement, alleging that plaintiffs engaged in fraud in order to induce defendants to enter into the settlement agreement. It was further contended that the township engaged in embezzlement in violation of Michigan criminal statutes by expending taxpayer dollars to fund HOA's litigation. Additionally, defendants submitted that their due process rights were violated because their property was being taken despite William's compliance with the zoning regulations, in light of his occupation as a "licensed architect/contractor." Defendants asserted that the true motivation for the litigation was racism, because defendants adopted an African-American child and plaintiffs' representatives did not want to see her in the community. Although defendants signed the settlement agreement, it was requested that the agreement be set aside because fraud and duress occurred to obtain defendants' agreement and signatures. Specifically, it was asserted that plaintiffs' representatives threatened to do everything in their power for four years to prevent defendants from enjoying their property. The release submitted and executed by defendants reflected their understanding that the resolution only applied to the existing circuit court action and the first amended complaint. Therefore, defendants requested a stay of the court's order and a negotiation of the language of the mutual release to reflect the meeting of the minds. Defendants also filed a motion for injunctive relief claiming that the township's funding of the litigation against defendants violated Mich. Const, art 9, § 18, to nullify the "contract" because there was no meeting of the minds, but fraud in the inducement, and to set aside the settlement agreement based on duress and fraud. This pleading was repetitive of defendants' objection to entry of the order enforcing the settlement agreement.
In mid-December 2019, defendants filed a new motion to set aside the order, asserting plaintiffs failed to properly serve the motion and an inability to "get MIFILE to work properly." In this motion, defendants alleged that plaintiffs were aware that defendants' counsel only filed a limited appearance. Yet, for the motion for entry of order, plaintiffs did not serve defendants. Because William was recently hospitalized, he was unaware of the hearing on the motion for entry to enforce the settlement order and did not appear. In light of the improper service, defendants alleged that the entry of the judgment should be set aside, and defendants' previously filed objection to entry was moot.
Plaintiffs opposed defendants' motions, asserting that they were without merit because defendants participated in and agreed to the settlement agreement when represented by counsel and without duress or fraud. Additionally, plaintiffs filed a motion for costs and attorney fees, MCR 2.625(A)(2). Specifically, plaintiffs noted that defendants, appearing in pro per, filed motions and exhibits consisting of hundreds of pages that simply sought to relitigate issues that were now resolved in the settlement agreement. Additionally, defendants did not adhere to the court rules and its limits on the length of filings. Further, because the arguments raised by defendants were supported by affidavits that contained knowingly false, reckless, and malicious claims, sanctions should be imposed for raising the frivolous claims.
The trial court issued a decision and order denying defendants' objections to entry of the order enforcing the settlement agreement because the challenge to service was meritless when defendants' then counsel was properly served with the motion. The trial court further concluded that the motion was more appropriately a motion for reconsideration because it requested reevaluation of the prior decision to enforce the agreement, and a palpable error was not demonstrated. Further, the trial court concluded that it lacked jurisdiction to consider the request for injunctive relief and to nullify the contract "given entry of the Order Granting Motion to Enforce Settlement Agreement." Finally, the trial court concluded that there was no evidence of fraud or duress. Rather, the settlement agreement and pocket judgment "were reached after mediation facilitated by Attorney Todd Millar and negotiation by the parties." All parties were represented by counsel and willingly agreed to the settlement. The trial court further held that because it lacked jurisdiction to hear defendants' issues, the motions were frivolous, and costs and attorney fees should be awarded.
On December 11, 2019, defendants' attorney, Klaus, filed a motion to withdraw because his retention was for a limited purpose. In this motion, it indicated that defendants and counsel agreed that his representation had concluded once he conveyed defendants' mutual release to plaintiffs on October 23, 2019. The trial court granted the motion.
In November 2020, HOA's counsel advised the county clerk that it paid $9, 999.87 for the removal of the gazebo on defendants' property. The attached invoice indicated that the structure on Lot 11 was demolished and removed. In January 2021, defendants moved to set aside an order awarding attorney fees again asserting that plaintiffs committed fraud and the court lacked legal authority to enter any award, but the trial court denied the motion. Finally, William filed a petition with Leelanau County and the Construction Code Commission in an attempt to obtain relief, but the commission concluded that the issue was moot because the structure had been torn down. From these rulings, defendants appeal.
II. APPLICABLE STANDARDS
The existence and interpretation of a contract presents a question of law that the appellate court reviews de novo. Myland v Myland, 290 Mich.App. 691, 700; 804 N.W.2d 124 (2010). The trial court's finding regarding the validity of the parties' consent to a settlement agreement is reviewed for an abuse of discretion. Vittiglio v Vittiglio, 297 Mich.App. 391, 397; 824 N.W.2d 591 (2012). This Court reviews the trial court's ultimate decision on a motion for relief from judgment for an abuse of discretion. Bullington v Corbell, 293 Mich.App. 549, 554; 809 N.W.2d 657 (2011). The factual findings underlying an award of attorney fees are reviewed for clear error, Brown v Home Owners Ins Co, 298 Mich.App. 678, 690; 828 N.W.2d 400 (2012), but questions of law are reviewed de novo. Loutts v Loutts, 298 Mich.App. 21, 24; 826 N.W.2d 152 (2012). A trial court does not abuse its discretion unless it chooses an outcome outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 N.W.2d 809 (2006).
III. ANALYSIS
Preliminarily, defendants raise a litany of issues, but fail to correlate their arguments to the statements of questions presented. Additionally, defendants submitted that a retired judge advised them that racism existed in the community, and therefore, they would not succeed. Yet, defendants never identified the judge or filed admissible documentary evidence to support their allegations. At case call, defendant William stated he did not know the name of the alleged judge who had made the purported statements to him. Although defendants asserted that criminal statutes were violated, they did not file a countercomplaint against plaintiffs and did not identify civil claims arising from any alleged criminal behavior.
Further, defendants' briefs filed on appeal fail to comport with MCR 7.212(C)(6). Defendants' statements of facts did not contain "[a]ll material facts, both favorable and unfavorable, and is not stated, "without argument or bias." Defendants omitted unfavorable facts from their briefs. Additionally, defendants did not support their statements of facts with citation to the lower court record, id., but rather cited to exhibits filed with their briefs on appeal. They use their statement of facts as an extension of an argument section. In fact, defendants make factual allegations that were contrary to the record evidence. For example, defendants misrepresented the dismissal of their complaint to the Michigan Civil Rights Commission.
Defendants requested leniency because they proceeded in pro per. However, an appellant who proceeds in propria persona is generally held to the same standards as attorneys. Baird v Baird, 368 Mich. 536, 539; 118 N.W.2d 427 (1962); Totman v Royal Oak Sch Dist, 135 Mich.App. 121, 126; 352 N.W.2d 364 (1984). A litigant who decides to proceed without counsel is "bound by the burdens that accompany" that decision. Hoven v Hoven, 9 Mich.App. 168, 174; 156 N.W.2d 65 (1967). Moreover, "[a] party may not simply announce a position and leave it to this Court to make the party's arguments and search for authority to support the party's position. Failure to adequately brief an issue constitutes abandonment." Seifeddine v Jaber, 327 Mich.App. 514, 519-520; 934 N.W.2d 64 (2019) (citation omitted; emphasis added). Although we may consider the issues abandoned because of the inadequate briefing, id., and may dismiss an appeal for failing to comply with the applicable court rules, MCR 7.216(A)(10), we attempted to discern and address defendants' arguments in relationship to the rulings rendered by the trial court.
A. ENFORCEMENT OF SETTLEMENT AGREEMENT
Defendants first allege that the trial court erred by enforcing the settlement agreement when it was obtained through fraud and duress. We disagree.
"[A] consent judgment is a settlement or a contract that becomes a court judgment when the judge sanctions it." Acorn Investment Co v Mich. Basic Prop Ins Ass'n, 495 Mich. 338, 354; 852 N.W.2d 22 (2014). An agreement to settle pending litigation constitutes a contract, and the rules governing construction and interpretation of a contract apply. Clark v Progressive Ins Co, 309 Mich.App. 387, 394; 872 N.W.2d 730 (2015).
"The essential elements of a contract are parties competent to contract, a proper subject matter, legal consideration, mutuality of agreement, and mutuality of obligation." Mallory v City of Detroit, 181 Mich.App. 121, 127; 449 N.W.2d 115 (1989). Issues regarding the proper interpretation of a contract or the legal effect of a contractual clause are reviewed de novo. Fodale v Waste Mgt of Michigan, Inc, 271 Mich.App. 11, 16-17; 718 N.W.2d 827 (2006). When interpreting a contract, the examining court must ascertain the intent of the parties by evaluating the language of the contract in accordance with its plain and ordinary meaning. In re Egbert R Smith Trust, 480 Mich. 19, 24; 745 N.W.2d 754 (2008). If the language of the contract is clear and unambiguous, it must be enforced as written. Id. A contract is unambiguous, even if inartfully worded or clumsily arranged, when it fairly admits of but one interpretation. Holmes v Holmes, 281 Mich.App. 575, 594; 760 N.W.2d 300 (2008). Every word, phrase, and clause in a contract must be given effect, and contract interpretation that would render any part of the contract surplusage or nugatory must be avoided. Woodington v Shokoohi, 288 Mich.App. 352, 374; 792 N.W.2d 63 (2010). [McCoig Materials, LLC v Galui Constr, Inc, 295 Mich.App. 684, 694; 818 N.W.2d 410 (2012).]
There is a presumption that the parties understand and intend the language employed in their agreement. Chestonia Twp v Star Twp, 266 Mich.App. 423, 432; 702 N.W.2d 631 (2005). This Court must enforce a contract as written when there is only one possible interpretation. Id.
The settlement agreement reached in this case was submitted pursuant to the parties' stipulation. When a stipulated order is accepted by the trial court, it must generally be construed in accordance with the rules of contract construction. Phillips v Jordan, 241 Mich.App. 17, 21; 614 N.W.2d 183 (2000). "Like contracts, stipulated orders are agreements reached by and between the parties." Id. "Although the trial court is not necessarily constrained to accept the parties' stipulations or agreements verbatim, the trial court is entirely permitted to accept them and presume at face value that the parties actually meant what they signed." Rettig v Rettig, 322 Mich.App. 750, 755-756; 912 N.W.2d 877 (2018). "[L]itigants are not free to disregard a settlement agreement knowingly entered into on the court record and to which satisfactory evidence of mistake, fraud, or unconscionable advantage is not evident." Groulx v Carlson, 176 Mich.App. 484, 492; 440 N.W.2d 644 (1989).
In People v Metamora Water Serv, 274 Mich.App. 376, 385; 741 N.W.2d 61 (2007), this Court delineated what constitutes a stipulation and its effect:
A stipulation is an agreement, admission, or concession made by the parties in a legal action with regard to a matter related to the case. Staff v Marder, 242 Mich.App. 521, 535; 619 N.W.2d 57 (2000). The parties may enter into a stipulation to avoid delay, trouble, and expense. When the parties stipulate a set of facts, the stipulated facts are binding on the court, but stipulations of law are not binding. Id.
When the parties reach a stipulated settlement agreement, the circumstances warranting setting aside the agreement are limited because enforcement of the parties' agreement is favored:
"An agreement to settle a pending lawsuit is a contract and is to be governed by the legal principles applicable to the construction and interpretation of contracts." Walbridge Aldinger Co v Walcon Corp, 207 Mich.App. 566, 571; 525 N.W.2d 489 (1994). The bedrock of contract law is that "parties are free to contract as they see fit, and the courts are to enforce the agreement as written absent some highly unusual circumstance, such as a contract in violation of law or public policy." Wilkie v Auto-Owners Ins Co, 469 Mich. 41, 51; 664 N.W.2d 776 (2003). In fact, "[t]he notion, that free men and women may reach agreements regarding their affairs without government interference and that courts will enforce those agreements, is ancient and irrefutable." Id. at 52. Thus, "[t]he litigant who . . . asserts [a mistake of fact defense] to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, of professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and decrees based thereon." Wagner v Myers, 355 Mich. 62, 68; 93 N.W.2d 914 (1959). Courts are bound to enforce settlement agreements absent evidence such as fraud or duress. Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich.App. 265, 268; 520 N.W.2d 708 (1994). [Draves v Draves (In re Draves), 298 Mich.App. 745, 767-768, 828 N.W.2d 83 (2012).]
If a contract is unambiguous, it must be interpreted in accordance with its plain meaning. Shay v Aldrich, 487 Mich. 648, 660; 790 N.W.2d 629 (2010). If the contract language is ambiguous, courts may examine extrinsic evidence to discern the parties' intent. Id.
In the present case, the parties do not dispute that a settlement agreement was entered into following a mediation with attorney Millar and that all parties were represented by counsel at the time of the settlement. The agreement itself was reduced to writing. Once the trial court was apprised of the settlement, it closed the case. Thus, there is no dispute that a settlement agreement was entered into, and a contract was reduced to writing. Moreover, the language of the settlement agreement is unambiguous and plain. In light of the above, the trial court did not err in enforcing the settlement agreement.
For purposes of completeness, we recognize that in rejecting defendants' challenges to the entry and enforcement of the settlement agreement, the trial court stated that it did not have jurisdiction to address defendants' allegations that did not pertain to the agreement. Although the trial court stated that it lacked jurisdiction, this was a misstatement. Jurisdiction is the court's power to act and its authority to decide a case, and its subject matter jurisdiction is conferred by statute. In re Petition of Tuscola Co Treasurer for Foreclosure, 317 Mich.App. 688, 694-695; 895 N.W.2d 659 (2016). A circuit court has original jurisdiction to hear all civil claims and remedies unless the exclusive jurisdiction is provided by constitution or statute to another court. Id.; see also MCL 600.605. Thus, the trial court did, in fact, have jurisdiction to hear this civil claim. However, the trial court's authority to review the settlement agreement was limited because courts must enforce settlement agreements absent evidence such as fraud or duress. In re Draves, 298 Mich.App. at 767-768. Indeed, in light of the parties' settlement agreement and its terms, the trial court was not authorized to examine the complaint and the validity of the allegations, but was limited to the agreement's enforcement. However, this misstatement regarding a lack of jurisdiction does not provide a ground for reversal of the trial court. This Court may affirm a decision that reaches the correct result, albeit for the wrong reason. Varela v Spanski, 329 Mich.App. 58, 81; 941 N.W.2d 60 (2019).
1. FRAUD AND DURESS
Nonetheless, defendants submit that the circuit court erred in allowing the settlement agreement to stand because there was no zoning violation and plaintiffs committed fraud in the inducement to obtain the settlement agreement and engaged in duress. In making these arguments, defendants repeatedly cite to the fact that a nuisance per se could not be established because they were in compliance with the zoning regulations, or if not, the penalty for a zoning violation was not the forced loss of their property, but rather a $100 fine. Defendants' position does not recognize that the posture of the case changed in light of the negotiated settlement. Specifically, because the parties agreed to resolve the litigation, there was never an adjudication of zoning violations and any underlying motive, nuisance per se, violations of restrictive covenants running with the land, or libel. Rather, the parties came to a settlement agreement to dismiss the litigation when all parties were represented by counsel and with the aid of attorney Millar. Upon receiving notice of the negotiated settlement, the trial court on March 19, 2019, entered an order closing the case because a settlement agreement was executed at mediation. Therefore, plaintiffs were to submit the necessary judgment. Indeed, on June 4, 2019, the trial court signed a stipulation and order of dismissal that was approved as to form and signed by the parties' attorneys. This order stated:
The parties have stipulated to entry of this order of dismissal, and the court has considered the matter.
IT IS ORDERED that this action is dismissed in its entirety with prejudice and without costs.
IT IS FURTHER ORDERED THAT this Court maintained jurisdiction over this matter to enforce the terms of the settlement agreement between the parties.
This order disposes of the last pending claim and closes the case.
Thus, the trial court's involvement in the case was not to relitigate the underlying claims in the complaint, but to oversee enforcement of the settlement agreement. Defendants failed to recognize how the nature of the case changed in light of the settlement. That is, at this point, defendants were not entitled to challenge the zoning issues, construction, and permitting questions that caused the litigation to arise, but rather, the issues were limited to whether the terms of the settlement agreement were satisfied by the respective parties.
Nonetheless, defendants contend that plaintiffs committed fraud in inducing defendants to enter into the settlement. In Custom Data Solutions, Inc v Preferred Capital, Inc, 274 Mich.App. 239, 242-243; 733 N.W.2d 102 (2006), this Court delineated the following principles addressing fraud in the inducement:
"[I]n general, actionable fraud must be predicated on a statement relating to a past or an existing fact." Samuel D Begola Services, Inc v Wild Bros, 210 Mich.App. 636, 639; 534 N.W.2d 217 (1995). However, "Michigan also recognizes fraud in the inducement . . . [which] occurs where a party materially misrepresents future conduct under circumstances in which the assertions may reasonably be expected to be relied upon and are relied upon." Id. To establish a fraud in the inducement, a party must show that
"(1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly, without knowledge of its truth and as a positive assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage." [Belle Isle Grill Corp v Detroit, 256 Mich.App. 463, 477; 666 N.W.2d 271 (2003); M&D, Inc v McConkey, 226 Mich.App. 801, 806; 573 N.W.2d 281 (1997).]
"Fraud in the inducement to enter a contract renders the contract voidable at the option of the defrauded party." Samuel D Begola Services, supra at 640.
In their brief, defendants contend that plaintiffs committed fraud in the inducement to enter the settlement because they:
(1) "Falsely accused [defendant William] of a zoning violation when none existed"; (2) "Violation of the Michigan Zoning Enable Act in its entirety denying due process to [defendant William] and denied exposing thus fraud to a zoning Board of Appeals"; (3) "No legislative authority for suing [defendant William] by failure of violating the Michigan Zoning Enabling Act, thus embezzling public funds"; (4) "Violation of the Open Meeting Act. Conspiring about the fraud at a closed Township Board meeting in where zoning by law must be discussed in an open meeting and so does suing someone"; (5) "Only settlement negotiations are exempt from any open meeting. Using public funds to fund fully or partially funding a private litigation with no benefit to the community is in violation of the State Constitution"; and (6) "Litigation is for remedial purpose, the Settlement Agreement is fraudulent because the terms were not remedial and outside the authority of the Protective Restrictions and Township ordinances".
Contrary to defendants' assertions, we conclude that they failed to establish fraud in the inducement. Specifically, defendants were represented by counsel at the mediation where the settlement agreement was reached. Therefore, any misrepresentation by plaintiffs of applicable zoning laws, defendants' entitlement to pursue a zoning appeal despite plaintiffs' complaint, and the enforcement of covenant restrictions that run with the land could have been disputed by defendants' counsel. Additionally, defendants cannot establish that plaintiffs made any representation with the intention that the defendants would act and could rely upon it because, when the negotiation occurred, defendants had the benefit of counsel to advise them of the contrary. Specifically, all parties were represented by counsel at the settlement negotiations. Therefore, if plaintiffs made representations that defendants could not pursue an appeal because of the filing of the underlying complaint, defendants' counsel should have apprised them regarding the options following a citation for a zoning violation. Under the circumstances, the trial court appropriately concluded that there was no fraud in the inducement established by defendants to warrant relief from entry of the settlement agreement.
Additionally, defendants contend that they should be relieved from the settlement agreement because of duress. However, defendants seemingly argue that the duress was caused by severe stress. Specifically, William contends that his repair of defendants' property and the zoning violation was not an issue until he introduced his adopted African-American child to the community, and he suffered emotional distress because of the community response and his inability to protect his child. In Howard v Howard, 134 Mich.App. 391, 396-397; 352 N.W.2d 280 (1984), this Court discussed overturning a settlement agreement due to severe stress:
. . . where a party gives actual consent to a settlement agreement, a judgment based upon that agreement will be overturned only upon a finding of fraud, duress or mutual mistake. Where a party alleges that his or her consent, while actually given, was influenced by circumstances of severe stress, the standard to be applied is that of mental capacity to contract. The VanWagoner Court used the following test, taken from Star Realty, Inc v Bower, 17 Mich.App. 248, 250; 169 N.W.2d 194 (1969), lv den 383 Mich. 768 (1970):
" 'The well-settled test of mental capacity to contract, properly adopted by the trial court, is whether the person in question possesses sufficient mind to understand, in a reasonable manner, the nature and effect of the act in which he is engaged. However, to avoid a contract it must appear not only that the person was of unsound mind or insane when it was made, but that the unsoundness or insanity was of such a character that he had no reasonable perception of the nature or terms of the contract.' "
The finding of the trial court concerning the validity of the parties' consent to a settlement agreement placed on the record will not be overturned absent a finding of abuse of discretion. Tinkle, supra; VanWagoner, supra at 214.
In the present case, the trial court did not abuse its discretion by enforcing the settlement agreement despite defendants' claim of duress. The record evidence demonstrates that William possessed sufficient mind to reasonably understand the nature and effect of the act in which he was engaged despite any physical or mental health challenges. Howard, 134 Mich.App. at 396-397. Indeed, in William's numerous emails, he apprised subdivision and township officials of his belief that any zoning violations were motivated by racism. He further vowed to fight the claims and obtain a financial recovery by publicizing plaintiffs' actions and organizing a corporate boycott of the community. His steps included contacting members of the media and government for assistance. Defendants failed to demonstrate that the settlement agreement was the product of duress arising from extreme stress.
2. IMPROPER SERVICE
Defendants further contend that they were not appropriately served regarding the motion for entry of order pertaining to the release because service occurred on attorney Klaus, and he had been retained for a limited appearance. The trial court concluded that service was appropriate. We conclude that the trial court's decision did not constitute an abuse of discretion. See Woods v SLB Prop Mgmt, LLC, 277 Mich.App. 622, 626;750 N.W.2d 228 (2008). MCR 2.107(B) addresses service on attorney or party and provides, in pertinent part:
(1) Service required or permitted to be made on a party for whom an attorney has appeared in the action must be made on the attorney except as follows:
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(d) The court may order service on the party;
(e) If an attorney files a notice of limited appearance under MCR 2.117 on behalf of a self-represented party, service of every document later filed in the action must continue to be made on the party, and must also be made on the limited scope attorney for the duration of the limited appearance. At the request of the limited scope attorney, and if circumstances warrant, the court may order service to be made only on the party.
Defendants contend that they did not receive service of the documents and service on their counsel was insufficient because the limited appearance of counsel was complete. However, neither defendants nor their counsel, Klaus, never formally apprised the trial court or plaintiffs' counsel that the limited appearance was complete. Specifically, Klaus did not apprise the trial court of the completion of his services and move to withdraw from the litigation until December 2019, approximately two months after the motion was filed. While defendants contend that Klaus was only retained to respond to the motion for entry of an order pertaining to the settlement agreement, it was unclear whether Klaus' services were completed because plaintiffs sought entry of the mutual release which was negotiated during and part of the settlement agreement.
Moreover, even if we assume, without deciding, that defendants were entitled to and did not receive service, any error was harmless. See Bellevue Ventures, Inc v Morang-Kelly Inv, 302 Mich.App. 59, 63; 836 N.W.2d 898 (2013). Defendants objected to entry of the order on legal grounds, but then filed a motion alleging improper service. The trial court treated the motion for improper service as a motion for reconsideration, but nonetheless noted that a palpable error could not be demonstrated because the mutual release submitted by plaintiffs comported with the terms of the settlement agreement. Thus, defendants' objection to the merits of the issue were not sustained. Further, the trial court did not make any finding that plaintiffs deliberately served defendants' counsel in an attempt to obtain a strategic advantage or prevent defendants from receiving notice of the hearing. Because the trial court essentially conducted an evaluation of the merits of the issue and rejected defendants' position, any defects in service constituted harmless error. Id.
3. DUE PROCESS AND UNAUTHORIZED FUNDING
Although not ruled upon by the trial court, defendants seemingly assert that they were deprived of due process to pursue a zoning appeal when plaintiffs filed their original complaint alleging nuisance per se and libel and seeking enforcement of the subdivision's covenant restrictions. Further, defendants contend that the use of taxpayer funds by the township was improper because the funds were used to finance HOA's litigation and, in effect, constituted embezzlement. Defendants' contentions are without merit.
In the record below, William asserted that plaintiffs engaged in a conspiracy and fraud because he was given a citation for a zoning violation. Instead of being permitted to file a claim of appeal with the zoning board or to pay a minimal fine, defendants alleged that plaintiffs deprived them of due process by filing the underlying civil complaint. Defendants are simply incorrect. After the township issued a zoning citation or violation, defendants were not precluded from pursuing matters before the zoning board of appeals. Indeed, MCR 7.122(A) "governs appeals to the circuit court from a determination under a zoning ordinance by any officer, agency, board, commission, or zoning board of appeals, and by any legislative body of a city, village, township, or county authorized to enact zoning ordinances." Further, MCR 7.122(A)(2) sets forth that the rule "does not restrict the right of a party to bring a complaint for relief relating to a determination under a zoning ordinance. A party may seek a stay of enforcement under MCR 7.123(E)." See also Ansell v Delta Co Planning Comm, 332 Mich.App. 451, 457; 957 N.W.2d 47 (2020). The plain language of the court rule must be examined, and if the language is clear and unambiguous, the court rule must be enforced as written. Patel v Patel, 324 Mich.App. 631, 639-640; 922 N.W.2d 647 (2018).
However, there is nothing in the plain language of MCR 7.122 to indicate that plaintiffs' filing of a nuisance per se action arising from defendants' use of the property precluded defendants from simultaneously challenging any zoning decision before the zoning board of appeals or in circuit court. Indeed, defendants could have requested that plaintiffs' civil action be stayed pending a zoning appeal in order to avoid the potential for contradictory decisions. There is no indication that defendants took this action or requested that counsel pursue this strategy.
Additionally, defendants contend that embezzlement occurred because taxpayer funds were used by the township to fund the litigation for HOA, the subdivision. However, defendants failed to examine the complaint and the first amended complaint in which causes of action were alleged for: (1) nuisance per se (by both plaintiffs), (2) enforcement of restrictive covenants, (3) recovery of costs and attorney fees, and (4) libel, with the last three claims brought solely by HOA. Thus, while the township may have filed suit with co-plaintiff HOA, there is no indication that taxpayer funds were used to support the HOA claims. Indeed, both plaintiffs were represented by separate counsel. The lead counsel appeared on behalf of HOA and counsel for the township would authorize his signature on pleadings in which the parties had a joint interest or position. Thus, defendants' contention that embezzlement occurred by the township is simply not supported by the record.
B. ATTORNEY FEES AND CONSTRUCTION CODE COMMISSION
In Docket No. 356520, defendants appealed the order failing to set aside attorney fees and costs. In Docket No. 356761, defendant William appealed the Construction Code Commission's determination that the petition was moot in light of the removal of the gazebo from defendants' property. However, defendants do not dispute the rationale underlying those decisions, but continue to contend that plaintiffs initiated the zoning violations as a result of racism. When an appellant fails to dispute the basis of the trial court's ruling before the appellate court, this Court need not consider granting plaintiffs the relief requested. Derderian v Genesys Health Care Sys, 263 Mich.App. 364, 381; 689 N.W.2d 145 (2004). Because defendants failed to address the specific rulings rendered below, but continue to allege that they were the victims of racial discrimination, they made no argument or showing that they were entitled to relief of these specific orders. Moreover, we conclude that the rulings by the trial court and the Construction Code Commission were appropriate under the circumstances. Defendants failed to demonstrate entitlement to appellate relief.
Affirmed. Plaintiffs and the Construction Code Commission, as the prevailing parties, may tax costs.