Opinion
No. 311840
01-28-2014
OJARS SVINTE, Plaintiff-Appellant, v. MACOMB TOWNSHIP, Defendant-Appellee.
UNPUBLISHED
Macomb Circuit Court
LC No. 2012-002152-CZ
Before: METER, P.J., and JANSEN and WILDER, JJ. PER CURIAM.
Plaintiff Ojars Svinte, appeals as of right the trial court's order dismissing his declaratory complaint and ordering sanctions based on its finding that the complaint was frivolous. We affirm.
Plaintiff owned property in Macomb County. On January 19, 2012, the code official for the Macomb Township Building Department issued plaintiff a "notice order," ordering him to remove all unlicensed and unregistered vehicles from his property. Plaintiff appealed the notice order to the Macomb County Building Board of Appeals, and a hearing was held on March 14, 2012. The law firm of Seibert & Dloski, P.C., was Macomb Township's legal counsel. Colleen O'Connor-Worden, an associate of Seibert & Dloski, P.C., was present at the hearing. At plaintiff's request, the hearing was held in abeyance so that it could be determined if the vehicles on plaintiff's property were registered and licensed. After an inspection by two board of appeals members, the code official issued an "amended notice order," ordering plaintiff to remedy three additional violations that existed on his property. Plaintiff appealed the amended notice order to the building board of appeals.
On May 10, 2012, plaintiff filed a complaint for declaratory relief, naming Macomb Township as defendant. As relevant to the issues on appeal, plaintiff requested "declaratory relief by way of guidance" in the form of an order determining whether a conflict of interest existed as a result of Seibert & Dloski, P.C.'s representation of both the code official and the Macomb Township Building Board of Appeals. Plaintiff filed a motion to show cause why the relief sought in plaintiff's complaint should not be granted, and the trial court issued the order. At the conclusion of the show cause hearing, the trial court sue sponte dismissed plaintiff's complaint with prejudice. It also found plaintiff's complaint to be frivolous and ordered plaintiff to pay sanctions for the costs related to defense counsel's preparation and appearance at the hearing.
Plaintiff first argues that the trial court improperly dismissed his complaint for declaratory relief. This Court reviews de novo a trial court's grant of summary disposition. Wilson v King, 298 Mich App 378, 381; 827 NW2d 203 (2012). Although the trial court failed to state under which subrule it granted dismissal, appellate review is not precluded where this Court has a sufficient record to rule properly. Id at 380-381. Here, we conclude that summary disposition was proper pursuant to MCR 2.116(C)(4) because the trial court lacked subject matter jurisdiction to grant declaratory relief. In deciding a motion under MCR 2.116(C)(4), the trial court must consider whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law or whether the affidavits and other proofs show there was no genuine issue of material fact. Cork v Applebee's of Mich, Inc, 239 Mich App 311, 315; 608 NW2d 62 (2000).
The existence of an "actual controversy" is a condition precedent to invocation of declaratory relief. Citizens for Common Sense in Gov v Attorney Gen, 243 Mich App 43, 55; 620 NW2d 546 (2000). '"What is essential to an 'actual controversy' under the declaratory judgment rule is that [the] plaintiff plead and prove facts which indicate an adverse interest necessitating a sharpening of the issues raised."' Id., quoting Shavers v Attorney Gen, 402 Mich 554, 589; 267 NW2d 72 (1978). "Generally, where the injury sought to be prevented is merely hypothetical, a case of actual controversy does not exist." Citizens for Common Sense in Gov, 243 Mich App at 55 . In his complaint, plaintiff only alleged that a conflict may exist. And, at the show cause hearing, plaintiff did not offer any proof or citation to legal authority to support that a conflict actually existed. He only argued that Seibert & Dloski, P.C.'s representation of both the Macomb County Code Official and the Macomb County Building Board of Appeals made the appeal process a "sham." We find that plaintiff's allegation that a conflict existed was based on speculation, not an actual controversy. Moreover, because plaintiff failed to plead or prove a distinct and palpable injury as to himself, the injury sought to be prevented was merely hypothetical and the trial court did not have subject matter jurisdiction to enter a declaratory judgment. Lansing Schools Ed Ass'n v Lansing Bd of Ed (On Remand), 293 Mich App 506, 515-516; 810 NW2d 95 (2011). As a result, defendant was entitled to judgment as a matter of law. MCR 2.116(C)(4).
Plaintiff next argues that he was entitled to declaratory relief because Seibert & Dloski, P.C.'s representation of both the Macomb County Code Official and the Macomb County Building Board of Appeals constituted a violation of Michigan Rule of Professional Conduct (MRPC) 1.7(b). MRPC 1.0(b) specifically disclaims the creation of a cause of action for enforcement of the rules of professional conduct. See Watts v Polaczyk, 242 Mich App 600, 607 n 1; 619 NW2d 714 (2000). Therefore, because plaintiff did not have a cause of action to enforce the MRPC, the trial court lacked subject matter jurisdiction, Ryan v Ryan, 260 Mich App 315, 330; 677 NW2d 899 (2004), and judgment as a matter of law was therefore proper pursuant to MCR 2.116(C)(4), Cork, 239 Mich App at 315.
We note plaintiff's argument that the International Property Maintenance Code (IPMC) supports that a conflict of interest existed. IPMC § 111.2 provides that the code official is not permitted to vote on a matter before the board of appeals. However, the lower court record does not support that the code official or any attorney from Seibert & Dloski, P.C., voted on any matter before the board of appeals concerning plaintiff's appeal. Accordingly, based on the record, plaintiff's argument that a conflict existed pursuant to IPMC § 111.2 is unsupported.
Next, plaintiff argues that, because the trial court sua sponte dismissed his complaint, he was not afforded an opportunity to formulate arguments and identify relevant legal principles to avoid dismissal. MCR 2.116(I)(1) grants a trial court authority to grant summary disposition sua sponte, Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009), and this does not offend due process so long as a party is presented with an opportunity to respond, Hover v Chrysler Corp, 209 Mich App 314, 317; 530 NW2d 96 (1994). Here, the record supports that, in its brief opposing plaintiff's declaratory complaint, defendant argued that plaintiff's claim was unsupported by legal authority and that an actual controversy did not exist. Further, plaintiff was present at the hearing and was permitted to make his arguments before the trial court granted dismissal. Therefore, plaintiff's due process rights were not offended by the trial court's sua sponte order granting dismissal.
Plaintiff also argues on appeal that his due process rights were violated as a result of Seibert & Dloski, P.C.'s representation of both the code official and the board of appeals because he was denied an impartial decision maker. Plaintiff did not raise his due process arguments below, so they are not preserved. Klapp v United Insurance Group Agency, 259 Mich App 467, 475; 674 NW2d 736 (2003). Because issues raised for the first time on appeal in a civil case are ordinarily not subject to review, Nuculovic v Hill, 287 Mich App 58, 63; 783 NW2d 124 (2010), we decline to review plaintiff's constitutional arguments here. But to the extent that we have considered them, we find that they have no merit.
Plaintiff next argues that the trial court erred by finding that his complaint was frivolous. We review a trial court's finding that a lawsuit is frivolous for clear error. Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002). In Michigan, a trial court has the authority to sanction a party pursuant to MCR 2.114 and MCL 600.2591. BJ's & Sons Const Co, Inc v Van Sickle, 266 Mich App 400, 404; 700 NW2d 432 (2005). Here, the record establishes that plaintiff failed to cite to any legal authority in his complaint or at any point in the proceedings. Moreover, if plaintiff had conducted any research, he would have determined that a cause of action for violation of the MRPC does not exist. Therefore, we find that plaintiff's declaratory relief claim was devoid of legal merit and was frivolous pursuant to MCL 600.2591 and MCR 2.114(F). We further find that, because plaintiff's claim for declaratory relief based on the alleged conflict of interest was "not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," ordering sanctions was also proper pursuant to MCR 2.114(D).
Finally, while plaintiff argues on appeal that the trial court improperly sanctioned himself and his then attorneys for filing the frivolous complaint, the lower court record establishes that the trial court only ordered that plaintiff pay attorney fees and costs. Accordingly, plaintiff's argument as related to his attorneys is unsupported by the record.
Affirmed. Defendant may tax costs. MCR 7.219.
Patrick M. Meter
Kathleen Jansen
Kurtis T. Wilder