Opinion
No. 350116
07-23-2020
TOWNSHIP OF INDIANFIELDS, Plaintiff-Appellee, v. ERNEST JACK CARPENTER, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Tuscola Circuit Court
LC No. 18-030561-CZ Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ. PER CURIAM.
Defendant, Ernest Jack Carpenter, appeals by right the trial court's order granting summary disposition in favor of plaintiff, the Township of Indianfields, pursuant to MCR 2.116(C)(9) (failure to state a defense) and (10) (no genuine question of material fact and moving party entitled to judgment as a matter of law). The trial court subsequently denied defendant's motion to amend his answer, which defendant had captioned as being a motion for reconsideration. We affirm the trial court's grant of summary disposition, but we vacate the trial court's denial of defendant's motion to amend the pleadings, and we remand for further proceedings.
I. FACTUAL BACKGROUND
The parties have a longstanding dispute over defendant's use of his property. Very generally, plaintiff contends defendant is using his property as a junkyard, demolition site, and storage site for junk and waste. Defendant contends that he is operating a farm and keeps valuable farm equipment, collectable vintage vehicles, necessary spare parts, and some temporary waste items he intends to dispose of. The record suggests that the parties have engaged in litigation over defendant's use of his property since at least 2008 or 2004, and possibly longer. Most recently, plaintiff commenced suit against defendant in 2011 under the Township's Blight Ordinance and Zoning Ordinance. The parties settled that litigation, and on January 2, 2013, the trial court entered a consent judgment in that matter (the 2013 Final Judgment).
In relevant part, the 2013 Final Judgment required defendant to "remove all items identified as blight by the Indianfields Blight Ordinance" in stages, permit inspections of the property, submit a list of equipment on site being used for farming, and otherwise comply with the blight and zoning ordinances. Defendant was permitted to keep one semi-trailer for farm storage purposes and one semi-trailer for farm hauling purposes, and any other semi-trailers if they were stored in a building; licensed, insured, and MDOT-certified; or otherwise "justif[ied by] the Township." In 2014, plaintiff sought to enforce the 2013 Final Judgment. In the trial court's order (the 2014 Order) ostensibly resolving that dispute, it set forth the following recitation of the underlying facts:
Because neither party appears to dispute the trial court's summary, and neither party otherwise provides us with an entirely clear summary of the facts, we adopt the trial court's explanation of the history of this matter.
The Plaintiff, Indianfields Township, is a Michigan municipal corporation located in Tuscola County. The Defendants, Ernest Jack Carpenter and Wilma Jean Carpenter,[] are citizens who own and operate a bonafide, operating farm with a Farm Service Agency number within Indianfields Township. Plaintiff had sought out preliminary and permanent injunctive relief with respect to alleged blight and zoning ordinance violations occurring on defendants' property.
The parties resolved the matter with a stipulated Final Judgment. Said judgment divided the property into five areas. Each area was to be brought into compliance by a specified date. Certain items of personal property were exempted, the plaintiff was granted an opportunity to enter the land for monthly inspections, the defendant was to provide a list of all farm equipment and machinery that was being kept on the land, and the plaintiff was provided with certain enforcement remedies.
Following the entry of a judgment, a dispute arose as to the construction and interpretation of the Judgment, as well as the language of the Township Blight Ordinance, specifically [. . .] the definition of "junk." The township was threatening to remove numerous items from the defendants' premises on or about August 1, 2013. It was the defendants' position that said items fell under the farm equipment exception set forth in the before mentioned ordinance. The defendants filed their Verified Motion For Relief from and/or Interpretations of Judgment and Motion for Ex-Parte Order to Stay Enforcement of Judgment. An ex-parte order Staying Enforcement of Judgment was entered. The Court conducted an evidentiary hearing on the Motion over several days wherein both parties presented testimony and exhibits in support of their respective positions.
Plaintiff presented the testimony of Robert Keilitz, the Zoning Administrator for Indianfields Township. Mr. Keilitz was the individual granted the responsibility for enforcing the provisions of the final judgment by conducting regular inspections of the defendants' property. The plaintiff, through Mr. Keilitz,
presented 167 photographs depicting complained of violations of the Township Blight Ordinance.
Defendant presented the testimony of Waldo John Garner, a farmer who conducts his farming operations in Tuscola County. Mr. Garner testified to the practices of farmers in the area as it relates to retaining older farm equipment and parts for the purpose of having such parts on hand for future repairs of farm equipment. Mr. Garner indicated that it was also his practice to take a part off one piece of equipment for use on another piece of equipment temporarily. He also indicated that from time to time, he trades parts with other farmers, including Mr. Carpenter.
Defendant also presented the testimony of Aaron Reinbold, a farmer and crop insurance salesman who conducts his business in Tuscola County. Mr. Reinbold indicated that he was familiar with farmers in the area retaining equipment for the purpose of spare parts for similar operable equipment. He indicated that this is a common practice of farmers in this area.
Defendant, Ernest Jack Carpenter, testified to the contents of the 167 photographs presented by the Township and his position as to whether or not each photograph contained blight. Defendant also presented two sets of photos. The first set depicted Mr. Carpenter's property from the road. The second set of photos depicted Mr. Carpenter using various items of farm equipment and/or machinery which were otherwise depicted in the Township's photographs. Mr. Carpenter indicated that it is his practice to have duplicates of equipment for purposes of spare parts. Further, that he does not commonly operate all of his farm equipment year around.
There were photographs of 8 semi-trailers. The testimony of both Mr. Keilitz and Mr. Carpenter was that these eight semi-trailers were not included in the specific exemption for semi-trailers contained in the Final Judgment. Photo 3192 depicted an "Oldsmobile" semi-trailer. Photo 3201 depicted four semi-trailers-two white and 2 silver. Photo 3251 depicted a semi-trailer that defendant testified belonged to a Mark Ellesin. Photo 3253 depicted a semi-trailer that defendant testified that he intended to get rid of. Photo 3258 depicted a semi-trailer that defendant testified was owned by someone else.
The parties stipulated that at the time on [sic] the entry of the Final Judgment they had mistakenly omitted a provision which would have exempted Mr. Carpenter's "Dodge Collection" from enforcement under the blight ordinance and/or the Final Judgment. The parties stipulated to an amendment of the Final Judgment which would exempt from enforcement the following items as part of the "Dodge Collection": 4 Dodge Power Wagons, 1 Big Horn Semi-Tractor, 1 Dodge Fire Truck, 3 Yellow Stake Trucks, 1 1996 Green/White 1 ton truck, 1 1994 Pulling Truck, 1 Dodge Cabin Chassis 4x4. Further, the parties agreed that the following vehicles were exempted under the blight ordinance as farm equipment: 1974 Dodge Dump Truck, 1977 Dodge, 1976 Dodge, 2003 Dodge, 1967 Dodge Semi Tractor.
The parties further stipulated that these vehicles shall be lined up behind the storage building and shall not be used for storage.
Further, the parties stipulated and agreed that the following Dodge vehicles are regularly used in farm operation in an off-road capacity: 1977 Dodge pick up, 1976 Dodge pick up, 2003 Dodge pick up, 1967 Dodge semi, 1974 Dodge farm truck, and 1994 Dodge pick up and shall be exempted from the enforcement provisions of the Final Judgment. Likewise, these vehicles shall be lined up behind the storage building and shall not be used for storage.
Wilma Jean Carpenter is defendant's mother. Plaintiff expressly decided not to involve her in the instant action.
The trial court ruled that the 2013 Final Judgment was amended, pursuant to the parties' stipulation, to exempt defendant's Dodge vehicles and all farm machinery. The trial court also ruled that although the Blight Ordinance only permitted property owners to keep a single unlicensed semi-trailer, the 2013 Final Judgment nevertheless permitted defendant to keep two unlicensed semi-trailers, and there was no dispute defendant had eight additional unlicensed semi-trailers, so defendant was required to remove those excess trailers. Finally, the trial court ruled that nothing in the ordinance distinguished between equipment that was operable or inoperable, and the evidence was that farming commonly involved the retention of inoperable or seasonably operable equipment. Therefore, "[a]ny farm machinery, whether operable or inoperable, whether intact or parts, [and including tires] present on the defendants' property at the time of the last inspection, shall be exempted from the enforcement provisions of the Final Judgment."
Plaintiff commenced the instant action in 2018. Plaintiff alleged that defendant had not removed the excess unlicensed semi-trailers from his property. Plaintiff further alleged that defendant was in violation of the recently-enacted Indianfields Nuisance Ordinance, which had been adopted in 2015, repealing the Blight Ordinance, and amended earlier in 2018. Plaintiff finally alleged that defendant was not primarily farming his property, but rather was using it as a junkyard in violation of its agricultural zoning. Plaintiff attached a tome of color photographs in support of its allegations. Defendant apparently encountered difficulty finding counsel to represent him, and he was eventually forced to file an answer in propria persona. For the most part, defendant's answer consisted of general denials, general disavowals of knowledge, or statements that orders and ordinances spoke for themselves. Defendant did not assert any affirmative defenses or attach any documents. The trial court promptly entered a scheduling order. Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(9) (failure to state a defense) and MCR 2.116(C)(10) (no genuine question of material fact) almost three months before the scheduled close of discovery.
Defendant was apparently only able to find counsel shortly before the deadline to respond to plaintiff's motion, and as such, his response was terse. Defendant asserted that plaintiff's motion did not comply with MCR 2.119 in an unspecified manner, plaintiff failed to consider a trial court order from 2012 [sic], and plaintiff's counsel had no understanding of what was depicted in plaintiff's photographs. Defendant did not attach any affidavits or exhibits. However, defendant did specifically assert that all of the semi-trailers on his property were properly licensed and registered, many of the items in plaintiff's photographs were no longer on the property at all, and much of the equipment depicted either was operational or was permissible spare parts. Defendant also asserted that the Township Supervisor had a barn on his property in a collapsed state for the last ten years, and defendant was awaiting certain weather conditions to dispose of certain waste items. Defendant concluded that the motion for summary disposition was premature.
The trial court held a hearing on plaintiff's motion, at which the parties largely argued consistent with their briefs. Plaintiff added that it believed its "pictures really speak for themselves," and emphasized that even ignoring the vehicles, various items of wood, debris, and slag indicated "that this is in fact a junk yard." Plaintiff also added that it had received noise complaints regarding defendant's property that was consistent with "heavy machinery noise" rather than "farm noise." Plaintiff argued that it was entitled to summary disposition because defendant's bare denials were insufficient to raise a legal defense, and defendant had not provided any evidence purporting to contradict the photographs or plaintiff's description of the photographs.
Defendant asserted that he could prove he had licenses and registrations for all of his trailers, and he argued that plaintiff had neither identified what was and was not farm equipment in the photographs nor shown any indication that plaintiff even understood what the photographs depicted. Defendant conceded that there were some waste items on his property, but he was awaiting suitable weather for their disposal. He argued that he had a history of actually removing things from his property that he was supposed to remove, that discovery was not yet closed, and it was likely that the court would "find a whole different situation out there" within a few months. He opined that because he had a right to retain farm equipment and plaintiff had a history of harassing him, it was impossible to craft a valid judgment. Plaintiff argued that the 2013 Final Judgment and 2014 Order were not applicable to the extent they relied on the now-repealed Blight Ordinance, and in any event, they only permitted defendant to have two trailers. Defendant followed up by pointing out that if plaintiff was relying on an amendment to its ordinance, then this was an ex post facto proceeding, and reiterated that plaintiff's counsel did not know how defendant used his equipment. Plaintiff denied that this was an ex post facto proceeding because it was charging defendant based on the present state of his property, not based on the historical state of his property.
The trial court ruled from the bench that it granted plaintiff's motion largely because no defense had been proffered. It conceded that it was possible that plaintiff had amended its ordinance specifically to target defendant, but that "wasn't presented to [it] today." Defendant then filed what he captioned as a motion for reconsideration, providing a more expanded recitation of the facts. Defendant explained that, among other things, the parts on his property were valuable spare parts, many of plaintiff's photographs were simply re-used from 2013 and 2014 and depicted items no longer on defendant's property, and his operations were "grandfathered" because they were ongoing before the most recent zoning ordinance amendment. Defendant also explained his difficulties in finding counsel. Defendant sought leave to amend his pleadings, and he set forth an extensive discussion of various meritorious defenses he could raise. Those defenses included an assertion of a prior nonconforming use, plaintiff being bound by the prior judgment as a contract, plaintiff's likely-intentional misapprehension of the facts and the nature of the items on defendant's property, the fact that he did have an ongoing farm and was entitled to protections under the Right To Farm Act, MCL 286.471 et seq., and the fact that plaintiff apparently modified its ordinance in an effort to get around its own agreement with defendant.
The trial court denied defendant's motion because defendant's proffered defenses "were never pled within the answer nor raised at the Motion for Summary Disposition." This appeal followed. It appears that further motion practice has occurred during the pendency of this appeal regarding enforcement of the trial court's judgment, but no issues pertaining to those motions have been directed to our attention.
II. PRESERVATION OF ISSUES
Generally, an issue is preserved for appellate review if it was raised in the trial court and is pursued on appeal. Peterman v Dep't of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). We agree with plaintiff that defendant's arguments in response to its motion for summary disposition were somewhat haphazard and vague. However, we find none of defendant's arguments on appeal truly novel or surprising in light of the lower court record. Appellate consideration is not precluded merely because a party makes a more sophisticated or more fully-developed argument on appeal than was made in the trial court. See Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002). Additionally, if a trial court grants summary disposition pursuant to MCR 2.116(C)(9) or (10), the trial court is required to give the losing party an opportunity to amend that party's pleadings pursuant to MCR 2.118; and it must grant amendment unless the amendment merely restates the previous allegations or still fails to state a claim or defense. MCR 2.116(I)(5); Yudashkin v Linzmeyer, 247 Mich App 642, 651; 637 NW2d 257 (2001). This necessarily implies that such a motion is not untimely merely because it is made after entry of a summary disposition order.
"Further, this Court may overlook preservation requirements where failure to consider the issue would result in manifest injustice, if consideration of the issue is necessary to a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented." Steward, 251 Mich App at 554. (citations omitted). This Court "prefer[s] to resolve issues on their merits when possible" and thus construes any doubts as to preservation in favor of the appellant. Mueller v Brannigan Bros Restaurants and Taverns LLC, 323 Mich App 566, 585-586; 918 NW2d 545 (2018). We therefore choose to treat defendant's arguments on appeal as preserved.
III. STANDARDS OF REVIEW
Because the trial court considered documentary evidence outside the pleadings submitted by the parties, this Court treats the trial court's grant of summary disposition as having been granted only under MCR 2.116(C)(10). A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. "Generally, summary disposition under MCR 2.116(C)(10) is premature if it is granted before discovery on a disputed issue is complete," but it may be appropriate if the non-moving party cannot show that "further discovery stands a fair chance of uncovering factual support for the opposing party's position." Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292-293; 769 NW2d 234 (2009). A party responding to a motion for summary disposition under MCR 2.116(C)(10) must affirmatively show that there is a genuine question of fact for trial. Maiden, 461 Mich at 120-121.
Pursuant to MCR 2.113(C), if a claim or defense is based on a written instrument, the instrument must be attached to the pleading and is considered part of the pleading. Both parties' claims are to some extent based on the 2013 Final Judgment and 2014 Order, both of which were attached to the Complaint. Thus, the 2013 Final Judgment and 2014 Order are considered part of the pleadings. However, the tome of photographs attached to the Complaint are not a "written instrument" and thus constitutes documentary evidence not a part of the pleadings.
A trial court's decision whether to permit a party to amend the pleadings is reviewed for an abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320 (2004). An abuse of discretion generally occurs when the trial court chooses an outcome that is outside the range of principled and reasonable outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW 2d 809 (2006). However, "[a] trial court necessarily abuses its discretion when it makes an error of law." Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016). Legal determinations underpinning a discretionary decision are reviewed de novo, and underlying factual determinations are reviewed for clear error. Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 470-472; 719 NW2d 19 (2006). If a trial court fails to exercise its discretion when called upon to do so, the trial court necessarily abuses that discretion. Rieth v Keeler, 230 Mich App 346, 348; 583 NW2d 552 (1998), citing People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559 (1990).
IV. SUMMARY DISPOSITION
We agree with plaintiff that defendant's answer to the complaint was insufficient. For example, defendant's general argument to the effect that plaintiff's counsel is incapable of identifying farm equipment from anything else, incapable of identifying equipment that is operable or inoperable, and so on might be true, but it does not actually state a defense. A proper—albeit laborious—defense may have been to review each of the photographs provided by plaintiff and individually explain, for example, that the photograph did not accurately depict the condition of the property and why, that the photograph depicted operable equipment and what it was, that the photograph depicted farm equipment with an explanation of what it was, that the photograph was accurate but plaintiff was awaiting safe weather conditions to rectify the condition, that the photograph specifically depicted something exempted from enforcement under the 2013 Final Judgment and 2014 Order, and so on. Likewise, defendant could have provided some concrete assertion demonstrating that he was, in fact, conducting farming operations; he also could have provided copies of the registration or other certification documents for his trailers. "An answer must consist of more than mere denials, conclusory language and conjecture as [defendant]'s answer does." Burrill v State, 90 Mich App 408, 411; 282 NW2d 337 (1979). Although defendant's failure to present a sufficient defense might be understandable in light of his difficulties finding counsel, the record before the trial court supported its grant of summary disposition.
Nevertheless, because it is relevant to the trial court's denial of defendant's subsequent request to amend his pleadings, we note that we find some aspects of the trial court's ruling troubling. Specifically, we are troubled by plaintiff's contention that it is not bound to honor the 2013 Final Judgment and 2014 Order. Because both were attached to the complaint, and MCR 2.116(G)(5) requires the trial court to consider all record evidence submitted by the parties, defendant was not obligated by MCR 2.116(G)(4) to attach another, redundant copy of these documents to his answer. Thus, to the extent defendant relied on and alluded to the 2013 Final Judgment and 2014 Order, defendant did provide evidentiary support for his position. We emphasize that trial courts need not scour their records in search of a question of material fact. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 377-378; 775 NW2d 618 (2009). Nevertheless, a trial court granting summary disposition under MCR 2.116(C)(10) is required to consider all of the documentary evidence submitted and draw all reasonable inferences in favor of the nonmoving party. Dextrom v Wexford Co, 287 Mich App 406, 415-416; 789 NW2d 211 (2010). Thus, we do not believe trial courts may merely "rubber stamp" a party's motion solely due to the opposing part's failure to provide a competent argument, so long as there are obvious weaknesses in the moving party's position on its face.
"A consent judgment is in the nature of a contract, and is to be construed and applied as such." Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008). "In general, consent judgments are final and binding upon the court and the parties, and cannot be modified absent fraud, mistake, or unconscionable advantage." Id. Plaintiff argues that consent judgments are, nevertheless, not actually contracts, but this misapprehends the applicable case law. It would be more accurate to say that consent judgments are not merely contracts; rather, they are contracts with the extra sanction of a court and the enforcement power of a judgment. See Trendell v Solomon, 178 Mich App 365, 367-370; 443 NW2d 509 (1989); see also Acorn Investment Co v Michigan Basic Property Ins Ass'n, 495 Mich 338, 354; 852 NW2d 22 (2014). A township may confer upon a citizen a right to engage in a use of property contrary to an ordinance, and a consent judgment to that effect is considered a contract. Inverness Mobile Home Community, Ltd v Bedford Twp, 263 Mich App 241, 248; 687 NW2d 869 (2004). Thus, the 2013 Final Judgment, as interpreted by the 2014 Order, is a contract binding upon both parties. See Russell v White, 63 Mich 409, 412; 29 NW 865 (1886).
As discussed above, the 2013 Final Judgment, as interpreted by the 2014 Order, specifically granted, by stipulation, to defendant a right to maintain his collection of Dodge vehicles and as many semi-trailers as were licensed, registered, and roadworthy; provided they were properly stored. Nevertheless, a municipality cannot contract away its powers of legislation. Inverness Mobile Home Community, 263 Mich App at 247-248. Plaintiff argues that the provisions of its Nuisance Ordinance differ from those of the Blight Ordinance; for example, the Nuisance Ordinance no longer has certain exceptions for farm use. Plaintiff argues that the 2013 Final Judgment and 2014 Order pertained only to the applicability of the Blight Ordinance. Thus, plaintiff contends that the 2013 Final Judgment and 2014 Order are inapplicable here. We disagree.
A consent judgment that permits a use of property contrary to an applicable ordinance constitutes a use variance. Green Oak Twp v Munzel, 255 Mich App 235, 236-237, 242-243; 661 NW2d 243 (2003). Plaintiff is correct that persons generally do not have a per se vested right in a statute remaining unchanged. See City of Detroit v Walker, 445 Mich 682, 703; 520 NW2d 135 (1994); In re Certified Question, 447 Mich 765, 777-778; 527 NW2d 468 (1994). However, as plaintiff recognizes, alterations to zoning or other property-use ordinances may only apply prospectively and may not destroy already-vested property interests. Double I Devel Co v Taylor Twp, 372 Mich 264, 268; 125 NW2d 862 (1964); City of Lansing v Dawley, 247 Mich 394, 396; 225 NW2d 500 (1929). Thus, an amendment to an ordinance may not preclude continuance of a use that had been lawful before the effective date of the amendment. See Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993).
A use variance that was granted but never acted upon confers no vested rights, because there was no "use" that could be continued. Double I Devel Co, 372 Mich at 268. However, a use variance is administrative, not legislative, Inverness Mobile Home Community, 263 Mich App at 247, and constitutes a license to use property contrary to otherwise applicable ordinances. Paragon Properties Co v City of Novi, 452 Mich 568, 575; 550 NW2d 772 (1996). Therefore, to the extent defendant actually complied with the storage requirements of the 2013 Final Judgment and 2014 Order, his possession of his Dodge vehicle collection, properly licensed semi-trailers, and farm equipment and parts irrespective of their operability constitutes a prior nonconforming use. Plaintiff may therefore not put an end to that use by revising an ordinance. Of course, defendant would need to show that he was keeping his equipment in conformance with the requirements of the consent judgment, and plaintiff has every right to proceed against defendant for violations of its Nuisance Ordinance not specifically permitted under the consent judgment. Nonetheless, defendant did argue, albeit perhaps not well, that at least some of the uses plaintiff sought to abate were uses plaintiff had agreed to permit.
We emphasize that due to the clearly in personam nature of the parties' agreement, any such use variance is nevertheless a right held by defendant only and would not run with the land or be assignable.
It is not immediately apparent to us from plaintiff's photographs which, if any, of the allegedly improper conditions on defendant's property are permitted under the terms of the 2013 Final Judgment and 2014 Order. We therefore have some doubt that the photographs really are, as plaintiff argued, self-explanatory. The gravamen of plaintiff's argument seems to be that it seeks to preclude anything it deems a nuisance, irrespective of whether it agreed to permit such use under the consent judgment. Because defendant did not specifically rebut any of the photographs individually, we do not hold that the trial court erred in granting summary disposition. Furthermore, we express no opinion, nor is there evidence before us from which we could draw any such opinion, whether any of the complained-of conditions on defendant's property actually are in compliance with or permitted by the 2013 Final Judgment and 2014 Order. Nevertheless, it should have been apparent on the face of the pleadings, notwithstanding defendant's weak defense, that there was a serious possibility that some of the conditions plaintiff sought to abate were exempt from enforcement.
V. AMENDMENT OF PLEADINGS
The trial court relied on Charbeneau v Wayne Co Gen Hosp, 158 Mich App 730, 733-734; 405 NW2d 151 (1987), for the accurate proposition that a motion for reconsideration is properly denied where that motion rests "on a legal theory and facts which could have been pled or argued prior to the trial court's original order." However, although defendant captioned his motion as being for reconsideration, courts are obligated to consider the substance of a pleading or motion rather than the label given by a party. Hartford v Holmes, 3 Mich 460, 463 (1855); Wilcox v Moore, 354 Mich 499, 504; 93 NW2d 288 (1958); Norris v Lincoln Park Police Officers, 292 Mich App 574, 582; 808 NW2d 578 (2011). The trial court correctly recognized that, notwithstanding the caption, defendant substantively sought leave to amend his pleadings. However, the trial court nevertheless improperly proceeded to treat the motion as being for reconsideration, citing MCR 2.119(F) and Charbeneau. The trial court committed an error of law by failing to treat defendant's motion as a motion to amend pursuant to MCR 2.118, as the trial court was required to do pursuant to MCR 2.116(I)(5). Yudashkin, 247 Mich App at 651.
Published opinions of this Court issued before November 1, 1990, have "precedential effect under the rule of stare decisis," MCR 7.215(C)(2), but they are not binding on this Court. MCR 7.215(J)(1); Andrusz v Andrusz, 320 Mich App 445, 457 n 2; 904 NW2d 636 (2017).
Furthermore, this Court has unambiguously held that "a party's failure to set forth a valid statement of an affirmative defense in its first responsive pleading does not necessarily result in waiver of the defense," because the party may seek leave to amend the affirmative defenses at any time, and such leave should be granted so long as the plaintiff is not thereby prejudiced. Southeast Mich Surgical Hosp, LLC v Allstate Ins Co, 316 Mich App 657, 663; 892 NW2d 434 (2016), lv den in part and remanded in part 503 Mich 1004; 924 NW2d 883 (2019), aff'd on remand, unpublished order of the Court of Appeals, Docket No. 323425, entered June 19, 2019; see also Twp of Fraser v Haney (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 337842, issued January 21, 2020), slip op at p 2. Thus, the trial court committed another clear error of law by ruling that defendant was not entitled to amend his pleadings simply because defendant could have made his allegations or arguments previously. As noted, a trial court necessarily abuses its discretion when it fails to exercise mandatory discretion or where its exercise of discretion is premised on an error of law.
We agree with plaintiff that defendant has not, even on appeal, proffered a pleading substantively constituting an actual proposed amended answer. Twp of Grayling v Berry, 329 Mich App 133, 152-153; 942 NW2d 63 (2019). Nevertheless, the unusual circumstances of this case compel the conclusion that justice would best be served by declining to affirm on alternative grounds.
This matter implicates a fundamental liberty interest in being able to use one's property freely, and the courts should show reluctance in facilitating restrictions upon such free use. See Conlin v Upton, 313 Mich App 243, 256; 881 NW2d 511 (2015). As discussed above, we find some of plaintiff's arguments concerning on their face. Furthermore, parties proceeding in propria persona are entitled to significantly more generous and liberal construction of their pleadings, and are held to less stringent standards, than are attorneys. Estelle v Gamble, 429 US 97, 106; 97 S Ct 285; 50 L Ed 2d 251 (1976). Ordinarily, mistakes of counsel are generally attributed to the client. Pascoe v Sova, 209 Mich App 297, 298-299; 530 NW2d 791 (1995). However, in light of the injunctive relief being sought, we are not persuaded that we should make such an attribution here. See School Dist of City of Benton Harbor v Michigan State Tenure Comm, 372 Mich 270, 273-274; 126 NW2d 102 (1964); Wiggins v City of Burton, 291 Mich App 532, 558-560; 805 NW2d 517 (2011). Additionally, Michigan jurisprudence generally prefers the disposition of cases on their merits. North v Dep't of Mental Health, 427 Mich 659, 662; 397 NW2d 793 (1986). Finally, from the trial court record, it is improbable that plaintiff could be surprised by the general nature of defendant's potential amended answer.
See also People v Smith, 108 Mich 527, 528-530, 532-533; 66 NW 382 (1896), observing that although the state may regulate the use of private property, the constitutionally guaranteed right to private property necessarily includes the right to use that property, and so any regulation of that use must be justified by necessity. --------
VI. CONCLUSION
The trial court abused its discretion by denying defendant's request to amend his answer, and we decline to affirm on alternative grounds. Therefore, we vacate the trial court's order denying defendant's motion to amend, and we remand this matter for defendant to have an opportunity to make a proper such request. We emphasize that defendant must comply with all procedural and substantive requirements for making such a request, such as, but not necessarily limited to, the provision of a proposed amended answer that includes his proposed affirmative defenses. We only direct that the trial court shall entertain defendant's motion and may not deny it solely because of defendant's failure to raise any matter earlier. We impose no other conditions upon the trial court.
The trial court's order granting summary disposition is affirmed. The trial court's order denying defendant's request to amend is vacated, and the matter is remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction. The parties shall bear their own costs on appeal, neither party having prevailed in full. MCR 7.219(A).
/s/ Michael J. Riordan
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause