Opinion
No. 351408
06-11-2020
DEARBORN HEIGHTS CITY COUNCIL, Plaintiff-Appellee, v. MAYOR OF DEARBORN HEIGHTS, 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 UNPUBLISHED Wayne Circuit Court
LC No. 19-010859-AW Before: LETICA, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.
Plaintiff, Dearborn Heights City Council, hired a law firm to assist it with a financial review of certain spending by the City of Dearborn Heights (the City). Defendant, the Mayor of Dearborn Heights, refused to sign plaintiff's retainer agreement with the law firm, despite plaintiff voting to override his veto of the agreement. Plaintiff brought this action seeking a writ of mandamus to compel defendant to sign the agreement. The trial court granted plaintiff's request and issued the writ. Defendant appeals. This appeal has been decided without oral argument pursuant to MCR 7.214(E). We affirm.
I. BACKGROUND
This case was plaintiff's third attempt to compel defendant to sign plaintiff's agreement with the law firm Ottenwess, Taweel & Schenk, PLC (Ottenwess) through a writ of mandamus.
On March 26, 2019, plaintiff passed two resolutions; one approving a financial review of certain spending by the City, a second approving the hiring of Ottenwess to assist with that review. Defendant vetoed the second resolution. At an April 9, 2019 meeting, plaintiff voted to override defendant's veto, and passed a resolution approving a retainer agreement with Ottenwess. Before defendant could veto that resolution, plaintiff sought a writ of mandamus directing defendant to sign the agreement. Defendant thereafter denied plaintiff's resolution, and on May 7, 2019, the trial court denied plaintiff's motion for a writ of mandamus because plaintiff, having not authorized the filing of the complaint, lacked standing.
On May 9, 2019, plaintiff passed a resolution authorizing the filing of a complaint for mandamus, and on May 16, 2019, plaintiff filed a second action, again asking for an order directing defendant to sign plaintiff's retainer agreement with Ottenwess. The trial court denied plaintiff's request on July 17, 2019, concluding that plaintiff's resolutions and the retainer agreement, as written, did not comply with the Dearborn Heights City Charter (the City Charter).
On July 24, 2019, plaintiff authorized both a revised retainer agreement with Ottenwess and the filing of a third complaint of mandamus if defendant refused to sign that agreement. Plaintiff also passed a resolution to hold a regular meeting on July 30, 2019. On July 25, 2019, defendant vetoed the resolutions passed at the July 24, 2019 meeting. At the newly scheduled July 30, 2019 meeting, plaintiff overrode defendant's veto. After defendant still refused to sign the revised retainer agreement, plaintiff filed the instant mandamus action on August 9, 2019.
This time, the trial court granted plaintiff's request for a writ of mandamus. First addressing whether plaintiff had a clear legal right to hire Ottenwess, the trial court ruled that it did under Dearborn Heights Charter § 5.13(j). The trial court reasoned that unlike plaintiff's prior retainer agreement, the revised retainer agreement complied with § 5.13(j), which allowed plaintiff to "retain special legal counsel to appear Of Counsel for and to assist the Corporation Counsel for a special matter and for such limited time and purpose as the City Council shall specify." Dearborn Heights Charter § 5.13(j). The trial court recognized that a portion of the revised agreement stating that Ottenwess would serve as special counsel to plaintiff (as opposed to corporation counsel) was not consistent with § 5.13(j), but it concluded that this was not fatal to plaintiff's action because the revised agreement contained a clause stating that it was "intended to be in compliance with the Dearborn Heights City Charter" and that any portion of the agreement inconsistent with the City Charter was to be severed. Based on this clause, the trial court severed the portion of the revised retainer agreement stating that Ottenwess was to serve as special counsel to plaintiff, thereby making the revised agreement compliant with § 5.13(j).
Next, the trial court concluded that defendant had a clear legal duty to sign the retainer agreement under Dearborn Heights Charter § 5.3, which required defendant "to perform all administrative functions of the City that are imposed by . . . resolution not inconsistent with the provisions of this Charter." The trial court also concluded that defendant's signing of the retainer agreement was ministerial, and that plaintiff had no other adequate remedy at law.
Subsequently, defendant filed a motion for relief from judgment under MCR 2.612(C)(1)(e), which states that the court may relieve a party from an order if "it is no longer equitable that the judgment should have prospective application." Defendant argued that it would not be equitable to enforce the writ of mandamus because plaintiff's override of defendant's veto was invalid. Defendant explained that plaintiff could only vote to override defendant's veto at a regular meeting, and the July 30, 2019 meeting was not a regular meeting because defendant vetoed plaintiff's July 24, 2019 resolution scheduling the July 30, 2019 regular meeting, making that meeting a special (not a regular) meeting. The trial court denied defendant's motion because his new argument "could have been raised at any time."
This appeal followed.
II. WRIT OF MANDAMUS
Defendant first argues that it was error for the trial court to grant plaintiff's request for a writ of mandamus compelling defendant to sign the revised retainer agreement. We disagree.
A. STANDARD OF REVIEW
"A lower court's decision on whether to grant a writ of mandamus is reviewed for an abuse of discretion." Citizens Protecting Michigan's Constitution v Secretary of State, 503 Mich 42, 59; 921 NW2d 247 (2018). To the extent that a request for a writ of mandamus involves a question of law, such as the interpretation of a municipal charter, our review is de novo. Id.; Barrow v Detroit Election Comm, 305 Mich App 649, 663; 854 NW2d 489 (2014).
B. ANALYSIS
A writ of mandamus is an "extraordinary remedy." Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich App 487, 492; 688 NW2d 538 (2004). The purpose of a writ of mandamus is to compel action by a public official. Attorney General v Bd of State Canvassers, 318 Mich App 242, 248; 896 NW2d 485 (2016). A writ of mandamus is proper if the party seeking the writ can meet the following requirements:
(1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result. [Id. (quotation marks and citation omitted).]Defendant only contests the trial court's ruling with respect to the first two elements: (1) whether plaintiff had a clear legal right to hire Ottenwess as special counsel, and (2) whether defendant had a clear legal duty to sign the revised retainer agreement with Ottenwess.
1. CLEAR LEGAL RIGHT
"Within the meaning of the rule of mandamus, a 'clear, legal right' is one clearly founded in, or granted by, law; a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided." O'Connell v Dir of Elections, 317 Mich App 82, 91; 894 NW2d 113 (2016) (quotation marks and citation omitted).
Defendant concedes on appeal that plaintiff has a legal right to hire Ottenwess as special counsel. The City Charter clearly states, "The Mayor or the City Council may retain special legal counsel to appear Of Counsel to the Corporation Counsel for the purpose of assisting the Corporation Counsel for a special matter and for such limited time and purpose as the Mayor or Council shall specify." Dearborn Heights Charter § 5.13(j).
Defendant contends, however, that the issue is not whether plaintiff could hire Ottenwess as special counsel, but "whether [plaintiff] wishes to hire special counsel for a proper purpose." The City Charter permits plaintiff to conduct a financial investigation into City expenditures:
The Council may subpoena witnesses, administer oaths, and compel the production of books, papers, and other evidences needed to conduct formal investigations into the conduct of any department, office, or officer of the City and make investigations as to malfeasance, misfeasance, nonfeasance, or irregularities in municipal affairs. Failure to obey such subpoena or to produce books, papers, or other evidence as ordered under the provisions of this section shall constitute misconduct in office. [Dearborn Heights Charter § 6.13.]The City Charter also permits corporation counsel to assist plaintiff with this investigation. It states that corporation counsel serves as "legal advisor to the Mayor and the Council in matters relating to their official duties," and must "perform such other and further duties as may be prescribed by this Charter, the Council or the Mayor." Dearborn Heights Charter §§ 5.13(b) and (g). Based on these provisions, plaintiff had the legal right to hire Ottenwess as "special legal counsel to appear Of Counsel to the Corporation Counsel," Dearborn Heights Charter § 5.13(j), and as of counsel to the corporation counsel, Ottenwess could assist plaintiff in plaintiff's official duties, Dearborn Heights Charter §§ 5.13(b) and (g), which includes conducting a financial investigation into certain spending by the City, see Dearborn Heights Charter § 6.13.
Defendant argues that the revised retainer agreement does not hire Ottenwess to merely assist plaintiff in its financial investigation, but instead delegates to Ottenwess plaintiff's investigative authority in violation of the nondelegation principle. See Taylor v Smithkline Beecham Corp, 468 Mich 1, 10; 658 NW2d 127 (2003) (explaining the nondelegation principle).
Defendant first raised this argument in a motion for reconsideration, so it is not properly preserved. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). Though we could decline to review this unpreserved issue, see Autodie, LLC v City of Grand Rapids, 305 Mich App 423, 431; 852 NW2d 650 (2014), we choose to review it because "it is an issue of law for which all the relevant facts are available." Vushaj, 284 Mich App at 519.
Yet defendant points to nothing in the revised retainer agreement where plaintiff delegates its investigative authority to Ottenwess. Instead, he asks us to glean from the agreement as a whole that this was the parties' intent. We decline to do so. Under "Scope of Engagement," the agreement states:
The Firm will perform legal services . . . regarding issues related to the special matter of the City Council's financial review of city operations. This scope of engagement includes the filing of any mandamus actions related to implementation of the financial review, appeals related to same, and is inclusive of all prior mandamus actions filed on behalf of the Dearborn Heights City Council. At your request, the scope of the service will include engaging Rehmann as a subcontractor under its MiDeal contract with the State of Michigan.We read this not as plaintiff delegating its investigative authority to Ottenwess, but as plaintiff hiring Ottenwess to assist plaintiff in its financial investigation. This is particularly so given that the agreement provides:
This retainer agreement is intended to be in compliance with the Dearborn Heights City Charter and shall be interpreted consistent with the Charter. The relevant provisions thereof are incorporated by reference in this Agreement. Any provision of this Agreement that is contrary to a provision of the Charter shall be severed from this Agreement and the balance of the Agreement shall remain in force.As stated, the City Charter allows plaintiff to hire Ottenwess as "special legal counsel to appear Of Counsel to the Corporation Counsel," Dearborn Heights Charter § 5.13(j), and in that role, Ottenwess can act as legal advisor to plaintiff in its investigations, see Dearborn Heights Charter §§ 5.13(b) and (g). Interpreting the revised retainer agreement consistent with the City Charter, we read it as providing that Ottenwess will assist plaintiff in its financial investigation into certain spending by the City and nothing more.
This is not to say that defendant's argument is meritless, only that, at this time, we do not read the retainer agreement as plaintiff delegating its investigative authority to Ottenwess. If, in the future, Ottenwess and plaintiff attempt to construe this agreement as granting Ottenwess that authority, then defendant's claim should be revisited. But until that time, we cannot address it. See City Of Warren v City Of Detroit, 471 Mich 941, 941-942; 690 NW2d 94 (2004) (MARKMAN, J., concurring) (explaining that an "essential element" of our courts' judicial authority is that the courts do not "declare rules of law that have no practical legal effect in a case").
Defendant next argues that the revised retainer agreement violates the City Charter in a second way—according to defendant, the Charter does not allow plaintiff to hire special counsel to represent its individual interests. Defendant recognizes that plaintiff could hire Ottenwess as special counsel to assist corporation counsel in a special investigation, but argues that, as corporation counsel, Ottenwess would represent "the City's interests, not the interests of the appointing official."
We find this argument unpersuasive given the language of the City Charter. The City Charter states that corporation counsel serves as "legal advisor to the Mayor and the Council in matters relating to their official duties," serves as "legal advisor to and for each and every one of the several departments, commissions, boards, administrative offices and agencies of the City as directed by the Council or the Mayor," and must "perform such other and further duties as may be prescribed by this Charter, the Council or the Mayor." Dearborn Heights Charter §§ 5.13(b), (h), and (g). Based on these provisions, we conclude that the City Charter does not prohibit corporation counsel from representing the interests of one constituency within the City's government. To the contrary, we read the City Charter as permitting it.
This is not to say that defendant is entirely wrong. In support of his argument that corporation counsel cannot represent plaintiff individually, defendant relies on the Michigan Rules of Professional Conduct (MRPC). Defendant correctly points out that cities are bodies corporate, MCL 117.1, and so the rules that apply to corporate attorneys apply to city attorneys, which here is corporation counsel. MRPC 1.13(a) states, "A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders, or other constituents." Defendant is therefore correct that, in general, corporation counsel represents the interests of the City. But defendant appears to believe that this means that corporation counsel can only represent the interests of the City. This is not so. MRPC 1.13(e) states, "A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7," which address conflicts of interest. Thus, under the MRPC, corporation counsel (including Ottenwess under the revised retainer agreement) can represent a constituency within the City (like plaintiff) so long as doing so does not create a conflict of interest.
In sum, we conclude that plaintiff had a clear legal right under the City Charter to hire Ottenwess to assist plaintiff in its financial investigation into certain spending by the City, and we are unpersuaded by defendant's arguments to the contrary.
2. CLEAR LEGAL DUTY
A clear legal duty exists when the defendant has a statutory obligation to perform a specific act. Barrow, 301 Mich App at 412.
Under the City Charter, once defendant's veto was overridden, plaintiff's resolution approving the revised retainer agreement became effective. See Dearborn Heights Charter § 7.13. And as part of defendant's responsibilities as mayor, he was required to "authenticate by his signature" the agreement. See Dearborn Heights Charter § 5.3(d). Thus, once plaintiff overruled defendant's veto, he had a clear duty under the City Charter to sign the revised retainer agreement.
Defendant contends that he did not have a duty to sign the revised retainer agreement because it violated the City Charter, and as mayor he has a duty "to enforce all of the laws and ordinances of the City." Dearborn Heights Charter § 5.3(a). But in support of this assertion, defendant simply repeats his argument that the City Charter does not permit corporation counsel (which includes Ottenwess under the revised retainer agreement) to represent plaintiff's interest individually. This argument is unpersuasive for the reasons explained above.
Defendant also asserts that allowing plaintiff to hire Ottenwess "jeopardizes the transparency required" by the City Charter because it would be possible for plaintiff to shield its investigation from the public under the guise of attorney-client privilege. But like defendant's nondelegation argument, this argument rests on defendant's assumption that Ottenwess, not plaintiff, will conduct the financial investigation. As stated, we read the revised retainer agreement as providing that Ottenwess will assist plaintiff in its financial investigation, not perform the investigation. As such, plaintiff would be conducting the investigation to the extent that it would any other investigation under § 6.13 of the City Charter, and Ottenwess would be providing plaintiff legal advice to assist in that investigation to the extent prescribed by plaintiff, as corporation counsel can do in any investigation. See Dearborn Heights Charter §§ 5.13(b) and (g).
Based on the foregoing, we conclude that defendant had a clear legal duty to sign the revised retainer agreement once plaintiff voted to override his veto. Defendant does not challenge the trial court's conclusions that his signing of the veto was a ministerial act and that no other remedy exists that would allow plaintiff to hire Ottenwess to assist plaintiff in its financial investigation. Because plaintiff had a clear legal right to hire Ottenwess as explained above, plaintiff satisfied the four elements necessary for the court to issue a writ of mandamus.
III. RELIEF FROM JUDGMENT
Defendant argues that the trial court abused its discretion by denying his motion for relief from judgment. We disagree.
A. STANDARD OF REVIEW
This Court reviews the decision to grant or deny a motion for relief from judgment for an abuse of discretion. Limbach v Oakland Co Bd of Co Road Comm'rs, 226 Mich App 389, 393-394; 573 NW2d 336 (1997). "An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes." Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). To the extent that defendant's challenge requires us to review the interpretation of a court rule, our review is de novo. Bint v Doe, 274 Mich App 232, 234; 732 NW2d 156 (2007).
B. ANALYSIS
Defendant argues that he is entitled to relief from judgment under MCR 2.612(C)(1)(e), which states in relevant part that a court may relieve a party from a final judgment if "it is no longer equitable that the judgment should have prospective application."
Defendant argues that it is no longer equitable to apply the writ of mandamus because plaintiff's override of defendant's veto was invalid. According to defendant, a veto can only be overridden at a regular meeting, and he contends that the July 30, 2019 meeting where plaintiff overrode his veto of the revised retainer agreement was not a regular meeting because he vetoed plaintiff's July 24, 2019 resolution scheduling the July 30, 2019 meeting. We need not reach the substance of defendant's argument because we conclude that defendant has not met the requirements to warrant equitable relief under MCR 2.612(C)(1)(e).
The portion of subsection (e) that defendant relies upon requires that it be "no longer equitable" to enforce the judgment. MCR 2.612(C)(1)(e) (emphasis added). For it to be no longer equitable to enforce a judgment, there must have been a change in circumstances that made enforcement of a once equitable judgment now inequitable. See 3 Longhofer, Michigan Court Rules Practice (7th ed), § 2612.14, commentary ("The subrule also authorizes relief from judgment on the ground that changed circumstances have made its prospective application inequitable."). We therefore conclude that this portion of MCR 2.612(C)(1)(e) only applied if there has been a change in circumstances from when the judgment was entered.
Nothing changed between the trial court's entry of judgment and defendant's motion for relief from that judgment. Instead, defendant thought of a new argument, and he is attempting to use MCR 2.612(C)(1)(e) to assert that argument. Subsection (e) is not a tool for parties to use to raise new arguments that they simply failed to raise before. Because there was no change in circumstances making application of the trial court's judgment inequitable, defendant was not entitled to equitable relief under MCR 2.612(C)(1)(e).
But even if we are wrong and there need not be a change in circumstances for a party to move for equitable relief under MCR 2.612(C)(1)(e), we would nonetheless conclude that the trial court did not abuse its discretion by finding that defendant was not entitled to relief. It is well established that "one who seeks equity must do equity." Windisch v Mtg Security Corp of America, 254 Mich 492, 493-494; 236 NW 880 (1931). Defendant sat through, and even participated in, the July 30, 2019 meeting without raising any objections to plaintiff overriding his July 25, 2019 veto. As a result, plaintiff filed the instant action on August 9, 2019. Defendant filed his response on August 23, 2019, the parties appeared before the trial court on August 30, 2019, and the trial court issued its opinion on September 3, 2019. Defendant did not raise his current argument—that the July 30, 2019 meeting was not a regular meeting and therefore plaintiff could not override defendant's veto—until his September 24, 2019 motion. Thus, even if defendant's argument is meritorious, he delayed raising it (without reason) until after plaintiff prevailed, thereby attempting to undo over a month of litigation and overturn a ruling that was unfavorable to him. In so doing, defendant not only unnecessarily wasted plaintiff's time and resources, but caused an unnecessary drain on judicial resources. Such conduct, even if unintentional, is clearly not equitable. Because one who seeks equity must do equity, we conclude that the trial court did not abuse its discretion by declining defendant's request for relief from judgment under MCR 2.612(C)(1)(e).
We also note that defendant's argument is a procedural irregularity that plaintiff could have corrected, and doing so would have only delayed plaintiff's cause of action, not defeated it on the merits.
Briefly, we note that plaintiff requests this Court to award it sanctions against defendant "for filing this frivolous appeal." Plaintiff failed to file the proper motion requesting sanctions under MCR 7.211, so we decline to award plaintiff sanctions. See MCR 7.211(C)(8).
Affirmed.
/s/ Anica Letica
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien