                          STATE OF MICHIGAN

                           COURT OF APPEALS



MARY ANN LAMKIN,                                                   FOR PUBLICATION
                                                                   January 19, 2017
               Plaintiff-Appellant,

v                                                                  No. 328836
                                                                   Livingston Circuit Court
HAMBURG TOWNSHIP BOARD OF                                          LC No. 15-028656-CZ
TRUSTEES and HAMBURG TOWNSHIP
ZONING ADMINISTRATOR,

               Defendants-Appellees.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

RONAYNE KRAUSE, P.J. (concurring in part and dissenting in part)

        I wholeheartedly agree with Judge Gleicher’s observation that a party’s right to seek
redress in this Court does not depend on whether they filed a motion for reconsideration below.
However, while I understand my colleagues’ reaction to the trial court’s nearly-immediate
disposition of this case, I disagree that the trial court was not permitted to summarily dismiss
plaintiff’s case sua sponte without providing her advance notice that it was considering doing so.
Furthermore, I find my colleagues’ concerns about the sufficiency of the trial court’s order
baffling. Under the circumstances, I nevertheless find the possibility that the trial court did
deprive plaintiff of her due process rights by preventing her from filing a motion for
reconsideration sufficiently troubling that I would remand for an evidentiary hearing on that
issue.

        Plaintiff’s complaint sought a writ of mandamus, an application for superintending
control, and an order to show cause, all generally to the effect that defendants were allegedly
failing to enforce a zoning ordinance that plaintiff’s neighbors were allegedly violating. This
Court looks to the substance of pleadings rather than the formal names or labels given by the
parties. Hurtford v Holmes, 3 Mich 460, 463 (1855); Norris v Lincoln Park Police Officers, 292
Mich App 574, 582; 808 NW2d 578 (2011). It is clear from the complaint that plaintiff’s “show
cause” count really is a request for a preliminary injunction, not a true cause of action. It is
therefore entirely dependent on the validity of her other two counts.

       The distinction between a claim for mandamus and a claim for superintending control is
an often confused one. See Choe v Flint Charter Twp, 240 Mich App 662, 665-667; 615 NW2d
739 (2000). However, they both seek to accomplish essentially the same thing and on essentially

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the same bases; “superintending control” is directed to a lower court or tribunal, and
“mandamus” is directed to a public official. See Jones v Dep’t of Corrections, 468 Mich 646,
658; 664 NW2d 717 (2003) and In re Payne, 444 Mich 679, 687-689; 514 NW2d 121 (1994).
However, they are so closely related that they are sometimes treated as effectively synonymous.
See, e.g., Kelly v Bd of Law Examiners, 447 Mich 1204; 526 NW2d 915 (1994); Scullion v Bd of
Law Examiners, 102 Mich App 711, 716 n 3; 302 NW2d 290 (1981); Choe, 240 Mich App at
667. Both serve as vehicles for compelling the performance of a clear legal duty. Genesee
Prosecutor v Genesee Circuit Judge, 386 Mich 672, 680; 194 NW2d 693 (1972).

        Significantly, however, a right to mandamus or superintending control depends on the
clear legal duty being effectively ministerial and the plaintiff being without any other remedy.
Taylor v Smith, 343 Mich 440, 444; 72 NW2d 146 (1955); Cadle Co v City of Kentwood, 285
Mich App 240, 246; 776 NW2d 145 (2009). They can serve to compel the exercise of discretion,
but not the outcome of any such exercise. Teasel v Dep’t of Mental Health, 419 Mich 390, 410;
355 NW2d 75 (1984). Any legal right held by the plaintiff must be distinct from legal rights
held by citizens generally. Inglis v Public School Employees Retirement Bd, 374 Mich 10, 13;
131 NW2d 54 (1964). “A court does not abuse its discretion in refusing to grant a writ of
superintending control where the party seeking the writ fails to establish grounds for granting a
writ.” Cadle Co, 285 Mich App at 246. It is manifestly clear from plaintiff’s complaint that the
trial court’s determination was correct, and precisely what record development my colleagues
believe necessary escapes me.

        Plaintiff alleged nothing that even hinted that she held a right to the enforcement of
defendants’ zoning ordinance distinct from rights held by the public generally, and the most
generous interpretation of the allegations set forth in the complaint indicates that there is no way
she could. A private citizen may in appropriate circumstances bring an action to abate a public
nuisance caused by the violation of a zoning ordinance where the nuisance affects the private
citizen in some way distinct from the general public. MCL 125.3407; Towne v Harr, 185 Mich
App 230, 232-233; 460 NW2d 596 (1990). That is not the action plaintiff sought here. See
Unger v Forest Home Twp, 65 Mich App 614, 618; 237 NW2d 582 (1975). Even beyond that
failing, plaintiff’s complaint contains extensive invective regarding various alleged illegalities
but no specification of how she has in any way been harmed, let alone harmed in a way distinct
from the general public.1 The trial court correctly observed that a direct challenge to the actions
of the zoning board regarding the issuance or enforcement of zoning regarding the property of
someone else is unmaintainable because plaintiff lacks standing to do so. Id. I fail to understand
how the trial court’s opinion to that effect is deficient.

       The trial court’s nearly immediate sua sponte disposition of this case certainly might be
perceived as startling. It is not, however, impermissible. My colleagues would read into MCR
2.116(I)(1) a requirement not written therein and already well-established by case law as not



1
  Additionally, although plaintiff’s complaint is not a model of coherent articulation, it appears
that she seeks to compel not a ministerial act or even the exercise of discretion per se, but rather
a particular discretionary determination.


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existing. Trial courts are under enormous stresses to bring actions to conclusions within
deadlines imposed not only by the needs of the parties before them, but also administratively
dictated artificial deadlines. Where it is readily apparent from the pleadings that a party’s claims
are not actionable or the matter is otherwise impossible to succeed on, MCR 2.116(I)(1) is one of
a tiny number of tools given to the trial courts to help them allocate their finite resources to cases
with at least possible merit. Although I do believe it would be the better practice, this Court has
established that due process does not necessarily require prior notice and a prior opportunity to
be heard when sua sponte dismissing an action under MCR 2.116(I)(1). Al-Maliki v LaGrant,
286 Mich App 483, 485-486; 781 NW2d 853 (2009). My colleagues invent such a requirement
out of thin air. “[D]ue process can be satisfied by affording a party an opportunity for
rehearing.” Id. at 486.

        The concerning element in this appeal derives from plaintiff’s contention that the trial
court did not, in fact, afford her an opportunity to file a motion for reconsideration. More
specifically, she contends that she attempted to file such a motion, but that she was told by the
trial court’s administrative staff that she was not permitted to file postjudgment motions.
Although plaintiff provides no concrete evidence of this, I appreciate that it is not obvious how
she could do so presently. If true, I would find it impossible to deem such a denial of due
process harmless, no matter how overwhelmingly meritless the complaint might appear.
Therefore, I would remand for the limited purpose of requiring the trial court to hold an
evidentiary hearing to determine whether the trial court truly prevented plaintiff from filing a
motion for reconsideration, and I would retain jurisdiction.

                                                              /s/ Amy Ronayne Krause




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