                           STATE OF MICHIGAN

                            COURT OF APPEALS



EUGENE MCNABB and ORA MCNABB,                                          UNPUBLISHED
                                                                       October 14, 2014
               Plaintiffs-Appellants,


v                                                                      No. 315941
                                                                       Oakland Circuit Court
DAN’S EXCAVATING, INC. and TOWNSHIP                                    LC No. 2011-118153-CZ
OF ORION,

               Defendants-Appellees.


Before: STEPHENS, P.J., and TALBOT and BECKERING, JJ.

PER CURIAM.

        In this action seeking mandamus and mandatory injunctive relief, plaintiffs appeal as of
right the trial court’s order summarily dismissing their claims under MCR 2.116(C)(10). We
affirm.

         This case arises out of the filling and restoration operations of a sand mining pit that was
adjacent to plaintiffs’ residential property, referred to as “the sandpit” or “the pit.” Plaintiffs
complain that while defendant Dan’s Excavating, Inc. was in the process of filling and restoring
the pit it 1) overfilled certain areas in excess of the permitted elevation; and 2) failed to engage in
progressive restoration of the pit in violation of defendant Township of Orion’s “Earth Balancing
& Excavation Ordinance,” referred to as Ordinance 99, and the permit issued thereunder. In
their complaint, plaintiffs sought damages and mandatory injunctive relief against Dan’s
Excavating to remedy the alleged violations of the ordinance and mandamus relief against the
Township to compel enforcement of Ordinance 99 and the permit. Both the Township and Dan’s
Excavating sought summary dismissal of plaintiffs’ claims under MCR 2.116(C)(10), which the
trial court granted. The trial court subsequently denied plaintiffs’ motion for reconsideration.
This appeal ensued.

       We review the trial court’s grant of summary disposition pursuant to MCR 2.116(C)(10)
de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). “A
motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v
Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “The pleadings, affidavits, depositions,
admissions, and other admissible documentary evidence submitted by the parties must be
considered in the light most favorable to the nonmoving party.” Kennedy v Great Atlantic &

                                                 -1-
Pacific Tea Co, 274 Mich App 710, 712; 737 NW2d 179 (2007). “The reviewing court should
evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the
substantively admissible evidence actually proffered in opposition to the motion.” Maiden, 461
Mich at 121. “Summary disposition is proper under MCR 2.116(C)(10) if the affidavits and
other documentary evidence show that there is no genuine issue concerning any material fact and
that the moving party is entitled to judgment as a matter of law.” Kennedy, 274 Mich App at
712. “A trial court’s decision whether to issue a writ of mandamus is reviewed for an abuse of
discretion.” Carter v Ann Arbor City Attorney, 271 Mich App 425, 438; 722 NW2d 243 (2006).

        Plaintiffs first argue that the trial court erred in granting summary disposition of their
claim for mandamus relief against the Township. We disagree. In summarily dismissing
plaintiffs’ claim for mandamus relief, the trial court concluded that such relief was not available
in the present case as a matter of law because there was no factual dispute that the Township
exercised its discretion and judgment in enforcing the ordinance and the permit issued to Dan’s
Excavating.

        “Mandamus is the traditional remedy for compelling performance of legal duties by
public officials.” Teasel v Dep’t of Mental Health, 419 Mich 390, 415 n 13; 355 NW2d 75
(1984). “Mandamus is an extraordinary remedy and will not lie to control the exercise or
direction of the discretion to be exercised.” Id. at 409-410. “[I]t will [further] not lie for the
purpose of reviewing, revising, or controlling the exercise of discretion reposed in administrative
bodies.” Id. at 410. “However, the writ will lie to require a body or an officer charged with a
duty to take action in the matter, notwithstanding the fact that the execution of that duty may
involve some measure of discretion.” Id. “Stated otherwise, mandamus will lie to compel the
exercise of discretion, but not to compel its exercise in a particular manner.” Id. Thus, to
warrant mandamus relief, the act requested by the party seeking the writ must be ministerial,
involving no discretion or judgment. Lickfeldt v Dep’t of Corrections, 247 Mich App 299, 302;
636 NW2d 272 (2001). “The issuance of a writ of mandamus is proper where (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
involves no exercise of discretion or judgment, and (4) no other remedy exists, legal or equitable,
that might achieve the same result.” Id.

        Plaintiffs’ claim for mandamus relief concerns the filling and restoration operations in
certain areas of the pit, which exceeded an elevation of 1,060 feet, allegedly in violation of
Ordinance 99 and the requirements of the permit issued to Dan’s Excavating thereunder.
Plaintiffs requested the trial court order the Township to enforce the then current grade to an
elevation of 1,060 feet and to restore the site by grading and seeding.1



1
  We note that, in addition to the alleged overfilling and lack of restoration supporting plaintiffs’
claim for mandamus presented on appeal, plaintiffs also sought mandamus relief for alleged
noncompliance with specific conditions that the Zoning Board of Appeals attached to the
2010/2011 permit issued to Dan’s Excavating. On appeal, plaintiffs do not address or present
any argument regarding these conditions attached to the permit, and thus, plaintiffs have


                                                -2-
        The pertinent facts in this case are undisputed. The parties agree that Ordinance 99
grants authority to the Township’s Building Department to enforce the ordinance and permit
issued there under. Further, it is uncontested that under the ordinance, township officials are
granted a license to enter permitted property to inspect it and to bring the property into
compliance with the provisions of the ordinance, if necessary. The only grading and restoration
requirements in either the ordinance or the permit granted to Dan’s Excavating were that the
permit applicant submit, with its permit application, a topographical survey map completed by a
professional engineer showing the “existing and proposed final grades” or “final grading plan”
and that the site must be “restored progressively” in accordance with the approved site plan.
Ordinance No. 99, § § 5(C), 9(A); (emphasis added). “Progressive restoration” required ongoing
or continuing work within the site to restore it to the condition that it was permitted for, which
included filling the pit to “some level,” grading, and seeding. Ordinance 99 additionally required
that the Building Department conduct inspections of the site and notify the operator of any
portions of the site it deems ready for restoration. Ordinance No. 99, § 9(A)(3). Neither
Ordinance 99 nor the permit issued thereunder imposed a specific grading requirement or a
specific elevation limitation during the filling and restoration operation, or that the filling and
restoration operation be completed by a certain date. Instead, Ordinance 99 and the permit only
required the site to be restored progressively in accordance with the approved site plan. There
was no mandatory timetable or progressive standard for this process.

        According to the undisputed testimony of the Township Building Official the topography
indicated on the site plan would have to be met when the site was finished, i.e., when the filling
operation was complete, and Dan’s Excavating would be required to prove its compliance with
the site plan with a registered survey indicating that the topography was actually established and
complied with its permit. Thus, there was no dispute that the Township had the authority to
enforce the ordinance to ensure compliance with the planned final grade of the permit, and that
the site was “restored progressively” in accordance with the approved site plan. Also undisputed
was that the approved site plan/topographical survey map in support of Dan’s Excavating’s
Ordinance 99 permit established a final grade elevation of 1,060 feet throughout the site, with the
exception of a small area not at issue here. Further undisputed was that there were areas in the
pit that slightly exceeded the permitted elevation of 1,060 feet, as plaintiffs alleged, in a man-
made berm area and on the fence line on Lot 11, which was adjacent to plaintiffs’ Lot 10. The
parties lastly agreed that the filling and restoration of the pit was an ongoing operation and not
yet complete.2

abandoned those claims. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651
NW2d 756 (2002).
2
  According to the Township Building Official, the site had not yet gone through a final closing
process, and he could not identify a time for completion of the site and closure of the permit.
The agent of Dan’s Excavating could not estimate how long it would take to fill the pit and could
not identify any area of the pit that was currently ready for restoration, i.e., topsoil, mulching,
and growing vegetation. Even plaintiffs admitted that the restoration of the pit to its final
condition was not yet complete and the final slope or balancing requirements pertained to final
closure, and thus, were not yet necessary. The Township Official further explained that in the
man-made berm area they were trying to manage the water from flowing onto plaintiffs’ Lot 10

                                                -3-
        Plaintiffs argue that the overfilling condition and lack of restoration constituted a clear
violation of the permit warranting mandamus relief. In order to prevail in their assertion,
plaintiffs must demonstrate that their requested act does not involve the exercise or compelling
of discretion or judgment. Teasel, 419 Mich at 409-410; Lickfeldt, 247 Mich App at 302.

        In the present case, the nature of the Township’s decisions concerning a permittee’s
compliance with and enforcement of the filling and restoration requirements of Ordinance 99 and
the permit issued thereunder clearly involved the exercise of discretion and judgment by the
Township’s Building Officials. The Township presented evidence in support of its motion that
its Building Official did, in fact, investigate plaintiffs’ complaints and exercise discretion and
judgment in determining that the current elevation was not in violation of the ordinance or the
permit because the filling and restoration operation was not yet complete, but was ongoing and in
progress.3 Also evident from the Building Official’s testimony, as well as the ordinance itself,
was that whether the site was in compliance with the filling and restoration requirements of
Ordinance 99 involved consideration of specific matters. Those matters included assessing the
then current state of the operation and topography of the permitted property for the management
of water runoff and soil erosion and to determine whether the area was ready for final grading
and/or restorative activity. The Township Building Official also would have been required to
interpret whether the current requirements of the ordinance and the permit issued thereunder
were being met in accordance with the approved site plan. These matters were not ministerial in
nature but required professional judgment, specialized knowledge and experience, and
discretion. Teasel, 419 Mich at 414; Lickfeldt, 247 Mich App at 302.4 Given these facts, we find
no error in the trial court’s determination that mandamus relief was not appropriate as a matter of
law.

        Plaintiffs next contend that the trial court erred in summarily dismissing their claim for
mandatory injunctive relief against defendant Dan’s Excavating to compel it to comply with and
abate the violations of Ordinance 99 and its permit issued thereunder. The trial court did not
reach the merits of plaintiffs’ claim for mandatory injunctive relief against Dan’s Excavating in
its final opinion or opinion on reconsideration. The trial court instead summarily dismissed
plaintiffs’ complaint based on its claim for damages against Dan’s Excavating after it determined
and the higher level of elevation actually prevents the water from heading directly towards
plaintiffs’ property. The agent of Dan’s Excavating explained that at the end of the process,
there would be a place for the surface water to drain into. Regarding the elevation along the
fence line, the Township Official indicated that there was a slope on Lot 10 that was higher than
the fence line that would cause run off to the fence line and the soil erosion would need to be
addressed. Given these facts, there is no dispute that the pit is still in the process of being filled
and restored and is not yet final or complete.
3
  We disagree with plaintiffs’ assertion on appeal that the Township failed to conduct inspections
of the site as required under Ordinance 99. Instead, it was undisputed that the Building Official
investigated plaintiffs’ complaints and inspected the site.
4
  A ministerial act is one “where the law prescribes and defines the duty to be performed with
such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Toan
v McGinn, 271 Mich 28, 34; 260 NW 108 (1935) (citations omitted).


                                                 -4-
that plaintiffs failed to establish the existence of a legal duty owed to them by Dan’s Excavating
to comply with the permit issued under Ordinance 99. In particular, the trial court found the
issue abandoned for plaintiffs’ failure to premise their argument on authority that would
evidence a statutory, contractual or common law duty. Consequently, plaintiffs’ claim for
mandatory injunctive relief and Dan’s Excavating’s argument that plaintiffs lacked standing to
pursue such a remedy were never addressed by the trial court. Accordingly, where the trial court
has not addressed the issue, plaintiffs’ claim on appeal that they are entitled to mandatory
injunctive relief is not properly preserved for this Court’s review. Adam v Sylvan Glynn Golf
Course, 197 Mich App 95, 98; 494 NW2d 791 (1992). Nevertheless, this Court may review an
unpreserved issue if it is one of law and the facts necessary for resolution of the issue have been
presented. Id.at 98-99. Whether equitable relief is proper under the facts is a question of law
that this Court reviews de novo. McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747
NW2d 811 (2008), citing Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d
364 (2005).

       Upon review, we agree with plaintiffs’ assertion on appeal that they have standing to seek
mandatory injunctive relief to compel Dan’s Excavating’s compliance with Ordinance 99 and the
permit issued thereunder. Our Supreme Court in Lansing Schools Ed Ass’n v Mich Lansing Bd
of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010), set forth Michigan’s standing doctrine as
follows:

       [A] litigant has standing whenever there is a legal cause of action. Further,
       whenever a litigant meets the requirements of MCR 2.605, it is sufficient to
       establish standing to seek a declaratory judgment. Where a cause of action is not
       provided at law, then a court should, in its discretion, determine whether a litigant
       has standing. A litigant may have standing in this context if the litigant has a
       special injury or right, or substantial interest, that will be detrimentally affected in
       a manner different from the citizenry at large or if the statutory scheme implies
       that the Legislature intended to confer standing on the litigant.

        Ordinance 99, under which plaintiffs pursued their claim against Dan’s Excavating, does
not expressly provide for a private right of action for private citizens to sue permittees for
damages to remedy or abate alleged violations of the ordinance or the permits issued thereunder,
nor does Ordinance 99 expressly confer standing on private citizens to enforce its provisions.
However, plaintiffs, as adjacent landowners to the permitted land, assert a special injury or right,
or substantial interest that will be detrimentally affected in a manner different from the citizenry
at large. Lansing Schools, 487 Mich at 372. Specifically, plaintiffs have a substantial and
distinct interest in ensuring that the permitted property is restored to the proper grade and slope
in accordance with the permit and ordinance to prevent soil erosion and water runoff that could
detrimentally affect their property. In fact, plaintiff Eugene testified that the overfilling in the
area of the man-made berm caused surface water run-off onto plaintiffs’ property. Thus, we find
that plaintiffs alleged a special injury that is distinct and different from the citizenry at large, and
therefore plaintiffs have standing to assert their claim for mandatory injunctive relief against
Dan’s Excavating for the alleged violations of the ordinance and permit issued thereunder. Id.

        However, the question whether plaintiffs “sufficiently pleaded a cause of action and are
entitled to the requested remedies are independent of the standing inquiry.” Id. at 377 n 25.

                                                  -5-
“Injunctive relief is an extraordinary remedy that courts normally grant only when (1) justice
requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent
danger of irreparable injury.” Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich App
83, 106; 662 NW2d 387 (2003) (citations and quotations omitted).

        In the present case, plaintiffs had available to them and they, in fact, pursued the adequate
legal remedy of mandamus to compel the Township to enforce Ordinance 99 and its permit
against Dan’s Excavating. See Teasel, 419 Mich at 415 n 13 (citations omitted) (“A writ of
mandamus is an extraordinary remedy at law; a mandatory injunction is traditionally a remedy in
equity.”) Thus, plaintiffs “were not without remedy except in a court of equity.” Burch v State
Highway Comm’r, 362 Mich 488, 495; 107 NW2d 791 (1961); Higgins Lake, 255 Mich App at
106. Furthermore, the authority to enforce Ordinance 99 is vested in the Township. The
Township’s investigation of plaintiffs’ complaints concerning the pit resulted in a determination
that there were no violations of the ordinance or the permit issued to Dan’s Excavating
thereunder. In the absence of such a finding, we fail to find that a duty arose under Ordinance 99
for Dan’s Excavating to abate the alleged violations. Thus, justice does not require the
imposition of a mandatory injunction compelling Dan’s Excavating to comply with the
ordinance. See Lansing Schools Ed Ass’n v Lansing School Dist Bd of Ed (On Remand), 293
Mich App 506, 518-520; 810 NW2d 95 (2011). Finally, on the facts presented, there is no
dispute regarding the absence of a “real and imminent danger of irreparable injury.” Higgins
Lake, 255 Mich App at 106. The only specific injury alleged is that the overfilling caused
surface water run-off onto plaintiffs’ property. However, the undisputed testimony indicates that
this condition will be addressed as the filling and restoration operation continues. The condition
is therefore not irreparable or of a “permanent or continuous” nature so as to warrant mandatory
injunctive relief. Id.; Schadewald v Brule, 225 Mich App 26, 40; 570 NW2d 788 (1997)
(citations omitted). Therefore, we find, as a matter of law, mandatory injunctive relief to be an
inappropriate remedy.

        Plaintiffs final claim on appeal is that the trial court impermissibly made findings of fact
in deciding defendants’ motion for summary disposition brought under MCR 2.116(C)(10) when
it allegedly found that Dan’s Excavating’s filling and restoration operations did not violate
Ordinance 99 or the permit issued thereunder. Plaintiffs correctly assert that, when deciding a
motion for summary disposition under MCR 2.116(C)(10), the trial court must not make findings
of fact or credibility determinations. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475
(1994). However, contrary to plaintiffs’ claim, the trial court did not weigh the competing
evidence, assess the credibility of the witnesses, or make a finding that there were no violations
of the ordinance or the permit. Instead, reviewing the trial court’s decision in context, it is
clearly evident that the court, in considering plaintiffs’ claim for mandamus relief and
concluding that there is no factual dispute that the Township exercised its discretion in enforcing
the ordinance and the permit, properly considered the undisputed evidence that the Township
Building Official investigated plaintiffs’ complaints and determined that the ongoing filling and
restoration operations of Dan’s Excavating did not violate the ordinance or the requirements of
the permit. See Lickfeldt, 247 Mich App at 302 (To establish a claim for mandamus relief, the
act requested, here enforcement of the ordinance and permit, must be ministerial and involve no
exercise of discretion or judgment). Contrary to plaintiffs’ claim on appeal, the trial court did
not make an impermissible finding of fact in deciding defendants’ motion for summary
disposition under MCR 2.116(C)(10).

                                                -6-
Affirmed.

                  /s/ Cynthia Diane Stephens
                  /s/ Michael J. Talbot
                  /s/ Jane M. Beckering




            -7-
