            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



In re DONAHUE.


MARK MURRAY DONAHUE,                                                 UNPUBLISHED
                                                                     February 19, 2019
               Plaintiff-Appellant,

v                                                                    No. 343366
                                                                     Ingham Circuit Court
55TH DISTRICT COURT,                                                 LC No. 18-000049-AS

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

        Plaintiff, Mark Donahue, appeals as of right the circuit court’s order denying a request for
superintending control over defendant, the 55th District Court. Because the circuit court did not
abuse its discretion by refusing to exercise superintending control, we affirm.

                                        I. BASIC FACTS

        In November 2010, Donahue was arrested for operating a motor vehicle while
intoxicated, third offense, MCL 257.625; MCL 257.625(9)(c), operating a motor vehicle while
license suspended, MCL 257.904(3)(a), and possessing open intoxicants in a motor vehicle on a
highway, MCL 257.624a. He was diverted to felony sobriety court in March 2011.1 In April
2011, Donahue was formally sentenced to the felony sobriety court by Judge Donald Allen, who



1
  According to the record before this Court, effective August 2, 2012, the felony sobriety court
was established in the 55th District Court by administrative order of the 30th Circuit Court
pursuant to the revised judicature act, MCL 600.1060 et seq. Although not clear on the present
record, it appears that the felony sobriety court existed in some form before August 2, 2012.



                                                -1-
was sitting as a circuit court judge.2 As part of the sentence, Donahue was ordered to pay $5,345
in fines, costs, and fees.

        Donahue was unsuccessful in the felony sobriety court, so he was terminated from
participation in the court on April 16, 2012. The record reflects that, when he was terminated
from the court, $4,265 of the assessed fines, costs, and fees were removed and the case was
scheduled for sentencing on May 10, 2012. In June 2012, he was sentenced to a term of
probation, fines, and costs by a circuit court judge.3

        On March 12, 2013, Donahue was ordered to show cause as to why he should not be held
in criminal contempt of court for his failure to pay the remaining $1,125 in costs and fees that
were originally ordered in April 2011. 4 Donahue’s lawyer filed a motion to quash the order,
arguing that it was defective for a number of reasons, including that the April 2011 orders
requiring him to pay the costs “were rendered null and void by virtue of the court’s order of
April 16, 2012” that terminated Donahue’s participation in sobriety court. On April 23, 2013,
Judge Allen heard the motion to quash. Judge Allen found that the court could impose costs
under MCR 769.1k(3) even if Donahue’s probation was revoked, but it agreed with Donahue that


2
  Although Judge Allen is a district court judge, at the time he sentenced Donahue in April 2011
he was acting as a circuit court judge as reflected in Assignment No. 1120101, which provides
that from January 1, 2011 until December 31, 2011, Judge Allen had a blanket assignment to
serve as a circuit court judge in order to assist with the circuit court docket in any non-
disqualification matters as directed by the chief judge of the Ingham County Circuit Court.

       On appeal, Donahue contends that Judge Allen was only allowed to take felony pleas, but
was not authorized to impose a felony sentence. In support, he directs this Court to
administrative order 2005-01, D55; in that order the 30th Circuit Court authorized district court
judges to “take pleas in criminal cases cognizable in the Circuit Court” so long as certain
requirements were met. Nevertheless, because Judge Allen was acting as a circuit court judge
when he sentenced Donahue in 2011, the fact that the 2005 administrative order would have
authorized him to accept felony pleas in his capacity as a district court judge is irrelevant.
Again, the record reflects that he was sitting as a circuit court judge, not a district court judge,
when he imposed the April 2011 sentence.

        We are also cognizant that Donahue appears to have been sentenced to the felony
sobriety court before the procedures for it were established by administrative order in August
2012. See note 1, supra. However, again, Judge Allen was sitting as a circuit court judge at that
time, so he could properly accept Donahue’s plea on a felony charge and impose a sentence.
3
  A copy of the June 2012 judgment of sentence is not available in the lower court record, so it is
unclear whether the fines and costs imposed were duplicative of the remaining fines and costs
from the April 2011 sentence imposed on Donahue by Judge Allen.
4
  A copy of the show cause order is not available in the lower court record. Presumably, the
order was sent by the 55th District Court.


                                                -2-
a new order imposing the costs and fees had to be issued and that it would be improper to impose
criminal contempt given the deficiencies in the show cause order. Accordingly, on May 2, 2013,
Judge Allen entered an order quashing the March 2013 show-cause order and ordering Donahue
to pay $702 as a pro-rated sobriety court fee and $378 in probation oversight fees for a total of
$1,080. Donahue did not appeal the order “due to lack of resources and lack of stamina.”

        Approximately three months later, on August 26, 2013, a second show cause order was
issued because Donahue failed to pay the ordered costs and fees. Donahue did not appear and a
bench warrant was issued for his arrest. On December 4, 2013, he was arraigned on the warrant
and ordered to report to the appropriate collections officer within 24 hours. It is unclear whether
he did so; however, on May 28, 2014, a late penalty was added to the sum Donahue was ordered
to pay, and on October 31, 2017 another show cause order was generated requiring Donahue to
appear and show cause as to why he should not be held in contempt for his failure to pay. On
November 21, 2017, Donahue entered into a payment plan with the 55th District Court that
required him to pay $30 per month starting on December 21, 2017. It does not appear that he
made any payments under that plan, however.5

        Instead, on January 22, 2018, Donahue filed a complaint for superintending control with
the circuit court, asking the circuit court to order the 55th District Court to “cease and desist” all
efforts to collect the financial assessments, to reduce Donahue’s purported balance to nothing, to
refund any monies paid to the 55th District Court, and to remove any negative reports to credit
reporting agencies. He contended that the orders imposing the financial assessments were
unlawful because they were entered by a court without jurisdiction and because they violated the
Double Jeopardy clause of the federal and state constitutions.6 In response, the 55th District
Court argued that superintending control was improper because Judge Allen had been acting as a
circuit court judge at the time that he entered the challenged orders and because Donahue had an
adequate remedy to alleviate any errors because he could have appealed Judge Allen’s order
following the April 23, 2013 hearing.

       On March 8, 2018, the circuit court entered an order denying the complaint for
superintending control. The court first held that dismissal of the complaint was warranted under
MCR 3.302(E)(3)(a)(iii) because Judge Allen was sitting as a circuit court judge when it was
supervising Donahue’s felony probation in sobriety court.             See MCR 3.302(A) (“A
superintending control order enforces the superintending control power of a court over lower
courts or tribunals.”). Additionally, the circuit court determined that because Donahue could
have appealed the challenged orders, dismissal was mandated under MCR 3.302(D)(2), which
provides that “[i]f superintending control is sought and an appeal is available, the complaint for
superintending control must be dismissed.”



5
    A copy of the payment plan agreement is not available in the lower court record.
6
  Donahue also argued that the March 2012 show cause order was entered in violation of the
court rules. However, because his motion to quash that order was granted, any errors with the
order have been rendered moot, so we decline to address those purported errors further.


                                                 -3-
        Donahue moved for reconsideration, contending that Judge Allen was acting as a district
court, not a circuit court judge, so his complaint for superintending control was properly directed
at a lower tribunal. Donahue did not, however, challenge the circuit court’s decision that
dismissal was required because he had an adequate remedy in the form of an appeal. The circuit
court denied the motion for reconsideration. This appeal follows.

                               II. SUPERINTENDING CONTROL

                                  A. STANDARD OF REVIEW

        Donahue argues that the circuit court erred by dismissing his complaint for
superintending control. “The grant or denial of a petition for superintending control is within the
sound discretion of the court. Absent an abuse of discretion, this Court will not disturb the
denial of a request for an order of superintending control.” The Cadle Co v City of Kentwood,
285 Mich App 240, 246; 776 NW2d 145 (2009) (quotation marks and citation omitted). “An
abuse of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). “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.” The Cadle Co, 285 Mich App at
246.

                                          B. ANALYSIS

        “[A] complaint for superintending control . . . is an original civil action designed to order
a lower court to perform a legal duty.” Shepherd Montessori Ctr Milan v Ann Arbor Charter
Twp, 259 Mich App 315, 346-347; 675 NW2d 271 (2003). “Superintending control is an
extraordinary power that the court may only invoke when the plaintiff has no legal remedy and
demonstrates that the court has failed to perform a clear legal duty.” Id. at 347. Therefore, “if a
plaintiff has a legal remedy by way of appeal, the court may not exercise superintending control
and must dismiss the complaint.” Id. See also MCR 3.302(D)(2) (“When an appeal in the . . .
circuit court is available, that method of review must be used. If superintending control is sought
and an appeal is available, the complaint for superintending control must be dismissed.”).

        Here, the circuit court dismissed Donahue’s complaint for superintending control after
determining that he had an adequate legal remedy in the form of an appeal. Assuming arguendo
that Judge Allen issued the challenged orders in his capacity as a district court judge rather than a
circuit court judge, an appeal of the orders was available under MCR 7.103. Alternatively, if he
was sitting as a circuit court judge when the orders were issued, an appeal was available under
MCR 7.204. As Donahue explained in his complaint for superintending control, he chose not to
pursue such an appeal because of a “lack of resources and a lack of stamina.” Stated differently,
Donahue both acknowledges that an appeal was available to challenge the disputed orders and
that he knowingly declined to pursue it.

        Nevertheless, on appeal, he argues for the first time that when he filed his complaint for
superintending control in 2018, no appeal of the disputed orders was available and a complaint
for superintending control was his only legal remedy. He asserts that because MCR 3.302(D)(2)
states that a complaint for superintending control must be dismissed if an appeal “is available,”

                                                -4-
the fact that an appeal is no longer available means that the court is not required to dismiss his
complaint. We disagree. Donahue’s argument wholly ignores that a remedy was available when
the allegedly improper order was entered, but he simply chose not to avail himself of it.
Accordingly, because an appeal was available, Donahue cannot now maintain a complaint for
superintending control. MCR 3.302(D)(2).

         Moreover, Donahue could have also filed a motion for relief from judgment under MCR
6.502, which provides that a defendant in a felony case may move for relief from judgment.
Notably, there is no time limit imposed on when the motion must be filed, so this avenue of legal
relief remains available. See MCR 6.502. On appeal, Donahue argues that Chapter 6.500 of the
Michigan Court Rules only applies to the circuit court. We disagree. MCR 6.501 provides that
“[u]nless otherwise specified by these rules, a judgment of conviction and sentence entered by
the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be
reviewed only in accordance with the provisions of this subchapter.” Contrary to Donahue’s
argument, it does not state that subchapter 6.500 only applies to the circuit court. Additionally,
MCR 6.001 provides that in felony cases “[t]he rules in subchapters 6.000-6.500 govern matters
of procedure . . . .” Donahue’s case is a felony case, so subchapter 6.500 of the Michigan Court
Rules governs the criminal procedure to be used in his case. As a result, although Donahue
correctly points out that in a misdemeanor case the rules in subchapter 6.500 do not apply, that
has no relevance to the current dispute. Instead, because a motion for relief from judgment could
have been filed under MCR 6.502, Donahue had an adequate remedy—in addition to an
appeal—available, so his complaint for superintending control was not proper. See MCR
3.302(B) (“If another adequate remedy is available to the party seeking [a superintending control
order], a complaint for superintending control may not be filed.”).7

       Affirmed.

                                                            /s/ Michael J. Kelly
                                                            /s/ Deborah A. Servitto
                                                            /s/ Mark T. Boonstra




7
  Given our resolution, we need not address Donahue’s argument that Judge Allen’s orders
violated the Double Jeopardy clauses of the state and federal constitutions. That matter is only
relevant to whether the 55th District Court had a clear legal duty, but Donahue had to establish
both the lack of an adequate legal remedy and the failure of the lower court to perform a clear
legal duty. See Shepherd, 259 Mich App at 347.


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