Arnold D Dunchock v. City of Corunna ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
ARNOLD D DUNCHOCK, UNPUBLISHED
November 14, 2017
Plaintiff-Appellant,
v No. 335721
Shiawassee Circuit Court
CITY OF CORUNNA, LC No. 16-008610-CZ
Defendant-Appellee.
Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
PER CURIAM.
Plaintiff appeals by right the orders of the trial court granting defendant’s motion for
summary disposition and denying plaintiff’s motion for reconsideration. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The extensive history of the numerous cases filed by plaintiff (in propria persona) against
defendant was recounted by the trial court in an April 5, 2017 order. We will not fully repeat
that history here. The trial court found that this action raised issues that were identical to those
raised in previously dismissed cases, failed to state a valid cause of action, and failed even to
explain, in plain English, the relief that plaintiff was seeking. This case, the fourth such action
filed by plaintiff, again concerned certain parcels of property located within defendant’s city
limits and owned by defendant or his wife. Defendant apparently had issued notices to the
owners of the parcels stating that they were unsafe and in need of repair. In what the trial court
aptly described as “a series of documents purporting to be a complaint and three supplements to
the complaint,” but containing “vague, rambling allegations, none of which are ‘clear, concise,
and direct,’ ”, plaintiff alleged that defendant had somehow “captured” these properties.
The trial court was unable to determine the substance of plaintiff’s complaint, and
therefore issued an order directing plaintiff to file a brief detailing his legal and factual positions
in conformity with MCR 2.116 and MCR 2.119, or risk having his complaint dismissed under
MCR 2.116(C)(8) (failure to state a claim for which relief can be granted) or (C)(10) (no genuine
issue of material fact) or stricken as nonconforming under MCR 2.115(B). The order also
directed plaintiff to submit with that brief a proposed amended complaint. Plaintiff was given
over 30 days to complete these tasks.
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Plaintiff never filed such a brief or proposed amended complaint; instead, one day before
the deadline, he filed a document entitled “Response/Objection” accusing the trial court of
“going beyond judicial activism to the range of outright advocacy.” The document chiefly
consists of objections to the trial court’s order, none supported by citations to authority apart
from bare reference to the Michigan Court Rules. Plaintiff did state in that document that he
intended to amend his complaint. As the trial court noted, the Response/Objection was not filed
within the time period for filing motions for reconsideration, MCR 2.119(F)(1). Plaintiff
submitted an amended complaint the following day. The trial court found that the amended
complaint again did not comprehensibly state a cause of action. Rather than dismiss plaintiff’s
case, however, the trial court gave plaintiff another chance, issuing an order directing plaintiff to
show cause why summary disposition was not warranted under MCR 2.116(C)(8). The trial
court directed plaintiff to provide oral argument in approximately two months’ time regarding
why the trial court should not grant summary disposition in favor of defendant under
MCR 2.116(C)(8), and “encouraged” plaintiff to supplement his written filings in the meantime.
Shortly thereafter, defendant filed a motion for summary disposition under
MCR 2.116(C)(6), arguing in part that another lawsuit had by then already been filed before the
trial court. On October 7, 2016, the trial court heard oral argument on defendant’s motion and on
its own motion for plaintiff to show cause. Plaintiff requested and was permitted to make a
statement, specifically stating he did not wish to waive his right of appeal, but he offered no
challenge or argument in response to defendant’s motion or the trial court’s own motion.
Following plaintiff’s statement, the trial court withdrew its own motion and found, relative to
defendant’s (C)(6) motion, that the issues in this case were the subject not only of another matter
pending before the court in another case, but also of previous suits filed by plaintiff (one of
which was then on appeal to this Court). It therefore held that summary disposition under
MCR 2.116(C)(6) was appropriate. Plaintiff moved for reconsideration, which the trial court
denied.
This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant summary disposition under
MCR 2.116(C)(6). Fast Air, Inc v Knight, 235 Mich. App. 541, 543; 599 NW2d 489 (1999).
III. ANALYSIS
The trial court did not err by granting summary disposition in favor of defendant under
MCR 2.116(C)(6). MCR 2.116(C)(6) provides that summary disposition is appropriate where
“[a]nother action has been initiated between the parties involving the same claim.” The court
rule is a codification of the former plea of abatement by prior action. See Chappie v Nat’l
Hardwood Co, 234 Mich. 296, 297; 207 N.W. 888 (1926).
For purposes of MCR 2.116(C)(6), “a pending appeal is equivalent to a pending action.”
Planet Bingo, LLC v VKGS, LLC, 319 Mich. App. 308, 323; 900 NW2d 680 (2017), citing Darren
v Haven, 175 Mich. App. 144, 151; 437 NW2d 349 (1989) and Maclean v Wayne Circuit Judge,
52 Mich. 257, 259; 18 N.W. 393 (1884). Defendant contended in its motion, and the record
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reflects, that at the time of the trial court’s summary disposition order, a previously-filed action
between the same parties involving the same claims was on appeal before this Court.1 Plaintiff
did not challenge the grant of summary disposition on this ground before the trial court or raise
any question or legal argument about the similarity of the parties and claims in the previous case
to the instant case. Nor does plaintiff raise a cognizable argument against this grant of summary
disposition on appeal.
Affirmed. As the prevailing party, defendant may tax costs. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra
1
Plaintiff’s appeal in the prior case was ultimately dismissed for want of prosecution on
November 10, 2016. See Dunchock v City of Corunna, unpublished order of the Court of
Appeals, issued November 10, 2016 (Docket No. 332213). Plaintiff offers no explanation
regarding why he failed to pursue his appeal in that case, choosing instead to file a new case
before the very trial court that he had repeatedly accused of judicial activism and advocacy on
behalf of defendant.
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