Anthony v. Marrocco v. Oakland MacOmb Interceptor Drain Drainage

STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY V. MARROCCO, UNPUBLISHED
June 16, 2016
Plaintiff-Appellee,
v No. 326575
Macomb Circuit Court
OAKLAND MACOMB INTERCEPTOR DRAIN LC No. 2013-002615-CZ
DRAINAGE DISTRICT, JIM NASH, and
MICHAEL GREGG,
Defendants-Appellants.
ANTHONY V. MARROCCO,
Plaintiff-Appellant,
v No. 327614
Macomb Circuit Court
OAKLAND MACOMB INTERCEPTOR DRAIN LC No. 2013-002615-CZ
DRAINAGE DISTRICT, JIM NASH, and
MICHAEL GREGG,
Defendant-Appellees.
Before: TALBOT, C.J., and MURRAY and SERVITTO, JJ.
PER CURIAM.
In Docket No. 326575, defendants the Oakland Macomb Interceptor Drain Drainage
District (OMIDDD), Jim Nash, and Michael Gregg appeal as of right the trial court’s opinion
and order granting summary disposition in favor of plaintiff, Anthony Marrocco, with regard to
Count I of his complaint. In this count, Marrocco alleged that defendants breached a contract
between the OMIDDD and Macomb County by failing to approve Warren’s request to connect to
the Oakland-Macomb Interceptor (OMI). The trial court agreed, granting summary disposition
in Marrocco’s favor and declaring that Warren was part of the “Service Area” contemplated by
the contract. Because the trial court decided a disputed issue of fact on a motion for summary
disposition brought under MCR 2.116(C)(10), we reverse and remand for further proceedings
regarding this count of the complaint.
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In Docket No. 327614, Marrocco appeals as of right from the same opinion and order to
the extent that the trial court granted summary disposition in favor of defendants with respect to
Count II of his complaint. In this count, Marrocco sought a writ of superintending control or a
writ of mandamus compelling the OMIDDD to take certain actions. With regard to this count,
we affirm.
I. FACTS
The OMI is an intercounty drain1 formerly owned by Detroit. In 2009, the OMIDDD
was formed and purchased the OMI. Pursuant to statute, the OMIDDD is governed by a
drainage board (the Board) that consists of “the director of the department of agriculture and the
drain commissioner of each county involved in the project.”2 The current members of the Board
are Marrocco, representing Macomb County; Jim Nash, representing Oakland County; and
Michael Gregg, representing the Department of Agriculture.3 At the time the OMIDDD acquired
the OMI, the system was in a serious state of disrepair. The OMIDDD was tasked with
rehabilitating the system. An expensive, multi-year rehabilitation project was approved, and is
just now nearing completion. The project was funded largely by apportionments paid by 23
communities that connected to the OMI and used it to deliver wastewater to the Detroit Water
and Sewerage Department (DWSD).
In 2009, the OMIDDD entered into a contract with DWSD under which the OMIDDD
was permitted to direct wastewater to DWSD for treatment at a rate of up to 423 cubic feet per
second (cfs). The OMIDDD also entered into agreements with Oakland County and Macomb
County, the two counties served by the OMI. Under its agreement with Oakland, the OMIDDD
would allow Oakland to direct up to 140 cfs of wastewater into the OMI. Under its agreement
with Macomb (the Macomb Agreement), Macomb was permitted to direct up to 283 cfs of
wastewater into the OMI.
Warren has never been connected to the OMI. But the city has had its own wastewater
collection issues, and at least by 2009, sought to connect to the OMI, believing this would be the
most cost-effective method to resolve these problems. Eventually, on March 19, 2013, the Board
unanimously approved Warren’s request, but subject to the resolution of a number of outstanding
concerns. One such concern was the negotiation of an “equitable buy-in” fee that would
recognize and account for the fact that Warren had never paid a dollar toward the construction or
rehabilitation of the OMI. However, the arrangement apparently reached an impasse shortly
thereafter. On June 18, 2013, Marrocco presented a motion to the Board that would have
allowed Warren to connect to the OMI without paying any sum toward the rehabilitation project.
1
An intercounty drain is “any drain, irrespective of size, carrying drainage water or sewage in
more than 1 county, and includes drains located, established and constructed by a county drain
commissioner or drainage board, by a city, village or township.” MCL 280.511(e).
2
MCL 280.514(1).
3
Nash was preceded by John McCullogh, the former Oakland County Water Resources
Commissioner.
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The motion was discussed at length, and ultimately failed to gather the support of a majority of
the Board. At the same meeting, Marrocco presented a motion that would have transferred the
positions of Board Secretary and manager of the rehabilitation project from Nash to Marrocco.
After discussion, this motion likewise failed to garner the support of the Board.
A little more than a week later, Marrocco filed the instant suit. In the first count, he
contended that under the Macomb Agreement, Warren was entitled to connect to the OMI, and
that by failing to approve his motion, defendants were in breach of this agreement. In his second
count, he claimed that the Board violated its fiduciary duties to the OMIDDD by failing to
appoint Marrocco secretary and project manager. He sought either a writ of superintending
control or a writ of mandamus compelling the Board to approve his motion to this effect. After
cross-motions for summary disposition, the trial court concluded that, under the Macomb
Agreement, Warren was entitled to connect to the OMI. The trial court granted summary
disposition in defendants’ favor with regard to the second count, concluding that Marrocco was
not entitled to either of the writs he sought. The instant appeals ensued.
II. BREACH OF CONTRACT
We first consider whether the trial court erred when it granted summary disposition in
favor of Marrocco with respect to Count I of the complaint. Because it is clear that the trial court
decided a disputed factual issue on a motion for summary disposition, we must reverse the trial
court’s decision with respect to this count.
A. STANDARD OF REVIEW
Combined, the parties’ motions with respect to this count cited MCR 2.116(C)(8), (C)(9),
and (C)(10). The trial court did not clearly specify under which of these rules it decided the
motion. However, it is clear that the trial court considered evidence well beyond the pleadings,
and of the cited court rules, only MCR 2.116(C)(10) allows the trial court to consider anything
other than the pleadings.4 Thus, we consider the motion as having been decided under MCR
2.116(C)(10).5
This Court “review[s] de novo a trial court’s decision on a motion for summary
disposition to determine whether the moving party is entitled to judgment as a matter of law.”6
When reviewing a motion decided under MCR 2.116(C)(10), this Court “review[s] the evidence
submitted by the parties in a light most favorable to the nonmoving party to determine whether
there is a genuine issue regarding any material fact.”7 “The proper interpretation of a contract is
4
See MCR 2.116(G)(5).
5
Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012)
(“[B]ecause the trial court considered documentary evidence beyond the pleadings, we construe
the motion as having been granted pursuant to MCR 2.116(C)(10).”).
6
Id.7
Id.-3-
a question of law,” reviewed de novo on appeal.8 “Whether contract language is ambiguous is a
question of law, which this Court reviews de novo.”9
B. ANALYSIS
When interpreting a contract, the overarching goal is to ascertain the parties’ intent.10 If
the language of the contract is unambiguous, this task is relatively simple: the contract must “be
construed according to its plain meaning.”11 But difficulties arise when a contract’s language is
ambiguous. “A contract is ambiguous when its words may be reasonably understood in different
ways.”12 An ambiguity also exists if provisions of the contract irreconcilably conflict.13 The
meaning of an ambiguous contract becomes a factual question.14 And generally speaking, the
parol evidence rule “prohibits the use of extrinsic evidence to interpret unambiguous language
within a document. However, if a contract is ambiguous, then extrinsic evidence is admissible to
determine the actual intent of the parties.”15
The relevant question in this matter is whether Warren is entitled to connect to the OMI
under the terms of the Macomb Contract. The Macomb Contract provides the following:
1. Provision of Services. DRAINAGE DISTRICT agrees to provide wastewater
services to COUNTY to transport the sewage from the MCWDD to DETROIT for
treatment and disposal and agrees to contract for such services with DETROIT,
subject to conditions in the manner as set forth in this Agreement.
* * *
6. Service Area. The service area of COUNTY is shown in Exhibit A. The
service area may be amended upon mutual agreement of the parties but shall not
extend beyond its corporate limits except by mutual consent of the parties hereto.
* * *
8
Coates v Bastian Brothers, Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007).
9
Farm Bureau Mut Ins Co of Mich v Nikkel, 460 Mich 558, 563; 596 NW2d 915 (1999).
10
Shay v Aldrich, 487 Mich 648, 660; 790 NW2d 629 (2010).
11
Id.12
Cole v Auto-Owners Ins Co, 272 Mich App 50, 53; 723 NW2d 922 (2006) (quotation omitted).
13
Id.14
Klapp v United Ins Grp Agency, Inc, 468 Mich 459, 469; 663 NW2d 447 (2003).
15
Shay, 487 Mich at 667 (quotation marks and citation omitted).
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9. Acceptance of Flow. The DRAINAGE DISTRICT agrees to accept and
COUNTY agrees to deliver no less than 70% of all Instantaneous Flow generated
within COUNTY’s Service Area and existing as of the date of this Contract.
The language above might seem unambiguous. The OMIDDD’s obligation is to accept
flows from the Service Area. The Service Area, in turn, is defined by a document that was to be
attached as Exhibit A. The problem, however, arises because the parties failed to designate or
attach a document as Exhibit A to the Macomb Agreement. This leaves the meaning of the
Service Area open to dispute. Thus, and as the trial court correctly concluded, the Macomb
Agreement contains an ambiguity.
“It is well settled that the meaning of an ambiguous contract is a question of fact that
must be decided” by the fact-finder.16 “Hence, in the context of a summary disposition motion, a
trial court may determine the meaning of a contract only when the terms are not ambiguous.”17
The trial court, however, explicitly stated that it “examin[ed] the parole [sic] evidence together
with other undisputed facts” to interpret the meaning of the agreement. At great length, the trial
court discussed a wide variety of evidence submitted by the parties, and then drew its own
conclusions regarding what this evidence demonstrated, before concluding that the Service Area
was coterminous with Macomb County, and thus, included Warren.
The trial court did so despite the existence of substantial evidence indicating that Warren
was not, in fact, intended to be within the Service Area. A number of witnesses closely
connected to the negotiation of the agreement testified that the Service Area did not include
Warren, and that the Service Area was understood to be less than all of Macomb County. There
was evidence suggesting that all involved in the discussions regarding the Warren connection
believed that doing so would require the Board’s approval. The resolution unanimously adopted
by the Board on March 19, 2013, expressly acknowledged that under the Macomb Agreement,
“the service area of Macomb County may be amended to include the City of Warren only upon
mutual agreement of the [sic] Macomb County and the OMIDDD[.]” Of course, there would be
no need to amend the Service Area to include Warren if Warren was already included in the
Service Area.18 There was also substantial evidence indicating that the Service Area under the
Macomb Agreement was intended to be the same as depicted by a map prepared by a consulting
16
Klapp, 468 Mich at 469.
17
D’Avanzo v Wise & Marsac, PC, 223 Mich App 314, 319; 565 NW2d 915 (1997).
18
Clearly, the ultimate dispute in this matter is not so much whether Warren may connect to the
OMI, but whether it may do so without making a financial contribution to the rehabilitation
project. To this end, the same resolution explicitly recognized that one condition of Warren’s
potential connection was an agreement between the parties for an equitable “buy-in” that took
into account the contributions made by those communities that had contributed to this project.
This would further tend to show that the parties understood that Warren was not entitled to
connect to the OMI under the Macomb Agreement, and instead, would be an addition to the
Service Area.
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firm, designated as “Figure 1” (the Figure 1 map). This map did not include Warren in any
designated area.
There can be no doubt that the trial court resolved a factual dispute at the summary
disposition phase. This was error. When deciding a motion brought under MCR 2.116(C)(10), a
trial court is not permitted to resolve a factual dispute where the evidence submitted by the
parties demonstrates that one exists.19 “[I]t is [also] well settled that the circuit court may not
weigh evidence or make determinations of credibility when deciding a motion for summary
disposition.”20 The trial court violated these fundamental precepts when it determined Marrocco
was entitled to summary disposition with regard to Count I of the complaint.
On appeal, Marrocco makes several meritless arguments, generally based on a belief that
the Macomb Contract contains no ambiguity, but rather, unambiguously provides that all of
Macomb County is included within the Service Area. Marrocco first contends that the trial court
did not find the contract ambiguous, and instead, without resort to extrinsic evidence, correctly
concluded that the contract unambiguously allows all of Macomb County to connect to the OMI.
Marrocco’s argument is entirely baseless. In a section of its opinion titled, “The Ambiguity or
no Ambiguity Question,” the trial court stated:
It is clear the term “service area” lacks specificity in all of the agreements
where it is used. It appears to have been the intention of the parties to provide
that specificity through the attachment of exhibits to both the Detroit agreement
and county agreements, but it never happened. The contracting parties recognized
the term needed clarification and context, but failed to provide it. The concept of
a service area under the Macomb agreement can be argued to mean several
things and cannot be said to have a generally accepted definition. When that
term is applied or executed the several meanings are confirmed. Therefore,
extrinsic evidence must be considered to identify the existence of the ambiguity
and ascertain the intended meaning of the term. Upon examination of the parole
[sic] evidence together with other undisputed facts, the Court finds that evidence
supports [Marrocco]’s interpretation of the service area as including the entirety
of Macomb County . . . .
True, the trial court did not flatly say “the contract is ambiguous.” But it could not be
more clear that the trial court found the contract could be interpreted in different ways, thus
making it ambiguous. Further, the trial court plainly found it necessary to review parol evidence
in order to interpret the contract. Had the trial court found the contract unambiguous, it would
19
Lsyogorski v Bridgeport Charter Twp, 256 Mich App 297, 299; 662 NW2d 108 (2003).
20
Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 480; 776 NW2d 398 (2009).
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have had no occasion, nor would it have been permitted, to rely on extrinsic evidence.21
Marrocco’s suggested reading of the trial court’s opinion is absurd.
Marrocco also argues that the Macomb Agreement unambiguously states that the Service
Area encompasses all of the Macomb County Wastewater Drainage District (MCWDD), which,
at least as far as Marrocco is concerned, includes all of Macomb County.22 He relies on recitals
stated at the outset of the Macomb Agreement, along with a 1966 resolution that defined the
MCWDD as encompassing all of Macomb County. It is true that the recitals of the Macomb
Agreement discuss the formation of the MCWDD in 1966.23 But Marrocco places far too much
emphasis on mere contract recitals, while essentially ignoring the actual provisions of the
agreement. Recitals might be treated as conclusive of the facts stated therein – in this case, that
the MCWDD was formed in 1966, along with other background facts.24 Yet when it came time
to define the obligations created by the Macomb Agreement, the parties explicitly agreed that the
OMIDDD’s commitment to service Macomb County would be “subject to conditions and in the
manner as set forth in” the Macomb Agreement.25 One such condition was that the OMIDDD
21
Shay, 487 Mich at 667. Marrocco suggests that the trial court merely referenced this evidence
to provide relevant background, and did not rely on it when interpreting the contract. This flies
in the face of the trial court’s statement that its “examination of the parole [sic] evidence together
with other undisputed facts” caused it to “find[] that evidence supports [Marrocco]’s
interpretation of the service area . . . .”
22
This, too, appears to be a fact in dispute. Marrocco himself approved a resolution in May,
2013 purporting to add Warren to the MCWDD. Given that Warren is situated in Macomb
County, there would seem to be no need for such a resolution if the MCWDD already
encompassed all of Macomb County.
23
For example, one recital states, “WHEREAS, in 1966 the Macomb County Board of
Supervisors . . . authorized and directed that there be established a county system of sewage
disposal improvements and services . . . known as the ‘Macomb County Wastewater Disposal
District . . . .”
24
See Acme Cut Stone Co v New Center Dev Corp, 281 Mich 32, 47; 274 NW 700 (1937),
quoting Thompson Electric Welding Co v Peerless Wire Fence Co, 190 Mich 496, 502-503; 157
NW 67 (1916) (“ ‘When resorted to in drafting contracts, recitals serve as a preface or
preliminary statement introducing the subject in relation to which the parties contract, indicating
to a greater or less degree the reason for and intent of what follows. Recitals are of two kinds,
particular and general. Particular recitals involving a statement of fact are, as a rule, to be treated
as conclusive evidence of the facts stated; while general recitals may not be.’ ”).
25
Notably, Marrocco fails to recognize the existence of this limiting language in his brief on
appeal. Rather, he quotes only the first part of this contractual provision, which refers to the
“COUNTY” and the “MCWDD.” This Court may not, as Marrocco apparently would, ignore
terms stated in the contract. See Zahn v Kroger Co of Mich, 483 Mich 34, 41; 764 NW2d 207
(2009) (“Courts may not make a new contract for parties under the guise of a construction of the
contract, if doing so will ignore the plain meaning of words chosen by the parties.”).
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would accept flows from the Service Area. In defining the Service Area, the parties never
referenced the MCWDD, or Macomb County for that matter. Rather, they chose to reference a
nonexistent exhibit. The recitals do not change these provisions; they merely set the stage for the
agreement that is to follow.26 Nothing in the Macomb Agreement unambiguously defines the
Service Area as including the entire MCWDD or the entirety of Macomb County.
Marrocco further contends that the evidence presented by defendants fails to create a
genuine issue of material fact regarding the intended meaning of the term Service Area. His
argument is flawed in that it begins with the erroneous belief that the Macomb Agreement
unambiguously defines the Service Area as including all of Macomb County. This is simply not
the case. Setting this aside, Marrocco’s arguments speak to whether certain witnesses and
documents are credible and the weight to afford this evidence. On a motion brought under MCR
2.116(C)(10), such questions are of no relevance.27
In sum, a genuine factual dispute exists regarding the proper interpretation of the
Macomb Agreement, and specifically, whether the parties intended for Warren to be part of the
Service Area contemplated by the agreement. The question should be put to the fact-finder at
trial, not decided on a motion for summary disposition. Accordingly, the trial court should have
denied the cross-motions for summary disposition with respect to Count I of the complaint.28
After reading the trial court’s opinion in this matter, we are left with the impression that
the trial court has made credibility determinations and weighed conflicting evidence. One might
question whether the judge currently presiding over the matter may set these determinations
aside on remand. While we could direct the matter to be assigned to a different judge,29 we
decline to do so at this juncture. Rather, we leave it to the current judge to determine whether it
would be appropriate for him to continue to preside over the matter.
III. WRITS OF SUPERINTENDING CONTROL AND MANDAMUS
Second, we consider whether the trial court erred when it determined that Marrocco was
not entitled to a writ of superintending control or a writ of mandamus. In this regard, the trial
court did not err.
26
Acme Cut Stone Co, 281 Mich at 47.
27
Innovative Adult Foster Care, Inc, 285 Mich App at 480.
28
Defendants suggest that if the trial court could properly resolve a factual dispute at the
summary disposition phase, it should have done so in their favor. It would be equally
inappropriate for the trial court to resolve a factual dispute in defendants’ favor on a motion
decided under MCR 2.116(C)(10).
29
See Bayati v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004) (This Court “may
remand to a different judge if the original judge would have difficulty in putting aside previously
expressed views or findings, if reassignment is advisable to preserve the appearance of justice,
and if reassignment will not entail excessive waste or duplication.”).
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A. STANDARD OF REVIEW
A trial court’s decision to grant or deny a request for an order of superintending control is
reviewed for an abuse of discretion.30 “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.”31 A trial court’s decision to grant or deny a request for a writ of mandamus is
also reviewed for an abuse of discretion.32
B. ANALYSIS
Both writs sought by Marrocco may issue only if it is shown that the defendant has failed
to perform a clear legal duty.33 Marrocco cannot show that there is a clear legal duty for the
Board to appoint him secretary or manager of the rehabilitation project. At best, by law, the
Board is compelled to appoint one of the three members of the Board as secretary.34 But there is
no clear legal duty for the Board to select one particular member over another as secretary or
project manager. This is a matter of discretion, and one that is decided by majority vote of the
Board.35 For that reason alone, Marrocco was not entitled to either writ.
Generally, Marrocco claims that the clear legal duty stems from the Board’s duty to act in
the best interests of the OMIDDD, and his belief that he could complete the rehabilitation project
at a lower cost to the OMIDDD and, in particular, to Macomb County. This does not establish a
clear legal duty. Cost is but one of many issues that must be considered when deciding such
matters. For instance, issues of timeliness and quality are also of relevance. Marrocco also
contends that the Board previously resolved to rotate the project manager and secretary positions.
This is simply false. The Board resolved to consider rotating the position of secretary, but never
resolved to actually rotate the position at any point in time. It never even discussed rotating the
project manager position.
Additional reasons also preclude the issuance of either writ. “Superintending control is
an extraordinary remedy generally limited to determining whether a lower court exceeded its
jurisdiction, acted in a manner inconsistent with its jurisdiction, or failed to proceed according to
30
The Cadle Co v City of Kentwood, 285 Mich App 240, 246; 776 NW2d 145 (2009).
31
Id.32
Rental Prop Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 518; 866
NW2d 817 (2014).
33
Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362, 366-367; 820 NW2d
208 (2012); The Cadle Co, 285 Mich App at 246.
34
MCL 280.514(2).
35
See MCL 280.518 (providing that “an action shall not be taken by [the Board] except by a
majority vote of its members.”).
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law.”36 An order of superintending control “enforces the superintending control power of a court
over lower courts or tribunals.”37 “Tribunals include administrative agencies acting in a judicial
or quasi-judicial capacity.”38 Thus, a circuit court’s superintending control power may only be
exercised over inferior courts or administrative agencies acting in a judicial or quasi-judicial
capacity.39
Clearly, the Board is not an inferior court. Our Supreme Court “has employed the term
‘quasi-judicial’ broadly: ‘When the power is conferred by statute upon a commission such as the
public utilities, or a board such as the department of labor and industry, to ascertain facts and
make orders founded thereon, they are at times referred to as quasi-judicial bodies . . . .’ ”40 As
this Court has explained:
To determine whether an administrative agency’s determination is adjudicatory in
nature, courts compare the agency’s procedures to court procedures to determine
whether they are similar. Quasi-judicial proceedings include procedural
characteristics common to courts, such as a right to a hearing, a right to be
represented by counsel, the right to submit exhibits, and the authority to subpoena
witnesses and require parties to produce documents.[41]
In voting down Marrocco’s motions, the Board was not acting in a way that even
remotely resembles a judicial proceeding. The Board did not accept a petition or complaint; it
was presented with two motions by one of its members. It did not hear evidence or make factual
findings; its members discussed the motions and the Board decided whether to approve the
motions by majority vote.42 The trial court correctly concluded it lacked authority to issue a writ
of superintending control compelling the Board to act as Marrocco wishes.
36
In re Credit Acceptance Corp, 273 Mich App 594, 598; 733 NW2d 65 (2007), aff’d 481 Mich
883 (2008).
37
Fort v Detroit, 146 Mich App 499, 503; 381 NW2d 754 (1985); Beer v Fraser Civil Serv
Comm, 127 Mich App 239, 243; 338 NW2d 197 (1983).
38
Natural Resources Defense Council v Dep’t of Environmental Quality, 300 Mich App 79, 86;
832 NW2d 288 (2013) (quotation marks, brackets, and citation omitted).
39
Id.40
Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83, 91; 803 NW2d 674
(2011), quoting People ex rel Clardy v Balch, 268 Mich 196, 200; 255 NW 762 (1934).
41
Natural Resources Defense Council, 300 Mich App at 86.
42
Both on appeal and in the trial court, Marrocco has argued that the Board’s decision-making
process is subject to judicial review under the “substantial evidence” standard, meaning that the
Board’s decisions will be upheld if there is substantial evidence to support the decision. The
“substantial evidence” standard of review applies to factual findings by administrative agencies.
See, e.g., In re Payne, 444 Mich 679, 688, 692-693; 514 NW2d 121 (1994); City of Sterling
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Marrocco cites Fritz v St Joseph Co Drain Comm43 for the premise that superintending
control is a proper vehicle for review of a public body’s decisions. Fritz contains no such
holding. As the very first sentence of this Court’s opinion in Fritz reveals, that case involved a
request for a writ of mandamus, not a writ of superintending control.44 Marrocco also cites a
number of cases where appellate courts determined that superintending control was available to
compel a drain board to act. In each of these cases, the challenges were to orders made after the
board at issue conducted hearings and rendered decisions on contested matters, proceedings that
were quasi-judicial in nature.45 These cases lend no support to Marrocco’s position, which
involves decisions of an entirely different nature.46
“A writ of mandamus is an extraordinary remedy that will only be issued if (1) the party
seeking the writ has a clear legal right to the performance of a specific duty sought, (2) the
defendant has a 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.”47 Ministerial acts are those “for which
the law prescribes and defines the duty to be performed with such precision and certainty as to
leave nothing to the exercise of judgment or discretion.”48 The selection of a secretary is a
Heights v Chrysler Grp, LLC, 309 Mich App 676, 681; 873 NW2d 342 (2015). But when the
Board considers whether to adopt a proposed resolution, it makes no factual findings. Rather,
the Board makes a decision through the votes of its members. The substantial evidence standard
is of absolutely no relevance to such a decision-making process.
43
Fritz v St Joseph Co Drain Comm, 255 Mich App 154; 661 NW2d 605 (2003).
44
Id. at 155 (“Plaintiff appeals as of right from the circuit court’s order denying his request for
injunctive relief in the form of mandamus.” (Emphasis supplied)). The term “superintending
control” does not appear anywhere in Fritz.
45
See Maple Grove Twp v Misteguay Creek Intercounty Drain Bd, 298 Mich App 200; 828
NW2d 459 (2012) (challenge to an order of practicability); Barak v Drain Comm for Oakland
Co, 246 Mich App 591; 633 NW2d 489 (2001) (challenge to final order of determination and
final order of apportionment regarding the establishment of a drain). Marrocco chiefly relies on
Charter Twp of Lansing v Ingham Co Drain Comm, unpublished opinion per curiam of the Court
of Appeals, issued December 2, 2014 (Docket No. 316870. As it is unpublished, this case is of
no precedential value. MCR 7.215(C)(1). Regardless, Charter Twp of Lansing similarly
involves a challenge to a decision, made after conducting a hearing, to the amount a township
would be assessed for a drain project.
46
In his brief on appeal, Marrocco also claims that “the trial court acknowledg[ed] that ‘Chapter
21 of the Drain Code authorizes the drainage district to act, generally, in a judicial or quasi-
judicial capacity’ . . . .” Nothing could be further from the truth. The entire sentence quoted by
Marrocco reads, “Nothing in Chapter 21 of the Drain Code authorizes the drainage district to act,
generally, in a judicial or quasi-judicial capacity.” Marrocco’s selective and misleading
quotation of the trial court’s opinion fails to demonstrate any error.
47
Coalition for a Safer Detroit, 295 Mich App at 366-367 (quotation marks and citation
omitted).
48
Hanlin v Saugatuck Twp, 299 Mich App 233, 248; 829 NW2d 335 (2013).
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discretionary choice, not a ministerial function, and thus, not subject to interference through a
writ of mandamus. The same is true of the Board’s selection of a representative to serve as
manager of the rehabilitation plan. “Mandamus ‘will not lie for the purpose of reviewing,
revising, or controlling the exercise of discretion reposed in administrative bodies.’ ”49
Marrocco contends that even discretionary acts are subject to mandamus under certain
circumstances. And indeed, our Supreme Court has stated that “[m]andamus will not lie in
matters involving discretion on the part of a public agency unless its action is so arbitrary and
capricious as to evidence a total failure to exercise discretion.”50 The record, however, does not
support Marrocco’s claim that Gregg and Nash acted arbitrarily. When presented with
Marrocco’s motions, the Board considered them and discussed concerns. And ultimately, the
Board, by a majority vote, declined to approve the motions. Clearly, Marrocco believes the
Board should have voted differently. But this does not demonstrate that Gregg and Nash acted
arbitrarily or capriciously. Rather, they exercised their discretion. That they disagreed with
Marrocco in doing so does not entitle Marrocco to a writ of mandamus.
On appeal, Marrocco also contends that the trial court should have exercised its equitable
powers to compel the Board to act as Marrocco wished. We have found no point in the lower
court record where Marrocco asked for such relief, and accordingly, this Court need not even
consider the question.51 The argument is also completely devoid of merit. Whether to grant
equitable relief is a matter of grace, left to the discretion of the trial court.52 Equitable relief is
appropriate when on the circumstances of the particular case, justice, and good conscience
dictate that such relief be afforded.53 What Marrocco seeks is an order that would overrule
majority votes by the Board. We can hardly think of a court order that would be more
unconscionable than one allowing the will of a single member of the Board to overcome that of
the majority of the Board’s members.54 Moreover, our Legislature has directed that any action of
49
Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich App 487, 493; 688
NW2d 538 (2004), quoting Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410; 355 NW2d
75 (1984).
50
Bischoff v Wayne Co, 320 Mich 376, 386; 31 NW2d 798 (1948) (quotation omitted). See also
Bannan v City of Saginaw, 120 Mich App 307, 326; 328 NW2d 35 (1982), aff’d 420 Mich 376(1984) (same).
51
See Hogg v Four Lakes Ass’n, Inc, 307 Mich App 402, 406; 861 NW2d 341 (2014).
52
Tkachik v Mandeville, 487 Mich 38, 45; 790 NW2d 260 (2010).
53
Id. at 45-46.
54
See Goodfellow v Civil Serv Comm, 312 Mich 226, 232; 20 NW2d 170 (1945) (“We must not
usurp the functions of an administrative body. This the Constitution of the State forbids.”). See
also 1963 Const, art III, § 2 (“No person exercising powers of one branch [of government] shall
exercise powers properly belonging to another branch except as expressly provided in this
constitution.”).
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the Board must be taken by majority vote.55 Thus, the order sought by Marrocco would not only
be unconscionable, but would go against our Legislature’s directives. The form of equitable
relief sought by Marrocco is entirely inappropriate.
Finally, Marrocco argues that summary disposition was inappropriate because discovery
was not complete. He contends that he had requested certain evidence which had not been
provided, and had filed a motion to compel discovery of this information before the motions
were heard. Marrocco never argued that summary disposition was inappropriate on this basis in
the trial court. Quite the contrary, he asserted that summary disposition should be entered in his
favor. “A party may not take a position in the trial court and subsequently seek redress in an
appellate court that is based on a position contrary to that taken in the trial court.”56
And in any case, the argument is without merit. While granting a motion for summary
disposition may be premature if discovery is not complete, it is appropriate “if further discovery
does not stand a reasonable chance of uncovering factual support for the opposing party’s
motion.”57 The information sought by Marrocco stood no fair chance of demonstrating that the
Board was acting in a judicial or quasi-judicial manner when it rejected his motions, and thus,
would not have affected the trial court’s decision with regard to his request for a writ of
superintending control. Similarly, the evidence has no bearing on whether the Board was clearly
bound to approve Marrocco’s motions or on the question of whether these decisions were
discretionary or ministerial. Accordingly, the trial court did not act prematurely by granting
summary disposition in defendants’ favor with respect to Count II of the complaint.
IV. CONCLUSION
In Docket No. 326575, we reverse the trial court’s opinion and order to the extent it
granted summary disposition in Marrocco’s favor with regard to Count I of the complaint and
remand for further proceedings consistent with this opinion. In Docket No. 327614, we affirm
the trial court’s opinion and order to the extent it granted summary disposition in defendants’
favor with respect to Count II of Marrocco’s complaint. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Christopher M. Murray
55
MCL 280.518.
56
Holmes v Holmes, 281 Mich App 575, 587-588; 760 NW2d 300 (2008) (quotation marks and
citation omitted).
57
Oliver v Smith, 269 Mich App 560, 567; 715 NW2d 314 (2006) (quotation omitted).
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