Belle Isle Grill Corp. v. City of Detroit

• Decision Date: 06 May 2003
• Docket Number: Docket No. 231913.
• Citation: 256 Mich. App. 463,666 N.W.2d 271
• Parties: BELLE ISLE GRILL CORPORATION and Wissam Hannawa, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF DETROIT, Defendant-Appellee/Cross-Appellant, and Ernest Burkeen, Jr., Marshall McGee, Dennis Fulton, Img Motor Sports, and ABC Trucking, Defendants.
• Court: Court of Appeal of Michigan — District of US

666 N.W.2d 271

256 Mich. App. 463

BELLE ISLE GRILL CORPORATION and Wissam Hannawa, Plaintiffs-Appellants/Cross-Appellees, v. CITY OF DETROIT, Defendant-Appellee/Cross-Appellant, and Ernest Burkeen, Jr., Marshall McGee, Dennis Fulton, Img Motor Sports, and ABC Trucking, Defendants.

Docket No. 231913.

Court of Appeals of Michigan.

Submitted April 15, 2003, at Lansing.

Decided May 6, 2003, at 9:05 a.m.

Released for Publication July 1, 2003.

Abbott, Nicholson, Quilter, Esshaki & Youngblood, P.C. (by George P. Butler, III), Detroit, for the plaintiff.

City of Detroit Law Department, and Sharon D. Blackmon, Assistant Corporation Counsel, Detroit, for the defendant.

Before WHITBECK, P.J., and FITZGERALD and ZAHRA, JJ.

PER CURIAM.

Plaintiffs, Belle Isle Grill Corporation and Wissam Hannawa¹ (hereinafter collectively referred to as "plaintiff") appeal as of right, and defendant city of Detroit cross-appeals,² the order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(7), (8), and (10) in this case arising from the alleged breach of a lease agreement entered into by defendant and plaintiff in August 1996.

In 1995, defendant solicited bids for the leasing, capital improvement, and operation of concession stands at various recreation areas throughout the city. One of the stands was formerly known as the "Lakeside Refreshment Stand" and was located on the eastern end of Belle Isle on Lakeside Drive. This end of Belle Isle is accessible only by traveling on a street named "The Strand," which runs along the southern shore of Belle Isle.

Wissam Hannawa learned of the potential business opportunity through a friend, former Detroit police officer Keith Chisolm. In 1996, Hannawa and Chisolm visited Belle Isle frequently to determine whether a grill at the stand would be a viable business. Given the large volume of traffic that they witnessed, Hannawa, Chisolm, and Hatem Hannawa³ submitted a business proposal to defendant for the improvement and operation of the Lakeside Refreshment Stand. The business proposal submitted to defendant recognized a potential problem:

Constantly visiting the island during various business hours was a useful tool for increasing our awareness of the potential assets and liabilities. For example, crowds during the morning and afternoon business hours were more calm and mature, while the evening visitors were more active and difficult to control, partly as a result of traffic flow. This type of varying behavior suggested to us that public access during peak hours is a necessity and keeping customers moving is one way to prevent trouble from occurring.⁴

Defendant accepted the plaintiff's bid. "Belle Isle Grill" was incorporated and it entered into a lease agreement with defendant in August 1996 for the operation of the stand. Under the terms of the agreement, rent was set at the greater of $4,800 a year or ten percent of gross revenues less sales tax. The lease agreement provided that defendant agreed to "waive the minimum annual payment or percentage of Gross Revenues during the capital investment period providing that all stipulations have been met and the Lessee presents to the Department documentation of completion and cost."

On February 6, 1997, the Detroit Police Department issued an operations order regarding the E. Jefferson Corridor, Belle Isle, and Chene Park. Among the problems the order sought to remedy was the practice of "cruising" by large numbers of young motorists during warm weather, which practice led to traffic gridlock. The operations order noted that in addition to traffic-flow issues, some of the participants "use this opportunity to disturb the area residents and businesses with loud music, profanity and open drinking of alcohol." The order noted that this conduct "is the basis for numerous complaints among citizens who reside, work or wish to recreate in the immediate area or in downtown Detroit."

The purpose of the operations order was "to improve the ability of citizens to peacefully utilize Chene Park, Belle Isle and the E. Jefferson corridor." One method of implementing this agenda was "[d]ispersing persons, when due to the concentration of traffic or people, conditions inhibit the ability of emergency response to the area." The order also noted that the MacArthur Bridge is the only route of ingress and egress to the island and that "the flow of traffic on this bridge must be kept moving at all times." The order authorized the closing of the island "to prevent or relieve overcrowding," and also authorized the implementation of an island "sweep" to direct all vehicles off the island if conditions so required.

The Belle Isle Grill opened for business in June 1997. Hannawa testified that access to his stand was frequently eliminated because the police department blocked access to that part of the island. Hannawa testified that he believed the rerouting of traffic was done to force his business off the island. He explained that blockages occurred "whenever they [the police] felt like they couldn't control the crowd, so they rerouted everybody the other way." Hannawa admitted that the island became crowded when the weather was good. He also admitted that he observed teenagers stop their vehicles in the middle of the road and drink alcohol, thereby blocking traffic. Hannawa testified that he never discussed with the city or its agents issues regarding access to the island or traffic. He also testified that defendant never made any representations regarding the number of people who would be in the vicinity of the stand. He further testified that he did not keep any documentation regarding the times or dates that access to his stand was allegedly interrupted, nor did he keep any documentation regarding the days that he allegedly had to send employees home early because of the lack of business. The Belle Isle Grill ceased operations on the island shortly after Labor Day in September 1997, and eventually removed all of its personal property and equipment from the premises. Plaintiff filed a twenty-count complaint against the city based on the operations order of the Detroit Police Department, the improvements made on the island to benefit the Detroit Grand Prix, and the use of the Belle Isle Grill parking lot. Hannawa was identified as the Belle Isle Grill Corporation's "principal and a shareholder."

The complaint was removed to the United States District Court, but the state claims against the city and the claim of gross negligence against the individual defendants were remanded to the state court. The individual defendants were dismissed with prejudice following mediation by order of the trial court entered March 28, 2000.

On July 3, 2000, defendant filed a "motion for summary disposition and/or to strike plaintiff's claims." This motion attacked all of plaintiff's remaining claims and urged the court to find that Hannawa, as shareholder of a corporation, lacked standing to pursue any claim. The motion originally set the date for hearing on July 21, 2000, but was re-noticed for July 28, 2000, to allow plaintiff twenty-one days to file a response.

The hearing was held on July 28, 2000. On December 21, 2000, the trial court issued its opinion and order in which it dismissed Hannawa from the lawsuit because of lack of standing, and dismissed all of plaintiff's claims against defendant.

I

Plaintiff first argues that the trial court erred by granting defendant's motion to strike several of the counts and combine other counts on the ground that the counts were redundant. This Court reviews a trial court's decision regarding a motion to strike a pleading pursuant to MCR 2.115 for an abuse of discretion. Jordan v. Jarvis, 200 Mich.App. 445, 452, 505 N.W.2d 279 (1993).

MCR 2.115(B), which governs motions to strike, provides:

On motion by a party or on the court's own initiative, the court may strike from a pleading redundant, immaterial, impertinent, scandalous, or indecent matter, or may strike all or part of a pleading not drawn in conformity with these rules.

Plaintiff's assertion that defendant used the motion to strike to test the legal sufficiency of the pleadings is misplaced. Defendant sought to strike the claims as redundant, and sought summary disposition of the remaining claims.

Plaintiff also contends that the motion to strike was untimely under MCR 2.108(B), which governs the time for filing a motion in response to a pleading. Case law has not addressed this issue; however, the Authors' Commentary regarding Rule 2.108 in 2 Martin, Dean & Webster, Michigan Court Rules Practice, § 2108.2, pp. 199-200, states:

The basic rule is that a party has 21 days after personal service of a summons and complaint in Michigan to answer or take other action permitted by law or the rules, e.g., filing a motion for summary disposition under MCR 2.116.

Subrule (B), although it literally requires that a motion attacking a pleading be served and filed within the time for filing a responsive pleading, should be understood in context. The effect of the rule should not be that a motion will not be permitted after that point, but rather that a motion must be filed within the period for a responsive pleading in order to delay the time for the response itself. Without such an understanding, subrule (B) would be in conflict with MCR 2.116(B)(2), which provides that a motion for summary disposition (which includes a motion on the grounds that the opponent has "failed to state" a claim upon which relief may be granteda clear attack on a pleading) may be made at "any time."

However, if MCR 2.108(B) is limited to the function mentioned above, it fails to provide when motions for a more definite statement or motions to strike, under MCR 2.115, must be made. As to motions for more definite statement, the Court of Appeals has held that they may not be made after the responsive pleading is served and filed, since their purpose is to enable the movant to...