Dubuc v. Green Oak Tp.

Decision Date02 December 2002
Docket NumberNo. 00-2473.,No. 01-2317.,00-2473.,01-2317.
Citation312 F.3d 736
PartiesDennis DUBUC, Plaintiff-Appellant, v. GREEN OAK TOWNSHIP; Green Oak Township Zoning Board of Appeals; Dale Brewer; Raymond Clevenger; Estate of Michael Vallie, in their individual and official capacities, Jointly, and Severally, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Robert D. Horvath (argued and briefed), Troy, MI, for Plaintiff-Appellant.

Gail P. Massad (argued and briefed), Owen J. Cummings, Cummings, McClorey, Davis & Acho, Livonia, MI, Raymond Clevenger, Ann Arbor, MI, for Defendants-Appellees.

Before: MARTIN, Chief Circuit Judge; MOORE, Circuit Judge; WISEMAN, Senior District Judge.*


WISEMAN, Senior District Judge.

This case involves a dispute over land use between landowner Dennis Dubuc ("Appellant") and Green Oak Township (the "Township"), where the land is located. This dispute has taken numerous forms, lasted many years, and involved multiple judicial decisions by various courts. In its present manifestation, the parties opposing Appellant are Green Oak Township, Green Oak Township Zoning Board of Appeals, Dale Brewer, Raymond Clevenger, and Estate of Michael Vallie (collectively, "Appellees"). The first of these two companion cases, No. 00-2473, was filed by Appellant in 1991 and claims that the Township's denial of his application for a lot split was in retaliation for his exercise of his First Amendment rights, in violation of 42 U.S.C. § 1983. Appellant now appeals the judgment of the district court, which: (1) dismissed his complaint as barred by claim preclusion, (2) denied his motion for interim attorney's fees, (3) denied his motion to file a second amended complaint, and (4) denied his motion to reinstate his Equal Protection claim. In the second of the two companion cases, No. 01-2317, Appellant argues that the district court erred in awarding Appellees attorney's fees pursuant to 42 U.S.C. § 1988 as the prevailing party in the § 1983 suit below. For the reasons stated herein, we AFFIRM the district court's decision in the first case but REVERSE the district court's award of attorney's fees to Appellees in the second companion case.


Appellant owns approximately four acres of land, divided into two parcels, in the Township. In October 1985, Appellant began construction on the northern parcel of a second storage building, but the Township subsequently issued a work-stop order and denied a building permit because the structure violated a one hundred foot setback requirement for industrial buildings adjacent to residentially zoned areas. Appellant then instituted an action in Livingston County Circuit Court, No. 85-8102 (hereinafter, "Dubuc I"), seeking a variance from the setback requirement, and that action produced a consent judgment on May 21, 1986. This consent judgment resulted in the issuance of a building permit contingent upon Appellant's compliance with relevant building codes, local zoning ordinances, and a revised site plan.

Appellant completed construction of this second building as well as a third building, and applied for certificates of use and occupancy for both. In February 1987, the Township denied these certificates after inspection and ordered Appellant and his tenants to vacate the third building because it did not comply with fire and safety requirements and was not constructed in conformity with the approved site plan. The Township denied certificates for the second building because it was not constructed in accordance with the consent judgment and violated various building and construction codes. Appellant refused to vacate either building and filed a second suit in Livingston County Circuit Court, No. 88-9402 (hereinafter, "Dubuc II"), alleging violations of 42 U.S.C. § 1983, the Michigan Constitution, and several state common law torts. Defendants in that suit were Green Oak Township, Green Oak Township Board, Ron Niece, and Gordon Appleton. (Jt.App. at 456). As a result of two amendments to the complaint and motions seeking disqualification of the trial judge, there was not a status conference for this lawsuit until December 6, 1991. Appellant and his counsel failed to appear at this status conference. Appellant again failed to appear at a hearing on pending motions on December 18, 1991. As a result, the Dubuc II court sua sponte ordered Appellant's counsel to appear on December 23, 1991, and show cause why the case should not be dismissed and sanctions awarded to the defendants. After arguments from both parties at this show cause hearing, the court ordered Appellant to pay sanctions of $2,000 to the Township and $1,000 to the County and its attorneys within fifteen days or the case would be dismissed with prejudice. Id. at 2254. After Appellant failed to pay the sanctions within this deadline and failed to object to the proposed order drafted by the defendants regarding the sanctions and a dismissal, the court dismissed Dubuc II with prejudice on March 12, 1992.

While Dubuc II was pending, Appellant sought a building permit from the Township to construct a building on the southern parcel of his land, and the Township denied the permit because the approved site plan had expired and the building dimensions and work site did not conform with that site plan. Appellant responded with a mandamus action in Livingston County Circuit Court, No. 89-10022 (hereinafter, "Dubuc III"), challenging the denial. The defendants filed a counterclaim seeking enforcement of the 1986 consent judgment in Dubuc I, a contempt finding against Appellant for failing to bring the two northern buildings up to code, and damages. The trial court denied Appellant's claim and granted summary judgment for the defendants on their counterclaim, concluding that Appellant had no legal right to the issuance of a building permit and the Township had no obligation to issue one. After his motion for reconsideration failed, Appellant appealed and Dubuc III was consolidated with Dubuc II. The court of appeals affirmed both judgments in a per curiam order on June 13, 1995.

Appellant filed another suit, No. 92-012517 (hereinafter, "Dubuc IV"), in Livingston County Circuit Court, arising from work Appellant completed on the roof of the second northern building in 1991. The Township had requested that Appellant seek a building permit and submit engineered drawings for the work in April 1991, but Appellant refused and argued the work was only repair work. In November 1992, Appellant evicted one tenant of the second northern building and attempted to relocate four tenants from another building into that space. The Township refused to issue certificates of occupancy for these tenants, citing Appellant's failure to conform to the city building codes. On December 2, 1992, the Township wrote to Appellant and described what would be required to obtain the certificates. Appellant responded on December 7, 1992, stating that he believed he did not need to follow those procedures, and he filed Dubuc IV on the next day, seeking a writ of mandamus compelling the issuance of certificates of use and occupancy.

In January 1993, the Township moved for and was granted an ex parte temporary restraining order forbidding Appellant or those acting at his direction from doing any construction, alteration, or building work on the second northern building. After several hearings, this temporary restraining order was converted to a preliminary injunction on August 31, 1993. Appellant's motion to disqualify the trial judge was denied and that denial was affirmed on appeal. The Dubuc IV court denied the request for mandamus in November 1995, finding it frivolous, and found Appellant in contempt of the 1986 consent judgment in Dubuc I, the January 1993 temporary restraining order, and the August 1993 preliminary injunction. The court of appeals affirmed. See Dubuc v. Green Oak Township, et al., 1999 WL 33455145, 1999 Mich.App. LEXIS 2105 (Mich.Ct.App. Jan. 5, 1999) (unpublished opinion). The Michigan Supreme Court denied Appellant's motion for leave to appeal and his motion for reconsideration.1 Dubuc v. Green Oak Township, 461 Mich. 916, 609 N.W.2d 829, 829 (2000). Additionally, the Michigan Supreme Court granted the defendant's motion for sanctions and remanded to the trial court for determination of the defendant's actual expenses. Id.


In 1990, Appellant sought approval to split his lot so he could sell it. Appellant filed the first of the two companion suits at bar in May 1991, alleging that the Township's denial of his application for a lot split was a taking without just compensation in violation of the Fifth Amendment. Defendants originally were Green Oak Township, Green Oak Township Zoning Board, the Township's supervisor Dale Brewer, and the Township's attorney Raymond Clevenger. Appellant claimed that the Township had retaliated against him because of his previous state law suits and his complaint to the Michigan Construction Code Commission, which resulted in corrective action taken against the Township and its zoning and building departments. According to Appellant, Appellees' retaliation took the form of consistent denials or delays after he requested variances or permits.

In December 1992, Judge Newblatt granted in part and denied in part Appellees' motion for summary judgment, finding the claim was not ripe for federal adjudication because Appellant had not exhausted all state judicial remedies. See Dubuc v. Green Oak Township, et al., 810 F.Supp. 867, 871 (E.D.Mich.1992). Judge Newblatt also found that Appellant had failed to state a claim for substantive due process violations, dismissing those claims. Id. at 874. Appellant's remaining claims were that the Township and its officials had violated his First Amendment rights an...

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