Dunlap v. City of Southfield, Docket No. 17649

• Decision Date: 23 July 1974
• Docket Number: Docket No. 17649,No. 2,2
• Citation: 54 Mich.App. 398,221 N.W.2d 237
• Parties: Kinloch DUNLAP et al., Plaintiffs-Appellants, v. CITY OF SOUTHFIELD, a municipal corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 237

221 N.W.2d 237

54 Mich.App. 398

Kinloch DUNLAP et al., Plaintiffs-Appellants, v. CITY OF SOUTHFIELD, a municipal corporation, et al Defendants-Appellees.

Docket No. 17649.

Court of Appeals of Michigan, Division No. 2.

July 23, 1974.

Released for Publication Aug. 28, 1974.

Paul J. Lay, Southfield, Carl M. Riseman, Detroit, for plaintiffs-appellants.

Sigmund A. Beras, Southfield, Laurence D. Connor, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, William B. Hartman, Hartman, Beier, Howlett, McConnell & Googasian, Bloomfield Hills, for defendants-appellees.

Before J. H. GILLIS, P.J., and HOLBROOK and DENEWETH,* JJ.

GEORGE R. DENEWETH, Judge.

The plaintiffs are Southfield property owners representing a class of residents living in the area of a condominium development proposed by the defendants Realty Ventures and Rembrandt Enterprises (hereinafter referred to as the developers). Plaintiffs' complaint for an order of superintending control against the City of Southfield consisted of five counts. The defendant developers moved for accelerated and summary judgment. The trial court granted the motion, and the plaintiffs appeal.

The asserted grounds on the combined motion for accelerated and summary judgment were that the issues raised in the complaint were barred by a prior judgment, a proper ground for accelerated judgment; and that the complaint failed to state a claim upon which relief could be granted, or to present a genuine issue of material fact, proper grounds for summary judgment. GCR 1963, 116.1(5); 117.2(1)(3). (The trial court granted the motion for accelerated judgment, specifying in its order that the plaintiffs' claims were barred by a prior judgment of the court in Harvey Smith v. City of Southfield, Oakland County Circuit No. 16937 (1966).

We affirm the decision of the trial court to dismiss the action, but we must broaden the grounds for dismissal. While some of the plaintiffs' claims were barred by the Smith decision, the remaining allegations failed to state a claim upon which relief could be granted. This latter ground was properly pled by the defendant developers, and along with the prior judgment, effectively places the plaintiffs out of court.

The plaintiffs' complaint asked for entry of an order of superintending control and presented five counts which in substance alleged the following:

I. The development of the defendants' property according to their proposed site plan will cause harm to the plaintiffs from traffic congestion, invasion of privacy, and overall detrimental effect; and since the plaintiffs have learned that the City Council will approve the site plan due to threats against council members by the defendant developers, such approval will be arbitrary, capricious, and in abuse of the city's powers.

II. The consent judgment in Smith, supra, which allowed the previous owner of the property now owned by the defendants to build high-rise structures, was void on its face due to lack of jurisdiction over the subject matter and further was a denial of due process.

III. The defendant developers, since they are not qualified to do business in Michigan, are not 'persons' within the meaning of the Southfield Zoning Ordinance, and thus have no standing to develop the project or to file a petition for site plan review.

IV. The proposed site plan contains several violations of the Southfield Zoning Ordinance.

V. The consent judgment in Smith, supra, and its allowance of the previous owner to build high-rise structures, does not enure to the benefit of the defendants because of the laches of the previous owner by failing to seasonably develop the property, because it does not run with the land, and because of a subsequent amendment in the zoning ordinance.

Counts II and V represent a collateral attack on the judgment entered in the Smith decision, Supra. The general rule summarized in 6 Callaghan's Michigan Pleading and Practice (2d ed.), § 42.94, pp. 527, 528, supported with citation to Michigan cases, is controlling of the claims asserted in counts II and V:

'It is a well settled rule that a judgment of a court of competent jurisdiction cannot be 'collaterally' attacked. If the court had jurisdiction both of the subject matter adjudicated and of those against whom the judgment runs, no one can question its force and effect as terminating the particular litigation and doing so, with finality, as therein stated * * *. It is immaterial that the adjudication was unjust, * * * mistaken, or excessive.' (Footnotes omitted.)

This principle applies with as much force to all judgments, irrespective of whether they be consent judgments or those entered after any amount of contentious litigation. Tudryck v. Mutch (Appeal of Smyl), 320 Mich. 99, 30 N.W.2d 518 (1948).

The plaintiffs' further claim that the court had no jurisdiction of the subject matter it purportedly litigated by the prior judgment in Smith is totally without merit. This claim is based upon M.C.L.A. § 125.590; M.S.A. § 5.2940. The cited statutory provision applies only to appeal of a decision of a municipal authority with regard to a nonconforming use. The defendant developers have properly pointed out that this provision had no application in Smith,...