Futernick v. Sumpter Township

• Citation: 207 F.3d 305
• Decision Date: 04 February 2000
• Docket Number: DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,No. 98-2003,98-2003
• Parties: (6th Cir. 2000) SHELDON FUTERNICK,, v. SUMPTER TOWNSHIP; HELEN TEALL, BARBARA DUDEK, ARNESS COX, AND BARNEY BAN, SUMPTER TOWNSHIP TRUSTEES; MARVIN BANOTAI, SUMPTER TOWNSHIP SUPERVISOR; GLENN BOWLES, SUMPTER TOWNSHIP ADMINISTRATOR; JOAN ODDY, SUMPTER TOWNSHIP CLERK; JOHN MORGAN, TOWNSHIP TREASURER, JOINTLY AND SEVERALLY, Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 305

207 F.3d 305 (6th Cir. 2000)

SHELDON FUTERNICK, PLAINTIFF-APPELLANT, v. SUMPTER TOWNSHIP; HELEN TEALL, BARBARA DUDEK, ARNESS COX, AND BARNEY BAN, SUMPTER TOWNSHIP TRUSTEES; MARVIN BANOTAI, SUMPTER TOWNSHIP SUPERVISOR; GLENN BOWLES, SUMPTER TOWNSHIP ADMINISTRATOR; JOAN ODDY, SUMPTER TOWNSHIP CLERK; JOHN MORGAN, TOWNSHIP TREASURER, JOINTLY AND SEVERALLY, DEFENDANTS-APPELLEES.

No. 98-2003

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 4, 2000

Decided and Filed: March 13, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 94-74296--Robert E. DeMascio, District Judge.

Thomas G. Plunkett (argued), Williams, Williams, Ruby & Plunkett, Daniel Noveck (briefed), Noveck & Sklar, Birmingham, Michigan, for Appellant.

Christopher T. Koch (argued and briefed), Abbott, Nicholson, Quilter, Esshaki & Youngblood, Detroit, Michigan, Julie McCann O'Connor (briefed), O'Connor, DeGrazia & Tamm, Bloomfield Hills, Michigan, for Appellees.

Before: Nelson, Moore, and Cole, Circuit Judges.

OPINION

Karen Nelson Moore, Circuit Judge.

This case involves a settlement agreement obligating defendant-appellee Sumpter Township to construct sewer lines to plaintiff-appellant Sheldon Futernick's mobile home park, Holiday Woods. The agreement provided that the lines would be constructed with the proceeds of a bond sale to be scheduled "as quickly as possible." Although the agreement was entered on August 25, 1993, the Township has not yet undertaken a bond sale or begun construction of the sewer lines to Holiday Woods.

Because of this delay, Futernick filed suit in federal district court against the Township and various of its officials, alleging that the Township had breached the settlement agreement and requesting specific performance. After a bench trial, the district court concluded that, although there had been substantial delays, the Township had not breached its obligation under the settlement agreement. Futernick now appeals that decision, as well as the district court's denial of his post-judgment motion to enforce the settlement agreement. Because Futernick's appeal of the district court's judgment that the Township had not breached the settlement agreement is untimely, we DISMISS that portion of his appeal. Concluding that Futernick has presented no reason justifying relief from the district court's judgment, we AFFIRM the district court's denial of post-judgment relief.

I. BACKGROUND

Sheldon Futernick is the owner of Holiday West Mobile Home Park and Holiday Woods Mobile Home Park, which are located in Sumpter Township. In 1993, Futernick sued Sumpter Township and Township officials in federal district court alleging violations of 42 U.S.C. § 1983 and various state laws. Futernick sought an injunction prohibiting the Township from constructing a sewer system that did not include free hook-up status for his mobile home parks.

The parties resolved the suit by way of a settlement agreement, which was never reduced to writing but which was placed on the record on August 25, 1993. The agreement provides:

Number one. The Township shall construct sewer lines to Holiday West and Holiday Woods Mobile Home Parks. The line to Holiday West [(hereinafter referred to as "Phase I")] will be constructed from the proceeds of the initial bond sale of $3.6 million. The line to Holiday Woods [(hereinafter referred to as "Phase II")] will be constructed from the proceeds of the second scheduled bond sale. Sumpter Township shall obtain the second bond sale as quickly as possible.

Number two. Plaintiff shall pay a total of $625,000 toward the construction costs of the sewer lines to Holiday West and Holiday Woods. This payment will be in lieu of any tap fees or connection charges for existing units at either Holiday West or Holiday Woods. Payment of such amount shall be made as follows:

(A) The sum of $225,000 shall be paid within seven days of the date of commencement of flow of sewage from Holiday West into the Sumpter sewer system.

(B) The remaining $400,000 shall be paid within seven days of the date of commencement of flow of sewage from Holiday Woods into the Sumpter sewer system.

Three. The Township agrees that no other mobile home park will receive more favorable fee on a per-site basis with regard to the amount paid for the sewer construction, and/or connection than Plaintiff.

Number Four. The complaint against the Township and its officials will be dismissed with prejudice and without costs or attorneys fees to either party at the time that construction to Holiday Woods is completed. Prosecution of the action will be stayed with the Court's permission pending that event.

Number Five. The foregoing settlement is contingent upon agreement by the Michigan Department of Natural Resources to forego any enforcement action or effort to require compliance with the facility construction requirements of the Holiday Woods permit or the effluent limits set therein, pending construction of the sewer connection to Holiday Woods, and to suspend further proceedings toward a new permit for... Holiday West; pending construction of the sewer connection to Holiday West.

Number Six. Notwithstanding the foregoing paragraphs four and five, Plaintiff agrees to withdraw his claim for injunctive relief with regard to the issuance and delivery of the initial bond issue covering inter alia construction to Holiday West, and a consent order will be presented to the Court for entry accordingly.

Joint Appendix (hereinafter "J.A.") at 82-83 (D. Ct. Op. Denying Mots. for Summ. J. 6/17/97) (ellipsis in original). After entry of the settlement agreement,¹ the district court dismissed the claims against the Township². A clean "non-litigation certificate" was then issued, making possible the closing of the initial bond sale.

Phase I of the Sumpter sewer system providing service to Holiday West was timely constructed with the proceeds of that first bond sale, and Holiday West is not at issue in this case. Phase I of the sewer system involved the installation of a sewer trunk line along Rawsonville Road to Willis Road. The Phase I system, however, does not extend far enough to serve Holiday Woods. Futernick believes that the Township should have extended the Willis Road Phase I sewer to Holiday Woods; the Township chose, however, to construct the Phase II sewer along a different and more complete route that would serve Holiday Woods.

In October of 1994, Futernick filed a diversity action in federal district court naming as defendants Sumpter Township and various Township officials.³ Futernick alleged that Sumpter Township had breached the settlement agreement and asked the court to enforce the terms of the agreement. Both Futernick and the Township filed motions for summary judgment, and on June 17, 1997, the district court, finding that genuine issues of material fact existed, entered an opinion denying both motions. The district court explained that the parties' dispute focused on the first paragraph of the settlement agreement. The court reasoned:

Plaintiff argues that this paragraph creates an absolute obligation on the part of the Township to build a sewer line to Holiday Woods, whereas Defendant argues the second bond sale is a condition precedent that must occur before the sewer line is to be built. The Court concludes that the second bond sale is a condition precedent.

... The parties' settlement agreement provides that "[t]he line to Holiday Woods will be constructed from the proceeds of the second scheduled bond sale." A fair and reasonable interpretation of this language is that the parties' [sic] intended that the sewer line would be constructed after the occurrence of a future event -- the second scheduled bond sale.

J.A. at 88-89 (citation omitted) (D. Ct. Op. Denying Mots. for Summ. J. 6/17/97).

Trial commenced on February 23, 1998, and the district court issued findings of fact and conclusions of law on April 14, 1998. The district court concluded that, although the "Phase II project has been fraught with design delays and financing complications," these delays did not constitute a breach of the Township's obligation to construct Phase II "as quickly as possible." J.A. at 107 (D. Ct. Findings of Fact and Conclusions of Law 4/14/98). The court explained that the Township still had an obligation under the agreement to provide sewer service to Holiday Woods and to have a bond sale, and it indicated that "[t]here is evidence to indicate that the Township does indeed now have sufficient funds for the sale." J.A. at 108-09 (D. Ct. Findings of Fact and Conclusions of Law 4/14/98). The same day, the district court issued a judgment dismissing Futernick's complaint. J.A. at 69 (D. Ct. J. 4/14/98). On May 6, 1998, upon Futernick's motion, the district court amended its judgment "to provide for the court's retention of jurisdiction until completion of the parties' obligations under the settlement agreement." J.A. at 70 (D. Ct. Amended J. 5/6/98). Although Futernick had filed a timely appeal of the district court's April 14 judgment, Futernick voluntarily dismissed the appeal on the belief that the court's retention of jurisdiction rendered the judgment non-final.

After issuance of the amended judgment, Futernick filed several post-judgment motions for enforcement of the settlement agreement; the district court denied these motions on July 15, 1998, August 17, 1998, and September 1, 1998. In its August 17 order denying Futernick's second post-judgment motion, the district court ordered that "no further motions, or any other pleading shall be filed without first seeking leave of the court." J.A. at 74 (D. Ct. Order 8/17/98). Believing this to be the district court's final judgment, Futernick filed a second notice of appeal on September 8, 1998. The September 8 notice of appeal sought to challenge not only the district court's orders denying post-judgment relief, but...