Mount Clemens Recreational Bowl, Inc. v. Dir. of the Dep't of Health & Human Servs.

• Decision Date: 17 November 2022
• Docket Number: 358755
• Parties: MOUNT CLEMENS RECREATIONAL BOWL, INC., K.M.I., INC., and MIRAGE CATERING, INC., Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. DIRECTOR OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, CHAIRPERSON OF THE LIQUOR CONTROL COMMISSION, and GOVERNOR, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

MOUNT CLEMENS RECREATIONAL BOWL, INC., K.M.I., INC., and MIRAGE CATERING, INC., Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants,
v.
DIRECTOR OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, CHAIRPERSON OF THE LIQUOR CONTROL COMMISSION, and GOVERNOR, Defendants-Appellees.

No. 358755

Court of Appeals of Michigan

November 17, 2022

Court of Claims LC No. 21-000126-MZ

Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.

PER CURIAM.

Plaintiffs, Mount Clemens Recreational Bowl, Inc., K.M.I., Inc., and Mirage Catering, Inc.,^[1] appeal as of right the Court of Claims order denying plaintiffs' motion to transfer the case to the Macomb Circuit Court and granting summary disposition under MCR 2.116(C)(8) to defendants, the Michigan Governor, the Director of the Department of Health and Human Services (DHHS), and the Chairperson of the Liquor Control Commission. Plaintiffs' lawsuit involved allegations of impacts to their properties and businesses from shutdown and other regulatory orders pertaining to food-service establishments and COVID-19. On appeal, plaintiffs contend (1) that a transfer to the Macomb Circuit Court was appropriate because they had a right to a jury trial in the circuit court, (2) that they pleaded an actionable takings claim under the Michigan Constitution, and (3) that they pleaded actionable tort claims. We affirm.

1

I. DISMISSAL OF MOTION TO TRANSFER

Plaintiffs first contend that the trial court erred by denying their motion to transfer. This issue involves interpretation of the Court of Claims Act, MCL 600.6401 et seq. Doe v Dep't of Transp, 324 Mich.App. 226, 231; 919 N.W.2d 670 (2018). Questions of statutory construction, including of the Court of Claims Act, are reviewed de novo. Id.; Parkwood Ltd Dividend Housing Ass'n v State Housing Dev Auth, 468 Mich. 763, 767; 664 N.W.2d 185 (2003).

MCL 600.6419(1)(a) states that the Court of Claims "has the following power and jurisdiction":

To hear and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers notwithstanding another law that confers jurisdiction of the case in the circuit court

In addition, MCL 600.6419(7) states:

As used in this section, "the state or any of its departments or officers" means this state or any state governing, legislative, or judicial body, department commission, board, institution, arm, or agency of the state, or an officer, employee, or volunteer of this state or any governing, legislative, or judicial body, department, commission, board, institution, arm, or agency of this state, acting, or who reasonably believes that he or she is acting, within the scope of his or her authority while engaged in or discharging a government function in the course of his or her duties.

Because plaintiffs sued the individual defendants in their official capacities, the lawsuit is against the state itself. Mays v Snyder, 323 Mich.App. 1, 88; 916 N.W.2d 227 (2018), aff'd 506 Mich. 157 (2020). And MCL 600.6443 indicates that cases are to be heard in the Court of Claims without a jury.

Regarding a motion to transfer, in Elia Cos, LLC v Univ of Mich. Regents, 335 Mich.App. 439, 457; 966 N.W.2d 755 (2021), lv pending on app Mich.; 967 N.W.2d 237 (2021), the Court stated that "the bare fact that plaintiff filed its complaint in circuit court is irrelevant .... Rather, the dispositive factor is whether plaintiff's . . . claim may actually be maintained in circuit court." (Emphasis added.)^[2]

Plaintiffs, in arguing that their takings claim may be pursued in circuit court, cite MCL 600.6421(1), which states:

2

Nothing in this chapter eliminates or creates any right a party may have to a trial by jury, including any right that existed before November 12, 2013. Nothing in this chapter deprives the circuit, district, or probate court of jurisdiction to hear and determine a claim for which there is a right to a trial by jury as otherwise provided by law, including a claim against an individual employee of this state for which there is a right to a trial by jury as otherwise provided by law. Except as otherwise provided in this section, if a party has the right to a trial by jury and asserts that right as required by law, the claim may be heard and determined by a circuit, district, or probate court in the appropriate venue. [Emphasis added.]

In assessing whether this particular statute applies, "the question is not whether there would ordinarily be a right to a jury trial as between private parties but whether there is a specific right to a jury trial against the state." Elia Cos, 335 Mich.App. at 457. In Elia Cos, id. at 458, the Court concluded that "the Court of Claims has exclusive jurisdiction over plaintiff's breach-of-contract claim seeking money damages" against the state.

The complaint in the present case makes clear that plaintiffs are seeking money damages under Const 1963, art 10, § 2.^[3] In Hill v State, 382 Mich. 398, 400; 170 N.W.2d 18 (1969), the

plaintiffs filed a complaint with the Court of Appeals in which they sought an order to require defendant to show cause why a writ of mandamus should not issue directed to the State Highway Commission and commanding it to institute an action to ascertain and determine the damages to plaintiffs' property as a result of establishment of the right-of-way and construction of the I-94 Expressway.

"[T]he Court of Appeals denied the complaint without prejudice to the right of plaintiffs to file a claim with the Court of Claims," and the Supreme Court granted leave. Id. at 402. The Supreme Court said:

If plaintiffs' claims have merit, they are of such a nature as to establish a constructive rather than an actual taking of plaintiffs' property. This is the crux of the case. Determination of that question (it being the contention of defendant that there has been no taking whatsoever) can come only after a full testimonial hearing. In circumstances such as these, plaintiffs' remedy is by an action in the Court of Claims in order that a determination may be made as to whether a taking has occurred and, if so, plaintiffs' damage from the same. [Id. at 405.]

3

The "plaintiffs concede[d] they ha[d] a remedy in the Court of Claims, [but] they assert[ed] that it [was] not adequate because the amount of damages cannot be determined by a jury in such a proceeding." Id.

The Supreme Court noted that the 1908 Constitution did not mandate, and the 1963 Constitution does not mandate, a jury trial for condemnation proceedings. Id. at 406. It also noted that "some condemnation statutes provide for different modes of assessing damages than by a jury, such as by three commissioners." Id.; see also MCL 213.183. The Court concluded:

Since neither the Constitution of 1908 nor 1963 provides a constitutional right to a jury in a condemnation hearing and since there is statutory authority for non-jury [condemnation] proceedings by the Highway Commission, the plaintiffs' claim of a right to a determination of damages by a jury is without merit. [Hill, 382 Mich. at 406.]

Plaintiffs contend that the present case is not analogous to Hill because, in the present case, there is no "statutory authority for non-jury proceedings" such as was present in that case. Plaintiffs rely heavily on certain provisions of the Uniform Condemnation Procedures Act (UCPA), MCL 213.51 et seq. MCL 213.51(e) states that" '[c]onstructive taking' or 'de facto taking' means conduct, other than regularly established judicial proceedings, sufficient to constitute a taking of property within the meaning of section 2 of article X of the state constitution of 1963." MCL 213.52(2) states:

If property is to be acquired by an agency through the exercise of its power of eminent domain, the agency shall commence a condemnation action for that purpose. An agency shall not intentionally make it necessary for an owner of property to commence an action, including an action for constructive taking or de facto taking, to prove the fact of the taking of the property.

And MCL 213.62(1) states:

A plaintiff or defendant may demand a trial by jury as to the issue of just compensation pursuant to applicable law and court rules. The jury shall consist of 6 qualified electors selected pursuant to chapter 13 of Act No. 236 of the Public Acts of 1961, as amended, being sections 600.1301 to 600.1376 of the Michigan Compiled Laws, and shall be governed by court rules applicable to juries in civil cases in circuit court.

Plaintiffs' attempt to rely on these provisions is unavailing because plaintiffs were not proceeding under the UCPA.^[4] As stated in Miller Bros v Dep't of Natural Resources, 203 Mich.App. 674, 690; 513 N.W.2d 217 (1994):

4

[W]hen the state affects [sic] a taking merely by depriving an owner of all beneficial use of property, the state does not acquire the property "taken." Such a taking may violate the constitution, but it does not violate the UCPA. Consequently, the state cannot be compelled to invoke the UCPA. And if it cannot be forced to proceed under the statute, then the UCPA's provision regarding attorney fees is not applicable.

In other words, the UCPA is not applicable to plaintiffs' claims because it is not in dispute that defendants did not acquire plaintiffs' property. The other statutes relied upon by plaintiffs also speak to the acquisition of property by the state. See MCL 213.1 and MCL 213.23.^[5]

In Lim v Mich. Dep't of Transp, 167 Mich.App. 751, 753; 423 N.W.2d 343 (1988), the defendant relocated the plaintiff's driveway, and the "plaintiff alleged that defendant's actions and omissions resulted in a de facto...