S & S Excavating Co. v. Monroe County

• Decision Date: 07 December 1971
• Docket Number: Docket No. 10427,No. 2,2
• Parties: S & S EXCAVATING COMPANY, Inc., a Michigan corporation, Plaintiff-Appellant, v. COUNTY OF MONROE, Monroe County, Michigan, a public corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 416

194 N.W.2d 416

37 Mich.App. 358

S & S EXCAVATING COMPANY, Inc., a Michigan corporation Plaintiff-Appellant, v. COUNTY OF MONROE, Monroe County, Michigan, a public corporation, et al., Defendants-Appellees.

Docket No. 10427.

Court of Appeals of Michigan, Division No. 2.

Dec. 7, 1971.

Released for Publication Feb. 29, 1972.

Leave to Appeal Denied March 17, 1972.

Allan B. Schmier, Schmier, Schmier & Dakmak, Detroit, for plaintiff-appellant.

Lawrence E. Merman, Monroe, for Monroe County and Burton.

William J. Braunlich, Jr., Monroe, for Marino.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

J. H. GILLIS, Judge.

Plaintiff poses the following two issues, and only these two issues, on appeal before this Court: (1) Are orders entered by a disqualified judge valid and binding upon the parties before the judge to whom the case is reassigned? (2) Was it proper for the trial judge to dismiss with prejudice plaintiff's entire cause of action in this case? The counterstatement of questions as presented by defendant are as follows: (1) Is a ruling or judgment made before judicial disqualification void because signed and entered after disqualification? (2) Did the third amended complaint violate the court order of May 5, 1970, and GCR 1963, 111.1(1)? (3) Did the trial judge abuse his discretion in dismissing all plaintiff's claims for violation of the court order of May 5, 1970, and GCR 1963, 111.1(1)? Plaintiff focuses his appeal upon the entry of an order dismissing his cause of action with prejudice in the trial court below.

This case arose out of an alleged breach of a public sewer contract and warranties of subsoil conditions together with the claimed wrongful termination of a supplemental agreement entered into during the course of construction. After the filing of two amended complaints by the plaintiff due to lack of specificity and nonseparation of the counts against the several defendants, the action proceeded to a jury trial. After eight days of trial it became apparent to the trial judge that a construction of the supplemental agreement would result in a foreclosing of some of plaintiff's causes of action. Accordingly, on May 4, 1970, the court issued a ruling construing said agreement to be a settlement up to its date (May 13, 1968) on all 'Section Two' matters (except for any claim for rock excavation), hence, foreclosing all claims regarding them. However, all claims for anything arising after that date could be shown in addition to breaches of the supplemental agreement which would excuse plaintiff's failure to proceed on 'Section One', making defendant's termination unlawful.

The court, in directing itself to motions made by defendant to dismiss and/or for summary judgment or for a mistrial, on May 5, 1970, issued further rulings denying the motion to dismiss but granting a mistrial in the case. The trial judge then urged both parties to appeal at this time, if they so desired, any of his prior orders making particular reference to the ruling regarding the effect of the supplemental agreement. The court, in reference to the plaintiff's pleadings, then stated:

'I question, however, whether they are sufficiently pleaded so that the parties can fairly be put to trial at this stage * * *.

'If no appeal is taken, then the court hereby directs plaintiff after the appellate period has run to amend the pleadings to be more specific on any claims that they wish to present * * *. I have already ruled, I believe sufficiently, the present pleadings in the light of the ruling on the contract are insufficient to enable any party to prepare accurately for a trial * * *.'

On the same day (May 5, 1970) the trial judge voluntarily disqualified himself from further proceedings in the present cause of action, assigning the case to another circuit judge.

'The court also unavoidably participated in numerous conferences in chambers, some off the record at request of counsel, required to deal with daily changing developments during trial. Thereby the court has been necessarily exposed to many conflicts between respective counsel and the parties litigant. Accordingly it is deemed beneficial to all involved for the court at this time voluntarily to disqualify itself from future proceedings, so that the parties may start afresh before both a new jury and a new judge, all pursuant to the schedules determined in open court.'

Subsequently, on May 19, 1970, the disqualified judge issued written orders granting partial summary judgments in conformity with his earlier opinions of May 4 and May 5, 1970. Prior to said orders, plaintiff objected to the court considering the matter on the ground that the voluntary disqualification deprived the judge of authority to perform any act of judicial discretion except to transfer the case. In addressing itself to the issue, the court stated that the disqualification would have no effect 'if all that the court is asked to do now is a Nunc pro tunc formality, an administrative or ministerial act calling for no new exercise of discretion not already completed on the record--in other words, merely to sign formal orders embodying earlier rulings.' In its opinion on May 19, 1970, the court stressed that its decisions on May 4 and May 5, 1970, were not mere evidentiary questions but rulings of substantive law. The court noted that it had urged immediate appeal of its determinations in the case laying special stress on the importance in future stages of the litigation of the ruling construing the supplemental agreement as a bar to certain claims. It went on to state:

'In the case at bar, the disqualification entered was clearly intended and so worded, to apply to future judicial acts in the case only, and not at all to prevent previously intended legal meaning to be given to judicial acts already finalized.'

In conformity with this latest ruling the trial judge entered partial summary judgment Nunc pro tunc as to all claims (excepting that for rock excavation) of plaintiff prior to the date of the supplemental agreement of May 13, 1968.

Over objections, I.e., that the voluntary disqualification terminated such authority, the judge entered an order on June 30, 1970, directing the plaintiff to file an amended complaint to specifically set forth all claims it may have against any party referring particularly to those subsequent to May 13, 1968. Plaintiff, taking the position that the disqualified judge's rulings and orders had no effect, filed a third amended complaint which did not conform to the prior orders. On motion before the reassigned judge, the defendant moved to dismiss this amended complaint for failure to plead with particularity the claims arising after May 13, 1968, and for violation of the court's order which foreclosed action on all claims (excluding rock excavation) prior to that date. After an exhaustive examination of the complaint, the motion was granted and an order entered dismissing all of the plaintiff's claims with prejudice.

In this appeal, plaintiff again challenges the orders entered by the original trial judge after he had disqualified himself. It contends they are void and thus could not be relied upon by the reassigned judge as a ground for dismissal with prejudice.

It is well recognized in a majority of jurisdictions that the disqualification of a judge does not prevent him from performing ministerial acts not involving judicial discretion. State v. Miranda (1966), 3 Ariz.App. 550, 416 P.2d 444, 448; Koll v. State (1941), 143 Tex.Cr.R. 104, 157 S.W.2d 377; Dotson v. Burchett (1945), 301 Ky. 28, 190 S.W.2d 697, 699. On the other hand, a line of early Michigan cases indicates a contrary result. Horton v. Howard (1890), 79 Mich. 642, 44 N.W. 1112; Bliss v. Caille Brothers Co. (1907), 149 Mich. 601, 113 N.W. 317; Davis Colliery Co. v. Charlevoix Sugar Co. (1908), 155 Mich. 228, 118 N.W. 929; In re Hudson Lumber Co. (194...