Shores Home Owners Ass'n v. Wizinsky

• Decision Date: 14 October 2021
• Docket Number: 356761,356520,353321
• Parties: SHORES HOME OWNERS ASSOCIATION and LEELANAU TOWNSHIP, Plaintiffs-Appellees, v. WILLIAM G. WIZINSKY and ANN M. WIZINSKY, Defendants-Appellants. WILLIAM G. WIZINSKY, Appellant, v. LEELANAU COUNTY and CONSTRUCTION CODE COMMISSION, Appellees.
• Court: Court of Appeal of Michigan (US)

SHORES HOME OWNERS ASSOCIATION and LEELANAU TOWNSHIP, Plaintiffs-Appellees, v. WILLIAM G. WIZINSKY and ANN M. WIZINSKY, Defendants-Appellants.

WILLIAM G. WIZINSKY, Appellant, v. LEELANAU COUNTY and CONSTRUCTION CODE COMMISSION, Appellees.

Nos. 353321, 356520, 356761

Court of Appeals of Michigan

October 14, 2021

UNPUBLISHED

Leelanau Circuit Court LC No. 18-010192-CZ

Construction Code Commission LC No. 00-000000-00

Before: Redford, P.J., and K. F. Kelly and Letica, JJ.

Per Curiam.

In Docket No. 353321, defendants William G. Wizinsky (William) and Ann M. Wizinsky (Ann), appearing in propria persona (in pro per), appeal as of right the trial court's decision and order enforcing the settlement agreement and pocket judgment^[1] reached after mediation, and the decision to grant plaintiffs, The Shores Home Owners Association (HOA) and Leelanau Township (the township), costs and attorney fees for having to respond to defendants' frivolous motion for injunctive relief. In Docket No. 356520 defendants appeal as of right the order denying their motion to set aside attorney fees and granting plaintiffs costs and attorney fees for having to respond to the motion. In Docket No. 356761, William appeals as of right the Michigan Construction Code Commission's final decision.^[2] Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises out of construction on defendants' property, Lot 11, in Shores Subdivision in Leelanau County. Specifically, in 1992, a "gazebo" was constructed on defendants' property. Plaintiffs alleged that the constructed gazebo was intended as a temporary structure on the property until a permanent plan for the construction of a residence on the property was completed. However, the temporary structure remained on the property until 2015. In 2015, defendants apparently began to add an addition to the gazebo although defendants asserted that it was necessitated by damage to the structure. Plaintiffs asserted that defendants did not submit or obtain the necessary plans and permits to commence the construction even though William would have known of the requirements as he repeatedly alleged he is an architect and builder. Additionally, it was alleged that defendants were staying at the property for overnight visits although there was no sewer or water system on the property. Consequently, a notice of zoning violation and stop work order was issued for the gazebo. Further, when examining the construction that was occurring at the property, it was learned that the 1992 construction of the gazebo did not comport with the submitted plans. In response to the zoning issues, defendants alleged that there were no complaints about the gazebo for 23 years, and that the recent introduction of the couple's adopted African-American daughter to the community demonstrated that the violations were the result of racism and discrimination. In furtherance of their position that they were discriminated against, defendants contacted newspaper reporters and other media, sent correspondence to government officials, handed out flyers, and tried to arrange a corporate county boycott. Although defendants were the property owners and were Caucasian, defendants nonetheless alleged the discrimination began against them following their daughter's introduction, and the fact that she would inherit the property one day caused the unwarranted backlash against them in the form of zoning violations.

As a result of defendants' actions, HOA filed suit alleging nuisance per se, violation of the restrictive covenants applicable to the subdivision lot owners, recovery of the attorney fees and costs necessitated to obtain enforcement, and libel for the allegations of racism. The township joined the complaint for the claim of nuisance per se arising from the zoning violations. However, the validity of the allegations raised in the complaint were never resolved. Rather, a settlement agreement was reached when the parties, all of whom were represented by counsel, participated in a lengthy mediation conducted by attorney Todd Millar. The trial court closed the case in light of the settlement, and the order provided that the trial court maintained jurisdiction over the matter to enforce the settlement agreement.

However, three months later, plaintiffs filed a motion for entry of order, contending that defendants were in breach of the settlement agreement, and as a result, plaintiffs were entitled to the entry of the pocket judgment. Specifically, plaintiffs submitted that defendants breached the settlement agreement by removing trees without the permission of HOA, by failing to withdraw, dismiss, and continue any further allegations or investigation into discrimination by plaintiffs, by failing to execute the mutual release required by the settlement, and by failing to submit the proper notice of the intent to "dwell" overnight at the property. As a result of these claimed breaches, plaintiffs sought entry of the pocket judgment and recovery of attorney fees incurred to obtain compliance with the settlement agreement.

In September 2019, defendants retained a different attorney, Nicholas Klaus, who filed a limited appearance to investigate and answer plaintiffs' motion for entry of an order. In response to plaintiffs' motion, defendants alleged that they did not violate the settlement agreement's provision that they provide notice of their occupancy of the property. Further, they denied violating any provision by cutting down and removing trees. Rather, it was alleged that defendants' real estate agent requested that dead logs interfering with the easement on the property be removed in order to sell the property in compliance with the settlement agreement. Thus, healthy and living trees were not cut down on the property. Furthermore, defendants claimed that they did not breach the settlement agreement by sending emails in August 2019. The settlement agreement prohibited them from seeking a new investigation. Any emails by defendants did not rise to the level of a "claim" or "investigation," as set forth in the settlement agreement, but merely constituted defendants' expression of their right to free speech. Lastly, defendants claimed that they did not violate the settlement agreement by failing to sign the mutual release because it was never submitted to defendants for signature until it was attached as an exhibit to plaintiffs' motion. In any event, defendants submitted that plaintiffs' proposed mutual release was inappropriate because the release language was unduly broad and was not limited to the parties to the litigation.

In October 2019, the trial court entered its decision and order granting plaintiffs' motion for entry of an order, concluding in relevant part:

As noted above, under ¶9 of the Settlement Agreement, Defendant [sic] is prohibited from filing any new claims or seeking any new investigations pertaining to discrimination. The Plaintiffs have provided documentary evidence that on August 3, 8, 9, 10, 23, 27 and 28, 2019, Defendants emailed multiple individuals and entities claiming that the Plaintiffs have racially discriminated against Defendants' family prior to and beyond March 14, 2019. Furthermore, on August 9, 2019, Defendants sent an email to the Record Eagle referencing a "racist agenda" and asking the newspaper to investigate. This evidence clearly demonstrates that Defendants have breached the terms of the Settlement Agreement, therefore, Plaintiffs are entitled to entry of judgment.

This matter, having come before the Court upon motion and stipulation of the Parties, and the Court having fully reviewed the motion and stipulated facts and agreements and otherwise being fully advised HEREBY ORDERS that the Defendants shall remove the Structure located on the Property, shall remove any and all non-natural objects from the Property, and shall otherwise return the Property to its natural state within 90 days from entry of this Decision and Order. If the Defendants fail to cause the Removal, as defined by the Parties, the Plaintiffs may enter the Property and remove the Structure. Upon doing so, the removing entity will be entitled to put a lien on the Property for the cost of the removal and record the lien with the Leelanau County Register of Deeds. The Court retains jurisdiction to enforce the remaining terms of the Settlement Agreement. [Footnote omitted.]

In November 2019, plaintiffs filed a motion to enforce the settlement agreement by ordering defendants to execute the mutual release. It was alleged that defendants' prior counsel was tasked with and did prepare a mutual release, but defendants did not sign it. After the trial court ruled against defendants and ordered enforcement of the settlement agreement, defendants were ordered to sign a release. Plaintiffs alleged that the mutual release submitted by defendants was inconsistent with the parties' agreement and it added factual allegations. It was claimed that defendants refused to sign the first mutual release because, in late October 2019, William filed a complaint against the county's building official, zoning administrator, and board members in federal court, his second federal case, on the basis of the facts of this case. Plaintiffs alleged that they were entitled to the mutual release agreed to by the parties at the settlement agreement and were further entitled to costs and attorney fees for having to file the motion.

In late November 2019, a hearing was held on plaintiffs' motion to enforce the settlement. Plaintiffs' counsel appeared but defendants did not. Plaintiffs' counsel represented that defendants' counsel, Klaus, did not plan to attend because he was not retained to respond to the mutual release issue. However, Klaus...