SUSAN E DRAKSLER V STERLING HEIGHTS EMP RETIREMENT
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
SUSAN E. DRAKSLER,
UNPUBLISHED
January 24, 1997
Plaintiff-Appellant,
v
No. 180924
LC No. 93-003498
STERLING HEIGHTS EMPLOYEES’
RETIREMENT SYSTEM,
Defendant-Appellee,
and
CITY OF STERLING HEIGHTS,
Intervening Defendant-Appellee.
Before: Smolenski, P.J., and Michael J. Kelly and J.R. Weber,* JJ.
PER CURIAM.
Plaintiff appeals as of right from an order of summary disposition entered pursuant to MCR
2.116 (C)(7) and MCR 2.116(C)(10), in favor of defendant and intervening defendant. On appeal,
plaintiff argues that the trial court erred in granting summary disposition, in granting intervening
defendant’s motion to intervene, and in denying plaintiff’s motion for relief from judgment pursuant to
MCR 2.612(C)(1)(f). We agree that the trial court erred in granting summary disposition pursuant to
MCR 2.116(C)(7) and MCR 2.116(C)(10); however, we disagree with plaintiff’s other allegations of
error. Therefore, we affirm in part, reverse in part and remand.
When a party moves for summary disposition pursuant to MCR 2.116(C)(7), the validity of the
claim is tested by considering any affidavits, pleadings, depositions, admissions and documentary
evidence filed or submitted before the trial court. If there are no facts in dispute, the question whether
the claim is statutorily barred is one of law for the court. Smith v Quality Construction Co, 200 Mich
App 297, 299; 503 NW2d 753 (1993). In reviewing a motion for summary disposition under MCR
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
2.116(C)(7), we must accept as true all of the plaintiff’s well-pleaded allegations and construe them
most favorably to the plaintiff, Mollett v City of Taylor, 197 Mich App 328, 332-333; 494 NW2d
832 (1992),
Where an administrative grievance procedure is provided, exhaustion o that remedy must
f
precede circuit court review of the dispute. However, a plaintiff may seek judicial review of a nonfinal
agency decision when a final decision or order would provide only an inadequate remedy, or if pursuing
the administrative remedy would be an exercise in futility. Michigan Supervisors Union OPEIU Local
512 v Department of Civil Service, 209 Mich App 573, 577; 531 NW2d 790 (1995).
Following the trial court’s first denial of defendant’s motion for summary disposition, plaintiff’s
labor union forwarded correspondence to the parties opining that defendant had incorrectly interpreted
the collective bargaining agreement and that pursuant thereto, the labor union was prepared to process
plaintiff’s grievance up to and including arbitration. Upon its grant of defendant’s motion for
reconsideration and rehearing of its motion for summary disposition, the trial court found that there was
a genuine prospect that plaintiff’s claim would be addressed in an administrative manner and granted
summary disposition to defendant pursuant to MCR 2.116(C)(7).
Plaintiff alleged in her complaint that defendant is a separate and distinct legal entity from the
City of Sterling Heights and that defendant is not a party to any collective bargaining agreement existing
between the Michigan Association of Police and the City of Sterling Heights. In its answer, defendant
admitted not having been a party to any collective bargaining agreement entered into between the City
of Sterling Heights and the Michigan Association of Police. Moreover, defendant failed to present the
trial court with evidence indicating that either plaintiff or defendant was subject to the grievance
procedure mandated by the collective bargaining agreement in disputes related to the denial of pension
benefits.
The trial court was required to accept plaintiff’s allegation that defendant was not a party to the
collective bargaining agreement entered into between the City of Sterling Heights and plaintiff’s labor
union. Mollett, supra at 332-333. Because there was no evidence presented showing that defendant
was obligated to participate in the administrative remedy provided in the collective bargaining
agreement, we conclude that the trial court erred in granting summary disposition for plaintiff’s failure to
exhaust administrative remedies prior to seeking relief in circuit court. MCR 2.116(C)(7).1
We next turn to the trial court’s order of summary disposition pursuant to MCR 2.116(C)(10).
We review a trial court’s order of summary disposition, pursuant to MCR 2.116(C)(10) de novo to
determine, giving the benefit of doubt to the non-moving party, whether the movant was entitled to
summary disposition as a matter of law. Weisman v US Blades, Inc, 217 Mich App 565, 566-567; __
NW2d __ (1996); Lytle v Malady, 209 Mich App 179, 183-184530 NW2d 135 (1995). Summary
disposition pursuant to MCR 2.116(C)(10) may be granted where, except as to the amount of
damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. MCR 2.116(C)(10). In requesting summary disposition of a claim, the movant must
specifically identify those matters which have no disputable issue of fact and then support its position
-2
with documentary evidence. Patterson, supra at 432. The adverse party may not then rest upon mere
allegations or denials of a pleading, but must set forth specific facts showing a genuine issue for trial, by
way of affidavits or other appropriate means. Id. Moreover, pursuant to MCR 2.116(G)(3)(b), a
movant for summary disposition under MCR 2.116(C)(10), must provide the court documentary
evidence in support of the grounds asserted in its motion.
In support of its motion for summary disposition, defendant incorporated by reference the
evidentiary materials attached to its Reply in Opposition to Plaintiff’s Petition for Superintending
Control/Mandamus which included a copy of a legal opinion letter wherein defendant’s counsel opined
that plaintiff was not entitled to any disability pension benefits because she failed to timely make
application.2 However, as evidence in support of its motion for reconsideration, defendant attached a
copy of correspondence wherein plaintiff’s labor union disagreed with defendant’s interpretation of the
collective bargaining agreement. Consequently, we conclude that by virtue of defendant’s pleading
submitted in support of its motions for summary judgment and reconsideration, a conflict existed with
regard to the meaning of the applicable provisions of the collective bargaining agreement, as well as to
whether plaintiff was entitled to disability and pension benefits. Therefore, we find that there existed a
genuine issue of material fact for trial and defendant was not entitled to judgment as a matter of law.
MCR 2.116(C)(10).
Plaintiff next argues that the trial court erred in granting the City of Sterling Heights’ motion for
permissive intervention pursuant to MCR 2.209(B)(2). We disagree.
We review a trial court’s decision to grant a motion to intervene for an abuse of discretion. The
rule authorizing intervention should be liberally construed to allow intervention where the applicant’s
interests may be inadequately represented. Black v Department of Social Services, 212 Mich App
203, 204; 537 NW2d 456 (1995).
A trial court may grant permissive intervention if: (1) application is timely made, (2) the
applicant's claim or defense and the main action have a common question of law or fact, and (3) no
prejudice or delay to the original parties will result. MCR 2.209(B)(2); Dean v. Department of
Corrections, 208 Mich App 144, 150; 527 NW2d 529 (1994). No time limits on the date of
intervention are provided, however, an intervenor must be diligent, and any unreasonable delay
following notice of the action will justify denial of intervention where no satisfactory excuse is shown for
the delay. Prudential Ins Co of America v Oak Park School Dist, 142 Mich App 430, 434; 370
NW2d 20 (1985).
Plaintiff first initiated this litigation on July 21, 1993, and the City of Sterling Heights filed its
motion to intervene on September 10, 1993. Therefore, the application for intervention was timely
made. MCR 2.209(B)(2); Dean, supra at 150. Defendant and the City of Sterling Heights argued that
plaintiff failed to comply with the grievance procedure in the collective bargaining agreement between
the City of Sterling Heights and plaintiff’s labor union. The ultimate resolution of this litigation will
necessitate an interpretation of the provisions of that collective bargaining agreement; therefore, the City
of Sterling Heights’ defense and the main action have a common question of law or fact. MCR
-3
2.209(B)(2); Dean, supra at 150. Finally, defendant’s motion to intervene was filed prior to the
initiation of material discovery or pre-trial motions, and therefore neither plaintiff nor defendant was at
risk of suffering prejudice or delay as a result of intervention. Because MCR 2.009(B)(2) is to be
liberally construed to allow intervention where the applicant’s interests may be inadequately
represented, Black, supra at 204, the trial court did not abuse its discretion in granting the City of
Sterling Heights’ petition.
We do address plaintiff’s argument that, in the event that this Court affirms the trial court’s order
of intervention, the trial court would be similarly obligated to permit intervention by all other labor unions
which are parties to collective bargaining agreements with the City of Sterling Heights. In light of the
fact that this matter was initiated by plaintiff in 1993, subsequent interventions would be untimely and
probably would result in prejudice and delay of the litigation. MCR 2.209(B)(2); Dean, supra, at 150.
Finally plaintiff argues that the trial court erred in denying her motion for relief from judgment
pursuant to MCR 2.612(C)(1)(f). Because we have concluded that the trial court improperly granted
defendant’s motion for summary disposition, it is unnecessary for us to address plaintiff’s argument
regarding the trial court’s failure to grant relief from judgment.
Affirmed in part, reversed in part and remanded.
/s/ Michael J. Smolenski
/s/ Michael J.Kelly
/s/ John R. Weber
1
We note that documentary evidence may exist which impacts on whether plaintiff or defendant was
bound by the collective bargaining agreement between the City of Sterling Heights and MAP. Had such
evidence been provided to the trial court, we could have concluded that the grievance procedure was a
necessary first step to filing a law suit. However, in light of the applicable standard of review, Mollett,
supra, at 332-333, and in the absence of such documentary evidence, we may only conclude that
neither plaintiff nor defendant were bound by the grievance procedure provided in the collective
bargaining agreement in resolving this dispute.
2
At oral argument before the Court of Appeals, defense counsel conceded that plaintiff is vested and is
entitled to pension benefits when she comes of age. He then made the argument that plaintiff could not
apply for a disability retirement benefit unless she was employed or had been employed within two
years of the date of her disability. The lower court did not pass upon the applicability of such limitation
period and we therefore have nothing to review. It is for the lower court to address whether she
qualifies for disability retirement benefits in the first instance.
-4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
