PARNELL SEATON V WAYNE COUNTY CLERK
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STATE OF MICHIGAN
COURT OF APPEALS
PARNELL SEATON,
UNPUBLISHED
July 21, 2011
Plaintiff-Appellant,
v
No. 297502
Wayne Circuit Court
LC No. 09-029558-AW
WAYNE COUNTY CLERK,
Defendant-Appellee.
Before: M. J., KELLY, P.J., and O’CONNELL and SERVITTO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order dismissing his complaint for mandamus. We affirm.
Plaintiff sought a writ of mandamus to compel defendant to provide him with copies of
two 1979 court orders related to criminal cases previously pending against plaintiff in Detroit
Recorder’s Court. Mandamus is an extraordinary remedy, and plaintiff bore the burden of
showing that he was entitled to the remedy. Carter v Ann Arbor City Attorney, 271 Mich App
425, 438-439; 722 NW2d 243 (2006). A court may issue a writ of mandamus directing a
defendant to perform a specific function or duty only when: “‘(1) the plaintiff has a clear legal
right to performance of the specific duty sought to be compelled, (2) the defendant has the clear
legal duty to perform such act, and (3) the act is ministerial, involving no exercise of discretion
or judgment.’” Id. at 438, quoting Vorva v Plymouth-Canton Community Sch Dist, 230 Mich
App 651, 655; 584 NW2d 743 (1998). Further, as the trial court noted, a court may not direct a
defendant to perform even an established duty if performance would be impossible. See State Bd
of Ed v Sch Dist of Garden City, 62 Mich App 376, 381; 233 NW2d 547 (1975).
In this case, defendant filed a motion to dismiss plaintiff’s complaint, pursuant to MCR
2.116(C)(8) and (C)(10). The trial court granted the motion. We review de novo the trial court’s
decision. See Brown v Brown, 478 Mich 545, 551; 739 NW2d 313 (2007). A motion under
MCR 2.116(C)(8) “should be granted if the pleadings fail to state a claim as a matter of law, and
no factual development could justify recovery.” Allison v AEW Capital Mgt, LLP, 481 Mich
419, 424; 751 NW2d 8 (2008). A motion under MCR 2.116(C)(10) “tests the factual sufficiency
of the complaint.” St Clair Med, PC v Borgiel, 270 Mich App 260, 263-264; 715 NW2d 914
(2006). The moving party “must specifically identify the issues as to which the moving party
believes there is no genuine issue as to any material fact,” MCR 2.116(G)(4), and “must support
its position with affidavits, depositions, admissions, or other documentary evidence,” St Clair
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Med, 270 Mich App at 264; MCR 2.116(G)(5). Once the moving party has done so, “the burden
shifts to the opposing party to show that a genuine issue of material fact exists” by offering
documentary evidence “set[ting] forth specific facts to show that there is a genuine issue for
trial.” St Clair Med, 270 Mich App at 264.
Here, the trial court properly determined that plaintiff could not support his claim. In his
complaint and letters of request to defendant, plaintiff expressed his presumption that the
Recorder’s Court judge had entered written orders of continuance or adjournment in connection
with two hearings held in September 1979. The only evidence he provided in support of this
presumption was docket journal entries from the underlying criminal cases. The entries
established that a motion hearing was “adjourned at the request of the court” on September 18,
1979, and that a pretrial hearing “was adjourned at the request of the prosecution” on September
24, 1979. But, as was evident by defendant’s responses to plaintiff’s requests for copies of the
orders, plaintiff had already received complete copies of each court file, which did not include
written orders associated with the docket entries.1 Defendant’s agents also informed plaintiff
that they “literally reviewed all three cases that were pending” in 1979 and “could not find a
written documentation requesting an adjournment.” They further explained that written court
orders likely would not have been entered in connection with the two rulings reflected on the
docket journals, stating: “Oftentimes the Court allows parties to orally request adjournments;
therefore, the only documentation of this event would be a docket entry. This practice is
acceptable.” These documents supported defendant’s motion because they were relevant to
prove that no orders existed and, therefore, that defendant was incapable of providing copies of
the orders. The trial court relied on these documents when it granted the motion; contrary to
plaintiff’s argument on appeal, the trial court did not engage in improper fact-finding—or supply
its own factual basis—when it ruled in favor of defendant.
Most significantly, plaintiff was unable to present any evidence to refute these
documents, and he therefore failed to show there was a genuine issue of material fact for trial.
His arguments were based on his unsupported assumption that the journal entries indicated the
existence of written orders and on authority generally directing courts to reduce their orders and
judgments to written form. See, e.g., People v Harrison, 386 Mich 269, 272; 191 NW2d 371
(1971); Hartman v Roberts-Walby Enterprises, Inc, 380 Mich 105, 112; 155 NW2d 842 (1968).
However, nothing in the docket entries at issue refers to written orders. Second, plaintiff does
1
The Court Reporting Services Supervisor also informed plaintiff that “the court reporter of
record has indicated that no verbatim record was made for the two hearings dates September 18
and 24, 1979. As a result, a transcript can’t be produced.” This statement was confirmed in a
letter written by plaintiff acknowledging that the court reporter listed on the docket journal
previously told plaintiff that “there were no proceedings recorded stenographically by him” on
either date in connection with plaintiff’s cases.
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not explain how this general authority supports his claim that orders were in fact entered in this
case in connection with the two hearings.2
Finally, plaintiff incorrectly argues on appeal that defendant’s claim that the orders did
not exist was an affirmative defense for which defendant bore the burden of production and
persuasion. See Detroit News, Inc v City of Detroit, 185 Mich App 296, 300; 460 NW2d 312
(1990) (“An affirmative defense cannot succeed unless the matters upon which it rests are
proved. The burden of producing evidence and establishing these facts rests upon the
defendant.”). That is, plaintiff argues that defendant bore the burden to produce affirmative
evidence that the orders did not exist, but the trial court, instead, wrongly required plaintiff to
produce affirmative evidence that the orders did exist. Plaintiff did not raise this argument in the
trial court. Accordingly, it is unpreserved and we review it for plain error. Duray Dev, LLC v
Perrin, 288 Mich App 143, 149-150; 792 NW2d 749 (2010). “Plain error occurs at the trial
court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party,
meaning it affected the outcome of the lower court proceedings.” Id. at 150.
Plaintiff wrongly characterizes defendant’s argument in support of dismissal as an
affirmative defense. “An affirmative defense does not deny the allegations of the plaintiff's
complaint; rather it claims—‘on some ground not disclosed in the plaintiff's pleadings’—that the
plaintiff is not entitled to recovery.” Prentis Family Foundation v Barbara Ann Karmanos
Cancer Institute, 266 Mich App 39, 46; 698 NW2d 900 (2005), quoting Stanke v State Farm Mut
Auto Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). In contrast, defendant’s argument
here—that the documents did not exist and, therefore, defendant did not have a duty to produce
them—directly negates the factual allegations underlying the central claim of plaintiff’s
complaint: that defendant did have such a duty because the documents, in fact, existed.
Plaintiff unsuccessfully relies on Brown v Beckwith Evans Co, 192 Mich App 158; 480
NW2d 311 (1991), to support his argument that “[t]he ‘non-existence’ of judicial records fit
within the illustrative and definitional description of an affirmative defense.” Brown did not
address the nonexistence of judicial (or other) records. Rather, it addressed the burden of proof
for a statutory exception to normal worker’s disability standards for certain retirees. Id. at 165166. The Brown decision has no bearing on plaintiff’s argument here. For these reasons, the
trial court’s failure to treat defendant’s argument as an affirmative defense was not erroneous and
did not constitute plain error.
2
Plaintiff also cites “RC Form #3; Motion And Order For Continuance; C of D-552-RE (9-73),”
but does not explain the citation. We assume he refers to a former Recorder’s Court form. The
putative existence of a form did not create an issue of fact regarding whether written orders were
entered.
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Affirmed.
/s/ Michael J. Kelly
/s/ Peter D. O’Connell
/s/ Deborah A. Servitto
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