Coeus LLC v. City of Walled Lake ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
COEUS, LLC, UNPUBLISHED
January 20, 2022
Plaintiff/Counterdefendant-Appellant,
v No. 353844
Oakland Circuit Court
CITY OF WALLED LAKE, LINDA S. ACKLEY, LC No. 2018-170030-CZ
L. DENNIS WHITT, CHELSEA PESTA, and
JENNIFER A. STUART,
Defendants-Appellees,
and
JOHN AND JANE DOES 1 THROUGH 20,
FRANK MARRA, and MATTHEW CECCHETTI,
Defendants,
and
CUSTOM BUILT PROPERTIES, LLC, doing
business as GREEN HOUSE OF WALLED LAKE,
and JERRY MILLEN,
Defendants/Counterplaintiffs.
Before: GADOLA, P.J., and MARKEY and MURRAY, JJ.
PER CURIAM.
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Plaintiff, COEUS, LLC, appeals as of right the trial court’s stipulated order of dismissal.1
On appeal, plaintiff challenges the trial court’s earlier opinion and order granting summary
disposition in favor of defendants city of Walled Lake, Mayor Linda S. Ackley, City Manager L.
Dennis Whitt, City Development Manager Chelsea Pesta, and City Clerk Jennifer A. Stuart
(collectively, “the city defendants”). On appeal, plaintiff argues that the city defendants are not
entitled to governmental immunity and that its claims alleging a violation of due process and
promissory estoppel were legally sufficient. We affirm.
This case arises from the city of Walled Lake’s implementation, under the authority of the
Medical Marihuana Facilities Licensing Act (MMFLA), MCL 333.27101 et seq., of its medical
marijuana facilities licensing ordinance and plaintiff’s subsequent application for a license to
operate a provisioning center. The ordinance specifies that there are to be three licenses for
provisioning centers, with two located in the C-2 zoning district and one located in the C-3 zoning
district. Walled Lake Ordinance C-334-17, § 6b, enacting § 21.49(b) of the Zoning Ordinance.
Subsequently, the city passed Resolution 2018-10, which established administrative rules for
processing MMFLA permit applications.
After submitting applications to the city, plaintiff attempted numerous times to obtain
status updates. In response to plaintiff’s repeated phone calls, the city informed plaintiff that no
action had been taken on any of the applications, no permits had been issued, and no meetings had
been held addressing any of the applications. Plaintiff alleged that contrary to the city’s claims
that no MMFLA licenses had been issued, it was evident that the city had issued a license to
defendant Green House of Walled Lake. Ultimately, plaintiff was advised that its request for the
C-3 license was denied.
In its second amended complaint, plaintiff alleged the following counts against the city
defendants: fraudulent misrepresentation (Count II); silent fraud (Count III); negligent
misrepresentation (Count IV); unjust enrichment (against the city of Walled Lake only) (Count
V); breach of an implied contract (Count VI); promissory estoppel (Count VII); violation of due
process and equal protection (Count VIII); civil conspiracy (Count IX); injunctive relief (Count
X); and gross negligence (Count XI).
The city defendants thereafter moved for summary disposition under MCR 2.116(C)(7),
arguing that they were entitled to governmental immunity with respect to the alleged torts, and
under MCR 2.116(C)(8) on plaintiff’s due-process and promissory-estoppel claims. In a thorough
opinion and order, the trial court granted the motion and dismissed all claims against the city
defendants.
I. GOVERNMENTAL IMMUNITY
This Court reviews de novo a trial court’s decision on a motion for summary disposition,
Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008), as well as issues involving
1
That order dismissed with prejudice plaintiff’s claims against defendants Custom Built
Properties, LLC, Jerry Millen, Frank Marra, and Matthew Cecchetti. The order also dismissed the
counterclaims brought by Custom Built and Millen against plaintiff.
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questions of law, such as the construction and interpretation of a city charter or ordinance. Oakland
Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d
751 (1998); Ferguson v City of Lincoln Park, 264 Mich App 93, 95; 694 NW2d 61 (2004).
A party is entitled to summary disposition under MCR 2.116(C)(7) if, among other things,
the plaintiff’s claims are “barred because of immunity granted by law.” When considering a
motion brought under this subrule, the court considers all the affidavits, depositions, admissions,
or other documentary evidence submitted by the parties. MCR 2.116(G)(5). “The contents of the
complaint are accepted as true unless contradicted by the evidence provided.” Odom, 482 Mich
at 466 (quotation marks and citation omitted).
A. CITY OF WALLED LAKE
The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides that “a
governmental agency is immune from tort liability if the governmental agency is engaged in the
exercise or discharge of a governmental function.”2 MCL 691.1407(1); see also Genesee Co Drain
Comm’r v Genesee Co, 309 Mich App 317, 326-327; 869 NW2d 635 (2015). While there are six
statutory exceptions to this broad grant of immunity, plaintiff did not allege that any applied.3
Thus, as the trial court noted, the only question is whether the city was engaged in a governmental
function.
The GTLA defines “governmental function” as “an activity that is expressly or impliedly
mandated or authorized by constitution, statute, local charter or ordinance, or other law.” MCL
691.1401(b). Conversely, when “a governmental agency engages in an activity which is not
expressly or impliedly mandated or authorized by constitution, statute, or other law (i.e., an ultra
vires activity), it is not engaging in the exercise or discharge of a governmental function” and “is
therefore liable for any injuries or damages incurred as a result of its tortious conduct.” Ross v
Consumers Power Co (On Rehearing), 420 Mich 567, 620; 363 NW2d 641 (1984). However,
when determining whether an act is a “governmental function” or merely an ultra vires act, courts
are to “ ‘look to the general activity involved rather than the specific conduct engaged in when the
alleged injury occurred.’ ” Genesee Co Drain Comm’r, 309 Mich App at 327, quoting Ward v
Mich State Univ (On Remand), 287 Mich App 76, 84; 782 NW2d 514 (2010).
Although plaintiff alleges that the city engaged in fraudulent and corrupt acts, its focus is
too narrow. In this instance, the general activity in which the city had been engaged was the
implementation and adoption of its medical marijuana facilities licensing ordinance and the
2
There is no dispute that the city of Walled Lake is a “governmental agency” as defined by the
GTLA. See MCL 691.1401(a), (d), and (e).
3
“The six statutory exceptions are: the highway exception, MCL 619.1402; the motor-vehicle
exception, MCL 691.1405; the public-building exception, MCL 691.1406; the proprietary-
function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and
the sewage-disposal-system-event exception, MCL 691.1417(2) and (3).” Wesche v Mecosta Co
Rd Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008).
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processing of applications for a license. The implementation of the ordinance was expressly
authorized by the MMFLA, and the processing of applications for licenses was authorized by the
city’s ordinance. Therefore, the city was engaged in a governmental function, and accordingly, it
is immune from tort liability. Thus, the trial court did not err by granting summary disposition to
the city on this ground.4
B. CITY DEVELOPMENT MANAGER PESTA AND CITY CLERK STUART
Plaintiff next argues that the trial court erred by granting summary disposition in favor of
City Development Manager Pesta and City Clerk Stuart.
The GTLA also grants immunity to officers and governmental agency employees for
negligent and intentional conduct if other conditions are met.
Regarding negligent torts, MCL 691.1407(2) provides, in pertinent part:
[E]ach officer and employee of a governmental agency, each volunteer acting on
behalf of a governmental agency, and each member of a board, council,
commission, or statutorily created task force of a governmental agency is immune
from tort liability for an injury to a person or damage to property caused by the
officer, employee, or member while in the course of employment or service or
caused by the volunteer while acting on behalf of a governmental agency if all the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or damage.
In response to the city defendants’ motion for summary disposition, plaintiff only contested
the gross-negligence component by stating, “[T]he sole issue before this Court is whether Plaintiff
has properly alleged the elements of gross negligence.” Thus, our review is whether the conduct
of Pesta and Stuart amounts to gross negligence.
4
To the extent that plaintiff argues that the city could be liable under a theory of gross negligence,
the gross-negligence exception to governmental immunity contained in MCL 691.1407(2) only
applies to individuals; it does not apply to the governmental agency itself. Gracey v Wayne Co
Clerk, 213 Mich App 412, 420; 540 NW2d 710 (1995), abrogated on other grounds in American
Transmissions, Inc v Attorney General, 454 Mich 135; 560 NW2d 50 (1997); see also Tarlea v
Crabtree, 263 Mich App 80, 89; 687 NW2d 333 (2004).
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Gross negligence is defined as “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a). The alleged failure of Pesta and
Stuart to follow the procedures in the city’s ordinance and resolution do not amount to gross
negligence. Notably, on appeal and without providing any citations to the lower court record,
plaintiff merely asserts that it had “specifically plead[ed] that the actions of those individuals
[Pesta and Stuart] constituted gross negligence, citing specific examples and drawing upon the
deposition of Pesta.” This type of cursory argument constitutes an abandonment of the issue on
appeal. See Peterson Novelties, Inc v Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). Even
considering the cursory argument, however, it appears that plaintiff is referring to its response to
the city defendants’ motion for summary disposition because it is in that filing that plaintiff cites
and provides the deposition of Pesta. But plaintiff’s allegations are limited to Pesta failing to
advise plaintiff of the results of the preliminary review, which plaintiff asserts was required under
the city’s Resolution 2018-10. Pesta testified that she thought the resolution only required her to
notify applicants if the preliminary review revealed that their application was somehow
incomplete.5 Assuming Pesta had an obligation under the resolution to conduct a preliminary
review and to communicate the results to plaintiff, yet failed to do so because she was mistaken,
such conduct is not “so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” MCL 691.1407(8)(a). At best, such conduct amounts to ordinary negligence.
Therefore, the trial court properly granted summary disposition in favor of Pesta and Stuart on all
of plaintiff’s negligence claims.
While MCL 691.1407(2) governs negligence claims, intentional-tort claims are governed
by MCL 691.1407(3), which simply provides that the law regarding intentional torts is as it existed
5
The pertinent section of Resolution 2018-10 states:
Upon receipt of an Application for site plan and/or operational approval of
a Marijuana Facility and payment of all required fees, the City Clerk shall conduct
a preliminary review of the Application for purposes of determining completeness
and preliminary eligibility of the proposed or existing facility at the proposed or
existing location. The City Clerk shall notify the applicant of the results of the
preliminary review, including deficiencies rendering the application incomplete,
and afford the applicant an opportunity to withdraw the application and receive a
refund of the application fee and consultant review fee if the preliminary review
reveals the proposed facility is not eligible for further review. If an application is
incomplete, the applicant may withdraw the application and receive a refund of
refundable fees, or cure any deficiencies rendering the application incomplete.
Preliminary administrative review fees are non-refundable. Unless the Applicant
withdraws the application, the Clerk shall forward a complete application for an
eligible facility and all supporting materials for final review, recommendation
and/or action by City staff, administration and/or consultants as may be required by
applicable City Code or ordinance. Unless otherwise provided by these rules or
applicable code or ordinances, complete applications for an eligible facility will be
processed in the order received as determined by the date the application is
completed. [Walled Lake Resolution 2018-10, § 4.]
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before July 7, 1986. Odom, 482 Mich at 470-471. Thus, with respect to intentional torts, a
governmental employee is immune from liability if (1) she was acting within the course of her
employment and was acting, or reasonably believed that she was acting, within the scope of her
authority; (2) the acts were not undertaken with malice; and (3) the acts were discretionary, as
opposed to being ministerial. Id. at 480.
It is important to recognize which intentional torts are at issue here. The only intentional
torts alleged against the city defendants (and, hence, Pesta and Stuart) are plaintiff’s claims of
fraudulent representation and silent fraud. We agree with the trial court that plaintiff did not allege
in its second amended complaint any facts that would lead to the conclusion that either Pesta or
Stuart had acted outside the scope of their authority. Indeed, processing permit applications and
communicating with the applicants is within both of their job responsibilities, and given the need
to review applications for completeness and sufficiency, the trial court was correct in concluding
the process was not ministerial in nature.
That leaves open the question whether the trial court erred when it stated that plaintiff did
not plead any facts supporting the conclusion that either Pesta or Stuart acted with malice. A lack
of good faith has been described as “malicious intent, capricious action or corrupt conduct” or
“willful and corrupt misconduct.” Id. at 474 (quotation marks and citations omitted). For the
reasons articulated in section I.B of this opinion, we again conclude that plaintiff has not
adequately presented the argument as to what allegations exist as to Pesta and Stuart on the
existence of malice. We have canvassed both plaintiff’s principal and reply briefs, and have found
no specific citation to the record—or citation to any specific factual allegations—that are meant to
show that either defendant acted with malice. Both briefs do contain assertions that these
defendants “acted fraudulently and corruptly,” and that they (and others) engaged “in corrupt and
illegal practices,” but those were in reference to the argument that they (and the city) were not
engaged in a governmental function, because they were acting ultra vires. But even if those
allegations were directed toward whether there was malice as to these two defendants under Odom,
these allegations are conclusory and come nowhere close to what is required for a properly
developed argument. Hence, we conclude that plaintiff has effectively abandoned the argument
that there are sufficient factual allegations of malice against defendants Pesta and Stuart to
withstand summary disposition. Peterson Novelties, Inc, 259 Mich App at 14.6
C. CITY MANAGER WHITT
6
In fact, there is not a single citation to any paragraphs from the second amended complaint (nor
the original or first amended complaints) in either brief, and the exhibits cited in the briefs that are
written by defendants Petra or Stuart are letters responding on behalf of the city to freedom of
information act requests submitted by plaintiff’s counsel (by defendant Petra) and a letter to the
state licensing agency regarding the status of a certificate of occupancy and pre-approval of a
license for Custom Built Properties (by defendant Stuart). Even if the Petra letters reflect a denial
of information that existed, without more expansive argument, it is difficult to discern how this
reflects malice on the part of Petra. And, confirmation of certain facts to an agency by Stuart could
go towards allegations against the city or other decision-maker, but says nothing about decisions
made by Stuart.
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Plaintiff also argues that the trial court erred by ruling that City Manager Whitt was
absolutely immune from liability. We note that a panel of this Court recently rejected this same
argument as to Whitt in a case involving these same parties. See Jones v Walled Lake, unpublished
opinion per curiam of the Court of Appeals, dated June 17, 2021 (Dkt No. 350997). We agree
with the rationale and conclusions reached in that opinion, but set forth our reasoning for the sake
of completeness and further appellate review.
The GTLA provides certain high-ranking governmental officials with absolute immunity
from tort liability. MCL 691.1407(5) states:
A judge, a legislator, and the elective or highest appointive executive
official of all levels of government are immune from tort liability for injuries to
persons or damages to property if he or she is acting within the scope of his or her
judicial, legislative, or executive authority.
Thus, “[t]o qualify for absolute immunity from tort liability[,] an individual governmental
employee must prove his or her entitlement to immunity by establishing, consistently with the
statute’s plain language, (1) that he or she is a judge, legislator, or the elective or highest appointive
executive official of a level of government and (2) that he or she acted within the scope of his or
her judicial, legislative, or executive authority.” Petipren v Jaskowski, 494 Mich 190, 204; 833
NW2d 247 (2013). Because there is no dispute that Whitt was not a judge or legislator, the first
question that must be answered is whether he was “the elective or highest appointive executive
official” for the city of Walled Lake.
Plaintiff asserts that Whitt is an administrator who lacks any executive function and has no
legal role.7 The duties of the city manager are described by ordinance as follows:
(1) Be responsible to the council for the efficient administration of all
administrative departments of the city government.
(2) See that all laws and ordinances are enforced.
(3) Appoint, with the consent of the council, the heads of the several city
departments whose appointments are not otherwise specified in the city Charter or
ordinance, and to discharge the department heads without the consent of the
council, and to direct and supervise the department heads.
7
Plaintiff raises this argument for the first time on appeal. Plaintiff takes exception to the trial
court noting that plaintiff had not “dispute[d]” that Whitt was the highest appointive executive
official in the city, but this characterization is accurate because plaintiff never provided any
contrary argument in its response to the city defendants’ motion for summary disposition. Plaintiff
mischaracterizes the trial court’s opinion as saying that plaintiff had conceded this point, when the
court merely said that plaintiff did not dispute it.
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(4) Give to the proper department or officials ample notice of the expiration
or termination of any franchises, contracts or agreements.
(5) See that all terms and conditions imposed in favor of the city or its
inhabitants in any public utility franchise, or in any contract, are faithfully kept and
performed.
(6) Recommend an annual budget to the council and to administer the
budget as finally adopted under policies formulated by the council, and to keep the
council fully advised at all times as to the financial condition and needs of the city.
(7) Recommend to the council for adoption such measures as may be
deemed necessary or expedient, and to attend council meetings with the right to
take part in discussions but not to vote.
(8) Exercise and perform all administrative functions of the city that are not
imposed by the city Charter or ordinance upon some other official.
(9) Perform such other duties as may be prescribed by the city Charter or as
may be required by ordinance or by direction of the council. [Walled Lake
Ordinances, § 2-43 (emphasis added).]
The fact that this ordinance omits the use of the term “executive” and uses the term
“administrative” is not dispositive. Indeed, the type of administration Whitt performs clearly is
“executive administration.” See Black’s Law Dictionary (11th ed) (defining “executive
administration” as “[c]ollectively, high public officials who administer chief departments of the
government”). Further, “executive branch” is defined as “[t]he division of government charged
with administering and carrying out the law.” Id. (emphasis added). While Whitt is the chief
administrative officer of the city, his duties also include “[s]ee[ing] that all laws and ordinances
are enforced.” Walled Lake Ordinances, § 2-43(2). Also, “[a]n executive should have broad-
based jurisdiction or extensive authority similar to that of a judge or a legislator.” Chivas v
Koehler, 182 Mich App 467, 471; 453 NW2d 264 (1990). Whitt’s authority as city manager is
very extensive, as evidenced by the lengthy duties delineated in the ordinance. See Walled Lake
Ordinances, § 2-43. Thus, it is evident that Whitt possesses executive authority, as that term is
commonly understood.8 See also Rental Prop Owners Ass’n of Kent Co v City of Grand Rapids,
455 Mich 246, 267; 566 NW2d 514 (1997) (recognizing a city manager as an “executive”).
Plaintiff’s argument that the Mayor Pro-Tem is the highest appointive person in the city
government is not supported by the plain reading of the relevant portions of the city charter, which
provide:
8
The Michigan Supreme Court also has recognized that a city manager is an “executive,” stating,
“Under the city manager form of government, popular among smaller cities, the executive, the city
manager, serves at the will of the legislature, the city commission.” Rental Prop Owners Ass’n of
Kent Co v City of Grand Rapids, 455 Mich 246, 267; 566 NW2d 514 (1997).
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At each municipal election, the new Councilman from among those
incumbents who ran for re-election at the most recent election, who has received
the highest number of votes in that election, and who shall have served a tenure of
two (2) years shall be Mayor Pro-tem, unless such Councilman shall in writing
notify the clerk of their declination to so serve before such appointment becomes
effective, in which event, the Councilman who has received the second highest
number of votes in that election shall become Mayor Pro-tem, provided that person
has served as a Councilman for at least two (2) years. [Walled Lake Charter, § 4.4.]
Although the charter uses the word “appointment” once in describing the position, there is
nothing about the position that is appointive. Who becomes mayor pro-tem is not decided by any
governmental official or body. Instead, the mayor pro-tem is determined by which incumbent
council member received the highest number of votes from the general election. There is nothing
appointive about such a scheme. As such, regardless of how the charter may view this as an
“appointive” position, it is not one as contemplated by the GTLA.
Therefore, as the highest appointive executive official in the city, Whitt is absolutely
immune from tort liability under the GTLA with respect to actions performed “within the scope of
his . . . executive authority,” MCL 691.1407(5), and the trial court did not err by coming to the
same conclusion.
II. FAILURE TO STATE A CAUSE OF ACTION
Plaintiff also argues that the trial court erred by granting summary disposition in favor of
the city defendants on plaintiff’s claims of violation of the constitutional right to due process of
law and on its tort claim of promissory estoppel.
“A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint on the basis of the pleadings alone. The purpose of such a motion is
to determine whether the plaintiff has stated a claim upon which relief can be granted. The motion
should be granted if no factual development could possibly justify recovery.” Beaudrie v
Henderson, 465 Mich 124, 129-130; 631 NW2d 308 (2001).
A. DUE-PROCESS CLAIM
“The United States and Michigan constitutions preclude the government from depriving a
person of life, liberty, or property without due process of law.” Hinky Dinky Supermarket, Inc v
Dep’t of Community Health, 261 Mich App 604, 605-606; 683 NW2d 759 (2004), citing US Const,
Am XIV; Const 1963, art 1, § 17. “ ‘A procedural[9] due process analysis requires a dual inquiry:
9
In its second amended complaint, plaintiff labeled its due-process claim a “substantive” due-
process claim. However, courts are not bound by the labels parties use in their pleadings, Buhalis
v Trinity Continuing Care Servs, 292 Mich App 685, 691-692; 822 NW2d 254 (2012), and the
substance of plaintiff’s count demonstrates that it was making a procedural due-process claim.
Moreover, plaintiff never disputed that it needed to have a property interest for its due-process
claim to be viable.
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(1) whether a liberty or property interest exists which the state has interfered with, and (2) whether
the procedures attendant upon the deprivation were constitutionally sufficient.’ ” Hinky Dinky,
261 Mich App at 606 (citation omitted). Due process is only implicated “if there is a liberty or
property interest at stake.” Galien Twp Sch Dist v Dep’t of Ed (On Remand), 310 Mich App 238,
241; 871 NW2d 382 (2015).
The city defendants argued, and the trial court agreed, that plaintiff’s claim failed for the
simple reason that plaintiff had no viable property interest. On appeal, plaintiff argues that a
license under the MMFLA confers on the recipient a property right. While this principle likely is
applicable to MMFLA licenses, see Bundo v City of Walled Lake, 395 Mich 679, 695; 238 NW2d
154 (1976) (stating that a liquor license holder has a property interest in the license), it is not
dispositive because plaintiff ignores the fact that it never possessed a license. It is well established
that the law treats those who possess a license and are attempting to renew it differently from those
who do not possess a license and are first-time applicants. See Wong v City of Riverview, 126
Mich App 589, 593; 337 NW2d 589 (1983) (“In fact, a first-time applicant is not even entitled to
minimal due process.”); Shamie v City of Pontiac, 620 F2d 118, 120 (CA 6, 1980) (stating that
first-time license applicants do not enjoy procedural due-process rights under Michigan law),
citing Morse v Liquor Control Comm, 319 Mich 52, 66; 29 NW2d 316 (1967), and Bisco’s, Inc v
Liquor Control Comm, 395 Mich 706, 716; 238 NW2d 166 (1976). Therefore, it is clear that
plaintiff did not have a recognized property interest because it never had a license to begin with.
Furthermore, because it was undisputed that the city had more applicants than licenses available,
there necessarily was discretion involved in selecting who would receive the licenses. “A party
cannot possess a property interest in the receipt of a benefit when the state’s decision to award or
withhold the benefit is wholly discretionary.” RSWW, Inc v City of Keego Harbor, 397 F3d 427,
435 (CA 6, 2005) (quotation marks, citation, and brackets omitted).
The trial court properly dismissed plaintiff’s violation of due process of law claim.10
B. PROMISSORY-ESTOPPEL CLAIM
In Novak v Nationwide Mut Ins Co, 235 Mich App 675, 686-687; 599 NW2d 546 (1999),
this Court observed:
The elements of promissory estoppel are (1) a promise, (2) that the promisor
should reasonably have expected to induce action of a definite and substantial
character on part of the promisee, and (3) that in fact produced reliance or
10
Plaintiff also asserts that its due-process claim should have survived summary disposition
because it was seeking injunctive relief. But plaintiff’s Count VIII, alleging a violation of due
process, contains no allegations or requests for injunctive relief. Moreover, even if plaintiff’s
request for injunctive relief survived the city defendants’ motion for summary disposition, count
X ultimately was dismissed via the stipulated order to dismiss. Because plaintiff agreed to dismiss
the “claim” for injunctive relief, it cannot now assert on appeal that the dismissal was erroneous.
See Quality Prod & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 374; 666 NW2d 251
(2003); Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 455 n 1; 733 NW2d 766 (2006).
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forbearance of that nature in circumstances such that the promise must be enforced
if injustice is to be avoided.
In its second amended complaint, plaintiff alleged that the “promise” that forms the basis
for its claim of promissory estoppel is found in the city’s ordinance and administrative rules,
providing that the “orderly, efficient, fair and coordinated” processing of applications would occur.
At the outset, it should be clear that the only city defendant that possibly could be subject to this
claim would be the city of Walled Lake. The alleged promise is contained in enactments of the
city; it is not alleged that any individual city defendant made these promises. Thus, we can affirm
the dismissal of this claim against the other city defendants for this reason alone. See Washburn
v Michailoff, 240 Mich App 669, 678 n 6; 613 NW2d 405 (2000) (stating that this Court can affirm
a trial court’s decision when it reaches the right result albeit for different reasons).
The city defendants argued in the trial court that the promissory-estoppel count should be
dismissed because statutes and ordinances do not create contractual rights. While this is a
recognized principle of law, see Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich
642, 661; 698 NW2d 350 (2005), it is not necessarily controlling because promissory estoppel
does not require contractual rights. Indeed, “promissory estoppel is an exception to general
contract principles in that it permits enforcement of a promise that may have no consideration.”
State Bank of Standish v Curry, 442 Mich 76, 96; 500 NW2d 104 (1993) (RILEY, J., dissenting).
Because of this exception, the promise must be definite and clear. Id., citing McMath v Ford
Motor Co, 77 Mich App 721, 726; 259 NW2d 140 (1977); see also Marrero v McDonnell Douglas
Capital Corp, 200 Mich App 438, 442; 505 NW2d 275 (1993) (“The sine qua non of promissory
estoppel is a promise that is definite and clear.”).
The specific “promise” plaintiff has identified is located in the preamble section of the
city’s Resolution 2018-10, which provides:
WHEREAS, in order to facilitate orderly, efficient, fair and coordinated
processing of the various state and local applications and approvals in a manner
consistent with the requirements of the Act, the Rules and the City’s codes and
ordinances, City Council has determined that it is necessary and expedient to adopt
the following administrative rules concerning processing of City applications for
local approval of Marijuana Facilities. [Walled Lake Resolution 2018-10, p 2.]
The identified “promise” above is not definite and clear. It promises nothing. Instead, this
portion of the preamble merely states that its accompanying rules were enacted to facilitate the
orderly, efficient, fair, and coordinated processing of applications. That is not the same as a
definite and clear promise to actually have orderly, efficient, and fair processes. While those
concepts are part of the aspirational goals of the resolution, it is not a promise. Indeed, the passage
simply refers the reader to the remainder of the resolution to determine what the specific
administrative rules are “concerning [the] processing of City applications for local approval of
Marijuana Facilities.” Moreover, preambles are not authoritative. King v Ford Motor Co, 257
Mich App 303, 311-312; 668 NW2d 357 (2003); see also Yazoo & MVR Co v Thomas, 132 US
174, 188; 10 S Ct 68; 33 L Ed 302 (1889) (stating that a “preamble is no part of the act, and cannot
enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous”);
Nat’l Pride at Work, Inc v Governor, 481 Mich 56, 79 n 20; 748 NW2d 524 (2008).
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Consequently, because the promise on which plaintiff relies for its claim of promissory
estoppel is not clear and definite, the claim fails as a matter of law. We affirm the trial court’s
grant of summary disposition in favor of the city defendants because the trial court reached the
correct result, albeit for different reasons. See Washburn, 240 Mich App at 678 n 6.
Affirmed.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Christopher M. Murray
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