STATE OF MICHIGAN
COURT OF APPEALS
CITY OF DEARBORN HEIGHTS, UNPUBLISHED
October 20, 2015
Plaintiff-Appellee,
v No. 321729
Wayne Circuit Court
GEDIMINAS GELDYS, a/k/a GEDEMINAS LC No. 13-002788-CE
GELDYS,
Defendant-Appellant.
Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.
PER CURIAM.
Plaintiff, the city of Dearborn Heights (“the city”), brought this action against defendant,
as the owner of a residential structure, to enforce its property maintenance code after defendant
failed to comply with a demolition order regarding the structure. Defendant appeals as of right
the trial court’s final amended default judgment, which awarded the city $22,549, plus statutory
interest, for its actual cost in demolishing the structure and restoring the premises. We affirm.
In May 2012, the city issued an order of demolition after it determined that defendant’s
house was unsafe and unfit for human habitation and constituted a dangerous structure. The
demolition order indicated that the house was old and dilapidated and had “become so out of
repair as to be dangerous, unsafe, [and] unsanitary[,]” making it “unreasonable to repair the
structure.” The demolition order barred entry into the house and required defendant to
“demolish and remove the structure[] and restore the site” in accordance with the dates set forth
in an attached exhibit. The exhibit referred to the specific code violations, identified required
corrections relative to each violation, and set time limits to make the corrections, ranging from 5
to 14 days. Defendant did not comply with the demolition order. The demolition order had
expressly stated that defendant had a right to appeal the order to the city’s demolition board of
appeals within 20 days. Defendant failed to properly appeal the order to the demolition board of
appeals. Defendant then proceeded to file an appeal of the demolition order in the circuit court.
In February 2013, while defendant’s circuit court appeal remained pending, the city filed
the instant action, alleging that defendant had violated its property maintenance code, that the
time-period to make the necessary repairs had elapsed, and that the house constituted a nuisance
subject to abatement. The city sought a declaration that its procedures had satisfied due process
requirements and that the property was a nuisance, violating state law and city codes and
-1-
ordinances. The city also requested various forms of injunctive relief and a monetary judgment.
In April 2013, the city’s lawsuit and defendant’s separate circuit court appeal were consolidated.
In May 2013, defendant’s circuit court appeal was dismissed for failure to conform to the
requirements of MCR 7.104(D), leaving only the city’s action pending. Defendant appealed to
this Court by delayed application for leave, challenging the dismissal of his circuit court appeal,
and this Court eventually denied the application “for lack of merit in the grounds presented.”
Geldys v City of Dearborn Hts, unpublished order of the Court of Appeals, entered December 11,
2014 (Docket No. 322271).
With respect to the city’s lawsuit against defendant, in July 2013, the city filed a request
with the court clerk for entry of a default for defendant’s failure to plead or defend against the
city’s complaint. The record does not reflect that the clerk actually signed or entered the default.
In July 2013, the city filed a motion for summary disposition with respect to its complaint, which
motion was ultimately never adjudicated. In August 2013, the city filed a motion for entry of a
default judgment, given defendant’s failure to answer the city’s complaint or to otherwise
challenge the suit. The city attached certified mail receipts showing that service of the summons
and complaint on defendant had been achieved. In September 2013, the trial court entered a
default judgment against defendant in which the court granted the city the relief sought in its
complaint. The court retained jurisdiction for purposes of enforcement of the default judgment
and to enter an amended default judgment “should the [c]ity be forced to incur the additional
expense in clearing and restoring the property, including the cost of demolishing any and all
structures located on the property, together with any additional administrative fees incurred in
performing this additional work.” In December 2013, the trial court denied defendant’s motion
for reconsideration of the default judgment.
In January 2014, defendant filed a motion to set aside the default judgment, and the city
moved for entry of a final amended default judgment. In February 2014, the trial court denied
defendant’s motion to set aside the default judgment. At the hearing, the trial court concluded
that defendant had been properly served with the city’s summons and complaint and that
defendant did not articulate a meritorious defense. At the same hearing in February 2014, the
trial court indicated that it would enter an amended default judgment once the court obtained
verification regarding costs and fees incurred by the city.
At a hearing on April 11, 2014, the trial court mentioned that it had recently rejected a
proposed amended default judgment submitted by the city because it had not been served under
the seven-day rule, MCR 2.602(B)(3). The trial court directed the city to submit the proposed
amended default judgment under the seven-day rule. The city did so that very day, serving a
notice of presentment and proposed amended default judgment on defendant on April 11, 2014.
On Monday, April 21, more than seven days after defendant had been served with the notice and
proposed judgment, defendant filed an objection to the city’s proposed amended default
judgment. In the objection, defendant did not challenge the “accuracy or completeness of the
judgment,” MCR 2.602(B)(3)(b), but instead raised arguments claiming that the cited code
violations were unfounded, challenging the legal validity of the procedures employed by the city
in ordering demolition, and asserting constitutional and statutory claims. The objection
contained a hand-scribbled notation that the court had been closed on the afternoon of Friday,
April 18, 2014, which was the seventh day following service of the notice and proposed
amended default judgment.
-2-
On April 21, 2014, the same day that defendant had filed his objection, the trial court
entered the final amended default judgment submitted by the city, which contained much of the
same language found in the original default judgment. It now further provided that the city was
awarded “its actual costs incurred in the demolition and restoration of the . . . premises . . . in the
amount of $22,548.64 plus statutory judgment interest incurred in bringing this action to enforce
the code, entered as a personal money judgment against [d]efendant . . . and secured by a lien . . .
against the subject property[.]” On April 28, 2014, the trial court entered an opinion and order
ruling that defendant had failed to timely object to the proposed amended default judgment. The
court thus rejected the objection. Defendant did not move to set aside the final amended default
judgment, nor did he seek reconsideration, and he proceeded to file this appeal.
Defendant first argues that the trial court committed an error of law by failing to accept
his objection to the city’s proposed final amended default judgment. MCR 2.602(B)(3)(a)
provides:
If no written objections are filed within 7 days [after service of notice, see
(B)(3)], the clerk shall submit the judgment or order to the court, and the court
shall then sign it if, in the court's determination, it comports with the court's
decision. If the proposed judgment or order does not comport with the decision,
the court shall direct the clerk to notify the parties to appear before the court on a
specified date for settlement of the matter.
Defendant had been served with the notice of presentment and proposed judgment on
April 11, 2014, and failed to object by April 18, 2014. MCR 1.108 provides in relevant part:
In computing a period of time prescribed or allowed by these rules, by
court order, or by statute, the following rules apply:
(1) The day of the act, event, or default after which the designated period
of time begins to run is not included. The last day of the period is included, unless
it is a Saturday, Sunday, legal holiday, or day on which the court is closed
pursuant to court order; in that event the period runs until the end of the next day
that is not a Saturday, Sunday, legal holiday, or day on which the court is closed
pursuant to court order.
The last day of the seven-day period, Friday, April 18, 2014, was Good Friday, and we
shall take judicial notice of the fact that the Wayne Circuit Court was indeed formally closed by
the court on the afternoon of April 18, 2014. We are uncertain how a half-day closure affects the
computation of time under MCR 1.108 for purposes of calculating the seven-day period under
MCR 2.602(B)(3)(a). We, however, find it unnecessary to address and rule on the correct
interpretation of MCR 1.108 with respect to a half-day closure. Regardless of whether
defendant’s objection was timely, defendant did not argue that the proposed final amended
default judgment did not “comport[] with the court’s decision[,]” MCR 2.602(B)(3)(a), nor did
he challenge the “accuracy or completeness of the judgment[,]” MCR 2.602(B)(3)(b). Instead,
defendant attempted to litigate the substance of the parties’ dispute. Accordingly, defendant’s
objection was meritless. Assuming error by the trial court in finding defendant’s objection
untimely, the error was harmless. MCR 2.613(A).
-3-
Defendant next raises several issues relating to the trial court’s order denying his motion
to set aside the original default judgment. Defendant fails to substantively address many of his
stated issues, or merely requests this Court to review the ruling to determine the basis of any
issues or problems. An appellant may not merely announce a position and leave it to this Court
to discover and rationalize the basis for a claim. Mitcham v Detroit, 355 Mich 182, 203; 94
NW2d 388 (1959); Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) (“It is
axiomatic that where a party fails to brief the merits of an allegation of error, the issue is deemed
abandoned by this Court.”). Therefore, to the extent that defendant raises issues and fails to offer
any argument sufficient to permit meaningful review, he has failed to establish any entitlement to
relief.
To the extent that defendant presents cognizant claims challenging the trial court’s
decision denying his motion to set aside the default judgment under MCR 2.603(D), we review
the trial court’s decision for an abuse of discretion. Lawrence M Clarke, Inc v Richco Constr,
Inc, 489 Mich 265, 272; 803 NW2d 151 (2011); Alken-Ziegler, Inc v Waterbury Headers Corp,
461 Mich 219, 223-224; 600 NW2d 638 (1999). “[A]n abuse of discretion occurs only when the
trial court’s decision is outside the range of reasonable and principled outcomes.” Saffian v
Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
“A motion to set aside a default or a default judgment, except when grounded on lack of
jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of
facts showing a meritorious defense is filed.” MCR 2.603(D)(1); see Barclay v Crown Bldg &
Dev, Inc, 241 Mich App 639, 653; 617 NW2d 373 (2000). A defaulted party may also seek
relief in accordance with MCR 2.612. MCR 2.603(D)(3). In Barclay, 241 Mich App at 653,
this Court addressed the required analysis under MCR 2.603(D)(1):
Michigan law generally disfavors setting aside default judgments that have
been properly entered. In Alken-Ziegler, the Supreme Court explained that the
“good cause” and “meritorious defense” requirements of MCR 2.603(D)(1) are
analytically different concepts and that a party must show both in order to prevail
on a motion to set aside a default judgment. Good cause is established by (1) a
procedural irregularity or defect, or (2) a reasonable excuse for not complying
with the requirements that created the default. Manifest injustice is not a third
form of good cause that excuses a failure to comply with the court rules where
there is a meritorious defense. Rather, it is the result that would occur if a default
were not set aside where a party has satisfied the “good cause” and “meritorious
defense” requirements of the court rule. While a lesser showing of good cause
will suffice where the meritorious defense is strong, good cause must still be
shown in order to prevent a manifest injustice. [Citations omitted.]
Defendant has not established good cause to set aside the default judgment. He has failed
to address, let alone establish, a reasonable excuse for his failure to comply with the requirement
that created the default, namely, his failure to answer the city’s complaint. In addition, the only
potential procedural irregularity or defect suggested by the record is the apparent failure to obtain
entry of the default by the court clerk. Nonetheless, the court clerk’s duty to enter the default is
generally only a ministerial act. Alycekay Co v Hasko Constr Co, Inc, 180 Mich App 502, 506;
448 NW2d 43 (1989). The panel in Alycekay Co stated that the defaulted party “has not shown,
-4-
as it must, that it was prejudiced by th[e] procedural error.” Id. Here, there is no dispute that
defendant had not filed an answer or otherwise defended against the city’s complaint within the
required timeframe when the default request was submitted to the clerk, nor had defendant filed
an answer or defended against the suit by the time the city filed its subsequent motion for entry
of a default judgment. Thus, defendant has not shown any prejudice related to the lack of entry
of a default by the court clerk. Accordingly, defendant did not establish “good cause” for failing
to timely file an answer or otherwise challenge the city’s action. And absent any showing of
good cause, defendant’s reliance on “manifest injustice” as a basis for setting aside the default
judgment fails. Barclay, 241 Mich App at 653.
Although unnecessary to reach the issue, we also hold that the record supports the trial
court’s determination that defendant failed to present an affidavit of facts showing a meritorious
defense to the city’s case.1 Defendant’s “affidavit,” dated January 23, 2014, fails to establish a
meritorious defense. Considering the photographs and reports available to the trial court to
evaluate the conditions of the property at the time the city executed an administrative search
warrant, there is no basis for concluding that defendant could prevail in defending against the
city’s claim that his house constituted a public nuisance subject to abatement. We reject
defendant’s argument that the trial court’s consideration of additional materials filed by the city
in support of its motion for entry of the final amended default judgment, including a neighboring
property owner’s affidavit and a demolition company’s proposal and accompanying letter,
provides any basis for disturbing the trial court’s determination that a meritorious defense was
not established.
Furthermore, there is no merit to defendant’s argument that a challenge to the validity of
the administrative search warrant itself could have provided a meritorious defense on the ground
that it would have led to the exclusion of evidence. First, defendant has not established the
invalidity of the administrative search warrant. Second, defendant fails to support his argument
with citation to relevant authority recognizing the remedy of suppression of the evidence in the
context of alleged deficiencies in an administrative search warrant relative to civil proceedings.
We also reject defendant’s argument that the substantive and procedural protections
provided by the Due Process Clause could have provided a meritorious defense to the city’s case.
There is nothing in the record remotely suggesting that defendant’s procedural and substantive
1
We also note that this Court’s order denying defendant’s delayed application for leave on the
merits relative to defendant’s circuit court appeal of the demolition order makes us question
whether any defenses presented by defendant challenging demolition as to the city’s lawsuit
remain viable under the doctrines of “law of the case” or collateral estoppel. Most of the
defenses to the demolition order cited by defendant in his application for leave are the same
claimed “meritorious” defenses here. We would also note that defendant’s motion to set aside
the default judgment was generally untimely under MCR 2.603(D)(2)(b), which requires the
motion to be filed “within 21 days after the default judgment was entered[,]” except as to
arguments made under MCR 2.612. Defendant filed his motion more than three months after the
original default judgment was entered.
-5-
due process rights were violated. Defendant was afforded notice and an opportunity to be heard
at a meaningful time and in a meaningful manner for purposes of procedural due process, and,
for purposes of substantive due process, the city’s demolition procedures applicable to dangerous
structures advanced a reasonable governmental interest and were not arbitrary or capricious.
Bonner v City of Brighton, 495 Mich 209, 227-228, 235; 848 NW2d 380 (2014).
We next reject defendant’s reliance on MCR 2.612(C)(3) in support of the argument that
his challenge of the administrative search warrant provides a ground for setting aside the default
judgment based on fraud on the court. MCR 2.612(C)(3) pertains, in part, to “an independent
action” seeking to “set aside a judgment for fraud on the court.” There was no such action here.
In any event, fraud on the court occurs where a party conceals some material fact from the court
or makes some material misrepresentation to the court. Matley v Matley (On Remand), 242 Mich
App 100, 101; 617 NW2d 718 (2000). And the record simply does not support any finding of
fraud on the court.
In sum, considering defendant’s failure to establish good cause and a meritorious defense
for setting aside the default judgment, the trial court did not abuse its discretion in denying
defendant’s motion to set aside the default judgment. Contrary to defendant’s argument on
appeal, the trial court was not required to contemplate a less severe sanction. Defendant’s
reliance on principles governing discovery sanctions under MCR 2.313(B)(2)(c) is misplaced
because the trial court did not order a discovery sanction.
Lastly, as defendant concedes, his arguments concerning the disconnection of utilities to
the structure, whether the city should be liable to him for damages, and whether he is entitled to a
jury trial to determine those damages do not directly relate to the default proceedings.2 Because
defendant could not proceed in this action without the default judgment being set aside, MCR
2.603(A)(3), because we are affirming the trial court’s decision refusing to set aside the default
judgment, and because defendant never filed a counterclaim, we need not address these issues.
In sum, we have reviewed all of the arguments posed by defendant in his appellate brief and
conclude that none of them warrant reversal.
Affirmed. Having fully prevailed on appeal, the city is awarded taxable costs pursuant to
MCR 7.219.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ William B. Murphy
2
We note that defendant never properly advanced any argument that he was entitled to a hearing
or trial with respect to the city’s claimed damages or incurred costs. See MCR 2.603(B)(3)(b).
-6-