Mark Mills v. County of LapeerMark Mills v. County of Lapeer
Because a jury must hear the evidence on mental competence and claim accrual to decide whether Wilhite missed the statute of limitations by one day, see id. at 599-600, I would reverse the grant of summary judgment in favor of the defendants and remand for trial. Accordingly, I dissent.
OPINION
KAREN NELSON MOORE, Circuit Judge.
This appeal concerns the latest episode in a saga of antagonism between the Mills family and officials of the Lapeer County, Michigan government. This time around, officials of the County Treasurer‘s office evicted Plaintiffs-Appellants Mark and Ellen Mills from their commercial property following a tax foreclosure, and the Millses brought suit for illegal eviction and for violation of the First, Fourth, and Fourteenth Amendments. The district court granted summary judgment in favor of Defendants-Appellees County of Lapeer and Lapeer County Treasurer Dana Miller (collectively, “the County“). Because the Millses were trespassers rather than tenants at the time of the eviction, and thus lacked a protected property interest under state or federal law, we AFFIRM.
I. BACKGROUND
In 2005, Mark and Ellen Mills (collectively, “Mills“) purchased commercial property located on Clifford Road in Silverwood, Michigan on a land contract. Mills stored personal effects on the property, as well as items related to his numerous business ventures, which included selling refreshments at fairs and auctions, building and selling food carts for the same purpose, and building and selling horse carts. Mills soon fell behind on the payments, and neither Mills nor the land-contract vendor paid property taxes. The County instituted tax foreclosure proceedings, which culminated in the issuance of an Order of Foreclosure in February 2009. Prior to issuing the Order, the County held a Show Cause Hearing at which taxpayers facing tax foreclosure could submit a hardship application and receive an extension on delinquent taxes; Mills did not attend the hearing or submit a hardship application. Pursuant to the Order, title passed to the County in fee simple on April 1, 2009, after which Mills had no further right of redemption.
In early May, Ellen Mills contacted Miller and asked when Mills would have to
On June 16, County employees returned to the property and began removing the remaining items. Most of the personal property was taken to a County facility for storage, but some was placed in a dumpster, scattered about the property, or lost. Among the effects that were scattered or destroyed were personal papers and business records. Mills alleges that two County employees took horse carts, as well as pop cans, umbrellas, t-shirts, scaffolding, and a toolbox. One County employee returned to the property on his own time to go dumpster diving and placed the items he found in his personal vehicle. Mills was able to reclaim his personal property that was stored at the County facility; County employees also returned to the property and brought many of the items in the dumpster back into the building. The County subsequently issued a new Notice to Quit and instituted eviction proceedings in Lapeer County district court.1
Mills filed this lawsuit in October 2009. After granting leave for Mills to file an amended complaint, the district court granted partial summary judgment to the County on the illegal-eviction, due-process, and Fourth Amendment claims, holding that Mills was a trespasser at the time of the eviction and thus not entitled to the protections of Michigan‘s Anti-Lockout Statute and without a cognizable property interest under the Due Process Clause. In so holding, the district court rejected the magistrate judge‘s determination that Mills was a tenant at sufferance at the time of the eviction. The district court further held that the seizure of Mills‘s property was reasonable. Alternatively, the court held that Miller was entitled to qualified immunity on the constitutional claims because the right at issue was not clearly established.
The County moved for summary judgment on the remaining claims, including the First Amendment claim.2 Reasoning that none of these claims was viable given the district court‘s previous opinion, the magistrate judge recommended that the motion be dismissed as moot and that the district court enter judgment in favor of the County. In a simultaneously entered opinion and order, the magistrate judge explained why the First Amendment claim failed as a matter of law. Neither party objected, and the district court dismissed all remaining claims and dismissed the action with prejudice. Mills timely appealed. We review de novo the district court‘s grant of summary judgment. Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011).
* The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky, sitting by designation.
A. Illegal Eviction
Mills brings suit for illegal eviction under common law and the Michigan Anti-Lockout Statute.3 The latter provides that:
(1) Any person who is ejected or put out of any lands or tenements in a forcible and unlawful manner, or being out is afterwards held and kept out, by force, if he prevails, is entitled to recover 3 times the amount of his actual damages or $200.00, whichever is greater, in addition to recovering possession.
(2) Any tenant in possession of premises whose possessory interest has been unlawfully interfered with by the owner, lessor, licensor, or their agents shall be entitled to recover the amount of his actual damages or $200.00, whichever is greater, for each occurrence and, where possession has been lost, to recover possession.
The parties’ briefs traverse one hundred and fifty or so years of Michigan property law, debating the meaning of tenancy at sufferance. Mills contends that any lawful occupant who remains on the land after his right to possess it has expired is a tenant at sufferance. The County argues that the landowner must acquiesce in the occupant‘s continued presence in order to create a tenancy by sufferance; because the County unequivocally expressed its intent that Mills vacate the property, the County asserts, Mills therefore never became a tenant at sufferance. The district court adopted the latter view.7
Michigan law is inconsistent. Some cases define a tenant at sufferance as “a tenant who came into possession rightfully, by permission of the owner, and continued to occupy the premises after the expiration of his lease.” Ryal‘s Inc. v. Stavropoulos, 273 Mich. 680, 263 N.W. 770, 770 (1935); see also Pattison v. Dryer, 98 Mich. 564, 57 N.W. 814, 815 (1894) (“The general rule is that when a tenant comes rightfully into possession of land by permission of the owner, and continues to keep the same after the title from which by such possession he had the right to hold the same, he is said to be a tenant at sufferance.“); Felt, 232 N.W. at 180 (same); 2 Cameron, Michigan Real Property Law: Principles and Commentary § 20.6, at 1097 (same); accord Black‘s Law Dictionary (9th ed. 2009) (defining tenant at sufferance as “[a] tenant who has been in lawful possession of property and wrongfully remains as a holdover after the tenant‘s interest has expired“). A tenant at sufferance “holds without right, yet is not a trespasser.” Pattison, 57 N.W. at 815.
Some of these cases suggest that a tenancy at sufferance begins immediately upon the expiration of the tenant‘s right to possess the property. Because the tenant in Auto Parts, Inc. v. Jack Smith Beverages, Inc., 309 Mich. 735, 16 N.W.2d 141, 144-45 (1944), remained on the property after his periodic tenancy ended on June 1 and the owner “did not consent to or acquiesce in such holding over,” for example, the court concluded that “after June 1, ... defendant became a tenant at will or by sufferance.” See also 1 Herbert Thorndike Tiffany, The Law of Real Property and Other Interests in Land § 68, at 246-47 (1920) (“A tenant wrongfully holding over is ... a tenant at sufferance a day after the wrongful holding begins to the same extent as he is a year thereafter.“).
Other Michigan cases suggest that a tenancy at sufferance requires the additional element of the property owner‘s passive acquiescence in the tenant‘s continued presence, which can be demonstrated by a lengthy delay in objecting. See, e.g., Kunzie v. Wixom, 39 Mich. 384, 1878 WL 3468, at *2 (1878) (“[A] tenant at sufferance is
We need not resolve this issue of Michigan law conclusively, however, because the facts of this case show that any tenancy at sufferance that may have existed was terminated prior to the eviction. Under Michigan law, “an estate at will or by sufferance may be terminated by either party by giving 1 month‘s notice to the other party.”
This fact raises another question, however. Although a tenant who holds over upon the termination of other types of tenancies can become a tenant at sufferance, a tenant at sufferance‘s status once the tenancy at sufferance has been terminated is less clear. By continuing to hold over, he may become some sort of second-degree tenant at sufferance. The more logical result is that he becomes a trespasser. See Allen v. Carpenter, 15 Mich. 25, 1866 WL 1396, at *10 (1866) (Campbell, J.) (“[A] tenant at sufferance is not a trespasser, unless he attempts to hold over after the landlord re-enters and terminates that peculiar occupancy.“); 52 C.J.S. Landlord and Tenant § 302 (2012) (“Tenants at sufferance who receive notice to quit the premises and remain in possession after the date stated in the notice ... become trespassers and are not entitled to further notice to quit.“). Because a tenant at sufferance must have originally come into possession lawfully and because his presence was no longer lawful as of the start of the initial tenancy at sufferance, he cannot create a second tenancy at sufferance upon the termination of the first. See 2 Cameron, Michigan Real Property Law § 20.6, at 1098 (“For a tenancy to become a tenancy by sufferance, it must originally have been created by agreement of the parties, not by an act of law.“).
Without ruling on the correctness of the district court‘s reasoning, we therefore reach the same result on different grounds. Because any tenancy at sufferance Mills may have had was terminated, he was a trespasser at the time of the eviction.
2. If Mills Was A Trespasser, Was the Eviction Nevertheless Unlawful?
Mills contends that the result of the tenancy-at-sufferance debate is inconsequential, because tenants at sufferance and trespassers are afforded the same pro-
The Michigan Supreme Court has described the Anti-Lockout Statute as an effort “to reduce the number of violent confrontations occurring as a consequence of landlords entering onto the premises while tenants believed that they were rightfully in possession.” Grant v. Detroit Ass‘n of Women‘s Clubs, 443 Mich. 596, 505 N.W.2d 254, 259 (1993). This goal was not implicated by the County‘s actions: the eviction was not violent and Mills knew that he was not in rightful possession of the property. Even a trespasser could recover damages under the Anti-Lockout Statute if a landowner‘s use of self-help against him devolved into a violent breach of the peace, because “any person” can recover if the self help is “forcible.”
Mills notes that Michigan law allows landowners to invoke summary judicial proceedings to recover possession of property from, inter alia, a person who “comes into possession of premises by trespass without color of title or other possessory interest.”
B. Constitutional Claims
Mills also brings suit under
1. Procedural Due Process
Mills contends that the County violated the Due Process Clause of the Fourteenth Amendment by failing to provide him with a pre-eviction hearing. Mills is correct, of course, that due process generally requires notice and a hearing before the government deprives a citizen of his or her property, including in the context of an eviction. Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). “Property interests are not created by the Constitution,” however, but “‘stem from an independent source such as state law.‘” Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The viability of Mills‘s procedural due-process claim thus largely depends on whether Mills had a property interest under Michigan law. Because Mills was a trespasser at the time of the eviction, he did not.10
The fact that Michigan law provides for summary judicial proceedings to evict trespassers, see
2. Fourth Amendment
Mills contends that the County employees’ warrantless entry onto and removal of personal property from the Clifford Road property constituted an unreasonable seizure in violation of the Fourth Amendment. Property is seized within the meaning of the Fourth Amendment “when there is some meaningful interference with an individual‘s possessory interests in that property.” Soldal v. Cook Cnty., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). We have held that damage to personal property constitutes “meaningful interference” and is thus a seizure. Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994) (internal quotation marks omitted). A seizure of property violates the Fourth Amendment only if it is objectively unreasonable, however. Soldal, 506 U.S. at 71-72.
The County‘s actions constituted a seizure. See Bonds, 20 F.3d at 702. For the reasons discussed in Part II.A, the County had a reasonable belief that the eviction, including the removal of personal property
3. First Amendment
Finally, Mills alleges that the County‘s actions were in retaliation for previous lawsuits that members of the Mills family had brought against the County, as well as for other criticisms that they had leveled at various County officials over the years. Mills waived this claim by failing to object to the magistrate judge‘s report and recommendation to enter judgment on it in favor of the County. See, e.g., Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 458 (6th Cir. 2012). Mills did not respond to the County‘s waiver argument in his reply brief. We will hear objections not raised before the district judge “if exceptional circumstances are present that justify disregarding the rule in the interests of justice.” Id. Such circumstances are not present in this case.
III. CONCLUSION
The viability of Mills‘s state-law illegal-eviction and § 1983 due-process claims depends upon whether Mills was a tenant or a trespasser at the time of the eviction. Because Mills was a trespasser, the County‘s actions did not violate the Michigan Anti-Lockout Statute, which, absent evidence of force, applies only to “tenant[s].” Without a cognizable property interest under Michigan law, Mills has no due-process claim. For similar reasons, the seizure of property in the course of the eviction was reasonable and thus did not violate the Fourth Amendment. Finally, Mills waived his First Amendment claim by failing to object to the magistrate judge‘s report and recommendation. For these reasons, we AFFIRM the judgment of the district court.