Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Long v. Liquor Control Commission

Court of Appeals of Michigan

November 16, 2017

MICHAEL LONG, Plaintiff-Appellant,
v.
LIQUOR CONTROL COMMISSION, Defendant-Appellee.

         Charlevoix Circuit Court LC No. 16-069125-CC

          Before: Hoekstra, P.J., and Stephens and Shapiro, JJ.

          PER CURIAM.

         In this inverse condemnation action, the trial court granted summary disposition under MCR 2.116(C)(8) to defendant the Liquor Control Commission ("the LCC") and denied plaintiff Michael Long's motion to amend his complaint. Plaintiff now appeals as of right. Because plaintiff failed to state a claim for inverse condemnation and amendment of his complaint would be futile, we affirm.

         Plaintiff owns and operates a liquor store, known as "Par-T-Pac, " in Boyne City, Michigan. Since 1990, he has held a specially designated distributor ("SDD") liquor license, which allows him to sell alcohol for off-premises consumption under the Michigan Liquor Control Code of 1998, MCL 436.1101 et seq. See MCL 436.1111(12); MCL 436.1533(4). In August of 2013, the LCC issued an SDD license under the "resort" provision in MCL 436.1531(5) to a Family Fare supermarket in Boyne City. Under the "resort" provision of MCL 436.1531(5), Family Fare was able to obtain its SDD license without abiding by the quota and distance restrictions that would have otherwise applied to a new applicant for an SDD license. See MCL 436.1533(4); Mich. Admin Code R 436.1133 (rescinded 2017).[1] In other words, Family Fare was able to obtain an SDD license even though it is located less than 2, 640 feet from plaintiff's store and even though Boyne City already had its quota of SDD liquor licenses based on the population of Boyne City. See MCL 436.1531(5); MCL 436.1533(4); Mich. Admin Code R 436.1133.

         On August 12, 2016, proceeding in propria persona, plaintiff filed a complaint in circuit court against the LCC. Plaintiff's complaint indicates that, since Family Fare received its SDD license, Par-T-Pac has seen a significant reduction in sales and, as a result, the value of his liquor license has been significantly reduced. Plaintiff alleged that the loss of sales and the reduced value of the liquor license "essentially" amounted to an "unfair taking" of the liquor license and resulted in a "form of Eminent Domain" that "steals all of [plaintiff's] equity and value, and transfers it unfairly to Family Fare."

         In response to plaintiff's complaint, the LCC filed a motion for summary disposition. Pertinent to this appeal, the LCC maintained that plaintiff failed to plead the elements of a de facto taking because there was no allegation that the LCC abused its legitimate powers in affirmative actions directly aimed at plaintiff's property and because the granting of a license to a private corporation to conduct a private business could not be regarded as the taking of private property by the government for public use. Before the trial court decided the LCC's motion for summary disposition, plaintiff obtained an attorney, and his attorney filed a motion for leave to file an amended complaint containing one count of inverse condemnation based on the theory that plaintiff had a property interest in his liquor license and the LCC effectively took this property and transferred it to a private entity, namely Family Fare, for economic development. Following a hearing on the parties' motions, the trial court granted summary disposition to the LCC under MCR 2.116(C)(8) and denied plaintiff's motion to amend his complaint because such amendment would be futile. Plaintiff now appeals as of right.

         On appeal, plaintiff argues that the trial court erred by granting summary disposition and by denying his motion to amend his complaint. Plaintiff contends that he has a property interest in his liquor license and, in particular, a right to the protections afforded by the quota and distance requirements governing SDD licenses, which restricted competition and assured that plaintiff's license had a particular value. According to plaintiff, by exempting Family Fare from these requirements to promote tourism under the "resort" provision of MCL 436.1531(5), the LCC effectively transferred the value of plaintiff's property interests to Family Fare for the benefit of the public. In contrast, the LCC maintains that, while plaintiff may have a property interest in his liquor license, that interest does not provide him with a property right to be free from competition or to enjoy set profits. Additionally, the LCC contends that, to the extent plaintiff has a property interest in his liquor license, his claims fail because any action taken by the LCC in issuing a license to Family Fare was not aimed directly at plaintiff's property.

         As explained below, we agree with the LCC that plaintiff lacked a property right in being free from increased competition and that the LCC's actions in issuing an SDD license to Family Fare were not aimed directly at plaintiff's liquor license. In these circumstances, the trial court did not err by granting summary disposition to the LCC under MCR 2.116(C)(8), and the trial court did not abuse its discretion by denying plaintiff's motion to amend his complaint because any amendment would be futile.

         I. STANDARDS OF REVIEW

         We review de novo a trial court's decision to grant summary disposition. Ligon v Detroit, 276 Mich.App. 120, 124; 739 N.W.2d 900 (2007). Constitutional issues, including claims relating to the taking of private property, are also reviewed de novo. Id. In this case, the trial court specified that it granted summary disposition under MCR 2.116(C)(8). A motion under this subrule "tests the legal sufficiency of the complaint based on the pleadings alone." Gallagher v Persha, 315 Mich.App. 647, 653; 891 N.W.2d 505 (2016). In reviewing a motion under MCR 2.116(C)(8), "[a]ll factual allegations supporting the claim and any reasonable inferences that can be drawn from the facts are accepted as true." Lakin v Rund, 318 Mich.App. 127, 131; 896 N.W.2d 76 (2016). The motion is properly granted "when the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Gallagher, 315 Mich.App. at 653 (citation and quotation marks omitted).

         A trial court's decision on a motion to amend a complaint is reviewed for an abuse of discretion. Trowell v Providence Hosp & Med Ctrs, Inc, 316 Mich.App. 680, 690; 893 N.W.2d 112 (2016). Under MCR 2.116(I)(5), if summary disposition is granted based on MCR 2.116(C)(8), "the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified." "Leave to amend the pleadings should be freely granted to the nonprevailing upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified." Lewandowski v Nuclear Mgt, 272 Mich.App. 120, 126-127; 724 N.W.2d 718 (2006).

         II. ANALYSIS

         "The Fifth Amendment of the United States Constitution and Article 10 of the Michigan Constitution both prohibit the taking of private property for public use without just compensation." Dorman v Twp of Clinton, 269 Mich.App. 638, 645; 714 N.W.2d 350 (2006). "[T]o ensure the protections of this guarantee, the State of Michigan recognizes a cause of action, often referred to as an inverse or reverse condemnation suit, for a de facto taking when the state fails to utilize the appropriate legal mechanisms to condemn property for public use." Peterman v State Dep't of Nat Res, 446 Mich. 177, 187-188; 521 N.W.2d 499 (1994). "A de facto taking can occur without a physical taking of the property; a diminution in the value of the property or a partial destruction can constitute a taking." Cummins v Robinson Twp, 283 Mich.App. 677, 708; 770 N.W.2d 421 (2009) (citation and quotation marks omitted). "[T]he plaintiff must prove that the government's actions were a substantial cause of the decline of the value of the plaintiff's property and must ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.