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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 15, 2016

v No. 327377 Wayne Circuit Court 14925 LIVERNOIS, LC No. 07-727338-CF

Defendant,

and

STANLEY WHITE doing business as TROPICAL HUT LOUNGE,

Claimant,

and

INTELLIGENT INVESTMENT GROUP, L.L.C.,

Appellant.

Before: C AVANAGH , P.J., and S AAD and F ORT H OOD , JJ.

P ER C URIAM

. Intelligent Investment Group, L.L.C. (“IIG”) appeals the trial court’s decision to deny its motion to intervene and for relief from an order of abatement. The trial court concluded that IIG’s motion to intervene was untimely because it was filed aft er a final judgment had been issued. The court consequently denied IIG’s motion for relief from the order of abatement because IIG was not a party. IIG a rgues on appeal that the cou rt’s decisions were erroneous. We agree and reverse and remand for proceedings consistent with th is opinion.

I. BACKGROUND FACTS AND PROCEDURAL POSTURE

In October 2007, plaintiff filed a complaint for abatement of nuisance, pursuant to MCL 600.3801 et seq. and MCL 333.7521 et seq. , against defendant real prop erty (“the property”) and other parties, including claimant Stanley White, who owned the liquor license and operated the-2- business, the Tropical Hut Lounge (“Tropical Hut”), on the prop erty. The complaint alleged that Tropical Hut had “a reputation for violence, disorderly persons , underage drinking, and use of controlled substances,” and that it had been cited for serving alcohol to minors on several occasions. In addition, it alleged that between 2006 and 2007, Detroit Police officers responded to two shootings and an armed robbe ry outside of Tropical Hut. Plaintiff asked the court to abate the nuisance by padlocking the property for a period of one yea r pursuant to MCL 600.3801 et
seq. , and/or to enter a permanent in junction against defendants to cease from operating Tropical Hut, and to order that the furnitu re, fixtures, and other conte nts of the building be sold to pay any outstanding taxes, liens, or other outstanding costs against th e property, and that the court order the forfeiture of the property a nd authorize the appointment of a receiver.

Other than White’s answer to the complaint, nothing of substan ce happened in the case until October 2014. At that time, White entered into a consent judgment with plaintiff and stipulated that he was the owner of the property and that no ot her person or entity had a valid legal claim or interest in the property. White agreed to make several changes to the property and his business operations under the terms of the judgment, includ ing installing lighting in the parking lots and alley; installing security cameras; instructin g employees to ensure that customers of Tropical Hut were age 21 or older; and training se curity staff in “de-escalating” situations in which patrons had t o be escorted out of the bar. White also agreed to pay a “redemption fee” of $1,500 to the prosecutor’s office by Octobe r 24, 2014. When White failed to pay the redemption fee, the c ircuit court ordered the proper ty to be padlocked for one year, beginning November 21, 2014, and or dered any occupants of the p roperty to vacate during the padlocking. The court further ordered that the property was no t to be mortgaged, exchanged, or transferred during t he padlocked period.

In January 2015, IIG moved (1) to intervene and (2) for relief from the order of abatement. According to IIG, the Wayne County Treasurer had fo reclosed on the property on April 20, 2011, for the failure to pay property taxes, and in O ctober 2011, IIG purchased the property from the tr easurer. Thus, IIG cla imed that it was the sole owner of the p roperty and that it learned of the order of abatem ent only after it discovered t hat the property had been padlocked. The court denied IIG’s motion to intervene as untimely because a final judgment had already been entered in the case. It also denied IIG’s motion for reli ef from the order of abatement because it was not a real party in interest.

IIG filed with this Court an application for leave to appeal t he trial court’s decision, which we granted. See People v 14925 Livernois , unpublished order of the Court of Appeals, entered July 27, 2015 (Docket No. 327377).

II. MOTION TO INTERVENE

IIG argues that the trial erred when it denied IIG’s motion to intervene. We agree. This Court reviews a trial court’s decision on a motion to intervene for an abuse of discretion. AutoOwners Ins Co v Keizer-Morris, Inc , 284 Mich App 610, 612; 773 NW2d 267 (2009). “An abuse of discretion occurs when the decision results in an outc ome falling outside the principled range of outcomes.” Id. (quotation marks and citation omitted).-3- Pursuant to MCR 2.209(A)(3), a person who submits a timely app lication has a right to intervene

when the applicant claims an inte rest relating to the property or transaction which is the subject of the action and is so situated that the dispos ition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represe nted by existing parties.

The trial court denied IIG’s mo tion to intervene solely becaus e it determined that the motion was untimely, as a final judgment had already been enter ed. The court relied on Dean v Dep’t of Corrections , 208 Mich App 144, 150-151; 527 NW2d 529 (1994), aff’d 453 Mic h 448 (1996), and W A Foote Mem Hosp v Mich Dep’t of Pub Health , 210 Mich App 516, 525; 534 NW2d 206 (1995), for this proposition. We, however, disagree that a final judgm ent acts as a bar in all circumstances and that these cases are controlling.

In Dean , a panel of this Court held tha t the intervening plaintiffs’ p ostjudgment motion to intervene was untimely, and stated that “[t]here should be cons iderable reluctance on the part of the courts to allow intervention after an action has gone to ju dgment and a strong showing must be made by the applicant.” Dean
, 208 Mich App at 150. We further stated:

[The] intervening plaintiffs m ade a less-than-strong showing t hat intervention was appropriate. They merely claimed that their a ction and the main action had a question of law in common and that intervention wo uld not unduly delay or prejudice the adjudicati on of the original parties’ ri ghts. Nowhere in their motion do intervening plaintiffs explain why they failed to move for intervention while the main action was pending. [ Id. at 150-151 (emphasis added).]

We concluded that “[a]llowing intervening plaintiffs to interve ne after a judgment is entered promotes a bad public policy: intervening plaintiffs reap the benefits of a favorable judgment but would not be bound by an adverse judgment.” Id. at 151.

However, Dean is distinguishable from the present case in three primary aspe cts. First, unlike the applicants in Dean , IIG did explain why they moved to intervene when they did. I IG claims it only became aware of any proceedings when it found th e property padlocked pursuant to the trial court’s order of abatement. Nothing in the record gives any indication that IIG could have or should have known about the proceedings earlier.

Second, the Court’s concerns in Dean —that allowing parties to i ntervene after judgment has been entered promotes gamesmanship because a party could wa it to intervene only after a favorable judgment has been entered, and thereby not be bound b y any unfavorable judgment— are not present in the instant case. Here, no such favorable j udgment had been entered from which IIG sought to benefit. Although White was permitted to c ontinue operating the Tropical Hut under the terms of the consent judgment, the judgment was n ot entirely in his favor, as White was required to expend moni es to purchase lights and secu rity cameras, and for additional employee training, in addition to the $1,500 redemption fee. A ssuming that IIG would have-4- been subject to the same terms under the judgment as White, the re is no indication that IIG moved to intervene in order to benefit from a favorable judgmen t. And with respect to the later order for abatement, there is no question that this order was n ot advantageous to IIG. Under this order, the property was to be pa dlocked for a year, thereby pre venting IIG, the clear owner of record, from utilizing th e property in any fashion.

Third, the proposed intervenors in Dean sought permissive intervention through MCR 2.209(B), and here, IIG sought intervention of right through MCR 2.209(A). Under the rules for permissive intervention, “the court shall consider whether the intervention will unduly delay or prejudice the adjudica tion of the rights of the original partie s.” MCR 2.209(B). Notably, under MCR 2.209(A) for intervention of right, there is no correspondi ng consideration. Thus, unlike with intervention of right, when a request for permissive inter vention occurs, a court must evaluate any potential prejudice t o the original parties, which necessarily includes consideration of whether a judgment may have a lready been entered in the acti on.
Similarly, in W A Foote , we concluded that the trial court abused its discretion when it allowed the intervening plaintiff to intervene. W A Foote
, 210 Mich App at 525. The intervening plaintiff argued “th at the parties’ claims arose ou t of the same transactions and occurrences, and that the identical question of law was at issu e in both cases,” which presumably entitled it to permissive intervention. Id. at 522; see MCR 2.209(B)(2). We cited our holding in Dean “that a trial court abuses its discretion in granting a motion to intervene after a judgment favorable to the intervenor has already been entered for the or iginal party to the suit with whom the intervenor is attempting to align.” W A Foote , 210 Mich App at 525. Further, we stated that “[f]ollowing the rationale of Dean , it would be equally unfair to permit [the intervening plainti ff] to intervene in the case when it knew that Foote had just received a favorable ruling from the trial court .” Id. (emphasis added).

Here again, the facts in the instant case are not similar, as IIG did not wait to intervene until after entry of a favorable judgment. Rather, there is no thing in the record to show that it was aware of the litigation at a ny time before its building was padlocked pursuant to the order of abatement, a decision which certa inly was not favorable to IIG.

Therefore, we hold that the trial court erred when it ruled th at IIG’s motion to intervene was untimely based on Dean and W A Foote because our holdings were not that, regardless of the circumstances, a motion to intervene as of right may never be granted after entry of a final judgment. In fact, in other decisions, we have held that entry of a final judgment is not a bar to a motion to intervene. See, e.g., Vestevich v West Bloomfield Twp , 245 Mich App 759, 762-763; 630 NW2d 646 (2001); Mahesh v Mills , 237 Mich App 359, 364-365; 602 NW2d 618 (1999). Additionally, IIG correctly poi nts out that MCR 2.209(A) does n ot contain any express language that an application to intervene must be made prior to entry of a final judgment.

In Vestevich , the plaintiff owned a piece of property zoned as residential, which he sought to develop commercially, and ch allenged the defendant’s enforce ment of a zoning ordinance as unconstitutional. Vestevich , 245 Mich App at 760 -761. The trial court upheld the ordinanc e, and we affirmed. Id. at 761. The plaintiff filed, but did not notice, a motion for reconsideration, and the parties entered into a consent judgment that allowed the pl aintiff to develop the property commercially in exchange for “certain concessions.” Id. However, adjacent and other nearby-5- property owners objected to the p laintiff’s development and fil ed motions to intervene, which were granted by the trial court. Id . We affirmed the decision of the trial court granting permissive intervention under M CR 2.209(B), stating that “the c oncern of inadequate representation of interests need only exist; inadequacy of repr esentation need not be definitely established. Where this concern exists, the rules of intervent ion should be construed liberally in favor of intervention.” Id. at 762-763. Further, we stated that although the consent judg ment included terms that were “obviously intended to address the con cerns of nearby landowners, this does not mean that defendant could not have failed to address a ll concerns of all affected landowners” and the “defendant’s r epresentation of the interven ors’ interests might well have been inadequate”; thus, in tervention was appropriate. Id. at 762-763.

Likewise, in the instant case, neither of the existing parties adequately represented IIG’s interests in the litigation. Wh ite was no longer the owner of the property at the time of the entry of the consent judgment or order of abatement and, thus, was no t similarly situated to IIG and could not have adequately represented its interests in the liti gation. IIG’s ownership interest in the property was not represented by the existing parties pursua nt to MCR 2.209(A)(3). As a result, the trial court erred whe n it denied IIG’s motion to in tervene as of right.

Incidentally, we note that pla intiff did not dispute that IIG was the owner of the property. Instead, plaintiff argued that IIG was nevertheless bound by th e consent judgment because White was “associated” with IIG, and IIG had acted inequitably in ord er to avoid liability under the judgment. However, plaintiff o ffered no evidence to support th ese allegations. Because there was no evidence that IIG had acted in concert with White to avo id the consent judgment, or that IIG was aware of the foreclosure action, we hold that the trial court abused its discretion when it denied IIG’s motion to intervene.

III. MOTION FOR RELIEF FROM JUDGMENT

IIG argues that the trial court improperly denied its motion f or relief from the order of abatement under MCR 2.612(C). We review a court’s decision on a motion for relief from judgment or order for an abuse of discretion. Detroit Free Press v Dep’t of State Police , 233 Mich App 554, 556; 593 NW2d 200 (1999).

MCR 2.612(C)(1) governs how a party may obtain relief from jud gment or order and states as follows:

On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:

(a) Mistake, inadvertence, sur prise, or excusable neglect.

* * *

(c) Fraud (intrinsic or extrin sic), misrepresentation, or other misconduct of an adverse party.

(d) The judgment is void.-6- * * *

(f) Any other reason justifying r elief from the operation of th e judgment.

[Emphasis added.]

Here, the trial court did not analyze the merits of IIG’s clai ms that it was entitled to relief due to mistake under subsection (a ) or any other reason under s ubsection (f). Instead, because the court denied IIG’s request to intervene, it found that IIG’ s motion for relief from judgment was improper because IIG was not “a party or the legal represen tative of a party,” as the court rule requires. But because we have ruled that IIG should have been allowed to intervene, the court necessarily erred when it relied on IIG’s status as a non party. Normally, we would allow the trial court on remand to consider the underlying merits of IIG’s motion first, but the facts as presented are straight-forward and, due to the interests of jus tice, we will address whether IIG was entitled to relief.

When the underlying consent judgm ent and order for abatement w ere entered in October and November 2014, respectively, the trial court was under the impression that White was still the owner of the property, as he had been when the case was ini tiated seven years earlier in October 2007. However, the eviden ce clearly establishes that t his was erroneous, i.e., a “mistake.” IIG provided to the trial court the October 2011 de ed, which established that it had been the owner of the property for the three years preceding th e entry of both the consent judgment between the prosecutor and White and the subsequent or der of abatement. Consequently, the derivative order of abatement was not valid a s to IIG because White was not the property’s owner and did not have authority to enter into t he earlier consent judgment on behalf of IIG or the defendant property. 1

Because we hold that IIG was entitled to intervene as of right and obtain relief from the abatement order, we need not address IIG’s other argument that the consent judgment and order of abatement were void because plaintiff’s interest in the prop erty was extinguished by the judgment of foreclosure. See Ryan v Ryan , 260 Mich App 315, 330; 677 NW2d 899 (2004) (“Generally, this Court need not reach moot issues or declare l egal principles that have no practical effect on the case . . . .”).

1 Additionally, assuming that the facts as presented do not cons titute a “mistake” under subsection (a), White’s representations that he was the owner o f the property at the time of the consent judgment would constitute “fraud” or “misrepresentation ” under subsection (b).-7- Reversed and remanded for proceedings consistent with this opi nion. We do not retain jurisdiction.

/s/ Mark J. Cavanagh /s/ Henry William Saad /s/ Karen M. Fort Hood