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### STATE OF MICHIGAN

COURT OF APPEALS

In re FEDERAL NATIONAL MORTGAGE
ASSOCIATION.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, also know n as FANNIE MAE,

Plaintiff/Counter-DefendantAppellee, UNPUBLISHED June 16, 2015

v No. 320549 Wayne Circuit Court ROBERT JEROME WILKES, LC No. 13-013367-AS

Defendant/Counter-PlaintiffAppellant,

and

GWENDOLYN WILKES,

Defendant.

Before: M ETER , P.J., and C AVANAGH and W ILDER , JJ.

P ER C URIAM

.
Defendant/Counter-Plaintiff Robert Jerome Wilkes (Wilkes) 1 appeals as of right an order denying his motion for a stay and granting summary disposition to Plaintiff/Counter-Defendant, Federal National Mortgage Associ ation, also known as Fannie Mae (Fannie Mae), in this superintending control action involving a foreclosure on a home mortgage. We affirm.

Wilkes raises three issues on ap peal, all of which regard the Wayne Circuit Court’s exercise of superintending control over the 36 th District Court. Preliminarily, we note that Wilkes waived appellate review of the issues he now presents by failing to properly or timely

1 Because Gwendolyn Wilkes is not a party to this appeal, we ref er to Robert as “Wilkes.”-2- respond to Fannie Mae’s complaint for superintending control. That is, instead of filing an answer to the complaint by November 12, 2013, as required under MCR 3.302(E)(2), Wilkes only filed objections to the cour t’s exercise of superintending control on November 13, 2013. The circuit court considered the objections and ultimately over ruled them, holding that they were untimely. On appeal, Wilkes offers no argument that the trial court erred in ruling that his objections were untimely. Thus, we conclude that Wilkes waived the issues presented. See
Walters v Nadell , 481 Mich 377, 387; 751 NW2d 431 (2008), quoting Napier v Jacobs , 429 Mich 222, 227; 414 NW2d 862 (1987). In any case, none of the a rguments raised by Wilkes demonstrate that the circuit court abused its discretion by gra nting the petition for superintending
control. See The Cadle Co v City of Kentwood , 285 Mich App 240, 246; 776 NW2d 145 (2009) (citation omitted).

To invoke a court’s power of supe rintending control, a plainti ff generally must establish both the lack of an adequate legal remedy and the failure of th e lower court to perform a clear legal duty. Recorder’s Court Bar Ass’n v Wayne Circuit Court , 443 Mich 110, 134; 503 NW2d 885 (1993). Wilkes first argues that the circuit court did not consider whether the district court had failed to perform a clear legal duty. But the circuit cour t did conclude that the district court failed to perform a clear legal duty.

The district court was permitted to order adjournments of this summary proceeding, MCL 600.5732. However, the court rule governing such adjournments, MCR 4.201(J), provides: “When the defendant appears, the court may try the action, or, if good cause is shown, may adjourn trial up to 56 days.” I n explaining its decision to ex ercise superintending control over the district court, the circuit court stated that it appeared t hat the district court “was doing nothing, and that’s why [the circu it court] was satisfied based upon the delay,” further reasoning
that a district court “should ne ver take that long” in handling a summary proceeding. The circuit
court’s conclusion was consiste nt with the plain language of MC R 4.201(J). By adjourning this
matter at least six times—even after the merits of the case had been decided by a higher court in
a different action—the district c ourt failed to perform its cle ar legal duty to conduct this summary proceeding in a timely manner as required under the law . And, we note, some of the adjournments were only necessary because the district court was unprepared to proceed. In a simple summary proceeding, where the merits of the case have al ready been adjudicated by a higher court, such delays canno t be rationally justified. Thus , the circuit court properly
concluded that the district c ourt had failed to perform a clear legal duty.

Wilkes next argues that the circuit court’s exercise of superi ntending control was precluded by MCR 3.302(D) because an appeal was available to Fa nnie Mae. While MCR 3.302(D)(2) does provide that a complaint for superintending co ntrol must be dismissed if an appeal is available, in Shaughnesy v Mich Tax Tribunal , 420 Mich 246; 362 NW2d 219 (1984), our Supreme Court clarified that “the availability of an appeal is not an absolute bar . . . where an appeal would not be an adequate remedy.” Id. at 252-253. In this case, the circuit court held
that Fannie Mae showed that ther e was a strong likelihood of ir reparable harm and immediate action was required for it to be afforded full relief. This ho lding is unchallenged by Wilkes.

Finally, Wilkes argues that the circuit court lacked the autho rity to enter a judgment of possession and order of eviction. However, a circuit court’s p ower of superintending control is far broader than the power Wilkes describes. Although “[s]uper intending control is an-3- extraordinary remedy generally limited to determining whether a lower court exceeded its jurisdiction, acted in a manner inconsistent with its jurisdict ion, or failed to proceed according to law,” In re Credit Acceptance Corp , 273 Mich App 594, 598; 733 NW2d 65 (2007), superintending control has long been recognized by Michigan Cou rts as a plenary, flexible judicial power:

The power of superintending cont rol is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have pr actically hitherto not been fully and completely known and exemplified. It is unl imited, being bounded only by the exigencies whi ch call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover , if required, the tribunals having authority to e xercise it will, by virtue of it , possess the power to invent, frame, and formulate new and additional means, writs, a nd processes whereby it may be exerted. Thi s power is not limited by forms of procedure or by the writ used for its exercise. [ In re McCree , 495 Mich 51, 83; 845 NW2d 458 (2014), quoting In re Huff , 352 Mich 402, 418; 91 NW2d 613 (1958)].

Here, contrary to Wilkes’ claim, the circuit court acted withi n its proper authority in granting Fannie Mae’s requested r elief instead of merely orderi ng the district court to do so.
Fannie Mae was forced to seek s uperintending control because th e district court repeatedly adjourned proceedings—despite the fact that the merits of the c ase had already been decided by
the circuit court—instead of sim ply entering a judgment of poss ession in favor of Fannie Mae as required by court rule. Since th e district court had previousl y failed to perform legal duties in response to the circuit court’s ruling, it was reasonable for t he circuit court to conclude that ordering the district court to enter a judgment of possession w ould be insufficient to provide Fannie Mae relief in a timely fashion. Therefore, the circuit court was within the proper bounds of its superintending control au thority in granting relief to F annie Mae directly. See In re
McCree , 495 Mich at 83.

Affirmed.

/s/ Patrick M. Meter /s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder