CITY OF DETROIT V 20226 PINEHURST
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF DETROIT,
FOR PUBLICATION
September 16, 2003
9:05 a.m.
Plaintiff-Appellee,
v
No. 237995
Wayne Circuit Court
LC No. 01-117444-CH
19675 HASSE,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
12251 GRANDMONT and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
-1-
No. 238269
Wayne Circuit Court
LC No. 01-119723-CH
v
12210 GRANDMONT and JOY MANAGEMENT
COMPANY,
No. 238270
Wayne Circuit Court
LC No. 01-119722-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
12136 GRANDMONT and JOY MANAGEMENT
COMPANY,
No. 238271
Wayne Circuit Court
LC No. 01-119721-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
8063 MANSFIELD and JOY MANAGEMENT
COMPANY,
Defendants,
and
-2-
No. 238272
Wayne Circuit Court
LC No. 01-119720-CH
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
11335 MANSFIELD and JOY MANAGEMENT
COMPANY,
No. 238273
Wayne Circuit Court
LC No. 01-119719-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
12055 MANSFIELD and JOY MANAGEMENT
COMPANY,
No. 238274
Wayne Circuit Court
LC No. 01-119718-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238275
-3-
Wayne Circuit Court
LC No. 01-119716-CH
11357 RUTHERFORD and JOY
MANAGEMENT COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238276
Wayne Circuit Court
LC No. 01-119715-CH
7734 FORRER and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238277
Wayne Circuit Court
LC No. 01-119714-CH
12620 SUSSEX and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
-4-
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
No. 238278
Wayne Circuit Court
LC No. 01-119713-CH
v
14302 TERRY and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238279
Wayne Circuit Court
LC No. 01-119712-CH
9337 LAUDER and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238280
Wayne Circuit Court
-5-
16223 LAUDER and ALICE MANAGEMENT
COMPANY,
LC No. 01-119709-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
15461 MARLOWE and JOY MANAGEMENT
COMPANY,
No. 238281
Wayne Circuit Court
LC No. 01-119708-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238282
Wayne Circuit Court
LC No. 01-119707-CH
14820 FREELAND, BELL MANAGEMENT
COMPANY, and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-6-
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238283
Wayne Circuit Court
LC No. 01-119705-CH
14008 FREELAND, OAK MANAGEMENT
COMPANY, and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
14028 ARDMORE and BELL MANAGEMENT
COMPANY,
No. 238284
Wayne Circuit Court
LC No. 01-119703-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
14304 STANSBURY and JOY MANAGEMENT
COMPANY,
-7-
No. 238285
Wayne Circuit Court
LC No. 01-119702-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238286
Wayne Circuit Court
LC No. 01-119701-CH
9194 CARLIN and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
13949 SCHAEFER and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-8-
No. 238287
Wayne Circuit Court
LC No. 01-119700-CH
CITY OF DETROIT,
Plaintiff-Appellee,
v
11415 SORRENTO and JOY MANAGEMENT
COMPANY,
No. 238288
Wayne Circuit Court
LC No. 01-119699-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
21460 THATCHER and JOY MANAGEMENT
COMPANY,
No. 238289
Wayne Circuit Court
LC No. 01-119698-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
16951 CHICAGO and T & R MANAGEMENT
COMPANY,
Defendants,
-9-
No. 238290
Wayne Circuit Court
LC No. 01-119697-CH
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238291
Wayne Circuit Court
LC No. 01-119696-CH
9387 MANOR and OAK MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238292
Wayne Circuit Court
LC No. 01-119695-CH
11365 MANOR and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-10-
CITY OF DETROIT,
Plaintiff-Appellee,
v
10010 PINEHURST and T & R MANAGEMENT
COMPANY,
No. 238293
Wayne Circuit Court
LC No. 01-119694-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
13940 WASHBURN and JOY MANAGEMENT
COMPANY,
No. 238294
Wayne Circuit Court
LC No. 01-119692-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238295
Wayne Circuit Court
LC No. 01-119691-CH
13561 CLOVERLAWN and JOY
MANAGEMENT COMPANY,
-11-
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238296
Wayne Circuit Court
LC No. 01-119690-CH
9353 YELLOWSTONE and JOY
MANAGEMENT COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
12082 YELLOWSTONE, JOY MANAGEMENT
COMPANY, and ALICE MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-12-
No. 238297
Wayne Circuit Court
LC No. 01-119689-CH
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238298
Wayne Circuit Court
LC No. 01-119687-CH
9724 OTSEGO and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238299
Wayne Circuit Court
LC No. 01-119686-CH
19431 LAMONT and OAK MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
13480 NEWBERN and JOY MANAGEMENT
COMPANY,
-13-
No. 238300
Wayne Circuit Court
LC No. 01-119662-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238301
Wayne Circuit Court
LC No. 01-117502-CH
12762 TERRY,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238302
Wayne Circuit Court
LC No. 01-117500-CH
20625 LYNDON,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-14-
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238303
Wayne Circuit Court
LC No. 01-117499-CH
18535 PLAINVIEW,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238304
Wayne Circuit Court
LC No. 01-117498-CH
10840 WEST OUTER DRIVE,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238305
Wayne Circuit Court
LC No. 01-117496-CH
18910 BRAILE and JOY MANAGEMENT
COMPANY,
Defendants,
-15-
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238306
Wayne Circuit Court
LC No. 01-117494-CH
19448 LYNDON and OAK MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238307
Wayne Circuit Court
LC No. 01-117490-CH
18900 PATTON and OAK MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-16-
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238308
Wayne Circuit Court
LC No. 01-117489-CH
9003 VAUGHAN,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
18280 VAUGHAN and OAK MANAGEMENT
COMPANY,
No. 238309
Wayne Circuit Court
LC No. 01-117487-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238310
Wayne Circuit Court
LC No. 01-117483-CH
18922 ANNCHESTER,
Defendant,
-17-
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238311
Wayne Circuit Court
LC No. 01-117482-CH
14232 GRANDVILLE,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238312
Wayne Circuit Court
LC No. 01-117480-CH
19953 ASHTON and JOY MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-18-
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238313
Wayne Circuit Court
LC No. 01-117479-CH
7737 ARCHDALE,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238314
Wayne Circuit Court
LC No. 01-117477-CH
9636 ARCHDALE,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
11407 LONGACRE and FRANK MATTHEWS,
Defendants,
-19-
No. 238315
Wayne Circuit Court
LC No. 01-117476-CH
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238316
Wayne Circuit Court
LC No. 01-117473-CH
12150 RUTLAND,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238317
Wayne Circuit Court
LC No. 01-117472-CH
9391 MEMORIAL,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238318
Wayne Circuit Court
-20-
9994 MEMORIAL and OAK MANAGEMENT
COMPANY,
LC No. 01-117471-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238319
Wayne Circuit Court
LC No. 01-117469-CH
20500 FERGUSON,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238320
Wayne Circuit Court
LC No. 01-117468-CH
8932 METETAL,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-21-
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238321
Wayne Circuit Court
LC No. 01-117466-CH
8901 ST MARYS,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238322
Wayne Circuit Court
LC No. 01-117465-CH
9213 MONTROSE,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238323
Wayne Circuit Court
LC No. 01-117464-CH
15016 PREST,
Defendant,
and
ACORN INVESTMENT COMPANY,
-22-
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238324
Wayne Circuit Court
LC No. 01-117463-CH
9414 SUSSEX and OAK MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238325
Wayne Circuit Court
LC No. 01-117462-CH
16230 COYLE and OAK MANAGEMENT
COMPANY,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238326
-23-
Wayne Circuit Court
LC No. 01-117459-CH
14261 TERRY,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238327
Wayne Circuit Court
LC No. 01-117458-CH
14400 LAUDER,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238328
Wayne Circuit Court
LC No. 01-117457-CH
14528 HUBBELL,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-24-
CITY OF DETROIT,
Plaintiff-Appellee,
v
8321 STRATHMOOR and JOY MANAGEMENT
COMPANY,
No. 238329
Wayne Circuit Court
LC No. 01-117456-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
14609 MARK TWAIN and JOY MANAGEMENT
COMPANY,
No. 238330
Wayne Circuit Court
LC No. 01-117455-CH
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238331
Wayne Circuit Court
LC No. 01-117454-CH
13545 APPOLINE,
Defendant,
-25-
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238332
Wayne Circuit Court
LC No. 01-117453-CH
9379 MEYERS,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238333
Wayne Circuit Court
LC No. 01-117452-CH
16925 TIREMAN,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238334
-26-
Wayne Circuit Court
LC No. 01-117450-CH
9317 MANOR,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238335
Wayne Circuit Court
LC No. 01-117449-CH
8510 ROSELAWN and TAMARAC
PROPERTIES, INC.,
Defendants,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238336
Wayne Circuit Court
LC No. 01-117448-CH
10011 MORLEY,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
-27-
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238337
Wayne Circuit Court
LC No. 01-117447-CH
19361 RUNYON,
Defendant,
and
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
CITY OF DETROIT,
Plaintiff-Appellee,
v
No. 238338
Wayne Circuit Court
LC No. 01-117445-CH
20226 PINEHURST,
Defendant,
and
Updated Copy
November 7, 2003
ACORN INVESTMENT COMPANY,
Defendant-Appellant.
Before: Whitbeck, C.J., and Talbot and Zahra, JJ.
PER CURIAM.
In these seventy-one consolidated appeals, we decide whether a statute of limitations bars
plaintiff city of Detroit's actions to foreclose tax liens on several parcels of real property owned
-28-
by defendant Acorn Investment Company1 for unpaid tax bills dating back as far as 1989.
Because statutes of limitations do not run against the state or its subdivisions without an express
legislative enactment, and because the Legislature has not enacted a statute of limitations for in
rem foreclosure actions, we hold that no statute of limitations barred the city's actions. We also
conclude that the city was authorized to impose a late penalty fee because the ordinance
empowering it to do so was enacted after December 31, 1982, as required by MCL 211.44(7).
Accordingly, we affirm the trial court's seventy-one foreclosure judgments and the trial court's
grant of summary disposition with respect to the penalty fees.
I. Basic Facts And Procedural History
A. The City's First Series Of Complaints
In May 2001, the city filed thirty-nine nearly identical complaints, each containing one
count entitled "Real Property Tax Foreclosure." The complaints described each of the involved
parcels of real property, alleged that none of the various entities with ownership interests had
paid general real estate taxes that the city levied on the properties, and averred that more than two
years had passed since the city purchased "at the annual tax sale" "the unpaid tax liens of the City
of Detroit for years prior to 1998." The city attached to each of the complaints tax bills showing
unpaid taxes for each property, most dating back to 1991 or 1990, and one property having
unpaid taxes as far back as 1989. According to the city, the unpaid amounts now included
interest, penalties, and court costs. The city requested that, 120 days after the filing date of the
complaints, the trial court enter judgments of foreclosure with respect to the pre-1998 tax liens
on the involved parcels pursuant to § 8-403 of the 1997 Detroit Charter, and "order the vesting in
[the city] the absolute title in fee . . . in the subject propert[ies]" unless defendants paid the
amounts of the judgments within sixty days after entry of the judgments. The city also sought
possession of the premises.
B. The City's Second Series Of Complaints
In June 2001, the city filed separate complaints with respect to thirty-two additional
parcels of real property, each containing two counts. The first count, entitled "Real Property Tax
Foreclosure," which consisted of allegations mirroring those within the sole count of the May
2001 complaints, sought a judgment of foreclosure of pre-1998 tax liens and possession of the
involved parcels. Count II requested that the trial court impose on the owners of the involved
properties personal liability for the delinquent real property taxes, pursuant to MCL 211.47 and
Detroit Charter, § 8-403(2). The city again attached as an exhibit to each complaint the relevant
real property tax bill showing unpaid city taxes, in some cases dating back to 1989. In
September 2001, the trial court consolidated all the city's seventy-one actions.
1
The city identified in its complaints several other entities that allegedly had ownership interests
in the tax delinquent properties. Because only Acorn Investment Company appealed to this
Court, we refer only to that entity in this opinion.
-29-
C. Acorn's Motion And The City's Response
Shortly before the consolidation occurred, Acorn filed a "Motion for summary disposition
and declaratory judgment, in part," pursuant to MCR 2.116(C)(10). While Acorn did not dispute
the amounts of delinquent property taxes or the city's "ability to foreclose on real property in a
suit to collect delinquent real property taxes," Acorn argued that a six-year period of limitations
precluded the city from obtaining a judgment of foreclosure on liens for unpaid taxes that became
due more than six years before the city filed its complaints. Acorn noted that Michigan case law
had applied a six-year period of limitations to in personam actions to collect unpaid property
taxes pursuant to MCL 211.40 and Detroit Charter § 8-403. Acorn acknowledged that there was
no clear period of limitations for actions to foreclose on a real property tax lien, but theorized
that the six-year limitations period applicable to otherwise unspecified personal actions, MCL
600.5813, also governed foreclosure actions because (1) "[t]he gravamen of the instant complaint
is the collection of 'taxes,' which according to the City charter, is a personal debt of the owner of
the property," and (2) in Detroit, foreclosure represented merely an alternate and concurrent
remedy to an in personam suit, and Michigan case law explained that one could not avoid a
period of limitations applicable to a remedy at law by pursuing a substitute equitable remedy.
Acorn also contested the city's ability to impose and collect penalties on the unpaid taxes. The
city responded to Acorn's motion for summary disposition by requesting judgments or
declaratory relief in its favor pursuant to MCR 2.116(I)(1), 2.116(I)(2), and 2.605.
D. The Trial Court's First Ruling
At an August 2001 hearing, after the parties summarized their briefs addressing the
propriety of summary disposition, the trial court ruled:
With regard to the Statute of Limitations, a judge is, in my view of what
the role of a judge is, is certainly not that of a Legislature.
The judge does not have the opportunity to create the Statute of
Limitations where the Legislature has either failed to do so, or has chosen not to
do so, and that is the case here.
211.40, I believe I'm correct, indicates that the lien referred to for those
amounts and for all interest and charges on those amounts shall continue until
paid.
The [L]egislature has not, in this in rem proceeding, created a Statute of
Limitations. Thus, it does not apply. There is none in this instance.
With regard to penalty . . . if I can find the ordinance reference.
* * *
593-H did recodify, or codified the ordinances of the City of Detroit, and
provided when said ordinances would become effective, and it was passed in
1984, effective January 1, 1985.
-30-
It is clear to this Court that that ordinance was passed after the date
required in the statute, which is MCL 211.44, paren (7), and prior to any of the
taxes, which are the subject of this case.
With regard to costs, attorney fees, all that's premature at the point. So the
Court . . . will not rule on that.
And other than costs and attorney fees, there really is nothing left in this
case except for, as requested by [plaintiff 's counsel], I'm going to grant his motion
for, in effect, a declaratory judgment in his favor . . . .
Shortly thereafter, the trial court entered an order of declaratory judgment that incorporated its
oral rulings.2
E. The City's Motion For Summary Disposition And The Trial Court's Second Ruling
In October 2001, the city filed a motion for summary disposition requesting that the trial
court enter judgments of tax foreclosure in each of the cases because the 120-day statutory
waiting period had expired and the delinquent taxes remained unpaid. The motion also requested
that the trial court award the city $350 in attorney fees and court costs "for each case to reimburse
the City of Detroit in the event of redemption."
In early November 2001, the trial court held a hearing devoted, in part, to the city's
motion for summary disposition. The city requested entry of seventy-one foreclosure judgments,
described various costs common to each action for which it sought reimbursement in the event
Acorn redeemed its properties, and attempted to distinguish the case on which Acorn relied for
the proposition that a six-year period of limitations applied in the instant cases. Acorn
challenged some of the city's asserted costs, and again set forth its positions that a six-year period
of limitations applied to the collection of a personal debt consisting of real property taxes, and
that no valid city ordinance authorized delinquent tax penalties.
The trial court declined to hold oral argument on the basis that the motion presented the
same issues the trial court had previously addressed. The trial court then awarded the city $350
in costs in each case, payable in the event that Acorn exercised its rights of redemption. On
November 19, 2001, the trial court entered seventy-one judgments of foreclosure and on
November 21, 2001, the trial court entered an "Order Granting Motion for Summary
Disposition—Consolidated Tax Foreclosure Judgments." Sixty-eight of the court files contain a
satisfaction of judgment filed on January 15, 2002, reflecting Acorn's payment of the entire
amounts of delinquent taxes and penalties.
2
On September 17, 2001, Acorn filed in this Court a claim of appeal from the circuit court's
order of declaratory judgment. The appeal, entitled Detroit v 13545 Appoline, Docket No.
236817, was dismissed on November 2, 2001, apparently for lack of jurisdiction because the
August order did not constitute a final judgment.
-31-
II. The Statute Of Limitations
A. Standard Of Review
Whether a period of limitations applies to preclude a party's pursuit of an action
constitutes a question of law that we review de novo.3 Similarly, we review de novo questions of
statutory interpretation4 and the propriety of the circuit court's summary disposition ruling.5
B. The Sovereign Shield
It is a long-established principle of Michigan jurisprudence that periods of limitations do
not operate against the state in the absence of a statute otherwise expressly so providing.6 The
United States Supreme Court long ago explained the concept of the sovereign shield from
periods of limitations:
The rule quod nullum tempus occurrit regi—that the sovereign is exempt
from the consequences of its laches, and from the operation of statutes of
limitations—appears to be a vestigial survival of the prerogative of the Crown.
But whether or not that alone accounts for its origin, the source of its continuing
vitality where the royal privilege no longer exists is to be found in the public
policy now underlying the rule even though it may in the beginning have had a
different policy basis. "The true reason . . . is to be found in the great public
policy of preserving the public rights, revenues, and property from injury and loss,
by the negligence of public officers. And though this is sometimes called a
prerogative right, it is in fact nothing more than a reservation, or exception,
introduced for the public benefit, and equally applicable to all governments." . . .
So complete has been its acceptance that the implied immunity of the domestic
"sovereign," state or national, has been universally deemed to be an exception to
local statutes of limitations where the government, state or national, is not
expressly included . . . .[7]
3
Collins v Comerica Bank, 468 Mich 628, 631; 664 NW2d 713 (2003).
4
Oakland Co Bd of Co Rd Comm'rs v Michigan Prop & Cas Guaranty Ass'n, 456 Mich 590,
610; 575 NW2d 751 (1998).
5
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
6
Crane v Reeder, 21 Mich 24, 44 (1870).
7
Guaranty Trust Co v United States, 304 US 126, 132-133; 58 S Ct 785; 82 L Ed 1224 (1938),
quoting United States v Hoar, 26 F Cas 329, 330 (D Mass, 1821) (citations omitted).
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Thus, at common law, "'the sovereign was exempt from the operation of statutes of limitation and
remains exempt to this day in the absence of statutory authority.'"8
C. Piercing The Sovereign Shield
The question, then, is whether any Michigan statute expressly pierces the state's commonlaw shield against periods of limitations. Acorn concedes that no existing statute explicitly
prescribes a period of limitations in which the state or its agencies must file real property tax
foreclosure actions. Only one section of Chapter 58 of the Revised Judicature Act,9 which
establishes various periods of limitations for judicial actions brought in Michigan courts,
explicitly addresses the applicability of limitations periods to the state. That section, MCL
600.5821, provides:
(1) Actions for the recovery of any land where the state is a party are not
subject to the periods of limitations, or laches. However, a person who could
have asserted claim to title by adverse possession for more than 15 years is
entitled to seek any other equitable relief in an action to determine title to the
land.[10]
(2) Actions brought by any municipal corporations for the recovery of the
possession of any public highway, street, alley, or any other public ground are not
subject to the periods of limitations.
(3) The periods of limitations prescribed for personal actions apply
equally to personal actions brought in the name of the people of this state, or in
the name of any officer, or otherwise for the benefit of this state, subject to the
exceptions contained in subsection (4).
(4) Actions brought in the name of the state of Michigan, the people of the
state of Michigan, or any political subdivision of the state of Michigan, or in the
name of any officer or otherwise for the benefit of the state of Michigan or any
political subdivision of the state of Michigan for the recovery of the cost of
maintenance, care, and treatment of persons in hospitals, homes, schools, and
other state institutions are not subject to the statute of limitations and may be
8
Regents of the Univ of Michigan v State Farm Mut Ins Co, 250 Mich App 719, 733; 650 NW2d
129 (2002), quoting In re Konke Estate, 98 Mich App 249, 252; 296 NW2d 226 (1980); see also
Maillat v Village of Marcellus, 329 Mich 370, 374 (opinion by Dethmers, J.), 376 (concurring
opinion by North, J.); 45 NW2d 325 (1951); Gorte v Dep't of Transportation, 202 Mich App
161, 165; 507 NW2d 797 (1993); 54 CJS, Limitation of Actions, § 17, pp 41-42.
9
MCL 600.5801 et seq.
10
Neither party argues the applicability of MCL 600.5821(1) to this case.
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brought at any time without limitation, the provisions of any statute
notwithstanding.
D. Personal Actions
Acorn insists that MCL 600.5821(3), which extends the statutory limitations on personal
actions11 to the state, applies to bar the city's actions.12 This contention rests upon Acorn's
characterization of the city's real estate property tax foreclosure actions as personal actions. But
the characterization betrays a misunderstanding of the distinction between personal actions, or
actions "in personam," and actions "in rem."
Black's Law Dictionary defines an action "in personam" as one that
seeks to enforce an obligation imposed on the defendant by his contract or delict;
that is, it is the contention that he is bound to transfer some dominion or to
perform some service or to repair some loss. In common law, an action brought
for the recovery of some debt or for damages for some personal injury, in
contradistinction to the old real actions, which related to real property only.[13]
In contrast, the term "action in rem" signifies "[a]n action determining the title to property and
the rights of the parties, not merely among themselves, but also against all persons at any time
claiming an interest in that property."14 Stated another way:
[A]ctions in personam differ from actions in rem in that actions or
proceedings in personam are directed against a specific person, and seek the
recovery of a personal judgment, while actions or proceedings in rem are directed
against the thing or property itself, the object of which is to subject it directly to
the power of the state, to establish the status or condition thereof, or determine its
disposition, and procure a judgment which shall be binding and conclusive against
the world. The distinguishing characteristics of an action in rem is [sic] its local
11
MCL 600.5813 provides that the general limitations period for personal actions is six years.
12
The city falls within the scope of the state's protection against periods of limitations. The
Supreme Court has stated in the context of an action to foreclose real property tax liens, "In
exercising a power delegated to it by the State, the city of Detroit, under its charter provisions,
acted as an agency of the State." Detroit v O'Connor, 302 Mich 531, 533; 5 NW2d 453 (1942).
13
Black's Law Dictionary (6th ed), p 29. See also Attorney General v Harkins, 257 Mich App
564, 570; ___ NW2d ___ (2003), quoting Black's Law Dictionary, supra.
14
Black's Law Dictionary (7th ed), p 30.
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rather than transitory nature, and its power to adjudicate the rights of all persons in
the thing.[15]
Here, the counts in the city's complaint that are at issue plainly reflect that the city pursued real
estate tax foreclosure actions with respect to each parcel and has named each parcel as a
defendant.16 Michigan courts consistently have characterized such actions as actions in rem.17
Acorn nonetheless argues that in personam and in rem actions are subcategories of the
broader category of personal actions, citing the following italicized language in support:
Personal actions are those brought for the recovery of personal property,
for the enforcement of a contract or to recover for its breach, or for the recovery of
damages for an injury to the person or property. Personal actions are, as to form,
either ex contractu or ex delicto; as to place tried, local or transitory; and as to
object, in personam or in rem.[18]
Initially, we note that actions brought for the recovery of real property are absent from this
description of personal actions. Moreover, it appears that the author of the article employed the
adjective "personal" in the second sentence before listing the various forms of action in an effort
to distinguish these forms of action from the common-law "real actions" discussed within the
15
1A CJS, Actions, § 69, pp 463-464.
16
Our review of the trial court files in these cases revealed no order disposing of the second
counts (seeking personal judgments of money damages against the property owners for the
amounts of delinquent property taxes) in the thirty-two complaints filed on June 12, 2001. We
need not consider the counts for money damages because (1) the city indicates in its brief on
appeal that it voluntarily "dropped its in personam count in each of the 32 actions . . . and the
judgment in each case was solely for foreclosure of the lien," and (2) Acorn agrees that the city's
"final remedies were judgments of foreclosure in all the cases."
17
O'Connor, supra at 535; Smith v Cliffs on the Bay Condo Ass'n (On Remand), 245 Mich App
73, 75; 626 NW2d 905 (2001). See also Continental Motors Corp v Muskegon Twp, 376 Mich
170, 180; 135 NW2d 908 (1965) ("A basic distinction between an ad valorem property tax and
an excise tax is that the former is regarded as primarily in rem in nature while the latter is
regarded as in personam in nature."); Int'l Typographical Union v Macomb Co, 306 Mich 562,
575-577; 11 NW2d 242 (1943) (quoting 1 Am Jur, p 436, for the definition of an "action in rem,"
and concluding, "The courts have, we find, uniformly held that actions to impress liens upon
property and to enforce a tax lien against real estate are proceedings in rem."); Thompson v
Auditor General, 261 Mich 624, 652; 247 NW 360 (1933) ("Under the tax law the State acquires
a lien against the real estate assessed and before such land may be sold, such lien must be
foreclosed and sale ordered by the court. Such foreclosure is a proceeding in rem, against the
land itself . . . ."); Keweenaw Bay Outfitters & Trading Post v Dep't of Treasury, 252 Mich App
95, 101; 651 NW2d 138 (2002) ("In Michigan, in rem proceedings include foreclosures for
failure to pay taxes . . . .").
18
1 Am Jur 2d, Actions, § 32, p 744 (emphasis added).
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immediately preceding paragraph.19 The definition of "in rem" in Black's Law Dictionary (6th
ed), p 793, makes it clear that actions in rem are entirely distinct from personal actions:
A technical term used to designate proceedings or actions instituted
against the thing, in contradistinction to personal actions, which are said to be in
personam.
"In rem" proceedings encompass any action brought against person in
which essential purpose of suit is to determine title to or to affect interests in
specific property located within territory over which court has jurisdiction. It is
true that, in a strict sense, a proceeding in rem is one taken directly against
property, and has for its object the disposition of property, without reference to the
title of individual claimants; but, in a larger and more general sense, the terms are
applied to actions between parties, where the direct object is to reach and dispose
of property owned by them, or of some interest therein. Such are cases
commenced by attachment against the property of debtors, or instituted to
partition real estate, foreclose a mortgage, or enforce a lien. In the strict sense of
the term, a proceeding "in rem" is one which is taken directly against property or
one which is brought to enforce a right in the thing itself. [Some emphasis added;
citations omitted.]
Citing Detroit v Walker,20 among other authorities, Acorn argues that because real estate
taxes constitute personal obligations of the taxpayer, any action premised on the tax debt
constitutes a personal action. However, the Walker Court stated that the statutory provision
permitting in personam actions to collect city property taxes "implemented an additional
enforcement mechanism,"21 not the exclusive one. In other words, while it is true that the city
could have pursued a personal action to recover Acorn's debts, it chose instead to proceed in rem
by foreclosing, which it was also authorized to do.22 It is plain that when, as here, a municipality
opts to pursue only in rem actions to foreclose the liens on real property, these actions are not
somehow rendered personal actions simply because the municipality might have pursued a
money judgment against the property owner in lieu of an in rem action. Similarly, there is no
merit to Acorn's suggestion that its determination to satisfy its personal obligations of delinquent
property taxes after the city obtained its judgments of foreclosure transformed the nature of the
city's in rem proceeding into a personal action.
19
See 1A CJS, Actions, § 4, p 313 ("Ordinarily, the term 'personal action' is used in
contradistinction to the terms 'real action' and 'mixed action.'").
20
Detroit v Walker, 445 Mich 682, 700 n 24; 520 NW2d 135 (1994).
21
Id. at 704.
22
See MCL 211.40 and Detroit Charter, § 8-403 (providing that assessed taxes are both a
personal debt of the owner and a lien on the property).
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Nevertheless, Acorn urges this Court to apply the statutory limitation on personal actions
on the principle that a party may not seek an equitable remedy to avoid a statutory limitation
attendant to the analogous legal remedy. However, Acorn offers no authority for the proposition
that this principle may be applied to a political subdivision of the state in contravention of the
sovereign shield doctrine, and we have found none. Accordingly, we reject this argument.
In sum, because the only claims at issue here seek foreclosure rather than damages, we
conclude that these appeals involve in rem actions and not personal actions. Therefore, given the
lack of a statute of limitations on in rem actions by the state or the city, its subdivision, we
conclude that the trial court correctly declined to find the city's actions time-barred and properly
granted the city summary disposition with respect to this claim as a matter of law.
III. The Penalty Provision
A. Standard Of Review
We review de novo issues of statutory interpretation,23 as well as the legal question
whether the city properly enacted an ordinance authorizing the imposition of penalties for
delinquent real property taxes.24
B. The City's Ordinances
The city was initially authorized to assess late penalty charges for delinquent property
taxes by § 21-7-43 of the Detroit Municipal Code of 1964. However, in 1982, the Legislature
enacted a provision that prohibited local tax collecting treasurers from imposing late penalty
charges unless the collecting unit's governing body approved a resolution or ordinance after
December 31, 1982, that allowed them to do so. That provision reads in pertinent part:
The local property tax collecting treasurer shall not impose a property tax
administration fee, collection fee, or any type of late penalty charge authorized by
law or charter unless the governing body of the local property tax collecting unit
approves, by resolution or ordinance adopted after December 31, 1982, an
authorization for the imposition of a property tax administration fee, collection
fee, or any type of late penalty charge provided for by this section or by charter,
which authorization shall be valid for all levies that become a lien after the
resolution or ordinance is adopted.[25]
On August 1, 1984, the Detroit City Council passed Ordinance No. 593-H, which adopted
a municipal code for the city of Detroit that included the ordinances in the 1964 Detroit
23
Attorney General v Pub Service Comm, 249 Mich App 424, 429; 642 NW2d 691 (2002).
24
State Treasurer v Abbott, 468 Mich 143, 148; 660 NW2d 714 (2003).
25
MCL 211.44(7).
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Municipal Code, and gave them immediate force and effect. Included within the municipal code
that the city adopted through the enactment of Ordinance No. 593-H was § 18-9-95, which
provided:
No addition for penalty shall be made to general city taxes levied on real
and personal property paid on or before the thirty-first day of August. A penalty
in the amount of one per cent of every unpaid tax shall be added thereto on
September first and an additional one per cent of such tax shall be added on the
first day of each succeeding month, until such tax is paid in full, not to exceed a
total penalty of twenty-five (25) per cent of the unpaid tax.
This ordinance was formerly § 21-7-43 of the Detroit Municipal Code of 1964, which Ordinance
593-H adopted by reference.
Acorn maintains, without citation of authority, that MCL 211.44(7) operated to repeal the
1964 ordinance that authorized real estate tax penalties, and that the 1984 adoption of this
ordinance from the 1964 code was therefore ineffective. We disagree. A statute can preempt a
municipal ordinance if the statute "completely occupies the field that ordinance attempts to
regulate" or if the ordinance "directly conflicts with a state statute."26 MCL 211.44(7) does not
occupy the field, but explicitly contemplates that local units may assess late penalties.
Further, the provision does not directly conflict with or "repeal" the ordinance, as Acorn
suggests. An examination of the statutory language reveals that MCL 211.44(7) does not
prohibit a city from enacting an ordinance assessing late fees for taxes, but only prohibits the
treasurer from imposing such fees—even if authorized by charter—unless the city government
approved an ordinance authorizing the fees after the statute became effective on December 31,
1982. Therefore, there was no direct conflict between the statute and the ordinance.
Accordingly, the city's incorporation by reference of the former § 21-7-43 constituted a valid
enactment. This method of codification is explicitly authorized by MCL 117.5b, which provides:
Each city shall have power, whether provided in its charter or not, to
codify, recodify and continue in code its municipal ordinances, in whole or in part,
without the necessity of publishing the entire code in full. The ordinance adopting
the code, as well as subsequent ordinances repealing, amending, continuing or
adding to the code, shall be published as required by law. The ordinance adopting
the code may amend, repeal, revise or rearrange ordinances or parts of ordinances
by reference by title only.
26
Rental Prop Owners Ass'n of Kent Co v Grand Rapids, 455 Mich 246, 257; 566 NW2d 514
(1997).
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Because the city validly enacted an ordinance after December 31, 1982, that authorized the
imposition of a penalty fee on delinquent property taxes, we conclude that the trial court properly
granted summary disposition to the city with respect to this issue.
Affirmed.
/s/ William C. Whitbeck
/s/ Michael J. Talbot
/s/ Brian K. Zahra
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