RAGOSA INVESTMENT CO V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
RAGOSA INVESTMENT COMPANY,
UNPUBLISHED
January 20, 2004
Plaintiff-Appellant,
v
No. 243688
Wayne Circuit Court
LC No. 02-208351-CZ
CITY OF DETROIT,
Defendant-Appellee.
Before: Fort Hood, P.J., and Bandstra and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition to defendant
under MCR 2.116(C)(8). We affirm.
In March 2002, plaintiff filed a complaint alleging, among other things, that (1) plaintiff
obtained an interest in a parcel of real property in Detroit by purchasing tax liens from the State
of Michigan; (2) plaintiff failed to record its interest in the property with the Wayne County
Register of Deeds; (3) despite plaintiff’s failure to record its interest, defendant should have
known that a tax lien purchaser existed and therefore should have ascertained plaintiff’s identity
before instituting a foreclosure suit; and (4) defendant failed to ascertain plaintiff’s identity
before instituting a foreclosure suit and therefore did not notify plaintiff about the foreclosure. In
Count I of the complaint, plaintiff claimed that defendant erred by failing to notify them about
the foreclosure. In Count II, plaintiff claimed that defendant’s foreclosure methods conflicted
with methods prescribed by the state and were therefore void.
Defendant moved for summary disposition under MCR 2.116(C)(8), arguing that (1) it
had no duty to search for parties that might have obtained an unrecorded interest in the property
in order to notify them about the foreclosure, and (2) case law indicates that a home rule city
such as Detroit may adopt and enforce its own tax collection measures, including measures
relating to foreclosures. In response, plaintiff reiterated the position taken in its complaint. The
trial court ruled that defendant could indeed adopt and enforce its own measures concerning
foreclosures. It additionally ruled:
Count I of the [c]omplaint, that the plaintiff should have had notice of the
underlying foreclosure procedure, necessarily must be dismissed for failure to
state a claim as well because under the statutory scheme set up by the city, which
is consistent with their ability granted them by the home rule provision as
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interpreted by the Supreme Court, complied [sic] with all the necessary due
process notice requirements, and the additional undertaking the plaintiff would
impose upon the City to learn the identity of tax certificate holders is not required
by – is not required by any legal basis. Because there is no legal basis for that
undertaking, the failure to comply with that undertaking cannot give rise to a
cause of action.
On appeal, plaintiff first argues that the trial court erred in granting summary disposition
to defendant because defendant had no authority to adopt rules concerning foreclosures that
conflicted with state law. This Court reviews de novo a trial court’s ruling with regard to a
summary disposition motion. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576
NW2d 153 (1998). Motions brought under MCR 2.116(C)(8) test the legal sufficiency of a
claim with regard to the pleadings alone. Madejski v Kotmar Ltd, 246 Mich App 441, 443-444;
633 NW2d 429 (2001). “All well-pleaded facts are accepted as true and are construed in the
light most favorable to the nonmoving party.” Id. at 444. “Summary disposition under MCR
2.116(C)(8) is proper ‘when the claim is so clearly unenforceable as a matter of law that no
factual development could establish the claim and justify recovery.’” Corley v Detroit Bd of Ed,
246 Mich App 15, 18; 632 NW2d 147 (2001), quoting Smith v Stolberg, 231 Mich App 256, 258;
586 NW2d 103 (1998).
In support of its argument, plaintiff primarily relies on MCL 117.36, which states that
“[n]o provisions of any city charter shall conflict with or contravene the provisions of any
general law of the state.” Plaintiff contends that because the state provides its own foreclosure
methods, the city’s methods are void. Plaintiff further cites MCL 211.78a(6), enacted in 1999
(after the foreclosure at issue in the instant case), which states:
Notwithstanding any charter provision to the contrary, the governing body
of a local government unit that collects delinquent taxes may establish for any
property, by ordinance, procedures for the collection of delinquent taxes and the
enforcement of tax liens and the schedule for the forfeiture or foreclosure of
delinquent tax liens. The procedures and schedule established by ordinance shall
conform at a minimum to those procedures and schedules established under
[certain state laws]. . . .
Plaintiff states, “[i]f the adoption of . . . an ordinance by the City of Detroit prior to the
enactment of this new tax scheme by the State was legal and proper, the State would not have put
in the new statute permission for the Cities to enact a similar law. (See: MCL 211.78a(6)[,]
which allows the City to do what it did for taxes after those levied in 1998[.])”
We cannot agree with plaintiff’s argument. In Magee v City of Detroit (Booker I), 203
Mich App 228, 233; 511 NW2d 717 (1994), overruled in part by Booker v City of Detroit
(Booker III), 469 Mich 887, 887; 668 NW2d 623 (2003), the Court, citing MCL 117.36,
concluded that if a city’s foreclosure methods differ from those of the state’s, the state’s methods
must prevail. In Booker v Detroit (Booker II), 251 Mich App 167, 181; NW2d (2002), reversed
in part by Booker III, supra at 887, the Court expressed its opinion that the Booker I panel had
erred in reaching this conclusion. Although the Booker II panel’s conclusion in this regard
appeared to be dicta, the Supreme Court later agreed with Booker II in relevant part, stating the
following:
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. . . [MCL 211.107(1), a provision of the state property tax laws,] provides:
“The requirements of this act relating to the amount and imposition of
interest, penalties, collection or administration fees, the procedures for collection
of taxes, and the enforcement of tax liens are applicable to all cities and villages if
not inconsistent with their respective charters or an ordinance enacted pursuant to
their respective charters . . . .”
Thus, the statute plainly provides that if a conflict exists between the [state
tax laws] and the city charter, the charter governs. It appears that the Court of
Appeals decision in Booker I overlooked this provision in finding that the [state
tax laws] govern[] where a conflict exists. Accordingly, we . . . conclude that the
foreclosure sale was valid under the controlling provisions of the city charter.
[Booker III, supra at 887.]
Therefore, the Supreme Court has clearly ruled against plaintiff’s position in the instant
case. Defendant’s charter provisions prevail. See also City of Detroit v Walker, 445 Mich 682,
689; 520 NW2d 135 (1994) (“home rule cities have power to make all reasonable provisions for
the collection of . . . taxes”). The trial court correctly ruled for defendant with respect to this
issue.
Next, plaintiff contends that the trial court acted prematurely in deciding that plaintiff, in
light of its unrecorded interest in the property, was not entitled to notice of the foreclosure
proceedings. Plaintiff has waived this issue, however, by failing to cite any authority in support
of its position. See Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998), and Goolsby v
Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
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