GARY HUNTER V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
GARY HUNTER,
UNPUBLISHED
March 16, 2004
Plaintiff-Appellant,
v
No. 244669
Wayne Circuit Court
LC No. 98-801289-CK
CITY OF DETROIT,
Defendant-Appellee.
Before: Cooper, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Plaintiff appeals as of right from the judgment of no cause of action in favor of defendant
following a jury trial. We affirm.
Plaintiff purchased property located at 8443 Chalfonte in the City of Detroit. He testified
that he paid taxes to the state and county for the property, but was unable to pay the taxes to
defendant city because of employee incompetence. Plaintiff could not locate a city employee
who could determine the amount of tax owed on the property. Plaintiff testified that he never
received notices regarding delinquent taxes. Eventually, he contacted members of the city
council and the mayor’s staff. Ultimately, it was agreed that plaintiff would pay $5,3381 for the
property, with an initial payment of $1,338 on December 13, 1996, and the balance due no later
than January 16, 1997.
An auction was held on December 17-19, 1996,2 and plaintiff’s property was purchased
by James Crawford. On December 23, 1996, plaintiff received a notice of acceptance of his
offer to purchase the property for $5,338. On January 1, 1997, Crawford advised plaintiff that he
had purchased the property at auction. Plaintiff testified that he did not meet the January 16,
1997 deadline to pay the balance due because of the claim of Crawford. However, he later
1
The notice of tax delinquency sent to plaintiff in November 1996, indicated that $5338 was
owed to defendant. The offer to purchase indicated that the amount required for purchase was
$5327 with an $11 deed recording fee.
2
Plaintiff testified that he learned that the property was to be placed on the auction block, but
could not attest how he learned that information.
-1-
attempted to pay the balance, and it was never accepted by defendant. Defendant began eviction
proceedings, and plaintiff filed this litigation, seeking specific performance of the contract.
Plaintiff testified that he had spent eight years trying to resolve the tax issue with
defendant and traveled from his ministry in Toronto, Canada to come to Detroit, almost on a
weekly basis, because of the ongoing tax dispute. Plaintiff sought specific performance and
incidental damages that included his travel costs and parking costs for approximately seventyfive trips at a rate of $1,000 per trip. Plaintiff did not produce receipts of his costs and did not
provide evidence that he had sufficient funds to pay the balance due. Plaintiff testified that he
had receipts, but he did not know that he had to bring them to court. He also testified that he
spoke to numerous city employees who apologized to him for the tax problem, but did not call
any employees to testify at trial.
Robert Wells, development specialist for defendant’s planning and development
department (P&DD), testified that defendant foreclosed on the 8443 Chalfonte property on
August 15, 1992, for nonpayment of taxes. The property was returned to defendant’s inventory
when plaintiff failed to redeem the property within the applicable time frame. A notice was sent
to plaintiff indicating that the property would be subject to auction. The parties became to work
toward an amicable solution. On December 13, 1996, an offer to purchase was signed by
plaintiff. However, this offer provided that the purchase amount was $5327 and contained the
following qualification:
Terms to be as follows: CASH, AS IS, SUBJECT TO … PAYOFF BY 1-16-97.
PURCHASER TO PAY $11.00 DEED RECORDING FEE.
City of Detroit to pay all taxes and assessments to date except the current year’s
City and County taxes, if any, which will be prorated to date of closing.
If offer is accepted by the P&DD and approved [by] the City Council and if the
purchaser fails to complete the transaction as specified herein, the deposit shall be
forfeited.
This offer is considered as an offer to deal only, and is subject to administrative
review by P&DD and formal approval by City Council.
This document was signed by plaintiff only.
Defendant’s offer to purchase required supervisory review. Since the offer to purchase
was still pending, the property was not pulled from the auction list. The auction was handled by
a private company instead of the defendant. At the auction the property was sold to James
Crawford for $10,000. After the auction, defendant sent a letter of acceptance dated December
23, 1996, that provided:
The City of Detroit has accepted your Offer to Purchase the above
captioned property. There can be no further action unless the purchase price is
paid in full by 1-16-97.
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In light of the acceptance of plaintiff’s offer to purchase, defendant terminated its deal with
Crawford and refunded his $10,000 purchase price. However, plaintiff never performed his
obligation by tendering the balance due. On August 1, 1997, defendant returned the deposit
check to plaintiff. This litigation occurred after defendant began eviction proceedings. The jury
rendered a verdict of no cause of action in favor of defendant.
Plaintiff first alleges that the breach by defendant rendered it impossible for him to
perform the contract of December 23, 1996. We disagree. To determine the application of the
defense of impossibility, one must examine whether an unanticipated circumstance has made the
promised performance vitally different from what was contemplated by the parties at the time of
the contract. Bissell v L W Edison Co, 9 Mich App 276, 285; 156 NW2d 623 (1967). The
circumstances excuse performance only to the extent to which performance is impossible, and
the application of impossibility is based on the individual facts of each case. Id. at 286. Whether
a substantial breach causes an impossibility such that an excuse for failure to perform is
permitted presents a question for the trier of fact. Baith v Knapp-Stiles, Inc, 380 Mich 119, 126127; 156 NW2d 575 (1968). It is the function of the jury to resolve credibility issues. Colbert v
Primary Care Medical, PC, 226 Mich App 99, 103; 574 NW2d 36 (1997).
Plaintiff’s contention that the verdict was against the great weight of the evidence based
on impossibility is without merit. Upon learning that the supervisor’s approval did not occur
until after the subject property had been sold, defendant terminated the deal with Crawford and
elected to proceed with plaintiff’s offer to purchase, despite the fact that the price in the offer to
purchase was less than the funds tendered by Crawford. Wells testified that plaintiff never paid
the remaining balance after the termination of Crawford’s purchase. Plaintiff testified that he
was able to pay the funds, but was unable to pay the balance because of the incompetence of
defendant’s employees. However, plaintiff failed to provide specific details and did not call
witnesses at trial to corroborate his assertions. Therefore, this issue involved a credibility contest
that the jury resolved in favor of defendant. Colbert, supra.
Plaintiff next alleges that the trial court erred in submitting the legal issue of impossibility
of performance to the jury.3 We disagree. This issue is not preserved for appellate review
because it was not raised, addressed, and decided by the trial court. Miller v Inglis, 223 Mich
App 159, 168; 567 NW2d 253 (1997). Additionally, plaintiff allowed this issue to be submitted
to the jury. Plaintiff may not deem an act proper at trial and object to the action as improper on
appeal. A party may not harbor error as an appellate parachute. Marshall Lasser, PC v George,
252 Mich App 104, 109; 651 NW2d 158 (2002). Furthermore, the question of underlying
circumstances surrounding the parties’ agreement and any excuse for nonperformance was
properly submitted to the jury. See Baith, supra; Colbert, supra.
3
We note that plaintiff’s statement of the question presented states that a legal issue for
resolution by the trial court was presented. However, later in the brief, plaintiff alleged that the
question presented an issue of fact to be decided by the trial court.
-3-
Affirmed.
/s/ Jessica R. Cooper
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
-4-
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