GWENDER LAURY V COLONIAL TITLE CO
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STATE OF MICHIGAN
COURT OF APPEALS
GWENDER LAURY,
UNPUBLISHED
August 25, 2009
Plaintiff-Appellee,
v
No. 284013
Wayne Circuit Court
LC No. 04-413821-CH
COLONIAL TITLE COMPANY,
Defendant/Third-Party DefendantAppellant,
and
FRANZ IVEZAJ, MARILYN E. JOHNSON, and
RAYMOND DEBATES,
Defendants-Appellants,
and
DEWAYNE JOHNSON, DARRELL BOUNDS,
TENCY O’CONNOR, SOFIA JUNCEVIC,
JENNIFER J. KIZZAK, KAREN WHITE,
TIMOTHY SMITH, CENTURY 21 REAL
ESTATE, ROBERT IVEZAJ, JOHN DOE
SURETY, and JOHN DOE CENTURY 21,
Defendants,
and
WILLIE BROWNLEE, RICHARD ISSA, and
BERNARD ISSA,
Third-Party Plaintiffs.
Before: Cavanagh, P.J., and Markey and Davis, JJ.
PER CURIAM.
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Defendants Colonial Title Company (“Colonial Title”), Franz Ivezaj, and Marilyn E.
Johnson (collectively “defendants”) appeal as of right from a circuit court order denying their
motion for summary disposition, granting summary disposition in favor of plaintiff pursuant to
MCR 2.116(I)(2), and quieting title to real property in plaintiff’s favor. We affirm.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary
disposition under MCR 2.116(C)(10) is properly granted if no factual dispute exists, thus
entitling the moving party to judgment as a matter of law. Rice v Auto Club Ins Ass’n, 252 Mich
App 25, 31; 651 NW2d 188 (2002). In deciding a motion brought under subrule (C)(10), a court
considers all the evidence, affidavits, pleadings, and admissions in the light most favorable to the
nonmoving party. Id. at 30-31. The nonmoving party must present more than mere allegations
to establish a genuine issue of material fact for resolution at trial. Id. at 31. A “trial court
properly grants summary disposition to the opposing party under MCR 2.116(I)(2) if the court
determines that the opposing party, rather than the moving party, is entitled to judgment as a
matter of law.” Washburn v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000).
Further, we review de novo as questions of law issues involving statutory interpretation. Griffith
v State Farm Mut Auto Ins Co, 472 Mich 521, 525-526; 697 NW2d 895 (2005).
Defendants first argue that the trial court erred by applying Burkhardt v Bailey, 260 Mich
App 636; 680 NW2d 453 (2004), to the facts of this case. We disagree. This case involves the
General Property Tax Act (GPTA), MCL 211.1 et seq. As recognized in Burkhardt, supra at 647
n 5, the Legislature has extensively amended the delinquent tax collection procedure at issue in
this appeal and replaced the tax sale and redemption process with a system of forfeiture,
foreclosure, and sale. See 2001 PA 94; 1999 PA 123.1 Many of the statutes relevant to this case
were repealed, effective December 31, 2003, and December 31, 2006. See id.; Burkhardt, supra
at 647 nn 5 and 6. At the time relevant to this appeal, the GPTA provided for the following
procedure to collect unpaid taxes:
The county may sell real property against which taxes were assessed
before January 1, 1999, but not paid. MCL 211.60. An individual who obtains an
interest in real property through a tax sale, however, must perfect his title by
notifying all parties that have a recorded interest in the property or that assert an
ownership interest through open possession that the property has been sold for
unpaid taxes. MCL 211.140(1). The notice must advise that the property may be
reconveyed upon payment to the county treasurer of the redemption amount
within six months after return of service of the notice. Id. Because this six-month
period is the final redemption period, the statutory notice requirements must be
strictly complied with because the tax sale proceedings serve to divest owners of
their property interests. Equivest Ltd Partnership v Foster, 253 Mich App 450,
453-454; 656 NW2d 369 (2002); Ottaco, [Inc v Kalport Dev Co, Inc, 239 Mich
App 88, 90-91; 607 NW2d 403 (1999)]. But the six-month period does not begin
1
Effective October 20, 2005, 1999 PA 123 was repealed by 2005 PA 183.
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to run until notice is given. Equivest, supra at 454; Ottaco, supra at 91. The tax
purchaser’s right to enforce a tax title against an individual or entity entitled to
notice under § 140 is “forever barred” if the tax title holder fails to make a bona
fide attempt to give the required notice within five years to that individual or
entity. MCL 211.73a; Halabu v Behnke, 213 Mich App 598, 604; 541 NW2d 285
(1995). [Burkhardt, supra at 647-648 (footnotes omitted).]
MCL 211.140 provided, in relevant part:
(1) A writ of assistance or other process for the possession of property the
title to which was obtained by or through a tax sale, except if title is obtained
under section 131, shall not be issued until 6 months after the sheriff of the county
where the property is located files a return of service with the county treasurer of
that county showing service of the notice prescribed in subsection (2). The return
shall indicate that the sheriff made personal or substituted service of the notice on
the following persons who were, as of the date the notice was delivered to the
sheriff for service:
(a) The last grantee or grantees in the regular chain of title of the property,
or of an interest in the property, according to the records of the county register of
deeds.
(b) The person or persons in actual open possession of the land.
(c) The grantee or grantees under the tax deed issued by the state treasurer
for the latest year’s taxes according to the records of the county register of deeds.
(d) The mortgagee or mortgagees named in all undischarged recorded
mortgages, or assignees of record.
(e) The holder of record of all undischarged recorded liens.
***
(5) If the sheriff of the county where the property is located is unable, after
careful inquiry, to ascertain the whereabouts or the post office address of the
persons on whom notice may be served as prescribed in this section, service of the
notice shall be made by publication.
Further, MCL 211.141 provided, in pertinent part:
(1) The following people are entitled to receive from a person claiming
title under a tax deed, or that person’s heirs or assigns, within 6 months after the
return of service is filed or the proof of publication of the notice is filed as
prescribed in section 140, a release and quitclaim of all right and interest in the
property acquired under the tax deed upon payment to the treasurer of the county
in which the land is situated the amount paid for the purchase, together with an
additional 50%, and personal or substituted service fees, which fees shall be the
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same as provided by law for service of subpoenas, for orders of publication, or for
the cost of service by certified mail, without additional cost or charge:
(a) A person with an estate in the property.
(b) A person with an interest in the property, either in fee, for life, or for
years.
(c) A mortgagee of the property.
(d) An assignee of an undischarged mortgage on the property.
(e) A person who holds a lien on the property.
(f) An executor, administrator, trustee, or guardian of a person set forth in
subdivisions (a) through (e).
(g) A person in actual possession of the property.
(2) A person or persons entitled to a release and quitclaim under
subsection (1), after the issue of tax deeds on the property, or after the purchaser
of the property is entitled to the tax deeds, and before service of notice or return
of service, shall have the right to redeem the property from the sale. Redemption
shall be made by paying to the treasurer of the county in which the property is
situated, all sums paid as a condition of the purchase, together with an additional
50%. Upon payment, the tax title and all the certificates of sale shall become void
and of no effect against the property to be redeemed.
In Burkhardt, supra at 650-652, this Court interpreted MCL 211.140 and MCL 211.141.
The Court stated that these provisions “are in pari materia and must be construed together to
ascertain the intent of the Legislature.” Id. at 651. This Court concluded that, pursuant to the
language of these provisions, “only those persons or entities entitled to notice under § 140, or
their successors in interest, who continue to hold an existing interest described in § 141, have the
right to redeem.” Id. at 651-652 (emphasis deleted).
In the instant case, the trial court properly applied the holding of Burkhardt and
determined that defendants failed to submit any evidence showing that they were entitled to
notice under MCL 211.140, or were the successors in interest to those entitled to notice, in June
2000 when plaintiff delivered such notice to the sheriff for service. Regarding the June 12, 1999,
deed whereby Willie Brownlee, a former agent of Constance Management, allegedly quitclaimed
the property to Darrell Bounds, plaintiff submitted Brownlee’s affidavit in which Brownlee
denied conveying the property to Bounds and averred that his purported signature on the deed is
not his actual signature. Defendants failed to present any evidence indicating that the June 12,
1999, deed was not forged. Thus, the trial court concluded that defendants failed to present any
evidence establishing a genuine issue of material fact regarding whether they had a right to
redeem the property. The trial court’s reasoning and conclusion are sound.
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Although the facts of this case and Burkhardt are not identical, the holding of Burkhardt
is applicable. Defendants contend that the trial court ignored the policy behind MCL 211.140
and MCL 211.141. As recognized in Burkhardt, supra at 651, however, both provisions were
part of the GPTA and “address[ed] the right to redeem property sold for delinquent taxes.” The
holding in Burkhardt is thus applicable in this case, which involves the right to redeem property
sold at a tax sale.
Defendants contend that the trial court conflated the right to redeem with the ability to
pay taxes. According to defendants, any person may pay property taxes on a parcel although
only certain enumerated persons have a right of redemption. Defendants’ reliance on MCL
211.53(1) is misplaced because the provision is irrelevant to the tax sale procedure at issue in
this case. Rather, MCL 211.53 “sets forth the process by which the owner of an undivided
interest in property may pay the taxes upon only the portion owned.” Johnston v City of Livonia,
177 Mich App 200, 207; 441 NW2d 41 (1989). Defendants’ reliance on MCL 211.78g(5), a
current GPTA provision, is also misplaced because the provision cannot be fairly read in
accordance with defendants’ interpretation of the provision. In any event, even if the GPTA
currently allows any person to pay taxes on a parcel, this fact would not support defendants’
theory that the act provided as such at the time relevant to this case.
Moreover, this case does not involve a party’s ability to pay taxes. Rather, only the right
to redeem is at issue. As previously stated, MCL 211.141(2) provided:
A person or persons entitled to a release and quitclaim under subsection
(1), after the issue of tax deeds on the property, or after the purchaser of the
property is entitled to the tax deeds, and before service of notice or return of
service, shall have the right to redeem the property from the sale. Redemption
shall be made by paying to the treasurer of the county in which the property is
situated, all sums paid as a condition of the purchase, together with an additional
50%. Upon payment, the tax title and all the certificates of sale shall become void
and of no effect against the property to be redeemed.
Further, as previously recognized, MCL 211.140 and MCL 211.141 allowed only those persons
entitled to notice under MCL 211.140, or their successors in interest, who continue to hold an
interest enumerated in MCL 211.141 to redeem. Burkhardt, supra at 651-652. The trial court
thus properly applied Burkhardt and determined that none of the defendants had the right to
redeem the property.
Defendants also contend that the evidence established a genuine issue of material fact
regarding the superiority of Marilyn Johnson’s interest in the property. Many of defendants’
arguments in this regard are meritless or repetitive and we will not discuss them at length. With
respect to defendants’ assertion that Franz Ivezaj and Johnson were bona fide purchasers,
however, we note that defendants failed to present any evidence indicating that the purported
deed from Brownlee to Bounds was genuine, contrary to plaintiff’s allegation and evidence
establishing that the deed was forged. Because defendants have failed to offer any factual
support for their claim, the evidence fails to demonstrate a genuine issue of material fact for trial.
Special Prop VI, LLC v Woodruff, 273 Mich App 586, 590-591; 730 NW2d 753 (2007). Further,
where a deed is forged, those persons who innocently acquire interests under the forged deed are
in no better position than if they had acquired their interests with notice. Id. at 591.
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In addition, defendants argue that Brownlee’s affidavit is irrelevant because it predated
the quitclaim deeds that the former members of Constance Management tendered to Johnson
pursuant to the settlement of the members’ claims against Colonial Title. Defendants’ argument
lacks merit because the former members of Constance Management did not redeem the property
and thus could not have conveyed to Johnson any interest in the property that they did not own.
See Brownell Realty, Inc v Kelly, 103 Mich App 690, 695; 303 NW2d 871 (1981). Accordingly,
the trial court properly granted summary disposition for plaintiff and quieted title to the property
in her favor.
Defendants next argue that plaintiff’s quiet title action is an action in equity and that the
trial court erred by failing to balance the equities in this case. Because defendants did not raise
this issue below, it is not preserved. Therefore, our review is limited to plain error affecting
substantial rights. Veltman v Detroit Edison Co, 261 Mich App 685, 690; 683 NW2d 707
(2004); Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
The trial court did not have authority to disregard MCL 211.140 and MCL 211.141 and
decide this case in defendants’ favor, even if such a decision would have been more equitable.
Courts may not invoke equity to avoid the application of a statute. Stokes v Millen Roofing Co,
466 Mich 660, 671-672; 649 NW2d 371 (2002). In any event, as this Court recognized in its
previous opinion in this case, MCR 3.411(F) provides a means by which a party “who has in
good faith improved property whose title is ultimately quieted in favor of another may obtain
compensation for those improvements.” Laury v Colonial Title Co, unpublished opinion per
curiam of the Court of Appeals, issued May 10, 2007 (Docket No. 272727), slip op at 5. Thus,
improvements to the property were not a proper consideration in determining which party has a
superior claim to the property.
Finally, defendants contend that the trial court erred by denying summary disposition in
their favor pursuant to MCR 2.116(C)(8) because plaintiff failed to state a prima facie quiet title
claim. A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of
the pleadings alone. Johnson-McIntosh v Detroit, 266 Mich App 318, 322; 701 NW2d 179
(2005). A motion under subrule (C)(8) is properly granted if no factual development could
justify recovery under the plaintiff’s claim. Id.
Defendants contend that plaintiff failed to allege facts that tend to establish her superior
title to the property as required under MCR 3.411(B)(2)(c). A review of plaintiff’s complaint,
however, shows that she alleged such facts. She alleged that the property was fraudulently
redeemed, that deeds recorded on or after March 13, 2002, were invalid and unenforceable, that
she purchased the property at a tax sale and was issued a tax deed, that the property had not been
occupied since the late 1980s, and that the assumed name of the last grantee in the regular chain
of title expired in 1991. Plaintiff also alleged that the only entity with a redeemable interest,
Constance Management, had not been in existence since 1991 and that Colonial Title was not
entitled to redeem the property. She further outlined the series of fraudulent deeds to the
property. Thus, plaintiff’s complaint set forth sufficient facts to establish the priority of her
claim to the property.
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Affirmed.
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
/s/ Alton T. Davis
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