IN RE PETITION OF WAYNE CO TREASURER FOR FORECLOSURE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Petition of WAYNE COUNTY TREASURER
for Foreclosure.
DJELOSH JUNCAJ and SHERRY JUNCAJ,
UNPUBLISHED
September 17, 2009
Petitioners-Appellees,
v
No. 282145
Wayne Circuit Court
LC No. 05-517048-PZ
WAYNE COUNTY TREASURER and
BELMONT PROPERTIES OF MICHIGAN,
L.L.C.,
Respondents,
and
FS CONSTRUCTION, L.L.C.,
Respondent-Appellant.
Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ.
PER CURIAM.
This appeal involves one of several parcels of property that were subject to a foreclosure
action filed by the Wayne County Treasurer in June 2005, under the General Property Tax Act
(GPTA), MCL 211.1 et seq., for nonpayment of property taxes. The parcel consists of seven
adjacent lots that were assigned a single tax identification number when the 2003 taxes were
assessed. A foreclosure judgment was entered in March 2006 that granted vested fee simple title
to the property and other parcels in favor of the Wayne Country Treasurer, without further
redemption rights, “if all the forfeited delinquent taxes, interest, penalties and fees . . . are not
paid . . . on or before March 31, 2006.” In July 2007, Djelosh Juncaj, the titleholder of record for
the property beginning in 1984 and continuing up to the time of the foreclosure judgment, and
his wife Sherry Juncaj, petitioned the trial court for injunctive and declaratory relief. The trial
court, treating the petition as one seeking relief from the foreclosure judgment, granted the
petition on November 1, 2007, based on its determination that Djelosh Juncaj was not afforded
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due process. FS Construction, L.L.C., appeals as of right. We dismiss the appeal for lack of
standing.
Because this Court previously denied the Juncajs’ motion to dismiss, we assume for
purposes of review that the November 1, 2007 order qualifies as a final order under MCR
7.202(6) to invoke this Court’s jurisdiction pursuant to MCR 7.203(A)(1). Although the law of
the case doctrine is a discretionary rule of practice, Kalamazoo v Dep’t of Corrections (After
Remand), 229 Mich App 132, 135-136; 580 NW2d 475 (1998), the “doctrine holds that a ruling
by an appellate court on a particular issue binds the appellate court and all lower tribunals with
respect to that issue,” Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001).
Nonetheless, we find merit to the Juncajs’ claim that FS Construction lacks standing to
challenge the trial court’s decision to set aside the foreclosure judgment. An issue of standing
may be raised at any time, even sua sponte by an appellate court. Kallman v Sunseekers Prop
Owners Ass’n, LLC, 480 Mich 1099; 745 NW2d 122 (2008); Michigan Chiropractic Council v
Comm’r of the Office of Financial & Ins Services, 475 Mich 363, 370-374; 716 NW2d 561
(2006) (opinion by Young, J.). “To maintain an appeal, a person must ordinarily be ‘aggrieved’
by the lower court’s decision.” Spires v Bergman, 276 Mich App 432, 441; 741 NW2d 523
(2007); see also MCR 7.203(A). It is not enough that the person is disappointed in the result,
Spires, supra at 441, or has a personal stake in the outcome of litigation, MOSES, Inc v Southeast
Michigan Council of Gov’ts, 270 Mich App 401, 414; 716 NW2d 278 (2006). A person
claiming standing in an appeal to this Court must show that the trial court’s action caused an
injury in fact, that is, the invasion of a legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical in nature. Manuel v
Gill, 481 Mich 637, 645 n 4; 753 NW2d 48 (2008); People v Hopson, 480 Mich 1061; 743
NW2d 926 (2008).
Standing has been found where a party, in an individual or representative capacity, has
some real interest in a cause of action, or a legal or equitable right, title, or interest in the subject
matter of the controversy. MOSES, Inc, supra at 414. And where a party seeks to litigate rights
of another, in addition to showing the requisite injury, the party must have a close relationship
with the third party possessing the right to litigate the claim. Michigan Chiropractic Council,
supra at 377-378 (opinion by Young, J.) (adopting federal standards for third-party standing).
Further, the party must show that “there is a ‘hindrance’ to the third party’s ability to protect his
or her own interests.” Id. at 378 (opinion by Young, J.).
Here, the subject matter of the controversy between the Wayne County Treasurer and the
Juncajs is the delinquent taxes that enabled the Wayne County Treasurer to take action under the
GPTA to collect the delinquent taxes through foreclosure, but the foreclosure action itself is an
action in rem, Detroit v 19675 Hasse, 258 Mich App 438, 447-452; 671 NW2d 150 (2003). The
case does not involve competing claims of superior title to the disputed property, such as may
exist in an equitable action to quiet title, Beulah Hoagland Appleton Qualified Personal
Residence Trust v Emmet Co Rd Comm, 236 Mich App 546, 550; 600 NW2d 698 (1999), but
statutory violations sufficient to offend due process rights in a foreclosure action provide a basis
for nullifying a deed, Gillie v Genesee Co Treasurer, 277 Mich App 333, 349; 745 NW2d 137
(2007).
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Had this been a case where FS Construction claimed standing based on record evidence
that it acquired title to the property from the Wayne County Treasurer’s quitclaim grantee,
Belmont Properties of Michigan, L.L.C., and that it retained that title, we would find that it has
standing to pursue this appeal. It would place form over substance to allow a person to argue in
an action to quiet title against a person claiming title through a foreclosure judgment, which vests
title in the Wayne County Treasurer, that the title was not enforceable, while at the same time
denying the person claiming title through the foreclosure judgment a right to contest action taken
by a trial court to set aside the foreclosure judgment under MCR 2.612(C)(1), as was done in this
case on this same ground. Cf. Eastern Constr Co v Cole, 52 Mich App 346, 350; 217 NW2d 108
(1974) (intervention proper to allow a person with title to property to move to set aside a
judgment foreclosing on a mechanic’s lien, where the judgment was being used to evict the
individual).
Nonetheless, there is evidence in the record before us that FS Construction sold the
property. We disagree with FS Construction’s argument that the earlier temporary restraining
order (TRO) entered by the trial court, which precluded it from selling the property, is enough to
provide it with standing to challenge the November 1, 2007 order setting aside the foreclosure
judgment. The purpose of a TRO is to prevent irreparable injury, loss, or damage. MCR
3.310(B)(1)(a). Whether the TRO was properly issued in this case is not relevant to the propriety
of the trial court’s subsequent decision to set aside the foreclosure judgment. Therefore, we
conclude that the TRO provides no basis for FS Construction to claim that it has standing to
challenge the trial court’s decision to set aside the foreclosure judgment in this appeal.
While a party claiming an appeal by right from a final order is free to raise issues related
to past orders, Green v Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009), FS
Construction’s challenge to the enforceability of the TRO is moot because that order is no longer
in effect and the trial court did not grant injunctive relief as part of the November 1, 2007, order,
Acorn Bldg Components, Inc v Local Union No 2194, UAW, 164 Mich App 358, 363; 416 NW2d
442 (1987). The fact that the Juncajs initiated contempt proceedings on October 30, 2007, does
not entitle FS Construction to review because the contempt proceedings are not within the scope
of this appeal.
In any event, the record discloses that the trial court ultimately resolved this matter in
favor of FS Construction by denying the Juncajs’ motion for a contempt order. “An issue is
moot if an event has occurred that renders it impossible for the court, if it should decide in favor
of the party, to grant relief.” Michigan Nat’l Bank v St Paul Fire & Marine Ins Co, 223 Mich
App 19, 21; 566 NW2d 7 (1997). Mootness, like standing, presents a question of justiciability
that may be raised at any time. Michigan Chiropractic Council, supra at 371-374 (opinion by
Young, J.). The general rule that a court does not decide moot issues applies to FS
Construction’s challenge to the issuance of the TRO and, therefore, we decline to address it.
Federated Publications, Inc v Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002). Coupled with
FS Construction’s failure to demonstrate any standing to challenge the November 1, 2007 order
appealed from, FS Construction has not shown any issue meriting our review.1
1
Even if we were to find that FS Construction has standing to challenge the trial court’s
(continued…)
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Dismissed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
(…continued)
decision to set aside the March 2006 foreclosure judgment, we would not reverse because
consideration of all the circumstances, including the failure of the attempted service at the
Hamtramck address and the evidence that Djelosh owned lot nos. 695 to 702, but was not the
taxpayer of record, demonstrates that it was unreasonable for the Wayne County Treasurer to
ignore the more recent address in the mortgage document that was discovered during the title
search for lot nos. 695 to 702. The trial court did not err in concluding that Djelosh was denied
minimal due process. Cf. Sidun v Wayne Co Treasurer, 481 Mich 503, 515; 751 NW2d 453
(2008); First Nat’l Bank of Chicago v Dep’t of Treasury, 280 Mich App 571, 582; 760 NW2d
775 (2008).
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