GARRATT & BACHAND PC V ERIC E FOGG
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STATE OF MICHIGAN
COURT OF APPEALS
GARRATT & BACHAND, PC,
UNPUBLISHED
May 18, 2010
Plaintiff-Appellee,
v
No. 286439
Lake Circuit Court
LC No. 02-005702-CH
ERIC E. FOGG, ALPHONSE LEWIS, JR. and
SONIA W. LEWIS,
Defendants-Appellants,
and
ROBERT A. HILTS,
Defendant.
Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ.
PER CURIAM.
Defendants Eric Fogg, Alphonse Lewis, Jr.,1 and Sonia Lewis (“defendants”) appeal by
right the trial court’s June 12, 2008 order granting plaintiff’s motion to enforce an October 21,
2002 order and quieting title to certain property in favor of plaintiff. We affirm.
Defendants first argue that the trial court exceeded its authority by enforcing the October
21, 2002 order and quieting title in plaintiff’s favor. We disagree. The extent of a court’s
authority is a question of law we review de novo. Harvey v Harvey, 470 Mich 186, 191; 680
NW2d 835 (2004). Regarding a grant of equitable relief, we review a trial court’s factual
findings for clear error, “but whether equitable relief is proper under those facts is a question of
law that an appellate court reviews de novo.” McDonald v Farm Bureau Ins Co, 480 Mich 191,
197; 747 NW2d 811 (2008).
1
Plaintiff Lewis is deceased, and there has been no personal representative substituted in his
stead; consequently, he is dismissed as a party to this appeal.
-1-
After securing a judgment against plaintiff’s predecessor in interest, America Nelson,
defendants Alphonse Lewis, Jr., (“Lewis’) and Sonia Lewis obtained a writ of execution for
certain properties, including two parcels that are the subject of this appeal, and then purported to
buy the properties at a sheriff’s sale. Plaintiff, believing it had a superior claim to the property
pursuant to a quitclaim deed from Nelson, filed this lawsuit. The lower court issued a
preliminary injunction “until this matter is completely resolved,” and further ordered that the
subject property not be encumbered or transferred in a manner that would impair plaintiff’s
interest in the subject property until after the final adjudication of this action. In an order entered
October 21, 2002, the court granted plaintiff’s motion for summary disposition. The order
nullified the execution sale and certificate of sale, but did not specifically quiet title in plaintiff.
Defendant Lewis filed a claim of appeal with this Court on November 12, 2002. Plaintiff filed a
motion to clarify the order. The lower court refused to clarify the order until it obtained either
(1) an order of this Court, or (2) a stipulation filed by the parties as required by MCR 7.208.
This Court dismissed the appeal for lack of jurisdiction because Lewis had assigned his interest
in the property to appellant Fogg, and therefore was not an aggrieved party. See Garrant &
Bachand PC v Fogg, unpublished order of the Court of Appeals, issued October 29, 2003
(Docket No. 244954).
Both plaintiff and Lewis interpreted the October 21, 2002 order to benefit their respective
purposes. Lewis initiated a second sheriff’s sale in 2003 in accordance with the original writ of
execution and purportedly obtained various properties, including the subject property, for a total
purchase amount of $157,610. On the other hand, plaintiff believed its quitclaim deed was valid
and sought to enforce it in Nelson’s bankruptcy action. Thereafter, the court granted plaintiff’s
motion to enforce the October 21, 2002 judgment, nullified the 2003 sheriff’s sale as it related to
the subject property, and extinguished any rights that defendants had to the property.
The question before us is whether the trial court had the authority to enforce its October
21, 2002 order. We conclude that it did. “A court possesses inherent authority to enforce its
own directives.” Walworth v Wimmer, 200 Mich App 562, 564; 504 NW2d 708 (1993). In fact,
the trial court has the responsibility of enforcing its orders, and “has considerable discretion in
choosing the means to be employed.” Band v Livonia Assoc, 176 Mich App 95, 105; 439 NW2d
285 (1989), citing Butler v Butler, 356 Mich 607, 618; 97 NW2d 67 (1959).
The trial court had full authority to enforce not only the October 21, 2002 order, but also
the corresponding preliminary injunction. The trial court had ruled that the October 21, 2002
order could not be revisited until the appellate issue was finalized or the parties could stipulate to
having the issue decided. The preliminary injunction further required that the subject property
not be encumbered or transferred in a manner that would impair plaintiff’s interest in the subject
property until after the final adjudication of this action. The sheriff’s sale that included the
subject property took place on February 28, 2003, was a transfer of property that would impair
plaintiff’s interest while his appeal was still pending in this Court. Moreover, there was also a
pending motion to clarify the court’s order. Clearly, the issue was not resolved on the date of the
sheriff’s sale.
-2-
The trial court was withholding its ruling until either this Court ruled or the parties
stipulated that it was proper for the trial court, pursuant to a motion, to clarify its previous order
once the appellate process concluded. “Circuit courts have jurisdiction and power to make any
order proper to fully effectuate the circuit court’s jurisdiction and judgments.” MCL 600.611;
Maldonado v Ford Motor Co, 476 Mich 372, 376; 719 NW2d 809 (2006). The trial court’s
action of issuing the June 12, 2008, order was necessary to fully effectuate its October 21, 2002,
order. The court did not err.
Defendants next argue that they were denied due process of law by the order enforcing
the October 21, 2002 order. They maintain that they should have been served with any new
allegations and given an opportunity to defend. Further, they contend that the trial court erred by
making findings without any evidence to support the allegations. These arguments fail.
To be properly preserved for appellate review, an issue must be raised in and decided by
the trial court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
Defendants did not assert a due process claim in the trial court and therefore have not preserved
this issue for appeal. We review unpreserved claims of constitutional error for outcomedeterminative plain error. In re Hildebrant, 216 Mich App 384, 389; 548 NW2d 715 (1996).
In plaintiff’s motion to enforce the October 21, 2002 judgment, plaintiff outlined its
allegations against defendants. Moreover, they included the pertinent evidence and exhibits. All
parties were given an opportunity to respond to the motion and to present oral argument at the
motion hearing. Defendants did not respond to plaintiff’s motion and brief prior to the hearing.
At the hearing, defendants presented their position, asserting that the 2003 sheriff’s sale
was proper, that Lewis “dotted his i’s and crossed his t’s”, that there were no allegations that the
sale had deficiencies, and that the time for redemption had lapsed. Defendants had an
opportunity to be heard. That they failed to provide a written brief and failed to directly address
plaintiff’s claims is not a court failing.
Finally, defendant argues that the redemption period expired and that plaintiff could no
longer challenge the execution and sale of the property. We disagree. Defendants’ argument is
premised on the fact that the February 28, 2003 sale was a valid and would trigger the
redemption period. As discussed above, the trial court issued a preliminary injunction
precluding the sale of the subject property until a final adjudication was reached in this case. On
that basis alone, the sale was invalid. Also, there was record evidence that the sale violated MCL
600.6056 because more parcels of property were sold than necessary to satisfy the execution lien.
Lewis purchased 28 parcels of property for $157,610, whereas the 2001 writ of execution
indicated that the amount owed was $37,382.53 plus any future interest as of January 8, 2001.
Again, this would invalidate the 2003 sale. Moreover, there was evidence presented at the 2008
hearing that Lewis did not pay the sheriff any bid amount in excess of the execution lien as
required by law. Finally, although we need not reach this issue to properly dispose of this case,
it is questionable whether the sale violated of an automatic stay based on the previous owner’s
bankruptcy action.
-3-
The trial court’s ruling to transfer the subject property to plaintiff was not error, but
instead was a just result.
We affirm. As the prevailing party, plaintiff may tax costs. MCR 7.219.
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
-4-
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