CHARTER TWP OF YPSILANTI V DAVID KIRCHERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
YPSILANTI CHARTER TOWNSHIP,
October 9, 2008
Washtenaw Circuit Court
LC No. 04-001074-CZ
DAVID KIRCHER, d/b/a EASTERN
Advance Sheets Version
Before: Cavanagh, P.J., and Jansen and Kelly, JJ.
Defendant, David Kircher, appeals by right the circuit court’s order confirming the
judicial sale of his property, commonly known as the Eastern Highlands apartment complex
(Eastern Highlands), to receiver Robert Barnes.1 Defendant contends that the circuit court erred
by granting the receiver a lien against Eastern Highlands, by allowing the receiver to foreclose
that lien, and by confirming the subsequent judicial sale of Eastern Highlands to the receiver. In
addition, defendant contends (1) that the circuit court erred by determining in the first instance
that there were nuisances in need of abatement at Eastern Highlands, (2) that the circuit court
unconstitutionally seized his private property without just compensation, (3) that the circuit court
erred by appointing a receiver to abate the alleged nuisances, (4) that even if the receiver’s
appointment was proper, the circuit court nonetheless erred by approving several excessive and
unnecessary expenditures by the receiver, (5) that the circuit court erred by granting attorney fees
for plaintiff, and (6) that defendant’s continued dispossession after the termination of the
receivership constituted an additional unconstitutional taking of private property. We affirm in
part, vacate in part, and remand this matter for further proceedings consistent with this opinion.
Robert Barnes was not the receiver himself, but was instead the authorized representative of
receiver Barnes & Barnes. Nonetheless, for purposes of convenience, we refer to him informally
as the receiver throughout this opinion.
On or about October 13, 2004, Washtenaw County authorities discovered that there had
been a sewage backup at Eastern Highlands and that defendant or his agents were pumping raw
sewage from a containment area into a storm drain or catch basin that eventually led to the
Huron River. After being contacted by the authorities, plaintiff sent its building director and
plumbing inspector to Eastern Highlands on October 14, 2004. Plaintiff’s officials informed
defendant that his sewage-pumping operation was illegal, but it does not appear that defendant
immediately stopped the pumping.
Plaintiff filed a complaint and emergency petition on October 15, 2004, seeking a
temporary restraining order to enjoin defendant from pumping the sewage and requesting an
order to show cause why Eastern Highlands should not be condemned and declared a public
nuisance. With the complaint, plaintiff filed the affidavit of its building director, Ronald Fulton,
in which Fulton averred that irreparable harm would result if the court did not enjoin defendant’s
sewage-pumping operation. Later that day, the circuit court entered an ex parte temporary
restraining order, enjoining defendant from pumping raw sewage and permitting plaintiff to enter
the premises and abate any immediate dangers.
In response to the temporary restraining order, defendant shut off all water service to the
tenants of Eastern Highlands. Plaintiff therefore filed an emergency motion seeking an ex parte
order requiring defendant to restore water service to his tenants. On October 16, 2004, the
circuit court entered an ex parte order requiring defendant to immediately restore water service to
the tenants of Eastern Highlands and permitting plaintiff to abate any additional dangers that
might arise “in the event the restoration of water service . . . results in the threat of new sewage
discharge . . . .” A hearing was set for October 20, 2004.
At the October 20, 2004, hearing, several witnesses testified concerning the nature,
extent, and severity of defendant’s sewage discharge. Defendant admitted that he had been
aware that his employees were pumping raw sewage into a storm drain or catch basin and
acknowledged that he was the sole owner of Eastern Highlands. Upon conclusion of the hearing,
the court ruled:
[T]he conduct of Defendants David Kircher and Eastern Highlands in
failing to provide adequate sanitary sewage discharge facilities and discharging
raw sewage into a storm drain, located on or near its property, which storm drain
empties into the Huron River, constitutes an immediate clear and present danger
to the health, safety, and welfare, of not only the residents of Defendants’
apartments, but to the public at large.
The circuit court declared Eastern Highlands a public nuisance and directed plaintiff to
take all reasonable steps to abate the nuisance caused by the sewage backup and defendant’s
sewage-pumping operation. Among other things, the court permitted plaintiff to inspect “all
common areas, storage rooms, maintenance rooms, power plants, unoccupied apartment units,
and occupied units with permission of [the] occupants, for contamination,” to oversee “the
immediate cleanup of any and all unsanitary conditions,” to evacuate any areas or units in which
“the contamination constitutes an immediate health hazard to the occupants,” and to “prohibit
further occupancy of the [a]ffected units or buildings until the health hazard has been removed.”
The court ordered defendant “to pay Plaintiff its costs and attorney’s fees . . . incurred in
bringing and enforcing this matter, subject to Court review of the reasonableness thereof” and
noted that it would “[c]onsider ordering the appointment of a receiver for the property” if
defendant did not comply with the terms of the order.2
On October 26, 2004, plaintiff filed an amended complaint, adding a count entitled
“Public Nuisance, Fire, and Property Maintenance Code Violations.” Plaintiff alleged that a fire
had occurred in Building M at Eastern Highlands on October 22, 2004, and that firefighters had
discovered several fire code violations at the premises, including the absence of smoke detectors
and fire extinguishers and the absence of an operational fire hydrant on the premises. Plaintiff
also alleged that its officials had inspected Eastern Highlands and had discovered numerous
property maintenance code violations in several of the buildings and the common areas. Among
other things, these alleged property maintenance code violations included inoperable doors,
improper or broken doorjambs, inoperable thermostats, walls that were not caulked and that had
separated from the abutting structure, leaking faucets, a bathtub that was not properly caulked,
toilets that were broken or not properly attached to the floor, many doors and windows that were
not weathertight, an improperly installed heater cover, holes in the drywall, a loose window that
posed a danger of falling, trash and garbage strewn throughout the hallways, deteriorated roof
shingles, missing roof flashing, numerous missing doors and windows, the presence of rodents
and insect pests, defective stairways and handrails, inoperable locks, unsafe sidewalks and
parking areas, exposed electrical wiring, disconnected vents in the laundry room, and washing
machines that drained onto the floor.
Plaintiff set forth specific citations of its property maintenance code for each of these
alleged violations. Plaintiff also attached a diagram showing the exact location of each of the
alleged violations. Plaintiff requested that the circuit court (1) “[d]eclare the subject property a
public nuisance” because of violations of the Ypsilanti Charter Township fire code and property
maintenance code, (2) “[o]rder the nuisance abated,” (3) order the immediate installation of
smoke detectors and fire extinguishers, (4) grant plaintiff the authority to enter and reinspect all
interior and exterior areas of Eastern Highlands to ensure compliance with the applicable fire and
property maintenance codes, (5) order defendant to pay plaintiff “all costs and attorney’s fees
incurred by [plaintiff] in the enforcement” of the fire and property maintenance codes, and (6)
“in the event Defendants fail or refuse to pay such costs, allow [plaintiff] a Judicial Lien in the
full amount of its expenses incurred, plus interest, which Judicial Lien may be filed with the
Washtenaw County Register of Deeds and be foreclosed . . . .”
Defendant was subsequently charged with and convicted of discharging a dangerous substance
into the waters of this state, MCL 324.3115(2) and (4). He was sentenced to five years in prison
and was ordered to pay a $1 million fine. This Court has recently affirmed defendant’s
convictions and sentence. People v Kircher, unpublished opinion per curiam of the Court of
Appeals, issued August 14, 2008 (Docket No. 275215).
The same day, the circuit court entered an order directing defendant to appear at a hearing
to show cause why the court “should not enter an Order declaring the property . . . [a] public
nuisance” for the reasons stated in plaintiff’s amended complaint. At the hearing, plaintiff’s
counsel presented a prepared order and remarked that he and defendant had agreed to its terms.
Defendant agreed with the language of the proposed order as it related to the alleged fire code
violations and acknowledged that the fire code applied equally to the occupied and unoccupied
apartment units at Eastern Highlands. Defendant also indicated that he “would have no
problem” with the portion of the proposed order that dealt with violations of the property
maintenance code “as long as it refers to occupied units . . . .” Defendant apparently did not
believe that the property maintenance code applied to unoccupied units and indicated that he was
“not sure that the Property Maintenance Code requires all units in every building . . . to be ready
for occupancy at all times even if [the units are] not for rent.” He again conceded, however, that
the fire code applied to occupied and unoccupied units alike, and also acknowledged that he had
“no problem” with the proposed order as it related to “major violations” that affect the safety and
integrity of the structure. Defendant indicated that he would agree to the proposed order as long
as he could retain the right to object in the future to any of the alleged property maintenance code
violations. Plaintiff’s counsel agreed to this.
Following the hearing, the circuit court issued the proposed order, which was entitled
“Order to Abate Nuisance.” The order declared Eastern Highlands to be a public nuisance,
directed defendant to immediately install the required smoke detection and fire suppression
equipment in his buildings, directed defendant to install the necessary fire hydrant in full
working order, and ordered defendant to promptly “complete all repairs as required to those
addresses listed in the Township’s inspection reports . . . .” The court authorized plaintiff’s
officials to enter and reinspect the premises in order “to determine compliance with the
installation of the smoke detectors and fire extinguishers as required above” and in order to
ensure compliance with plaintiff’s fire code and property maintenance code generally. The court
scheduled a review hearing and noted that it would consider the issue of costs and attorney fees
at a later date. The court observed that if defendant failed to comply with the order, it would
“consider the request . . . to appoint a receiver to arrange for and oversee the completion of all
required repairs and installations at Defendant’s expense.”
At a subsequent review hearing, plaintiff’s officials testified that defendant had not
complied with the terms of the court’s order, that he was still not in compliance with the
township’s fire and property maintenance codes, and that defendant had not cleaned up or
remediated the soil that had been contaminated by the initial sewage discharge. Testimony
indicated that defendant had not installed the required smoke detectors or fire extinguishers and
had not installed the missing fire hydrant. Plaintiff’s building director also testified about his
concern that one of the walls at Eastern Highlands had deteriorated and was in danger of
Following another review hearing, the circuit court entered an “Order for Continuing
Nuisance Abatement,” finding that defendant had “not completely cooperated or complied with
the previous orders of this Court.” The court denied plaintiff’s requests for the appointment of a
receiver and to hold defendant in contempt. The court again ordered defendant to install the
missing fire hydrant, ordered defendant to clean up and remediate the contaminated substrate in
the area of the storm drain, ordered defendant to complete a videotaped inspection of the sewage
lines at Eastern Highlands, directed defendant to fix a previously identified broken window that
posed an imminent danger of falling, and ordered defendant to repair the brick wall of Building
E that was in danger of imminent collapse. The court gave defendant specific time frames in
which to complete these required repairs and installations. The court also ordered that all
occupied units at Eastern Highlands “shall be brought into compliance as required in the Notices
of Violation” that plaintiff’s officials had issued to defendant earlier. The court noted that it
“will not hesitate” to hold defendant in contempt or to appoint a receiver “in the future should
this Court find Defendant not to be in compliance with this or any other orders . . . .”
Following yet another hearing, the circuit court entered an “Order Finding Defendant
David Kircher in Contempt of Court and for Continued Nuisance Abatement.” The court found
that defendant still had not completed any of the required repairs and installations, ordered
defendant to spend three days in jail for contempt of court, and scheduled an additional review
hearing. The court noted that if defendant was not in compliance with the court’s orders as of
the date of the next hearing, “the Court will most likely appoint a receiver as Plaintiff requests.”
At a review hearing in December 2004, the circuit court heard testimony from several of
plaintiff’s officials and from defendant himself. The testimony established that defendant still
had not installed the missing fire hydrant, that defendant had not produced video footage of the
sewer line, that defendant had not remediated the contaminated soil, that defendant had not
repaired the collapsing wall at Building E, that defendant had not repaired the window that was
in danger of falling, that defendant had not fixed or repaired any of the other conditions listed in
the “Notice of Violations” that he had earlier received, and that defendant had not fully
cooperated with plaintiff’s requests to enter the premises for the purpose of conducting
inspections. Following the hearing, the circuit court entered an “Order for Continuing Nuisance
Abatement and for Appointment of Receiver,” which provided:
[A]s a result of [defendant’s] continuing refusal to obey the orders of this
Court, which refusal has continued to jeopardize the health, safety, and welfare of
the residents of Plaintiff Charter Township of Ypsilanti and the occupants of
Defendant’s premises by exposing them to violations of State and local fire codes,
Plaintiff’s Property Maintenance Code, and continued exposure to raw sewage
contaminants, McKinley Properties or such other party as the township shall
choose shall be and hereby is appointed Receiver over Defendant’s property,
Eastern Highlands Apartments. To serve until such time as the public nuisance
has been abated or the further order of this court.
The order stated that “the Receiver shall attempt to make the premises economically viable, if
possible, and shall maintain detailed records of the costs for time and material expended in
furtherance of its appointed tasks.” The order also provided that “upon completion of repairs,
the Receiver is granted a lien against the subject property for all fees and cost invoices which
have not been paid by Defendant Kircher.” Finally, the order provided that defendant would be
required to “reimburse Plaintiff its costs and attorney fees incurred in conjunction with obtaining
Defendant’s compliance with [plaintiff’s] codes and ordinances in this action.”
Following entry of the circuit court’s December 2004 order, defendant hired an attorney,
who filed objections and moved for reconsideration. The court entered an “Amended Order” on
January 19, 2005, that more precisely defined the duties and responsibilities of the receiver. The
amended order also provided that “in the event McKinley Properties is not willing to perform
under this order, Plaintiff may return to this Court for the appointment of an alternative receiver
or such other relief as may be appropriate.”
On January 25, 2005, plaintiff filed a “Motion for Appointment of Alternate Receiver,”
asserting that it had learned that “McKinley Properties does not wish to act as receiver under the
terms and conditions of the order” and asking “that Barnes & Barnes be appointed receiver over
the properties known as Eastern Highlands Apartments . . . .” Defendant opposed the
appointment of Barnes & Barnes and argued that no receiver was necessary in this case.
In early February 2005, the circuit court entered an “Order Appointing Alternate
Receiver,” specifying that “Barnes & Barnes shall be, and hereby is appointed receiver over
[defendant’s] property, which is the subject matter of this lawsuit (a.k.a. Eastern Highlands
Apartments) to act subject to and in accordance with the Court’s order entered January 19, 2005,
which expressly defines the duties and obligations of the receiver.” The court also ordered that
regular hearings would be held “to determine if charges are appropriate & reasonable for the
court ordered repairs.”
Also in early February 2005, the circuit court granted a preliminary injunction, enjoining
defendant from evicting any of the tenants of Eastern Highlands and ordering defendant to “stay
off Eastern Highlands property until further order except to remove his personal belongings
immediately . . . .”
Defendant moved for reconsideration of the order appointing Barnes & Barnes as the
alternative receiver, but the court denied the motion.
The circuit court held additional review hearings in early and mid-2005 and approved
several of the receiver’s expenses and invoices. The court also denied defendant’s motion to
terminate the receivership. Then, in August 2005, Washtenaw Circuit Judge David Swartz
disqualified himself from this case, and the matter was reassigned to Washtenaw Circuit Judge
Judge Shelton held an extensive review hearing in early February 2006 for the purpose of
reviewing the receiver’s expenditures and invoices from May 2005 through December 2005.
The court heard testimony from plaintiff’s building director and from Robert Barnes, Jr., the
representative of receiver Barnes & Barnes. The court also reviewed photographs of Eastern
Highlands and admitted the receiver’s invoices into evidence. The following day, the court
heard the testimony of defendant Kircher himself. Defendant explained how he would have
repaired or corrected several of the code violations at Eastern Highlands and testified that many
of the repairs would have cost him less than the receiver had expended to perform the same jobs.
Judge Swartz explained that he was not actually biased against defendant, but noted that he
would disqualify himself in order to avoid the appearance of bias or impropriety.
Defendant admitted that although he had purchased a new fire hydrant for Eastern Highlands, he
had never installed it as the court had ordered. Otherwise, defendant presented no additional
testimony or evidence concerning the propriety or reasonableness of the receiver’s expenditures.
The receiver then moved for payment and to terminate the receivership. On April 19,
2006, the circuit court entered a detailed “Opinion and Order and Findings of Fact and
Conclusions of Law Regarding Receiver’s Motion for Payment.” The court summarized the
background of the case and observed that it had taken extensive evidence and testimony at the
various review hearings. The court ruled:
[T]he charges sought by the receiver from May 2005 through December
2005 are reasonable and necessary and subject to payment from the Defendant.
The improvements made were necessary to remedy code violations and/or
remediate hazards to human life as evidenced by the testimony of the Building
Inspector Ronald Fulton. Mr. Fulton’s testimony was clear that prior to the
appointment of a receiver his access to these buildings [at Eastern Highlands] and
the specific units was obstructed by the defendant. After [Fulton] was permitted
unfettered access into the buildings, he found a multitude of code violations. He
testified that he spent a significant amount of time inspecting and re-inspecting
the buildings. All of these inspections [revealed the need for] additional repairs to
remedy the code violations. Therefore the receiver was charged with remedying
the initial code violations and the newly discovered violations.
The repairs included the necessity of replacing all of the windows in the
apartment buildings, repairing a significant amount of the plumbing, repairing the
electrical wiring, and completing structural repairs of the walls which included
dry walling of many units. In addition, many of the bathrooms in the units needed
new equipment and a majority of units needed new kitchen equipment. The units
were in such disrepair that demolition work was a necessity. Many of the entry
doors to the units as well as doors within the units had to be replaced. The carpet
and padding was so bad that it had to be removed in many of the units and was
replaced in some of the units. The receiver completed necessary structural repairs
to the exterior of the building[s] including removal of deteriorated steps and
walkways, removal of fencing and fence poles, and repairing chimneys and
building mortar. The receiver also rented tens of dumpsters simply to remove
accumulated debris and other unhealthy materials from the uninhabitable units
and paid the costs of removal. The receiver then had to pay for the materials and
labor to have those buildings boarded up to prevent further deterioration and
potential liability. The receiver has expended great sums of money on permits,
utility bills, maintenance, eviction proceedings, and other legal proceedings. The
receiver is entitled to reimbursement of all these fees which this Court finds were
reasonable and necessary.
The Court also finds that the 25% markup fees are allowed based on Judge
Swartz’ April 22, 2005 Order . . . . This Court agrees with Judge Swartz’
rationale for allowing these markups . . . .
Therefore, the Court orders that Defendant shall pay the initial
$150,401.82 which was ordered to be paid by Judge Swartz and shall pay the
additional $1,552,078.88 hereby approved by this Court. The total amount owed
to the Receiver is $1,702,480.70. Payment is due forthwith and the receiver is
granted a lien in that same amount.
The Court agrees with plaintiff that the terms and conditions of the
receiver’s appointment should be modified. The Court therefore orders that the
receivership as to buildings E, F, G, H, J, K, L, and M is terminated. The cost of
bringing these buildings up to code far exceeds the value of the buildings. These
buildings have already been secured and boarded up and shall remain secured and
boarded up. Water and gas to these buildings shall not be resumed without
further order from this Court. The receiver’s request to fence off this portion of
the premises to prevent unauthorized access is also GRANTED.
The receivership for buildings A, B, C, D, N, P, and R, all of which are
situated closest to LeForge Road is also terminated. The Court finds that the
receiver has brought these buildings up to code and remediated the soil
contamination and sewage discharge. A receivership is no longer necessary to
protect the interest of the public or the tenants currently leasing those premises.
The Receiver’s request to be appointed property manager for the
apartment complex is GRANTED but limited to the 180 days following entry of
Following the circuit court’s ruling of April 19, 2006, plaintiff moved for reimbursement
by defendant of its costs and attorney fees incurred in this action. The motion stated that the
“total costs and attorney fees incurred by Plaintiff in this action to date are $60,057.72.” Further,
the receiver filed a “Motion for Continued Exclusive Possession” of the Eastern Highlands
premises. The circuit court entered an order providing that “Defendant David Kircher shall be
prohibited from having any direct contact with the tenants at Eastern Highlands . . . .”
The receiver then filed a “Motion for Order to Sell Real Property,” arguing that defendant
had not paid the outstanding $1,702,480.70 and asking the court to order a judicial sale of the
premises in order to raise the amount that was owing and due. Defendant responded by arguing
that the receiver’s lien was a judgment lien and could not be foreclosed. Defendant also argued
that any sale of Eastern Highlands had to conform to the procedural requirements for selling real
estate on execution.
In September 2006, the circuit court granted plaintiff’s motion for costs and attorney fees.
The court ordered defendant to pay plaintiff “the sums of $48,614.82 for attorney fees and
$12,935.40 in costs, within 30 days of this Order. In the event defendant fails to pay such
amounts, a lien shall be granted against the property at issue.” The circuit court also ruled:
The receiver in this case has petitioned the court to allow the property to
be sold. The receiver and the plaintiff have a dispute as to lien priority. The court
finds that the issue [concerning lien priority] is not ripe for decision and must be
brought if, and when, the property is sold. However, the Court finds that the
receiver may sell the property 30 days from the date of this order if all
receivership payments, attorney fees and costs have not been paid.
After 30 days, when defendant still had not paid the receiver, the receiver commenced
proceedings to sell the property. A judicial sale was conducted on November 30, 2006. The
receiver was the only bidder and submitted a bid in the amount of $2,344,586.10. This amount
included the $1,702,480.70 lien amount, as well as interest, taxes in the amount of $336,663.55
paid to prevent a tax foreclosure, utility expenses in the amount of $43,457.39, and other costs
incurred by the receiver for maintaining the property between January 1, 2006, and the date of
the sale. A sheriff’s deed was executed, conveying absolute title to the property to the receiver
pending a judicial confirmation of the sale.
On April 20, 2007, the circuit court entered an order “Confirming Judicial Sale.” The
order provided that the receiver’s lien
was not a judgment lien pursuant to . . . MCL 600.2801 through MCL 600.2819.
Defendant erroneously cites authority from the judgment foreclosure statutes in
the Revised Judicature Act. The authority cited by defendant does not apply in
this case. The lien in this case was ordered to protect the interest of the receiver
pending the sale of the property.
The circuit court acknowledged that “courts may not create or impose a lien on real
property absent an express agreement by the parties or other legal authority.” However, the
court nonetheless concluded that it “had legal authority to order a judicial lien in favor of the
receiver in this matter” because “a receiver may be compensated out of funds or property in [the
court’s] custody.” The court observed that defendant had not paid the receiver and that the
receiver had consequently been entitled to foreclose its lien. The court granted the receiver’s
motion to confirm the judicial sale of the property. Thereafter, the circuit court again ordered
defendant to pay plaintiff’s costs and attorney fees incurred in this matter, in the amount of
$61,550.22 plus interest.
Defendant argues that the circuit court erred by declaring in the first instance that Eastern
Highlands was a public nuisance. Plaintiff responds by arguing that there were conditions at
Eastern Highlands that threatened the general health, safety, and welfare and that defendant
actually stipulated to the circuit court’s original order that detailed the nuisance conditions
existing at Eastern Highlands.
Whether an allegedly injurious condition constitutes a nuisance per se4 is a question of
law. Huang v Wildbrook Apartments, 62 Mich App 340, 342-343; 233 NW2d 276 (1975); see
also Brown v Nichols, 337 Mich 684, 689; 60 NW2d 907 (1953). However, whether an allegedly
injurious condition constitutes a nuisance in fact5 is a question of fact. Brown, 337 Mich At 689;
see also Beard v Michigan, 106 Mich App 121, 124; 308 NW2d 185 (1981). “‘The difference
between a nuisance per se and one in fact is not in the remedy but only in the proof of it.’”
Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959)
Nuisance-abatement proceedings brought in the circuit court are generally equitable in
nature. MCL 600.2940(5). We review de novo the circuit court’s equitable decisions, but
review for clear error the findings of fact supporting those decisions. Yankee Springs Twp v Fox,
264 Mich App 604, 611; 692 NW2d 728 (2004).
Before the circuit court could take cognizance of plaintiff’s complaint for nuisance
abatement pursuant to MCL 600.2940, it was first required to determine that there was a
nuisance in need of abatement. We conclude without difficulty that the raw sewage discharge
and contamination at Eastern Highlands did indeed constitute a public nuisance. This condition
was dangerous to human life. It imperiled the health, safety, and welfare of the tenants of
Eastern Highlands and the other nearby residents. See Bronson v Oscoda Twp (On Second
Remand), 188 Mich App 679, 684; 470 NW2d 688 (1991). Beyond this, defendant stipulated the
fact that the fire code violations identified at Eastern Highlands created a public nuisance.
Defendant acknowledged in open court that he had no objections to that portion of the proposed
order dealing with the identified fire code violations, and defendant conceded that the fire code
applied to occupied and unoccupied units alike. A stipulation entered in open court is generally
binding on the parties. Kline v Kline, 92 Mich App 62, 79; 284 NW2d 488 (1979). Thus, to the
extent that the circuit court’s original order was based on the raw sewage release and
contamination and the identified fire code violations, it was proper. These conditions posed clear
and immediate risks to the general health, safety, and welfare. The circuit court did not err by
A nuisance per se is also known as a nuisance at law. Bluemer v Saginaw Central Oil & Gas
Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959). “‘A nuisance at law or a nuisance per se
is an act, occupation, or structure which is a nuisance at all times and under any circumstances,
regardless of location or surroundings.’” Id. (citation omitted).
A nuisance in fact is also known as a nuisance per accidens. Bluemer, 356 Mich at 411.
“‘Nuisances in fact or per accidens are those which become nuisances by reason of
circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact
where the natural tendency of the act is to create danger and inflict injury on person or
property.’” Id. (citation omitted).
declaring Eastern Highlands a public nuisance on these grounds. See Bronson, 188 Mich App at
Contrary to plaintiff’s position on appeal, defendant did not stipulate that the identified
property maintenance code violations at Eastern Highlands created a public nuisance. The
record reveals that defendant indicated that he would agree to the proposed order only as long as
he could retain the right to object in the future to any of the alleged property maintenance code
violations specified in the order. Plaintiff’s counsel specifically agreed to this request by
defendant. However, this does not change the fact that Eastern Highlands was properly declared
a public nuisance by virtue of the sewage contamination and the fire code violations alone. Even
in the absence of the property maintenance code violations, there still would have been sufficient
evidence for the circuit court to declare Eastern Highlands a public nuisance.
Defendant next argues that the circuit court’s placement of Eastern Highlands into
receivership was an unconstitutional taking of his private property. We disagree.
We review constitutional issues de novo on appeal. Wayne Co v Hathcock, 471 Mich
445, 455; 684 NW2d 765 (2004).
Contrary to defendant’s assertions, Eastern Highlands constituted a public nuisance, and
the circuit court was therefore constitutionally authorized to take steps toward abating the
nuisance conditions. Defendant disregards the well-established nuisance exception to the
prohibition of governmental takings. The federal and state constitutions both proscribe the
taking of private property for public use without just compensation. US Const, Am V; Const
1963, art 10, § 2; Adams Outdoor Advertising v East Lansing (After Remand), 463 Mich 17, 23;
614 NW2d 634 (2000).6 However, the nuisance exception to the prohibition of unconstitutional
takings provides that because no individual has the right to use his or her property so as to create
a nuisance, “the State has not ‘taken’ anything when it asserts its power to enjoin [a] nuisancelike activity.” Keystone Bituminous Coal Ass’n v DeBenedictis, 480 US 470, 491 n 20; 107 S Ct
1232; 94 L Ed 2d 472 (1987). Indeed, “Courts have consistently held that a State need not
provide compensation when it diminishes or destroys the value of property by stopping illegal
activity or abating a public nuisance.” Id. at 492 n 22. Because plaintiff was exercising its
legitimate police power to abate the public nuisance on defendant’s property, no unconstitutional
The Taking Clause of the Fifth Amendment is substantially similar to the Taking Clause of the
Michigan Constitution, Tolksdorf v Griffith, 464 Mich 1, 2; 626 NW2d 163 (2001), and the two
provisions should generally be interpreted coextensively, see Peterman v Dep’t of Natural
Resources, 446 Mich 177, 184 n 10; 521 NW2d 499 (1994).
taking occurred. Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496,
555 n 22; 730 NW2d 481 (2007).
Defendant next argues that the circuit court abused its discretion by appointing a receiver
to abate the alleged nuisance conditions at Eastern Highlands and by appointing a receiver that
was not disinterested. Again, we disagree.
We review for an abuse of discretion the circuit court’s decision to appoint a receiver. Id.
at 523. An abuse of discretion occurs when the court’s decision falls outside the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
Defendant had been repeatedly warned of his responsibility to clean up and remediate the
raw sewage contamination at Eastern Highlands, and he had also been directed on several
occasions to correct the identified fire code violations on his property. Even after repeated
warnings and requests, however, defendant continued to defiantly refuse to remediate or correct
any of these identified nuisance conditions. We recognize that the appointment of a receiver is a
remedy of last resort and should not be used when another, less drastic remedy exists. Ypsilanti
Fire Marshal, 273 Mich App at 530; Hofmeister v Randall, 124 Mich App 443, 446; 335 NW2d
65 (1983). However, the appointment of a receiver is appropriate when other attempts have
failed and a property owner has repeatedly refused to comply with the court’s orders. Ypsilanti
Fire Marshal, 273 Mich App at 523; Band v Livonia Assoc, 176 Mich App 95, 105; 439 NW2d
285 (1989) (stating that the “appointment of a receiver may be appropriate when other
approaches have failed to bring about compliance with the court’s orders”). We cannot conclude
that the circuit court abused its discretion by appointing a receiver in this case.
Defendant also argues that the circuit court abused its discretion by appointing a receiver
that was not disinterested and by delegating to plaintiff the responsibility of choosing the
receiver in this case. We agree, but conclude that there is no lasting error entitling defendant to
relief in this regard since the receivership has already been dissolved. Robert Barnes, the
representative of receiver Barnes & Barnes, testified during at least one of the hearings before
the circuit court that he could not work with defendant and that he and defendant did not get
along. We fully acknowledge that Barnes & Barnes had previously been appointed as the
receiver for other properties owned by defendant and had committed several improprieties in
other cases by failing to obtain the court’s permission before starting costly projects and by
charging defendant for questionable and unnecessary repairs. We also acknowledge that a circuit
court may not delegate the responsibility of choosing a receiver to one of the parties. Indeed, the
“power to appoint a receiver belongs exclusively to the circuit court.” Ypsilanti Fire Marshal,
273 Mich App at 528. However, the receivership in the instant case has now been terminated,
and Barnes & Barnes is therefore no longer the court-appointed custodian of Eastern Highlands.
In light of this fact, we conclude that there is no lasting error that this Court can remedy. See id.
at 529; see also In re Contempt of Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003)
(holding that an issue has become moot when the court is no longer able for fashion a remedy for
Defendant argues that even if the receiver’s appointment was proper, the circuit court
nonetheless erred by approving several excessive and unnecessary expenditures by the receiver.
We agree in part.
The circuit court’s determination concerning the propriety and reasonableness of a
receiver’s expenses is treated as presumptively correct because the circuit court “has far better
means of knowing what is just and reasonable than an appellate court can have.” Kurrasch v
Kunze Realty Co, 296 Mich 122, 124; 295 NW 583 (1941). We therefore review for an abuse of
discretion the circuit court’s decision to approve or disapprove the individual expenses incurred
by the receiver. Id. An abuse of discretion occurs when the court’s decision falls outside the
range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.
The receiver was originally appointed for the purpose of abating the nuisance conditions
at Eastern Highlands, and was initially directed by the circuit court to perform only the minimum
necessary repairs. Nevertheless, the circuit court ultimately permitted the receiver to complete
numerous repairs and projects that were in no way related to abating the original nuisance
conditions for which the receiver had been appointed. This is demonstrated in part by the circuit
court’s December 2004 order directing that “the Receiver shall attempt to make the premises
economically viable . . . .”
Unlike the nuisance-abatement action in Ypsilanti Fire Marshal, the present action was
not based on Michigan’s Fire Prevention Code, MCL 29.1 et seq. Instead, this action was based
entirely on alleged violations of the local fire and property maintenance codes and was brought
pursuant to Michigan’s general nuisance-abatement statute, MCL 600.2940, only. Circuit courts
have broad equitable authority to abate nuisances under MCL 600.2940. Ypsilanti Fire Marshal,
273 Mich App at 527 n 12. However, before proceeding to abate a nuisance under the terms of
MCL 600.2940, a court must naturally first determine that a nuisance actually exists.
“The word ‘nuisance’ has been variously defined and is so comprehensive that its
existence must be determined from the facts and circumstances of each case.” Ebel v Saginaw
Co Bd of Rd Comm’rs, 386 Mich 598, 606; 194 NW2d 365 (1972). However, at its core,
“[p]ublic nuisance includes interference with the public health, the public safety, the public
morals, the public peace, the public comfort, and the public convenience in travel.” Bronson,
188 Mich App at 684.
The essential element of a nuisance is a wrongful, continuing, impending
danger to the lives or health of the public, or to the legitimate property or personal
rights of private persons peculiarly subject to the danger. A condition that is so
threatening as to constitute an impending danger to the public welfare is a
nuisance. [19 Michigan Civil Jurisprudence, Nuisances, § 1, pp 62-63.]
See also Garfield Twp v Young, 348 Mich 337, 342; 82 NW2d 876 (1957) (listing cases
describing various types of public nuisances).
The costs of clean up and remediation of the raw sewage contamination were necessary,
as were the costs of repairing and correcting the identified fire code violations. The raw sewage
contamination and the fire code violations constituted bona fide public nuisances because they
endangered the general health, safety, and welfare of the tenants of Eastern Highlands. The
circuit court did not abuse its discretion by ordering defendant to pay all costs related to the
cleanup and remediation of the raw sewage contamination and all costs related to the repair and
correction of the identified fire code violations. Kurrasch, 296 Mich at 124.
Nor did the court abuse its discretion by approving the receiver’s expenses incurred in the
repair and abatement of those property maintenance code violations that actually caused or
contributed to the public nuisance at Eastern Highlands. Code violations such as exposed live
electrical wires, significant accumulations of trash and rubbish, insect and vermin infestations,
falling bricks and windows, collapsing walls, and sanitary sewer leakages certainly posed
substantial risks to the general health, safety, and welfare of the tenants of Eastern Highlands.7
The circuit court acted within its discretion by approving the reasonable and necessary costs of
repairing and correcting all serious property maintenance code violations of this nature.
Conversely, however, the court abused its discretion by ordering the receiver to do
anything necessary “to make the premises economically viable” and by ordering defendant to
pay costs that were unrelated to the abatement or repair of actual nuisance conditions. Many of
the alleged property maintenance code violations at issue in this case were minor, did not
immediately endanger the health and safety of the public or the tenants, and therefore did not
cause or contribute to the public nuisance at Eastern Highlands. Code violations such as chipped
paint, dripping faucets, improperly caulked bathtubs, improperly caulked windows, missing roof
flashing, and small holes in the drywall simply did not rise to the level of public nuisance
conditions. We fully recognize that these conditions constituted violations of the local property
maintenance code. But the mere fact that a condition constitutes a violation of a local ordinance
does not make that condition a public nuisance, and the circuit court has no jurisdiction to abate
or enjoin such a condition unless it is independently established that the condition constitutes a
nuisance. See Garfield Twp, 348 Mich at 340; see also 58 Am Jur 2d, Nuisances, § 338, p 788
(observing that a court sitting in equity “will take jurisdiction when a violation or threatened
violation of an ordinance amounts to a nuisance, not because the act is in violation of the
This list is not intended as exclusive, but merely serves to provide examples of the types of
major property maintenance code violations that constituted bona fide nuisance conditions in this
ordinance, but because it is a nuisance”).8 Said another way, absent statutory authority for doing
so, townships lack the power to classify violations of their ordinances as nuisances per se, and a
court can therefore only enjoin such violations upon sufficient proofs that they constitute
nuisances in fact. Bane v Pontiac Twp, 343 Mich 481, 494; 72 NW2d 134 (1955). To prove that
a condition constitutes a nuisance in fact, it is generally necessary to establish that the condition
is harmful to the public health, safety, morals, or welfare. See Garfield Twp, 348 Mich at 342.
We affirm the circuit court’s approval of the initial $150,401.82 in expenses incurred by
the receiver. The record establishes that these expenses, which were approved by both Judge
Swartz and Judge Shelton, were necessarily incurred to abate bona fide nuisance conditions at
Eastern Highlands. In contrast, the record simply does not provide sufficient detail to allow us to
determine the appropriateness of the remaining $1,552,078.88, which Judge Shelton largely
approved after the fact. Because we cannot determine the propriety of these remaining expenses
on the record before us, we must remand this matter for further proceedings.
Before approving these $1,552,078.88 in expenses, the trial court was required to (1)
determine whether each repair or expenditure was necessary to abate an actual nuisance
condition and (2) then determine whether the expenses of abating that nuisance condition were
reasonable and justified. Indeed, “‘[t]o obtain approval by the court of an expenditure not
previously authorized to be made, a receiver must show that the expense was a reasonable
one . . . , that the amount paid is fair and reasonable, and that it has been actually paid in good
faith.’” Corell v Reliance Corp, 295 Mich 45, 53; 294 NW 92 (1940) (citation omitted).
We vacate that portion of the circuit court’s order that approves the receiver’s
expenditure of the remaining $1,552,078.88. We remand the case for a determination by the
circuit court whether each property maintenance code violation in fact constituted an actual
nuisance condition. If the circuit court properly finds on remand that a property maintenance
code violation constituted an actual nuisance condition, then only the amount reasonably and
necessarily incurred in correcting or abating that condition may be included in the corrected
judgment amount. With respect to any property maintenance code violations that did not
constitute actual nuisance conditions, the expenses incurred by the receiver must be excluded
from the corrected judgment amount. To reiterate, it will be necessary for the court to
disapprove and exclude from the total corrected judgment amount any expenses that were not
reasonably and necessarily incurred by the receiver to abate or repair actual nuisance conditions
at Eastern Highlands.9 Only those expenses properly, reasonably, and necessarily incurred to
It is true that certain violations of local ordinances enacted under the Michigan Zoning
Enabling Act, MCL 125.3101 et seq., are presumptively classified as nuisances per se. MCL
125.3407. However, the Ypsilanti Charter Township property maintenance code was not
enacted under the Michigan Zoning Enabling Act.
The charges incurred to correct the property maintenance code violations that did not
independently constitute nuisance conditions may not be included in the corrected judgment
amount on remand. But this does not necessarily mean that the receiver may not collect the
amounts reasonably and necessarily expended to repair or correct the non-nuisance code
violations. On remand, and in the circuit court’s discretion, the receiver may intervene and set
abate actual nuisance conditions at Eastern Highlands may be charged to defendant and included
in the corrected judgment amount.
Defendant next argues that the circuit court erred by allowing the receiver to charge a
“25% mark-up on all expenditures.” We agree.
We review for an abuse of discretion the circuit court’s decision setting compensation for
a receiver. Fisk v Fisk, 333 Mich 513, 517-518; 53 NW2d 356 (1952). An abuse of discretion
occurs when the court’s decision falls outside the range of reasonable and principled outcomes.
Maldonado, 476 Mich at 388.
“Receivers have a right to compensation for their services and expenses . . . .” Cohen v
Cohen, 125 Mich App 206, 215; 335 NW2d 661 (1983). However, a receiver’s specific rate of
compensation must be reasonable and must not be excessive. Id.; see also Fisk, 333 Mich at
517-518. In the instant case, the circuit court allowed the receiver to charge a 25 percent markup
on all labor, materials, and supplies. This was excessive, even in light of the circuit court’s
belief that the markup was necessary in order to attract a receiver to this particularly undesirable
job. While we are disinclined to say definitively what amount of compensation would have been
reasonable and justifiable, the 25 percent markup on all labor, materials, and supplies awarded in
this case was simply too great. We vacate the circuit court’s order allowing the receiver to
charge a 25 percent markup on all labor, materials, and supplies.10 We direct the circuit court to
determine on remand a fairer and more reasonable amount of compensation for the receiver and
to correct the amount of the judgment accordingly.
Defendant also argues that the circuit court erred by granting the receiver a lien against
Eastern Highlands in the amount of the judgment, by allowing the receiver to foreclose that lien,
and by confirming the judicial sale of the property. We agree.
forth a claim of quantum meruit for the amount of these otherwise-unrecoverable, non-nuisancerelated expenses. In this way, the receiver might still collect from defendant any amounts
reasonably and properly expended to fix or correct non-nuisance property maintenance code
violations at Eastern Highlands. After all, defendant was under a duty to correct or repair these
non-nuisance violations himself, and requiring the receiver to bear the expense of repairing these
violations would result in defendant’s unjust enrichment. See, e.g., Morris Pumps v Centerline
Piping, Inc, 273 Mich App 187, 201; 729 NW2d 898 (2006).
This is not to say that a 25 percent markup on labor, materials, and supplies may not be
warranted in other receivership matters. We simply conclude that a 25 percent markup was
excessive in light of the unique and particular facts of this case.
Whether a lien is authorized in a particular case is a question of law. We review
questions of law de novo. Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006).
It is true that the circuit court may abate a public nuisance at the expense of the property
owner. MCL 600.2940(3); Ypsilanti Fire Marshal, 273 Mich App at 538. It is also true that a
receiver’s fees and compensation may be paid from the property or funds in receivership. Fisk,
333 Mich at 518; In re Dissolution of Henry Smith Floral Co, 260 Mich 299, 302; 244 NW 480
(1932). However, after reviewing the pertinent legal authority, we conclude that no lien on
defendant’s real property was authorized in this case.
The courts may not impose a lien on real property absent an express agreement of the
parties or other legal authority. Ypsilanti Fire Marshal, 273 Mich App at 538. As this Court has
previously observed, there is no legal authority allowing the circuit court to impose a lien on a
property owner’s realty for the purpose of securing the amount incurred to abate a general public
nuisance under MCL 600.2940. Ypsilanti Fire Marshal, supra at 537.11 Nor have we located
any legal authority permitting the court to impose a lien on real property for the purpose of
securing fees and compensation due a receiver. We acknowledge that unpaid receiver’s fees are
in the nature of “administrative costs,” which have first priority against the funds or property
being held in custodia legis. Henry Smith Floral, 260 Mich at 302-303. But such
“[a]dministrative costs are not at all of the nature of a lien . . . .” Id. at 302. We accordingly
conclude that, although a court may first satisfy the administrative costs of a receivership out of
funds actually held in the court’s custody, a receiver is not entitled to a foreclosable lien in the
amount of its outstanding fees and compensation.12
As noted earlier, unlike the nuisance-abatement action in Ypsilanti Fire Marshal, the present
action was not based on Michigan’s Fire Prevention Code. Instead, this action was based
entirely on Michigan’s general nuisance-abatement statute, MCL 600.2940. It is true that liens
are authorized under Michigan’s Fire Prevention Code to secure the expense of abating certain
types of nuisances. MCL 29.16(1); Ypsilanti Fire Marshal, 273 Mich App at 537 n 17. Other
specific statutes authorize liens for the expense of abating particular nuisances as well. Id. at 537
n 18. However, none of these statutes is applicable in this case. There is quite simply no statute
that authorizes liens for the expense of general nuisance abatement under MCL 600.2940.
Indeed, costs incurred to abate general public nuisances must be collected in the same manner as
damages and costs are generally collected on execution. MCL 600.2940(4).
In Henry Smith Floral, the receiver’s fees and compensation were readily payable out of funds
raised through the foreclosure sale of an unrelated mortgage. Had the circuit court possessed
similar liquid funds in the present case, the court could have simply paid the receiver’s fees and
compensation directly as an administrative cost rather than including the outstanding receiver’s
fees and compensation as an element of the judgment. See Henry Smith Floral, 260 Mich at 302.
However, because the court in this case had no liquid assets from which it could directly pay the
receiver’s fees and compensation as an administrative cost, it was necessary for the court to enter
Costs incurred to abate general public nuisances under MCL 600.2940 must be collected
in the same manner as damages and costs are generally collected on execution. MCL
600.2940(4); Ypsilanti Fire Marshal, 273 Mich App at 539. The procedure for collecting
damages and costs on execution is described in chapter 60 of the Revised Judicature Act, MCL
600.6001 et seq. Under MCL 600.6004, executions against realty are permitted “only after
execution has been made against the personal property of the judgment debtor that is in the
county, and such personal property is insufficient to meet the sum of money and costs for which
judgment was rendered.” Because the receiver in this case did not first attempt to satisfy the
judgment by execution against defendant’s personal property, it was not entitled to execute
against defendant’s realty. MCL 600.6004.
In the absence of any authority to the contrary, we similarly conclude that a judgment for
unpaid fees and compensation due a receiver must be collected in the same manner as damages
and costs are generally collected on execution. “Issuance of execution is the ordinary method of
enforcing a legal or equitable judgment for the payment of money.” 7 Michigan Pleading &
Practice, Executions, § 49:1, p 304. Like the collection of costs incurred to abate public
nuisances under MCL 600.2940, the collection of a judgment for unpaid receiver’s fees and
compensation must also proceed in accordance with chapter 60 of the Revised Judicature Act.
We note that the receiver was not entitled to an equitable lien in this case. “Equity will
create a lien only in those cases where the party entitled thereto has been prevented by fraud,
accident or mistake from securing that to which he was equitably entitled.” Cheff v Haan, 269
Mich 593, 598; 257 NW 894 (1934). A party that has an adequate remedy at law is not entitled
to an equitable lien. Yedinak v Yedinak, 383 Mich 409, 415; 175 NW2d 706 (1970). Here the
receiver had an adequate remedy at law—namely, execution against defendant’s personal or real
property pursuant to chapter 60 of the Revised Judicature Act. Therefore, no equitable lien was
warranted on the facts of this case.
Nor did the lien imposed on defendant’s real property in this case qualify as a judgment
lien pursuant to chapter 28 of the Revised Judicature Act, MCL 600.2801 et seq. The circuit
court expressly stated that the lien in this case was not intended as a judgment lien. Moreover,
even if the court had intended the lien to comply with the provisions of chapter 28, judgment
liens may not be foreclosed. MCL 600.2819.
We vacate the lien, which the circuit court imposed on defendant’s realty notwithstanding
the absence of an express agreement of the parties or any other legal authority. It is true that we
are generally disinclined to set aside a foreclosure and sale “in the absence of fraud, accident,
mistake, or significant irregularities.” Ypsilanti Fire Marshal, 273 Mich App at 535. In this
case, however, the irregularities were substantial.
They were not “‘mere technical
irregularities,’” as have been found in other cases. Carpenter v Smith, 147 Mich App 560, 568;
383 NW2d 248 (1985), quoting Madill v Michigan Nat’l Bank, 302 Mich 251, 255; 4 NW2d 538
(1942). Instead, the irregularities at issue here were fundamental defects that went to the very
validity of the purported lien itself. In short, the lien granted in favor of the receiver in this case
a judgment for the receiver in the proper amount.
was entirely unauthorized by law. And because the lien was void, “there was nothing upon
which foreclosure proceedings could operate.” Fox v Martin, 287 Mich 147, 153; 283 NW 9
(1938). We set aside the foreclosure and sale, and vacate the circuit court’s order confirming the
sale as well.13
Plaintiff next argues that the circuit court erred by granting attorney fees to plaintiff. We
We generally review for an abuse of discretion a circuit court’s grant of attorney fees.
Findings of fact on which the court bases its award of attorney fees are reviewed for clear error;
questions of law are reviewed de novo. Stallworth v Stallworth, 275 Mich App 282, 288; 738
NW2d 264 (2007). An abuse of discretion occurs when the court’s decision falls outside the
range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.
“Michigan adheres to the general rule that attorney fees are not recoverable, either as an
element of costs or as an item of damages, unless expressly authorized by statute, court rule, or a
recognized exception.” Brooks v Rose, 191 Mich App 565, 574-575; 478 NW2d 731 (1991).
However, “‘[r]ecovery has been allowed in limited situations where a party has incurred legal
expenses as a result of another party’s fraudulent or unlawful conduct.’” Spectrum Health v
Grahl, 270 Mich App 248, 253; 715 NW2d 357 (2006), quoting Brooks, 191 Mich App at 575.
Plaintiff was forced to incur substantial costs and attorney fees to prosecute this matter, which
originally arose out of defendant’s illegal and egregious discharge of raw sewage into a public
After the circuit court determines a new and corrected judgment amount on remand, the
receiver will first be required to attempt to execute that judgment against defendant’s personalty.
MCL 600.6004. The receiver will then be permitted to execute against defendant’s realty, in
accordance with the provisions of chapter 60 of the Revised Judicature Act, but “only after
execution has been made against the personal property of the judgment debtor that is in the
county, and such personal property is insufficient to meet the sum of money and costs for which
judgment was rendered.” Id. Any such execution against defendant’s realty must conform
exactly to the law governing the enforcement of judgments and may not proceed under the novel
and erroneous “foreclosure” procedure concocted by the receiver and the receiver’s attorneys.
For instance, in the case of execution against defendant’s realty, defendant must be afforded the
right of redemption. MCL 600.6062. Also, in the case of execution against defendant’s realty,
any surplus proceeds remaining after satisfaction of the judgment must be paid over to
defendant. MCL 600.6044. We are aware that property in custodia legis is not generally subject
to execution. Jensen v Oceana Circuit Judge, 194 Mich 405, 411; 160 NW 620 (1916); see also
27 Michigan Law & Practice, Remedies, § 23, p 194. However, the receivership in this case has
been terminated, and defendant’s property therefore will no longer be in custodia legis at the
time of any future execution against it.
storm drain. The matter then continued when defendant flaunted the circuit court’s orders
requiring him to clean up and remediate the contaminated areas on his property, and when he
refused to bring his buildings into compliance with applicable local ordinances. Plaintiff
incurred substantial legal expenses as a result of defendant’s unlawful conduct. Spectrum
Health, 270 Mich App at 253. We cannot conclude that the circuit court’s award of attorney fees
for plaintiff fell outside the range of reasonable and principled outcomes. Maldonado, 476 Mich
Defendant lastly suggests that his continued dispossession after the dissolution of the
receivership constituted an unconstitutional taking of private property. But as plaintiff points out
in its brief on appeal, defendant has failed to brief the merits of this issue and has cited no
authority in support of his assertion. An appellant may not simply announce a position on appeal
and leave it to this Court to rationalize the basis for that claim. Wilson v Taylor, 457 Mich 232,
243; 577 NW2d 100 (1998). Defendant’s failure to properly address the merits of his assertion
of error constitutes an abandonment of this issue on appeal. MCR 7.212(C)(7); Yee v
Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
We affirm the circuit court’s order declaring Eastern Highlands to be a public nuisance.
The discharge of raw sewage and the fire code violations at Eastern Highlands endangered the
public health, safety, and welfare. We similarly affirm the circuit court’s appointment of a
receiver to oversee and implement the process of nuisance abatement. Finally, we affirm the
circuit court’s specific award of costs and attorney fees for plaintiff, and we affirm the circuit
court’s approval of the initial $150,401.82 in expenses incurred by the receiver.
We vacate the circuit court’s approval of the remaining $1,552,078.88 in expenses
incurred by the receiver. We also vacate the circuit court’s order allowing the receiver to charge
a 25 percent markup on all labor, materials, and supplies. Finally, we vacate the lien imposed
against defendant’s real property, set aside the foreclosure and sale, and vacate the circuit court’s
order confirming the sale.
On remand, the circuit court shall (1) redetermine which property maintenance code
violations constituted actual nuisance conditions at Eastern Highlands (i.e., separate the minor
property maintenance code violations from those that actually endangered the general health,
safety, or welfare)15 and (2) determine whether the expenses of abating these actual nuisance
Defendant also appears to argue that the circuit court erred by granting costs for plaintiff.
However, defendant has failed to brief this argument and has accordingly abandoned the issue on
appeal. MCR 7.212(C)(7); Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651
NW2d 756 (2002).
As noted previously, what constitutes a nuisance in fact is a question of fact. Brown, 337
Mich at 689. The establishment of a nuisance in fact generally requires some proof that a
conditions were reasonable and justified.16 After this is completed, the circuit court shall
calculate a new and corrected judgment amount, which shall include only (1) the initial
$150,401.82 in expenses incurred by the receiver, (2) any reasonable expenses of cleanup and
remediation of raw sewage contamination that were not included in the initial $150,401.82, (3)
any reasonable expenses incurred to abate actual fire code violations that were not included in
the initial $150,401.82, (4) any reasonable and justified expenses of abating those property
maintenance code violations that constituted actual nuisance conditions, (5) other necessary and
reasonable amounts paid by the receiver for maintaining the property between January 1, 2006,
and the date of the judicial sale, such as taxes and utility costs, and (6) reasonable compensation
for the receiver in an amount less than the 25 percent markup that was initially permitted. Once
the new and corrected judgment amount is calculated, the judgment may be collected on
execution according to the proper methods only.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs under MCR 7.219, neither party having
prevailed in full.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
condition is dangerous to human life or that it otherwise imperils the general health, safety, or
welfare. See Bronson, 188 Mich App at 684.
We wish to make clear that the circuit court will not necessarily need to take new evidence on
remand in order to comply with our directives. The circuit court “may utilize evidence and
testimony already in the record and it need not duplicate such evidence and testimony.”
Ypsilanti Fire Marshal v Kircher, 480 Mich 910 (2007).