DAVID KEENA V NICO MORIC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
DAVID KEENA, Individually and on behalf of
VIPER ENTERPRISES, L.L.C.,
UNPUBLISHED
May 18, 2004
Plaintiffs-Appellants,
V
No. 246313
Macomb Circuit Court
LC No. 01-005286-CH
NICO MORIC,
Defendant,
and
ROBERT J. FATTORE, Individually and on behalf
of SALIS REAL ESTATE, L.L.C.,
Defendants-Appellees.
Before: Saad, P.J., and Sawyer and Fort Hood, JJ.
PER CURIAM.
Plaintiffs appeal an order resolving post-closing issues in this action for specific
performance of the sale of land owned by defendant Moric to plaintiffs, and we affirm.
Plaintiffs argue that the trial court erred in dismissing all counts of plaintiffs’ complaints
when the parties agreed to dismiss only the specific performance count of the complaint.
Interpretation of unambiguous and unequivocal contracts is a question of law and questions of
law are reviewed de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29,
32; 658 NW2d 139 (2003); Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994).
Courts speak through written orders. Rinas v Mercer, 259 Mich App 63, 71; 672 NW2d 542
(2003). Judgments entered by the court pursuant to an agreement of the parties are of the nature
of a contract, and are to be construed and applied as such. Gramer, supra at 125. Absent a
showing of fraud or duress, the trial court acts properly when it enforces such agreements. Id.
Plaintiffs argue that the parties agreed to dismiss only the specific performance count of
the six-count complaint upon the successful closing on the subject property. Plaintiffs state that
while the language of the November 27, 2002, consent order indicated that plaintiffs’ complaint
would be dismissed except for “those issues referenced below” and while the order did not
-1-
specifically articulate what the “issues referenced below” were which remained to be decided
after the closing, the language of the order was broad enough so that the parties understood it to
mean that the remaining five counts of plaintiffs’ complaint (unjust enrichment, fraud, innocent
misrepresentation, retaliatory eviction and tortious interference with contractual relations) were
still extant.
However, at the hearing on August 27, 2002, defendants’ attorney stated that he
understood the settlement to mean that once the closing on the subject property took place “all
claims in the lawsuit are resolved with the only exception being . . . certain expenses such as
environmental report and other matters” relating to the contract and the tenancy. Plaintiff Keena
was then sworn in and testified that he understood the settlement agreement and accepted it.
Further, the order embodying the settlement agreement clearly stated that plaintiffs’ complaint
was to be dismissed in its entirety with prejudice upon the closing of the sale of the property save
for the “issues referenced below” and there was no reference “below” to counts II through VI of
plaintiffs’ complaint. The only issues mentioned were expenses regarding the environmental
reports and matters “relating to the litigation and tenancy.” Finally, at the hearing on the entry of
the order, plaintiffs objected to some provisions of the order, but never objected to or asked for
clarification of the language which stated that plaintiffs’ complaint was to be dismissed in its
entirety upon the closing of the sale of the property.
Because a court speaks through its orders, the language of the order controls. There is no
dispute that the parties closed on the sale of the property. Therefore, according to the plain
language of the order, plaintiffs’ complaint was dismissed with prejudice except for the issues
relating to litigation and tenancy, including, but not limited to, allocating responsibility for costs
relating to environmental studies, reports and assessments as well as payment of rent and taxes.
And these issues, including the allocation of the costs of the baseline environmental assessment
(BEA) and other environmental studies, attorney fees, back rent and taxes, etc., were decided at a
later hearing. Accordingly, we hold that the trial court did not err in dismissing plaintiffs’
complaint and enforcing the consent order as written.
Plaintiffs assert that they were denied due process in that they did not have notice of the
hearing during which the trial court resolved the outstanding issues in the case and that they did
not have an opportunity to be heard on their claims for damages. The determination whether a
party has been afforded due process is a question of law subject to de novo review on appeal. In
re Carey, 241 Mich App 222, 225-226; 615 NW2d 742 (2000). Due process generally requires
notice and an opportunity to be heard. Dusenberry v US, 534 US 161, 167; 122 S Ct 694; 151 L
Ed 2d 597 (2002); In re Adams Est, 257 Mich App 230, 234; 667 NW2d 904 (2003). Notice
must be reasonably calculated to apprise interested parties of the pendency of the action and
must afford them an opportunity to present objections. Dusenberry, supra, 534 US 168;
Vincencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 504; 536 NW2d 280 (1995).
Generally, due process in civil cases requires notice of the nature of the proceedings, Van
Slooten v Larsen, 410 Mich 21, 53; 299 NW2d 704 (1980); In re Juvenile Commitment Costs,
240 Mich App 420, 440; 613 NW2d 348 (2000), and an opportunity to be heard in a meaningful
time and manner, In re Costs, supra at 440. The opportunity to be heard does not require a full
trial-like proceeding, but requires a hearing to the extent that a party has a chance to know and
respond to the evidence. Westland Convalescent Center v BCBSM, 414 Mich 247, 270-271; 324
-2-
NW2d 851 (1982) (Fitzgerald, J.); Traxler v Ford Motor Co, 227 Mich App 276, 288; 576
NW2d 398 (1998).
At the hearing on defendants’ motion to enter an order embodying the settlement
agreement between the parties, the trial court notified the attorneys for both parties on the record
that there would be a court hearing on December 9, 2002, to determine the remaining issues
involved in the case. And, the remaining issues in the case were defined in the consent order of
November 27, 2002, as allocating responsibility for costs relating to environmental studies,
reports and assessments as well as payment of rent and taxes. Plaintiffs received notice of the
hearing date and were adequately apprised of the subject matter.
Plaintiffs were also given an opportunity to be heard. Plaintiffs argue that they had no
opportunity to submit evidence on their damage claims. However, the order entered on
December 9, 2002, clearly stated that the parties had presented all outstanding issues in the case
to the court, that the court heard oral argument and reviewed documents presented by the parties.
The parties submitted bills from the company that conducted the BEA, and a copy of the original
asset purchase agreement. Further, plaintiffs’ counsel was provided with an opportunity to speak
and present his claims for damages. The nature of the argument was such that the amount of
damages and evidence supporting the amount of the damages was not at issue. The issue
decided by the court was whether such damages were allowable where the parties had reached a
consent agreement on the claim of specific performance, dismissed the remaining claims and
plaintiffs had successfully closed on the property.1 We hold, therefore, that plaintiffs were
presented with an adequate opportunity to be heard considering the nature of the issues to be
decided by the court.
Plaintiffs also assert that the trial court erred in allocating the cost of the BEA done on
the property equally between plaintiffs and defendants. Actions to determine interests in land are
equitable in nature and are thus reviewed de novo. Slatterly v Madiol, 257 Mich App 242, 248;
668 NW2d 154 (2003). Plaintiffs argue that the trial court erred when it allocated the cost of the
environmental assessment equally between the parties when the purchase agreement provided
that the cost of any environmental audit was a shared expense up to $4,000, with anything
beyond that to be paid by defendant Moric. However, in the absence of any evidence from
plaintiffs establishing that a BEA is an environmental audit within the meaning of the purchase
agreement, and taking into account plaintiffs’ counsel’s agreement on the record that a BEA was
needed to resolve the dispute and was to both parties’ benefit, the trial court’s division of the cost
of the BEA between the parties was equitable and not in error. Moreover, during the settlement
hearing, both parties agreed to share the costs of the BEA equally. For these reasons, we hold
that the trial court did not err in allocating the cost of the BEA equally between the parties.
Plaintiffs further maintain that the trial court erred when it denied plaintiffs’ motion for
reconsideration. We find that the trial court did not err because plaintiffs’ motion for
1
The trial court was clearly familiar with the issue of damages and the parties’ positions, having
conducted seven settlement/status conferences and having reviewed defendants’ motion for
summary disposition and plaintiffs’ response.
-3-
reconsideration did not demonstrate any error by which the trial court was misled, but simply
questioned the trial court’s reasoning and decisions regarding the issues already disposed of by
the court and presented claims that were not pled by plaintiffs and so not properly before the
court. Therefore, the trial court did not abuse its discretion in denying plaintiffs motion for
reconsideration. MCR 2.119(F)(3); Herald Co, Inc v Tax Tribunal, 258 Mich App 78, 82; 669
NW2d 862 (2003).
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
