REGINA WOLVERTON V CASS COUNTY TREASURER
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STATE OF MICHIGAN
COURT OF APPEALS
REGINA WOLVERTON,
UNPUBLISHED
January 18, 2011
Plaintiff-Appellant,
v
CASS COUNTY TREASURER and EDWARD
CLARK COBB,
No. 296002
Cass Circuit Court
LC No. 09-000758-CH
Defendants-Appellees.
Before: MARKEY, P.J., and ZAHRA and DONOFRIO, JJ.
PER CURIAM.
Plaintiff, Regina Wolverton, appeals as of right the trial court’s grant of summary
disposition in favor of defendants, Cass County Treasurer Linda Irwin and Edward Clark Cobb
in the action for title to real property. Because the trial court lacked jurisdiction in the matter,
plaintiff’s due process rights were not violated, and the trial court was not biased, we affirm.
I. Substantive Facts
This case concerns property located at 101 Grove Street, Dowagiac, Michigan (“the
property”). Cass County foreclosed on the property for back taxes pursuant to MCL 211.78h and
MCL 211.78k via a court order dated February 9, 2009. The owner of record at that time was
Wells Fargo Bank and as a result, that is the entity to which Cass County sent notices regarding
the foreclosure. A review of the Cass County recorder’s records indicates that on February 24,
2009, Wells Fargo Bank transferred the property to Blue Spruce Entities and then, on the same
day, Blue Spruce Entities transferred the property to Go Invest Wisely, LLC, (“GIW”). Both
transactions were accomplished via quit claim deed and were recorded with the Cass County
Register of Deeds. Thereafter, GIW attempted to transfer the property to plaintiff via quitclaim
deed on March 25, 2009 after receiving plaintiff’s payment in the amount of $16,500. When
plaintiff attempted to record the deed, the Cass County recorder’s office would not accept the
deed for recording as a result of the foreclosure. Plaintiff presents no evidence on what date she
attempted to record the deed. However, March 31, 2009 was the date the fee simple title to the
property vested absolutely in Cass County pursuant to the February 9, 2009 order and MCL
211.78k and any redemption period expired. The Cass County recorder’s records indicate that
the Judgment of Foreclosure was recorded on April 2, 2009 and therefore defendant Cass County
Treasurer took title to the property. On August 28, 2009, defendant Cobb was the highest bidder
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on the property during the annual tax foreclosure sale held in Cass County. As a result,
defendant Cass County Treasurer transferred the property via quitclaim deed to defendant Cobb
on September 14, 2009 and defendant Cobb recorded the deed on September 18, 2009.
II. Procedural History
On September 21, 2009, plaintiff filed a complaint in the Cass Circuit Court seeking a
determination that she “owns absolutely and is entitled to quiet and personal possession of the
property.” Plaintiff further sought a determination that “Defendant Edward Clark Cobb and all
persons claiming under him have no estate, right, title, lien, or interest in or to said premises, and
that title to the property be quieted in [plaintiff] against claims of Defendant Edward Clark Cobb
and all persons claiming under him.”
Plaintiff alleges that she purchased the property from GIW, a Utah limited liability
company registered to do business in Michigan. Plaintiff claimed that she provided GIW
$16,500 on March 19, 2009 and in return received via overnight courier, a quitclaim deed
purporting to transfer the property from GIW to plaintiff on March 25, 2009. When plaintiff
attempted, on April 20, 2009, to record the quitclaim deed, the Cass County recorder would not
accept or record the deed because it was not in recordable form.1 Plaintiff alleges that shortly
thereafter Cass County notified her that she was trespassing on the property because “the
property had been foreclosed upon for back taxes[.]”
In her complaint, plaintiff claims that she contacted GIW and informed it about the
outstanding tax issues related to the property. In an affidavit attached to plaintiff’s complaint,
Brad Hess, an owner and principal of GIW, averred that GIW acquired the property from Blue
Spruce Entities by way of quitclaim deed and had no knowledge of back taxes due.2 Hess
averred that GIW contacted defendant Cass County Treasurer to determine the amount of the
back taxes outstanding and to attempt to pay the tax balance due. Hess claimed that GIW was
informed that back taxes could not be paid because a Judgment of Foreclosure had already been
placed on the property. Hess also claimed that GIW told defendant Cass County Treasurer that
GIW had never received any notices regarding back taxes. Hess stated that defendant Cass
County Treasurer informed GIW that “all notices were sent to Wells Fargo before the property
was conveyed to GIW and that Wells Fargo accepted the certified mail regarding the back
taxes.”
1
At oral argument on appeal, plaintiff’s counsel provided the date of the attempted recording as
April 20, 2009. We note that her attempt to record the deed was subsequent to the county
obtaining fee simple title on March 31, 2009.
2
Hess averred that GIW has sought a refund for its purchase of the property from Blue Spruce
Entities but Blue Spruce Entities denied fault or liability since it sold the property to GIW via a
quitclaim deed.
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Defendant Cass County Treasurer answered plaintiff’s complaint on October 1, 2009. In
her answer, defendant Cass County Treasurer stated that the property had been foreclosed for
unpaid taxes and was properly sold at the annual tax foreclosure sale to defendant Cobb.
Defendant Cass County Treasurer also filed affirmative defenses including: that the circuit court
lacked jurisdiction to determine the issues raised in plaintiff’s complaint; plaintiff failed to state a
cause of action upon which relief may be granted; plaintiff did not hold any interest of record in
the real property and as such was not entitled to notice of the foreclosure sale; and finally that
plaintiff was not entitled to notice of the foreclosure sale pursuant to MCL 211.78i.
Defendant Cobb answered plaintiff’s complaint on November 12, 2009 alleging that he
was the sole owner and holder of sole title to the subject property. Defendant Cobb attached a
copy of a quit claim deed transferring ownership of the subject property from defendant Cass
County Treasurer to defendant Cobb for the sum of $9,100 on September 14, 2009. It appears
that the deed was recorded on September 18, 2009. Defendant Cobb also referenced and
attached a copy of the actual order foreclosing on the subject property entitled “Judgment of
Foreclosure - 2006 and Prior Years Real Property Taxes,” dated February 9, 2009, and signed by
Cass Circuit Court Presiding Judge Michael E. Dodge.
On October 19, 2009, defendant Cass County Treasurer filed a motion for summary
disposition pursuant to MCR 2.116(C)(4) for the reason that the circuit court lacked jurisdiction
over plaintiff’s complaint because MCL 211.78l(2) vests exclusive and original jurisdiction in
the Michigan Court of Claims for any action to recover money damages for lack of notice and
pursuant to MCL 211.78l(1), the exclusive remedy for a failure to receive notice in a tax
foreclosure action is an action to recover money damages. Plaintiff answered on November 9,
2009, arguing that the circuit court had jurisdiction in the matter because circuit courts have
jurisdiction to decide constitutional issues surrounding tax forfeitures. Plaintiff also argued that
her property rights to the subject property were taken without due process of law.
On November 12, 2009, defendant Cobb filed his motion for summary disposition
making the same arguments that defendant Cass County Treasurer advanced. Plaintiff answered
on November 30, 2009, arguing once again that the circuit court had jurisdiction in the matter
because circuit courts have jurisdiction to decide constitutional issues surrounding tax
forfeitures. Plaintiff also argued that her property rights to the subject property were taken
without due process of law.
The circuit court granted defendant Cass County Treasurer’s motion for summary
disposition on November 25, 2009 stating as follows:
Well looking at plaintiff’s pleadings and taking judicial notice of the
judgment foreclosure file, 08-386 CH, which verifies that the judgment of
foreclosure entered on the 9th February of 2009, and looking at the plaintiff’s
complaint where she indicates she acquired the property subsequent to that in
March of ’09, as sad as this case apparently is the Court finds that it does not have
subject matter jurisdiction; therefore grants summary disposition under
2.116(C)(4). I agree with the defendant’s position, the defendant, Linda Irwin,
the Cass County Treasurer’s position that there is no due process violation that
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Regina Wolverton can advance here. Consequently, the motion for summary
disposition is granted under (C)(4) for lack of subject matter jurisdiction.
The circuit court also granted defendant Cobb’s motion for summary disposition on December
14, 2009 stating:
I do not need any further argument on the matter. The Court has patiently
listened to the arguments on both sides; however this is the same issue the Court
has previously ruled on with regard to Linda Irwin, the Cass County Treasurer’s
motion for summary disposition, which the Court granted.
This does present the same issues, that is, whether or not Mr. Cobb is
entitled to summary disposition for the same reasons, I granted it with regard to
the Cass County Treasurer, and whether he’s entitled to an order quieting title in
the property in his name since he purchased it as a result of a foreclosure.
First of all, the Court did rule previously that it lacked jurisdiction under
2.114(C)(4), and that’s because the property had been properly foreclosed upon
pursuant to Michigan statute. Mr. Cobb has cited that correctly, 211.78(A) says
that if under 78k, that same statute, the Court had entered a judgment of
foreclosure, then the only remedy was an action in the Court of Claims for money
damages. They could not properly bring an action for possession.
Now, in doing so I did take judicial notice of the foreclosure file, which
the Court is allowed to take judicial notice of its files and records in making a
determination as to whether or not proper notice to the record owner at the time,
the person with the ownership interest had been notified, and the Court could
determine from that file there had been notice. Now when Ms. Wolverton
challenges that notice, the problem with that is, as I ruled last time, she doesn’t
have standing to raise that because prior to February 9th she had no ownership
interest. The county had no obligation to notify her with constitutional due
process. Because she took a quit-claim deed after February 9th she has no
standing to raise that issue.
Once again consistent with my earlier ruling I grant summary disposition
under (C)(4). The Court no longer has jurisdiction to entertain this claim by Ms.
Wolverton, and she has no standing to advance it herself for that reason, because
of her after-acquired interest.
Further, the Court will grant the motion to quiet title. That’s consistent
with the summary disposition rulings both with regard to the county treasurer and
with regard to Mr. Cobb. He now holds title to the property having validly
purchased it at the foreclosure sale.
The circuit court denied plaintiff’s motion for reconsideration of both summary disposition
orders on December 23, 2009. Plaintiff now appeals as of right.
III. Standard of Review
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This Court reviews de novo a trial court’s grant of summary disposition. Smith v Globe
Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). “This Court reviews a trial court’s grant
of summary disposition pursuant to MCR 2.116(C)(4) ‘to determine if the moving party was
entitled to judgment as a matter of law, or if affidavits or other proofs demonstrate there is an
issue of material fact.’” Genesis Center, PLC v Financial and Ins Services Com’r, 246 Mich App
531, 540; 633 NW2d 834 (2001), quoting Harris v Vernier, 242 Mich App 306, 309; 617 NW2d
764 (2000).
IV. Analysis
Plaintiff first argues on appeal that the trial court committed reversible error when it took
judicial notice of its own records and concluded that it did not have jurisdiction over the matter.
The existence of jurisdiction is a question of law, which this Court reviews de novo on appeal.
Trostel, Ltd v Treas Dep’t, 269 Mich App 433, 440; 713 NW2d 279 (2006).
A. Judicial Notice
“[A] circuit judge may take judicial notice of the files and records of the court in which
he sits.” Knowlton v City of Port Huron, 355 Mich 448, 452; 94 NW2d 824 (1959); see also
People v Sinclair, 387 Mich 91, 103; 194 NW2d 878 (1972). MRE 201 states as follows in
pertinent part:
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts, and
does not preclude judicial notice of legislative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or
not, and may require a party to supply necessary information.
(d) Opportunity to Be Heard. A party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice and the tenor
of the matter noticed. In the absence of prior notification, the request may be
made after judicial notice has been taken.
(e) Time of Taking Notice. Judicial notice may be taken at any stage of the
proceeding.
It is undisputed that Judge Michael E. Dodge, Presiding Judge of the Cass Circuit Court presided
over the foreclosure proceedings on the subject property that form the basis of this case and
signed the judgment of foreclosure on February 9, 2009. Judge Dodge also presided over the
instant case. Therefore, the trial court properly took judicial notice of its own records including
the contents of the foreclosure file. Knowlton, 355 Mich at 452; Sinclair, 387 Mich at 103; MRE
201.
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B. Jurisdiction
“Jurisdiction is a court’s power to act and its authority to hear and decide a case.”
Riverview v Sibley Limestone, 270 Mich App 627, 636; 716 NW2d 615 (2006). “The circuit
court possesses ‘broad original jurisdiction over all matters, particularly civil, so long as
jurisdiction is not expressly prohibited by law.’” Derderian v Genesys Health Sys, 263 Mich
App 364, 375; 689 NW2d 145 (2004), quoting Campbell v St John Hosp, 434 Mich 608, 613;
455 NW2d 695 (1990). However, circuit courts do not have jurisdiction to hear civil claims or
remedies over which the constitution or a statute confers exclusive jurisdiction on another court.
Ammex, Inc v Treasury Dep’t, 272 Mich App 486, 494; 726 NW2d 755 (2006), citing MCL
600.601 and MCL 600.605. MCL 211.78l provides as follows in pertinent part:
(1) If a judgment for foreclosure is entered under section 78k and all existing
recorded and unrecorded interests in a parcel of property are extinguished as
provided in section 78k, the owner of any extinguished recorded or unrecorded
interest in that property who claims that he or she did not receive any notice
required under this act shall not bring an action for possession of the property
against any subsequent owner, but may only bring an action to recover monetary
damages as provided in this section.
(2) The court of claims has original and exclusive jurisdiction in any action to
recover monetary damages under this section.
It is undisputed that Cass County foreclosed on the subject property for unpaid taxes pursuant to
MCL 211.78k. MCL 211.78l(1) and (2) are plain that in foreclosure cases under MCL 211.78k,
where a plaintiff brings suit claiming he or she did not have notice of the foreclosure, such as
here, the “court of claims has original and exclusive jurisdiction[.]” Thus, clearly, the Cass
County Circuit Court did not have jurisdiction to hear and decide the instant case because the
court of claims had exclusive jurisdiction over this action. MCL 211.78l(1) and (2). The trial
court did not err when it granted summary disposition to both defendants for want of jurisdiction.
C. Notice
Next, plaintiff argues that she received insufficient notice of the foreclosure proceedings
and thus her due process rights were violated. Plaintiff failed to raise this issue in her statement
of questions presented in her brief on appeal, thus the issue is waived. English v Blue Cross, 263
Mich App 449, 459; 688 NW2d 523 (2004). Nevertheless, were we to review this issue, we
would not find error. Pursuant to MCL 211.78i, Cass County was required to identify the owner
of the property and notify the owner of the foreclosure proceedings by certified mail. MCL
211.78i(2). Cass County was also required to personally visit the property and notify the
occupant of the foreclosure proceedings. MCL 211.78i(3)(b). Finally, if an owner is not
identified, notice by publication is required. MCL 211.78i(5). Here, during the course of the
foreclosure proceedings on this property, Wells Fargo Bank was the owner of record of the
subject property, not plaintiff. Wells Fargo Bank was entitled to notice of the proceedings, not
plaintiff. Further, foreclosure proceedings had already concluded and the judgment of
foreclosure signed on February 9, 2009, over a month before plaintiff claims she purchased the
property from GIW. Plaintiff was not the record owner of the subject property and in fact had no
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interest in the property during the foreclosure proceedings. In other words, she was not an
identifiable owner and was not entitled to notice under MCL 211.78i. Plaintiff’s due process
rights were not violated.
D. Redemption
Plaintiff next argues that her due process rights were violated when she was prevented
from paying all delinquent property taxes in order for her to record the deed to the subject
property and obtain clear title to the property. Plaintiff specifically states in her brief on appeal
that defendant Cass County Treasurer rejected her attempt to pay the back taxes “for no
legitimate reason.” This assertion is belied by the record. MCL 211.78k(5) states as follows in
pertinent part:
The circuit court shall enter final judgment on a petition for foreclosure filed
under section 78h at any time after the hearing under this section but not later than
the March 30 immediately succeeding the hearing with the judgment effective on
the March 31 immediately succeeding the hearing for uncontested cases or 10
days after the conclusion of the hearing for contested cases. All redemption rights
to the property expire on the March 31 immediately succeeding the entry of a
judgment foreclosing the property under this section . . . . [Emphasis added.]
Plaintiff presents no evidence regarding exactly when she attempted to pay the delinquent
property taxes or when she attempted to record the quitclaim deed she received from GIW.
Pursuant to MCL 211.78k(5), any redemption rights to the property expired on March 31, 2009.
This was also clearly set out in the February 9, 2009 Judgment of Foreclosure order. In any
event, plaintiff or GIW had the opportunity to pay the outstanding taxes due before March 31,
2009, but did not do so. March 31, 2009 was the date the redemption period expired and the fee
simple title to the property vested absolutely in Cass County pursuant to the February 9, 2009
order and MCL 211.78k.
The Cass County recorder’s records indicate that the Judgment of Foreclosure was
recorded on April 2, 2009 and therefore defendant Cass County Treasurer took title to the
property. These being the record facts of the case, there is no evidence that defendant Cass
County Treasurer unlawfully prevented plaintiff from paying the outstanding taxes and fees in
violation of her due process rights. Plaintiff had an opportunity to pay the outstanding taxes and
take advantage of the redemption period, but did not do so before the statutorily imposed
deadline of March 31, 2009. MCL 211.78k(5). In other words, defendant Cass County
Treasurer indeed had a legitimate reason for rejecting plaintiff’s attempts to pay the outstanding
taxes—it was without statutory authority to accept payment of delinquent property taxes after the
expiration of the redemption period. Plaintiff has not shown error.
E. Judicial Disqualification
Finally, plaintiff argues that the judge should have been disqualified because the judge
was biased against her. Plaintiff specifically asserts that Judge Dodge was biased because he is a
circuit court judge in Cass County and defendant Irwin is the Cass County Treasurer and
defendant Cobb is a Cass County Commissioner, and therefore Judge Dodge “failed to adhere to
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the appearance of impropriety standard as set forth in Canon 2 of the Code of Judicial Conduct.”
Plaintiff did not preserve this issue by moving to disqualify the trial judge in the lower court.
Therefore, our review is limited to plain error affecting plaintiff’s substantial rights. Wolford v
Duncan, 279 Mich App 631, 637; 760 NW2d 253 (2008).
MCR 2.003 was recently amended, effective November 25, 2009, to incorporate an
“appearance of impropriety” standard as a ground for disqualification. MCR 2.003(C)(1)(b) now
provides that disqualification is warranted if a judge, “based on objective and reasonable
perceptions . . . has failed to adhere to the appearance of impropriety standard set forth in Canon
2 of the Michigan Code of Judicial Conduct.” MCR 2.003(C)(1)(b) provides:
(1) Disqualification of a judge is warranted for reasons that include, but are not
limited to, the following:
***
(b) The judge, based on objective and reasonable perceptions, has either (i) a
serious risk of actual bias impacting the due process rights of a party as
enunciated in Caperton v Massey, ___ US ___; 129 S Ct 2252; 173 L Ed 2d 1208
(2009), or (ii) has failed to adhere to the appearance of impropriety standard set
forth in Canon 2 of the Michigan Code of Judicial Conduct.
When we apply the “appearance of impropriety” standard in reviewing plaintiff’s claim,
no basis for relief is apparent. Plaintiff admits in her brief that she has “no direct evidence that
there is any impropriety between the trial court and either [defendant].” Plaintiff instead
contends that the manner in which she was treated supports the appearance of impropriety as a
result of the trial court’s rulings against her. As explained in In re Contempt of Henry, 282 Mich
App 656, 679; 765 NW2d 44 (2009):
The mere fact that a judge ruled against a litigant, even if the rulings are later
determined to be erroneous, is not sufficient to require disqualification or
reassignment. Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich
App 496, 554; 730 NW2d 481 (2007). “[J]udicial rulings, in and of themselves,
almost never constitute a valid basis for a motion alleging bias, unless the judicial
opinion displays a “‘deep-seated favoritism or antagonism that would make fair
judgment impossible’” and overcomes a heavy presumption of judicial
impartiality.” Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 597; 640
NW2d 321 (2001) (citations omitted).
Although these statements were made in the context of discussing the “actual bias” standard in
former MCR 2.003(B)(1), adverse rulings, standing alone, likewise do not serve as “objective
and reasonable perceptions” that a judge “has “failed to adhere to the appearance of impropriety
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standards set forth in Canon 23 of the Michigan Code of Judicial Conduct.” Plaintiff has not
shown plain error.
V. Conclusion
Because the trial court lacked jurisdiction in the matter, plaintiff’s due process rights
were not violated, and the trial court was not biased, we affirm. Because defendants prevail, they
may tax costs pursuant to MCR 7.219.
Affirmed. As the prevailing parties, defendants may tax costs. MCR 7.219(A).
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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Canon 2 of the Code of Judicial Conduct requires a judge to “accept restrictions on conduct that
might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
Canon 2 also requires a judge to “promote public confidence in the integrity and impartiality of
the judiciary,” to avoid family, social, and other personal relationships to influence judicial
conduct or judgment, and to avoid allowing organizational memberships “to cast doubt on the
judge’s ability to perform the function of the office in a manner consistent with the Michigan
Code of Judicial Conduct, the laws of this state, and the Michigan and United States
Constitutions.”
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