IMPERIAL CONSTRUCTION COMPANY INC V INDEPENDENT BANK
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STATE OF MICHIGAN
COURT OF APPEALS
IMPERIAL CONSTRUCTION COMPANY,
INC.,
UNPUBLISHED
March 17, 2011
Plaintiff/CounterDefendant/Appellant,
v
No. 295728
Oakland Circuit Court
LC No. 2008-095447-CH
INDEPENDENT BANK,
Defendant/CounterPlaintiff/Appellee.
Before: CAVANAGH, P.J., and JANSEN and SERVITTO, JJ.
PER CURIAM.
Plaintiff/counter-defendant/appellant appeals as of right the order of the trial court
dismissing, by stipulation of the parties, the counterclaim of defendant/counter-plaintiff/appellee.
On appeal, plaintiff seeks reversal of the trial court’s order granting defendant’s motion for
summary disposition of the complaint, pursuant to MCR 2.116(C)(10), and its order granting
partial summary disposition in favor of defendant on defendant’s counterclaim, also pursuant to
MCL 2.116(C)(10). We affirm.
This case arises from a dispute between the parties concerning the priority of their
competing interests in real property. Plaintiff performed construction on the property, apparently
pursuant to a contract with the developer, and recorded construction liens in 2004. In 2005, it
filed a lien foreclosure action, which resulted in a January 11, 2006, default judgment, declaring
plaintiff’s lien recorded December 13, 2004, to be valid and superior to all other interests, if any.
Not named to the 2005 foreclosure action, however, was defendant, Independent Bank,
Whispering Wood’s mortgage lender. Independent Bank had recorded a construction mortgage
on the property on July 21, 2004.
After entry of the default judgment, the parties engaged in discussions concerning a
settlement. The settlement agreement provided for payment by Whispering Woods to plaintiff in
the amount of $85,000. The payment was to be paid in 6 monthly installments, beginning when
the agreement was signed. The settlement agreement provided that if the payments were not
made in accordance with the agreement, the result would be immediate foreclosure of plaintiff’s
lien at set forth in the January 11, 2006 judgment.
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The settlement agreement also provided that plaintiff would subordinate its lien rights to
Independent Bank. Attached to the settlement agreement was a “Debt and Lien Subordination
Agreement” setting forth the subordination. This document was signed by plaintiff, Whispering
Woods, and Independent Bank. After receiving some of the payments from Whispering Woods,
plaintiff executed the “Debt and Lien Subordination Agreement.” It thereafter received no
payments from Whispering Woods.
Plaintiff thereafter proceeded to foreclose on the property. At a January 23, 2007
sheriff’s sale conducted pursuant to the January 11, 2006 default judgment in favor of plaintiff,
plaintiff purchased a portion of the property (units 1, 4, 5, and 11 through 18, inclusive). The
same portion of the property was subsequently sold, and purchased by defendant, at a December
18, 2007 sheriff’s sale.
Plaintiff initiated the instant action on October 21, 2008. Plaintiff sought to have the
December 18, 2007 sheriff’s deed set aside on grounds that the sale was defective because it did
not comply with certain statutory provisions. Plaintiff also sought to have the “Debt and Lien
Subordination Agreement” rescinded on the basis that Independent Bank had engaged in fraud in
procuring the agreement and further sought a declaration that plaintiff’s lien is not only valid, but
prior and superior to Independent’s Bank’s interest in the subject property. Independent Bank
moved for summary disposition pursuant to MCR 2.116 (C)(10), asserting that there were no
defects in the December 18, 2007 sheriff’s sale and that plaintiff failed to properly allege a fraud
action or provide any other basis for rescinding the subordination agreement. The trial court
granted Independent Bank’s motion.
We review a trial court’s decision to grant a motion for summary disposition de novo.
Brown v Brown, 478 Mich 545, 551; 739 NW2d 313 (2007). “We review a motion brought
under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party. Summary
disposition is appropriate if there is no genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law.” Id. at 551-552 (footnotes omitted.) We review
issues of statutory construction de novo as questions of law. City of Taylor v Detroit Edison Co,
475 Mich 109, 115; 715 NW2d 28 (2006). The proper interpretation of a contract is also
reviewed de novo as a question of law. Kloian v Domino’s Pizza LLC, 273 Mich App 449, 452;
733 NW2d 766 (2006).
Plaintiff’s first argument on appeal is that the December 18, 2007 sale violated MCL
600.3224. We disagree.
MCL 600.3224 provides:
If the mortgaged premises consist of distinct farms, tracts, or lots not occupied as
1 parcel, they shall be sold separately, and no more farms, tracts, or lots shall be
sold than shall be necessary to satisfy the amount due on such mortgage at the
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date of the notice of sale, with interest and the cost and expenses allowed by law
but if distinct lots be occupied as 1 parcel, they may in such case be sold
together.1 [Footnote added.]
As this Court explained in Sweet Air Inv, Inc v Kenney, 275 Mich App 492, 497-498, 500; 739
NW2d 656 (2007):
This Court has stated that MCL 600.3224 is mandatory rather than
discretionary. Cox v Townsend, 90 Mich App 12, 15; 282 NW2d 223 (1979).
The proper inquiry in determining if the property consists of one parcel is
whether, at the time of the foreclosure sale, the property was “held, treated,
occupied or used” as one parcel. Id. at 16. MCL 600.3224 does not require that
the parcels be sold separately when doing so would be arbitrary or impractical.
Cox, [275 Mich App] at 18, citing Grand River Avenue Christian Church v
Berkshire Life Ins Co, 254 Mich 480; 236 NW 881 (1931). Further, this Court
has stated that “[w]hen land is mortgaged as a single parcel, it may be sold as
such.” Cox, [275 Mich App] at 17, citing Dunn v Fish, 46 Mich 312; 9 NW 429
(1881). Finally, the mortgagor has the burden of proof in establishing that the lots
were not occupied as one parcel. Cox, [275 Mich App] at 16.
***
The caselaw clearly establishes that Michigan courts have interpreted MCL
600.3224 to require the sale of individual parcels of property covered under a
single mortgage only when those parcels are in fact physically separated and not
interconnected or integrated in their use or occupancy.
In this case, the parties provided the trial court with very little evidence on which to base
its decision on summary disposition. Neither the complaint nor the parties’ briefs in support of
and in opposition to defendant’s motion for summary disposition attached any evidence
concerning the use of the property at the time of the sale. Because MCL 600.3224 requires that
mortgaged premises consisting of distinct lots be sold separately only when the lots are “not
occupied as 1 parcel,” the parcels were covered by a single mortgage, and it was plaintiff’s
burden to establish that the lots were not occupied as one parcel, Sweet Air, 275 Mich App at
1
MCL 600.3208 appears in Chapter 32 of the Revised Judicature Act, which pertains to
“Foreclosure of Mortgages by Advertisement.” The December 18, 2007, foreclosure sale was
apparently conducted in accordance with Chapter 32, in particular MCL 600.3208, which
provides for notice of foreclosure by publication and posting. According to the December 18,
2007, sheriff’s deed, “a notice was duly published and a copy thereof was duly posted in a
conspicuous place upon the premises . . . .”
-3-
498; Cox, 90 Mich App at 16, the trial court did not err in concluding that MCL 600.3224 did not
require the sale of the lots as separate parcels.
In addition, the mortgage contains a waiver of rights under MCL 600.3224:
RIGHTS AND REMEDIES ON DEFAULT. Upon Default, and at any time thereafter,
Lender, at Lender’s option, may exercise any one or more of the following rights
and remedies, in addition to any other rights or remedies provided by law:
***
Sale of the Property. To the extent permitted by applicable law, Grantor hereby
waives any and all right to have the Property marshaled. In exercising its rights
and remedies, Lender shall be free to sell all or any part of the Property together
or separately, in one sale or by separate sales and Grantor waives Grantor’s rights
under MCLA Section 600.3224 to have separate parcels sold separately and to
have no more parcels than necessary sold. Lender shall be entitled to bid at any
public sale on all or any portion of the Property.
In Metropolitan Life Ins Co v Foote, 95 Mich App 399; 290 NW2d 158 (1980), this Court
considered the effect of a contractual provision in the mortgage instrument at issue, which
provided that, upon default, the mortgaged property may be sold “en masse.” The argument in
Met Life was under MCL 600.3165, rather than MCL 600.3224.2 The Court held:
2
MCL 600.3165, which appears in Chapter 31 of the Revised Judicature Act (“Foreclosure of
Mortgages and Land Contracts) provides, in relevant part:
(1) If the defendant does not bring into court the amount due, with costs, or if for
any other cause a judgment is entered for the plaintiff, and if it appears that the
premises can be sold, in parcels, without injury to the interests of the parties, the
judgment shall direct as much of the premises subject to the mortgage or land
contract to be sold as is sufficient to pay the amount then due on the mortgage or
land contract, with costs, and the judgment shall remain as security for any
subsequent default.
***
(3) If it appears to the court that the premises subject to the mortgage or land
contract are so situated that a sale of the whole premises will be most beneficial to
the parties the judgment shall be entered for the sale of the whole premises in the
first instance. . . .
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In Clark v Stilson, 36 Mich 482 (1877), the Court stated that property in a
foreclosure sale is required to be sold in parcels in order to protect the right of
redemption, but where a party waives his right to redeem in advance and for
valuable consideration, he cannot object to the fact that the sale was not made in
parcels.
The mortgage instrument in question was an arm’s length agreement
between businessmen, like any other contract. See generally, Northrip v Federal
National Mortgage Ass’n, 527 F2d 23 (CA 6, 1975), where a power of sale in a
mortgage was found to be a private contractual remedy. See also, Cramer v
Metropolitan Savings & Loan Ass’n, 401 Mich 252; 258 NW2d 20 (1977). If the
language of a contract is plain and unambiguous, the intention expressed and
indicated in the contract holds. Charles J Rogers, Inc v Dep’t of State Highways,
36 Mich App 620, 627; 194 NW2d 203 (1971). The contractual provision agreed
to by the parties does not contravene Michigan public policy, as the statute
providing for sale by parcels was merely designed to protect the redemption rights
of the parties where no other provision for a foreclosure sale is specified. See
Macomb v Prentis, 57 Mich 225, 228; 23 NW 788 (1885), Masella v Bisson, [359
Mich 512, 517-518; 102 NW2d 468 (1960)]. There is no indication that
Metropolitan acted in bad faith by choosing to exercise its option to sell the
property en masse. [Met Life, 95 Mich App at 404.]
While we are not bound by Met Life,3 we agree with defendant that its reasoning applies
here. Plaintiff fails to articulate any coherent reason that defendant should be deprived of a right
for which it contracted, as long as defendant’s interest under the construction mortgage takes
priority over plaintiff’s interest. Plaintiff claims that the mortgagor (the developer) could not
waive plaintiff’s rights with respect to the property. Plaintiff, however, was on notice of the
mortgage, which was recorded on July 21, 2004, when it recorded its lien on December 13, 2004.
Moreover, as further discussed, infra, plaintiff failed to name defendant as a party to the 2005
foreclosure action.
Plaintiff’s second argument on appeal is that the December 18, 2007, sheriff’s sale and
deed are invalid and must be set aside because the official who conducted the sale lacked the
statutory authority to do so. We disagree.
“The Michigan Supreme Court has held that it would require a strong case of fraud or
irregularity, or some peculiar exigency, to warrant setting a foreclosure sale aside.” Sweet Air,
275 Mich App at 497 (quotation marks and citations omitted). Sweet Air, 275 Mich App at 497,
3
This case is not binding on a subsequent panel of the Court of Appeals because it was issued
before November 1, 1990. MCR 7.215(J)(1).
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cited, in part, Detroit Trust Co v Agozzinio, 280 Mich 402, 405-406; 273 NW 747 (1937), in
which the Michigan Supreme Court held:
When property is exposed for sale under a judicial decree, and offered to
the highest bidder, and the sale is without fraud, and is fairly conducted, after
proper notice, and is struck off to a third person, it will require a strong case, and
some peculiar exigency, to warrant a court in setting it aside.
This reasoning is also applicable to a foreclosure by advertisement of a
mortgage containing a power of sale. [Id. (citation and quotation marks omitted.)]
In this case, plaintiff fails to articulate any “peculiar exigency” that would warrant setting aside
the sale.
MCL 51.70 authorizes the sheriff to “appoint 1 or more deputy sheriffs at the sheriff’s
pleasure,” and further provides that “[p]ersons may also be deputed by a sheriff, by an
instrument in writing, to do particular acts, who shall be known as special deputies.” Either type
of appointment may be revoked at any time. The December 18, 2007, sheriff’s sale was
conducted by Matthew J. Chodak. Chodak is authorized to serve and execute civil process
pursuant to an “Agreement to Serve And/Or Execute Civil Process for the Oakland County
Sheriff’s Office” (Service of Process Agreement) and “Deputization Addendum” to that
agreement. As defined in the agreement, civil process includes “selling lands on the foreclosure
of a mortgage by advertisement; executing deeds and performing all related services required on
sale of property . . . .” The Service of Process Agreement is an agreement, in writing, between
Oakland County Sheriff Bouchard and County Civil Process Services, Inc. (the contractor),
under which the contractor agrees to perform all of the responsibilities of the sheriff’s office for
serving and executing civil process. The agreement specifies that:
The CONTRACTOR further agrees that no CONTRACTOR duty or obligation
on behalf of the SHERIFF’S OFFICE, under the terms of this Agreement, shall be
assigned, subcontracted, delegated, or otherwise be permitted to be performed by
any person who is not, at the time of any such performance[,] both a
CONTRACTOR EMPLOYEE(S) and a Special Deputy of Sheriff Michael J.
Bouchard appointed in accordance with the DEPUTIZATION ADDENDUM.
The Service of Process Agreement is signed by Thomas A. Law, Chairperson of the Oakland
County Board of Commissioners, Sheriff Michael J. Bouchard, and Chodak, as President of
County Civil Process Services, Inc.
The Deputization Addendum provides, in relevant part:
CONTRACTOR, shall submit to Sheriff Michael J. Bouchard, a request that
Sheriff Michael J. Bouchard appoint a specific individual, CONTRACTOR’S
EMPLOYEE(S) as a Special Deputy pursuant to MCL 51.70, with the powers of
a deputy sheriff, to serve and/or execute that Civil Process, which has been
delivered to CONTRACTOR by Sheriff Michael J. Bouchard, required by law to
be served and/or executed by a deputy sheriff within the County of Oakland.
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***
This Agreement shall not, in any manner, limit, or be interpreted to limit, the
unilateral and complete discretion of Sheriff Michael J. Bouchard to either
deputize, refuse to deputize, or revoke the deputization of CONTRACTOR and/or
any CONTRACTOR’S EMPLOYEE(S) at any time. . . .
According to his November 2008 affidavit, Chodak is employed as a “special deputy”
pursuant to the Service of Process Agreement, and was “deputed as a Special Deputy pursuant to
MCL 51.70 and the Deputization Addendum appended to the Agreement.” Chodak further
states, “I executed my oath pursuant thereto on January 4, 2005. A copy of the Oath is on record
at the Oakland County Clerk’s Office.” Defendant has provided, as it did before the trial court, a
copy of the written oath signed by Chodak and dated January 4, 2005 (“I do solemnly swear that
I will support the Constitution of the United States, and the Constitution of this State, and that I
will faithfully discharge the duties of the office of Deputy Sheriff according to the best of my
ability.”). Chodak acknowledged that, pursuant to the Service of Process Agreement and the
Deputization Addendum, he was not authorized to perform any service for the Sheriff’s Office
other than to serve and execute civil process as defined in the agreement.
Thus, despite the lack of precision in the use of the terms “deputy sheriff” and “special
deputy” in the relevant documents, it is clear that Chodak was appointed, and served, as a
“special deputy,” with powers limited to service and execution of process as defined in the
Service of Process Agreement.4 His appointment as a “special deputy” meets the only
requirements of MCL 51.70: it was “by a sheriff” and “by an instrument in writing.” Plaintiff
claims that no record of Chodak’s appointment exists, in violation of MCL 51.73, but that
statute, by its plain terms, does not apply to special deputies.5
We further disagree with plaintiff’s argument that the December 18, 2007, sale must be
set aside because it was not conducted in accordance with MCL 600.3216, which does not permit
4
It is worth noting that the January 23, 2007, sale of the units to plaintiff was also conducted by
Chodak, and the sheriff’s deed for that sale, like the December 18, 2007, deed, represents
Chodak as “a Deputy Sheriff.” Plaintiff does not take issue with the January 23, 2007, sale.
5
MCL 51.73 provides:
Every appointment of an under sheriff, or of a deputy sheriff, and every
revocation thereof, shall be in writing under the hand of the sheriff, and shall be
filed and recorded in the office of the clerk of the county; and every such under
sheriff or deputy shall, before he enters upon the duties of his office, take the oath
prescribed by the twelfth article of the constitution of this state. But this section
shall not extend to any person who may be deputed by and sheriff to do a
particular act only. [Emphasis added.]
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a “special deputy” to conduct a foreclosure sale.6 Under MCL 600.3216, a mortgage foreclosure
sale may be conducted by the sheriff, and MCL 51.70 authorizes the sheriff to appoint special
deputies to perform “particular acts.” The apparent meaning of the special deputies provision of
MCL 51.70 is that the sheriff may delegate authority to special deputies to perform “particular
acts” that the sheriff himself is authorized to perform.
In addition, MCL 600.3216 permits the sale to be “made by the person appointed for that
purpose in the mortgage,” which demonstrates that there is nothing about a foreclosure sale that
inflexibly requires it to be performed by a person who occupies one of the positions specified in
the statute. Moreover, plaintiff does not take issue with the January 23, 2007, sale, which
Chodak also conducted. Plaintiff claims, in a footnote of the facts section of its brief on appeal,
that it was permissible for Chodak to conduct the January 23, 2007, sale, because that was a
judicial foreclosure sale under MCL 600.3125.7 While plaintiff is correct concerning the
applicable statutory provision, this undermines plaintiff’s attempt to attach significance to the
representation of Chodak as a “Deputy Sheriff,” rather than a special deputy, in the December
18, 2007, form deed. Plaintiff does not question Chodak’s competence to conduct the sale, or
challenge the manner in which he conducted it. Thus, particularly in light of Chodak’s conduct
of the January 23, 2007, sale, and plaintiff’s position that that sale was proper, we conclude that
plaintiff has failed to demonstrate the existence of any “peculiar exigency” that warrants setting
aside the sale.8
6
MCL 600.3216 provides:
The sale shall be at public sale, between the hour of 9 o'clock in the forenoon and
4 o'clock in the afternoon, at the place of holding the circuit court within the
county in which the premises to be sold, or some part of them, are situated, and
shall be made by the person appointed for that purpose in the mortgage, or by the
sheriff, undersheriff, or a deputy sheriff of the county, to the highest bidder.
7
MCL 600.3125 provides:
All sales of land on foreclosure of a land contract or mortgage on real estate shall
be made by the county clerk of the county in which the judgment was rendered or
of the county where the land or some part of the land is situated, by a deputy
county clerk, or by some other person duly authorized by the order of the court.
These sales shall be at public sale between the hour of 9 a.m. and 4 p.m. and shall
take place at the courthouse or place of holding of the circuit court in the county
in which the land or some part of it is situated or at any other place the court
directs. The sale is subject to section 6091.
8
Plaintiff cites four cases that it claims support its position. Three are orders of Michigan circuit
courts, and one is a judgment of a United States Bankruptcy Judge for the Eastern District of
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Plaintiff’s third argument on appeal is that the trial court erred in ruling that defendant
was a necessary party to the foreclosure action plaintiff filed in circuit court in 2005. We
disagree.
Plaintiff brought its 2005 foreclosure action under the Construction Lien Act (CLA),
MCL 570.1101 et seq. “Proceedings for the enforcement of a construction lien and the
foreclosure of any interests subject to the construction lien shall not be brought later than 1 year
after the date the claim of lien was recorded.” MCL 570.1117(1). “A construction lien arising
under [the CLA] shall take priority over all other interests, liens, or encumbrances which may
attach to the building, structure, or improvement, or upon the real property on which the
building, structure, or improvement is erected when the other interests, liens, or encumbrances
are recorded subsequent to the first actual physical improvement.” MCL 570.1119(3). “Each
person who, at the time of filing the action, has an interest in the real property involved in the
action which would be divested or otherwise impaired by the foreclosure of the lien, shall be
made a party to the action.” MCL 570.1117(4).
Under MCL 570.1302, “Substantial compliance with the provisions of [the CLA] shall be
sufficient for the validity of the construction liens provided for in this act, and to give jurisdiction
to the court to enforce them.”
The scope of a statutory “substantial compliance” provision requires an
analysis, on a case-by-case basis, of the following logically relevant factors
among others: the overall purpose of the statute; the potential for prejudice or
unfairness when the apparent clarity of a statutory provision is replaced by the
uncertainty of a “substantial compliance” clause; the interests of future litigants
and the public; the extent to which a court can reasonably determine what
constitutes “substantial compliance” within a particular context; and, of course,
the specific language of the “substantial compliance” and other provisions of the
statute. [Northern Concrete Pipe, Inc v Sinacola Companies-Midwest, Inc, 461
Mich 316, 321-322; 603 NW2d 257 (1999).]
In Advanta National Bank v McClarty, 257 Mich App 113; 667 NW2d 880 (2003), this
Court concluded that substantial compliance with MCL 570.1117(4) was consistent with
Northern Concrete Pipe, 461 Mich at 316. Advanta, 257 Mich App at 120-121. Turning to the
question of what constitutes “substantial compliance” with MCL 570.1117(4), the Court
concluded that:
A lien claimant cannot be made to find every possible party who claims to have
some kind of interest in the property. Instead, a lien claimant can only be
required to notify every party who has a known or recorded interest. [Id. at 121.]
The Court noted that Erb Lumber, the party that filed the foreclosure action at issue in Advanta,
had complied with other provisions of the Construction Lien Act by filing the action in the
Michigan. To the extent these courts even addressed the same question presented here, these
rulings are not binding on this Court.
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county where the property was located, and giving a proper notice of lis pendens, and public
notice. Id. at 122. Moreover, the Court emphasized, Advanta National Bank did not record a
mortgage on the property at issue until after Erb Lumber had initiated foreclosure proceedings
and there was no evidence that Erb Lumber had actual notice of any alleged interest Advanta
National Bank may have had in the property. Id. The Court concluded that Erb Lumber
substantially complied with MCL 570.1117(4) by giving notice to all known or recorded
interests. Id. at 121-122.
In this case, plaintiff argues on appeal that, in light of the substantial compliance
provision, and the lack of prejudice to defendant, this Court should conclude, based on the
January 11, 2006 default judgment, that its interest in the property is of higher priority than
defendant’s. Plaintiff claims that there was no potential for prejudice because defendant had no
defense to plaintiff’s lien foreclosure action, and no potential for unfairness because defendant
had actual notice of the action and chose not to intervene.9 Under Advanta, 257 Mich App at
121, however, substantial compliance with MCL 570.1117(4) requires, at a minimum, notifying
every party that has a known or recorded interest at the time the action is filed. Defendant’s
construction mortgage was recorded on July 21, 2004. Thus, defendant had a recorded interest in
the property when plaintiff filed the 2005 foreclosure action. Because plaintiff failed to
substantially comply with MCL 570.1117(4), the trial court properly ruled that plaintiff could not
rely on the January 11, 2006 default judgment of lien foreclosure to establish its rights in the
property as against defendant. MCR 3.411(H).10
Plaintiff’s final argument on appeal is that the trial court erred in ruling that plaintiff
failed to plead fraud with particularity. We disagree.
Plaintiff’s argument on appeal is based on a distinction between fraudulent
misrepresentation and fraudulent inducement. Plaintiff claims that it stated a claim for
fraudulent inducement with sufficient particularity by clearly alleging, in its complaint, that it
was induced, by “promises of continued payment” by defendant’s representatives, to enter into
an agreement “to subordinate its lien,” and that the promises turned out to be false. Pursuant to
MCR 2.112(B)(1), “[i]n allegations of fraud or mistake, the circumstances constituting fraud or
mistake must be stated with particularity.” The court rule makes no distinction between
fraudulent misrepresentation and fraudulent inducement, and a review of Count III of the
9
Plaintiff cites no record support for the claim that defendant had actual notice.
10
MCR 3.411(H) provides:
Judgment Binding Only on Parties to Action. Except for title acquired by adverse
possession, the judgment determining a claim to title, equitable title, right to
possession, or other interests in lands under this rule, determines only the rights
and interests of the known and unknown persons who are parties to the action,
and of persons claiming through those parties by title accruing after the
commencement of the action.
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complaint confirms that plaintiff indeed failed to plead any type of fraud with particularity. The
complaint alleges, without any further explanation, that defendant “fraudulently procured” the
September 2006, “Debt and Lien Subordination Agreement” between plaintiff, the developer,
and defendant, and that such fraud “provides the basis for this court to rescind” the agreement.
The complaint also references unspecified “threats and coercion” on the part of defendant. It is
entirely unclear from the complaint what specific acts form the basis of the claimed fraud.
Accordingly, the trial court did not err in granting defendant’s motion for summary disposition
with respect to Count III of the complaint.11
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
11
In the trial court, plaintiff sought leave to amend its complaint to add new allegations of fraud
as an alternative to its motion for reconsideration following the trial court’s grant of summary
disposition in favor of defendant. Plaintiff raises an identical argument in its brief on appeal.
The argument is addressed to the trial court, and plaintiff does not state what relief, if any, it
seeks on appeal with respect to its motion for leave to amend before the trial court.
In any event, plaintiff fails to articulate how its new allegations would form the basis for
rescinding the Debt and Lien Subordination Agreement. “[A]ppellants may not merely
announce their position and leave it to this Court to discover and rationalize the basis for their
claims; nor may they give issues cursory treatment with little or no citation of supporting
authority.” McIntosh v McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2009) (quotation
marks omitted). And while leave to amend should be freely granted to the nonprevailing party
on a motion for summary disposition, the trial court is not required to grant leave to amend if
amendment would be futile or otherwise unjustified. Kimmelman v Heather Downs
Management Ltd, 278 Mich App 569, 571; 753 NW2d 265 (2008); MCR 2.118(A)(2); MCR
2.116(I)(5).
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