Michigan Nat. Bank v. Cote

546 N.W.2d 247 (1996)

451 Mich. 180

MICHIGAN NATIONAL BANK, Trustee, Plaintiff-Appellee, v. Joanne Marie COTE, Frank P. Cote, Sherry L. Cote, and Francis J. Cote, Jointly and Severally, Defendants-Appellants.

Docket No. 101731.

Supreme Court of Michigan.

April 23, 1996.

*248 Matthew M. Wallace, Port Huron, for plaintiff.

Luce, Henderson, Heyboer & Lane by David R. Heyboer, Port Huron, for defendant.

PER CURIAM.

In a summary proceedings action under M.C.L. § 600.5701 et seq.; M.S.A. § 27 A. 5701 et seq., the plaintiff received a judgment and writ of restitution to recover property that had been sold under a land contract. The issue raised by the present appeal is whether, after having obtained such relief, the holder of the vendor's interest may obtain money damages for delinquent real estate taxes that the vendee was obligated to pay under the contract. The Court of Appeals followed Ames v. Maxson, 157 Mich.App. 75, 403 N.W.2d 501 (1987), and affirmed the circuit court's award of damages. We conclude that recovery of those delinquent taxes is barred by M.C.L. § 600.5750; M.S.A. § 27 A. 5750, and reverse.

I

In September 1986, the defendants purchased a parcel of real estate from the estate of Philip A. Touma. The estate's vendor's interest was assigned to plaintiff Michigan National Bank. On October 1,1990, the plaintiff brought a summary proceedings action in district court to recover possession of the property as a result of an alleged breach of the terms of the land contract. On December 14, 1990, the parties stipulated to entry of a consent judgment in the amount of $81,937.74, which provided, among other things, that the defendants had ninety days to cure the material breaches of the contract. The judgment stated the amounts owing as $45,000 in payments under the contract, $36,858.74 in unpaid real estate taxes, and costs of $79. The defendants did not pay the judgment, and, on May 9, 1991, a writ of restitution was issued, and the plaintiff obtained possession of the premises. Plaintiff then filed a supplemental complaint, seeking a money judgment for the unpaid property taxes. Because the amount exceeded the jurisdictional limit of the district court, an order was entered transferring the case to the St. Clair Circuit Court on June 5, 1991.

On March 2,1992, the circuit court granted summary judgment for the bank on its claim that it was entitled to recover the delinquent taxes. On June 6, 1992, a judgment in the amount of $35,859.17 was entered.

The defendants appealed, but on October 17, 1994, the Court of Appeals affirmed with an order stating:

*249 Pursuant to MCR 7.214(E) and 7.216(A)(7), the Court dispenses with oral argument and affirms the judgment of the St. Clair Circuit Court in this cause. Ames v. Maxson, 157 Mich.App. 75, 403 N.W.2d 501 (1987), is neither distinguishable nor wrongly decided. Adamski v. Cole, 197 Mich.App. 124, 128 [494 N.W.2d 794] (1992).

The Court denied rehearing on November 30, 1994, and the defendants sought leave to appeal in this Court.

II

This case presents a straightforward question of interpreting M.C.L. § 600.5750; M.S.A. § 27 A. 5750,[1] which provides:

The remedy provided by summary proceedings is in addition to, and not exclusive of, other remedies, either legal, equitable or statutory. A judgment for possession under this chapter does not merge or bar any other claim for relief, except that a judgment for possession after forfeiture of an executory contract for the purchase of premises shall merge and bar any claim for money payments due or in arrears under the contract at the time of trial and that a judgment for possession after forfeiture of such an executory contract which results in the issuance of a writ of restitution shall also bar any claim for money payments which would have become due under the contract subsequent to the time of issuance of the writ. The plaintiff obtaining a judgment for possession of any premises under this chapter is entitled to a civil action against the defendant for damages from the time of forcible entry or detainer, or trespass, or of the notice of forfeiture, notice to quit or demand for possession, as the case may be. [Emphasis added.]

The question is whether the unpaid real estate taxes, which the land contract obligated the defendants to pay,[2] constituted "money payments due or in arrears under the contract at the time of trial" so that the judgment for possession bars a claim for their recovery.

As noted above, the Court of Appeals order relied on Ames v. Maxson, supra, which held that taxes that the vendee was required to pay to the taxing authorities do not constitute a claim for money payments due under the contract. 157 Mich.App. 75, 403 N.W.2d 501. While we do not find Ames distinguishable from the instant case, as urged by the defendants, we disagree with its conclusion. The plain language of the statute leads to the conclusion that the claim for unpaid taxes is barred. The taxes are "money payments."[3] At the time of the judgment they were "in arrears under the contract." Thus, a judgment for money damages to recover those amounts was barred by the forfeiture.[4] The fact that they were *250 payable to the taxing authorities rather than to the land contract vendor is of no consequence.

III

Accordingly, we reverse the order of the Court of Appeals and the judgment entered by the St. Clair Circuit Court, insofar as it awarded damages for nonpayment of real estate taxes. We remand the case to the circuit court for any necessary further proceedings.

BRICKLEY, C.J., and LEVIN, MICHAEL F. CAVANAGH, BOYLE, RILEY, MALLETT and WEAVER, JJ., concur.

NOTES

[1] This section is, in effect, a codificationarguably with modifications (see Gruskin v. Fisher, 405 Mich. 51, 273 N.W.2d 893 (1979))of the common-law rule that the forfeiture of an executory contract for purchase of land constitutes an election of remedies, precluding the vendor from later seeking damages for breach of contract. See, e.g., Balesh v. Alcott, 257 Mich. 352, 354, 241 N.W. 216 (1932); Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448, 222 N.W. 697 (1929); Taylor v. Parkview Memorial Ass'n, 317 Mich. 164, 26 N.W.2d 748 (1947); Welling v. Dave's Cut Rate Drugs, Inc., 362 Mich. 389, 107 N.W.2d 798 (1961).

[2] The contract provided:

Purchaser Agrees:

* * * * * *

(e) To pay all taxes and special assessments hereafter levied on the land before any penalty for non-payment attaches thereto, and submit receipts to Seller upon request, as evidence of payment thereof....

[3] Some damages are recoverable despite § 5750 because they are not for money payments due under the contract. E.g., the reasonable rental value of the property during the time that the vendee remained in possession, Durda v. Chembar Development Corp., 95 Mich.App. 706, 291 N.W.2d 179 (1980), or damages for waste. See, e.g., Ames v. Maxson, supra, 157 Mich.App. 75, 403 N.W.2d 501. Indeed, the plaintiff raised a waste claim in the instant case, and the circuit court judgment included an amount attributable to that claim.

[4] This conclusion finds support in the commentary by the Michigan Law Revision Commission to its proposal on which the summary proceedings statute was based. The Law Revision Commission draft of § 5750 and its comment thereon read as follows:

Sec. 5750. The remedy provided by summary proceedings is in addition to, and not exclusive of, other remedies, either legal or equitable or statutory. A judgment for possession under this chapter does not merge or bar any other claim for relief, except that a judgment for possession after forfeiture of an executory contract for the purchase of land shall merge and bar any claim for money payments due or to become due under the contract. The plaintiff obtaining restitution of any premises under this chapter is entitled to a civil action against the defendant for damages from the time of forcible entry or detainer, or trespass, or of the notice of forfeiture, notice to quit or demand for possession, as the case may be.

NOTES

Source: C.L.1948, § 600.5667.

Comment: The last sentence is based upon the source statute. The first sentence is intended to state explicitly the intent of the present statute. The second sentence is intended to make clear that in land contract cases the plaintiff cannot recover the premises under this chapter and then maintain a separate claim for payments due or to become due under the contract. If the plaintiff prefers to have money damages under the contract, he should be required to elect that remedy or to foreclose in the circuit court where the defendant will receive credit for the proceeds of the foreclosure sale. [5th Annual Report, Michigan Law Revision Commission, p 36 (emphasis added).]

The Legislature modified language of the second sentence somewhat, but the change did not affect its substance for the purpose of this issue.