Majid Damghani v. City of Kentwood

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

MAJID DAMGHANI, UNPUBLISHED

April 16, 2019

Plaintiff-Appellant,

v No. 341213

Kent Circuit Court

CITY OF KENTWOOD and KENT COUNTY LC No. 15-011405-CH

TREASURER,

Defendants-Appellees.

Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

Plaintiff filed the present case seeking a refund of a payment made on a special

assessment as well as a declaratory judgment that a foreclosure extinguished the special

assessment on his property. Following a bench trial, the trial court entered judgment in favor of

defendants. Plaintiff now appeals as of right. We affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

I. BACKGROUND

In August 2014, plaintiff purchased 34.57 acres of property, known as Neighborhood B-

4, from the Kent County Treasurer at a public land auction. The Kent County Treasurer acquired

the property through foreclosure proceedings in March 2014. Before the foreclosure, while the

property was owned by 44th/Shaffer Avenue LLC (Shaffer), the City of Kentwood (the City)

levied a special assessment against a larger group of parcels in connection with public

improvements for a multiphase development project known as the Ravines. Neighborhood B-4

was one of several planned “neighborhoods” that would make up the Ravines.

Under the General Property Tax Act (GPTA), MCL 211.1 et seq., “all liens against the

property, including any lien for unpaid taxes or special assessments, except future installments of

special assessments and liens recorded by this state or the foreclosing governmental unit

pursuant to the natural resources and environmental protection act . . . are extinguished” by a

foreclosure. MCL 211.78k(5)(c) (emphasis added). In other words, “future installments of

special assessments” are not extinguished by a foreclosure. Accordingly, the general dispute

between the parties involves whether the City actually levied a special assessment and whether

the amounts owed were future installments that survived foreclosure. Following a bench trial,

the trial court decided the matter in the City’s favor, concluding that there was a special

assessment and that a balloon payment on that special assessment was a future installment that

was not extinguished by the foreclosure.

A. CREATION OF THE SPECIAL ASSESSMENT

In 2004, Shaffer and the City entered into a “Voluntary Special Assessment/Development

Agreement” (VSADA) by which the parties agreed that Shaffer would undertake public

improvements required for the development of the Ravines at the City’s expense. However, the

City’s payment was based on “anticipation of special assessments” to be levied against the

property, and the City had “no obligation for any payment of funds until after the conclusion of

the special assessment proceedings . . . .” On September 7, 2004, the City Commission passed

Resolution No. 96-04 to confirm a special assessment roll for the Ravines special assessment

district. The confirmed special assessment roll attached to the resolution stated, in pertinent part:

Term: 10 years from confirmation of roll, i.e., September 7, 2014. Any

unpaid balance and interest is due in full upon termination date.

Deferred Installments:

* * *

B. A payment shall be due annually on the anniversary date of the

confirmation of the roll (e.g., without limitation, September 7, 2005, September 7,

2006, September 7, 2006, September 7, 2007, etc.) in an amount equivalent to the

simple interest on any unpaid principal amount.

C. Principal payments, along with any unpaid simple interest on that

portion of the principal, shall be due upon certain governmental approvals being

issued consistent with the terms of [the VSADA].

Relevant to section (C) above, the VSADA provided that “[p]rincipal payments, with interest

thereon accrued on a pro rata basis, shall be due within 180 days of final zoning approval for a

phase or upon the City’s issuance of a soil erosion permit for the phase, whichever is earlier.”

B. TRIAL COURT PROCEEDINGS

During the course of this litigation, plaintiff filed a motion to compel cooperation with

discovery, asserting that the City had failed to provide full and complete answers to

interrogatories and to comply with requests for production of documents. The trial court heard

the motion on November 4, 2016. Plaintiff’s counsel explained that there were several triggering

events that would cause the principal of the special assessment to become due. Thus, he was

seeking, among other things, documents regarding development of the Ravines that might reflect

the occurrence of a triggering event. The City’s attorney explained that the City had already

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produced numerous documents and, given the recent narrowing of the issues as a result of a

partial grant of summary disposition, it would be more prudent to depose City officials with

knowledge concerning the payments and balance of the assessment before and after the

foreclosure sale. After a lengthy discussion of the categories of information plaintiff sought, the

following exchange occurred:

[City’s Attorney]: Well, your Honor, we’ve already produced a document

that answers every question that [plaintiff’s attorney] just raised, and they’ve had

these documents since July. And I’ll approach the Court. This is a payment

history that is a printout from the City documents (handing), and it includes the

entire payment history. It includes all the trigger dates that [plaintiff’s counsel] is

referring to. The trigger dates for zoning approvals and permits is listed down

the left side of the page in the downward column. The payment history is listed

across the top. I produced numerous payment history sheets . . . . [I]f there’s

questions about these documents, it’s not going to be answered by other

documents. It’s going to be answered by the treasurer or the finance director

answering questions about these documents. But all of the things he says that he

wants to know are right on these payment histories (indicating).

The Court: Hmm.

Do you have this, [plaintiff’s attorney]? Other than for the fact that the

print is kind of fine. . . . But it does appear to be a fairly comprehensive situation.

And even with the fine print, I think I would rather work with that than a banker’s

box full of stuff.

[Plaintiff’s Attorney]: (Pause) I guess, my colleague has indicated that

we have seen at least a document like this. I guess critical to this would be are

they just saying this is a document, or are they saying—are they stipulating that

these are the trigger dates?

The Court: Well, I think they’re saying both. I think they’re saying that is

a document which shows the trigger dates, among other things, and the payments.

The nice thing about it is it looks like it’s all on one page. As long as you’ve got

a magnifying glass, you can probably read it.

[Plaintiff’s Attorney]: . . . [I]f they’ll stipulate that those indeed are the

trigger dates under the—under the special assessment for—for when things are

due, that’s fine.

The Court: I think that’s what they’re saying. Am I—am I right?

[City’s Attorney]: Well, I am saying that, your Honor. [Emphasis added.]

At a subsequent hearing regarding entry of an order reflecting the outcome of the

November 4, 2016 proceeding, plaintiff’s attorney indicated that he wanted the parties’

stipulation included in the order because he believed that “the City no longer want[ed] to

recognize the stipulation . . . .” Defense counsel expressed confusion about the nature of the

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stipulation and indicated that there were a series of documents relevant to the issues which had

been explained in detail by Thomas Chase, the City’s finance director, during a deposition that

took place after the November 4, 2016 hearing. According to defense counsel, Chase “testified

and explained the trigger dates, and you can’t simply discern the trigger dates from looking at the

document itself.” In light of the Chase’s testimony about the documents, counsel questioned

why the stipulation remained necessary. However, he agreed that he would “stipulate to the

authenticity of those documents and that the information on them is accurate, as they were

explained by Mr. Chase in his deposition.” Responding to the City’s position, plaintiff’s

attorney argued that he proceeded in reliance upon the parties’ stipulation and expected that the

City should be bound by it. After reviewing a transcript of the November 4, 2016 hearing, the

trial court entered plaintiff’s proposed order, which provided, in pertinent part, the following:

This matter having come to be heard upon Plaintiff’s Motion to Compel

Cooperation with Request for Production of Documents, arguments having been

heard, and Defendant City of Kentwood having stipulated to the “Due Date

Triggers” as set forth in Exhibit 1, the Court being otherwise advised in the

premises;

IT IS HEREBY ORDERED that the document attached as Exhibit 1

reflects the payments and trigger dates for the special assessment district on the

Subject Property[.]

In relevant part, Exhibit 1 to the order related to “Neighborhood B-4, Phase 1” and stated:

Due Date Triggers

Final Zoning Approval for Phase 5/1/2006

180 days from Final Zoning Approval for Phase 10/28/2006

-OR-

Erosion Permit for a Phase issued 9/7/2014

Computed Final Date for Phase payment 10/28/2006

At the bottom of the page, the following disclaimer was printed: “NOTE: All dates are for

demonstration only. When actual dates are inserted, the interest is automatically recalculated.”

The case proceeded to a bench trial. Following opening statements, the trial began with a

discussion of the stipulation and whether additional evidence regarding the trigger dates would

be allowed. Plaintiff maintained that the stipulation was binding with regard to the trigger dates

and that he had tailored discovery to the stipulation. Accordingly, plaintiff asserted that the City

could not renege on or impeach the stipulation. Defense counsel asserted that he had been

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“unartful in terms of the breadth of the stipulation,” but denied that plaintiff would be surprised

by other evidence of trigger dates because the information had been elicited during Chase’s

deposition testimony.1

The trial court ruled that additional evidence regarding trigger dates would be allowed.

In reaching this conclusion, the trial court stated that it misunderstood the facts when entering the

stipulation, having failed to realize that the project was a multiphase development with more

than one triggering event and that “some of the phases, in fact . . . most of them, have never been

developed.” The court apologized for the confusion and offered to adjourn the trial if the parties

were caught by surprise at any point and needed further time to prepare. The trial court agreed

that the stipulated document would “clearly constitute[] evidence of triggering dates,” but it

declined to limit the evidence of trigger dates to that document, concluding that it would be more

appropriate to “follow the evidence.”

At the conclusion of the trial, the trial court provided a lengthy ruling on the record,

beginning with a detailed description of the various agreements and resolutions, the foreclosure,

plaintiff’s purchase of the property, and the pretrial procedure of the case. The trial court defined

the question remaining at trial as “whether the VSADA is due and owing on the balloon payment

date of September 7, 2014, which would be after the foreclosure, or whether one of the triggering

events had extinguished that assessment . . . .” The trial court concluded that neither of the

triggering events had occurred before the foreclosure. Accordingly, the balloon payment on the

principal came due September 7, 2014—after the March 2014 foreclosure—and constituted a

future installment of a special assessment that was not extinguished by the foreclosure.

With respect to the parties’ stipulation, the trial court noted that the disclaimer at the

bottom of the stipulated document rendered the dates in the document “essentially meaningless.”

Concluding that it was clear beyond any doubt that the stipulation was factually incorrect, the

trial court refused to hold the parties to the stipulation. The trial court subsequently entered an

order stating that the special assessment balloon payment was not extinguished and remained a

valid lien on plaintiff’s property. This appeal followed.

II. THE STIPULATION

On appeal, plaintiff first argues that the trial court erred when it refused to apply the

parties’ factual stipulation regarding the occurrence of events that triggered the date on which

payment of the special assessment principal became due. We agree, in part.

Stipulations are generally construed under the same rules applicable to interpretation of a

contract, Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000), and questions

involving contract interpretation and the legal effect of a contractual provision are reviewed de

novo, DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 366-367; 817 NW2d 504 (2012).

1

Chase testified that the stipulated document had been prepared by a law firm and that he did not

believe the final zoning approval date (from which the final payment date had been computed)

was accurate because the property had never actually been developed.

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The meaning of a court order is also a question of law reviewed de novo. Silberstein v Pro-Golf

of America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008). Whether the trial court

“disregarded a clear and unambiguous factual stipulation by the parties is a legal question, which

this Court reviews de novo.” Toll Northville Ltd Partnership v Northville Twp (On Remand),

298 Mich App 41, 47; 825 NW2d 646 (2012) (citation omitted).

“A stipulation is an agreement, admission, or concession made by the parties in a legal

action with regard to a matter related to the case.” In re Estate of Koch, 322 Mich App 383, 402;

912 NW2d 205 (2017) (quotation marks and citation omitted). “While a stipulation need not

follow any particular form, its terms must be definite and certain in order to afford a proper basis

for judicial decision . . . .” Whitley v Chrysler Corp, 373 Mich 469, 474; 130 NW2d 26 (1964)

(quotation marks and citation omitted). When “[t]he stipulation on its own terms is not clear,”

the stipulation may be interpreted “in light of the facts and issues as agreed to by the parties and

as found by the trial court.” Novi v Detroit, 433 Mich 414, 436-437; 446 NW2d 118 (1989).

Parties may stipulate to the facts of a case, and when a stipulation of facts has been approved by

the trial court, those facts are to be taken as conclusive. Signature Villas, LLC v Ann Arbor, 269

Mich App 694, 706; 714 NW2d 392 (2006); Nuriel v Young Women’s Christian Ass’n of

Metropolitan Detroit, 186 Mich App 141, 147; 463 NW2d 206 (1990). More fully, the Michigan

Supreme Court long ago provided the following warning and guidance concerning the effect of

factual stipulations:

To the bench, the bar, and administrative agencies, be it known herefrom

that the practice of submission of questions to any adjudicating forum, judicial or

quasi-judicial on stipulation of fact, is praiseworthy in proper cases. It eliminates

costly and time consuming hearings. It narrows and delineates issues. But once

stipulations have been received and approved they are sacrosanct. Neither a

hearing officer nor a judge may thereafter alter them. This holding requires no

supporting citation. The necessity of the rule is apparent. A party must be able to

rest secure on the premise that the stipulated facts and stipulated ultimate

conclusionary facts as accepted will be those upon which adjudication is

based. Any deviation therefrom results in a denial of due process for the obvious

reason that both parties by accepting the stipulation have been foreclosed from

making any testimonial or other evidentiary record.

This is not to say, of course, that the hearing officer or judge may not

reject any offered stipulation as incomplete or legally erroneous. The concerned

adjudicator has not only that right—he has that duty. But as previously indicated,

the time so to do is before final acceptance of the stipulation, not after. [Dana

Corp v Appeal Bd of Mich Employment Security Comm, 371 Mich 107, 110-111;

123 NW2d 277 (1963) (emphasis added).]

Undoubtedly, there are circumstances in which a trial court is not bound by the parties’

stipulation. For instance, the trial court may disregard a stipulation that has been abandoned or

disaffirmed by all of the parties, Kimball v Bangs, 321 Mich 394, 414; 32 NW2d 831 (1948), or a

stipulation of fact that involves considerations beyond the rights of the parties involved, Bowman

v Coleman, 356 Mich 390, 392-393; 97 NW2d 118 (1959). In Nuriel, 186 Mich App at 147, we

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also stated that a stipulation “may be set aside where it has been entered into as a result of

inadvertence, improvidence or excusable neglect.”

In light of the disclaimer on the stipulated document, which clearly stated that the dates

contained therein were for “demonstration only,” and counsel’s concession at trial that he had

been “unartful in terms of the breadth of the stipulation,” it is arguable that the City agreed to the

stipulation as a result of inadvertence, improvidence, or excusable neglect. However, we find

this case comparable to Nuriel and conclude that this exception does not support the trial court’s

decision to disregard the stipulation. In Nuriel, the plaintiff claimed religious discrimination

after she received an anonymous letter containing anti-Semitic statements which she believed

was written by one of six individuals involved in the decision to terminate her employment. Id.

at 144. The plaintiff stipulated that the letter would be analyzed by an expert and compared with

handwriting samples from each of the suspected authors. Id. She further agreed that “if the

expert does not give a conclusive or definitive opinion that a person actually wrote the letter,

then that person shall be considered as having not written the letter.” Id. at 145. The expert was

unable to conclusively determine whether any of the individuals wrote the letter, but discovered

fingerprints on the letter that could, presumably, be used to identify the author. Id. This Court

affirmed the trial court’s refusal to compel fingerprint samples from the suspected authors,

reasoning that the parties’ stipulation regarding the effect of the expert’s opinion precluded

further discovery attempting to establish the individuals already tested as the author. Id. at 146-

147. This Court further explained that the stipulation could not be set aside on the basis of

inadvertence, improvidence, or excusable neglect because the plaintiff had the letter in her

possession for three years before it was submitted to the handwriting expert and could have

discovered the existence of the fingerprints had she exercised reasonable diligence during that

time. Id. at 148.

Here, the parties entered into a clear and unambiguous stipulation providing that the

document attached to the court’s order reflected the trigger dates for the special assessment. The

document at issue was contained within the City’s records and had, in fact, been disclosed to

plaintiff through discovery months before the stipulation was reached. Thus, like the plaintiff in

Nuriel, the City and its attorney had ample time during which they could have reviewed the

document and discovered that it did not contain actual trigger dates. Nonetheless, the City’s

attorney represented to plaintiff and the trial court that the document contained “all the trigger

dates” that plaintiff sought. Plaintiff’s counsel even asked for clarification as to whether the City

was stipulating that “those indeed are the trigger dates,” and defense counsel answered, “I am

saying that[.]” The City, having agreed through its attorney to an unambiguous stipulation of

fact that was received and approved by the trial court, was bound by the stipulation. Dana Corp,

371 Mich at 110-111. The trial court was, likewise, obligated to treat the stipulated fact as

sacrosanct, as plaintiff was entitled to “rest secure on the premise that the stipulated facts . . . as

accepted will be those upon which adjudication is based.” Id. at 110. While we recognize that

the stipulation was ultimately proven untrue by other evidence, “[c]ourts have long held parties

to agreements they make, regardless of the harshness of the results.” Nexteer Auto Corp v

Mando America Corp, 314 Mich App 391, 396; 886 NW2d 906 (2016).

The trial court erred by finding that the triggering events never occurred for the B-4

Neighborhood because it was bound to apply the parties’ stipulation concerning the triggering

event dates. The stipulated document stated that final zoning approval for Phase 1 of the B-4

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Neighborhood was granted on May 1, 2006, resulting in a final payment due date of October 28,

2006, for Phase 1. As such, the portion of the assessment attributable to Phase 1 became due

before the March 2014 foreclosure. Because MCL 211.78k(5)(c) only excludes future

installments of special assessments from the liens that are extinguished by a foreclosure, the

portion of the assessment attributable to Phase 1 was extinguished by operation of law.

That being said, when the parties enter into a stipulation, it does not follow that the record

is limited to that stipulation. Signature Villas, LLC, 269 Mich App at 706. “Where the parties’

stipulation is not contradicted, it is within the discretion of the [court] to permit or consider

additional proofs supplementing the same.” Id. As the trial court belatedly realized, the Ravines

development was planned as a multiphase project. Under the VSADA, the principal of the

special assessment was to be “allocated among the various approved phases for Neighborhoods

B-1 through B-4 of the Ravines[.]” While unpaid principal and interest became automatically

due 10 years after the special assessment roll was confirmed on September 7, 2004, principal

payments could also be triggered earlier based upon “final zoning approval for a phase or upon

the City’s issuance of a soil erosion permit for the phase . . . .” (Emphasis added.) According to

the planned unit development agreement and the VSADA, Neighborhood B-4 was planned in

two phases. The heading on the stipulated document refers to Phase 1 only.2 Consequently, we

find no error in the trial court’s decision to take further evidence concerning the occurrence of

triggering events and apply that evidence to any amount of the special assessment attributable to

Phase 2. Because the amounts attributable to each phase are not readily apparent from the

record, we remand for further proceedings.

III. NATURE OF THE OBLIGATION

Next, plaintiff argues that the trial court erred by concluding that the obligation at issue

arose from a special assessment. According to plaintiff, the obligation arose from the VSADA—

a contractual agreement between the City and Shaffer—and should have been treated as a

contract that was extinguished by the foreclosure. We disagree.

Questions involving statutory interpretation, contract interpretation, or the interpretation

of a resolution are reviewed de novo. 46th Circuit Trial Court v Crawford Co, 476 Mich 131,

140; 719 NW2d 553 (2006). The term “special assessment” refers to “pecuniary exactions made

by the government for a special purpose or local improvement, apportioned according to the

benefits received.” Wikman v Novi, 413 Mich 617, 632-633; 322 NW2d 103 (1982). Special

assessments for public improvements are a “form of taxation,” and a special assessment may be

2

A similar document containing demonstrative figures for Phase 2 was admitted at trial as

Exhibit 9. On appeal, plaintiff treats Exhibit 9 as though it was part of the pretrial stipulation

concerning trigger dates—a position that is unsupported by our review of the record. Although

the City’s attorney stipulated to the admissibility of Exhibit 9 at trial, he explicitly stated that he

did not agree that Exhibit 9 contained accurate trigger dates, and the document was not attached

to the order memorializing the parties’ stipulation as to the Phase 1 document.

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levied as allowed by municipal charter and applicable ordinances.3 See id. at 636-637. See also

MCL 117.4d(1)(a). “They may be collected at the same time and in the same manner as other

property taxes. If unpaid, they may become a lien on the property like other property taxes, or

may be collected by an action against the owner of the property.” Wikman, 413 Mich at 635

(citations omitted). “Special assessments are presumed valid.” Kane v Williamstown Twp, 301

Mich App 582, 586; 836 NW2d 868 (2013).

Plaintiff argues that the underlying financial obligation relating to Neighborhood B-4 is

contractual in nature as opposed to a special assessment. However, the only authority offered by

plaintiff to distinguish between a contract and a special assessment is a citation to an opinion of

the Michigan Office of the Attorney General, which in relevant part states:

“Liens” and notices of liens are recorded in the office of the register of

deeds for the county in which the lands are located. “Special assessments” are not

recorded. Liens may only be accepted for recording where there is a statute

permitting such recordation. Nelson v Scofield, 219 Mich 595, 597; 189 NW 185

(1922). Research discloses no statute authorizing the recording of liens for

special assessments levied by local governmental units. Therefore, the legislative

intent evinced by the statutory language is that two categories of liens are not

extinguished by foreclosure: 1) future installments of special assessments, and 2)

liens recorded by the state or foreclosing governmental unit pursuant to the

natural resources and environmental protection act. [OAG, 2001-2002, No. 7110,

p 95, at 97 (June 17, 2002).]

Relying on this discussion of liens and special assessments, plaintiff asserts that the VSADA is

not a special assessment because the VSADA was recorded. However, plaintiff’s conclusory

argument wholly ignores the fact that the City Commission passed Resolution No. 96-04 to

confirm the special assessment roll for the Ravines special assessment district. Resolution No.

96-04 sought to recover costs for public improvements that conferred a peculiar benefit on the

properties in the Ravines special assessment district, and these costs were allocated among each

of the “approved phases for Neighborhoods B-1 through B-4 of the Ravines . . . .” In other

words, a special assessment district was created, not by the VSADA, but by Resolution No. 96-

04.4 And while plaintiff suggests that the recording status of a document is definitive, it does not

appear that Resolution No. 96-04 was recorded. Therefore, to the extent that the opinion of the

attorney general has any persuasive value, see Mich Ed Ass'n Political Action Comm v Secretary

of State, 241 Mich App 432, 441-442; 616 NW2d 234 (2000), it does not support plaintiff’s

argument that a special assessment was not levied in this case.

3

The City’s charter and ordinances provide for the levying of special assessments. See

Kentwood Charter, ch X; Kentwood Code, ch 50.

4

Indeed, the VSADA did not purport to establish a special assessment, rather it stated that the

special assessment would be determined by the City Commission in its discretion.

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Apart from reliance on the opinion of the attorney general, plaintiff fails to cite any other

legal authority in support of his claim that a contractual obligation, as opposed to a special

assessment, is at issue in this case. Plaintiff claims that the rules for creating a special

assessment were not followed and that a special assessment does not exist, but he does not cite

the applicable rules for levying a special assessment or explain how the procedures in this case

deviated from those rules. Likewise, plaintiff argues that a special assessment cannot exist

because the City also entered into a contractual relationship with Shaffer under the VSADA, but,

again, plaintiff offers no authority for the proposition that the City could not establish a special

assessment and also enter into a contract. By failing to adequately brief the merits of the issue

and by failing to identify relevant legal authority, plaintiff has abandoned this argument on

appeal. See Goldstone v Bloomfield Twp Pub Library, 268 Mich App 642, 658; 708 NW2d 740

(2005), aff’d 479 Mich 554 (2007) (“[T]his Court will not search for authority to support a

party’s position, and the failure to cite authority in support of an issue results in its being

deemed abandoned on appeal.”) (quotation marks and citation omitted; alteration in original).

IV. TRIGGER DATES

Next, plaintiff argues that the trial court clearly erred by concluding that the principal on

the special assessment came due in September 2014, after the foreclosure. Given our analysis

and conclusion of plaintiff’s claim of error regarding the effect of the parties’ stipulation, we

limit our analysis of this issue to Phase 2 only. According to plaintiff, even setting aside the

parties’ stipulation, the evidence showed that triggering events occurred before the foreclosure,

resulting in extinguishment of the special assessment in its entirety under MCL 211.78k(5)(c).

We disagree.

A trial court’s factual findings in a bench trial are reviewed for clear error. Chelsea

Investment Group LLC v City of Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010). “A

finding is clearly erroneous if there is no evidentiary support for it or if this Court is left with a

definite and firm conviction that a mistake has been made.” Id. at 251. “The trial court’s

findings are given great deference because it is in a better position to examine the facts.” Id. In

contrast, questions involving statutory interpretation, contract interpretation, or the interpretation

of a resolution are all reviewed de novo. 46th Circuit Trial Court, 476 Mich at 140.

“A resolution is the form in which a legislative body expresses a determination or directs

a particular action.” Duggan v Clare Co Bd of Comm’rs, 203 Mich App 573, 576; 513 NW2d

192 (1994). A resolution is treated like a statute, see Gale v Bd of Supervisors of Oakland Co,

260 Mich 399, 404; 245 NW 363 (1932), and as such it is interpreted like a statute, see Bonner v

City of Brighton, 495 Mich 209, 221; 848 NW2d 380 (2014). Accordingly, when interpreting a

resolution, “it is a basic requirement that the intent shall be ascertained and given effect.”

Dearborn Fire Fighters Ass’n v City of Dearborn, 323 Mich 414, 421; 35 NW2d 366 (1949). To

ascertain intent, “words must be given their plain and ordinary meanings.” Bonner, 495 Mich at

222. “If the language of the resolution is certain and unambiguous, courts must apply the

resolution as written.” Hardaway v Wayne Co, 494 Mich 423, 427; 835 NW2d 336 (2013).

Similarly, when interpreting a contract, “it is a court’s obligation to determine the intent

of the parties by examining the language of the contract according to its plain and ordinary

meaning.” In re Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008). Contracts must be read

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“as a whole, giving harmonious effect, if possible, to each word and phrase.” Wilkie v Auto-

Owners Ins Co, 469 Mich 41, 50 n 11; 664 NW2d 776 (2003). An interpretation that would

“render any part of the contract surplusage or nugatory” must be avoided. Klapp v United Ins

Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003) (quotation marks and citation

omitted). Unambiguous contract language must be enforced as written. In re Smith Trust, 480

Mich at 24. “However, if the contractual language is ambiguous, extrinsic evidence can be

presented to determine the intent of the parties.” Id.

The special assessment was established by Resolution 96-04, which incorporated terms

contained in the VSADA. Under Resolution 96-04, the special assessment roll was confirmed on

September 7, 2004. The resolution called for annual interest-only payments, and it deferred the

payment of the principal consistent with the terms of the VSADA. The special assessment roll,

as confirmed by the resolution, established a term of 10 years, specifying that any “unpaid

principal and interest is due in full upon [the] termination date.” Thus, as a general proposition,

the principal on the special assessment would come due in September 2014. However, as

explained earlier, the special assessment roll also makes clear that certain triggering events could

result in the principal coming before the termination of the 10-year period. On appeal, plaintiff

debates what constitutes a triggering event, and he asserts that triggering events occurred in this

case that necessitated payment of the principal before the foreclosure. These arguments are

without merit.

First, plaintiff asserts that Resolution 96-04 triggered payment of the entire special

assessment, including principal, in the event that the prior owner failed to make annual interest

payments. Relevant to plaintiff’s argument, Resolution 96-04 states, “The special assessment

roll shall be deferred consistent with the terms of the [VSADA] . . . provided that annual

payments equivalent to the simple interest on any unpaid balance shall be due and payable on the

anniversary date of the confirmation of this special assessment roll.” Plaintiff interprets this

provision to mean that the special assessment shall only be deferred “provided that” the annual

interest payments were actually made each year. Because he presented evidence suggesting that

the previous owners were delinquent in making their annual interest payments, plaintiff asserts

that the deferment provided for in Resolution 96-04 ceased and that the entire special assessment

was due before the foreclosure.

Contrary to this argument, the pertinent phrase in Resolution 96-04 is “due and payable,”

not “paid.” In other words, the resolution does not state that payment of the principal is deferred

provided that annual payments are actually paid each year. As commonly understood, when

something is “due,” it is “owed or owing.” Merriam-Webster’s Collegiate Dictionary (11th ed).

Likewise, when something is “payable,” it is something “that may, can, or must be paid.”

Merriam-Webster’s Collegiate Dictionary (11th ed). Undoubtedly, the interest-only payments

are “due and payable” annually, and elsewhere in the resolution the City makes plain that

penalties for nonpayment of taxes could be assessed if the interest was not paid. But, this “due

and payable” language simply distinguishes between the interest-only payments due and payable

annually and the principal payment, which was to be deferred consistent with the terms of the

VSADA. This establishment of an annual due date for the interest installments does not

condition the deferment of the principal on the actual payment of these annual installments.

Accordingly, there is no merit to plaintiff’s assertion that nonpayment of interest by the previous

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owners was a triggering event, and any evidence establishing that the previous owners were

delinquent in their payment of interest does not entitle plaintiff to relief on appeal.

Second, plaintiff asserts that a triggering event under the VSADA, specifically “final

zoning approval,” occurred before foreclosure. In contrast to this conclusion, the trial court

concluded that “final zoning approval” referred to “completion of the review” by the planning

commission and city staff as required to bring the planned unit development (PUD) zoning into

fruition. In our view, considering the phrase “final zoning approval” in context and in light of

the VSADA as a whole, the trial court’s interpretation is correct.

Resolution 96-04 expressly incorporates certain provisions of the VSADA. For instance,

as noted, Resolution 96-04 states that “[t]he special assessment roll shall be deferred consistent

with the terms of the [VSADA] . . . .” Additionally, the confirmed special assessment roll

attached to Resolution 96-04 provides that “[p]rincipal payments, along with any unpaid simple

interest on that portion of the principal, shall be due upon certain governmental approvals being

issued consistent with the terms of [the VSADA] . . . .” Because Resolution 96-04 refers to the

VSADA for additional terms, it is appropriate to look to the VSADA to determine the rules for

deferment of the special assessment and, in particular, the governmental approvals in question.

See generally Forge v Smith, 458 Mich 198, 207; 580 NW2d 876 (1998) (stating that when a

writing incorporates additional terms by reference to another writing, the two should be read

together). Under § 2(g)(2)(d) of the VSADA, “[p]rincipal payments, with interest thereon

accrued on a pro rata basis, shall be due within 180 days of final zoning approval for a phase or

upon the City’s issuance of a soil erosion permit for the phase, whichever is earlier.” (Emphasis

added).

It is undisputed that the full Ravines project was successfully rezoned from single-family

residential to a high-density residential PUD district and that the City approved, with conditions,

a preliminary PUD site plan. This rezoning occurred in February 2004, approximately seven

months before the passage of Resolution 96-04 and the signing of the VSADA in September

2004. Nevertheless, according to plaintiff, this rezoning was the “final zoning approval,” and the

rezoning constituted a triggering event for payment of the special assessment. In other words,

plaintiff asserts that rezoning and “final zoning approval” are synonymous.

Plaintiff’s argument is unpersuasive when the phrase “final zoning approval” is

considered in context and in light of the VSADA and Resolution 96-04 as a whole. Plaintiff’s

proposed interpretation renders all provisions dealing with deferment of the special assessment

nugatory because the rezoning occurred before the signing of the VSADA and its incorporation

in the special assessment by Resolution 96-04. It is evident that the parties were aware of and

contemplated that fact because the rezoning is recognized in the recitals to the VSADA. Given

that understanding, if rezoning was a triggering event, everything in the VSADA and Resolution

96-04 relating to the deferment of the special assessment—the 10-year term, the interest-only

annual payments, the inclusion of a soil erosion permit as an event triggering payment, etc.—

would be meaningless because a triggering event occurred before the VSADA and Resolution

96-04 came into being. Rather than referring to a past event that would render all provisions

regarding deferment of the special assessment useless, § 2(g)(2)(d) of the VSADA is written in

the future tense: the principal payments “shall be due within 180 days of” one of the two

triggering events, “whichever is earlier.” In other words, the VSADA does not contemplate that

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a triggering event had already occurred; rather the parties to the VSADA were concerned with

possible future events that would trigger payment of the principal. 5 Read as a whole, it cannot

plausibly be concluded that the parties to the VSADA intended the PUD rezoning in February

2004 to be the “final zoning approval” that triggered payment of the special assessment

principal.

This conclusion is further supported by the fact that, while plaintiff focuses on the phrase

“final zoning approval,” the triggering event is actually “final zoning approval for a phase.”

(Emphasis added.) As noted, the parties acknowledged in the VSADA that the entire property

had been successfully rezoned, and it is undisputed that the development was a multiphase

project. In this context, reference to final zoning approval “for a phase” is significant because it

clearly denotes something other than rezoning of the entire project as a whole; it is specific to

each phase of the development. The City’s zoning ordinance, as it pertains to PUD projects,

includes requirements for “Final PUD Plan Review,” which must be approved for “each phase”

if the PUD is to be built in phases. Kentwood Zoning Ordinance, § 13.06(D)(2). At trial, Terry

Schweitzer, the community development director and zoning administrator for the City,

described the various stages of review, including rezoning and final site review of PUD projects,

that must be taken before actual construction can begin on a project. While plaintiff contends

that these various steps are unrelated to “zoning” approval, the requirements relating to final

PUD approval, including final approval for “each phase,” are part of the City’s zoning ordinance

and thus reasonably understood as part of zoning approval. See Kentwood Zoning Ordinance, ch

12 and 13. On the whole, the VSADA and Resolution 96-04 are not ambiguous, and the trial

court did not err by rejecting plaintiff’s assertion that “final zoning approval for each phase”

meant rezoning of the entire project, which occurred several months before the creation of the

deferred special assessment.

Finally, plaintiff asserts that an invoice from 2012 demonstrates that Shaffer had already

been billed for the principal on the special assessment. The document in question reports interest

as well as principal being “due.” However, even if the document could be read to indicate both

the principal and the interest were being billed, this would not necessarily entitle plaintiff to

5

As another example of the incongruity of plaintiff’s assertion that the triggering event predated

the VSADA, the confirmed special assessment roll attached to Resolution 96-04, includes an

attachment the assessment roll incorporates by reference. The document is similar to the one

involved in the parties’ stipulation and lists various trigger dates with a caveat that the dates “are

for demonstration only” and when “actual dates are inserted, the interest is automatically

recalculated.” Notably, the example date for final zoning approval is August 1, 2007. If

rezoning in February 2004 was a triggering event, there would be no need for a sample set of

dates because the actual date of the final zoning approval would already be known. Indeed, in a

paragraph entitled “Anticipated Allocations,” Roll A specifies that the “payment amounts

actually due will be determined based on the occurrence of certain governmental approvals being

issued . . . .” (Emphasis added.) Taken together, the VSADA and Resolution 96-04 clearly

support the conclusion that the triggering events were possible future events, not a past

occurrence.

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relief. The invoice is, at best, evidence that the City billed Shaffer, but it does not conclusively

establish that the special assessment was legally due and owing under the terms of the VSADA

or Resolution 96-04. In other words, the question of when the special assessment came due is

really a matter of interpreting the resolution as well as the VSADA and then discerning whether

a triggering event occurred. The invoice does not conclusively resolve this issue, and the trial

court did not clearly err by giving the document little or no weight.

In sum, the trial court did not clearly err by rejecting plaintiff’s assertion that a triggering

event occurred before March 2014. Absent a triggering event, the principal on the special

assessment came due in September 2014. And, as a future installment of the special assessment,

this obligation survived foreclosure. See MCL 211.78k(5)(c). Consequently, plaintiff is not

entitled to relief on appeal.

V. PLAINTIFF’S PRIOR PAYMENT

Next, plaintiff argues that the trial court erred by failing to order the return of a $30,000

payment he made to the City after receiving a bill for taxes owed pursuant to the special

assessment. MCL 211.53a provides:

Any taxpayer who is assessed and pays taxes in excess of the correct and

lawful amount due because of a clerical error or mutual mistake of fact made by

the assessing officer and the taxpayer may recover the excess so paid, without

interest, if suit is commenced within 3 years from the date of payment,

notwithstanding that the payment was not made under protest.

Although plaintiff raised this issue below, the trial court did not expressly address the question of

a refund, presumably because it determined that the full principal of the special assessment had

not been extinguished by the foreclosure. Because we cannot agree with the trial court’s ruling

as it relates to Phase 1 for the reasons explained in Part II of this opinion, on remand, the trial

court should address plaintiff’s entitlement to a refund in the first instance.

VI. SLANDER OF TITLE

Finally, plaintiff argued in his appellate brief that the trial court erred by granting

summary disposition regarding his slander of title claim on the basis of governmental immunity.

At oral argument, plaintiff’s counsel withdrew this claim of error, acknowledging that it lacked

merit in light of this Court’s recent decision in Petersen Financial LLC v Kentwood, ___ Mich

App ___, ___; ___ NW2d ___ (2018) (Docket No. 339399); slip op at 10-11. Accordingly, we

will not address this issue.

VII. CONCLUSION

In sum, the trial court was bound by the parties’ factual stipulation regarding the

conclusive nature of the trigger dates identified in the stipulated document, although we

emphasize that those dates were controlling only as to Phase 1 of the B-4 Neighborhood.

According to the stipulated document, any amount of the special assessment balance that was

attributable to Phase 1 became due before the foreclosure. That amount was therefore

extinguished by the foreclosure under MCL 211.78k(5)(c). Because that amount is not readily

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ascertainable from the record, we remand for further proceedings consistent with this opinion.

On remand, the trial court should also address in the first instance plaintiff’s claim that he was

entitled to a refund of the $30,000 he previously made to the City. We affirm in all other

respects. We do not retain jurisdiction.

/s/ Michael J. Riordan

/s/ Jane E. Markey

/s/ Anica Letica

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