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STATE OF MICHIGAN

IN THE COURT OF APPEALS

CITY OF DETROIT, COA Docket No.: 352240

Plaintiff-Appellee,
Wayne Circuit Court No. 19-003483-AV
v. Hon. Patricia Perez Fresard

36th District Court No. 17-121449


COURTNEY RITCHIE, Hon David S. Robinson, Jr.

Defendant-Appellant.

_____________________________________________________________________________/

ROOSEN, VARCHETTI & OLIVIER, PLLC VENTURE LAW, PLLC


Richard G. Roosen (P35222) H. Russel Smith (P35922)
James Varchetti (P79606) Attorney for Defendant-Appellant
Attorneys for Plaintiff-Appellee 24333 Southfield Road, Suite 103

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P.O. Box 2305 Southfield, MI 48075.
Mount Clemens, MI 48046 (313) 231-2787
(586) 868-2737
(586) 868-0259 (Fax)

_____________________________________________________________________________/

PLAINTIFF-APPELLEE’S ANSWER TO DEFENDANT-APPELLANT’S


DELAYED APPLICATION FOR LEAVE TO APPEAL

*** ORAL ARGUMENT NOT REQUESTED1 ***

1
Defendant-Appellant requested oral argument on the cover of its Delayed Application for Leave to Appeal. Oral
argument is not permitted on applications for leave to appeal. MCR 7.205(E)(1).
TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………………………………………i

INDEX OF AUTHORITIES ..........................................................................................................ii

STATEMENT OF APPELLATE JURISDICTION ......................................................................iii

STATEMENT CHALLENGING REASON FOR DELAY…………………………...…………iv

COUNTERSTATEMENT OF THE QUESTIONS PRESENTED ................................................v

COUNTERSTATEMENT OF FACTS...........................................................................................1

ARGUMENT

I. The lower courts correctly held that defendant was the property owner during the
relevant years because a forfeiture, as defined in the General Property Tax Act
(“GPTA”), does not transfer ownership of real property..............................................5

A. Preservation and Standard of Review……………………………….............................5

B. Forfeiture is a defined term in the GPTA, and forfeiture does not result in the transfer
of ownership under the plain language of the term’s statutory definition………………...5

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II. The lower courts correctly denied defendant’s joint Motion for Relief from
Judgment and Motion to Amend Judgment because it lacked any arguable merit or
evidentiary support. ……………………………………………………….…………….9

A. Preservation and Standard of Review ……………………………………………...….9

B. Defendant’s joint Motion for Relief from Judgment and to Amend Judgment was
meritless because it was based on obviously irrelevant evidence or otherwise totally
unsupported by any evidence whatsoever……….……………………………………….10

CONCLUSION AND REQUEST FOR RELIEF..........................................................................14

i
INDEX OF AUTHORITIES
CASELAW

Ford Motor Co v Dep’t of Treasury,


313 Mich App 572; 884 NW2d 587 (2015) ...…………………………………………….5

Haynes v Neshewat,
477 Mich 29; 729 NW2d 488 (2007) …………………………………………….……….8

Hines v Volkswagen of America, Inc,


265 Mich App 432; 695 NW2d 84 (2005) ……………………………………………. 5, 9

Lantz v Southfield City Clerk,


245 Mich App 621; 628 NW2d 583 (2001) ………………………………………….….13

Merchand v Carpenter,
501 Mich 1071; 911 NW2d 198 (2018) ………………………..…………………..……13

Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd,


275 Mich App 256; 739 NW2d 121 (2007)………………………………………..…11,13

Oliver v Smith,
290 Mich App 678; 810 NW2d 57 (2010) …………………………………………….….5

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Reeves v Kmart Corp,
229 Mich App 466; 582 NW2d 841 (1998)………………………………………….…. 12

Shawl v Spence Bros, Inc,


280 Mich App 213; 760 NW2d 674 (2008)…………………………………………...…..9

Tryc v Mich Veterans’ Facility,


451 Mich 129; 545 NW2d 642 (1996) ……………………………………………..……..8

Yee v Shiawassee Co Bd of Commr’s,


251 Mich App 379; 651 NW2d 756 (2002) ………………………………………………9

STATUTES & COURT RULES


MCL 211.1 ………………………………………………………………………………………..5
MCL 211.78(8)(a)…………………………………………………………………………………6
MCL 211.78(8)(b) ………………………………………………………………………… passim
MCL 211.78g(2)………………………………………………………………………………5,7,8
MCL 211.78k……………………………………………………………………………….……..6
MCR 2.612(C)(1)(b),(c), & (f) ………………………………………………………………….11
MCR 7.109(A)…………………………………………………………………………………...10
MCR 7.109(B)(1)(a)……………………………………………………………………………..10
MCR 7.210(A)(1)………………………………………………………………………………..10

ii
STATEMENT OF THE BASIS OF JURISDICTION

The Court of Appeals has jurisdiction to entertain an application for leave to appeal under

MCR 7.203(B)(2) for any judgment of the Circuit Court on appeal from a District Court. This

situation encompasses the present application for leave to appeal because Defendant seeks to

appeal the Circuit Court’s appellate decision.

Further, Defendant’s Application for Leave to Appeal is untimely because it is filed more

than 21 days after the order at issue, and this Court only has authority to entertain his application

pursuant to MCR 7.205(G) (Late Appeal).

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iii
STATEMENT CHALLENGING REASON FOR DELAY

Defendant-Appellant’s Delayed Application for Leave to Appeal must provide an

explanation for the delay. MCR 7.205(G)(1). Under MCR 7.205(G)(1), “The answer may

challenge the claimed reasons for delay” and “[t]he court may consider the length of and reason

for the delay in deciding whether to grant the application.”

In this instance, the length and reason for the delay weigh against this Court exercising its

discretionary power to grant the late application for leave to appeal. The reason for delay is that

Defendant’s counsel improperly tried to claim an appeal by right for this matter when none was

available under the court rules. Accordingly, this Court properly dismissed the appeal for lack of

jurisdiction. City of Detroit v Ritchie, unpublished order of the Court of Appeals, entered August

13, 2019 (Docket No. 350029). Rather than immediately trying to correct the issue, Defendant

inexplicably waited until the last possible minute—some six months later—to attempt to invoke

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this Court’s discretionary power to review the appellate decision of the Wayne Circuit Court.

Plaintiff submits that Defendant’s own inattention to the court rules (improperly filing an

appeal by right) and unreasonable delay (of almost six months) counsel against this Court

exercising its discretionary power to grant the late application for leave to appeal. In any event,

Defendant’s arguments are meritless for the reasons stated in the opinion and order issued by the

Wayne Circuit Court and for the reasons discussed in the balance of this brief.

iv
COUNTER-STATEMENT OF THE QUESTIONS INVOLVED

I. Did the lower courts correctly hold that defendant was the property owner during
the relevant years because a forfeiture, as defined in the General Property Tax Act
(“GPTA”), does not transfer ownership of real property?

Circuit Court answered: yes


District Court answered: yes
Appellant answers: no
Appellee answers: yes

II. Did the lower courts correctly deny defendant’s Motion for Relief from Judgment
and Motion to Amend Judgment because it lacked merit and evidentiary support?

Circuit Court answered: yes


District Court answered: yes
Appellant answers: no
Appellee answers: yes

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v
COUNTERSTATEMENT OF FACTS

For ease of reference, the transcripts of the hearings below will be cited in the statement

of facts in the following manner:2

“M Tr I” = Motion for Summary Disposition, December 20, 2018

“M Tr II” = Motion for Relief from Judgment, February 21, 2019

The facts of this case are straightforward. Defendant Courtney Ritchie owned several

properties in the City of Detroit. Under the General Property Tax Act (“GPTA”), MCL 211.1 et

seq., Plaintiff is entitled to collect property taxes on real property located within the City of

Detroit. Plaintiff sued defendant to collect unpaid property taxes on defendant’s properties from

tax years 2011 through 2013, which corresponded with defendant’s ownership of the properties

in question. All the properties in question were foreclosed upon by 2014, and therefore, were no

longer owned by defendant by that year.

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Plaintiff moved for summary disposition under MCR 2.116(C)(4) (lack of jurisdiction

over any defenses), (C)(7) (defenses waived), (C)(9) (failure to state a valid defense), and

(C)(10) (no genuine issue of fact). The crux of plaintiff’s motion was that defendant waived any

defenses by failing to object to tax assessments, and there was no genuine issue of fact because

documentary evidence demonstrated that defendant was liable for the delinquent taxes.

Defendant filed a response challenging the motion. Defendant asserted that one of the

properties at issue, 14116 Westbrook, was foreclosed prior to the tax years at issue. Defendant

provided a Notice of Judgment Foreclosure to prove this circumstance. Defendant also asserted

that she no longer owned the other properties during the tax years at issue because the properties

had been forfeited under the GPTA in previous years. To support this argument, defendant

2
If not already filed with the court, the transcripts are included as Exhibits A & B in Plaintiff-
Appellee’s Appendix.
1
relied upon the definition of “forfeit” found in Merriam-Webster’s Dictionary rather than on the

definition contained in the GPTA. Defendant also asserted that the doctrine of the election of

remedies precluded plaintiff from filing an in-personam suit against her to collect the tax

deficiencies after the properties had been foreclosed.

Plaintiff filed a reply brief contending that defendant’s argument regarding the election of

remedies was invalid. Plaintiff acknowledged that defendant produced evidence that one of the

properties at issue, 14116 Westbrook, had been transferred out of defendant’s name before the

tax years at issue.

At the motion hearing, plaintiff acknowledged that the evidence demonstrated that

defendant did not own 14116 Westbrook during the tax years in question (M Tr I, 4).

Accordingly, plaintiff requested that it receive a judgment for delinquent taxes only on the other

properties—excluding the Westbrook property—which totaled $3,670.97 (M Tr I, 4). In turn,

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defendant argued that it did not own the remaining properties because, while the properties were

not foreclosed, they had previously been forfeited under the GPTA (M Tr I, 5-6). The court

inquired of defendant, “is it your contention that the notice of forfeiture is the equivalent of

change of ownership of the property?” and defendant affirmed that indeed, that was defendant’s

position (M Tr I, 6). The court asked defendant to provide legal authority to support this

argument, and defendant asserted that there was no statutory language that defined forfeiture and

that defendant was relying on the “regular dictionary meaning of the term that says that you lost

the property” (M Tr I, 7). Plaintiff countered that it is the judgment of foreclosure—not the

forfeiture—that transfers ownership of a property under the GPTA (M Tr I, 7-8). In response,

defendant asserted that plaintiff cited no legal authority, but plaintiff referred defendant to the

2
language of a Judgment of Foreclosure itself, which cites the GPTA for the proposition that the

foreclosure vests title (M Tr I, 8-9).

The court summarized the matter stating that defendant argued that forfeiture is the

equivalent of foreclosure, and that defendant admitted having no authority to support that

contention aside from the ordinary meaning of the word itself (M Tr I, 9). But the Court

explained that the statutory authority on the face of the deeds demonstrated that defendant’s

position was erroneous (M Tr I, 9). The court continued that defendant’s argument “is not

supported by the law. The law is relatively clear. You change title in these matters by the

judgment of foreclosure.” (M Tr I, 9). The court granted summary disposition in plaintiff’s favor

in relation to all properties except the Westbrook property (M Tr I, 10). Plaintiff received

summary judgment in the amount requested.

Shortly thereafter, defendant filed a “Motion for Relief from Judgment and Amendment

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of Judgment” asserting that newly discovered evidence demonstrated that two of the properties at

issue had actually been foreclosed, but improperly listed as forfeited afterward. Defendant

attached two notices of a judgment of foreclosure to support this claim. Consequently, defendant

argued that she should not be liable for taxes on those properties. Defendant also asserted that an

unauthorized “processing fee” and that costs pre-2010 were improperly included in the

judgment.

Plaintiff evaluated the motion and filed a response arguing that the newly discovered

evidence was irrelevant. While defendant attached two “Notice of Judgment Foreclosure”

documents to her motion, those foreclosure notices were for properties that were not at issue in

the case. Thus, plaintiff argued that the newly discovered evidence had no effect on the

judgment and were immaterial. Additionally, plaintiff asserted that it was perplexed by

3
defendant’s assertion that an improper processing fee was included. Defendant’s motion referred

to the highlighted portion of an exhibit to prove that an unauthorized “processing fee” was

charged. But the highlighted portion of the exhibit was an auction minimum bid, not a

processing fee. Thus, plaintiff asserted that it was unclear how defendant was supporting her

claim about an unauthorized processing fee.

At the motion hearing, the court denied defendant’s motion for relief from judgment

stating that defendant’s counsel could have could have discovered the “new” evidence “during

all the time that this case has been pending” and that defendant provided “no meritorious reason”

to grant relief from judgment (M Tr II, 11). The court added that defendant’s lack of

understanding of the City/County revolving fund and the tax foreclosure process was “also part

of the problem we have here” (M Tr II, 11).

Following denial of the motion, defendant filed a claim of appeal to the Wayne Circuit

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Court. Following oral argument,3 the Circuit Court entered an Opinion and Order that rejected

defendant’s arguments and affirmed the decisions of the 36th District Court. The Circuit Court

agreed with plaintiff/appellee’s substantive legal arguments. The Circuit Court determined that

contrary to defendant’s claim, the GPTA itself defines “forfeiture,” and a forfeiture does not

result in a transfer of property under the statutory definition. The Circuit Court also held that

denial of defendant’s Motion for Relief from Judgment was not an abuse of discretion because

defendant presented “new evidence” that was immaterial to the case and because defendant

failed to produce any evidence that she was improperly charged costs for inapplicable tax years

or for an unauthorized processing fee. The Circuit Court further determined that defendant

improperly tried to expand the record on appeal by attaching new exhibits not submitted with her

3
Per Defendant-Appellant, there is apparently no transcript of the oral argument on appeal
leaving only the Circuit Court’s written Opinion and Order.

4
motion below, and the Circuit Court declined to consider the new exhibits because they were not

part of the original record. See Opinion and Order Affirming Decision of 36th District Court,

7/11/19.

Defendant filed a claim of appeal by right, which this Court properly dismissed for lack

of jurisdiction. City of Detroit v Ritchie, unpublished order of the Court of Appeals, entered

August 13, 2019 (Docket No. 350029). Six months later, Defendant filed a Delayed Application

for Leave to Appeal. Plaintiff’s Answer now follows.

ARGUMENT

I. The lower courts correctly held that defendant was the property owner during the
relevant years because a forfeiture, as defined in the General Property Tax Act
(“GPTA”), does not transfer ownership of real property.

A. Preservation of the Issue and Standard of Review

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Generally, an issue must be raised in the trial court to be preserved for appellate review.

Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005). This issue

was preserved because it was raised in and addressed by the lower court (See generally M Tr I).

Appellate courts review de novo a trial court’s decision on a motion for summary

disposition. Oliver v Smith, 290 Mich App 678, 683; 810 NW2d 57 (2010). Likewise, issues of

statutory interpretation are reviewed de novo. Ford Motor Co v Dep’t of Treasury, 313 Mich

App 572, 583-584; 884 NW2d 587 (2015).

B. Forfeiture is a defined term in the GPTA, and forfeiture does not result in
the transfer of ownership under the plain language of the term’s statutory
definition.

The lower court correctly held that defendant owned the properties during the pertinent

tax years, and this court should therefore deny the delayed application for leave for lack of merit.

5
The question presented by Defendant is whether a transfer of ownership occurs when a

property is “forfeited” pursuant to the General Property Tax Act (“GPTA”), MCL 211.1 et seq.

The crux of defendant’s argument is that because her properties were “forfeited” under the

GPTA, ownership of the properties was transferred out of her name, and Defendant should

therefore not be liable for property taxes. But Defendant’s argument is simply incorrect: no

transfer of property occurs when a property is forfeited under the GPTA because the statutory

definition of “forfeited” and “forfeiture” provides that a foreclosing government unit does not

acquire any interest in the property when a property is forfeited. Thus, under the GPTA,

ownership of a forfeited property remains with the taxpayer. Title, and therefore legal

ownership, only changes after a judgment of foreclosure is entered. 4

The plain language of the GPTA resolves this dispute in plaintiff’s favor. MCL

211.78(8)(b) defines the words “forfeited” and “forfeiture” as used in the GPTA:

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"Forfeited" or "forfeiture" means a foreclosing governmental unit[5] may seek a
judgment of foreclosure under section 78k[6] if the property is not redeemed as
provided under this act, but does not acquire a right to possession or any other
interest in the property. [MCL 211.78(8)(b) (emphasis added).]

Thus, the definition of “forfeiture” under the GPTA is clear and unambiguous: the term means

that a forfeited property is subject to foreclosure, but the foreclosing governmental unit (in this

case, Wayne County) does not acquire a right to possession or any other interest in the forfeited

property whatsoever. The application of this definition to the facts of this case is equally clear:

defendant’s properties were forfeited—but not yet foreclosed—during the tax years at issue.

4
See MCL 211.78g(2) (stating that absolute title to the property will vest in the county treasurer
on the March 31st succeeding entry of a judgment foreclosing the property).
5
The “foreclosing governmental unit” referenced in this statute means either the county treasurer
or the State of Michigan if the county elected to have the state foreclose on property. See MCL
211.78(8)(a).
6
MCL 211.78k provides the procedure and process for foreclosures pursuant to the GPTA.

6
Thus, under the definition of “forfeited” in the GPTA, defendant remained the owner of the

properties and therefore remained liable for property taxes.

Despite the clear language of the statute, defendant argues that the GPTA only defines

forfeiture with respect to the foreclosing government unit by stating that the governmental unit

does not acquire an interest in the forfeited property. Defendant uses that assertion as a

launching point to conclude that the GPTA does not define whether the taxpayer retains

ownership of the property after forfeiture. With respect, defendant’s reasoning is flawed given

the plain language of the statute. The language of MCL 211.78(8)(b) is clear: when a property is

“forfeited” that merely means that a foreclosing governmental unit has the authority to foreclose

on the property. Per that statute, the foreclosing governmental unit does not gain any interest in

the forfeited property, possessory or otherwise. MCL 211.78(8)(b). Thus, the taxpayer remains

the owner of the property after forfeiture; the effect of forfeiture is merely that the taxpayer’s

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property becomes subject to foreclosure at a later date.

The argument in defendant’s Delayed Application continues in a vein that is—at best—

an attempt to ignore the statutory definition of forfeiture and the rules of statutory construction.

At worst, defendant’s argument contains an obvious misstatement of the law. Defendant’s brief

asserts that “ ‘[f]orfeiture’ has a meaning and since it was not independently defined, must have

the ordinary and normal use of the word when written.”7 Despite arguing that forfeiture was not

independently defined in the GPTA, defendant’s own brief cites the statutory definition of

forfeiture, which undercuts Defendant’s argument that it is not a defined word in the statute.8

7
Defendant’s Delayed Application for Leave to Appeal, January 13, 2020, p 12.
8
Defendant’s Delayed Application for Leave to Appeal, January 13, 2020, p 12 (quoting the
statutory definition of forfeiture contained in MCL 211.78(8)(b)).

7
In any event, Defendant is simply incorrect that the ordinary use of the word forfeiture

could have any application with respect to the GPTA. Indeed, the ordinary, dictionary definition

of “forfeiture” cannot be used because the GPTA provides a specific definition for that term.

“When a statute specifically defines a given term, that definition alone controls.” Haynes v

Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007) (emphasis added); Accord Tryc v Mich

Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). Thus, the only definition of

forfeiture that can have any meaning in the context of the GPTA is the statute’s own definition of

forfeiture contained at MCL 211.78(8)(b). Defendant is not free to select another definition from

the dictionary when the Legislature specifically defined that term in the statutory scheme.

Defendant’s argument continues by citing caselaw relating to asset forfeiture in criminal

cases and forfeiture in other legal contexts. Again, the definition of forfeiture in other legal

contexts is inapplicable in this instance because the GPTA specifically defines what forfeiture

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means, and the statutory definition in the GPTA must control. See Haynes, 477 Mich at 35.

Defendant’s argument to the contrary is not supported by caselaw or the rules of statutory

construction.

Finally, defendant argues that she was not the “owner” of the properties based upon

caselaw defining the word “owner” in other contexts and her belief that Wayne County owned

the subject properties once they were forfeited (even if the County lacked a right to possess the

property). This variation on defendant’s argument lacks merit. Again, the definition of

forfeiture is unambiguous: “the foreclosing governmental unit does not acquire a right to

possession or any other interest in the property.” MCL 211.78(8)(b) (emphasis added).

Accordingly, Defendant’s argument that Wayne County owned the property after the forfeiture is

8
meritless because the definition of forfeiture states that the County gained no rights in the

property, whether in terms of possession or ownership.

In summary, the GPTA defines forfeiture in MCL 211.78(8)(b), and the statutory

definition is unambiguous: no transfer of ownership occurs when a property is forfeited. Instead,

the property merely becomes subject to foreclosure, and the government obtains no interest in

the property whatsoever merely because of forfeiture. See MCL 211.78(8)(b). Defendant did not

provide any authorities to the contrary and has only provided definitions and interpretations of

“forfeiture” that are inconsistent with the controlling statutory definition of that term in the

GPTA. Accordingly, defendant’s argument on appeal lacks merit and this Court should deny the

delayed application for leave to appeal for lack of merit in the grounds presented.

II. The lower courts correctly denied defendant’s Motion for Relief from Judgment
and Motion to Amend Judgment because both lacked arguable merit or evidentiary
support.

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A. Preservation of the Issue and Standard of Review

Generally, an issue must be raised in the trial court to be preserved for appellate review.

Hines, 265 Mich App at 443. This issue was preserved because it was addressed and decided at

the motion hearing for the Motion for Relief from Judgment (See generally M Tr II).

A trial court’s decision on a motion for relief from judgment is reviewed for an abuse of

discretion. Yee v Shiawassee Co Bd of Commr’s, 251 Mich App 379, 404; 651 NW2d 756

(2002). An abuse of discretion occurs only when the trial court’s decision falls outside the range

of reasonable and principled outcomes. Shawl v Spence Bros, Inc, 280 Mich App 213, 221; 760

NW2d 674 (2008). Further, an abuse of discretion “involves far more than a difference in

judicial opinion.” Id. at 220.

9
B. Defendant’s Joint Motion for Relief from Judgment and Motion to Amend
Judgment was meritless because it was based on obviously irrelevant
evidence or otherwise totally unsupported by any evidence.

The lower court correctly denied the defendant’s joint Motion for Relief from Judgment

and Motion to Amend Judgment because it was meritless and unsupported by evidence. Thus,

the lower court did not abuse its discretion, and this court should deny the delayed application

for leave to appeal.

Examining Defendant’s motion for relief, Defendant failed to provide any valid reason

for the court to relieve her from the operation of judgment. See Defendant’s Motion for Relief

From Judgment, Appendix Exhibit C. Defendant moved for relief from judgment under MCR

2.612(C)(1)(b) (newly discovered evidence), (C)(1)(c) (fraud or misrepresentation of adverse

party), and (C)(1)(f) (any other reason justifying relief). Defendant asserted that: (1) new

evidence demonstrated that she did not own two of the properties at issue during the pertinent tax

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years because they were actually foreclosed upon before the applicable tax years through the

misfeasance of the county; (2) she was charged an improper “processing fee,” and, (3) that she

was improperly charged for property taxes for years earlier than 2010. Each of the three issues

Defendant presented in the motion was meritless.

First, the “newly discovered evidence” presented in the defendant’s motion was

unrelated to this case. Defendant asserted that she discovered two of the properties at issue were

actually foreclosed and not merely forfeited. In support of this argument, defendant attached two

“Notice of Judgment Foreclosure” documents to her Motion for Relief from Judgment. But the

foreclosure judgment notices pertained to properties that were not even at issue in the instant

case. The judgment notices that defendant attached to her motion were for properties listed as

“14890 Blackstone, Detroit” and “14569 Trinity, Detroit.” But plaintiff’s instant lawsuit did not

10
seek to collect delinquent taxes on those properties.9 Thus, the newly discovered judgment

notices attached to the motion had no bearing on this matter and did not justify seeking relief

from judgment. The lower courts correctly determined that this “new evidence” was immaterial

and irrelevant.

Second, defendant did not demonstrate that an unauthorized “processing fee” was

charged or made part of the judgment. Defendant’s motion asserted that after conversing with

unidentified county officials, she believed that she was improperly charged a “processing fee.”

Defendant provided no explanation and directed attention to the highlighted portion of “Exhibit

B” attached to her Motion for Relief from Judgment. In turn, Exhibit B to her motion was a

spreadsheet containing tax calculations provided by the Plaintiff to Defendant. But the portion of

the exhibit highlighted by defendant merely listed a proposed auction minimum bid. Thus, it

was completely unclear how Defendant was supporting her argument that she was charged an

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unauthorized “processing fee.” Further, defendant’s argument was abandoned because it was not

supported by meaningful argument, legal authorities, or evidence. See Nat’l Waterworks, Inc v

Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 265; 739 NW2d 121 (2007) (“A party may not

merely announce a position and leave it to this Court to discover and rationalize the basis for the

claim.”). The lower courts correctly determined that this argument was meritless.

Third, there were no pre-2010 costs included in the tax calculations that would be subject

to the statute of limitations defense. Defendant’s motion asserted that the plaintiff’s tax

calculations spreadsheet (which was attached to her Motion for Relief from Judgment as Exhibit

B) indicated pre-2010 costs, which were precluded by the statute of limitations defense. Indeed,

9
Plaintiff’s Complaint sought unpaid taxes on, among other properties, 14882 Blackstone, 14549
Trinity, and 15492 Trinity. See Complaint, Appendix Exhibit D. But plaintiff’s complaint did
not seek unpaid taxes for the property addresses listed on the exhibits defendant attached to her
Motion for Relief from Judgment.

11
defendant even highlighted an entry on the tax calculation spreadsheet titled “Due_2010_Prior”

that contained a monetary value. But the amounts contained in that spreadsheet entry for the

year 2010 were not used to calculate the Defendant’s liability for the subject properties. Instead,

only the entries for the years 2011 and later were used to calculate the total amount due.

Defendant could have easily determined this by examining the total pro-rata tax amount due for

each property and observing that the amounts for the year 2010 and earlier were not included in

the total. Thus, Defendant simply did not provide any reason to amend the judgment to deduct

these amounts. The lower courts correctly noted the above and concluded that Defendant’s

argument was meritless.

Finally, there are miscellaneous points that must be addressed relating to this issue and

the arguments made in Defendant’s Delayed Application for Leave and in the lower courts.

First, in the Circuit Court appeal, Defendant improperly attempted to expand the record

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by presenting exhibits that were never presented to the District Court. This was improper

because appellate review is limited to the original record. MCR 7.109(A). The Circuit Court

properly declined to consider the evidence that was never presented to the lower court. See

Opinion and Order, 7/12/19, p 5 (citing Reeves v Kmart Corp, 229 Mich App 466, 481 n 7; 582

NW2d 841 (1998) for the proposition that an appellate court should not review documents not

presented to the lower court). Defendant’s Delayed Application inexplicably continues to

improperly reference these extraneous and improper exhibits (notwithstanding the fact that

Defendant did not attach them to his Delayed Application). In any event, appellate review in this

Court is also limited to the original papers filed in the trial court, which would not include

improper exhibits that were not presented to the trial court. MCR 7.210(A)(1).

12
Second, Defendant’s Delayed Application makes a rapid succession of difficult to

comprehend arguments or assertions that were not raised in his Motion for Relief from

Judgment. Issues raised for the first time on appeal—like these scattershot arguments—are not

preserved and not subject to review save for “exceptional circumstances.” Lantz v Southfield

City Clerk, 245 Mich App 621, 627 n 4; 628 NW2d 583 (2001). In fact, it would be improper for

this Court to hold that the trial court abused its discretion by denying the motion based upon

arguments that Defendant never presented in the Motion for Relief from Judgment. See

Merchand v Carpenter, 501 Mich 1071, 1072; 911 NW2d 198 (2018) (reversing an appellate

determination that a trial court abused its discretion by declining to admit evidence when the

legal theory under which the evidence was admissible was never presented to the trial court).

Thus, defendant cannot prevail on these arguments. Further, Defendant abandons these

arguments by failing to support them with factual citations or legal authority. See Nat’l

RECEIVED by MCOA 1/30/2020 4:41:42 PM


Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 265; 739 NW2d 121 (2007).

In summary, Defendant’s Motion for Relief from Judgment provided “newly discovered

evidence” in the form of foreclosure judgments that were unrelated to this case and were

therefore immaterial. Defendant’s motion also failed to demonstrate that any unauthorized

“processing fee” was charged or that any pre-2010 charges were included the tax bill. Thus, the

actual grounds stated in Defendant’s Motion for Relief from Judgement did not warrant relief

from judgment or an amendment of the judgment. Accordingly, the trial court’s decision to deny

the motion fell within the range of reasonable and principled outcomes, and the trial court

therefore did not abuse its discretion.

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CONCLUSION AND RELIEF REQUESTED

In summation, the length and reason for delay (which this Court may consider under

MCR 7.205(G)(1)) counsel against granting leave because the reason for the delayed application

is defendant’s own inattention to the court rules governing appeals. Further, both issues upon

which Defendant seeks review are meritless. The Legislature specifically defined forfeiture in

the GPTA, and that definition alone controls; defendant is not free to select another definition

from the dictionary or from other legal contexts. And the trial court did not abuse its discretion

by denying the Motion for Relief from Judgment because the motion was unsupported by facts

or any relevant evidence. The trial court properly disposed of this matter and the Circuit Court’s

Opinion and Order of July 12, 2019 seamlessly and correctly addressed all the issues raised by

Defendant’s appeal of right to that court.

WHEREFORE, Plaintiff requests that this Court DENY the Delayed Application for

RECEIVED by MCOA 1/30/2020 4:41:42 PM


Leave to Appeal for lack of merit in the grounds presented.

Respectfully Submitted,

/s/ James Varchetti ___________________


ROOSEN, VARCHETTI & OLIVIER, PLLC
Richard G. Roosen (P35222)
James Varchetti (P79606)
Attorneys for Plaintiff
P.O. Box 2305
Mt. Clemens, MI 48046
Date: 1/29/2020 (586) 868-2737
OFN: 185402

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