Brown Bark I, L.P. v. Traverse City Light and Power ( 2012 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 12a0988n.06
    No. 10-2644                                 FILED
    Sep 07, 2012
    UNITED STATES COURT OF APPEALS                DEBORAH S. HUNT, Clerk
    FOR THE SIXTH CIRCUIT
    BROWN BARK I, L.P.,                                )
    )
    Plaintiff-Appellant,                        )        ON APPEAL FROM THE UNITED
    )        STATES DISTRICT COURT FOR
    v.                                                 )        THE WESTERN DISTRICT OF
    )        MICHIGAN
    TRAVERSE CITY LIGHT AND POWER                      )
    DEPARTMENT,                                        )
    )        OPINION
    Defendant-Appellee.                         )
    )
    Before: SUHRHEINRICH, STRANCH, and DONALD, Circuit Judges.
    DONALD, Circuit Judge. Plaintiff-Appellant Brown Bark I, L.P. (“BBI”) brought suit
    against Traverse City Light & Power (“TCL&P”) in the Western District of Michigan pursuant to
    
    28 U.S.C. § 1332
    , seeking a declaration that TCL&P has no right under the Michigan Revenue Bond
    Act (“RBA”) to assert tax liens; BBI also sought to quiet title and alleged, among other things,
    slander of title. BBI and TCL&P filed cross motions for summary judgment. The district court
    denied BBI’s motion and granted TCL&P’s motion, holding that TCL&P has a valid tax lien
    pursuant to the RBA. BBI now appeals, alleging the district court erred in applying the RBA. For
    the following reasons, we affirm.
    No. 10-2644
    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    I.
    BBI owns Brewery Creek Office Condominium Development (“the Property”) in Leelanau
    County, Michigan. TCL&P is a municipally-owned utility provider that services the area in which
    the Property is located. Brewery Creek Development (“BCD”) was formed to develop the Property.
    On May 21, 2003, Republic Bank issued BCD a loan to develop the Property. Republic’s mortgage
    was recorded on May 28, 2003. Brewery Creek Center Condominium Association (“BCCCA”)
    served as the Property’s owners’ association.
    In April 2004, BCCCA and TCL&P entered into an agreement (the “Lighting Agreement”),
    whereby TCL&P advanced BCCCA money to install light fixtures in the parking lots, driveways,
    and common areas of the Property. TCL&P hired a third-party contractor to install the lighting
    fixtures. The Lighting Agreement did not address the future sale of electricity to BCD. The
    Agreement established that the BCCCA would repay the amount advanced for the fixtures over a
    10-year schedule. The Lighting Agreement also provided that TCL&P could pursue real estate tax
    liens on the Property in the event BCCCA failed to pay the amount advanced by TCL&P. BCD and
    three condominium property owners consented in writing (the “Consents”) to allow TCL&P to
    impose a tax lien in accordance with 
    Mich. Comp. Laws § 141.121
     in the event BCCCA failed to
    pay. Traverse City has incorporated 
    Mich. Comp. Laws § 141.121
    (3) into its Code of Ordinances
    to ensure that it could avail itself of the provision permitting imposition of a tax lien. The Consents
    were recorded with the Leelanau County Register of Deeds in July 2004. The mortgage lender,
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    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    Republic Bank, did not consent to a lien being placed on the Property, and, in fact, the mortgage
    agreement with Republic Bank expressly prohibited the imposition of a lien on the Property.
    In March 2007, BBI purchased Republic’s right, title, and interest on the mortgage and on
    the Property. The assignment was recorded on April 19, 2007. BCD defaulted on the mortgage.
    BBI foreclosed on the mortgage, and on November 21, 2008, BBI bought the Property at the
    foreclosure sale. The Property was not redeemed and the Sheriff’s Deed was delivered to BBI.
    One week prior to the foreclosure sale, TCL&P instituted a state action against BCD and
    BCCCA claiming both entities had breached the Lighting Agreement by failing to repay the funds
    TCL&P advanced for the lighting fixtures. TCL&P did not join BBI in the action. The state court
    entered a consent judgment against BCD for breach of contract. Because BBI now owned the
    Property, once it learned of the state court action, it filed a motion to intervene. The motion was
    denied. TCL&P admitted that “the [j]udgment may have gone too far[,]” and counsel for TCL&P
    was willing to consent to an amended judgment that removed language allowing TCL&P to enforce
    the debt as a tax lien on the Property. The state court ultimately did not remove this language from
    the judgment and simply awarded TCL&P monetary damages against BCD. TCL&P has not
    relinquished its claim that it has authority to impose a tax lien.
    BBI then filed suit against TCL&P challenging TCL&P’s right to impose a lien on the
    Property. The parties filed cross-motions for summary judgment. Holding that TCL&P may impose
    a tax lien on delinquent charges pursuant to the RBA, the district court found in favor of TCL&P and
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    No. 10-2644
    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    granted its motion for summary judgment on all claims. BBI now appeals, claiming that the district
    court erred in applying the RBA to the charges at issue, that BBI’s foreclosed mortgage extinguishes
    any lien TCL&P had on the property, and that TCL&P is liable for slander of title. The City of
    Grand Rapids, Michigan filed an amicus-curiae brief in support of TCL&P.
    II.
    Holding that the RBA applies, the district court granted TCL&P summary judgment on all
    claims. We review a district court’s grant of summary judgment de novo. Blackmore v. Kalamazoo
    Cnty., 
    390 F.3d 890
    , 894-95 (6th Cir. 2004). Summary judgment is proper where there is no genuine
    dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.
    56(a). We view the record in the light most favorable to the nonmoving party and all reasonable
    inferences will be drawn in favor of that party. Blackmore, 309 F.3d at 895.
    A.
    BBI argues that the transaction at issue falls well outside the scope of the RBA, and thus the
    district court erred in applying the law to the facts of this case. In advancing this argument, BBI
    contends that in order for the RBA to apply TCL&P must have provided services through a “public
    improvement.” BBI asserts that providing electrical current to the Property through TCL&P’s utility
    system does fall within the scope of the RBA. It maintains, however, that providing financing for
    the construction of the light fixtures on private property does not fall within the RBA’s definition
    of a “public improvement.” In response, TCL&P asserts that because the RBA broadly defines the
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    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    term, the district court did not err in granting summary judgment when it held that the installation
    of the street lighting falls within the RBA’s definition of a “public improvement.” The RBA
    provides that:
    Any public corporation is authorized to purchase, acquire, construct, improve,
    enlarge, extend or repair 1 or more public improvements and to own, operate and
    maintain the same, within or without its corporate limits, and to furnish the services,
    facilities and commodities of any such public improvement to users within or without
    its corporate limits.
    
    Mich. Comp. Laws § 141.104
    . A “public improvement,” in the context of this case, is broadly
    defined to include “utility systems for supplying light, heat, or power, including plants, works,
    instrumentalities, and properties used or useful in connection with those systems[.]” 
    Mich. Comp. Laws § 141.103
    (b) (emphasis added). Where charges for a “public improvement” go unpaid, the Act
    further provides the public corporation with a remedy to collect delinquent payments:
    Charges for services furnished to a premises may be a lien on the premises, and those
    charges delinquent for 6 months or more may be certified annually to the proper tax
    assessing officer or agency who shall enter the lien on the next tax roll against the
    premises to which the services shall have been rendered, and the charges shall be
    collected and the lien shall be enforced in the same manner as provided for the
    collection of taxes assessed upon the roll and the enforcement of the lien for the
    taxes.
    
    Mich. Comp. Laws § 141.121
    (3).
    BBI cites several Michigan cases for the proposition that the service provided must involve
    the utilization of the public improvement, maintaining that TCL&P does not meet this criterium.
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    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    BBI references the Michigan Supreme Court’s decision in City of North Muskegon v. Bolema Constr.
    Co., where the court held:
    In our opinion a lateral consisting of sewer pipe and fittings running from a sewer
    main to the property line of the use is a necessary part of the sewerage system and as
    such is a service or facility within the meaning of the act. The fact that there is a non-
    recurring charge for this connection does not detract from the fact that the connection
    is a service or facility, which the Department of Public Service must provide.
    
    56 N.W.2d 371
    , 374 (Mich. 1953).
    BBI also cites the Michigan Supreme Court’s holding in Seltzer v. Sterling Twp., 
    123 N.W.2d 722
     (Mich. 1963). In that case, the court applied the RBA where residents were charged a “privilege
    fee” so that the Township could acquire capital equipment for the water system. This court, in City
    of Detroit, By and Through Detroit Water and Sewerage Dep’t v. Mich., 
    803 F.2d 1411
     (6th Cir.
    1986), held that the Wayne County Road Commission was subject to the RBA where its storm water
    runoffs flowed into the City’s treatment system. The court reiterated that “a benefit is necessarily
    conferred upon those properties which enjoy storm water runoff into a municipal sewer system.” 
    Id. at 1420
    . The rationale for this decision stems from the fact that the Wayne County Road
    Commission needed appropriate drainage to keep the roads safe for public travel and that without
    the help of the sewage system, this would not be possible. 
    Id. at 1421
    .
    All of the aforementioned cases cited by BBI seem to suggest that the RBA encompasses a
    broad class of cases ranging from sewer lines running to and from a private residence, to the benefits
    an entity and the public receive from a city’s drainage system. However, BBI insists that the RBA
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    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    does not apply because the installation of street lights on private property, in and of itself, does not
    utilize TCL&P’s system for a benefit conferred upon the public.
    In response, TCL&P and the City of Grand Rapids contend that the RBA does apply, as it
    was designed to be liberally construed. The RBA declares:
    This act, being necessary for and to secure the public health, safety, convenience and
    welfare of the counties, cities, incorporated villages, townships, school districts, port
    districts, and metropolitan districts of the state of Michigan, shall be liberally
    construed to effect the purposes hereof.
    
    Mich. Comp. Laws § 141.134
     (emphasis added). TCL&P argues that the charges incurred for
    installing the light fixtures must fall under the definition of “public improvement.” The district court
    did not expressly analyze what the “public improvement” is in this case.           Instead, the court’s
    analysis focused on how “charges” and “rates” for services differed within the meaning of the RBA.
    The court reasoned that where “charges” and “rates” were two separate words listed in the statute,
    their meanings were intended to be distinct from each other, and, as such, charges are not limited to
    the rates charged to customers for electrical current. Therefore, the charges incurred from the
    installation of the lighting fixtures could very well be subject to TCL&P’s lien in accordance with
    
    Mich. Comp. Laws § 141.121
    (3). We agree.
    As the district court further pointed out, the RBA defines “rates” as “the charges, fees,
    rentals, and rates that may be fixed and imposed for the services, facilities, and commodities
    furnished by a public improvement.” (emphasis added). TCL&P’s utility system is undoubtedly
    defined as a “public improvement” by the Act, and TCL&P’s system provides the service of
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    No. 10-2644
    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    electricity through a facility such as a light fixture. See Bolema, 56 N.W.2d at 374 (finding that the
    sewer lines running to property lines were “facilities” within the meaning of the Act.) (emphasis
    added). Further, 
    Mich. Comp. Laws § 141.103
    (b) indicates that ‘“public improvement’ means the
    whole or a part of any of these improvements or of any combination of these improvements or any
    interest or participation in these improvements.” (emphasis added). Given the foregoing, the statute,
    liberally construed, necessarily includes light fixtures that TCL&P funded and in which it had an
    interest.
    Moreover, while TCL&P incorrectly asserts that Thomson v. City of Dearborn, 
    79 N.W.2d 841
     (Mich. 1956), stands for the proposition that the RBA resolutely applies to “public
    improvements” on private property,1 the RBA does not specifically state whether it applies only to
    public property. Further, the RBA does not expressly state that light fixtures on private property are
    prohibited from inclusion, and, as the City of Grand Rapids points out, Michigan state courts have
    upheld the RBA’s application where the RBA does not expressly limit an action. See Oakland Cnty.
    v. City of Detroit By & Through Bd. of Water Comm’rs., 
    265 N.W.2d 130
    , 133 (Mich. Ct. App.
    1978); see also Sabaugh v. City of Dearborn, 
    185 N.W.2d 363
    , 365 (Mich. 1971).
    BBI’s argument that TCL&P used a third-party contractor to install the fixtures is also
    unavailing; even BBI’s brief illustrates that contractors can competitively bid on public
    1
    In Thomson, the court cites a case where the municipal parking system assessed a use charge
    for on-street and off-street parking. TCL&P incorrectly states that the off-street parking was on
    private property. BBI correctly points out that all of the property in Thomson, the on-street and off-
    street parking, was public property, and thus, that case is distinguishable from the case at hand.
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    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    improvements.      Moreover, the RBA itself permits contractors to perform work on public
    improvements. See 
    Mich. Comp. Laws § 129.201
    .
    The City of Grand Rapids urges us to affirm summary judgment on this issue, advancing that
    it is “critical that infrastructure improvements be paid in order to perpetuate the operation of the
    system.” Construing the statute liberally, the light fixtures at issue certainly fall within the scope of
    the RBA. The district court did not err in granting TCL&P’s motion for summary judgment because,
    as a matter of law, the RBA governs the delinquent charges at issue.
    B.
    The district court determined that in applying the RBA, “[M.C.L.] § 141.121(3)[] treats
    delinquent government-utility charges the same as delinquent property taxes for purposes of lien
    priority and collection.” On appeal, BBI does not dispute that the Act operates in this manner. BBI
    argues, however, that TCL&P’s claim of a valid lien is premised on having valid signed Consents,
    not on the application of the RBA. They assert that TCL&P’s lien on the Property is not a first
    priority lien because the Consents were recorded after Republic Bank’s mortgage. Thus, when BBI
    foreclosed on Republic Bank’s mortgage, BBI took the mortgage free and clear of all liens on the
    Property.
    BBI cites 
    Mich. Comp. Laws § 600.3130
    , which provides:
    Unless the premises or any parcel of them are redeemed within the time limited for
    redemption the deed shall become operative as to all parcels not redeemed, and shall
    vest in the grantee named in the deed, his heirs, or assigns all the right, title, and
    interest which the mortgagor had at the time of the execution of the mortgage or at
    any time thereafter.
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    Brown Bark I, L.P. v. Traverse City Light & Power Dept.
    (emphasis added). Thus, BBI argues that because the Property was not redeemed, and because at
    the time Republic Bank executed its mortgage TCL&P did not have a lien on the property, BBI is
    not subject to the lien either.
    TCL&P responds that because the RBA does apply to the charges incurred in this case, the
    lien automatically came into being as provided by statute. Where the RBA treats the unpaid charges
    as a tax delinquency, it is necessary to look to Michigan’s General Property Tax Act (GPTA). 
    2011 WL 1822454
    , at *2 (Mich. OAG No. 7258). The GPTA provides as follows:
    The people of this state have a valid lien on property returned for delinquent taxes,
    with rights to enforce the lien as a preferred or first claim on the property. The right
    to enforce the lien is the prima facie right of this state and shall not be set aside or
    annulled except in the manner and for the causes specified in this act.
    
    Mich. Comp. Laws § 211
    .60a(4) (emphasis added). TCL&P has the better argument here.
    The statutory language makes clear that if a lien is placed upon property in accordance with
    the RBA, the lien is preferred as to all other claims, or “first claim,” as stipulated by the GPTA.
    Thus, because the RBA applies to the charges incurred in this case, TCL&P has a first priority lien
    that arose by operation of law as provided by statute and was therefore never junior to BBI’s
    mortgage. As such, summary judgment was appropriate on this claim.
    C.
    Lastly, BBI claims that TCL&P is liable for slander of title because it maintained an invalid
    lien on the Property. Under 
    Mich. Comp. Laws § 565.108
    :
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    No person shall use the privilege of filing notices hereunder for the purpose of
    slandering the title to land, and in any action brought for the purpose of quieting title
    to land, if the court shall find that any person has filed a claim for that reason only,
    he shall award the plaintiff all the costs of such action, including such attorney fees
    as the court may allow to the plaintiff, and in addition, shall decree that the defendant
    asserting such claim shall pay to plaintiff all damages that plaintiff may have
    sustained as the result of such notice of claim having been so filed for record.
    To establish a claim of slander of title, BBI must show falsity, malice and special damages.
    Sullivan v. Thomas Org., P.C., 
    276 N.W.2d 522
    , 525 (Mich. Ct. App. 1979). Because TCL&P has
    a valid tax lien pursuant to the RBA, BBI cannot satisfy the falsity element. Thus, the district court
    properly held BBI failed to state a claim for slander of title.
    III.
    Given the foregoing, we AFFIRM the district court’s grant of summary judgment to TCL&P
    in all respects.
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