Murrells Inlet Corporation v. Abraham Nunu ( 2019 )

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
MURRELLS INLET CORPORATION, UNPUBLISHED
October 10, 2019
Plaintiff-Appellee,
v No. 344062
Wayne Circuit Court
ABRAHAM NUNU, NUNU INVESTMENT, LC No. 08-019134-CK
INC., NUNU INVESTMENT GROUP, INC.,
MIKE PIRZADEH, and MK REALTY GROUP,
LLC, doing business as ERA DYNASTY,
Defendants,
and
WARREN INVESTMENT, INC. and CANTON
INVESTMENTS & DEVELOPMENT, INC.,
Defendants-Appellants.
Before: CAVANAGH, P.J., and BECKERING and GADOLA, JJ.
PER CURIAM.
Defendants, Warren Investment, Inc. (Warren) and Canton Investments & Development,
Inc. (Canton) (collectively, “defendants”)1, appeal as of right the trial court order granting
1
Plaintiff added Canton as a party to this matter but plaintiff’s amended complaint improperly
refers to Canton as a “third-party defendant.” Although referred to as a third-party defendant in
the lower court file and in the parties’ briefs on appeal, “defendant” is the proper party
designation for Canton, and it will be referred to as such.
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plaintiff, Murrells Inlet Corporation, summary disposition in this dispute regarding the sale of
real property.2 We affirm.
This case arises from the sale of real property located at 12000 Gratiot, in Detroit,
Michigan. It is a commercial property, with a Subway restaurant as a tenant. The property was
owned by Warren, and codefendants Abraham Nunu, Nunu Investment, Inc. (Nunu Investment),
and Nunu Investment Group, Inc. (Nunu Investment Group). The sale was conducted through
codefendant realtor Mike Pirzadeh, who worked for codefendant MK Realty Group, LLC, doing
business as ERA Dynasty. During the sale negotiations, the lease provided to plaintiff indicated
that Subway paid $4,500 in rent each month. Plaintiff closed on the property on October 31,
2008, for a purchase price of $350,000. Plaintiff and Warren agreed to a second mortgage from
Warren to plaintiff in the amount of $17,500. When plaintiff first attempted to collect rent from
Subway in November 2008, the Subway representative produced a second amendment to the
lease, indicating that rent was only $1,500 each month. The second amendment to the lease was
not provided to plaintiff during the negotiations. Plaintiff filed suit in December 2008, and when
Warren and several of the other codefendants failed to respond, a default judgment was entered
in the amount of $363,401.86, for the sale price of the property, plus interest.
On September 2, 2015, unbeknownst to plaintiff, Warren executed an assignment of the
second mortgage to Canton, and Canton executed a claim of interest in the property. On October
13, 2015, plaintiff filed a motion to partially apply the default judgment to plaintiff’s debt to
Warren, and to discharge the second mortgage. Warren initially filed a response in opposition,
but withdrew its response on October 29, 2015. The same day, the assignment of the second
mortgage and Canton’s claim of interest were filed with the Wayne County Register of Deeds.
The next day, October 30, 2015, the court entered an order finding the default judgment partially
satisfied by the amount plaintiff owed Warren on the second mortgage, and discharged the
second mortgage. Over $400,000 remained due on the default judgment.
It was not until October 2017 that plaintiff moved to add Canton as a party to this case,
which the court granted. Plaintiff filed an amended complaint, alleging that Canton’s interest
was void and a cloud on the title because the court discharged the second mortgage. Plaintiff
thereafter filed a motion for summary disposition, which the trial court granted. This appeal
followed.
Defendants argue on appeal that they are entitled to an offset of the damages awarded in
the default judgment for the amounts that plaintiff received from subsequent litigation involving
the same real property, and because plaintiff retained ownership of the real property, and that the
grant of summary disposition was premature pending discovery. We disagree.
2
Default judgments were also entered against codefendants Abraham Nunu, Nunu Investment,
Inc., and Nunu Investment Group, Inc., but they did not participate in the proceedings
supplementary to the judgment or this appeal. The remaining codefendants, Mike Pirzadeh and
MK Realty Group, LLC, doing business as ERA Dynasty, were dismissed from this matter after
accepting the case evaluation award. They are not subject to this appeal.
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“Generally, an issue is not properly preserved if it is not raised before, addressed by, or
decided by the lower court or administrative tribunal.” Gen Motors Corp v Dep’t of Treasury,
290 Mich. App. 355, 386; 803 NW2d 698 (2010). Defendants’ claim of appeal is of the order
granting plaintiff summary disposition. Plaintiff filed a motion for summary disposition under
MCR 2.116(C)(9) and (C)(10), arguing that Canton’s interest in the property was null and void
because the court previously discharged the second mortgage that was assigned from Warren to
Canton. Canton filed a response, the court held a hearing, and the parties argued consistent with
their briefs. The court granted plaintiff summary disposition because Canton took assignment of
the second mortgage subject to all defenses, and the court had discharged the second mortgage.
Thus, to the extent that defendants appeal the trial court’s grant of summary disposition to
plaintiff, this issue is preserved. Id.
However, defendants’ main argument on appeal is that they are entitled to an offset in
damages from the default judgment. Plaintiff asserts that defendants have no such appeal
because no order was ever entered regarding offsets. At the continued hearing on plaintiff’s
motion to add Canton as a party and Warren’s motion for an accounting, held December 11,
2017, the court stated:
Now, with regards to defendant Warren’s request for the value of the property,
that issue has not been appealed. There was an entry of judgment. The issues, in
terms of whether or not there’s a set[]off for the value of the property, wasn’t
raised at that time, according to the records, and at this point, since that judgment
was entered in 2009, it’s too late to raise any issues as it relates to a set[]off.
But “a court speaks through its written orders and judgments, not through its oral
pronouncements.” In re Contempt of Henry, 282 Mich. App. 656, 678; 765 NW2d 44 (2009).
Thus, this issue was not “decided by” the lower court in terms of preservation. See Gen Motors
Corp, 290 Mich App at 386. However, “this Court may overlook preservation requirements if
the failure to consider the issue would result in manifest injustice, if consideration is necessary
for a proper determination of the case, or if the issue involves a question of law and the facts
necessary for its resolution have been presented.” Smith v Foerster-Bolser Constr, Inc, 269
Mich. App. 424, 427; 711 NW2d 421 (2006). Therefore, we may consider this unpreserved issue.
Plaintiff moved for summary disposition under MCR 2.116(C)(9) and (C)(10). The trial
court granted plaintiff summary disposition under both subrules.3 This Court reviews a trial
court’s decision on a motion for summary disposition de novo. Johnson v Recca, 492 Mich. 169,
173; 821 NW2d 520 (2012). When deciding a motion under MCR 2.116(C)(9), the trial court
considers the pleadings alone, accepting as true all well-pleaded allegations, to assess the
sufficiency of a defendant’s defenses. Abela v Gen Motors Corp, 257 Mich. App. 513, 517; 669
NW2d 271 (2003), aff’d 469 Mich. 603 (2004). “Summary disposition under MCR 2.116(C)(9)
3
The trial court incorrectly provided that plaintiff moved for summary disposition under MCR
2.116(C)(8) and (C)(10), rather than MCR 2.116(C)(9) and (C)(10). But when rendering its
decision the court properly referred to the standard under MCR 2.116(C)(9), stating “the
defendant has failed to state a valid defense to the claims asserted against it.”
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is proper when the defendant’s pleadings are so clearly untenable that as a matter of law no
factual development could possibly deny the plaintiff’s right to recovery.” Id. at 518.
When reviewing a motion under MCR 2.116(C)(10), this Court “must consider the
pleadings, affidavits, depositions, admissions, and other documentary evidence in favor of the
party opposing the motion.” Baker v Arbor Drugs, Inc, 215 Mich. App. 198, 202; 544 NW2d 727
(1996). The motion is properly granted if (1) there is no genuine issue related to any material
fact, and (2) the moving party is entitled to judgment as a matter of law. Klein v HP Pelzer Auto
Sys, Inc, 306 Mich. App. 67, 75; 854 NW2d 521 (2014). “A genuine issue of material fact exists
when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an
issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich. 177, 183;
665 NW2d 468 (2003).
Generally, an award of damages is considered a finding of fact that is reviewed for clear
error. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich. App. 165, 177; 530 NW2d
772 (1995). “A finding of fact is clearly erroneous when, although there is evidence to support
it, the reviewing court is left with a definite and firm conviction that a mistake has been made.”
Id. at 171. Absent a statutory mandate authorizing a setoff in a specific circumstance, setoff is a
matter in equity that is an appropriate method in satisfying judgments. Mahesh v Mills, 237
Mich. App. 359, 361-362; 602 NW2d 618 (1999). A trial court’s decision whether to grant
equitable relief is reviewed de novo. Webb v Smith (After Second Remand), 224 Mich. App. 203,
210; 568 NW2d 378 (1997); Olsen v Porter, 213 Mich. App. 25, 28; 539 NW2d 523 (1995).
Issues concerning a setoff of damages are, therefore, reviewed de novo. Markley v Oak Health
Care Investors of Coldwater, Inc, 255 Mich. App. 245, 249; 660 NW2d 344 (2003).
However, because the issue of a setoff in damages is unpreserved, the standard of review
is plain error affecting substantial rights. Lawrence v Mich Unemployment Ins Agency, 320 Mich
App 422, 442; 906 NW2d 482 (2017). “To avoid forfeiture under the plain-error rule, three
requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or
obvious, and (3) the plain error affected substantial rights.” Rivette v Rose-Molina, 278 Mich
App 327, 328-329; 750 NW2d 603 (2008) (quotation marks and citation omitted). “ ‘[A]n error
affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.’ ”
Lawrence, 320 Mich App at 443 (citation omitted).
I. JURISDICTION
As an initial matter, plaintiff asserts on appeal that this Court lacks jurisdiction because
defendants’ appeal is actually of the denial of offsets from the default judgment which was
entered in 2009.
Although the order granting plaintiff summary disposition is listed as the order appealed
from, defendants’ main argument on appeal is that they are entitled to an offset in the damages
awarded to plaintiff in the default judgment entered in May 2009. After the default judgment
was entered, Warren did not file a motion seeking any offsets from the award. On December 14,
2009, the court entered an order of dismissal relating to the claims against Pirzadeh, and
provided that the order “resolves all pending claims and closes this case.” This was the
appropriate point in time for Warren to file an appeal as of right of the default judgment, but
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Warren failed to do so within 21 days of the December 14, 2009 order. See MCR 7.204(A)(1)(a)
(an appeal of right in a civil action must be filed within 21 days).
Rather, defendants’ appeal is from a supplementary proceeding under MCR 2.621(H),
which provides that “[a] final order entered in a supplementary proceeding may be appealed in
the usual manner.” Plaintiff argues that Warren did not file a motion seeking a setoff in the
proceedings supplementary to judgment, and the court never issued a written ruling on it, so
there can be no appeal. This relates to issue preservation, rather than jurisdiction. As noted
above, the trial court made a ruling from the bench that it was too late for Warren to raise the
issue of a setoff, and despite the lack of a written ruling, this Court may review the unpreserved
issue. Lastly, plaintiff asserts that there is no monetary judgment issued against Canton to which
a credit would apply, and plaintiff’s slander-of-title claim against Canton remains unresolved, so
the May 10, 2018 order granting plaintiff summary disposition was not a final order.
MCR 2.621 does not define a “final order” for purposes of appeal in a proceeding
supplementary to judgment. MCR 2.621(H). “A final order is an order which, by itself or in
conjunction with previous orders, disposes of all of the claims of all of the parties or is an order
which, although otherwise not final, disposes of at least one claim of one party and is certified as
a final order under MCR 2.604(A).” Dean v Tucker, 182 Mich. App. 27, 30; 451 NW2d 571
(1990). See also MCR 7.202(6)(a)(i). According to this definition, the order granting plaintiff
summary disposition is not a final order because it did not dispose of plaintiff’s slander-of-title
claim, and therefore, this Court would lack jurisdiction. The order does not include language
indicating that it is a final order or closes the case.
Conversely, proceedings supplementary to judgment warrant a different approach. MCL
600.6101 provides: “A proceeding under this chapter may be maintained until the judgment is
satisfied, vacated, or barred by the statute of limitations.” Therefore, it appears that proceedings
supplementary may involve the entry of multiple orders deciding the interests of outside parties
in the course of a judgment creditor’s efforts to collect on the judgment. In this respect, the
proceedings may be compared to probate court cases involving the administration of a
decedent’s estate, which also involve multiple final orders. See In re Swanson Estate, 98 Mich
App 347, 352; 296 NW2d 256 (1980) (“The test of finality of an order is whether it affects with
finality any of the rights of the parties in the subject matter.”). Thus, this Court will treat
defendants’ appeal as an application for leave to appeal, grant the application, and proceed on the
merits of defendants’ claims. See In re Ballard, 323 Mich. App. 233, 235 n 1; 916 NW2d 841
(2018).
II. SUMMARY DISPOSITION
Defendants argue on appeal that the trial court erred in prematurely granting plaintiff
summary disposition where discovery was incomplete. We disagree.
Generally, when discovery on a disputed issue is not complete it is premature to grant a
motion for summary disposition. Oliver v Smith, 269 Mich. App. 560, 567; 715 NW2d 314
(2006) (citation omitted). The “mere fact” that the discovery period is still open does not
automatically render a trial court’s grant of summary disposition untimely or inappropriate.
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich. App. 264,
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292; 769 NW2d 234 (2009). If further discovery is reasonably unlikely to uncover factual
support for a party’s position, summary disposition may be appropriate. Oliver, 269 Mich App
at 567 (citation omitted). The party opposing summary disposition cannot simply assert that
summary disposition is premature without identifying a disputed issue and supporting that issue
with independent evidence. Marilyn Froling Revocable Living Trust, 283 Mich App at 292-293.
Defendants argue that summary disposition was premature because discovery was
incomplete concerning the other lawsuits that plaintiff was involved in regarding the sale of this
property. Defendants hoped to uncover any settlements or awards that plaintiff received to argue
that these amounts should be set off against the amount awarded to plaintiff in the default
judgment. However, the parties engaged in discovery, and discovery-related motions, before the
court granted plaintiff summary disposition.
When defendants initially requested the production of documents related to the other
lawsuits that plaintiff was involved in, plaintiff objected, asserting that the requests were
irrelevant, outside the scope of discovery, not likely to lead to the discovery of admissible
evidence, and merely intended to harass plaintiff. Warren and Canton then filed a motion to
compel plaintiff to respond to this request, which the court granted. The court noted that if
plaintiff had the documentation, it had to provide it; if plaintiff did not have the information, it
could so indicate. Plaintiff filed a supplemental response to the discovery request, indicating that
the documents requested were within the public record, and therefore readily accessible to
defendants, and plaintiff did not have the documents in its possession. When defendants filed a
motion to hold plaintiff in contempt of court because of this response, the court denied the
motion, on the basis of the court’s grant of summary disposition to plaintiff. This was not in
error.
In ruling on plaintiff’s motion for summary disposition, the trial court determined that the
three other lawsuits that plaintiff was involved in were different and separate causes of action
that had no relationship to the matter at hand. The court also found that defendants failed to
demonstrate that the other lawsuits involved any claim of fraudulent misrepresentation in the sale
of the property. The other lawsuits involving plaintiff included a suit filed against Don Mouchet,
the attorney that prepared the closing documents for the sale of the property. Warren alleged that
plaintiff received a settlement or judgment against Mouchet, but provided no documentation of
such. There was another lawsuit wherein plaintiff was named the defendant, and another lawsuit
plaintiff filed against the Subway tenant. Defendants failed to provide documentary proof that
any of these other lawsuits related to fraudulent misrepresentation in the sale of the Gratiot
property to plaintiff. Thus, there was no reasonable chance that defendants would uncover
further factual support for their position, and summary disposition in plaintiff’s favor was
appropriate. See Oliver, 269 Mich App at 567.
Plaintiff argues on appeal that the trial court properly granted it summary disposition
under MCR 2.116(C)(9) and (C)(10), on the basis of the merits. We agree. Canton provided the
following affirmative defenses with its answer to plaintiff’s amended complaint: (1) failure to
state a cause of action upon which relief can be granted, (2) doctrine of satisfaction after receipt
of all monies, (3) want or failure of consideration, (4) unclean hands, (5) failure to give Canton
proper notice of the motion for discharge before the hearing on October 30, 2015, (6) accord and
satisfaction, and (7) rule of the case doctrine and res judicata. We agree with plaintiff that
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Canton’s affirmative defenses failed to comply with MCR 2.111(F)(3), which requires a party to
state facts constituting the affirmative defense. Canton merely listed the affirmative defenses
without providing facts.
Moreover, none of the affirmative defenses listed by Canton preclude summary
disposition in plaintiff’s favor. Plaintiff’s amended complaint stated a claim upon which relief
could be granted, including its claim that Canton’s interest should be rendered null and void, and
slander of title. Plaintiff’s claims were on the basis of the fact that the court discharged the
second mortgage that Warren assigned to Canton. The defenses of satisfaction after receipt of all
monies and accord and satisfaction are nonsensical as Warren never made payment to plaintiff
on the default judgment, which is why plaintiff sought to credit the judgment amount with the
amount owed by plaintiff on the second mortgage in 2015. Canton asserted want or failure of
consideration as an affirmative defense; however, plaintiff initially paid the purchase price of
$350,000 for the property, save the $17,500 second mortgage. Canton does not specify what
wrongdoing occurred on the part of plaintiff that would constitute unclean hands. Canton’s
affirmative defense of lack of notice of the motion to discharge in 2015 is nonsensical because
plaintiff did not move to add Canton as a party to this action until 2017. Plaintiff was unaware
that Warren executed an assignment to Canton until it was filed in the Wayne County Register of
Deeds one day before the court entered the order discharging the second mortgage.
Lastly, the doctrines of rule of the case and res judicata do not appear to apply as there
were no prior appeals in this matter. See Adam v Bell, 311 Mich. App. 528, 532; 879 NW2d 879
(2015) (citation omitted) (“The doctrine of res judicata bars a subsequent action when ‘(1) the
prior action was decided on the merits, (2) both actions involve the same parties or their privies,
and (3) the matter in the second case was, or could have been, resolved in the first.’ ”); Reeves v
Cincinnati, Inc, 208 Mich. App. 556, 559; 528 NW2d 787 (1995) (“The doctrine of law of the
case holds that a ruling by an appellate court with regard to a particular issue binds the appellate
court and all lower tribunals with respect to that issue.”).
Additionally, summary disposition in plaintiff’s favor was appropriate under MCR
2.116(C)(10). There was no genuine issue of material fact that Warren assigned its interest in the
second mortgage to Canton, and the second mortgage was discharged by the court. “It is well
established that an assignee stands in the shoes of an assignor, acquiring the same rights and
being subject to the same defenses as the assignor.” Coventry Parkhomes Condo Ass’n v Fed
Nat’l Mtg Ass’n, 298 Mich. App. 252, 256-257; 827 NW2d 379 (2012). Thus, Warren assigned
its interest in a discharged mortgage to Canton, so Canton effectively had no interest in the
property. There was no genuine issue of material fact in this regard, and summary disposition
was appropriate. MCR 2.116(C)(10).
III. SETOFF IN DAMAGES
Defendants also argue on appeal that they are entitled to a setoff in the amount of
damages that plaintiff was awarded in the default judgment in the amount of any awards plaintiff
received in other lawsuits, and because plaintiff retained ownership and possession of the Gratiot
property. We disagree.
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“The remedy for breach of contract is to place the nonbreaching party in as good a
position as if the contract had been fully performed.” Corl v Huron Castings, Inc, 450 Mich. 620,
625; 544 NW2d 278 (1996). Plaintiff had the burden of proving its damages resulting from
Warren and codefendants’ misrepresentation and breach of the sales agreement. See Alan
Custom Homes, Inc v Krol, 256 Mich. App. 505, 512; 667 NW2d 379 (2003). “Setoff” is “a legal
or equitable remedy that may occur when two entities that owe money to each other apply their
mutual debts against each other.” Walker v Farmers Ins Exch, 226 Mich. App. 75, 79; 572 NW2d
17 (1997).
When Warren, Nunu, Nunu Investment, and Nunu Investment Group failed to answer
plaintiff’s original complaint, a default judgment was entered against them in 2009, in the
amount of $363,401.86. This included the $350,000 purchase price of the property, plus interest.
Although plaintiff’s initial complaint sought to rescind the sales agreement, no order was entered
rescinding the contract, or returning ownership of the property to codefendants. When the
judgment went unpaid, plaintiff sought partial satisfaction in 2015, in the amount that plaintiff
owed on the second mortgage, which the court granted. Given the years of interest that accrued
by that time, the balance remaining on the judgment was still $402,682.75. Defendants now
assert on appeal that they should be awarded a credit against this amount for $8,000 that plaintiff
received from other codefendants, $984 from a writ of garnishment against Warren, and any
other award or settlement that plaintiff received from three separate lawsuits that defendants
claim relate to the same transaction or occurrence as this lawsuit. This argument is speculative
because defendants have provided no documentary evidence of these awards, or proof that the
other lawsuits relate to this matter, or the amount awarded in the default judgment.
Defendants asserted in their motion to compel discovery responses, and in their response
to plaintiff’s motion for summary disposition, that plaintiff received $8,000 from various
codefendants and $984 from a writ of garnishment. But defendants attached no documentary
proof of such amounts to either filing. Additionally, defendants offered no proof, or even a
specific amount, that plaintiff allegedly received as the result of the other three lawsuits. The
other three lawsuits included a suit filed by plaintiff against the attorney that prepared the closing
documents, a suit filed by plaintiff against the Subway tenant, and a suit in which plaintiff was a
named defendant. Granted, this is what defendants’ continued discovery requests sought to
obtain. However, sufficient information would be available in the public record for defendants
to at least support their contention that these three other cases related to this matter to the effect
that any amount awarded should be credited against the default judgment. But defendants failed
to do so.
Therefore, the court did not err in its ruling on plaintiff’s motion for summary disposition
when it determined that the other three lawsuits were separate and distinct from the matter at
hand, and defendants failed to demonstrate that they were at all related to plaintiff’s initial claim
of fraudulent misrepresentation in the selling of the property. Plaintiff was awarded damages in
the default judgment because it paid the full sales price for the property, on the basis of the
misrepresentation that the Subway tenant paid $4,500 each month in rent. When it was
discovered that Subway only paid $1,500 in rent, and therefore the value of the property was
most likely unequal to the $350,000 sales price, plaintiff was entitled to damages. Defendants’
contention that this amount should be offset by any settlements or awards plaintiff has received
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in completely separate lawsuits is speculative at best. Therefore, defendants are not entitled to
any offsets.
Defendants also argue that they should be entitled to an offset because plaintiff retained
possession of the property. This argument lacks merit. As noted above, there was no order
entered by the court rescinding the sales contract. Rather, plaintiff was awarded damages for the
sales price plus interest. Moreover, plaintiff has not received this award because defendants have
failed to pay. Thus, it would seem nonsensical for plaintiff to return ownership of the property
when the default judgment remains unsatisfied.
We note defendants’ argument on appeal that plaintiff violated MCR 2.113(C)(2), by
failing to disclose in the other lawsuits that this lawsuit had already been filed, and was pending.
The language in MCR 2.113(C)(2) referred to by defendants has been moved to MCR 1.109(2),
which provides:
(2) Case Initiation Information. A party filing a case initiating document
and a party filing any response or answer to a case initiating document shall
provide specified case information in the form and manner established by the
State Court Administrative Office and as specified in other applicable rules. At a
minimum, specified case information shall include the name, and address for
service, an e-mail address, and a telephone number of every party, and
(a) in a civil action, either of the following statements:
(i) There is no other pending or resolved civil action arising out of the
transaction or occurrence alleged in the complaint, or
(ii) A civil action between these parties or other parties arising out of the
transaction or occurrence alleged in the complaint has been previously filed in
[this court]/ [ __________ Court], where it was given case number __________
and was assigned to Judge __________. The action [remains]/[is no longer]
pending.
Defendants claim that plaintiff’s failure to abide by this court rule mandates reversal of
the trial court’s ruling, but offers no caselaw or court rule in support of this contention. When a
party fails to support an argument with citation to any legal authority, the issue is considered
abandoned on appeal. Blackburne & Brown Mtg Co v Ziomek, 264 Mich. App. 615, 619; 692
NW2d 388 (2004). “A party may not simply announce its position and leave it to this Court to
discover and rationalize the basis for the party’s claim.” Badiee v Brighton Area Schs, 265 Mich
App 343, 357; 695 NW2d 521 (2005) (quotation marks and citation omitted). Additionally,
defendants provided none of the pleadings in the other lawsuits as proof that plaintiff failed to
comply with this court rule. Again, we recognize that defendants sought information through
discovery of the other lawsuits; however, the initial pleadings would be easily accessible through
public records for defendants to obtain. Regardless, this allegation is irrelevant to the trial
court’s grant of summary disposition to plaintiff regarding Canton’s interest in the property, or
defendants’ alleged entitlement to a setoff in damages.
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We also note and reject plaintiff’s contention on appeal that defendants “misapplied” the
collateral source rule. Although defendants argued in the trial court that they were entitled to
offset damages plaintiff received from “collateral sources,” they did not cite to or rely on the
collateral source rule in support. The collateral source rule, MCL 600.6303, applies to personal
injury actions, not contract actions. See Nasser v Auto Club Ins Ass’n, 435 Mich. 33, 58; 457
NW2d 637 (1990).
Affirmed. Plaintiff is entitled to costs under MCR 7.219(A) as the prevailing party.
/s/ Mark J. Cavanagh
/s/ Jane M. Beckering
/s/ Michael F. Gadola
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