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
HIAM IBRAHIM BAZZI, UNPUBLISHED
September 19, 2019
Plaintiff/Counterdefendant-
Appellee,
v No. 345095
Wayne Circuit Court
MOHAMAD KHODOR-ADNAN KATBEY, LC No. 16-006845-CZ
Defendant/Counterplaintiff-
Appellant,
and
MBN INTERNATIONAL, LLC,
Defendant.
Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.
PER CURIAM.
In this appeal from the trial court’s order awarding plaintiff damages in the amount of
$218,635.92 for breach of contract, defendant1 argues that the trial court erred in granting
plaintiff summary disposition, failing to adjudicate defendant’s counterclaims, and calculating
the amount of damages awarded to plaintiff. We affirm in part, vacate in part, and remand for
further proceedings consistent with this opinion.
1
MBN International, LLC was dismissed from the lower court action and is not a party to this
appeal. Our use of the term “defendant” in this opinion refers to defendant Mohamad Khodor-
Adnan Katbey.
-1-
I. BACKGROUND
This matter arises from a property settlement included in the parties’ consent judgment of
divorce, entered October 24, 2013. During their marriage, defendant owned several business
entities, including Plaza 2000, LLC, and Roses Plaza, LLC. Plaza 2000 owned a building on
Wyoming Street (the Wyoming property) in Dearborn, Michigan, with a retail tenant. Relevant
to this appeal, the consent judgment of divorce included the following provisions:
22. Plaintiff’s share of assets. Plaintiff is awarded the following assets
free and clear from any claim by the Defendant:
* * *
e. Defendant agrees to transfer his ownership interest in Plaza 2000 to
Plaintiff. He shall cooperate with executing all necessary documents to transfer
his interest immediately.
* * *
32. Encumbrances on property. Any lien, encumbrance, or obligation on
any property awarded must be assumed and paid by the party receiving it unless
otherwise specified in this judgment.
33. Warranties regarding encumbrances on property. The property
award in this judgment is based on each party’s warranty that any property being
transferred to the other party is free of any liens, encumbrances, or debts other
than those specifically disclosed.
Despite the award of Plaza 2000 to plaintiff in Paragraph 22(e), it was never transferred
to her. When the consent judgment of divorce was entered, an outstanding mortgage with a
balance of approximately $175,000 remained on the Wyoming property. Plaintiff was aware of
this debt, as it had been included in the financial statement defendant prepared during the divorce
proceedings. Defendant later claimed that there were additional mortgages on the Wyoming
property that were known to plaintiff. When the first mortgage went unpaid, the property was
foreclosed upon and sold at a sheriff’s sale on November 14, 2013, just weeks after the consent
judgment was entered.
Thereafter, defendant arranged for the sale of the Wyoming property from Plaza 2000 to
MBN International, LLC (MBN), with the intention of using the proceeds of the sale to redeem
the property. On March 21, 2014, defendant redeemed the property for $195,161.36 and sold it
to MBN for $400,000.2 Defendant signed the warranty deed on behalf of Plaza 2000 as its “sole
member.” Defendant testified that he had to sell the Wyoming property because the Roses Plaza
2
After closing costs and other expenses incurred “for clearing title,” defendant received
$104,564.89 in the transaction.
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property that he was awarded in the divorce was cross-collateralized with the Wyoming property
owned by Plaza 2000, such that loss of the Wyoming property in foreclosure would cause him to
lose the Roses Plaza property. Plaintiff filed suit, and defendant filed a counterclaim. Both
parties filed motions for summary disposition concerning plaintiff’s claims. The court granted
summary disposition in favor of plaintiff with respect to her breach-of-contract claim only and,
following an evidentiary hearing on the issue of damages, entered an order awarding plaintiff
$218,635.92 and closing the case.
II. SUMMARY DISPOSITION
On appeal, defendant argues that the trial court should have granted summary disposition
in his favor because (1) plaintiff lacked standing; (2) the redemption period expired without
plaintiff or Plaza 2000 redeeming the property; (3) the doctrine of anticipatory breach applied,
and defendant had to mitigate his damages; and (4) plaintiff failed to prepare the documents
required to transfer Plaza 2000. We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018). Plaintiff moved for
summary disposition under MCR 2.116(C)(10). The applicable standard of review is as follows:
A motion for summary disposition brought pursuant to MCR 2.116(C)(10)
tests the factual support for a claim. Summary disposition is appropriate under
MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law. A motion pursuant to
MCR 2.116(C)(10) is reviewed by considering the pleadings, admissions, and
other evidence submitted by the parties in the light most favorable to the
nonmoving party. 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. [I]t is well settled that the circuit court may
not weigh the evidence or make determinations of credibility when deciding a
motion for summary disposition. [Id. (quotation marks and citations omitted;
alteration in original).]
Defendant also claims that the court should have granted him summary disposition under
MCR 2.116(C)(5) because plaintiff lacked standing. “Review of a determination regarding a
motion under MCR 2.116(C)(5), which asserts a party’s lack of capacity to sue, requires
consideration of ‘the pleadings, depositions, admissions, affidavits, and other documentary
evidence submitted by the parties.’ ” McHone v Sosnowski, 239 Mich App 674, 676; 609 NW2d
844 (2000) (citation omitted). “[W]hether a party has standing to bring an action is a question of
law reviewed de novo.” Franklin Historic Dist Study Comm v Village of Franklin, 241 Mich
App 184, 187; 614 NW2d 703 (2000).
Additionally, a consent judgment of divorce is a contract and construed using general
principles of contract interpretation. Rose v Rose, 289 Mich App 45, 49; 795 NW2d 611 (2010).
This Court reviews the interpretation of a contract de novo. Reed v Reed, 265 Mich App 131,
141; 693 NW2d 825 (2005).
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A. STANDING
Defendant first argues that he should have been granted summary disposition under MCR
2.116(C)(5) because the Wyoming property was previously owned by Plaza 2000 and plaintiff,
in her individual capacity, “was not a proper party plaintiff and lacked standing to maintain the
complaint . . . .” He asserts that plaintiff’s complaint should have been dismissed and refiled in
the name of Plaza 2000. However, defendant fails to support his argument with citation to any
legal authority. “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 Sch, 265 Mich
App 343, 357; 695 NW2d 521 (2005). Consequently, we consider this issue abandoned. Tyra v
Organ Procurement Agency of Mich, 498 Mich 68, 88; 869 NW2d 213 (2015); Blackburne &
Brown Mtg Co v Ziomek, 264 Mich App 615, 619; 692 NW2d 388 (2004).
Even if defendant had properly presented this issue for review, we would conclude that it
lacks merit. Standing refers to “a party’s interest in the outcome of litigation that will ensure
sincere and vigorous advocacy,” and requires “a demonstration that the plaintiff’s substantial
interest will be detrimentally affected in a manner different from the citizenry at large.” Attorney
General v Mich Pub Serv Comm, 243 Mich App 487, 494; 625 NW2d 16 (2000) (quotation
marks and citation omitted). Plaintiff clearly has an interest in enforcing her contractual rights
under the consent judgment of divorce. And despite defendant’s contention that Plaza 2000 is
the only entity with an interest in the Wyoming property,3 plaintiff’s cause of action seeks
damages for breach of the parties’ consent judgment, a contract in which plaintiff—and not Plaza
2000—was a party.
B. REDEMPTION PERIOD
Defendant also argues that, assuming plaintiff had been allowed to amend her complaint
to substitute Plaza 2000 as the plaintiff, neither Plaza 2000 nor plaintiff could maintain the action
because they failed to redeem the Wyoming property within the statutory redemption period and
therefore lacked the capacity to sue. We disagree. Defendant’s argument is unsupported by the
record. According to the redemption certificate filed with the register of deeds on September 11,
2014, Plaza 2000 redeemed the Wyoming property for $195,161.36 on March 21, 2014. Even if
defendant was responsible for the redemption, it was completed on behalf of Plaza 2000.
Accordingly, defendant’s argument lacks merit.
3
We further note that defendant’s argument appears to confuse the concept of standing with the
requirement that a cause of action be brought by the real party in interest. See In re Beatrice
Rottenberg Living Trust, 300 Mich App 339, 356; 833 NW2d 384 (2013) (“The real-party-in-
interest rule requir[es] that the claim be prosecuted by the party who by the substantive law in
question owns the claim asserted . . . .”) (quotation marks and citation omitted; alteration in
original).
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C. BREACH OF CONTRACT
Next, defendant argues that the trial court erred in granting plaintiff summary disposition
because plaintiff committed an anticipatory breach, thereby requiring defendant to sell the
Wyoming property in order to mitigate his damages. Defendant relies on Paragraph 32 of the
consent judgment, which required the parties to assume and pay any lien, encumbrance, or
obligation on property awarded to them, as well as his own testimony alleging that plaintiff
refused to redeem the Wyoming property from foreclosure. Defendant also argues that the trial
court erred by reading into the agreement a requirement that he prepare conveyance documents
transferring Plaza 2000 to plaintiff.
With respect to the latter argument, Paragraph 22(e) of the consent judgment reads:
“Defendant agrees to transfer his ownership interest in Plaza 2000 to Plaintiff. He shall
cooperate with executing all necessary documents to transfer his interest immediately.” Later, in
Paragraph 36, the consent judgment provides that “[t]he parties must properly execute and
promptly deliver to each other documents required to carry out the terms of this judgment.”
Thus, we agree that there is no express provision imposing the burden of preparing transfer
documents on defendant. Yet we must also note that the contractual language does not impose
that burden on plaintiff either. Instead, the terms of the consent judgment are simply silent on
this matter. While it is true that “[a] party cannot be bound to an obligation that, although
reasonably expected, is not actually covered by the terms of the agreement,” Casey v Auto
Owners Ins Co, 273 Mich App 388, 397; 729 NW2d 277 (2006), the context in which this issue
arises is somewhat unique, as this Court has previously held that a trial court may “fill voids in
an incomplete consent judgment” of divorce, “and in doing so must balance the equities insofar
as is possible under the circumstances,” Andrusz v Andrusz, 320 Mich App 445, 453; 904 NW2d
636 (2017). Thus, even though the consent judgment did not address who was responsible for
preparing the necessary transfer documents, we will not fault the trial court for imposing that
duty on defendant, particularly where the consent judgment imposed an affirmative duty on
defendant to transfer his ownership interest in Plaza 2000. Defendant was the sole member of
Plaza 2000 and was therefore in a better position to know any operational intricacies unique to
Plaza 2000 that would need to be addressed in carrying out the transfer. Additionally, because
the consent judgment unambiguously required defendant to “transfer his ownership interest in
Plaza 2000,” and it is undisputed that he failed to do so, the trial court did not err by concluding
that defendant breached the consent judgment.
Defendant also argues that the trial court erred by denying his motion for summary
disposition, and granting plaintiff’s motion instead, because plaintiff committed an anticipatory
breach. “Under the doctrine of anticipatory breach, if a party to a contract, prior to the time of
performance, unequivocally declares the intent not to perform, the innocent party has the option
to either sue immediately for the breach of contract or wait until the time of performance.” Paul
v Bogle, 193 Mich App 479, 493; 484 NW2d 728 (1992) (quotation marks and citation omitted).
Notably, although defendant filed several counterclaims in this action, breach of contract was not
among them. Nonetheless, “one who first breaches a contract cannot maintain an action against
the other contracting party for his subsequent breach or failure to perform.” Able Demolition v
Pontiac, 275 Mich App 577, 585; 739 NW2d 696 (2007) (quotation marks and citation omitted).
-5-
The record contains conflicting evidence concerning plaintiff’s alleged anticipatory
breach. Defendant testified that he told plaintiff about the foreclosure of the Wyoming property
and the effect foreclosure would have on his cross-collateralized property. According to
defendant, plaintiff said she had no interest in the Wyoming property, had no intention of
redeeming it, and gave him permission to do whatever he wanted with the property. Plaintiff, on
the other hand, testified that defendant disclosed the impending foreclosure to her, but did not
produce any paperwork to substantiate his assertions. However, she did not redeem the
Wyoming property, despite being willing and able to do so, because defendant would not give
her any information. Plaintiff maintained that she wanted the Wyoming property and denied
telling defendant that she would not redeem it. Thus, there appears to be a question of fact
concerning whether plaintiff committed a breach by unequivocally declaring her intent not to
perform, i.e., refusing to abide by Paragraph 32 of the consent judgment, specifying that “[a]ny
lien, encumbrance, or obligation on any property awarded must be assumed and paid by the party
receiving it . . . .”
Despite the contradictory evidence offered on this point, we conclude that the trial court
properly granted plaintiff’s motion for summary disposition because whether plaintiff
unequivocally declared her intent to breach the requirements of Paragraph 32 was not material to
the resolution of plaintiff’s breach-of-contract claim or defendant’s anticipatory-breach defense.
A breach of contract by a party seeking judicial relief will only bar that party’s claim if the
breach is both substantial and first in time. Id. As previously noted, Paragraph 22(e) of the
consent judgment provided: “Defendant agrees to transfer his ownership interest in Plaza 2000
to Plaintiff. He shall cooperate with executing all necessary documents to transfer his interest
immediately.” While this provision is perhaps inartfully phrased, it conveys a clear intent that
defendant was to transfer his interest in Plaza 2000—an interest that would necessarily include
Plaza 2000’s ownership of the Wyoming property—without delay. Defendant admits that he
never transferred his interest in Plaza 2000 and, in fact, remained the sole member of the
company during these proceedings. Thus, defendant clearly breached the parties’ contractual
agreement. And while defendant maintains that plaintiff committed an anticipatory breach by
refusing to redeem the Wyoming property, he testified that he only discussed the impending loss
of the property and plaintiff’s intentions with regard to the same in March 2014, i.e., more than
four months after entry of the consent judgment requiring his immediate transfer of Plaza 2000
to plaintiff. Thus, there is no material question of fact that defendant was the first to breach the
consent judgment. As such, plaintiff’s later alleged breach did not bar her cause of action, nor
did it detract from the fact that plaintiff demonstrated entitlement to judgment as a matter of law
on her breach-of-contract claim.
III. FAILURE TO ADJUDICATE COUNTERCLAIMS
Next, defendant argues that the trial court abused its discretion when it entered a final
order without adjudicating his counterclaims, despite bringing this procedural oversight to the
court’s attention in his motion for reconsideration. We agree.
We review a trial court’s decision on a motion for reconsideration for an abuse of
discretion. Sanders v McLaren-Macomb, 323 Mich App 254, 264; 916 NW2d 305 (2018).
“ ‘[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of
reasonable and principled outcomes.’ ” Id., quoting Saffian v Simmons, 477 Mich 8, 12; 727
-6-
NW2d 132 (2007) (alteration in original). Under MCR 2.604(A), “an order or other form of
decision adjudicating fewer than all the claims, or the rights and liabilities of fewer than all the
parties, does not terminate the action as to any of the claims or parties . . . .” The parties filed a
number of dispositive motions before the trial court, all of which addressed the viability of
plaintiff’s claims. The counterclaims asserted by defendant were never addressed in the motions,
dismissed by stipulation of the parties, nor ruled upon by the trial court. Because those claims
remained pending at the time the trial court entered its March 8, 2018 judgment, the trial court
should not have designated the judgment as a final order or closed the case. The trial court’s
failure to recognize or correct this oversight when the issue was raised by defendant in his
motion for reconsideration clearly fell outside the range of reasonable outcomes and was,
therefore, an abuse of discretion. Accordingly, we remand for further proceedings to address
defendant’s counterclaims.4
IV. DAMAGES CALCULATION
Lastly, defendant argues that the trial court incorrectly calculated plaintiff’s damages.
Because it appears that the trial court conflated several of the figures involved in this case, we
agree, in part, and remand for reevaluation of plaintiff’s damages.
“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 her damages resulting from
defendant’s breach of the consent judgment of divorce. See Alan Custom Homes, Inc v Krol,
256 Mich App 505, 512; 667 NW2d 379 (2003) (“The party asserting a breach of contract has
the burden of proving its damages with reasonable certainty, and may recover only those
damages that are the direct, natural, and proximate result of the breach.”). 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.
In calculating plaintiff’s damages, the trial court made several findings. Although we
will reorder those findings for the sake of clarity, the essence of the court’s findings are as
follows:
The measure of plaintiff’s damages should begin with the value of the Wyoming
property, and the best evidence of the property’s value was the $400,000 purchase
price paid by MBN.
4
This conclusion necessarily impacts our jurisdiction over this matter as an appeal as of right.
See MCR 7.203(A). But in the interest of judicial economy, we exercise our discretion to treat
defendant’s appeal as on leave granted. Detroit v Michigan, 262 Mich App 542, 546; 686 NW2d
514 (2004).
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Because plaintiff was entitled to Plaza 2000 as of the date of the consent judgment of
divorce (October 24, 2013), plaintiff did not have to “accept responsibility for those
expenses that were incurred after that date.”
Had Plaza 2000 been transferred to plaintiff, plaintiff would have been obligated to
assume the liens, encumbrances, and obligations that had been specifically disclosed
in the divorce proceedings, but only the first mortgage was disclosed by defendant.
Thus, despite defendant’s contention that there were additional mortgages on the
property, plaintiff’s damages should not be reduced by amounts necessary to pay off
any additional undisclosed mortgage debts. Plaintiff, however, remained responsible
for satisfying the first mortgage.
As a result of defendant’s failure to transfer Plaza 2000 to plaintiff, plaintiff was
never given the opportunity to avoid the mortgage foreclosure and sheriff’s sale.
Therefore, plaintiff had no responsibility for costs, interest, and fees associated with
the sale or redemption of the property from Oasis Trust, the entity that purchased the
property at the sheriff’s sale.
Notwithstanding defendant’s failure to disclose outstanding tax liabilities associated
with the Wyoming property, plaintiff “would surely know” that the property “comes
with any taxes, penalties and interest that may have accrued.” Accordingly,
plaintiff’s damages would be reduced by amounts defendant paid for past due taxes,
penalties, and interest.
The trial court relied on documents introduced at an evidentiary hearing and awarded damages
based upon the following calculations: $400,000 (MBN purchase price) minus $181,364.08
(mortgage redemption price, less what the court determined were fees paid to Oasis Trust), for a
total of $218,635.92 in damages. Recognizing that it could not return the income producing
property to plaintiff, the trial court clearly attempted to place plaintiff in as good a position by
awarding her the value of the property, less those amounts she would have been required to pay
had defendant performed his contractual obligation to immediately transfer Plaza 2000.
Accordingly, we find no error in the trial court’s determinations concerning the method of
calculating plaintiff’s damages.
On appeal, defendant argues that plaintiff’s damages should have been reduced to
$165,104.685 to account for (1) $195,329.98 required to satisfy the first mortgage; (2) $4,010.75
for a final water bill; (3) $37,520.49 in delinquent taxes for 2012 and 2013; and (4) $25,000
defendant paid to satisfy a third mortgage. The trial court agreed with defendant’s contention
that plaintiff’s damages should be reduced by the amount necessary to satisfy the first mortgage.
5
This figure was offered by defendant following his concession concerning the “$13,000 that the
[trial court] initially deducted from the First Mortgage” (in actuality, the trial court reduced the
redemption price by $13,797.28); we express no opinion as to the mathematical accuracy of
defendant’s calculations.
-8-
Defendant alleges that plaintiff was responsible for $195,329.98 for this purpose. We disagree.
Defendant extracted this figure from the closing statement prepared when he sold the property to
MBN. Defendant’s reliance on this figure is misplaced in light of the trial court’s determination
that plaintiff was not responsible for costs, interest, or fees associated with the sale or redemption
of the property. The Wyoming property was sold at sheriff’s sale for $180,615.14. Thus, the
closing statement figure clearly reflects costs, interest, and fees incurred as a result of the
foreclosure and redemption.
That being said, we must note that the trial court used the redemption price of
$195,161.36 in its calculations, which was inconsistent with its determination that plaintiff was
not obligated to pay costs arising from the sheriff’s sale or redemption. It appears that the trial
court began with this figure and subtracted $13,797.28 (the $108.64 per diem interest rate
charged by Oasis Trust multiplied by the 127 days that elapsed between the sheriff’s sale and
redemption), in an attempt to account for accrued property taxes, while excluding costs
associated with the sheriff’s sale and redemption. While we applaud the trial court’s effort to
accurately apportion each party’s liabilities, it appears that the trial court misunderstood the
source of the figures used in its calculations and mistakenly conflated amounts associated with
redeeming the property from tax forfeiture and amounts paid to redeem the property from the
mortgage foreclosure.
According to the records submitted to the trial court, the Wyoming property was sold to
Oasis Trust at a sheriff’s sale on November 14, 2013, for $180,615.14. Oasis Trust filed an
affidavit indicating that the property could be redeemed for “$180,615.14, plus interest at a rate
of 22% from the date of sale; at a per diem amount of $108.64 to the date of redemption, plus
any additional amounts” permitted by statute. Plaza 2000 redeemed the property for
$195,161.36 on March 21, 2014. Separate from and in addition to the mortgage foreclosure and
redemption, on March 1, 2014, the property was forfeited to the Wayne County Treasurer for
nonpayment of 2012 real property taxes. Acting on defendant’s behalf, a title company paid
$19,836.39 to the Wayne County Treasurer on March 28, 2014, in order to have the certificate of
forfeiture discharged. In calculating plaintiff’s damages, the trial court determined that the
difference between the $19,836.39 tax redemption amount and the per diem interest rate charged
by Oasis Trust, totaling $13,797.28 for 127 days, represented the taxes, together with penalties
and interest, for the property. The trial court’s finding was clearly erroneous in this regard, as it
failed to recognize that the entire $19,836.39 redemption figure represented delinquent taxes,
penalties, interest, and fees for the 2012 tax year. Further, by beginning with the mortgage
redemption figure—$195,161.36—and subtracting $13,797.28 for the daily interest charged by
Oasis Trust, the trial court did not account for the additional amounts Oasis Trust was permitted
to charge by statute. Assuming the amount paid by Oasis Trust at the sheriff’s sale was a full-
credit bid, it is that price—$180,615.14—that more accurately represents the amount plaintiff
would have been required to pay to satisfy the first mortgage.
Turning to defendant’s second argument on appeal, the trial court did not address the
final water bill in its calculations, and it is unclear what period of time the water bill covered.
Because a remand is necessary in any event, we direct the trial court to address in the first
instance what, if any, portion of the water bill should be attributed to plaintiff.
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Next, defendant argues that the plaintiff’s damages should have been reduced by
$37,520.49 for delinquent taxes. Again, defendant extracts this figure from the closing
statements prepared for the MBN sale. As already noted, the 2012 delinquent taxes, including
interest, fees, and penalties, totaled $19,836.39. Because the trial court determined that plaintiff
was responsible for property taxes, and the 2012 taxes were clearly incurred before the consent
judgment was entered on October 24, 2013, we agree that $19,836.39 should be subtracted from
plaintiff’s total damages. However, as it relates to the 2013 taxes, we infer from the trial court’s
conclusion that plaintiff had no “responsibility for those expenses that were incurred after” entry
of the consent judgment on October 24, 2013, that some proration may be called for.6 The trial
court should address this issue further on remand.
Lastly, defendant argues that plaintiff’s damages should be reduced by $25,000, i.e., the
amount he paid to satisfy a third mortgage on the Wyoming property. We disagree. The trial
court determined that, apart from the property taxes, plaintiff was only obligated to pay for the
liens, encumbrances, or debts that had been specifically disclosed by defendant in the divorce
proceedings. Defendant’s financial statement from the divorce proceedings is part of the lower
court record, and it clearly refers only to the first mortgage. Although defendant testified that
plaintiff was aware of the third mortgage, the trial court apparently found defendant’s testimony
incredible, and we must defer to the trial court’s credibility determinations for purposes of
appellate review. Andrusz, 320 Mich App at 455. As such, we are unpersuaded by defendant’s
argument concerning the third mortgage.
In sum, because the court’s mathematical calculations were clearly erroneous, we are
compelled to remand this matter for recalculation of plaintiff’s damages, though we find no error
in the trial court’s methodology. On remand, the trial court is free to reopen the proofs to aid its
calculations.
V. CONCLUSION
We affirm the trial court’s order granting summary disposition as to plaintiff’s breach-of-
contract claim, but vacate the trial court’s order awarding damages to plaintiff and closing the
6
We recognize that if defendant had performed his obligation to promptly transfer Plaza 2000 to
plaintiff, plaintiff would have been responsible for taxes incurred after October 24, 2013.
Plaintiff, however, would also have been free to retain an income producing property that,
according to record evidence, is now yielding over $50,000 in profits annually. Because plaintiff
was deprived of that opportunity by defendant’s breach, we find no error in the trial court’s
decision to limit the setoff of plaintiff’s damages by excluding expenses incurred after entry of
the consent judgment.
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case. On remand, the trial court is directed to properly adjudicate defendant’s counterclaims and
recalculate plaintiff’s damages consistent with this opinion. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Jane M. Beckering
/s/ Anica Letica
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