Wilson v. Taylor

Taylor, J.

(dissenting).

i

Defendants were the vendees in a land contract agreement entered into with Lynette Luft. Luft subsequently assigned her interest in the property to plaintiffs. Defendants did not make timely payments on the land contract and, consequently, in October, 1992, after serving notice of forfeiture on defendants with no payment received thereafter, plaintiffs initiated a forfeiture proceeding by filing a complaint for possession. Subsequently, the parties agreed that the land contract was $2,000 in arrears, and on October 27, 1992, the parties appeared in district court and stipulated to the entry of a judgment. The judgment required that defendants pay the $2,000 arrearage and that “all monies paid during [the] redemption period shall first be applied to keep payments current and *248then to the outstanding judgment amount.”1 The judgment indicated that the redemption period closed on February 1, 1993, thus giving defendants just over ninety days to redeem. Thus, to comply with the judgment, defendants should have paid $3,600 by February 1, 1993 ($2,000, plus four payments of $400 a month).

Defendants subsequently paid plaintiffs $2,150. They paid $1,800 during the redemption period specified in the consent judgment ($600 on October 19, 1992, and $400 on November 5, 1992, December 14, 1992, and January 8, 1993). Three hundred-fifty dollars were paid on February 5, 1993, after the deadline had expired. Because the judgment had not been satisfied, plaintiffs moved for a writ of restitution. A hearing was conducted on February 9, 1993. The parties submitted a stipulated order requiring that defendants pay $1,450 by February 18, 1993. This amount represented the unpaid balance due under the October 27, 1992, judgment. Effectively, plaintiffs gave defendants additional time to cure the default. Defendants acknowledged on the record that they had agreed to pay the $1,450 or be put out of the *249property.2 The court entered the order and, after no additional payments were made, plaintiffs moved for a writ of restitution, which was entered on February 18, 1993.

Defendants, up to this time unrepresented by legal counsel, retained an attorney and sought to have the writ of restitution set aside on the basis that the original judgment was unenforceable. Defendants claimed that the consent judgment contained an impermissible clog on their right of redemption because it required that all payments made during the redemption period would first be applied to the current month’s rent. The district court refused to set the writ *250aside, finding that there was no waiver of the right of redemption, and that the judgment merely effectuated the agreement of the parties. The circuit court affirmed. The Court of Appeals also affirmed. In doing so, however, the Court of Appeals first ruled that the provision in the judgment requiring that the contract be kept current during the redemption period was an improper “clogging” of defendant’s right of redemption. Nevertheless, the Court concluded that the writ of restitution was proper because defendants’ failure to pay the payments as they accrued was a material breach of the land contract that warranted issuing a writ of restitution pursuant to MCL 600.5744(6); MSA 27A.5744(6). This Court granted defendants’ application for leave to appeal.

n

I would affirm the result reached by the Court of Appeals, albeit for a different reason than relied on by that Court. If, as the majority clarifies for the benefit of the bench and bar, the judgment must be construed pursuant to MCL 600.5741; MSA 27A.5741 as only requiring that defendants pay $2,000 to redeem, that amount was not paid during the period of redemption. Assuming this dispute is controlled by the summary proceedings act, pursuant to MCL 600.5744(3)3 and (6)4; MSA 27A.5744(3) and (6), defendants had ninety days, and no more, to pay the *251redemption amount and thus preclude issuance of the writ of restitution. Flynn v Korneffel, 451 Mich 186, 199; 547 NW2d 249 (1996) (“In order to comply with the statute and exercise this right of redemption, ... it is incumbent on the vendee in default to pay the entire balance within that period” [emphasis in original]). In fact only $1,800 was paid before the period of redemption expired. Consequently, defendants simply failed to redeem when they had that right and, therefore, entry of the writ of restitution was proper. That in itself should end this matter.

The majority is apparently unwilling to enforce the statutory time limit because Flynn was not cited by either party. I agree that this Court is not obliged to research an appellant’s legal arguments when the appellant fails to do so. Yet, there is a critical difference between the appellant’s obligation to demonstrate that error occurred below and the role of an appellee. While an appellant bears the burden of directing this Court to the authority that will substantiate its claim of error, appellees are not similarly required to demonstrate the lack of error below. This Court has specifically noted that an appellee’s failure to adequately brief a case does not preclude affuming the result reached below when there was no error.

No argument is made in the brief for the appellee to support the rulings admitting testimony, the charge of the court, or the theory according to which the issue of fact was left with the jury. Nevertheless, we must sustain the judgment if no error occurred at trial. [Int'l Text-Book Co v Marvin, 166 Mich 660, 666; 132 NW 437 (1911).]

Moreover, this Court has specifically stated that the failure to raise an issue, both below and in the briefs *252to this Court, does not preclude addressing it. Paramount Corp v Miskinis, 418 Mich 708, 730-731; 344 NW2d 788 (1984). The reason for this is that we have a duty to follow the law if it is within our knowledge what the law is, simply to maintain the integrity of our jurisprudence. I find it difficult to imagine that a majority of this Court would, in a given case, throw into jeopardy unchallenged precedent, knowing we are doing so, merely because a party did not cite authorities correctly. Yet this is what we are doing here.5

In this case the majority simply refuses to apply the statutory time limit and controlling precedent, well within the Court’s knowledge, because the parties’ briefs were inadequate in this regard. Such action is contrary to the fact that the Court is obliged to follow the law. I would affirm issuance of the writ of restitution because defendants failed to pay even the minimum amount due during the period of redemption.

m

I further disagree with the majority’s conclusion that the “further orders”6 language of the judgment was improper in this case. This case presents us with the common situation where a lawsuit is resolved by *253agreement of the parties and then memorialized by entry of a consent judgment. That it is a consent judgment does not strip the instrument of its contractual character. Moreover, a consent judgment possesses the same force and character as other judgments. Madison v Detroit, 182 Mich App 696, 701; 452 NW2d 883 (1990). Here, as the litigation sub judice took its course, the parties resolved their dispute by contracting for the amount defendants owed, when it would be paid, and the result that would follow if defendants failed to perform. The parties placed their agreement on the record and obtained a judgment that embodied these terms. After their initial agreement, the parties again went to court and modified their agreement by a second agreement giving defendants additional time to pay the amount still owing under the original consent judgment. This second agreement was also reduced to an order of the court.7 After defendants failed to perform as required, a writ of restitution was entered pursuant to the terms of the consent judgment.8

*254By opining that the “further orders” language of the judgment is invalid under § 5741, the majority fails to enforce the contractual agreement the parties reached to settle this case without going to trial. We should acknowledge that, while this action commenced as a forfeiture proceeding under the summary proceedings act, the parties voluntarily resolved the dispute. It was not necessary for their settlement agreement, even though litigation had been commenced under the summary proceedings act, to track the resolutions that would have been allowable under the act because that act does not make an alternative agreement to resolve the dispute illegal. In fact, quite to the contrary, the act specifically states that “[t]he remedy provided by summary proceedings is in addition to, and not exclusive of, other remedies, either legal, equitable or statutory.” MCL 600.5750; MSA 27A.5750; see also Day v Lacchia, 175 Mich App 363, 374; 437 NW2d 400 (1989) (a land contract vendor need not resort to statutory summary proceedings in all cases). It is my belief that the act would be utilized through to a judgment only if another means of concluding the case (such as a settlement agreement) was not effected at some point before the entry of the judgment pursuant to the act.9 This is simply to say, if the parties could not agree, once in litigation, to a resolution of the dispute they have over the land contract, then the summary proceeding act would be the means by which a court-ordered resolution would be *255effectuated. A settlement short of trial having been mutually agreed to, however, plaintiffs are entitled to enforcement of the terms of the consent judgment. The fact that the remedy may be different than they would have had, had they proceeded to trial, is irrelevant.

IV

Apart from the fact that the judgment was an enforceable contract between the parties that entitled plaintiffs to the writ of restitution, there is yet another problem with the majority’s analysis. It holds that any judgment for possession arising out of a land contract dispute may not require the vendee to bring the contract completely current by the end of the redemption period provided in the judgment. This, of course, means that, at the end of the redemption period, if these monthly accruing payments are not made, the contract will again be in arrears and the vendors, once again, would need to initiate proceedings to receive the money they are due. This, as seems obvious, can be a never-ending litigation treadmill. Arguably, this outcome is required if proceeding to judgment under the statute.

However, we should not have to reach this issue because this judgment was not taken under the statute. Rather it was, as I have earlier explained, an enforceable agreement that stands independent of the summary proceedings statute. Given this situation, the parties should be able, if they settle their case before trial under the statute, to make such arrangements as they would wish with regard to accruing payments. The majority precludes the parties from having this latitude, however, by their handling of this *256issue. Moreover the majority disavows any concern over this problem by confidently assuring us that we need not fret over the vendor’s plight because he can simply choose to commence a foreclosure action. Yet, this argument ignores the common realities faced by land contract vendors.

Typically the vendor has his own payments to make on the property. To tell him to wait months or years as he goes through pretrial mediation, discovery, settlement conferences, and trial in a foreclosure action is to commit him to a desperate situation where he is really without a meaningful remedy. In Gruskin v Fisher, 405 Mich 51, 64; 273 NW2d 893 (1979), this Court noted that, at that time, it could take up to five years for a foreclosure action to proceed to trial in Wayne County.

Land contract purchasers generally do not willingly surrender possession or forfeit their equity. Most sellers do not seek a return of the property, but payment.
There is no reason to burden the circuit courts with actions to foreclose land contracts. Land contract sellers should not be encouraged to commence such proceedings. [Id. at 63.]

It is in this light that we should view the current controversy. If we emasculate a vendor’s ability to negotiate resolution of a land contract dispute with his vendee and get the land contract vendee to bring his payments completely current, the result will not be, once the dawn breaks with respect to what we have done, that land contract disputes will simply be handled in foreclosure actions. The outcome will be that we will greatly discourage vendors from offering land contracts. This will be of little moment for financially substantial citizens and institutions that may *257well prefer mortgages, but it will be devastating to underfinanced buyers who need land contracts so as to be able to purchase homes. I feel the majority has not considered this in its discussion of this issue.

Consequently, I would affirm the result reached by the Court of Appeals.

Weaver, J., concurred with Taylor, J.

The transcript of the October 27, 1992 hearing shows that defendants told the court that they were aware of the terms of the judgment and that they wished the court to enter it:

The Court-. You’re familiar with the terms outlined in this land contract forfeiture judgment, are you, ma’am?
Torda Taylor: Yes.
The Court: And you’re willing for the Court to sign it?
Torda Taylor. Yes.
Robert Taylor. Yes.

The transcript of the February 9, 1993, hearing shows defendants’ agreement to the terms of the order entered pursuant to the stipulation of the parties.

The Court: Tonia Taylor. So you’ve heard what Mr. Wilson has had to say, and you’ve also reviewed this document called the stipulation?
Mr. Taylor. Right.
The Court: That’s another word for an agreement and an order. It looks like you both signed that. Did you do that here this morning?
Mr. Taylor. Yes, ma’am.
The Court: All right, so do you understand what the agreement is that you’ve reached here today?
Mrs. Taylor. Yes.
The Court: . . . And if you have that paid by that time then this matter would be closed and at an end. However, if you fail to do that, Mr. Wilson will appear here then for Writ of Restitution, which means you would be put out of the property. Do you understand all of that?
Mr. Taylor. Yes, ma’am.
The Court: And that’s the agreement that you’ve reached? And you understand then having reached that agreement that I’m going to sign this order here today?
Mr. Taylor. Yes.

The applicable portion of the statute states: “[T]he writ of restitution shall not be issued until the expiration of 90 days after the entry of judgment for possession if less than 50% of the purchase price has been paid

“[T]he writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff . . .

It is even dubious to me that this rule will in fact be applied consistently. The following hypothetical situation makes the point. If a person appeared before this Court after winning on a procedural basis below, asking that he be released from involuntary servitude, yet failed to cite the Thirteenth Amendment of the United States Constitution, prohibiting slavery, would we decline to affirm the lower courts because of that failure? I think not. I grant that I offer an extreme example, yet, its lesson is clear.

To be clear, this label refers to the term in the judgment specifying that any payments made by defendants would first be applied to current accruing payments, with any excess applied to reduce the amount in arrears.

While it may be arguable that the first settlement agreement was not enforceable pursuant to MCR 2.507(H) because defendants apparently did not sign the judgment and all its terms were not placed on the record, defendants did sign the stipulation that led to the entry of this second order. Consequently, because defendants signed this stipulation, which effectively embodied the terms of the first consent judgment, the terms of the agreement are enforceable pursuant to MCR 2.507(H).

It seems odd that the majority finds fault with enforcing the consent judgment on the basis that the amounts defendants agreed were owed under the land contract were “never subject to proof before the trial court.” Ante at 246, n 15. This is not merely a case in which the defendant failed to offer any defense regarding an amount alleged due by the plaintiff, as suggested by the majority. Rather, by their stipulation, defendants specifically agreed to the amounts past due and accruing after entry of the judgment under the land contract. See n 2. Where defendants affirmatively agreed to these amounts, it is not necessary that plaintiffs prove these amounts in court.

In this regard, I disagree with the majority’s implication that a land contract vendor has only two remedies available, i.e., forfeiture or foreclosure. While both have their place, their existence should not preclude the parties from reaching an enforceable agreement outside the confines of these procedures if the parties are able to resolve their dispute more expediently.