                         STATE OF MICHIGAN

                          COURT OF APPEALS



CREATIVE ARTS CENTER ROCKFORD and                                UNPUBLISHED
ARTS ROCKFORD,                                                   April 19, 2018

              Plaintiffs-Appellants,

v                                                                No. 336910
                                                                 Kent Circuit Court
CITY OF ROCKFORD,                                                LC No. 15-001688-CB

              Defendant-Appellee,

and

INDEPENDENT BANK CORPORATION and
ATTORNEY GENERAL,

Defendants.


Before: GLEICHER, P.J., and M. J. KELLY and CAMERON, JJ.

PER CURIAM.

         Plaintiffs, Creative Arts Center Rockford (CACR) and Arts Rockford, appeal as of right
the trial court’s declaratory judgment. We affirm.

       Defendant, City of Rockford (Rockford), enacted an ordinance that created an Area Arts
Commission (AAC). The relevant provision, as codified under Rockford’s Code of Ordinances
§ 1.5(C), states, in relevant part:

              (C) AREA ARTS COMMISSION

               (1) Commission Continued. The Area Arts Commission heretofore
       created by the City is hereby continued and shall have the following powers and
       duties:

              (a) To act in an advisory capacity to the City government in connection
       with the artistic and cultural development of the City.

            (b) To coordinate creativity through its assistance, scheduling and
       communication.

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              (c) To sponsor and encourage cultural and educational activities in the
       City and its surrounding areas.

               (d) To act for all the people as the means towards the end result of making
       the Rockford area more habitable and improving the quality of life by sponsoring
       cooperative planning, research, fund raising, public education programs, and
       fostering a creative atmosphere.

              (e) To undertake such other services and programs deemed necessary to
       encourage participation and appreciation of the arts by all citizens in the Rockford
       area.

                                             * * *

              (4) Organization. The Area Arts Commission may organize and elect a
       chairperson annually and adopt such administrative procedures as are necessary to
       accomplish the purposes enumerated herein. City officers and the staff of City
       departments may consult and advise with the Commission from time to time on
       matters coming within the scope of this Chapter; and, the Area Arts Commission
       may likewise consult and advise with such officers and staff.

                                             * * *

              (7) Funds. All monies collected by the Commission shall be held by the
       City Treasurer in a separate City account. Said monies shall be expended and
       drawn from the separate City account as authorized by voucher from time to time
       by the Area Arts Commission.

        For many years, the AAC carried out its mission by accepting monies from local arts and
cultural groups, holding the monies in a separate arts-fund account, and disbursing the funds to
cover expenses incurred by local arts and cultural groups who requested funds from the AAC.
Around 1994, a group of local women formed CACR, a Michigan nonprofit corporation that
obtained federal 501(c)(3) tax exempt status, to raise funds to support local arts and culture
endeavors. Later, some AAC commissioners took over CACR when its founders ceased to have
further interest in carrying on CACR’s mission. AAC never formed its own nonprofit
organization to fundraise for the local arts and culture.

       For nearly 20 years, the AAC and CACR enjoyed a friendly relationship. As a tax
exempt nonprofit corporation, CACR qualified for and obtained state funded grants. As an
extension of the city government, the AAC lacked the qualifications to apply for and receive
such grants. CACR and other local arts groups transferred monies to the AAC, which disbursed
the funds in compliance with Rockford’s Code of Ordinances § 1.5(C). CACR historically
helped numerous local arts and cultural groups, which included the orchestra, choir, music
performance groups, theater, ballet, writers, and visual artists.

       Around 2014, CACR hired an executive director to help it grow and establish an arts
center. Discord developed between CACR and the AAC due to animus between CACR’s
executive director and Rockford’s City Manager. Ultimately, this hostility led to plaintiffs filing

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suit for declaratory relief regarding $58,226.58 held by the AAC in a segregated Rockford
account and $3,955.01 that CACR raised from holding a state licensed raffle and deposited into
its own bank account. Plaintiffs sued and demanded an accounting, a declaration of their rights
to the disputed funds, and damages for common-law and statutory conversion.

        The trial court held a bench trial over the course of several days. The trial court entered a
declaratory judgment in favor of Rockford respecting the $58,226.58, in favor of plaintiffs
respecting the $3,955.01, and entered a judgment of no cause of action in favor of Rockford on
plaintiffs’ conversion claims. Plaintiffs now appeal.

        Plaintiffs first argue that the trial court erred by declaring that Rockford had legal
entitlement to the $58,226.58 it held on the ground that Rockford failed to establish that it had
authority to hold monies entrusted to it by arts groups including CACR. We disagree.

        We review “de novo a decision to grant or deny a declaratory judgment; however, the
trial court’s factual findings will not be overturned unless they are clearly erroneous.” Ter Beek
v City of Wyoming, 297 Mich App 446, 452; 823 NW2d 864 (2012). Findings of fact are clearly
erroneous where no evidentiary support exists or if this Court is left with a definite and firm
conviction that a mistake has been made. Trahey v Inkster, 311 Mich App 582, 593; 876 NW2d
582 (2015).

        MCR 2.605 governs declaratory judgments, and the court rule provides, in pertinent part,
that “[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may
declare the rights and other legal relations of an interested party seeking a declaratory judgment,
whether or not other relief is or could be sought or granted.” MCR 2.605(A)(1).

        “Under Const 1963, art 7, § 22, a Michigan municipality’s power to adopt resolutions and
ordinances relating to municipal concerns is ‘subject to the constitution and law’.” People v
Llewellyn, 401 Mich 314, 321; 257 NW2d 902 (1977). “Michigan is strongly committed to the
concept of home rule, and constitutional and statutory provisions which grant power to
municipalities are to be liberally construed.” Bivens v Grand Rapids, 443 Mich 391, 400; 505
NW2d 239 (1993). Local governments may exercise reasonable control to regulate matters of
local concern in a manner and to the degree that the regulation does not conflict with state law.
City of Taylor v Detroit Edison Co, 475 Mich 109, 117-118; 715 NW2d 28 (2006). Further,
under The Home Rule City Act, MCL 117.1a et seq., and specifically, MCL 117.5b, cities have
authority to enact municipal ordinances. In this case, Rockford exercised its constitutional and
statutory power to enact Rockford’s Code of Ordinances § 1.5(C).

        We interpret ordinances in the same manner that we interpret statutes. Ahearn v
Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999). If the language is
clear and unambiguous, courts may only apply the language as written. Id. A provision is
ambiguous only if it irreconcilably conflicts with another provision or it is equally susceptible to
more than a single meaning. Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 136; 892
NW2d 33 (2016). We follow these rules of construction to give effect to the legislative body’s
intent. Ballman v Borges, 226 Mich App 166, 167; 572 NW2d 47 (1997).




                                                -3-
        We hold that Rockford Code of Ordinances § 1.5(C) is clear and unambiguous. Rockford
Code of Ordinances § 1.5(C)(7), authorized the AAC to collect monies. The City Treasurer had
the obligation to hold such monies in a separate city account. The ordinance permitted spending
the monies and drawing on the account as authorized by the AAC. The ordinance did not require
the AAC to treat the funds as belonging to any person or entity who transferred the funds to
Rockford. The ordinance plainly gave the AAC broad discretion to decide how the monies
would be used. Further, the ordinance did not impose fiduciary obligations on the AAC
respecting the funds collected and held in the AAC’s arts fund account.

        The ordinance created no duties that the AAC owed to CACR or any other person or
entity in the Rockford area respecting funds collected and held by the AAC. The AAC had no
obligation to hold the funds collected by the AAC for any party’s benefit. Rather, Rockford
Code of Ordinances § 1.5(C)(1)(d) empowered the AAC to work for the general welfare of the
people of Rockford to make the Rockford area a more habitable place through its sponsorship
and coordination of local artistic and cultural activities. The ordinance unambiguously granted
the AAC broad powers to fulfill its ordained purposes.

        Significantly, the record reflects that the AAC had no binding legal obligation to hold any
monies collected by the AAC for the exclusive benefit of CACR. The parties never entered a
contract or defined their relationship. Further, nothing in the record establishes that CACR ever
retained ownership or control over the monies it raised and transferred to the AAC. The record
reflects that historically various arts-related entities transferred monies to the AAC and that the
AAC disbursed the monies later upon requests by arts-related entities. Rockford’s April 14,
2014 general ledger report stated that some of the $58,226.58 in the AAC arts-fund account
came from state grants and that a portion came from local arts groups’ fundraising activities.
The ledger reflects that the funds were not segregated into distinct and separate funds for any
individual arts-related entities. Although the account segregated the funds, those funds were
unclassified.

        Further, no evidence established that the AAC lacked discretion or had any legal
obligation to disburse funds it held in any manner other than as prescribed by Rockford’s Code
of Ordinances § 1.5(C). The evidence established that, although CACR existed as a separate
nonprofit corporate entity distinct from the AAC, CACR historically chose to transfer funds to
the AAC. We do not believe that CACR had a legal obligation to transfer funds to the AAC.
Nevertheless, it did so, and once those funds were transferred to Rockford, they became subject
to Rockford’s Code of Ordinances § 1.5(C), which gave the AAC discretion to disburse those
funds for the general benefit of the Rockford area.

        Accordingly, we hold that the trial court did not err by concluding that the monies CACR
gave to the AAC belonged to Rockford because the AAC collected the monies pursuant to
Rockford Code of Ordinances § 1.5(C)(7) and held the monies in a separate city account for
disbursement as authorized by the AAC in accordance with the city ordinance. Therefore, the
trial court correctly granted Rockford declaratory relief respecting the $58,226.58.

       Plaintiffs argue for the first time on appeal that Rockford had an implied contract with
CACR entitling CACR to the $58,226.58. Michigan generally follows a raise or waive rule of
appellate review. Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d 431 (2008). However,

                                                -4-
this Court has the discretion to overlook preservation requirements. See Smith v Foerster-Bolser
Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006) (stating that this Court may
overlook preservation requirements where the failure to consider the issue would result in a
manifest injustice, or 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).
That said, this Court will exercise its discretion sparingly and only where exceptional
circumstances warrant review. Booth v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23;
507 NW2d 422 (1993). Because plaintiffs failed to raise any implied contract claim below, we
hold that plaintiffs waived this issue, and we decline to review it.

        Plaintiffs next argue that the trial court erred by denying it declaratory relief because
CACR transferred monies to the AAC and Rockford held the monies in a segregated account.
Plaintiffs contend that because Rockford held the monies in a separate account that its
independent auditors labeled “fiduciary funds,” a fiduciary relationship arose between CACR
and Rockford requiring Rockford to hold the monies for CACR’s sole benefit. Plaintiffs claim
that the trial court should have imposed a resulting trust or constructive trust over the $58,226.58
and erred by not declaring those monies belonged to CACR despite the legal provisions of
Rockford’s Code of Ordinances § 1.5(C). We disagree.

        In In re Karmey Estate, 468 Mich 68, 74; 658 NW2d 796 (2003), the Michigan Supreme
Court explained, “ ‘Fiduciary relationship’ is a legal term of art, as is the phrase ‘confidential or
fiduciary relationship.’ ” The Michigan Supreme Court relied on Black’s Law Dictionary (7th
ed), which defines a “fiduciary relationship” as

       [a] relationship in which one person is under a duty to act for the benefit of the
       other on matters within the scope of the relationship. Fiduciary relationships—
       such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client—
       require the highest duty of care. Fiduciary relationships [usually] arise in one of
       four situations: (1) when one person places trust in the faithful integrity of
       another, who as a result gains superiority or influence over the first, (2) when one
       person assumes control and responsibility over another, (3) when one person has a
       duty to act for or give advice to another on matters falling within the scope of the
       relationship, or (4) when there is a specific relationship that has traditionally been
       recognized as involving fiduciary duties, as with a lawyer and a client or a
       stockbroker and a customer. [Id. at 74 n 2.]

       Regarding the term “confidential or fiduciary relationship,” the Michigan Supreme Court
explained:

              Although a broad term, “confidential or fiduciary relationship” has a
       focused view toward relationships of inequality. This Court recognized in In re
       Wood’s Estate, 374 Mich 278, 287; 132 NW2d 35 (1965), that the concept had its
       English origins in situations in which dominion may be exercised by one person
       over another. Quoting 3 Pomeroy, Equity Jurisprudence (5th ed, 1941), § 956a,
       this Court said a fiduciary relationship exists as fact when “ ‘there is confidence
       reposed on one side, and the resulting superiority and influence on the other.’ ”
       374 Mich [at] 283.

                                                 -5-
               Common examples this Court has recognized include where a patient
       makes a will in favor of his physician, a client in favor of his lawyer, or a sick
       person in favor of a priest or spiritual adviser. 374 Mich [at] 285-286. In these
       situations, complete trust has been placed by one party in the hands of another
       who has the relevant knowledge, resources, power, or moral authority to control
       the subject matter at issue. [Id. at 74 n 3.]

       In Potter v Lindsay, 337 Mich 404, 410; 60 NW2d 133 (1953), the Michigan Supreme
Court described a “resulting trust” as follows:

       A resulting trust arises where a person makes or causes to be made a disposition
       of property under circumstances which raise an inference that he does not intend
       that the person taking or holding the property should have the beneficial interest
       therein and where the inference is not rebutted and the beneficial interest is not
       otherwise effectively disposed of. Since the person who holds the property is not
       entitled to the beneficial interest, and since the beneficial interest is not otherwise
       disposed of, it springs back or results to the person who made the disposition or to
       his estate, and the person holding the property holds it upon a resulting trust for
       him or his estate. [Quotation marks and citation omitted.]

       The Michigan Supreme Court has also explained that a “constructive trust” is not an
independent cause of action but an equitable remedy. Kammer Asphalt Paving Co v East China
Twp Sch, 443 Mich 176, 188; 504 NW2d 635 (1993). In Ooley v Collins, 344 Mich 148, 158; 73
NW2d 464 (1955), the Michigan Supreme Court explained that a constructive trust may be
imposed to do equity or to prevent unjust enrichment but not if the party seeking the equitable
remedy contributed to the reasons for imposing the constructive trust.

        In this case, no evidence established that the AAC had a fiduciary relationship with
CACR. The AAC had no legal duty to act for the benefit of CACR. The AAC’s existence and
the scope of its duties were expressly and unambiguously defined by the Rockford Code of
Ordinances § 1.5(C). The AAC had authorization to collect and spend monies pursuant to
§ 1.5(C)(7). Nothing in the Rockford Code of Ordinances § 1.5(C) created a fiduciary
relationship or required the creation and maintenance of a “fiduciary account” for any person or
entity respecting monies collected and held by the AAC. Instead, the AAC had authority to
collect monies, hold them in an account set up by the City Treasurer, and exercise discretion to
spend the money for the general welfare of the people of Rockford to support the arts and
culture.

        The record does not reflect that the AAC failed to comply with its duties under Rockford
Code of Ordinances § 1.5(C). We do not believe that CACR’s transfer of monies to the AAC
established a fiduciary relationship between the AAC and CACR, nor does it dictate the
conclusion that a resulting trust existed requiring the imposition of a constructive trust over the
$58,226.58 for CACR’s benefit. Once monies were transferred to the AAC, the AAC had to
comply with Rockford Code of Ordinances § 1.5(C). As the trial court correctly discerned, to
conclude otherwise would undermine the city’s ordinance and the AAC’s lawful authority to act
as required under that ordinance. As a separate and distinct nonprofit corporate entity, CACR


                                                -6-
could have chosen not to transfer monies to the AAC. However, once it did so, the money
belonged to Rockford for use by the AAC pursuant to Rockford Code of Ordinances § 1.5(C).

       We hold that the trial court did not err by declaring that the $58,226.58 belonged to
Rockford because the monies were held by Rockford in a segregated account for the AAC in
compliance with Rockford Code of Ordinances § 1.5(C)(7) for use as defined under the city’s
ordinance. Therefore, the trial court correctly denied plaintiffs declaratory relief regarding the
$58,226.58.

     Lastly, plaintiffs argue that the trial court erred by not awarding CACR damages for
common-law and statutory conversion. We disagree.

        We review for clear error a trial court’s findings of fact following a bench trial and
review de novo its conclusions of law. Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900
(2007). Factual findings are clearly erroneous when, on review of the whole record, this Court is
left with the definite and firm conviction that the trial court made a mistake. Castro v Goulet,
312 Mich App 1, 3; 877 NW2d 161 (2015); Dep’t of Licensing and Regulatory Affairs v Khan,
311 Mich App 66, 70; 874 NW2d 188 (2015).

       Under the common law, conversion is “any distinct act of dominion wrongfully exerted
over another’s personal property in denial of or inconsistent with his rights therein.” Aroma
Wines & Equip, Inc v Columbian Dist Serv, Inc, 497 Mich 337, 346; 871 NW2d 136 (2015).
MCL 600.2919a defines statutory conversion as follows:

              (1) A person damaged as a result of either or both of the following may
       recover 3 times the amount of actual damages sustained, plus costs and reasonable
       attorney fees:

              (a) Another person’s stealing or embezzling property or converting
       property to the other person’s own use.

               (b) Another person’s buying, receiving, possessing, concealing, or aiding
       in the concealment of stolen, embezzled, or converted property when the person
       buying, receiving, possessing, concealing, or aiding in the concealment of stolen,
       embezzled, or converted property knew that the property was stolen, embezzled,
       or converted.

              (2) The remedy provided by this section is in addition to any other right
       or remedy the person may have at law or otherwise.

       In Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 111-112; 593 NW2d
595 (1999), this Court explained:

       The tort of conversion is any distinct act of domain wrongfully exerted over
       another’s personal property in denial of or inconsistent with the rights therein.
       Statutory conversion, by contrast, consists of knowingly buying, receiving, or
       aiding in the concealment of any stolen, embezzled, or converted property. To
       support an action for conversion of money, the defendant must have an obligation

                                               -7-
       to return the specific money entrusted to his care. The defendant must have
       obtained the money without the owner’s consent to the creation of a debtor and
       creditor relationship. [Quotation marks and citations omitted.]

        In this case, as explained above, the trial court properly held that Rockford owned and
possessed the $58,226.58 pursuant to Rockford Code of Ordinances § 1.5(C). Therefore,
Rockford did not commit common-law or statutory conversion respecting the $58,226.58. The
trial court properly analyzed the evidence and correctly concluded as a matter of law that
Rockford never converted, nor could it convert, monies in its possession and control pursuant to
Rockford Code of Ordinances § 1.5(C).

        Rockford also never possessed or controlled the $3,955.01. Although Rockford disputed
CACR’s right to the money in CACR’s bank account, the record establishes that Rockford did
not take possession of that money and never exercised dominion or control over it. The bank
froze CACR’s account because of the parties’ dispute over the deposited funds but did not turn
the monies over to Rockford. Later, pursuant to the parties’ stipulation, the trial court ordered
that the money be held in an escrow account by plaintiffs’ counsel. Therefore, the evidence did
not establish that Rockford took dominion and control over the money in the bank account.

        We conclude that plaintiffs failed to prove that Rockford converted CACR’s monies
because the evidence established that the $58,226.58 belonged to Rockford, and as a matter of
law, Rockford could not convert its own monies held by it pursuant to Rockford Code of
Ordinances § 1.5(C). Further, the evidence established that Rockford never had possession or
control of the $3,955.01. Accordingly, Rockford did not commit either common-law or statutory
conversion. Therefore, the trial court did not err by granting judgment to Rockford on plaintiffs’
conversion claims.

       Affirmed.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Michael J. Kelly
                                                            /s/ Thomas C. Cameron




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