                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re PETITION OF BERRIEN COUNTY
TREASURER FOR FORECLOSURE.


BERRIEN COUNTY TREASURER,                                           FOR PUBLICATION
                                                                    April 10, 2018
               Petitioner-Appellee,                                 9:00 a.m.

v                                                                   No. 330795
                                                                    Berrien Circuit Court
NEW PRODUCTS CORP,                                                  LC No. 2014-000170-CZ

               Respondent-Appellant.


Before: HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ.

PER CURIAM.

        This foreclosure action is before the Court on remand from the Michigan Supreme Court
to consider “whether MCL 211.78k(7) requires payment of the full amount due for all tax parcels
listed in a judgment of foreclosure as a condition of appeal where the taxpayer does not seek to
challenge the foreclosures for all of the parcels.” In re Petition of Berrien County Treasurer, 500
Mich 902; 887 NW2d 633 (2016). We conclude that it does not.

                                       I. BACKGROUND

        Respondent challenged petitioner’s June 13, 2014 prayer for the tax foreclosure of six of
seven property tax parcels 1 comprising 12 acres at 489 North Shore Drive, Benton Harbor,
Michigan for unpaid taxes for tax years 2008 through 2012. On November 3, 2014, respondent
filed objections to foreclosure of those parcels. All seven of the North Shore properties were
removed from the annual petition for foreclosure. Thereafter, the parties filed cross-motions for
summary disposition on the respondent’s objections. The circuit court granted petitioner’s MCR
2.116(C)(4) motion for lack of subject matter jurisdiction because it agreed that the tax tribunal
1
 Tax ID Nos.: 11-54-0018-0021-02-9; 11-54-0018-0021-01-1; 11-54-0018-0025-00-8; 11-54-
0018-0025-02-4; 11-54-0018-0025-01-6; 11-54-0018-0025-03-2; 11-54-0018-0024-00-1.
Respondent does not challenge the foreclosure of property tax parcel No. 11-54-0018-0025-02-4,
and has allowed the foreclosure process to proceed regarding that parcel only.



                                                -1-
had exclusive and original jurisdiction to make the fact-findings necessary to resolve
respondent’s objections. The court also held that respondent lacked standing to assert the notice
rights of third parties Modern Plastics and the Walter Miller Trust. A Judgment of Foreclosure
of all of the North Shore properties was entered on May 20, 2015. The court entered a stay of
the enforcement of the Judgment:

       until (a) the Michigan Court of Appeals has reversed, modified, or affirmed the
       same, and the Michigan Court of Appeals’ decision has become final; or (b) until
       the period by which New Products Corporation may file a claim of appeal has
       expired without any such claim of appeal having been filed, whichever occurs
       first. If an appeal is timely filed, the 21-day period for payment of all forfeited
       delinquent property taxes, interest, penalties and fees shall begin upon expiration
       of the stay.

        Respondent appealed as of right the circuit court’s May 2015 Judgment of Foreclosure
and the underlying grant of the motions for summary disposition. Petitioner, in turn, filed a
motion for partial peremptory reversal arguing that the circuit court’s stay of enforcement of the
judgment allowed respondent to file a claim of appeal without having paid the full amount owed
on the judgment of foreclosure as required under MCL 211.78k. In lieu of granting the motion,
this Court vacated the May 2015 judgment of foreclosure:

        . . .The trial court committed manifest error. MCL 211.78k(7) specifically and
       unambiguously provides for an appeal of right from a judgment of foreclosure
       entered under this statutory foreclosure scheme, provided the appellant pays to the
       county treasurer the amount due on the property within 21 days after entry of the
       judgment. When granting the right to appeal, the Legislature possesses the
       “unquestioned authority” to impose as a “jurisdictional condition precedent” to an
       appeal the condition of payment of the amount of a delinquent tax decree and this
       condition precedent “may be neither waived by counsel nor dispensed with by
       court.'” In re Petition of Auditor General, 252 Mich 367, 368-369; 233 NW 348
       (1930). We REMAND this matter to the trial court for entry of a new judgment of
       foreclosure that does not include a provision that relieves New Products
       Corporation of its statutory obligation to pay the amount owed under the
       judgment as a condition to appealing. The May 20, 2015 order having been
       vacated, plaintiff’s appeal and defendant’s cross appeal are DISMISSED as
       MOOT. The parties may appeal from the new judgment in accordance with MCL
       211.78k(7) and the applicable court rules. This order has immediate effect. MCR
       7.2 l 5(F)(2). [In re Petition of Berrien County Treasurer for Foreclosure,
       unpublished order of the Court of Appeals, Docket No. 327688, issued June 10,
       2015].

On remand, the circuit court entered a July 27, 2015 amended judgment of foreclosure:

        . . . that this Amended judgment is stayed until the period by which New Products
       Corporation may file a claim of appeal from this amended judgment has expired
       without any such claim of appeal having been filed. If an appeal is filed as to any
       particular parcel(s), then this Amended Judgment shall be stayed as to the


                                               -2-
       parcel(s) under appeal until the Michigan Court of Appeals has reversed, modified
       or affirmed the same, and the Michigan Court of Appeals’ decision has become
       final, provided that New Products Corporation complies with MCL 211.78k(7).

        On August 14, 2015, respondent paid $35,436.87 to redeem five of the seven parcels and
filed a claim of appeal from the Amended Judgment initiating this appeal. Petitioner again filed
a motion to dismiss with this Court arguing that respondent had not paid the full amount due
under the judgment as required under MCL 211.78k. This Court granted respondent’s motion to
dismiss, explaining:

        . . .[T]he motion to dismiss this appeal is GRANTED because appellant has
       failed to pay the amount determined to be due to the county treasurer under the
       July 27, 2015 amended judgment of foreclosure as required by the plain language
       of MCL 211.78k(7) for it to pursue this appeal. We must apply this requirement
       of MCL 211.78k(7) in accordance with its plain and ordinary meaning which
       requires payment of the full amount due under the judgment as a condition for an
       appeal, not merely a partial payment. See Spectrum Health Hospitals v Farm
       Bureau Mutual Ins Co of Michigan, 492 Mich 503, 515; 821 NW2d 117 (2012)
       (regarding requirement to apply statutory language in accordance with its plain
       and ordinary meaning). In this regard, that MCL 211.78k(7) requires payment of
       “the amount” determined to be due under the judgment reflects that only one
       amount is contemplated which can only be the one amount, i.e., the full amount,
       due under the judgment. See Robinson v Detroit, 462 Mich 439, 461-462; 613
       NW2d 307 (2000) (discussing meaning of definite article “the”). Because
       dismissal is required due to appellant’s failure to pay the amount determined to be
       due under the judgment appealed from we do not need to reach the other issues
       raised by the parties. [In re Petition of Berrien County Treasurer for Foreclosure,
       unpublished order of the Court of Appeals, Docket No. 330795, issued March 2,
       2016].

Respondent filed an application for leave to appeal and a motion for immediate consideration
with our Supreme Court on June 1, 2016. In lieu of granting leave to appeal, the Supreme Court
issued the following order:

       On order of the Court, the motion for immediate consideration is GRANTED. The
       application for leave to appeal the March 2, 2016 order of the Court of Appeals is
       considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal,
       we VACATE that part of the Court of Appeals order granting the motion to
       dismiss the appeal, and REMAND this case to the Court of Appeals for plenary
       consideration as on leave granted of whether MCL 211.78k(7) requires payment
       of the full amount due for all tax parcels listed in a judgment of foreclosure as a
       condition of appeal where the taxpayer does not seek to challenge the foreclosures
       for all of the parcels. If the Court of Appeals concludes that MCL 211.78k(7) does
       not impose such a requirement, it shall reinstate the appeal and proceed in
       accordance with MCR 7.204. [In re Petition of Berrien Co Treasurer, 500 Mich
       902; 887 NW2d 633 (2016), reconsideration den sub nom. In re Berrien Co
       Treasurer for Foreclosure, 500 Mich 963; 892 NW2d 363 (2017)].


                                               -3-
On remand, this Court entered an order permitting the parties to file briefs addressing only the
threshold question in the Supreme Court’s order. Thereafter, this Court issued the following
order that defined the scope of the current appeal:

                 On its own motion, the Court orders that, on further consideration of the
         December 7, 2016 Michigan Supreme Court order in this matter, this appeal is
         REINSTATED so that this matter may receive plenary consideration by a case
         call panel of this Court. Thus, the motion to dismiss this appeal is DENIED
         without prejudice to the parties addressing in their briefs on appeal for the case
         call panel the jurisdictional issue of whether MCL 211.78k(7) requires payment of
         the full amount due for all tax parcels listed in a judgment of foreclosure as a
         condition of appeal where the taxpayer does not seek to challenge the foreclosures
         for all of the parcels and any other issue that the parties may consider relevant to
         this Court’s jurisdiction. . . . [In re Petition of Berrien County Treasurer for
         Foreclosure, unpublished order of the Court of Appeals, Docket No. 330795,
         issued March 9, 2017].

                              II. STATUTORY INTERPRETATION

                                  A. STANDARD OF REVIEW

       “Statutory interpretation is a question of law, which this Court reviews de novo.” New
Properties, Inc v George D Newpower, Jr, Inc, 282 Mich App 120, 138; 762 NW2d 178 (2009).

        “When interpreting the meaning of a statute, our primary goal is to discern the intent of
the Legislature by first examining the plain language of the statute.” Driver v Naini, 490 Mich
239, 246-247; 802 NW2d 311, 316 (2011). “[W]e consider both the plain meaning of the critical
word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley
Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) quoting Bailey v United States,
516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). “If the language of a statute is clear
and unambiguous, the statute must be enforced as written and no further judicial construction is
permitted.” Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). “Courts
must give effect to every word, phrase, and clause in a statute and avoid an interpretation that
would render any part of the statute surplusage or nugatory.” State Farm Fire & Cas Co v Old
Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). “Statutory language should be
construed reasonably, keeping in mind the purpose of the act.” Twentieth Century Fox Home
Entertainment, Inc v Dept of Treasury, 270 Mich App 539, 544; 716 NW2d 598 (2006)
(quotation marks and citation omitted).

                                          B. ANALYSIS

        A person claiming an interest in the foreclosed property may elect to redeem the property
after entry of final judgment, MCL 211.78k(5)2, allow its foreclosure by the taxing unit, MCL
211.78k(6)3, or appeal the judgment, MCL 211.78k(7).

2
    MCL 211.78k(5)(b) provides:



                                                 -4-
         MCL 211.78k(7) provides:

         (7) The foreclosing governmental unit or a person claiming to have a property
         interest under section 78i in property foreclosed under this section may appeal the
         circuit court’s order or the circuit court’s judgment foreclosing property to the
         court of appeals. An appeal under this subsection is limited to the record of the
         proceedings in the circuit court under this section and shall not be de novo. The
         circuit court’s judgment foreclosing property shall be stayed until the court of
         appeals has reversed, modified, or affirmed that judgment. If an appeal under this
         subsection stays the circuit court’s judgment foreclosing property, the circuit
         court’s judgment is stayed only as to the property that is the subject of that appeal
         and the circuit court’s judgment foreclosing other property that is not the subject
         of that appeal is not stayed. To appeal the circuit court’s judgment foreclosing
         property, a person appealing the judgment shall pay to the county treasurer the
         amount determined to be due to the county treasurer under the judgment on or
         before the March 31 immediately succeeding the entry of a judgment foreclosing
         the property under this section, or in a contested case within 21 days of the entry
         of a judgment foreclosing the property under this section, together with a notice of
         appeal. If the circuit court’s judgment foreclosing the property is affirmed on
         appeal, the amount determined to be due shall be refunded to the person who
         appealed the judgment. If the circuit court’s judgment foreclosing the property is
         reversed or modified on appeal, the county treasurer shall refund the amount
         determined to be due to the person who appealed the judgment, if any, and retain
         the balance in accordance with the order of the court of appeals. [Emphasis
         added].

The italicized language is at issue here.


         That fee simple title to property foreclosed by the judgment will vest absolutely in
         the foreclosing governmental unit, except as otherwise provided in subdivisions
         (c) and (e), without any further rights of redemption, if all forfeited delinquent
         taxes, interest, penalties, and fees are not paid on or before the March 31
         immediately succeeding the entry of a judgment foreclosing the property under
         this section, or in a contested case within 21 days of the entry of a judgment
         foreclosing the property under this section.
3
    MCL 211.78k(6) provides in pertinent part:
          . . .fee simple title to property set forth in a petition for foreclosure filed under
         section 78h on which forfeited delinquent taxes, interest, penalties, and fees are
         not paid on or before the March 31 immediately succeeding the entry of a
         judgment foreclosing the property under this section, or in a contested case within
         21 days of the entry of a judgment foreclosing the property under this section,
         shall vest absolutely in the foreclosing governmental unit, and the foreclosing
         governmental unit shall have absolute title to the property, . . .




                                                  -5-
         According to MCL 211.78k(7), when a person claiming to have a property interest in the
foreclosed property appeals the judgment foreclosing the property, the “judgment is stayed only
as to the property that is the subject of that appeal.” The statute states that, “the circuit court’s
judgment foreclosing other property that is not the subject of that appeal is not stayed.” MCL
211.78k(7). Given the statutory scheme in sections (5) and (6), the property for which a stay is
not issued proceeds through the foreclosure process and the portion of the original judgment
amount applicable to property subject to the stay of execution is the amount appealed. MCL
211.78k(5), (6). The process for perfecting that appeal is discussed in the next section of the
statute:

       To appeal the circuit court’s judgment foreclosing property, a person appealing
       the judgment shall

       1) pay to the county treasurer the amount determined to be due to the county
       treasurer under the judgment

       2) on or before the March 31 immediately succeeding the entry of a judgment
       foreclosing the property under this section, or

       3) in a contested case within 21 days of the entry of a judgment foreclosing the
       property under this section,

       4) together with a notice of appeal.

This Court’s March 2016 Order dismissing respondent’s appeal did so by emphasizing the
definite article “the” before the singular noun “amount” to conclude that, “the amount
determined to be due to the county treasurer under the judgment” meant the full amount under
the judgment.4 MCL 211.78k(7) (emphasis added). Nowhere in MCL 211.78k(7) is there a
reference to the “full amount,” however. In contrast, MCL 211.78k(7) differentiates property
subject to the stay or “the subject of that appeal” from “other property that is not the subject of
that appeal” and “is not stayed.” As a result, the part of the judgment that proceeds to appeal is
the part that was appealed and stayed for the purpose of appeal. It is true that “[w]here the
Legislature wishes to refer to a particular item, not a general item, it uses the word ‘the,’ rather
than ‘a’ or ‘an.’ ” Barrow v City of Detroit Election Comm, 301 Mich App 404, 414; 836 NW2d
498 (2013). In this case, the statutory language providing that “a person appealing the judgment
shall pay to the county treasurer the amount determined to be due under the judgment” connotes
the specific amount determined due by the treasurer for the property under foreclosure that is
being appealed. MCL 211.78k(7). Accordingly, MCL 211.78k(7) does not require a taxpayer to
pay the full amount due for all tax parcels listed in an original judgment of foreclosure as a
condition of appeal where the taxpayer does not seek to challenge the foreclosures for all of the
parcels.

4
 In re Petition of Berrien County Treasurer for Foreclosure, unpublished order of the Court of
Appeals, Docket No. 330795, issued March 2, 2016.




                                                -6-
       The appeal before this Court concerns Parcel 00-8 for which the respondent has made no
payments. The Supreme Court pointedly asked us to resolve whether payment of the entire
judgment amount was required to maintain an appeal. Our answer is simply that the payment of
the amount owed for parcels that are the subject of the appeal must be paid in their entirety.

        That being said, respondent is still required to pay the amount due under the Amended
Judgment of Foreclosure for Parcel 00-8 to appeal issues related to the foreclosure of that
property to this Court. After the circuit court entered the Amended Judgment, respondent
redeemed five parcels by paying the amount due under the Amended Judgment for those parcels5
and allowed one parcel to be foreclosed. This left one parcel, Parcel 00-8, as the subject of
appeal. Respondent did not pay the amount due for Parcel 00-8, and argues it was not required
to do so. Its reason for not paying the $483,803.75 in taxes due on Parcel 00-8 has no statutory
support in either MCL 211.78k or otherwise. Respondent asserts it “did not pay, and was not
legally required to pay, the $483,803.75 claimed to be due for Parcel No. 00-8, because there
was never any separate property tax assessment for the Walter Miller Property.” While this may
be true and a valid reason to appeal a judgment to the contrary, we lack jurisdiction to consider
the legal argument because again, respondent has not paid the amount due for this parcel as a
condition of appeal. Respondent’s additional argument for not paying the amount due for Parcel
00-8 as a condition of appeal is that payment of the $483,803.75 due under the judgment of
foreclosure for this parcel would create a hardship. There is no hardship exception in MCL
211.78k however, that would allow respondent to circumvent the requirements for perfecting his
appeal. Because the appeal is not perfected, we decline to discuss the merits of respondent’s
arguments on jurisdiction and standing.

       Respondent’s appeal is dismissed.

                                                           /s/ Joel P. Hoekstra
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Douglas B. Shapiro




5
 Recall that respondent challenged the property descriptions for these parcels as overlapping,
resulting in double taxation, gaps in the property and erroneous assessments. Respondent claims
it paid the amounts due for the five parcels under protest. It abandoned any argument regarding
these parcels on appeal however, where its focus is only on Parcel 00-8.



                                               -7-
