Crawford v. State, Docket No. 153827

• Decision Date: 19 December 1994
• Docket Number: Docket No. 153827
• Citation: 208 Mich.App. 117,527 N.W.2d 30
• Parties: Alan O. CRAWFORD, Acquilla Crawford and Academy Bus Tours, Inc., Plaintiffs-Appellants, v. STATE of Michigan, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 30

527 N.W.2d 30

208 Mich.App. 117

Alan O. CRAWFORD, Acquilla Crawford and Academy Bus Tours Inc., Plaintiffs-Appellants, v. STATE of Michigan, Defendant-Appellee.

Docket No. 153827.

Court of Appeals of Michigan.

Submitted Sept. 13, 1994, at Detroit.

Decided Dec. 19, 1994, at 9:35 a.m.

Released for Publication Feb. 21, 1995.

Barry Fayne, Southfield, for plaintiffs.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Thomas J. Emery and Roland Hwang, Asst. Attys. Gen., for defendant.

Before MICHAEL J. KELLY, P.J., and BRENNAN and FULLERTON, ^* JJ.

MICHAEL J. KELLY, Presiding Judge.

Plaintiffs appeal as of right a circuit court order granting defendant's motion for summary disposition under MCR 2.116(C)(10). We affirm.

In 1988, plaintiffs ¹ owned business property in New Haven for which they owed $12,900 in property taxes for the tax year 1985. In March 1988, the circuit court ordered the property to be sold at a tax sale scheduled for May 2, 1989. Pursuant to M.C.L. § 211.106; M.S.A. § 7.160, plaintiffs had the right to redeem the property by paying all delinquent taxes "to the county treasurer at any time prior to the day of sale"--in this case, on or before May 1, 1989. On April 29, 1989, plaintiffs mailed three personal checks totaling $12,900 in full payment of the 1985 taxes to the Macomb County Treasurer's office. On that same day, plaintiffs' checking account contained only $17. However, plaintiffs deposited approximately $9,000 on May 3, 1989. The April 29 checks were received by Marilyn Baunoch, a clerk in the treasurer's office, on May 2, 1989. Baunoch requested the bookkeeping department to inquire whether there were sufficient funds to cover the checks. Plaintiffs' bank informed the treasurer's office that there were not. Baunoch then stamped the checks "void," wrote across the front of each check "per bank, no funds available 5-2-89," and returned the checks to plaintiffs on May 3, 1989. On May 2, 1989, plaintiffs' property was offered for sale as planned but, for want of other bidders, it was bid and deeded to the state.

The record reveals no attempt by plaintiffs to redeem their property after May 2, 1989.

Pursuant to M.C.L. § 211.131e(1); M.S.A. § 7.190(3)(1), plaintiffs were served with notice of a show cause hearing scheduled with the Department of Treasury on January 14, 1991, and of their thirty-day right of redemption following the hearing. The purpose of the hearing was to provide plaintiffs an opportunity to present evidence regarding why the state's deed should be set aside. M.C.L. § 211.131e(2); M.S.A. § 7.190(3)(2). Pursuant to a telephone conversation with Thomas Willard, a manager employed by the Department of Treasury, plaintiffs' attorney filed a written request for relief in lieu of appearing at the hearing. The request stated that the tax sale was improper because plaintiffs had submitted personal checks in payment of all delinquent taxes in a timely manner. Apparently, the Department of Treasury never issued a written response to the request.

On August 23, 1991, plaintiffs filed this action to quiet title. Plaintiffs alleged that they had met all the requirements of M.C.L. § 211.106; M.S.A. § 7.160 for redeeming their property before the tax sale. In support of their claim, they filed an affidavit of Frederick Brown, a former branch manager at their bank. Brown averred that, if the treasurer's office had presented plaintiffs' three checks for payment, "they may have been honored by the bank based on the relationship of the parties and their prior custom and practice despite an overdrawn account." In November 1988, plaintiffs' account had been moved to a bank branch office not managed by Brown, but Brown "continued to approve on behalf of the bank, checking transactions based upon my knowledge of Mr. Crawford's honesty and integrity." No explanation regarding how, why, or when such inquiries or interbranch activities were initiated or implemented was offered.

Upon the filing of defendant's motion for summary disposition, plaintiffs filed additional affidavits. Plaintiff Alan Crawford averred that his bank, through its manager, Nancy Saari, agreed to notify him in the event of an overdraft and to pay the three checks submitted to the treasurer's office. The affidavit of Diana Colley, an administrative assistant in plaintiffs' business, corroborated Crawford's story.

Defendant countered with its own affidavits. Nancy Saari (now Teise), a branch manager at the bank, averred that she was on medical leave during the time at issue but that she "would not have and did not at that time promise to contact Mr. Alan Crawford in the event of an overdraft, nor promise an accommodation by the bank for an overdraft." Bonnie Foronato, acting branch manager for the bank, averred the same. Frederick Brown clarified his earlier affidavit, stating that he no longer had authority over plaintiffs' relationship with the bank after plaintiffs' accounts were moved to another branch in November 1988.

The trial court granted defendant's motion for summary disposition on May 15, 1992. A judgment reflecting the court's order was entered on June 4, 1992.

The principal issues on appeal are whether plaintiffs timely redeemed their property under the General Property Tax Act (GPTA), M.C.L. § 211.1 et seq.; M.S.A. § 7.1 et seq., and whether they were afforded due process of law.

Plaintiffs argue that the trial court erred in concluding that they had not provided sufficient evidence of payment of all delinquent taxes on or before the deadline of May 1, 1989. We find no error. Plaintiffs' argument rests on the applicability of their version of the "mailbox rule," which provides that items placed in the mail are presumed to arrive at their destination on the next business day. In this case, plaintiffs assert that the mailing of their checks to the treasurer's office on Saturday, April 29, 1989, warrants the presumption that the checks arrived on Monday, May 1, 1989. However, while there is authority for the presumption that items properly addressed and placed in the mail reach their destination, Stacey v. Sankovich, 19 Mich.App. 688, 694, 173 N.W.2d 225 (1969), plaintiffs cite no authority for the presumption that such items arrive on the next business day. There is no dispute whether the treasurer's office received the checks, only when. In this case, the only evidence addressing this issue came from defendant. Marilyn Baunoch's affidavit shows that the checks did not arrive at the treasurer's office until May 2, 1989, one day after the deadline. Payment of back taxes is not effective until received by the treasurer's office. M.C.L. § 21.153; M.S.A. § 3.661. Plaintiffs provide no evidence to show that the checks arrived at the treasurer's office before May 2, 1989. Accordingly, the trial court properly concluded that plaintiffs' attempt to exercise their right of redemption before the tax sale was untimely. Regardless of plaintiffs' alleged arrangement with their bank for overdraft checks, their payment of back taxes was delinquent and, thus, ineffective. Therefore, we need not reach the personal banking arrangements alleged by plaintiffs nor the failure to proffer "presentation" by the treasurer. M.C.L. § 21.153; M.S.A. § 3.661. The subsequent tax sale of plaintiffs' property was proper.

Plaintiffs also argue that, because Baunoch's affidavit was not presented until defendant filed its motion for summary disposition, and because discovery was incomplete at that time, the order granting defendant's motion was premature. ² Plaintiffs contend that, given an opportunity to depose Baunoch, they might have produced evidence that their checks arrived at the treasurer's office before May 2, 1989. However, summary disposition may be appropriate before the expiration of a discovery deadline if further discovery does not stand a fair chance of uncovering factual support for the opposing party's position. Neumann v. State Farm Mutual Automobile Ins. Co., 180 Mich.App. 479, 485, 447 N.W.2d 786 (1989). In order to avoid summary disposition, plaintiffs needed hard evidence that their checks arrived on or before May 1, 1989. We do not believe there was a fair chance that plaintiffs could persuade the affiant to make an admission clearly in their favor by flatly contradicting her...