Ypsilanti Fire Marshal v. Kircher
| Citation | 730 N.W.2d 481,273 Mich. App. 496 |
| Decision Date | 09 January 2007 |
| Docket Number | Docket No. 260973.,Docket No. 260972.,Docket No. 260971.,Docket No. 260970. |
| Parties | YPSILANTI FIRE MARSHAL and City of Ypsilanti, Plaintiffs-Appellees, v. David KIRCHER, Defendant-Appellant. Robert C. Barnes, Plaintiff-Appellee, v. David Kircher, Defendant-Appellant, and Patricia H. Brown, Defendant. Ypsilanti Fire Marshal and City of Ypsilanti, Plaintiffs-Appellees, and Barnes & Barnes, Plaintiff, v. David Kircher, Defendant-Appellant. Robert C. Barnes, Plaintiff-Appellee, v. David Kircher, Defendant-Appellant, and Citizens Bank, Defendant (On Reconsideration). |
| Court | Court of Appeal of Michigan (US) |
Jesse O'Jack, Assistant Ypsilanti City Attorney, Ypsilanti, for the Ypsilanti Fire Marshal and city of Ypsilanti.
Roberts & Freatman (by Ellis B. Freatman, III), Ypsilanti, for Robert C. Barnes.
George E. Ward, Riverview, for David Kircher.
Before: BORRELLO, P.J., and JANSEN and COOPER, JJ.
ON RECONSIDERATION
These consolidated appeals are yet another step in the protracted litigation between property owner David Kircher and the city of Ypsilanti, the Ypsilanti fire marshal, and former court-appointed receiver Robert C. Barnes (collectively referred to as Ypsilanti). In Docket Nos. 260970 & 260971, Kircher appeals as of right the trial court's judgment of foreclosure regarding his property located at 400-412 River Street, which is known as the Thompson Building.1 In Docket Nos 260972 and 260973, Kircher appeals as of right the trial court's separate judgment of foreclosure regarding his apartment building at 510 West Cross Street.2 In Docket Nos. 260970 and 260971, we affirm in part, vacate in part, and remand for further proceedings. In Docket Nos. 260972 and 260973, we also affirm in part, vacate in part, and remand for further proceedings.
These consolidated appeals have their genesis in a series of disputes between Kircher and Ypsilanti, which began in the late 1980s. Ypsilanti had previously filed Washtenaw Circuit Case Nos. 86-031555-CC and 94-002933-CZ to compel Kircher to make certain repairs and abate certain building-code and fire-code violations at the Thompson Building. These actions resulted in the entry of an agreed-upon order between the parties on May 22, 1996, in which Ypsilanti's building supervisor was appointed receiver for the Thompson Building "for the purposes of bringing the exterior of the building into compliance with the building ordinances and the Historic District ordinance." The order dealt primarily with brickwork and façade repairs, roof repairs, and window and doorway repairs. The order provided that the Ypsilanti building supervisor "shall designate David Kircher as the contractor" to perform the specified repairs "so long as Mr. Kircher performs such duties in a timely fashion and according to" applicable Ypsilanti ordinances. In the event that Kircher failed to adhere to the order, the receiver was given the authority to replace him as contractor, as well as to take certain other actions to effectuate completion of the work. The order provided that all costs of repairs, replacements, and other work were to be paid by Kircher. The order specified that in the event Kircher failed to pay, "a lien shall be imposed upon the property which shall be collectible through property taxes."
At some point, it became apparent that Kircher had not complied with the May 22, 1996, order. A second agreed-upon order was therefore entered by Washtenaw Circuit Judge Donald Shelton on July 14, 1997, directing Kircher to submit bids for the work listed in the prior agreed-upon order, to submit applications for grants or other funding, and to "begin work on the building to complete the repairs and improvements listed in the May 22, 1996 order within 120 days." The July 14, 1997, order was the final order entered in Washtenaw Circuit Case Nos. 86-031555-CC and 94-002933-CZ.
On April 10, 2002, Ypsilanti filed a complaint and commenced Washtenaw Circuit Case No. 02-000434-CH, alleging that the Thompson Building was in violation of the state Fire Prevention Code, MCL 29.1 et seq., and certain local building and fire codes. The complaint asserted that Kircher had failed to comply with the May 22, 1996, and July 14, 1997, orders, and sought an order to show cause why a new receiver should not be appointed to complete the work required by the prior orders. As this Court previously explained in Ypsilanti Fire Marshal v. Kircher, unpublished opinion per curiam of the Court of Appeals, issued April 27, 2004 (Docket Nos. 242697 and 242857), 2004 WL 895888, slip op at 2,
The trial court [then] entered an order to show cause why it should not order (1) that a receiver be appointed, (2) that a preliminary injunction and temporary restraining order be entered, and (3) that the receiver take care of the property with costs to [Kircher] and liens against the property. At the show cause hearing, . . . Jon Ichesco [the Ypsilanti fire marshal] testified that he procured a survey after receiving complaints about the building. He relied on an engineer's report that listed the repairs needed to make the building safe. Specifically, Ichesco discussed problems with the roof, the need for tuckpointing, and windowpanes falling into the street. [Kircher] offered only his own testimony about what he thought was required and what he did to repair the building. On cross-examination, [Kircher] asserted that it "would have been impossible" for him to complete the repairs listed in the July 14, 1997, order because he had not received the grant money referred to in a May 22, 1996, order.
The trial court found:
The trial court entered an order appointing Robert Barnes as receiver. The order further provided:
"IT IS FURTHER ORDERED that the Receiver needs to make the building economically viable."
The trial court's order appointing Barnes as the receiver for the Thompson Building and authorizing Barnes to complete all necessary repairs was entered in Washtenaw Circuit Case No. 02-000434-CH on June 14, 2002. The order provided that the receiver was to maintain detailed records of the costs expended in repairing Kircher's property, that the receiver was to bill Kircher monthly for these costs, that Kircher was to pay all billed costs within 30 days, and that the receiver would have a lien on the property at the conclusion of the repairs for any costs Kircher had not paid. The order also provided that Kircher was to pay Ypsilanti's attorney fees incurred in conjunction with the enforcement and supervision of the order.
In Docket Nos. 242697 and 242857, Kircher appealed the trial court's June 14, 2002, order, asserting among other things that the trial court lacked jurisdiction to appoint a receiver and that the trial court's order allowed the receiver to undertake and charge defendant unlimited amounts of money for unspecified repairs. In an opinion issued on April 27, 2004, this Court determined that the trial court did have jurisdiction to appoint the receiver pursuant to MCL 29.23. However, this Court agreed with Kircher that the order appointing the receiver was overbroad:
By giving the receiver the authority to make the Thompson building "economically viable," the order allows the receiver to make repairs beyond removing the hazards of which plaintiffs originally complained. [Ypsilanti's] reliance on the fire code does not support its argument that the broad scope of the order is appropriate. The quoted portion of the fire code only addresses hazards that endanger human life. It does not address the "economic viability" of the building. Accordingly, we reverse that portion of the June 14, 2002, order providing "that the Receiver needs to make the building economically viable and functional."
On remand, the trial court shall enter an order that more precisely defines the receiver's duties. The listed repairs shall be in keeping with the reasons that the receivership was sought, i.e., to repair the building so that it is no longer a hazard to human life, and also in keeping with the trial court's finding that:
The trial court's order must also comply with the provisions of MCL 600.2926 which provides: "In all cases in which a receiver is appointed the court shall provide for bond and shall define the receiver's power and duties where they are not otherwise spelled out by law." [Ypsilanti Fire Marshal, supra, slip op at 5-6.]
Kircher also argued that the that trial court awarded too much compensation to the receiver and that the trial court erred in awarding Ypsilanti its attorney fees. This Court rejected those arguments. Id. at 6-7.
Despite this Court's determination that the trial court had jurisdiction to appoint the receiver, Kircher filed a subsequent unsuccessful motion to dismiss for lack of subject-matter jurisdiction. On May 19, 2004, the receiver filed a motion for summary disposition relating to the recovery of the costs of repairs performed to date. Kircher then filed a cross-motion to terminate the receivership. The trial court took these motions under advisement, reserving its ruling until after the conclusion of an evidentiary hearing.
On July 22, 2004, the trial court held an evidentiary hearing to determine the reasonableness of the repairs to the Thompson Building. At the beginning of that hearing, the trial court expressed its opinion that the hearing would "satisfy" this Court...
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