Preview:

STATE OF MICHIGAN COURT OF APPEALS

KENT W. BURKHART, Plaintiff/Counter-defendantAppellant, v JEREMY LAPHAM, Defendant/Counter-plaintiffAppellee, and ANNA CHEN and TIMOTHY KLEMPAY,

UNPUBLISHED December 2, 2010

No. 291705 Washtenaw Circuit Court LC No. 08-000810-AV

Defendants-Appellees.

Before: BORRELLO, P.J., and JANSEN and BANDSTRA, JJ. PER CURIAM. Plaintiff appeals by leave granted the decision of the circuit court affirming the district court's dismissal of his claim. We reverse and remand for further proceedings consistent with this opinion. Plaintiff sued defendants, who were tenants of rental property owned by plaintiff's father in Ann Arbor, for damages to the unit and back rent. Plaintiff's father, Ben Burkhart, signed a two-year lease on August 4, 2003, to commence on September 1, 2003, with defendants Chen and Lapham. This lease expired on September 1, 2005; thereafter the tenancy converted to a month-to month tenancy. Defendant Chen represented to the district court that she left the residence sometime after the summer of 2005 and before the spring of 2006, while defendant Lapham apparently vacated the residence on or about September 7, 2007. Defendant Klempay was not a party to the lease agreement, but he told the district court that he had a month-to-month verbal tenancy agreement with plaintiff's father, pursuant to which he lived in the apartment from August 2006 to August 2007. Defendants argued that plaintiff lacked the legal capacity to sue them under their respective leases because he was not a party to them. Plaintiff presented the district court with a -1-

document entitled "Assignment of Rents and Leases" (hereafter, "the Assignment"), signed by plaintiff and his father, that plaintiff argued gave him the right to sue defendants. The Assignment, executed on September 27, 2007, provides in relevant part: Ben J. Burkhart, for valuable consideration the receipt [of] which is hereby acknowledged, hereby conveys, transfers and assigns to his son, Kent W. Burkhart, his successors and assigns, all the rights, interest and privileges he has and may have in the leases now existing or hereafter made affecting the real property located in Ann Arbor, Michigan commonly referred to as 336 East Washington, 1st Floor apartment, as said leases may have been, or may from time to time be hereafter modified, extended and renewed, with all rents, income and profits due therefrom. This includes, but is not limited to a lease dated August 4, 2003 starting September, 2003 with Anna L. Chen & Jeremy Lapham. Defendants argued that their leases terminated before the Assignment was executed, and therefore that it did not convey any rights in those leases to plaintiff. While the Assignment was not formally admitted into evidence during the bench trial, the district court acknowledged receiving the document during a pretrial hearing, it was referenced and read from during the trial and the district court based its decision to dismiss on the language of the Assignment. The district court concluded that the document did not grant plaintiff the right to sue defendants because it assigned only rights under leases in existence at the time of the Assignment or executed thereafter. On appeal, the circuit court decided the case on alternate grounds, holding that the Assignment was not a part of the trial court record and thus, that plaintiff had presented no evidence that he had legal standing to sue defendants. Plaintiff first argues that the circuit court erred by concluding that the Assignment was not part of the record on appeal of the district court's decision. We agree. Our review of the trial transcript reveals that at the time the district court judge allowed defendants to interrupt plaintiff's presentation of his proofs for the purpose of making motions to dismiss, plaintiff had formally introduced into evidence four pieces of documentary evidence: a lease, and three photographs. The transcript indicates that, at that point in the proceedings, the Assignment had not been formally marked as an exhibit, plaintiff's counsel had not moved to admit the Assignment into evidence, and the district court had not specifically admitted the Assignment into evidence. However, the Assignment was provided to the district court judge, counsel read from the document in arguing defendants' motions to dismiss, and the district judge relied on it in ruling on those motions. Therefore, for all intents and purposes, the Assignment was considered as admitted evidence by the district court. Thus, especially considering that plaintiff had not yet closed his proofs or rested his case, the circuit court erred by concluding that

-2-

plaintiff failed to offer any evidence demonstrating his legal standing to pursue the instant claims against defendants.1 Plaintiff argues further that the Assignment conferred on him legal standing to assert the instant claims against defendants. For the reasons set forth below, considering the record presented before us, we remand this matter to the district court for a determination as to the date on which any month-to-month lease under which defendants resided in the apartment terminated. Contractual rights can be assigned, unless the assignment is clearly restricted. Burkhardt v Bailey, 260 Mich App 636, 652; 680 NW2d 453 (2004). "An assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses." Id. at 652-653; see also Prof Rehab Assoc v State Farm Mut Auto Ins Co, 228 Mich App 167, 177; 577 NW2d 909 (1998). "[A] written instrument, even if poorly drafted, creates an assignment if it clearly reflects the intent of the assignor to presently transfer `the thing' to the assignee." Id. at 654. An assignment is a contract between the assignor and the assignee and is interpreted according to the rules of contract construction, 7 Am Jur 2d, Assignment,

Download KENT W BURKHART V JEREMY LAPHAM.pdf

Michigan Law