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STATE OF MICHIGAN
COURT OF APPEALS


RONALD JARVI, Plaintiff-Appellant, v BRIAN F. MCCARTHY, GARY D. SUTELLA, JAMES LABA and PAMELA LABA, Defendants-Appellees.

UNPUBLISHED November 22, 1996

No. 186188 LC No. 94-472318 CK

Before: Wahls, P.J., and Fitzgerald and L.P. Borrello,* JJ. PER CURIAM. Plaintiff appeals as of right from the trial court's order granting defendants' motion for summary disposition and to quiet title. We affirm. This case involves the latest in a long series of cases involving the ownership of commercial property located at 304 East Street in Rochester, Michigan. On May 1, 1975, plaintiff, defendants Gary Sutella and Brian McCarthy, and three other individuals executed a land contract to purchase that property from Michael and Ann Noble. The land contract required the six co-vendees to make a monthly payment of $135 for four years, with the unpaid balance due as a balloon payment on May 1, 1979. When the Nobles did not receive the balloon payment, they filed a lien against the property and declared a default. On July 31, 1979, the Nobles' attorney sent a notice of Intent to Forfeit (dated July 27, 1979) to the address provided on the land contract via certified mail, return receipt requested. Plaintiff never notified the Nobles of a change of address and thus notice was sent to his last known address, which was the address listed on the land contract. No response was received from any of the co-vendees. The Nobles' attorney sent a Notice of Forfeiture dated August 22, 1979, to the co vendees, repeating the same mailing process. Again, there was no response.

* Circuit judge, sitting on the Court of Appeals by assignment. -1

Plaintiff contends that on July 31, 1979, he was in the Oakland County Jail. On August 16, 1979, the Oakland Probate Court dismissed a petition to commit plaintiff to a mental health institution, and released plaintiff to his father. Plaintiff contends that he was again in the Oakland County Jail from August 23, 1979, to August 30, 1979. On November 17, 1979, the Nobles filed a complaint in 52nd District Court against the co vendees to recover possession of the property after forfeiture of the land contract. Defendants McCarthy and Sutella were personally served with the complaint. Plaintiff and the other three co vendees were never served with the complaint. Eventually, the district court entered a default judgment against all the co-vendees except McCarthy and summary judgment as to McCarthy. Sutella and McCarthy appealed the judgment to the Oakland Circuit Court. Under a consent judgment entered on March 4, 1981, the circuit court ruled that McCarthy had redeemed the property by paying the sum of $20,138.58 to the Nobles "subject only to . . . the rights of joint vendees under the subject contract." Upon entry of this judgment, McCarthy paid the Nobles and received in exchange a warranty deed for the property. The deed was subject to the co-vendees' rights in the property. On June 24, 1983, the Internal Revenue Service posted a Notice of Seizure on the property for nonpayment of $24,140.34 in taxes owed by McCarthy. The tenant at the time, defendants James and Pamela Laba, purchased the property for $36,500 at the tax sale. Subsequently, the Labas obtained and recorded quit claim deeds from the Nobles to McCarthy and from McCarthy to them. On December 27, 1989, Sutella executed a quit claim deed to plaintiff. The deed was recorded on February 5, 1990. Also on February 5, 1990, plaintiff filed a motion to dismiss and to vacate the consent judgment in Oakland Circuit Court on the grounds that he was neither properly served with process nor present when the consent judgment was entered. The circuit court denied the motion. This Court dismissed plaintiff's appeal, and denied plaintiff's motion for rehearing. After plaintiff filed a petition to remove the action to United States District Court, that Court dismissed his complaint with prejudice. The Sixth Circuit Court dismissed plaintiff's appeal for lack of jurisdiction and denied his petition for rehearing. In three separate dispositions, the U.S. Supreme Court denied a writ of certiorari, rehearing, and a writ of mandamus and/or prohibition. On March 14, 1994, plaintiff filed this complaint against the Labas alleging that he was the absolute owner of the property and asking the court t o clear title. The Labas filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff filed a counter-motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). The trial court granted the Labas' motion, dismissed plaintiff's complaint, and denied plaintiff's counter-motion. Plaintiff argues several reasons why the trial court erred in granting the Labas' motion for summary disposition. We hold that summary disposition was proper although for different reasons than those stated by the trial court. An action to quiet title is an equitable action in which a party in

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possession of property seeks to clear title against the whole world. Tray v Whitney, 35 Mich App 529, 533; 192 NW2d 628 (1971); MCL 600.2932(5); MSA 27A.2932(5). MCL 600.5726; MSA 27A.5726 permits a land contract seller to recover the property following a forfeiture, but only if the express terms of the contract give the vendor the right to declare forfeiture as a result of a material breach of the contract. The contract at issue provided such a right. In addition, the contract provided: "In all cases where a notice of forfeiture is relied upon by the seller to terminate rights hereunder, service of notice shall be preceded by a notice of intent to forfeit the contract served at least ten days prior thereto." Similarly, MCL 600.5728; MSA 27A.5728 requires a written notice of forfeiture to be served on the vendees and an opportunity to pay the required money before possession of the property may be recovered under

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