If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DEBRA NASH,

Plaintiff-Appellee,

UNPUBLISHED

March 9, 2023

v No. 358494

Oakland Circuit Court

DAVID KERTI and AMY VANSTON, LC No. 2021-185536-AV

Defendants-Appellants.

Before: RICK, P.J., and M. J. KELLY and RIORDAN, JJ.

PER CURIAM.

Defendants David Kerti and Amy Vanston appeal by delayed leave granted1the circuit 

court’s order affirming the district court’s order awarding possession of the subject property to 

plaintiff Debra Nash.

Plaintiff and her then-husband, Jamie Nash, leased a home that they owned in Lake Orion

to defendants in August 2016 by a written lease obligating defendants to pay plaintiff and Nash 

$1,500 a month. Defendants claim that there was an understanding among the parties at the time 

that they would be purchasing the subject property by a land contract. Plaintiff and Nash divorced 

in March 2020, and plaintiff was awarded the subject property in the divorce. At about the same 

time, defendants ceased making the $1,500 monthly payments to plaintiff, so she sought to evict 

them as tenants. Defendants, however, argued that they were actually vendees of an implied-infact land contract. The district court agreed with plaintiff and evicted defendants by summary 

proceedings. The circuit court affirmed.

On appeal, defendants argue that the summary proceedings violated procedural due process 

because they were not allowed a realistic time period to present fact-specific evidence showing 

that the parties’ relationship was governed by an implied-in-fact land contract, not the written 

lease. Relatedly, defendants argue that the district court abused its discretion by refusing to 

 

1 Nash v Kerti, unpublished order of the Court of Appeals, entered February 10, 2022 (Docket No. 

358494).
-2-

adjourn the hearing to allow them more time to present evidence in that regard. Finally, defendants 

argue that the evidence would have showed that they partially performed on the implied-in-fact 

land contract between 2016 and 2020, thus rendering it enforceable notwithstanding the statute of 

frauds. 

We conclude that any procedural error by the district court was harmless because the 

parties’ relationship was governed by the written lease, not the alleged implied-in-fact land 

contract. Therefore, we affirm the circuit court. 

I. FACTS

On August 8, 2016, plaintiff and Nash, as owners of the subject property, entered into a 

“Lease Agreement” with defendants to lease the subject property. The lease provided, in relevant 

part, as follows:

1. Tenant will lease the house and detached garage with lot on Long Lake 

for the period leading up to a Land Contract Agreement. Land Contract Agreement 

will be executed and a closing within 60 days of signed Lease Agreement. If for 

any reason currently unknown by either party a Land Contract Agreement cannot 

be reached the Tenant agrees to Lease the Property for a minimum term of 12 

months.

2. The monthly lease payment shall be One Thousand Five hundred dollars 

($1,500.00) per month . . . . If at anytime tenant is behind on lease payment 15 days 

or more Landlord has the right to evict and request all belongs [sic] to be removed 

from the property within 15 days.

3. Security deposit of Fifteen Thousand dollars ($15,000.00) to be paid 

upon signed lease agreement. Security deposit of $15,000.00 to be deducted from 

purchase price upon closing of Land Contract Agreement.

On about March 6, 2020, plaintiff served a notice to quit possession of the subject property 

on defendants. It was filed in the district court on July 17, 2020. Also on July 17, 2020, plaintiff 

filed her complaint to recover possession of the subject property in the district court. The 

complaint indicated that defendants owed rent from March 2020 to July 2020.

On October 23, 2020, the district court issued a notice to appear to the parties, indicating 

that a trial was scheduled for November 2, 2020. Defendants received the summons, complaint, 

and notice to appear on October 26, 2020. 

On October 30, 2020, defendants moved to adjourn the trial/hearing. The motion stated, 

in relevant part, as follows:

3. Defendants’ attorneys received notice from Defendants . . . on October 

27, 2020, four days before the scheduled hearing contrary to Michigan motion 

practice.
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4. Defendants’ attorneys received no notice from opposing counsel from 

the Plaintiff’s attorney whatsoever.

5. Defendants’ attorneys in the interest justice [sic] and Michigan Court 

Rules must be given appropriate time to prepare for such a hearing.

* * *

7. During the special circumstances affecting this Honorable Court, 

discussions touched and concerned the existence of a land contract dispute between 

the Plaintiff and the Defendants that has been recharacterized by the Plaintiff as a 

lease pursuant to a divorce judgment wherein the Plaintiff received the Premises in 

question as part of the Divorce Judgment.

* * *

11. Defendants’ respectfully demand time to prepare a counter suit to the 

Plaintiff’s action as the result of the Plaintiff’s blatant disregard and respect for this 

Honorable Court and its governing rules as well as respect for the rights of the 

Defendants and the rule of law.

The district court conducted a virtual hearing on November 2, 2020, as originally 

scheduled. At the hearing, plaintiff’s counsel introduced her case as follows:

The renters, the tenants, have been in possession since August of 2016. 

They stopped paying rent as of February 2020. So they owe rent from March 

through November, current date, in the amount of $1,500 per month. The lease 

agreement, which was attached to my complaint, also provides for $50 per month 

late fee, which would also be added to that.

Defendants’ counsel responded as follows:

Yes. We’ve provided the Court with a brief. Not only were we not given 

notice, at least for the dialogue that your Honor can review that suggests that there’s 

been discussions with regard to the defendants and the characterization of their 

relationship, the arrangement, as being a land contract as opposed to a lease, and 

we believe that in terms of the divorce action that there was an arrangement between 

the plaintiffs, Jamie and Debra Nash, that devolved to their benefit. Meaning there 

was a land contract arrangement as with Jamie that was disallowed after the 

divorce, and the entire matter as has been brought forward by the plaintiff, by Debra 

Nash, now is in excess of the jurisdictional limits and, in fact, should have been 

brought in the circuit court.

The district court clarified with defendants’ counsel that he was seeking a change of venue 

because the amount in controversy exceeded $25,000, notwithstanding that such an argument was 

not raised in his motion. When the district court explained that it had exclusive jurisdiction over 

landlord-tenant cases, defendants’ counsel then complained that “the notice was defective.” The 
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district court responded by explaining that the complaint appeared to properly reflect defendants 

as the parties.

Defendants’ counsel reverted back to his argument that jurisdiction was not proper in the 

district court because this case involved a land contract. Plaintiff’s counsel responded “[t]his is a 

lease agreement,” and the parties “never entered into a land contract.”

The district court then clarified with the parties that defendants had not filed a “CDC 

eviction moratorium declaration,” and it ruled that plaintiff properly provided defendants with 

notice of the proceedings. After doing so, the district court asked defendants’ counsel to “tell me 

what your defense is to this case and with legal authority,” and he explained as follows:

The amount in controversy, your Honor, and what you will say is you have 

your (inaudible). We would argue that that would be appealed. We also would 

argue that there is an anomaly in the lease. There is a $15,000 amount for damages, 

which is totally beyond avail. I would ask your Honor if you’ve ever seen that kind 

of damages that appear in that lease. Moreover, it’s a one-page lease.

* * *

In addition, your Honor, there have been improvements that have been made 

on the property to the tune of about $40,000. 

* * *

There are improvements that were made on the property in reliance of the 

land contract. That amount is in excess of $40,000. That takes it out of small claims 

for sure.

* * *

What happened was that the lease was signed because Jamie Nash was 

involved in a divorce. He obligated himself and Debra Nash, and the defendants 

relied upon that. And so what you find is a short-term lease contract with $15,000 

(inaudible). That’s a little unusual, one would say.

And so what we really need, your Honor, is a hearing on the matter.

The district court replied that defendants were presently receiving a hearing on the matter, 

and it indicated that it would review the written submissions and issue a decision after the hearing.

On November 30, 2020, the district court issued its seven-page opinion and order. The 

district court first concluded that there was no land contract between the parties because “[t]here 

is no evidence that Defendants executed the option to purchase timely in accordance with the 

language of paragraph 1 of the subject lease. . . . The Court finds that Defendants did not comply 

with the terms within the time specified, therefore, the Court finds that there is no land contract.” 

Second, the district court concluded that the $15,000 “security deposit” referenced in the lease was 

actually “a down payment for a land contract that was never executed,” and as a result, plaintiff 
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had to return that money to defendants. Third, the district court concluded that defendants had 

sufficient notice of the trial under MCR 4.201(C)(1) and MCL 600.5735(2)(b). Consequently, the 

district court awarded possession of the subject property to plaintiff, as well as damages of 

$13,950, which represented outstanding rent of $12,000 and $1,950 in late fees.

Plaintiff moved for reconsideration to change the damages award, and the district court 

granted the motion and increased the award from $13,950 to $15,450. In addition, in January 

2021, the district court ordered defendants to pay $1,500 a month to the court’s escrow account, 

pending resolution of the case.

After some procedural confusion, on February 9, 2021, defendants filed an application for 

leave to appeal in the circuit court. In the supporting brief, defendants argued that the district court 

erred because they “had insufficient notice of the trial date from the Court to prepare for their sole 

opportunity to present their case and preserve their legal property rights.” Defendants explained

that under the doctrine of partial performance, they were land-contract vendees, not tenants. 

Specifically, defendants explained as follows:

Appellants currently and have always occupied the Property. Moreover, Appellants 

have made significant improvements to the Property in the expectation that they 

would ultimately own the Property. . . . 

Lastly, Appellants have been paying all property-related expenses, as the 

true owner would. More specifically, Appellants paid the homeowners insurance, 

property taxes, and water bills for the Property. Should this Court grant Appellants’ 

request to remand for a new trial, Appellants could present evidence of the same to 

the Court. Above all and most importantly, in contemplation of the Contract, 

Appellants paid Appellee and Nash $15,000.00 to move into the Property (as shown 

in the Order.)

Lastly, Appellants have invested tens of thousands of dollars in the Property 

as it was, and still is, their intention to make the Property their retirement home. 

Had Appellants not been prejudiced by the District Court’s failure to issue their 

timely Trial Order or by the Court’s refusal to honor Appellant’s request for the 

trial’s adjournment, Appellants would have been able to prove the existence of a 

land contract. They will also be able to demonstrate that the Appellee filed the 

wrong complaint in the trial court, as this is a question of a land contract forfeiture 

action and not a mere eviction.

In support of their argument that the parties had a land contract, defendants attached as 

Exhibit A the following August 5, 2016 e-mail from Nash to defendant Vanston:2

Amy,

 

2 The right side of the e-mail is cut off, presumably due to an error in printing. The cutoff points 

are represented as ellipses.
-6-

I have attached a Lease Agreement to get you moved in until we get the Land 

Contract finalized and a closing. Please review and let me know if it lo . . .

I have also attached my comments or counter offer on the Land contract document 

you had provided to me. I did not plan to sell the house on a land . . .

Deb and I do. After reviewing some land contract sales and documents I do believe 

I am being fair with my changes. Please review and give me you . . .

When we come to an agreement on price & terms I will have a lawyer review for 

both of our benefits and we can make it final.

Jamie Nash

In her response brief, plaintiff argued that the parties never had a land contract and that 

defendants were tenants subject to the lease. Plaintiff also argued that notice was proper under 

MCR 4.201 and MCL 600.5735, and that the doctrine of partial performance does not apply 

because there was no land contract in the first instance.

The circuit court held oral argument on May 12, 2021. After the parties mostly rested on 

their respective briefs, the circuit court affirmed the district court, reasoning as follows:

Okay. I – I do question, I have to say, the – the timing of notices. Uh, I 

acknowledge that that was not ideal. However, uh, I have no evidence before me 

that what the district court did in terms of her ruling based on the evidence that was 

in front of her was incorrect in any way. Uh, I – based on the evidence that’s before 

me and was before her, I think her ruling was proper. I think the notice issue was 

harmless error at this point. And for those reasons, I am affirming, uh, the district 

court judge and granting possession to the appellee with the back, uh, rent due.

After the ruling, defendants’ counsel briefly noted that “we’re not disputing the back rent 

owed.”

Shortly thereafter, in June 2021, plaintiff filed a motion in the district court to immediately 

evict defendants, and defendants filed a “CDC Declaration” to halt the eviction. In a six-page 

opinion and order, the district court granted plaintiff’s motion, reasoning that the CDC eviction 

moratorium does not apply when a tenant engages in criminal activity, and in this case, defendants 

violated state law by performing substantial repairs on the subject property without properly hiring 

a “residential builder.” Thus, the district court ordered defendants to vacate the subject property 

by July 9, 2021.

On September 11, 2021, defendants filed a delayed application for leave to appeal in this 

Court. We granted the application. Nash v Kerti, unpublished order of the Court of Appeals, 

entered February 10, 2022 (Docket No. 358494).

II. DUE PROCESS
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Defendants argue that the district court violated their procedural due-process rights by 

holding trial only seven days after service of the relevant documents, given that the disputed 

existence of an implied-in-fact land contract required more time to prepare and present evidence. 

We conclude that any error was harmless because, for the reasons explained below, the parties’ 

relationship was governed by the written lease.

We first note that this issue is arguably waived because it was not raised in the district court 

or the circuit court. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382-383; 741 

NW2d 61 (2007). Ordinarily, however, this Court reviews de novo whether a party was afforded 

procedural due process. In re Sanborn, 337 Mich App 252, 268; 976 NW2d 44 (2021). “Our 

review of a circuit court’s review of a district court’s order is also de novo.” Noll v Ritzer, 317 

Mich App 506, 510; 895 NW2d 192 (2016).

“[D]ue process of law requires that deprivation of life, liberty, or property by adjudication 

must be preceded by notice and an opportunity to be heard.” Bonner v City of Brighton, 495 Mich 

209, 235; 848NW2d 380 (2014). “To comport with these procedural safeguards, the opportunity 

to be heard must be granted at a meaningful time and in a meaningful manner.” Id. (quotation 

marks and citation omitted). Courts generally consider the following three factors to determine 

whether procedural due process is satisfied:

First, the private interest that will be affected by the official action; second, the risk 

of an erroneous deprivation of such interest through the procedures used, and the 

probable value, if any, of additional or substitute procedural safeguards; and finally, 

the Government’s interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute procedural requirement 

would entail. [Mathews v Eldridge, 424 US 319, 325; 96 S Ct 893; 47 L Ed 2d 18 

(1976).]

Most claims of a violation of procedural due process are subject to a harmless-error 

analysis. See PT Today, Inc v Comm’r of Office of Fin and Ins Servs, 270 Mich App 110, 145; 

715 NW2d 398 (2006) (declining to award the plaintiffs relief for an alleged procedural dueprocess violation because the trial court would have granted summary disposition on different 

grounds); Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 641; 506 NW2d 920 (1993) 

(declining to award the plaintiff relief because “an opportunity to confront adverse witnesses or to 

present witnesses, evidence, and arguments would have made no difference” in the case). 

In Lindsey v Normet, 405 US 56; 92 S Ct 862; 31 L Ed 2d 36 (1972), the U.S. Supreme 

Court considered the constitutionality of “Oregon’s judicial procedure for eviction of tenants after 

nonpayment of rent.” Id. at 58. The procedure provided that the landlord may bring an action for 

possession upon the failure of the tenant to pay rent, and “[s]ervice of the complaint on the tenant 

must be not less than two nor more than four days before the trial date.” Id. at 63. In addition, “a 

tenant may obtain a two-day continuance, but grant of a longer continuance is conditioned on a 

tenant’s posting security for the payment of any rent that may accrue . . . .” Id.

3

 The issue before 

the Court, in relevant part, was whether “the requirement of a trial no later than six days after 

 

3 There were other statutory provisions discussed in Lindsey that are not relevant to this case.
-8-

service of the complaint unless security for accruing rent is provided” violated procedural due 

process. Id. at 64. The Court held that this requirement did not violate procedural due process, 

reasoning as follows:

In those recurring cases where the tenant fails to pay rent or holds over after 

expiration of his tenancy and the issue in the ensuing litigation is simply whether 

he has paid or held over, we cannot declare that the Oregon statute allows an unduly 

short time for trial preparation. Tenants would appear to have as much access to 

relevant facts as their landlord, and they can be expected to know the terms of their 

lease, whether they have paid their rent, whether they are in possession of the 

premises, and whether they have received a proper notice to quit, if one is 

necessary. Particularly where, as here, rent has admittedly been deliberately 

withheld and demand for payment made, claims of prejudice from an early trial 

date are unpersuasive. . . . Of course, it is possible for this provision to be applied 

so as to deprive a tenant of a proper hearing in specific situations, but there is no 

such showing made here, and possible infirmity in other situations does not render 

it invalid on its face. [Id. at 64-65.]

It added that “it is permissible to segregate an action for possession of property from other 

actions arising out of the same factual situation that may assert valid legal or equitable defenses or 

counterclaims.” Id. at 67.

In Michigan, summary proceedings for the possession of real property are governed by 

MCL 600.5701 et seq. It applies to both leases, see MCL 600.5714(1), and “executory contract[s] 

for the purchase of the premises,” see MCL 600.5726. MCL 600.5735 provides, in relevant part, 

as follows:

(1) The court in which a summary proceeding is commenced shall issue a 

summons, which may be served on the defendant by any officer or person 

authorized to serve process of the court. The summons shall command the 

defendant to appear for trial in accordance with the provisions of subsection (2) . . 

. .

(2) A summons issued under this section shall command the defendant to 

appear for trial as follows:

(a) Within 30 days of the issuance date of the summons in proceedings 

under [MCL 600.5726], in which event the summons shall be served not less than 

10 days before the date set for trial.

(b) Within 10 days of the issuance date of the summons in all other 

proceedings, in which event the summons shall be served not less than 3 days before 

the date set for trial.

Relatedly, MCR 4.201(C)(1) provides that a summons in a summary proceeding “must 

command the defendant to appear for trial in accord with MCL 600.5735(2).”
-9-

“The remedy provided by summary proceedings is in addition to, and not exclusive of, 

other remedies, either legal, equitable or statutory.” MCL 600.5750. “That provision evidences 

the Legislature’s intent that summary proceedings for possession of property be handled 

expeditiously. Plainly the Legislature took these cases outside the realm of the normal rules 

concerning merger and bar in order that attorneys would not be obliged to fasten all other pending 

claims to the swiftly moving summary proceedings.” JAM Corp v AARO Disposal, Inc, 461 Mich 

161, 168-169; 600 NW2d 617 (1999). Thus, for example, a district court may decide the issue of 

possession in summary proceedings, and the losing party may maintain a separate action for unjust 

enrichment notwithstanding that the separate action would ordinarily be barred by res judicata. 

See id. at 166, 170. Moreover, a district court may bifurcate a counterclaim for monetary damages 

from the initial request for possession. See MCL 600.5739(1). 

In the matter before us, the notice was within 10 days as required by MCL 600.5735(2)(b), 

and the summons was served more than three days before the trial date as required by the same 

statutory provision. Thus, plaintiff and the district court complied with the statute and court rule 

governing notice in summary proceedings for violation of a lease.4 The question remains whether 

the expedited proceedings—including both the notice a few days before trial and the district court’s 

refusal to adjourn the hearing—violated procedural due process.

We initially note that plaintiff alleged at the start of this case, and defendants did not 

dispute, that they ceased paying $1,500 a month in March 2020 despite the fact that they were 

required to do so. In fact, defendants conceded in the circuit court that they were responsible for 

the missed payments. Thus, if the parties had a lease requiring rent payments of $1,500 a month, 

defendants presumably lost the right to possession of the subject property through summary 

proceedings because they failed to pay rent. See MCL 600.5714(1)(a). On the other hand, if the 

parties had an implied-in-fact land contract requiring mortgage payments of $1,500 a month, then 

defendants presumably lost the right to possession of the subject property through either forfeiture 

or foreclosure.5 In other words, because defendants ceased the $1,500 monthly payments in March 

 

4 The notice was insufficient under MCL 600.5735(2)(a), which governs summary proceedings for 

breach of a land contract, because it was served “less than 10 days” before trial. To that extent, 

the notice was insufficient under MCR 4.201(C)(1) as well. However, defendants do not argue on 

appeal that the notice violated the statute or the court rule. Instead, defendants only argue that the 

notice and accompanying expedited proceedings violated procedural due process.

5 When a vendee of a land contract breaches that contract, the vendor has two possible options—

forfeiture or foreclosure. With regard to forfeiture, MCL 600.5726 provides that a vendor of a 

breached land contract may institute summary proceedings “but only if the terms of the contract 

expressly provide for termination or forfeiture, or give the vendor the right to declare a forfeiture, 

in consequence of the nonpayment of any moneys required to be paid under the contract or any 

other material breach of the contract.” Further, MCL 600.5750 provides that “a judgment for 

possession after forfeiture of an executory contract for the purchase of premises shall merge and 

bar any claim for money payments due or in arrears under the contract at the time of trial.” Thus, 

when a land contract is forfeited, the vendor regains possession of the property but is not entitled 

to “money payments due or in arrears.”
-10-

2020, they presumably lost the right to possession of the subject property regardless of whether 

the parties had a landlord-tenant relationship under a lease or a vendor-vendee relationship under 

a land contract. However, defendants seem to assume that if they can successfully show an 

implied-in-fact land contract, then they will be entitled to possession of the subject property, as 

well as an ultimate purchase of the subject property at some point in the future. That assumption 

is questionable.

With that in mind, we acknowledge that defendants have a reasonable argument that the 

expedited proceedings violated procedural due process. While the seven-day period complied with 

the relevant statutes and court rules, that may not be sufficient time to prepare evidence, witnesses, 

and so forth to determine whether the parties had an implied-in-fact land contract. As defendants 

note, for example, resolution of this question might depend on the extent to which they improved 

the subject property, which would likely require multiple billing statements and testimony in 

support. 

The U.S. Supreme Court’s reasoning in Lindsey, 405 US 56, is distinguishable from the 

case before this panel because the six-day trial period upheld in Lindsey was based upon the 

Court’s general assumption that “[i]n those recurring cases where the tenant fails to pay rent or 

holds over after expiration of his tenancy and the issue in the ensuing litigation is simply whether 

he has paid or held over, we cannot declare that the Oregon statute allows an unduly short time for 

trial preparation.” Id. at 64-65. This case, in contrast, allegedly involves a far more fact-specific 

question of whether the parties had an implied-in-fact land contract. Again, procedural due process 

does not simply require notice and an opportunity to be heard, but that the proceedings do so with 

“a meaningful time and in a meaningful manner.” Bonner, 495 Mich at 235 (quotation marks and 

citation omitted). It is arguable that defendants in this case did not have an opportunity to be heard 

on the issue of an implied-in-fact land contract “in a meaningful manner.” 

The problem for defendants here, however, is that they do not explain how this arguable 

violation of procedural due process would entitle them to relief. As noted above, even assuming 

that defendants are correct that the parties had an implied-in-fact land contract, defendants 

undisputedly ceased making the required mortgage payments in March 2020. As a result, 

defendants presumably lost the right to possession of the subject property, and the best-case 

scenario would be either a court-ordered sale of the subject property with any surplus proceeds 

being paid to defendants, or a ruling from the district court that the subject property had to be 

forfeited to plaintiff, and defendants would not be liable to plaintiff for the lack of $1,500 monthly 

payments between March 2020 and November 2020. But again, defendants do not argue or even 

mention either possibility. 

 

With regard to foreclosure, a vendor of a breached land contract may file an action for foreclosure 

in circuit court, see MCL 600.3101, the circuit court then sells the property, see MCL 600.3115, 

and the vendee remains liable to the vendor if the sale proceeds are insufficient but retains any 

surplus proceeds, see MCL 600.3135. Thus, when a land contract is foreclosed, there is a courtordered sale of the property, and the vendor is not entitled to any surplus proceeds but may pursue 

a deficiency against the vendee. 
-11-

In any event, as explained below, defendants fail to show that an implied-in-fact land 

contract would be enforceable. Simply put, defendants’ fact-specific arguments are beside the 

point because the terms of the written lease control. Further, to the extent that defendants claim 

that they spent $40,000 improving the subject property in reliance on that implied-in-fact land 

contract, defendants may maintain a separate action for unjust enrichment. Accordingly, any 

possible violation of procedural due process was harmless error. See PT Today, 270 Mich App at 

145; Verbison, 201 Mich App at 641.

III. MOTION TO ADJOURN HEARING

Defendants argue that the district court abused its discretion by refusing to adjourn the 

hearing because they needed additional time to prepare and present evidence concerning the 

existence of the alleged implied-in-fact land contract. We again conclude that any error was 

harmless because the terms of the written lease controlled the parties’ relationship.

This Court reviews a lower court’s decision on a motion for an adjournment for an abuse 

of discretion. See In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).

MCR 4.201(J) provides that the district court, in summary proceedings, may adjourn the 

trial for up to 56 days:

When the defendant appears, the court may try the action, or, if good cause 

is shown, may adjourn trial up to 56 days. If the court adjourns trial for more than 

7 days, an escrow order may be entered . . . .

“[I]n order for a trial court to find good cause for an adjournment, a legally sufficient or 

substantial reason must first be shown.” In re Utrera, 281 Mich App at 11 (quotation marks and 

citation omitted).

In light of defendants’ presentation of arguments in the district court, we doubt that the

district court abused its discretion by denying defendants’ motion to adjourn the hearing. The 

written motion itself appeared to be exclusively based upon the alleged lack of notice which, as 

the district court correctly noted, was a meritless argument. While the written motion did briefly 

reference a “land contract,” it did not include any context or explanation, and that motion cannot 

be reasonably understood as requesting an adjournment for additional time to gather evidence for 

the alleged implied-in-fact land contract. Moreover, defendants’ counsel was unclear about his 

position during oral argument in the district court. He occasionally changed between clearly 

meritless arguments, such as insufficient notice and lack of jurisdiction because defendants had a 

possible $40,000 counterclaim, and somewhat more reasonable arguments, such as the need for 

additional time to prepare and present evidence about an implied-in-fact land contract. Given this 

presentation of arguments, it is understandable that the district court refused to adjourn the hearing.

On the other hand, by the end of oral argument, the district court was aware that defendants’ 

position was that they had an implied-in-fact land contract. The district court’s understanding in 

this regard was reflected by the fact that it addressed and decided this issue in its subsequent written 

opinion and order. Moreover, as previously explained, seven days is insufficient to prepare and 

present the variety of evidence that may be needed to show the existence of an implied-in-fact land 
-12-

contract over several years. Thus, it is at least arguable that the district court abused its discretion 

by refusing to adjourn the hearing.

In any event, as with the procedural due-process issue, any error was harmless because the 

terms of the written lease control the parties’ relationship. An adjournment of the hearing to allow 

defendants to gather evidence about such facts as the extent of the home improvements would not 

have changed the outcome of the case. Thus, the district court’s refusal to adjourn the hearing was 

harmless error. See MCR 2.613(A).6

IV. STATUTE OF FRAUDS

Defendants argue that the evidence would have shown that the parties had an oral land 

contract for sale of the subject property that was not barred by statute of frauds due to partial 

performance, had the district court allowed defendants to present evidence in that regard.7 We 

conclude that defendants’ argument is meritless because a contract cannot be implied in fact when 

there is an express contract covering the same subject matter.

The lower court’s finding regarding the existence of an implied-in-fact context is reviewed 

for clear error. In re Lewis Estate, 168 Mich App 70, 74; 423 NW2d 600 (1988). “A finding of 

fact is clearly erroneous when although there is evidence to support it a reviewing court on the 

entire evidence is left with a definite and firm conviction that a mistake has been committed.” Id.

The statute of frauds generally requires that land contracts be in writing. See MCL 566.106 

and MCL 566.108. “To satisfy the statute of frauds, a writing need not contain all the terms of the 

agreement to be enforceable, and the writing may be considered with the admitted facts and 

extrinsic evidence showing the surrounding circumstances.” Barclae v Zarb, 300 Mich App 455, 

470; 834 NW2d 100 (2013).

Partial performance of an agreement may remove it from the statute of frauds. Giordano 

v Markovitz, 209 Mich App 676, 679; 531 NW2d 815 (1995). In addition, “[p]ossession and 

improvements in regard to the property may remove it from the statute.” Zaborski v Kutyla, 29 

 

6 Defendants briefly argue that the refusal to adjourn the hearing was prejudicial because they did 

not have time to prepare the CDC eviction declaration. This is meritless. Notwithstanding that 

the CDC eviction moratorium only applied to “tenant[s],” not land-contract vendees, we judicially 

notice that the relevant document was simple and required only minutes to prepare. See 

https://rentalassistancepbc.org/pdf/CDC_Moratorium.pdf, accessed February 15, 2023. 

Regardless, defendants cannot be awarded any relief at this time because the CDC eviction 

moratorium is no longer in effect.

7 Defendants’ brief on appeal is a bit imprecise. Defendants state in the discussion of this issue 

that the parties had “a valid oral land contract.” However, the essence of defendants’ argument is 

that the parties had an implied-in-fact contract. The difference between these two contracts is that 

an oral contract is an express agreement that is not memorialized in writing, whereas an impliedin-fact contract is an implied agreement that is suggested through actions. See generally, Rowe v 

Montgomery Ward & Co, Inc, 437 Mich 627, 636-637; 473 NW2d 268 (1991). 
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Mich App 604, 607; 185 NW2d 586 (1971). With regard to partial performance of land contracts, 

our Supreme Court has explained as follows:

Partial payment of the purchase price alone is not sufficient to take the case out of 

the statute [of frauds]. Possession alone is insufficient, but where there is partial 

payment and possession accompanied by acts of ownership of the vendee changing 

the character of the freehold, and lessening its value, a court of equity may award a 

decree for specific performance. [Pearson v Gardner, 202 Mich 360, 362; 168 NW 

485 (1918).]

However, it is a longstanding principle of contract law that a contract cannot be implied in 

fact when there is an express contract on the matter. See Miller v Stevens, 224 Mich 626, 632; 195 

NW 481 (1923) (“Where there is no express contract a contract may be implied in fact . . . .”); 

Tustin Elevator & Lumber Co v Ryno, 373 Mich 322, 330; 129 NW2d 409 (1964) (quoting same). 

See also 1 Williston on Contracts § 4:21 (4th ed) (“There can be no implied in fact if there is an 

express contract covering the subject matter involved. Thus, the existence of an express contract 

precludes the possibility of an implied contract of a different or contradictory nature.”) (citations 

omitted); Chanay v Chittenden, 115 Ariz 32, 35; 563 P2d 287 (1977) (“There can be no implied 

contract where there is an express contract between the parties in reference to the same subject 

matter.”). 

In this case, it is clear that the parties never entered into a written land contract. The parties 

were apparently close to doing so in August 2016, when Nash wrote to defendant Vanston that 

“[w]hen we come to an agreement on price & terms . . . we can make it final.” But defendants 

have never suggested that it actually became finalized by a written agreement. Instead, defendants 

offer several facts indicating that the parties understood that they had a land contract, such as the 

fact that defendants paid a $15,000 “security deposit,” which is better understood as a down 

payment; that the subject property’s status on Zillow was changed to “Pending Sale” in about 

August 2016; that defendants made improvements exceeding $40,000 to the subject property, 

which were completed in anticipation of eventually owning the subject property; and that Nash 

had conversations with defendants in May and July 2019 concerning mortgage loans for the subject 

property.

Certainly, these facts show that the parties engaged in serious negotiations for a land 

contract and that defendants believed that they would eventually assume ownership of the subject 

property. Otherwise, they would not have performed such extensive improvements. However, the 

August 2016 written lease between the parties contemplates the possibility that they would not be 

able to agree upon the terms of a land contract, and in that case, the parties would simply have a 

landlord-tenant relationship. Specifically, the lease states that “[i]f for any reason currently 

unknown to either party a Land Contract Agreement cannot be reached the Tenant agrees to Lease 

the Property for a minimum of 12 months.” The preceding sentence of the lease refers to a “Land 

Contract Agreement” being “executed.” Taken together, these two sentences indicate that a land 

contract is “reached” when it is “executed,” and that when a land contract is not “executed,” it is 

not “reached” and the parties instead have an ordinary lease. The latter situation is what occurred 

here. 
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Finding that the parties had an implied-in-fact land contract that replaced the terms of the 

written lease would be contrary to the principle of contract law that a contract cannot be implied 

in fact when there is an express contract covering the same subject matter. Therefore, the district 

court did not clearly err by finding that the parties did not have an implied-in-fact land contract, 

and the circuit court did not err by affirming this finding.

For these reasons, we conclude that the parties’ relationship was governed by the written 

lease and that a contract for a sale of the subject property cannot be implied in fact. Defendants’ 

arguments about improvements to the subject property, conversations with Nash, Zillow status, 

and so forth, are beside the point because defendants do not even suggest that the parties had a 

written land contract that replaced the written lease. To the extent that defendants argue that it 

would be unfair for plaintiff to retain the benefits of the alleged $40,000 improvements to the 

subject property, as stated supra, they may maintain a separate action for unjust enrichment. See 

JAM Corp 461 Mich at 166, 170. See also Ollig v Eagles, 347 Mich 49, 60-61; 78 NW2d 553 

(1956) (explaining that a party may maintain an action for unjust enrichment when he or she 

mistakenly but in good faith improves the real property of another).

V. CONCLUSION

The parties’ relationship was governed by the terms of the written lease, and a land contract 

cannot be implied in fact because doing so would conflict with that written lease. Therefore, any 

procedural error that occurred as a result of defendants’ inability to present fact-specific evidence 

concerning the alleged implied-in-fact land contract was harmless error. Accordingly, we affirm.

/s/ Michelle M. Rick

/s/ Michael J. Kelly 

/s/ Michael J. Riordan