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

revision until final publication in the Michigan Appeals Reports.

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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

BATTH INVESTMENTS LLC,

Plaintiff-Appellant,

UNPUBLISHED

January 12, 2023

v No. 360488

Wayne Circuit Court

STAN MICIURA and MICHAEL MICIURA, LC No. 19-000354-CH

Defendants-Appellees.

Before: CAVANAGH, P.J., and O’BRIEN and RICK, JJ.

PER CURIAM.

Plaintiff appeals as of right following remand by this Court, challenging the circuit court’s 

order granting defendants’ claim for reasonable use of property under MCR 3.411(E) in the amount 

of $40,800. We reverse and remand for further proceedings.

As set forth in this Court’s previous opinion on this matter, this case arises from a 

foreclosure of a mortgage by advertisement on a condominium owned by Angela Barney. Batth 

Investments, LLC v Miciura, unpublished per curiam opinion of the Court of Appeals, issued April 

29, 2021 (Docket no. 352642), slip op at 1. In April 2018, the condominium was sold at a sheriff’s 

sale to defendants; thereafter, Barney had six months to redeem the property, i.e., until October 

26, 2018. Id. In June 2018, defendants filed a summary-proceeding in district court to evict 

Barney and, on June 13, 2018, a default judgment was entered against Barney. Id. On October 5, 

2018, Barney moved to set aside the default judgment and, on that same day, she executed a 

quitclaim deed in favor of plaintiff, which was recorded “two days before the date on which Barney 

claimed that the redemption period was to expire.” Id. at 2. Ultimately, Barney’s motion to set 

aside the default judgment was denied. The district court held that her redemption rights had been 

extinguished by the default judgment and that title vested with defendants. Id.

Thereafter, plaintiff sued to quiet title in circuit court, claiming that it had properly 

redeemed the property and was the owner of the condominium. Id. The circuit court granted 

plaintiff’s motion for summary disposition, apparently agreeing with plaintiff that Barney’s 

redemption rights were not extinguished by the default judgment, and therefore, plaintiff was the 

owner of the condominium. Id.
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Defendants appealed that decision to this Court, which reversed. In brief, this Court 

concluded that plaintiff’s complaint to quiet title constituted an impermissible collateral attack 

against the district court’s default judgment and order denying Barney’s motion to set aside the 

default judgment. Id. at 6. Thus, the circuit court erred in granting plaintiff’s motion for summary 

disposition. Id. Moreover, this Court held, Barney’s redemption rights were extinguished by the 

default judgment and title had vested in defendants; therefore, even if the action had not been an 

impermissible collateral attack, plaintiff would not have been entitled to judgment in its favor. Id. 

at 6-7. Accordingly, the matter was remanded to the circuit court for further proceedings. Id. at 

7. Plaintiff sought leave to appeal to our Supreme Court, which was denied. Batth Investments, 

LLC v Miciura, 967 NW2d 614 (2022).

Thereafter, on January 10, 2022, defendants filed in the circuit court a claim for reasonable 

value of use of the premises under MCR 3.411(E). Defendants averred that plaintiff took 

possession of the subject condominium in February 2020, following the circuit court’s order 

granting plaintiff’s motion for summary disposition. Further, defendants averred, on February 25, 

2020, plaintiff filed a claim in the circuit court for reasonable value of use of the premises under 

MCR 3.411(E), which alleged that during the pendency of that action defendants “had possession 

of the property, depriving Plaintiff of the income and benefits of such possession for approximately 

one year.” Plaintiff also stated in its claim that similar condominiums in that community were 

renting for $1,700 a month, and thus, plaintiff sought $1,700 a month for 12 months, totaling 

$20,400 from defendants. Accordingly, defendants argued, they were entitled to the same 

reasonable rental rate posited by plaintiff of $1,700 a month during the two-year pendency of this 

case, for a total of $40,800.

On February 8, 2022, plaintiff responded to defendants’ claim for reasonable value of use 

of the premises, arguing that it never took or assumed possession of the subject property and it did 

not take any measure to withhold possession of the property from defendants. In fact, plaintiff 

argued, defendants had a default judgment of possession against Barney so defendants had 

continuous possession—not plaintiff. Therefore, plaintiff argued, it never withheld possession of 

the premises as required for recovery under MCR 3.114(E)(1) and defendants’ claim must fail. 

Plaintiff attached to its brief an affidavit of Inderjeet Batth, a member and manager of plaintiff, 

which stated that plaintiff never took possession, or withheld possession, of the subject property.

On February 11, 2022, a hearing on defendants’ claim for reasonable value of use of the 

premises was conducted by Zoom.1 According to the stipulated order settling a statement of facts 

concerning that hearing, when defendants attempted to take possession of the subject property in 

January 2022, it was “discovered that the locks were punched out and replaced.” Plaintiff denied 

any knowledge about the locks being replaced and argued that it had made no attempt to change 

defendants’ judgment of possession, made no attempt to take possession, and did not enter the 

property or pay fees, taxes, or assessments related to the property. In sum, plaintiff argued, it did 

 

1 An order granting defendants’ claim for reasonable value of use of the premises was entered on 

February 14, 2022, referring to “reasons stated on the record,” but no transcript of the proceeding 

was available; therefore, a stipulated order settling the statement of facts related to that hearing 

was entered on May 4, 2022.
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not withhold possession of the property from defendants so it was not liable for the value of the 

use of the property under MCR 3.411(E). The circuit court indicated that plaintiff had the right of 

possession after summary disposition was granted in its favor and plaintiff responded that the right 

of possession is not the same as having possession. Defendants’ attorney showed the court 

“photographs depicting a door with its locks punched out with the doorknob and lock parts on the 

floor” and indicated that a locksmith had to be hired to access the property. The circuit court then 

stated that it was taking judicial notice that plaintiff had the right of possession and, based on 

plaintiff’s prior request for $1,700 a month from defendants, the court was “awarding that amount 

of lost value to Defendants for the 24-month period Plaintiff had the right to possess the property.” 

Accordingly, the court granted defendants’ claim for reasonable value of use of the premises and 

awarded $40,800 to defendants.

On appeal, plaintiff argues that the circuit erred by awarding defendants $40,800 on their 

claim for reasonable value of use of the premises under MCR 3.411(E) because there was no 

evidence that plaintiff withheld possession of the subject property and no evidence was submitted 

to support that award. We agree.

The interpretation and application of a court rule are questions of law that we review de 

novo on appeal. Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). “Court rules 

are interpreted using the same principles that govern statutory interpretation.” Lamkin v Engram,

295 Mich App 701, 709; 815 NW2d 793 (2012). Our purpose in reviewing questions of court rule 

construction—as in statutory construction—is to discern and give effect to the drafter’s intent. 

Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005); In re Mota, 

334 Mich App 300, 311; 964 NW2d 881 (2020). Our analysis begins by examining the plain 

language of the court rule; if the language is unambiguous, no judicial construction is required or 

permitted and the rule must be enforced as written. Echelon Homes, 472 Mich at 196 (citation 

omitted). The undefined words of a court rule must be given their plain and ordinary meaning, 

which may be ascertained by looking at dictionary definitions. See Koontz v Ameritech Servs, Inc, 

466 Mich 304, 312; 645 NW2d 34 (2002); Richards v McNamee, 240 Mich App 444, 451-452; 

613 NW2d 366 (2000).

This case began with plaintiff claiming an interest in the subject property and filing a quiet 

title action against defendants under MCL 600.2932(1) to determine their competing interests in 

that property. See Trademark Props of Mich, LLC v Federal Nat’l Mtg Ass’n, 308 Mich App 132, 

137; 863 NW2d 344 (2014). Specifically, MCL 600.2932(1) states:

Any person, whether he is in possession of the land in question or not, who claims 

any right in, title to, equitable title to, interest in, or right to possession of land, may 

bring an action in the circuit courts against any other person who claims or might 

claim any interest inconsistent with the interest claimed by the plaintiff, whether 

the defendant is in possession of the land or not.

MCR 3.411 “applies to actions to determine interests in land under MCL 600.2932.” 

MCR 3.411(A). It is undisputed by the parties that MCR 3.411 applies to this action to quiet title 

that was brought in the circuit court. And the circuit court granted plaintiff’s motion for summary 

disposition, holding that plaintiff established the superiority of its claim to defendants’ claim. The 
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circuit court’s decision was premised on a dispositive issue of law, and there are few record facts 

about the subject property. This Court ultimately reversed that circuit court decision.

After defendants prevailed on appeal, they filed a claim under MCR 3.411(E), which 

provides:

(E) Claim for Reasonable Value of Use of Premises.

(1) Within 28 days after the finding of title, the party found to have title to the 

premises may file a claim against the party who withheld possession of the premises 

for the reasonable value of the use of the premises during the period the premises 

were withheld, beginning 6 years before the action was commenced.

(2) The court shall hear evidence and make findings, determining the value of the 

use of the premises.

(a) The findings must be based on the value of the use of the premises in their 

condition at the time the withholding party, or those through whom that party 

claims, first went into possession. The use of the buildings or improvements put 

on the land by the party who withheld possession may not be considered.

(b) The findings must be based on the general value of the use of the premises, not 

on a peculiar value the use of the premises had to the party who withheld possession 

or might have had to the party who had title.

Defendants argued that plaintiff took possession of the subject property in February 2020 and even 

filed a claim against defendants under MCR 3.411(E), alleging that defendants had wrongfully 

denied plaintiff of possession of the subject property during the year the case was pending. In 

response to defendants’ argument, plaintiff denied that it ever took possession of the subject 

property, arguing that defendants had a judgment of possession and plaintiff took no action 

contrary to that judgment in defendants’ favor. Plaintiff submitted an affidavit in support of its 

response to defendants’ claim. The circuit court granted defendants’ claim, without an evidentiary 

hearing, finding that plaintiff had the right of possession and, because plaintiff had previously 

requested $1,700 a month, that was the value that defendants were entitled to receive. On appeal, 

plaintiff first argues that the trial court erred because even if plaintiff had “the right of possession,” 

plaintiff never “withheld possession” as required for recovery of damages under MCR 3.411(E)(1). 

We agree with plaintiff.

The court rule does not define the phrase “withheld possession,” but we may consider the 

dictionary definitions to ascertain the plain and ordinary meaning of the words, considering the 

context in which they are used. See Yudashkin v Linzmeyer, 247 Mich App 642, 650; 637 NW2d 

257 (2001) (citation omitted); Richards, 240 Mich App at 451-452. Random House Webster’s 

College Dictionary (2d ed) defines “withhold” as including “to hold back; restrain or check . . . to 

refrain from giving or granting” and defines “possession” as including “actual holding or 

occupancy, either with or without rights of ownership.” And if the term “possession” is considered 

a legal term of art, its legal meaning is similar to its common definition. Black’s Law Dictionary 

(7th ed) defines “possession” as including: “1. The fact of having or holding property in one’s 

power; the exercise of dominion over property. 2. The right under which one may exercise control 
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over something to the exclusion of all others . . . .” Therefore, for defendants to succeed on their 

claim, they had to prove that plaintiff occupied or exercised control over the subject property—a 

condominium—and refrained or refused to relinquish that control or occupancy to defendants. 

There is no evidence that plaintiff occupied or exercised control over the property by, for example, 

occupying it, renting it, or improving it. To the contrary, defendants actually held a judgment for 

possession with respect to that property which was obtained in the summary proceedings against 

Barney on June 13, 2018. There is no evidence of record that the judgment for possession was set 

aside or violated. And a judgment for possession “is a judgment that entitles the [holder] to 

possession of the premises . . . .” JAM Corp v AARO Disposal, Inc, 461 Mich 161, 170; 600 NW2d 

617 (1999); see also MCL 600.5744. As the holder of the judgment for possession, defendants 

had the legal right to possession of the subject property—not plaintiff.

Further, plaintiff presented an affidavit to the circuit court executed by a member and 

manager of plaintiff which stated that plaintiff never took possession, never attempted to take 

possession, and never withheld possession of the subject property. While defendants’ attorney 

showed the circuit court during the Zoom hearing what was allegedly photographs of a door with 

its locks punched out, this was neither admissible nor persuasive evidence. See Matter of 

Robinson, 180 Mich App 454, 460; 447 NW2d 765 (1989) (“A proper foundation for the admission 

of photographs is made if someone who is familiar from personal observation of the scene or 

person photographed testifies that the photograph is an accurate representation of the scene or

person.”). Therefore, we disagree with the circuit court that defendants proved that plaintiff 

“withheld possession” of the subject property within the contemplation of MCR 3.411(E)(1).

Plaintiff next argues that the “reasonable value of the use of the premises” was not properly 

determined. We agree with plaintiff. First, we reject defendants’ argument on appeal that it was 

incumbent on plaintiff to request an evidentiary hearing to determine whether plaintiff withheld 

possession of the property and, if so, the amount of defendants’ monetary damages. Defendants 

brought a claim seeking monetary damages under MCR 3.411(E); thus, as the allegedly aggrieved 

party, defendants were required to prove that claim by establishing both that defendants “withheld 

possession” and the “reasonable value of the use of the premises during the period the premises 

were withheld[.]” See MCR 3.411(E)(1).

Second, we reject defendants’ argument—and disagree with the circuit court’s holding—

that “the reasonable value of the use of the premises” was conclusively determined by the fact that 

plaintiff had previously filed a claim against defendants under MCR 3.411(E), seeking $1,700 a 

month in rent for the subject property. Contrary to defendants’ argument on appeal, the doctrine 

of judicial estoppel does not apply under these circumstances. In brief, judicial estoppel prevents 

a party who successfully asserted a particular position in a prior proceeding from later asserting a 

wholly inconsistent position. See Duncan v Michigan, 300 Mich App 176, 190; 832 NW2d 761 

(2013) (citation omitted). In other words, the court in the prior proceeding must have accepted the 

particular position as true. Id. (citation omitted). That did not happen in this case. There is no 

record evidence that plaintiff’s “claim” under MCR 3.411(E) was ever adjudicated by the circuit 

court and determined to be “the reasonable value of the use of the premises.” And there is no 

record evidence that defendants were ever ordered to pay plaintiff, or that defendants ever paid 

plaintiff, any amount of money with regard to the subject property. But, more importantly, MCR 

3.411(E) states:
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(2) The court shall hear evidence and make findings, determining the value of the 

use of the premises.

(a) The findings must be based on the value of the use of the premises in their 

condition at the time the withholding party, or those through whom that party 

claims, first went into possession. The use of the buildings or improvements put 

on the land by the party who withheld possession may not be considered.

(b) The findings must be based on the general value of the use of the premises, not 

on a peculiar value the use of the premises had to the party who withheld possession 

or might have had to the party who had title.

The use of the word “shall” generally denotes a mandatory action; thus, because the rule states that 

the “court shall hear evidence,” an evidentiary hearing is mandatory under MCR 3.411(E)(2). See 

Manual v Gill, 481 Mich 637, 647; 753 NW2d 48 (2008). This rule further requires that specific 

findings be made with regard to the determination of the “value of the use of the premises.” MCR 

3.411(E)(2). In that regard, the court must consider the condition of the premises at the time the 

“withholding party . . . first went into possession,” MCR 3.411(E)(2)(a), which supports our 

conclusion stated above that defendants had to prove that plaintiff actually occupied or exercised 

control over the subject property, i.e., “went into possession.” The court must also consider only 

the general value, not the peculiar value, of the premises. MCR 3.411(E)(2)(b).

In this case, no evidentiary hearing was conducted and the circuit court made no specific 

findings about the subject property, including the condition of the premises at any time during this 

proceeding. On appeal defendants concede that an evidentiary hearing was not conducted but 

argue that one was not required. As discussed above, and according to the plain language of MCR 

3.411(E)(2), we cannot agree. Defendants presented absolutely no evidence to establish either that 

plaintiff “withheld possession” and, if so, “the reasonable value of the use of the premises.” 

Therefore, this matter must be remanded. The circuit court’s award of $1,700 a month to 

defendants for the 24-month period that plaintiff allegedly had the “right of possession” of the 

subject property, for a total of $40,800, is reversed and this matter is remanded to the circuit court 

for further proceedings.

Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Colleen A. O’Brien

/s/ Michelle M. Rick