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### STATE OF MICHIGAN

COURT OF APPEALS

ANTON, SOWERBY & ASSOCIATES, INC.,

Plaintiff/Counter-DefendantAppellant, FOR PUBLICATION March 12, 2015 9:05 a.m.

v Nos. 317935; 321827 Oakland Circuit Court MR. C’S LAKE ORION, L.L.C., LC No. 2013-132761-CH

Defendant/Counter-PlaintiffAppellee,

and

FLAGSTAR BANK,

Defendant-Appellee.

Before: G LEICHER , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

.
The Commercial Real Estate Broker’s Lien Act, MCL 570.581 et seq. , was enacted to protect the right of commercial real estate brokers to collect their contractually-negotiated commissions. The plaintiff comme rcial real estate broker compl ied with the act by placing a lien against property over which it h ad entered an exclusive listing agreement, which had been sold surreptitiously. Plaintiff subsequently violated the act’s cle ar directive to release its lien once the buyer and seller funded an escrow account with an amount suffic ient to cover the broker’s claim. Plaintiff’s continued refusal to release the lie n created an in valid cloud on the buyer’s title.

Plaintiff sought relief under the act but failed to name as a party defendant the seller who agreed to the listing agreement. As a result, plaintiff’s chal lenges to the commission amount (and thereby the escrow account) could not be resolved by the c ircuit court. And plaintiff never clearly stated any objection that could be raised against the s eller. Accordingly, the circuit court’s summary dismissal of plaintiff’s claims under the act a nd the denial of its motion to amend the complaint are supported by the record. The circuit c ourt also properly granted summary disposition in the buyer’s favor on its slander-of-titl e action. Moreover, plaintiff’s legal challenges to the special damages awarded to the buyer la ck merit. We therefore affirm.-2- I. BACKGROUND

Plaintiff Anton, Sowerby & Asso ciates is a licensed commercial real estate brokerage firm. Plaintiff entered a listing agreement with nonparty GAM Properties, L.L.C., providing plaintiff the exclusive rights to “sell, lease or exchange” pro perty at 720 S. Lapeer Road in Lake Orion. The contract promised plaintiff 5 to 6% of the ultimate sale or lease price depending on certain factors. Plaintiff located a potential buyer for the p roperty—defendant Mr. C’s Lake Orion—and introduced Mr. C’s agent to GAM. Plaintiff alleges that Mr. C’s and GAM thereafter engaged in secret ne gotiations in an attempt to avoi d paying plaintiff’s commission.

During this period of secret negotiations, GAM defaulted on it s mortgage and its lender secured the appointment of a rece iver to continue the sale of t he subject property. Mr. C’s ultimately agreed to lease the property for $5,000 monthly with an option to buy. Mr. C’s exercised its purchase option almost immediately and promised t o pay $1,200,000, with a mortgage loan through defendant Flagstar Bank, and the receiver offered to settle plaintiff’s commission dispute. A resolution was not reached, however, andplaintiff recorded a broker’s lien of $60,000 (5% of the purchase price) against the property pursuant to the Michigan Commercial Real Estate Broker’ s Lien Act (CREBLA), MCL 570.581 et seq . Specifically, MCL 570.584(1) permits a commercial real estate broker to recor d a lien against the property if the broker is entitled to a commission under a written agreemen t. The receiver and Mr. C’s proceeded with the sale, created an escrow account funded with $75,000 to satisfy plaintiff’s claim, and requested that plaintiff release its lien in accorda nce with MCL 570.585. Subsection (3) of that statute mandates a br oker’s release of a lien if th e parties to a sale escrow “an amount sufficient to satisfy” the lien. Plaintiff contends that neit her Mr. C’s nor the receiver informed it of the escrow account until after it filed suit. Accordingly, plaintiff refused to release its lien.

In its complaint, plaintiff asserted that it “requested docume ntation concerning the purchase price for the Property paid by Mr. C’s. . . . That in formation has not been forthcoming. Therefore, the exact amount of the Lien will abide discovery of that information in this litigation.” Plaintiff contended that it wanted to foreclose u pon its lien. Notably, plaintiff filed suit against Mr. C’s and Flagstar, but not GAM or its receiver. Mr. C’s in turn filed a countercomplaint to quiet title in the property and accusing pl aintiff of slande ring its title.

Mr. C’s subsequently sought sum mary dismissal of plaintiff’s a ction and judgment in its favor on the countercomplaint, and requested special damages. Mr. C’s contended that the plain language of the CREBLA required pl aintiff to release its lien u pon the creation of the escrow account and no exception existed. Plaintiff retorted that its claim actually sounded in breach of contract regarding the underlying exclusive listing agreement and therefore the CREBLA did not control its duty to release the lien. In response, Mr. C’s emp hasized that plaintiff had not joined the proper parties for a breach of contract action; plaintiff’s contract was with GAM alone and yet plaintiff did not name that entity as a defendant. Plainti ff pointed to GAM’s financial difficulties and the receivershi p to support its decision not t o include GAM as aparty defendant.

Ultimately, based on the plain language of the CREBLA, the cir cuit court summarily extinguished plaintiff’s lien over the property. The court ord ered that Mr. C’s funds remain in escrow as the account was requir ed under the statute to protect the commercial real estate broker. However, the court ruled that plaintiff had to file suit agains t GAM in order to collect the-3- escrowed funds. The court thereafter rejected plaintiff’s reco nsideration motions and requests to amend its complaint to add cla ims against GAM’s receiver.

II. SUMMARY DISPOSITION IN RELA TION TO THE ESCROW ACCOUNT

Plaintiff contends that the circuit court erred in concluding that the escrow agreement between Mr. C’s and the receiver discharged plaintiff’s lien. Accordingly, plaintiff continues, the court erred in summarily dismissing plaintiff’s claim for r ecovery. We review de novo a lower court’s summary disposition ruling. Rambin v Allstate Ins Co , 495 Mich 316, 325; 852 NW2d 34 (2014). The propriety of the circuit court’s ruling ce nters on its interpretation and application of the CREBLA, a question of law that we review de novo. Tomecek v Bavas , 482 Mich 484, 490; 759 NW2d 178 (2008). When interpreting a statut e, a court’s objective is to discern and give effect to the Legislature’s intent based on th e statute’s plain and unambiguous language. Wurtz v Beecher Metro Dist , 495 Mich 242, 250; 848 NW2d 121 (2014).

Historically, real estate brokers had no guarantee of payment of their commissions. Brokers attempting to secure payment by encumbering the propert y were informed “that the equities of those who furnished the money [for the purchase] ar e far superior to those of the broker.” Biddle v Biddle , 202 Mich 160, 166; 168 NW 92 (1918). This was true until the enactment of the CREBLA by 2010 PA 201.

A commercial real estate broker licensed in accordance with the Michigan Real Estate Broker’s Act, MCL 339.2501 et seq ., may file a lien over property in accordance with the CREBLA. MCL 570.583. A commercial real estate broker’s lien a ttaches to real estate if the broker has a written commission agreement under which the broke r is entitled to a commission, and the broker records its lien before the property is actually conveyed. MCL 570.584(1). MCL 570.585 addresses the creation of a lien escrow account and the release of the broker’s lien:

(1) If a claim of lien record ed under [MCL 5 70.584] would othe rwise prevent the closing of a trans action involving commercial real estate, the parties to the transaction shall, subject to subsection (2), establish an escrow account from the proceeds of the transaction in an amount sufficient to satisfy the lien. A buyer or seller shall not refuse to close the transaction becau se of the requirement of establishing an escrow account under this subsection. The m oney shall remain in the escrow account until the rights to the money have been d etermined by a written agreement of the parties, a judgment or order by a cour t of competent jurisdiction, or any other method agreeable to the parties.

* * *

(3) If an amount sufficient to satisfy a commercial real estat e broker’s lien is escrowed under subsection (1), the lien is extinguished and the real estate broker shall provide a release of lien that meets the requireme nts of . . . MCL 565.201 . . . [.]

Plaintiff argues that Mr. C’s and Flagstar were not entitled t o summary disposition because Mr. C’s failed to comply with MCL 570.585, requiring “t he parties to the transaction” to-4- establish an escrow account. Plaintiff maintains that it was “ a party to the transaction,” but did not agree to the escrow account . This interpretation is not su pported by the statutory language.

MCL 570.582 provides definitions pertinent to the CREBLA. It defines “buyer,” “claim of lien,” “commercial real estate,” “commercial real estate lie n,” “record,” and “s eller,” but fails to define “parties,” “transact ion,” or the phrase “parties to t he transaction.” The meaning of these terms are clear when r ead in the context of MCL 570.585.

MCL 570.585 provides that if a recorded claim of lien would pr event the “closing of a transaction involving commercial real estate, the parties to th e transaction shall . . . establish an escrow account from the proceeds of the transaction in an amoun t sufficient to satisfy the lien.” The CREBLA allocates rights and responsibilities to the parties in a real estate transaction. The licensed commercial real estate broker is given the right to re cord a lien, MCL 570.583; MCL 570.584, and the right to enforce the lien, MCL 570.586. MCL 5 70.585, on the other hand, addresses how the “parties to the transaction” shall address th e lien, and allows the real estate transaction to close despite the lien’s existence. Although pl aintiff contends that the real estate broker is a party to the sales transaction, a real estate broke r’s right to a commission arises from a separate contractual agreement between the broker and the sel ler. The parties to the sale are the buyer and the seller. Moreover, MCL 570.585 provides that the “buyer” or “seller” shall not refuse to close the transaction because of the escrow requireme nt. If the Legislature had intended to include the commercial real estate broker as a part y to the transaction, it would have further provided that the broker could not unnecessarily impose additional conditions on the lien to prevent the sale from occurring. Here, the parties to the r eal estate sales transaction were the receiver and Mr. C’s. Plaintiff as GAM’s commercial real estat e broker was not a party to the sale. Accordingly, the receiver and Mr. C’s were not required to confer with plaintiff before creating the escrow account.

That the broker’s prese nce is not required to negotiate the es crow amount is further supported by MCL 570.584(9), which addresses the contents of th e broker’s lien claim. The broker is directed to identify the “amount for which the lien i s claimed.” MCL 570.581(9)(c). This information would then be av ailable to the buyer and selle r in the real estate transaction when funding the escrow account with “an amount sufficient to s atisfy” the lien under MCL 570.585(1). The lien documents thereby protect the interests o f the broker despite that it is not involved in the sales transacti on or the creation of the escrow account.

Mr. C’s and the receiver looked to plaintiff’s recorded lien t o determine the amount to place into escrow. Plaintiff listed the amount of its interest as $60,000 in the lien. Mr. C’s and the receiver chose to provide a buffer and placed $75,000 in es crow. Mr. C’s and the receiver complied with the CREBLA by escro wing the amount cited by plain tiff.

Once the amount cited in the lien is escrowed, “the lien is ext inguished and the real estate broker shall provide a release of lien . . . .” MCL 570.585(3) . Mr. C’s and the receiver instigated the automatic extingu ishment of the lien by creating the escrow account. Plaintiff was then required to file a lien rel ease with the register of deeds . Plaintiff is seeking the protection of the CREBLA, all the while violating its provisions. And plaint iff’s interpretation would require the statute to be rewritten. Escrowing the amount cited by the broker in its own lien documents would no longer require the extinguishment of the encumbrance. Rather, the lien figure would-5- be the starting point for negotia tions, allowing the broker to hold the land sale hostage until its demands are met. The CREBLA was designed to protect the broker ’s right to collect the commission outlined in the brokerage agreement, not to allow th e broker to punish the seller for shirking its contra ctual promises.

Accordingly, the circuit court properly granted summary disposi tion in favor of defendants. The lien was exti nguished under the statute and th e court was required to remove it.

III. SLANDER OF TITLE

Plaintiff contends that in rende ring its summary disposition r uling, the circuit court erroneously determined that the refusal to discharge the lien c onstituted a slander of title. Claims for slander of title were recognized at common law “as a remedy for malicious publication of false statements that disparage a plaintiff’s right in property .” B & B Investment Group v Gitler

, 229 Mich App 1, 8; 581 NW2d 17 (1998). “In Michigan, slander o f title claims have both a common-law and statutory basis.” Id . To establish either, a claima nt must show falsity, malice, and special damages. Id. ; MCL 566.108. 1

In Wells Fargo Bank v Country Place Condo Ass’n , 304 Mich App 582, 596; 848 NW2d 425 (2014), this Court provided the following guidance regardin g the malice element:

The crucial element is malice. A slander of title claimant mu st show some act of express malice, which implies a desire or intention to i njury. Malice may not be inferred merely from the filing of an invalid lien, the plaintiff must show that the defendant knowingly f iled an invalid lien with the int ent to cause the plaintiff injury. A plaintiff ma y not maintain a slander of ti tle claim if the defendant’s claim under the mortgage or lien was asserted in go od faith upon probable cause or was prompted by a reasonable belief that the defendant had rights in the real e state in question . . . . [Quotation marks and citation omitted.]

Given this guidance, the mali ce necessary for a slander action does not exist when the offending party’s actions rest on a rationa l, yet incorrect, interpretati on of law. Id . at 598.

1 The statute provides: No person shall use the privilege of filing notices hereunder f or the purpose of slandering the title to land, and in any action brought for the purpose of quieting title to land, if the court sha ll find that any person has file d a claim for that reason only, he shall award the plainti ff all the costs of such action , including such attorney fees as the court may allow to the plaintiff, and in a ddition, shall decree that the defendant asserting such claim shall pay to plaintiff all damages that plaintiff may have sustained as the result of such notice of cl aim having been so filed for record.-6- The claimant also must show that the alleged slander caused sp ecial damages. B & B Investment Group , 229 Mich App at 8. “Special damages . . . include litigationcosts, impairment of vendibility, and loss of rent or interest. Id . at 9 (citations omitted). Attorney fees may be awarded pursuant to MCL 565.108 and are not limited to t he time before the title cloud was removed. Id . at 11. Rather, the statute cont emplates that attorney fees w ill be awarded, in the court’s discretion, for all costs involved in the action. Id

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In B & B Investment Group , 229 Mich App at 4, the plainti ff and the defendant entered into a business relationship to purchase real estate from mortg age foreclosure and sheriff’s sales. During their relationship, a disp ute arose regarding the disbur sement of funds involving two properties unrelated to the litigation. Id. at 5. Unable to resolve their differences, the defendant filed claims of interest against seven other properties owned b y the plaintiff. Id. The district court concluded that the defendant committed slander of title w ith malicious intent because it held no cognizable interest in those seven properties, knew it was improper to file such claims, and was advised not to file the claims. Id . at 5-6. In Sullivan v Thomas Org, PC , 88 Mich App 77, 80; 276 NW2d 522 (1979), the pl aintiffs alleged that the de fendant disparaged title by inappropriately filing a mechanic ’s lien out of revenge. This Court held that “the filing of an invalid lien may be a falsehood, even if the matter in the lien is correct.” Id . at 82.

Here, the circuit court did not err by holding that the elemen ts of slander of title were established as a matter of law. MCL 570.584(1) provides that acommercial real estate broker’s lien attaches to real estate if: (a) the real estate broker has a written commission agreement; (b) the agreement entitles the broke r to a commission; and (c) the lien claim attaches before the conveyance of the real estate occurs. Plaintiff had a written commission agreement with GAM, and the receiver became bound by the agreement following its ap pointment. Plaintiff was entitled to a commission under the listing agreement because it had the exclusive right to broker a sale and actually found the property’s ultimate purchaser—Mr. C’s. And plaintiff perfected its lien before the Mr. C’s purchase was complete.

But conditions requiring release of the lien also existed. MC L 570.585(3) requires a real estate broker to release its lien once an amount sufficient to cover that lien is placed into escrow. Mr. C’s and the receiver did so, triggering plaintiff’s duty to release its lien. Even if Mr. C’s and the receiver failed to notify pl aintiff of the escrow account u ntil after plaintiff filed suit, plaintiff could have withdrawn its action and avoided legal costs. Moreo ver, Mr. C’s repeatedly advised plaintiff to pursue the lien against GAM. Plaintiff responded that the GAM receivership voided all contracts, and purposefully d eclined to bring GAM into the litigation. Indeed, the circuit court questioned why plaintiff failed to sue GAM, but plaintiff never provided an answer. Thus, plaintiff failed to demonstrate the validity of its continued l ien, or to dispel the claimed malice in response to defendant’s motion for summary disposition. See McCoig Materials, LLC v Galui Constr, Inc , 295 Mich App 684, 693; 818 NW2d 410 (2012). Although the con tents of the lien may have been correct, plaintiff failed to demonstrate that its lien was valid and not premised on a falsehood under the circumstances. Sullivan , 88 Mich App at 82.

Additionally, MCL 570.585 provides th at if a sufficient amountto cover the lien is placed in escrow, the lien is extingui shed and the real estate broker “shall release” the lien. Mr. C’s and Flagstar exchanged emails with p laintiff’s counsel attempting t o resolve the litigation and requested that plaintiff discharge the lien. Despite these req uests, plaintiff failed to do so.-7- Plaintiff contends that it had t he right to contest defendants’ compliance with the statute because it was not permitted to negotiate the lien amount. Indeed, sla nder of title is not established when premised on a rational in terpretation of law. Wells Fargo Bank , 304 Mich App at 598. However, the record does not sup port plaintiff’s contention tha t it was relying on any legal position in withholding its release. Plaintiff maintained its lien and subverted the court’s rulings and orders even after the court granted summary disposition in Mr. C’s favor and denied plaintiff’s motions for relief from judgment and to amend its c omplaint. The circuit court held that the case was closed by final order, and the only outstandi ng issue was one of damages. Despite the court’s rulings, plaintiff filed a witness list and attempted to engage in discovery by serving a set of interrogatories. It also failed to release th e lien it had filed with the register of deeds.

In light of MCL 570.585, plaintiff could have discharged the l ien in accordance with the statute to avoid any claim for slander of title, and proceeded in accordance with MCL 570.586 to seek to have the escrowed funds r eleased or file a claim for br each of contract. Plaintiff’s pursuit of these options would not have subjected it to a slander-of-ti tle action. However, plaintiff’s repeated failure to abide by the court’s rulings and release th e lien demonstrated malice. Accordingly, the court did not err in granting defendants’ moti on for summary disposition of the slander-of-title claim.

IV. COMPLAINT AMENDMENT

Plaintiff also challenges the circuit court’s denial of its mo tion to amend its complaint to add GAM’s receiver as a party defendant. Under the CREBLA, a r eal estate broker “may bring an action to enforce the lien,” but must “name as defendants al l persons that, at the time the action is filed, have an interest in the commercial real estate .” MCL 570.586(1)-(2). The action also “may include a claim on the contract from which the lien a rises.” MCL 570.586(3). The circuit court correctly determined that plaintiff’s action agai nst the purchaser of the property was extinguished when the purchaser participated in the creation of an escrow account based on the amount cited in the lien. Plainti ff’s remaining challenge is t o the correct calculation of its commission and that claim lies be tween the parties to the exclu sive listing agreement.

MCR 2.118(A)(2) provides, “[A] party may amend a pleading only by leave of the court” and “[l]eave shall be freely given when justice so requires.” Moreover, MCR 2.116(I)(5) demands that a court allow a disappointed plaintiff the opportunity to amend its complaint after summary disposition is granted under MCR 2.116(C)(8), (9), or ( 10), unless the evidence reveals that amendment would not be justified. And pursuant to MCR 2.2 06(A)(2)(b), “[a]ll persons may be joined in one action as defendants . . . if their presen ce in the action will promote the convenient administration of justice.” A motion to amend may b e denied because of undue delay, bad faith or dilatory motive by the moving party, repeat ed failures to cure deficiencies in previously allowed amendments, undue prejudice to the opposing party, and futility. Weymers v Khera , 454 Mich 639, 658; 563 NW2d 647 (1997).

Here, plaintiff sought to add the receiver as a party defendant within the statute of limitations to bring its lien claim. See MCL 570.587(1) (estab lishing a one-year statute of limitations for CREBLA lien actions). The motion was filed in response to the court’s summary dismissal of plaintiff’s claims under MCR 2.116(C)(10). Plaint iff cursorily discussed the-8- contents of its claim against the receiver, by generally assert ing that the actual amount of its commission as required by the lis ting agreement had not been ad equately proven. However, amendments must be submitted in writing. MCR 2.118(A)(4). If a plaintiff does not present its proposed amended complaint to the court, there is no way to det ermine whether amendment is justified. See Lown v JJ Eaton Place , 235 Mich App 721, 726; 598 NW2d 633 (1999). This is especially true here as plaintiff never specifically described its challenge to the $60,000 commission figure. Absent the submission of the proposed compl aint or a clear statement of claim, we discern no abuse of the circuit court’s discretionary powers.

V. SPECIAL DAMAGES

A. BACKGROUND

After dismissing plaintiff’s clai m and concluding that Mr. C’s had proven its slander-oftitle count, the circuit court ordered the parties to proceed t oward establishing Mr. C’s “special damages.” Mr. C’s filed a motion for recompense of “all costs and attorney fees incurred” along with interest in relation to the slander claim. Mr. C’s also r equested costs and sanctions in connection with plaintiff’s continued failure to release its li en in contravention of court orders. Plaintiff contended that Mr. C’s motion was not the proper vehi cle for the special damages request, contending that a damages trial had to be conducted. Plaintiff further contended that it could not be held in contempt because no court order specifical ly required it to release its broker’s lien.

Following an October 2013 show cause hearing, the court ordere d plaintiff to file a lien release. It also scheduled an evidentiary hearing to calculate Mr. C’s special damages. Before the hearing, the parties submitted briefs disputing the legal s cope of the special damages award. Specifically, plaintiff argued th at Mr. C’s could collect only those costs necessary to remove the cloud, a result achieved with the May 29, 2013 summary disposit ion judgment. Therefore, any costs accumulated in the assessment and collection of the damag es award would not qualify. Plaintiff challenged any attorney -fee award to Flagstar. And p laintiff contended that Mr. C’s was not permitted to rely on the slander-of-title statute as it raised a solely common-law claim. Despite having divergent opinions on the legal scope of the dam ages award, plaintiff did not dispute the reasonableness or accuracy of Mr. C’s documents sup porting the various elements that might be incorporated into the award.

The circuit court rejected plaintiff’s challenges and awarded Mr. C’s the full scope of its litigation costs. This included costs for which Mr. C’s indemn ified Flagstar. The special damages award totaled more than $20,000.

B. ANALYSIS

Plaintiff now reiterates its claims that MCL 565.108 does not control, that Mr. C’s damages were limited to the time before the summary disposition judgment cleared the title, and that Mr. C’s was not entitled to recovery of the costs for whic h it indemnified Flagstar. These challenges all lack merit.

Damages are “compensation which the law authorizes for an inju ry inflicted.” Strong v Neidermeier , 230 Mich 117, 122; 202 NW 938 (1925). General damages are th ose that the law-9- implies or that presumably accrue from the alleged wrong. Kratze v Indep Order of Oddfellows

, 442 Mich 136, 148; 500 NW2d 115 (1993). Special damages arise from the events that transpired, not those implied by law, and may be awarded “if sp ecifically pleaded and proved.” Id . at 148-149. Michigan follows t he “American rule,” which proh ibits an award of attorney fees unless a statute, rule, or cont ractual provision expressly prov ides to the contrary. Watkins v Manchester , 220 Mich App 337, 342; 559 NW2d 81 (1996). MCL 565.108 provi des that a person found liable for slander of title may be required to paythe injured party “all costs of such action, including such attorney f ees as the court may allow[.]”

Plaintiff contends that the circuit court erred by awarding co sts and attorney fees because Mr. C’s did not plead the statutory cause of action. Indeed, t he counterclaim did not expressly identify whether it was premised on the statute or common law. However, in its motion for summary disposition, responses to plaintiff’s motions for relie f from judgment and to amend the complaint, motion to strike interrogatories, and the motion for an order to show cause, Mr. C’s alleged that plaintiff’s actions were wrongful and frivolous, r eflected continued violations of court orders, and requested special damages, including costs an d attorney fees. Thus, plaintiff was on notice that Mr. C’s was requesting costs and attorney fe es permitted by statute even absent a direct citation.

Plaintiff also alleged that costs and attorney fees could onlybe awarded for the time period during which the cloud remained on the title, i.e., befo re the summary disposition judgment entered. However, as noted, special damages in a slander-of-title act ion include litigation costs, such as attorney fees, and are not limited to the period before the title cloud is removed. B & B Investment Group , 229 Mich App at 11.

Lastly, plaintiff contends that the circuit court erroneously awarded Mr. C’s recovery for costs and attorney fees remitted to Flagstar because it constit uted a “double dip.” The court did not rule on whether the legal services provided to Mr. C’s and Flagstar were duplicative. However, plaintiff stipulated to the legal cost assessments wit hout citing any potentially duplicative services. The circuitcourt correctly noted that M r. C’s mortgage documents required it to indemnify Flagstar for the costs incurred in this action, bringing those costs into Mr. C’s special damages claim. Plainti ff does not challenge the court’ s interpretation of t hose contractual agreements, thereby precluding relief. See Derderian v Genesys Health Care Sys , 263 Mich App 364, 388; 689 NW2d 145 (2004).

We affirm.

/s/ Elizabeth L. Gleicher /s/ Mark J. Cavanagh /s/ Karen M. Fort Hood