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### STATE OF MICHIGAN

COURT OF APPEALS

SYSTEMATIC RECYCLING, LLC,

Plaintiff-Appellant, UNPUBLISHED October 30, 2014

v No. 313916 Wayne Circuit Court
FIFTH THIRD BANK and AMICUS MANAGEMENT, INC., LC No. 12-007442-CZ

Defendants-Appellees.

FIFTH THIRD BANK,

Plaintiff-Appellee,

and

AMICUS MANAGEMENT, INC., Receiver,

Appellee,

v No. 314062 Wayne Circuit Court ALLIANCE LEASING & RENTAL, LLC, JAMES ROSENDALL, a/k/a JAMES ROSENDALL, JR., KENT COMMERCE BANK, and COMERICA BANK, LC No. 09-005122-CH

Defendants,

and

SYSTEMATIC RECYCLING, LLC,

Intervenor-Appellant,

and

DAVID LANCIAULT,-2- Intervenor.

Before: J ANSEN , P.J., and S AAD and D ONOFRIO , JJ.

P ER C URIAM

.
In Docket No. 313916, plaintiff Systematic Recycling, LLC (“Systematic”) appeals by right the circuit court’s order granting summary disposition in favor of defendants Fifth Third Bank (“Fifth Third”) and Amicus Management, Inc. (“Amicus”). In Docket No. 314062, Systematic appeals as an intervening appell ant the circuit court’s order terminating the receivership and closing the case. We affirm.

I. FACTS AND PROCEDURAL HISTORY

This appeal arises from a defaulted loan agreement that resulted in a receivership over real property and ultimately the eviction of System atic from that proper ty. On December 7, 2007, Fifth Third loaned Alliance Leasing & Rental, LLC (“Alliance”) $2,520,300, evidenced by a promissory note made payable to Fifth Third. The promissory note was secured, in part, by a mortgage that Alliance had granted to Fi fth Third on December 27, 2005, on real property located at 9125 West Jefferson, Detroit, Mich igan (“the property”) . The mortgage was subsequently recorded on January 20, 2006, with the Wayne County Register of Deeds. In May 2006, Systematic and James Rosendall (“Rosendall”), the owner and sole member of Alliance, allegedly entered into a five-year lease, the te rm of which was to expire on December 31, 2011. Systematic allegedly paid the entire rent, $262,203, between 2006 and 2008, and the lease included a right of first refusal. In 2005, System atic applied for a conditional use permit in order to conduct a composting operation on the property. On April 26, 2006, Systematic was granted a conditional land use for the property, effective May 10, 2006. The conditional land use permit was conditioned upon entering into a “Host Community Agreement” with the city of Detroit’s Environmental Affairs Department.

In January 2009, Rosendall, pl eaded guilty to federal brib ery conspiracy charges, admitting to bribing Detroit officials in order to win a sludge recycling contract. In February 2009, Alliance defaulted on the loan, and on March 4, 2009, Fifth Third commenced Wayne Circuit Case No. 09-005122-CH (“the 2009 case”), against Alliance, Rosendall, Kent Commerce Bank, and Comerica Bank seeking a money ju dgment in the amount of $2,583,604.94 against Rosendall and Alliance, the appointment of a receiver, and judicial foreclosure. Pursuant to the terms of the mortgage agreement, Alliance agreed and consented to the appointment of a receiver in the event of a default. On May 8, 2009, the circuit court entered an order granting Fifth Third’s request for the appointment of a receiver , and appointed Amicus, by its President Daniel Yeomans, as receiver of the property. On September 28, 2009, as a result of Rosendall’s and Alliance’s failure to appear or otherwise answer Fifth Third’s complaint, the circuit court entered a default judgment against Rosendall and Allianc e and entered a money judgment in the amount of $2,612,575.88 in favor of Fifth Third.-3- On September 20, 2010, Amicus and David La nciault (“Lanciault”) entered into a purchase agreement for the sale of the propert y for $1,050,000, subject to the court’s approval. The purchase agreement provided that Amicus would deliver possession of the property to Lanciault free from all claims of tenants, a nd any existing tenant would vacate the property before closing. Systematic failed to vacate the premises despite numerous letters sent by Amicus informing it that Amicus intended to sell the property. Amicus thereafter filed a motion to evict Systematic, later joined by Fifth Third, and Systematic was eventually granted the right to intervene. Systematic claimed that it had a valid five-year lease that lasted until December 2011, and alternatively, that the oral l ease should be removed from the st atute of frauds due to partial performance. After a hearing on the motion to evict, on December 16, 2010, the circuit court entered an order, which provided:

IT IS HEREBY ORDERED that . . . th e sale of the Receivership property is ordered pursuant and subject to the te rms of the Purchase Agreement executed between Receiver and David Lanciault. The closing for the sale of the Receivership property shall occur on or before March 29, 2011, subject to David Lanciault’s rights under the Purchase Agreement.

After the order was entered, th e circuit court held several he arings on the motion to evict, including an evidentiary hearing to determine the validity of the alleged l ease. The circuit court determined that there was not sufficient evidence of a written lease, and the statute of frauds
barred enforcement of the lease. The circuit court further held that partial performance did not remove the alleged lease from the statute of fra uds because the lease was for a period longer than one year. On May 11, 2011, the court entered an order granting the motion to evict Systematic from the property. On May 16, 2011, Systematic filed a motion for recons ideration. Meanwhile, the court approved the sale of the property on July 8, 2011, and the property was sold on August 12, 2011. The court denied Systematic’s moti on for reconsideration on August 16, 2011, and a corrected order was entered on November 9, 2011. Sy stematic filed an app lication for leave to appeal the order of eviction in this Court on November 30, 2011. On December 21, 2011, while the application for leave to appeal was pending, Systematic sought leave to sue Amicus in the
circuit court.

Before the motion for leave to sue was d ecided, Systematic commenced Wayne Circuit Case No. 12-007442-CZ (“the 2012 case”), agains t Fifth Third and Amicus. Systematic’s complaint in the 2012 case set forth claims for foreclosure of the cons truction lien (Count I), breach of contract (Count II), unj ust enrichment (Count III), and account stated (Count IV). On July 20, 2012, in lieu of answerin g the complaint, Amicus filed a motion to dismiss and for summary disposition, asserting that the circuit co urt should dismiss the claims against it because Systematic had failed to obtain leave of the court be fore suing it as the rece iver of the property. On July 30, 2012, in lieu of filing an answer, Fi fth Third filed a motion for summary disposition as well, arguing that it was entitled to judgm ent as a matter of law because Systematic’s allegations were factually and legally insufficient.

On August 16, 2012, this Court entered an or der denying Systematic’s application for leave to appeal the circuit court’s order of eviction in the 2009 case. Fifth Third Bank v Alliance Leasing & Rental LLC , unpublished order of the Court of Appeals, entered August 16, 2012 (Docket No. 307369). On November 8, 2012, the circ uit court held a hear ing on the motions for-4- summary disposition in the 2012 case, and also c onsidered Systematic’s motion for leave to sue
the receiver in the 2009 case. Th e circuit court denied the motion for leave to sue Amicus in the 2009 case, and granted summary disposition in favor of Fifth Third and Amicus in the 2012 case.
The circuit court entere d orders to this effect on Nove mber 27, 2012, and Systematic now appeals those orders in th is consolidated appeal.

II. DOCKET NO. 314062—JURISDICTION

Fifth Third and Amicus contend that this C ourt lacks jurisdiction ove r an appeal of right from the order of November 27, 2012, entered in the 2009 case because the order was not a final order as defined by MCR 7.202(6) and Systematic wa s not aggrieved by the or der. We disagree.

Questions of law, such as statutory interp retation, court rule construction, and whether this Court has jurisdiction, are reviewed de novo on appeal. Chen v Wayne State Univ , 284 Mich App 172, 191; 771 NW2d 820 (2009). Actions taken after a money judgment is entered are considered proceedings supplementary to the judgment. See MCL 600.6104. With respect to proceedings supplementary to a judgment, MCR 2.621(H) provides that “[a] final order entered in a supplementary proceeding may be appeal ed in the usual manner.” This Court has jurisdiction over an appeal of right filed by an aggrieved party from “[a] final judgment or final
order of the circuit court . . . as defined in MCR 7.202(6). . . .” MCR 7.203(A)(1). Thus, in determining whether this Court has jurisdiction over an appeal of right in a supplementary proceeding, the order must be a final order of the circuit court, as defined by MCR 7.202(6), and the party must be aggrieved by that order.

Pursuant to MCR 7.202(6)(a)( i ), a final order in a civil case is “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of a ll the parties, including
such an order entered after reversal of an earlier final judgment or order. ” In actions involving multiples claims or parties, an order adjudicati ng fewer than all the claims, or the rights and liabilities of fewer than all the parties, does not terminate the action with respect to any of the claims or parties, and such an order is not app ealable by right before en try of final judgment. MCR 2.604(A). However, in receivership and si milar actions, the court has the discretion to
direct that an order entered befo re adjudication of all claims and rights and liabilities of all the parties constitutes a final order, but only on an express determination that there is no just reason for delay. MCR 2.604(B).

In this case, the circuit court rejected Sy stematic’s alleged leasehold interest in the property, and entered an orde r on May 11, 2011, granting the motion to evict Systematic. Following this order, Systematic filed a moti on for reconsideration on May 16, 2011, and before the motion was decided, the court approved th e sale of the property on July 8, 2011. The property was sold on August 12, 2011. On Nove mber 9, 2011, the circui t court entered a corrected order denying Systematic’s moti on for reconsideration. On December 21, 2011, Systematic filed a motion for leave to sue Amicus , as the receiver. This motion was not heard until November 8, 2012, after which time the c ourt entered an order on November 27, 2012, concluding the receivership and closing the case.

In accordance with the language of MCR 7.202(6)(a)( i ), the order of November 27, 2012, was the final order. The language of MCR 7.202(6)(a)( i ) specifically provides that a final order-5- is the “first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties. ” Although the order of May 1 1, 2011, adjudicated the possessory rights of Systematic, the receiv ership had not concluded and th e rights and liabilities of all parties were not fully resolved. Systematic was still attempting to make a claim for damages,
even after the court found that a valid lease did not exist. Moreover, th e circuit court did not indicate that any of its previous orders should be treated as a final or der. See MCR 6.204(B). Given that an order adjudicating fe wer than all the claims of all the parties does not terminate the action with respect to any of the claims or partie s, and such an order is not appealable by right before entry of the final order, we conclude that the order of November 27, 2012, is the final order under MCR 7.202(6)(a)( i ).

We also conclude that Systematic was aggrieved by the order of November 27, 2012. See MCR 7.203(A). “To be aggrieve d, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.” In re Critchell’s Estate , 361 Mich 432, 448; 105 NW2d 417 (1960). On December 16, 2010, the court entere d an order, which provided:

IT IS HEREBY ORDERED that . . . th e sale of the Receivership property is ordered pursuant and subject to the te rms of the Purchase Agreement executed between Receiver and David Lanciault. The closing for the sale of the Receivership property shall occur on or before March 29, 2011, subject to David Lanciault’s rights under the Purchase Agreement.

All the parties’ attorneys, including Systematic’s attorney, approved the or der “as to form [and] substance.” The purchase agreem ent provided, in relevant part:

Seller shall deliver possession of the Pr operty to Buyer, together with all keys to the Property, free from all claims of tenants. Any existing tenant will vacate the property prior to closing.

Despite Fifth Third’s and Amicus’s contention that this order precluded Systematic from being an aggrieved party because it consented to th e eviction and sale of the property, Systematic continued to have a pecuni ary interest after this order was ente red. Moreover, “[t]here is nothing in the record to suggest that approval of the di sputed order ‘as to form and content’ signaled the [parties’] agreement with the trial judge’s ruling.” Ahrenberg Mech Contracting, Inc v Howlett

, 451 Mich 74, 78; 545 NW2d 4 (1996). In fact, the subsequent proceedings suggest the opposite.
The circuit court did not resolve the motion to evic t Systematic until five months after the order was entered, after holding severa l hearings, including an evidentiary hearing on the issue of the validity of the alleged lease. The circuit court also entered an order expressl y resolving the eviction issue, after which time Systematic tim ely filed a motion for reconsideration and an application for leave to appeal the order. Th e record does not support the proposition that Systematic stipulated or consented to being ev icted. In addition, the order of November 27, 2012, is the only order entered after the court a ddressed the motion for leave to sue Amicus. Systematic continued to have some interest of a pecuniary nature in th e outcome of the case up until that time, and was therefore aggrieved by the final order. See In re Critchell’s Estate , 361
Mich at 448.-6- III. DOCKET NO. 314062—VALIDITY OF THE LEASE

Systematic contends that the circuit cour t erred by granting the motion to evict because the five-year lease with Alliance was valid. We disagree.

“This Court reviews de novo questions of law su ch as whether the statute of frauds bars enforcement of a purported contract.” Zander v Ogihara Corp , 213 Mich App 438, 441; 540 NW2d 702 (1995). As discussed earlier, this Co urt also reviews de novo questions of law such as statutory interpretation orcourt rule construction. Chen , 284 Mich App at 191.

Fifth Third and Amicus assert that an appeal of the motion to evict Systematic from the property is moot. An issue becomes moot wher e a subsequent event re nders it impossible for this Court to fashion a remedy. In re Contempt of Dudzinski , 257 Mich App 96, 112; 667 NW2d 68 (2003). Because Systematic admitted that any alleged lease expired on December 31, 2011, any claim to a possessory interest in the property is now moot, a nd this Court will not address any such contention. See B P 7 v Bureau of State Lottery , 231 Mich App 356, 359; 586 NW2d 117 (1998). However, with respect to damages suffe red as a result of a deprivation of a property interest, this issue is not moot. Although System atic’s alleged lease woul d have already ended, it was ordered to vacate the propert y before the purported lease wa s to expire. Consequently, a remedy can still be fashioned with respect to any claim for damages flowing from the alleged error in determining that th e purported lease was invalid.

Even assuming the alleged lease was valid, Am icus had the authority to remove tenants and terminate any existing contra cts affecting the property pur suant to the order appointing
Amicus as the receiver of the property. Accordingly, an y valid lease Systematic had with Alliance could be terminated and Systematic c ould be properly removed from the property. Therefore, it did not matter whether the lease was valid, and any purported damages for terminating this lease early were not attributab le to Fifth Third or Amicus, but instead, to Alliance. As discussed in further detail later, any alleged damages due to expenses incurred and improvements made to the property were not done at the request of Fifth Third, and were inferior to Fifth Third’s mortgage interest. Moreover, Amicus was the court appointed receiver and it must have acted in bad faith in order for Systematic to be entitled to relief because Amicus’s possession of the property was tantamount to possession by the court itself. Ypsilanti Fire Marshal v Kircher (On Reconsideration) , 273 Mich App 496, 528; 730 NW2d 481 (2007); In re Motion for Leave to Sue Receiver of Venus Plaza Shopping Ctr , 228 Mich App 357, 361; 579 NW2d 99 (1998).

In any event, the circuit court properly he ld that the alleged l ease was invalid and not enforceable. MCL 566.108 provides that “[e]very co ntract for the leasing for a longer period than 1 year . . . shall be void, unless the contra ct, or some note or memorandum thereof be in writing, and signed by the party by whom the lease . . . is to be made. . . .” The statute of frauds does not require the entir e agreement be in writing, but inst ead, only requires that “a note or memorandum of the agreement” is in writing a nd signed, examples of which include a letter, account statement, draft or note, or check. MCL 566.132(1); Kelly-Stehney & Assoc, Inc v MacDonald’s Indus Prod, Inc , 265 Mich App 105, 111-113; 693 NW2d 394 (2005). The writing necessary to satisfy the stat ute of frauds may consist of a combination of writings. Goslin v
Goslin , 369 Mich 372, 375-376; 120 NW2d 242 (1963). However, the writing being must also-7- be certain and definite with regard to the part ies, property, consideratio n, premises, and time of performance. McFadden v Imus , 192 Mich App 629, 633; 481 NW2d 812 (1992).

In this case, Systematic offered as a memo randum of the agreement the application for a conditional land use grant, the co mposting facility regi stration form, and checks from Systematic made payable to Rosendall and Alliance. Rose ndall signed both the app lication and registration forms, and on question 12 of the application, System atic indicated that it “w ill rent or lease the property,” and “have an option to purchase the property.” However, Systematic did not attach a copy of the lease agreement, as requested by the application, and neither of these forms provided the amount of rent or length of th e lease. Additionally, with respect to the checks, the last check made payable to Alliance was dated January 22, 2008, and the last check made payable to Rosendall was dated October 30, 2008. Moreover, onl y one of these checks had the word “rent” written on the memo line. Even assuming these checks did evidence a l ease agreement between Alliance and Systematic, no payments were made after October 30, 2008, and nothing indicated that the lease lasted until December 2011, as alle ged by Systematic. The writings submitted by Systematic failed to prove the existence of a written lease ending in December 2011.

Systematic also contends that the circuit court should have considered the “Memorandum of Lease,” which it attached to its motion for reconsiderati on. MCR 2.119(F)(3) provides that “[t]he moving party must demonstrate palpable error by which the court and the parties have been misled and show that a different disposition of the motion must resultfrom correction of the error.” This writing provided the essential terms of the lease; however, it was signed five days after the order granting the motion to evict was entered, and pursuant to the terms of the order appointing the receiver, Rosendall signed this memorandum at a time wh en he could no longer contractually bind the property. It was improper for Systematic to present this new evidence as part of its motion for reconsidera tion. See MCR 2.119(F)(3); see also Maiden v Rozwood , 461 Mich 109, 126 n 9; 597 NW2d 817 (1999).

Systematic also contends that, even if the statute of frauds bars the enforcement of the alleged lease, part performance of the lease remove d the lease from the statute of frauds. Despite this contention, the doctrine of part performance does not operate to remove a contract from the statute of frauds if it may not be performed within a year. Dumas v Auto Club Ins Ass’n , 437 Mich 521, 541; 473 NW2d 652 (1991). Because the al leged lease was for a term of five years and therefore could not be perfor med within one year, Systematic’s claim fails. The circuit court did not err by granting the motion to evict Systematic from the property.

IV. DOCKET NO. 314062—MOTION FOR LEAVE TO SUE THE RECEIVER

Systematic next argues that the circuit court erred by denying its request for leave to file suit against Amicus . We disagree.

The grant or denial of leave to sue a court-appointed receiver is reviewed for an abuse of
discretion. Venus Plaza Shopping Ctr , 228 Mich App at 359.

Under Michigan law, leave of court must be obtained before a party brings a lawsuit against a court-appointed receiver. Venus Plaza Shopping Ctr , 228 Mich App at 359; see also-8- Citizens’ Commercial & Sav Bank v Bay Circuit Judge , 110 Mich 633, 634; 68 NW 649 (1896). In addition, the order appoi nting the receiver provid ed in relevant part:

10.1. No person or entity shall file su it against the Receiver, or take other action against the Receiver, without an order of this Court permitting a suit or action provided, however, that no prior Court order is required to file a motion in this action to enforce the provisions of this Order or any other order of this Court
in this action.

10.2. Except as otherwise providedby law, the Receiver and its employees, agents, and attorneys shall ha ve no personal liability in connection with any liabilities, obligations, liens, including those related to environmental conditions and issues, or amounts owed to any of Defendants’ creditors because
of its duties as Receiver.

10.3. The Receiver and its employees, agents and attorneys shall have no personal liability and they shall have no claim asserted against them relating to the Receiver’s duties under this Order, except for claims due to their gross negligence, gross or willful misconduct, ma licious acts and /or material failure to comply with this Court’s orders.

In order for a party to sue a rece iver, the receiver must have acte d with “an element of bad faith” during the receivership, a nd errors in busin ess judgment are not actionable. Venus Plaza Shopping Ctr , 228 Mich App at 361.

The circuit court did not a buse its discretion by denying Syst ematic’s motion for leave to sue Amicus because Systematic’s assertions of bad faith were unsupported by the evidence. Any claim of bad faith deriving from the alleged leas e is without merit because, as noted previously, the circuit court properly determined that a valid lease did not exist. Moreover, nothing in the record supports any allegation that Amicus demanded or ordered Systematic to incur any expenses relating to the property, or to make any of the purported improvements. The court fully approved Amicus’s sale of the property, and Syst ematic therefore cannot establish that Amicus
acted in bad faith when it offere d the property for sale. In addi tion, Systematic’s claims that Amicus acted in bad faith by conspiring with city of Detroit officials to revoke its conditional land use permit, and tortuously interfered with its prospective contractual obligations, are equally unsupported by the evidence. The circuit court entered a tempor ary restraining order on April 20, 2011, prohibiting Systematic from dumping or accumulating any additional compost at the property due to nuisance concerns and the expiration of the Host Community Agreement. Any allegation of conspiracy with the city is meritless, a nd any alleged attempt to tortuously interfere
with contracts is undocumented. The circui t court did not abuse its discretion by denying Systematic’s motion for leave to sue the receiver.

V. DOCKET NO. 313916—SUMMARY DISPOSITION

Systematic argues that the circuit court er red by granting summary di sposition in favor of Amicus and Fifth Third in the 2012 case. We disagree.-9- A. STANDARD OF REVIEW

We review de novo the trial court’s d ecision on a motion for summary disposition.
Johnson v Recca , 492 Mich 169, 173; 821 NW2d 520 (2012). In reviewing a motion under MCR 2.116(C)(5), regarding whether a party lacks the capacity to su e, this Court considers the pleadings, depositions, admissions, affidavits, and other documentary evidence submitted by the parties. McHone v Sosnowski , 239 Mich App 674, 676; 609 NW2d 844 (2000). A motion for summary disposition under MCR 2.116(C)(7) tests, among other things, whether the claim is barred because of immunity granted by law; the court must consider al l documentary evidence submitted by the parties. Miller ex rel Miller v Lord , 262 Mich App 640, 643; 686 NW2d 800 (2004). A motion under MCR 2.116(C)(8) may not be supported with documentary evidence and tests the legal sufficiency of the claim as pleaded; all factual allegations and reasonable inferences supporting the cl aim are taken as true. McHone , 239 Mich App at 676. A motion under MCR 2.116(C)(8) should be grante d “only when the claim is so clearly unenforceable as a matter of law that no factual development coul d possibly justify a right of recovery.” Kuhn v Secretary of State , 228 Mich App 319, 324; 579 NW2d 10 1 (1998). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficien cy of the complaint. Joseph v
Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2 012). Under MCR 2.116(C)(10), we consider the affidavits, plead ings, admissions, depositions, a nd other documentary evidence submitted by the parties in the light most favorable to the nonmoving party. Greene v AP Prod,
Ltd , 475 Mich 502, 507; 717 NW2d 855 (2006). A motion based on MCR 2.116(C)(10) is appropriately granted “if there is no genuine issue regarding a ny material fact and the moving party is entitled to judgment as a matter of law.” Id. A genuine issue of material fact exists when the record, giving the benefit of reas onable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ. Debano-Griffin v Lake Co , 493 Mich 167, 175; 828 NW2d 634 (2013). We review de novo the circuit court’s conclu sions of law and equitable
decisions. Sweet Air Inv, Inc v Kenney , 275 Mich App 492, 496; 739 NW2d 656 (2007).

B. AMICUS’S MOTION FOR SUMMARY DISPOSITION

Because Systematic failed to obtain leave of the court before bringing suit against Amicus in the 2012 case, and because the circui t court found no evidence of bad faith warranting leave to sue Amicus in the 2009 case, the circu it court properly granted summary disposition in favor of Amicus under MCR 2.116(C)(5). See Venus Plaza Shopping Ctr , 228 Mich App at 360-
361.

C. FIFTH THIRD’S MOTION FOR SUMMARY DISPOSITION

Systematic first argues that because Fifth Th ird sought and obtained the appointment of a receiver, as well as a default judgment without proper notice to Alliance, Alliance’s due process rights were violated. But System atic provides no legal authority to support its assertion that it has standing to challenge a violation of Alliance’s due process rights; therefore, this contention is
waived. Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd , 275 Mich App 256, 265; 739 NW2d 121 (2007). In any event, we note that Alliance was served with the summons and complaint on April 16, 2009, the motion to appoint the receiver on April 28, 2009, and the amended application for entry of default, defa ult judgment, notice of default, and proof of-10- service on May 29, 2009. In other words, Allian ce received proper notice of the appointment of the receiver and default judgment, and any asse rtion to the contrary is without merit.

Systematic next claims that it should ha ve received notice of the appointment of the receiver and default judgment proceedings because it was oper ating its business on the property at the time. Once again, Systematic fails to provide any legal authority to support its position that a tenant must be notified of the appointme nt of a receiver over th e property and a default judgment entered against the owner. This contention is also waived. Id . At any rate, although Systematic claims it was a tenant on the prope rty, it was not a party to the mortgage, and the contention that Systematic should have received notice does not appear to be re levant to the instant appeal. Moreover, Syst ematic was allowed to interven e in the 2009 case and assert its position with respect to whether a valid lease existed between Systematic and Alliance. Consequently, Systematic was provided an adequa te opportunity to be heard. We perceive no error with respect to this issue.

Systematic also argues that Fifth Third did not attempt to foreclos e on the property, as required by the order appointing the receiver, but instead consented to Amicus’s sale of the property, which deprived Alliance and Systematic of the ability to redeem or purchase the property. Systematic does not only fail to rationa lize the basis for its claim of error, but it does not provide any legal authority in support of its position. See Bronson Methodist Hosp v Mich Assigned Claims Facility , 298 Mich App 192, 199; 826 NW2d 197 (2012). Notwithstanding the fact that this issue is waived, we note that Fifth Third obtained a court or der allowing it to sell the property and subsequently ob tained a court order approving the sale of the property. Furthermore, Systematic did not have an owners hip interest in the prope rty, and thus would not have been entitled to redeem or purchase the property upon foreclosure. See MCL 600.3240.

Systematic further contends that its expens es in maintaining the property had priority over Fifth Third’s mortgage interest. With resp ect to the priority of construction liens over mortgages, MCL 570.1119 provides in pertinent part:

(3) A construction lien arising under th is act shall take priority over all other interests, liens, or encumbrances wh ich may attach to th e building, structure, or improvement, or upon the real propert y on which the building, structure, or improvement is erected when the other interests, liens, or encumbrances are recorded subsequent to the fi rst actual physical improvement.

(4) A mortgage, lien, encumbrance, or other interest recorded before the first actual physical improvement to real property shall have priority over a
construction lien aris ing under this act.

Under MCL 570.1119(3) and (4), an individual with a mortgage interest recorded before the first actual physical improvement has priority over an individual with a c onstruction lien arising
under the Construction Lien Act. Jeddo Drywall, Inc v Cambridge Inv Group, Inc , 293 Mich App 446, 458; 810 NW2d 633 (2011). Even accepting the allegations in Systematic’s complaint as true, Fifth Third is entitled to judgment as a matter of la w with respect to Count I of Systematic’s complaint. Systematic alleged that it first supplied labor and materials in May 2006, and the claim of lien attached thereto provi ded that Systematic first provided labor or-11- materials for an improvement to the property on July 3, 2006. Despite the discrepancy in these dates, it is beyond dispute that Fifth Third recorded its mortga ge on January 20, 2006. Hence, Fifth Third’s mortgage lien took priority over a ny construction lien because it was recorded before the first actual improvement.

Systematic also asserts that it stepped into the shoes of Amicus and that its construction lien is entitled to first priority with respect to the proceeds of the sale of the property. In support of its position, Systematic cites Fisk v Fisk , 333 Mich 513; 53 NW2d (1952), Bailey v Bailey

, 262 Mich 215; 247 NW 160 (1933), and Holmes v Holmes , 265 Mich 16; 251 NW 360 (1933), none of which supports the assertion that a thir d party may step into the shoes of a courtappointed receiver and take prior ity over a mortgagee with first pr iority. Moreover, Systematic did not present any evidence that Amicus a bdicated its receivership responsibilities to Systematic. This argument is wi thout factual or legal support.

We also reject Systematic’s assertion that it stated a valid claim for unjust enrichment against Fifth Third because Fifth Third was bene fited from its efforts to maintain, repair, preserve, and protect the property. Unjust enrichment is defined as: “ ‘(1) receipt of a benefit by the defendant from the plaintiff and (2) an ine quity resulting to the plaintiff because of the
retention of the benefit by the defendant.’ ” Keywell & Rosenfeld v Bithell , 254 Mich App 300, 327; 657 NW2d 759 (2002), quoting Barber v SMH (US), Inc , 202 Mich App 366, 375; 509 NW2d 791 (1993). When unjust enri chment exists, “the law opera tes to imply a contract in order to prevent it.” Sweet Air Inv, Inc , 275 Mich App at 504. However, “a contract will be implied only if there is no express contr act covering the same subject matter.” Keywell & Rosenfeld , 254 Mich at 328. A lthough Systematic argu es that it conferre d a benefit on Fifth Third by maintaining, repairing, pr eserving, and protecting the propert y, Systematic neglects the fact that it possessed the propert y without having an enforceabl e lease and without paying rent for over two years after the receivership was first instituted. Moreover, Systematic benefited from the expenditures by carrying on its opera tions at the property th roughout the receivership, and some of these expenses were incurred be fore the receivership was initiated. Although Systematic may have conferred a benefit on Fi fth Third by paying expenses while occupying the property and making improvements thereon, this cer tainly did not result in an inequity. Keywell & Rosenfeld , 254 Mich App at 327.

Nor did Systematic state a valid claim of acc ount stated. An action for an account stated is based on “an agreement, between parties who ha ve had previous trans actions of a monetary character, that all the items of the acc ounts representing such transact ions are true and that the balance struck is correct, together with a promis e, express or implied, for the payment of such
balance.” Fisher Sand & Gravel Co v Neal A Sweebe, Inc , 494 Mich 543, 554; 837 NW2d 244 (2013). No evidence was presented that an agreement was made between Fifth Third and Systematic to pay a balance, and the assertion th at Amicus made a promise to pay Systematic a balance on behalf of Fifth Third is without legal merit. Amicus, as the court-appointed receiver, was not an agent of Fifth Thir d, but was appointed to protect and benefit both parties and to
serve as an officer of the court. Ypsilanti Fire Marshal , 273 Mich App at 528. The circuit court properly dismissed the account-stated claim.

Lastly, Systematic asserts that the circuit court erred by applying th e doctrine of collateral estoppel given that it had not pr eviously ruled on Systematic’s claims for failure to pay the-12- construction lien, breach of contract, unjust en richment, and accounted stated. “Collateral estoppel bars relitigation of an issue in a new action arising between the same parties or their privies when the earlier proceedi ng resulted in a vali d final judgment and the issue in question was actually and necessarily determined in that prior proceeding.” In re Consumers Energy Application For Rate Increase , 291 Mich App 106, 122; 804 NW 2d 574 (2010). Fifth Third argued below that collateral est oppel applied to Systematic’s claims that it was not provided notice and was induced into making expenditures and improvements. While it appears from the
record that the circuit court mi ght have incorrectly applied the doctrine of collateral estoppel to certain of Systematic’s claims, these claims we re legally unenforceable for wholly independent reasons, and were therefore properl y dismissed. It is axiomatic that this Court will not reverse
when the circuit court has reached the right result, even if it has did so for the wrong reason. Taylor v Laban , 241 Mich App 449, 458; 616 NW2d 229 (2000).

Affirmed. Appellees Fifth Third and Amic us, having prevailed on appeal, may tax their costs pursuant to MCR 7.219.

/s/ Kathleen Jansen /s/ Henry William Saad
/s/ Pat M. Donofrio