Northland Center Michigan, LLC v. Southfield, City of

Filing 29

OPINION and ORDER Granting In Part And Denying In Part Defendant's Motion For Summary Judgment 23 . Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NORTHLAND CENTER MICHIGAN, LLC,
Plaintiff,
vs.

Civil Action No. 15-CV-13841
HON. BERNARD A. FRIEDMAN

CITY OF SOUTHFIELD,
Defendant.
_____________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendant’s motion for summary judgment
[docket entry 23]. This matter is fully briefed, so the Court, under E.D. Mich. LR 7.1(f)(2), will
dispense with a hearing.
The following facts are summarized from the parties’ briefs; where there is
disagreement, the Court views the facts in the light most favorable to plaintiff.
From December 2008 to September 2014, plaintiff operated the Northland Center
Mall in Southfield, Michigan. Several business leased space in the mall. Water services were
provided by the South Oakland County Water Authority (“SOCWA”), which delivered water via
two main entry points—the north and south mains. SOCWA, after reading its meters, would bill
defendant, who, relying on SOCWA’s meter readings, would in turn bill plaintiff. Plaintiff, after
reading its internal mall meters, would then bill its individual tenants.
Four problems arose under this billing procedure: First, in addition to billing
plaintiff for all mall properties combined, defendant also directly billed two of plaintiff’s
tenants—Wendy’s and CSL Plasma. The water delivered to Wendy’s and CSL Plasma was not

counted twice because defendant agreed to subtract their charges from plaintiff’s bill.
Nevertheless, plaintiff’s alleges its water bill was too high. Second, defendant allegedly operated
an improper “flow-through” on the mall property. That is, defendant did not use its own pipe
network to deliver water to Wendy’s and CSL Plasma—its own customers—but plaintiff’s pipe
network, and specifically the north water main. Third, in 2011, a leak in the structurallyunsound north main caused water to gush directly into the storm sewer for several days. Fourth,
plaintiff alleges that from 2009 to the present, defendant systematically neglected to maintain the
mall’s water system, which resulted in “substantial water losses” for which plaintiff was unjustly
charged. Pl.’s Br. p. 8.
By early 2014, the Northland mall was financially failing. In May 2014, its chief
lender, 21500 Northwestern High Holdings, LLC, filed a complaint in Oakland County Circuit
Court, requesting that a receiver be appointed. The state court did so in September 2014.
In September 2015, the receiver sold the mall property to defendant for $2.4
million. The Purchase Agreement, Section 12, Prorations and Adjustments, stated:
(b) Electricity, gas, and telephone charges based, to the extent
practicable, on final meter readings and final invoices, with Seller
paying those amounts which accrued and/or are attributable to the
period prior to or on the date of Closing. At Closing Purchaser
shall be entitled to a credit against the Purchase Price in an amount
equal to the then outstanding water and sewer charges against the
Real Property, which Purchaser and Seller acknowledge and agree,
for the purposes of this Agreement and this Closing, total
$699,138.83 as of September 28, 2014 and total $151,978.90 from
September 29, 2014 through August 31, 2015. Seller
acknowledges and agrees the credit against the Purchase Price at
Closing shall be in the sum of the above amounts plus the
outstanding water and sewer charges against the Real Property as
of the date of Closing. Purchaser will take title to the Real Property
subject to such outstanding charges.

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On October 8, 2015, the state court entered an order approving and confirming the
sale of the mall property. On October 30, 2015, plaintiff filed the instant complaint, alleging that
Southfield, due to the flow-through, leakage, and negligent repair, systematically overcharged
plaintiff for years. The complaint has three counts: Count I, declaratory judgment that defendant
overcharged plaintiff and, thus, is not entitled to the full credit it received on the sale of the mall
property; Count II, defendant has been unjustly enriched “by virtue of overpayments”; and Count
III, an equitable accounting, which defendant must prepare at its sole expense, that details the
alleged overcharges dating back to January 2009. In February 2017, defendant filed the instant
summary judgment motion.
I.

ANALYSIS
a. Res judicata, collateral estoppel, laches, and equitable estoppel
Defendant argues that this action is barred by res judicata, collateral estoppel,

laches, and equitable estoppel. Plaintiff responds that these doctrines are inapplicable. The
Court agrees. Res judicata does not apply because this cause of action is different from the cause
of action in the state court case. Collateral estoppel does not apply because the overpayment
issue was not previously litigated, nor is it clear that it was essential to the judgment. Laches
does not apply because defendant was not prejudiced by plaintiff’s alleged delay. And equitable
estoppel is inapplicable because there is no statute of limitations challenge here.
Res judicata “bars the reinstitution of the same cause of action by the same parties
in a subsequent suit.” Topps-Toeller, Inc. v Lansing, 209 N.W.2d 843, 847 (Mich. Ct. App.
1973). Here, the original judgment was a state court order confirming the receiver’s sale of the
mall property to defendant, whereas the current action is a suit by plaintiff for monetary damages
because defendant allegedly miscalculated plaintiff’s water bill. These causes of action, while

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related, are not the same, so the doctrine of res judicata does not apply. The Court now turns to
collateral estoppel.
Collateral estoppel “bars the relitigation of issues previously decided when such
issues are raised in a subsequent suit by the same parties based upon a different cause of action.”
Id. The Michigan Court of Appeals recently summarized the doctrine as follows:
Generally, application of collateral estoppel requires (1) that a
question of fact essential to the judgment was actually litigated and
determined by a valid and final judgment, (2) that the same parties
had a full and fair opportunity to litigate the issue, and (3)
mutuality of estoppel.
In the subsequent action, the ultimate issue to be concluded must
be the same as that involved in the first action. The issues must be
identical, and not merely similar. In addition, the common ultimate
issues must have been both actually and necessarily litigated.
To be actually litigated, a question must be put into issue by the
pleadings, submitted to the trier of fact, and determined by the
trier. The parties must have had a full and fair opportunity to
litigate the issues in the first action.
For collateral estoppel to apply, the parties in the second action
must be the same as or privy to the parties in the first action. A
party is one who was directly interested in the subject matter and
had a right to defend or to control the proceedings and to appeal
from the judgment, while a privy is one who, after the judgment,
has an interest in the matter affected by the judgment through one
of the parties, as by inheritance, succession, or purchase.
Rental Props. Owners Ass’n of Kent Cty. v. Kent Cty. Treasurer, 866 N.W.2d 817, 834–35
(Mich. Ct. App. 2014) (internal citations and quotation marks omitted).
According to Restatement Second, Judgments, “an issue is not actually litigated if
. . . it is the subject of a stipulation between the parties.” 47 Am. Jur. 2d Judgments § 494. And
“in a judgment entered by confession, consent, or default, none of the issues is actually
litigated.” Id. State court orders that merely rubber stamp an agreement of the parties “normally

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fail to meet the legal requirements of collateral estoppel.” In re Brazieka, No. 16-48508, 2017
WL 816871, at *8 (Bankr. E.D. Mich. Mar. 1, 2017). Collateral estoppel applies only where the
basis of the prior judgment can be ascertained clearly, definitely, and unequivocally. People v.
Gates, 452 N.W.2d 627, 631 (Mich. Ct. App. 1990).
Defendant’s collateral estoppel argument suffers from several deficiencies. First,
the issue of overpriced water was not actually litigated in the original action. Under Michigan
law, to be actually litigated an issue must be put before a trier of fact. Here, the receiver and
defendant agreed to a sale of the mall property and drafted and signed a corresponding purchase
agreement; this agreement was then finalized by a pro forma state court order. No trier of fact
was involved. Second, defendant has not shown that resolving the water bill issue was essential
to the judgment.1 Of course, the water bill was, to some extent, needed to calculate the final sale
amount. But this does not mean that the state court’s decision to approve the sale depended in
any way on the bill itself, only that the bill was used for the math in the purchase agreement.
Third, the state court’s order was similar to a consent judgment or stipulation,
neither of which is given preclusive effect. Finally, insofar as the state court’s pro forma order
did address the water bill issue, defendant has not shown what its basis was for so holding. For
these reasons, the Court cannot give the state court’s order preclusive effect.
Regarding laches, defendant has not explained how it was prejudiced by
plaintiff’s alleged delay in filing. Without prejudice, defendant’s laches argument fails. See
Knight v. Northpoint Bank, 832 N.W.2d 439, 442 (Mich. Ct. App. 2013). As for equitable
estoppel, defendant has not shown how the doctrine—which requires a plaintiff to show that a
defendant induced it to believe that the statute of limitations would not be enforced—applies in

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Nor, given that the state court order stated that it was not a final judgment, is it clear the state court’s order was a
final judgment. But as stated above, defendant’s collateral estoppel argument fails even assuming this element is
met

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the instant case. Equitable estoppel is an argument properly made by plaintiffs, not defendants.
Moreover, there is not even a statute of limitations issue in this case.
b. Rooker-Feldman
Defendant next argues that this action is barred by the Rooker-Feldman doctrine.
Plaintiff argues that the doctrine is inapplicable because this complaint does not seek to set aside
a state court judgment. The Court agrees that the Rooker-Feldman doctrine is inapplicable here.
The Supreme Court has explained that the Rooker-Feldman doctrine is limited to
cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments. Rooker–Feldman does not otherwise
override or supplant preclusion doctrine or augment the
circumscribed doctrines that allow federal courts to stay or dismiss
proceedings in deference to state-court actions.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “[T]he pertinent
inquiry after Exxon is whether the ‘source of the injury’ upon which plaintiff bases his federal
claim is the state court judgment, not simply whether the injury complained of is ‘inextricably
intertwined’ with the state-court judgment.” Kovacic v. Cuyahoga Cty. Dep’t of Children &
Family Servs., 606 F.3d 301, 309 (6th Cir. 2010).
Defendant argues that if the Court allows this complaint to proceed and a jury
awards plaintiff damages, the Court would effectively be amending the state court order.
Defendant argues the state court implicitly affirmed that plaintiff was not overcharged.
Defendant’s argument ignores Kovacic. The pertinent question is what caused
plaintiff’s injury. A review of the complaint shows that the source of plaintiff’s injury is that
defendant allegedly overcharged plaintiff, not the state court order. Defendant’s argument also
misunderstands the state court order. The order did not comment on the parties’ intentions or

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motives, the merits of the parties’ assumptions, or the validity of defendant’s billing; nor did it
award defendant monetary damages. It merely approved the parties’ sale. Consequently, the
order is not the source of plaintiff’s injury, though it may perhaps be inextricably intertwined
with it.
c. Declaratory Judgment
Defendant next argues that the Court should exercise its discretion to dismiss
Count I, the declaratory judgment count. 28 U.S.C. § 2201 states:
In a case of actual controversy within its jurisdiction, . . . any court
of the United States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as
such.”
And in AmSouth Bank v. Dale, 386 F.3d 763, 785 (6th Cir. 2004), the Sixth
Circuit
adopted a five-factor test to determine when a district court should
exercise jurisdiction over a declaratory judgment:
(1) whether the judgment would settle the
controversy;
(2) whether the declaratory judgment action would
serve a useful purpose in clarifying the legal
relations at issue;
(3) whether the declaratory remedy is being used
merely for the purpose of “procedural fencing” or
“to provide an arena for a race for res judicata”;
(4) whether the use of a declaratory action would
increase the friction between our federal and state
courts and improperly encroach on state
jurisdiction; and

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(5) whether there is an alternative remedy that is
better or more effective.
Defendant argues that these five factors weigh in favor of dismissal, while
plaintiff argues that they militate against dismissal. The Court finds that only factor (1) weighs
against dismissal; factors (2), (4), and (5) weigh in favor of dismissal.
Factor (1): The controversy here is whether defendant overcharged plaintiff.
Undoubtedly, a declaration from the Court that plaintiff has a right to reimbursement would
settle this controversy.
Factor (2): There is no issue regarding legal relations here, so declaratory relief
would clarify nothing.
Factor (3): This factor is neutral.
Factor (4): This factor considers whether a declaration by this Court of plaintiff’s
rights would unduly interfere with Michigan court proceedings. The state court order approved a
purchase agreement that precisely enumerated the existing water bill. And while the order does
not specifically address whether plaintiff was overcharged, as the Court stated above, the state
court proceeding seems inextricably intertwined with the present case. This intertwining weighs
heavily against the Court exercising its discretion to hear a declaratory relief count.
The Court believes that the state court system, where the original receivership
action began, is a better forum for this claim. Plaintiff has not adequately explained why it
cannot pursue this relief in that state court.

Factor (5): The Court believes that the best remedy for this controversy is
monetary damages, not declaratory relief. It appears that this case presents a single, clear-cut
question: did defendant overcharge plaintiff? Consequently, the normal remedy seems best.

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Because three out of the five factors weigh in favor of dismissal and only one
factor weighs against, the Court will exercise its discretion to dismiss Count I.

d. Summary Judgment
Defendant next argues that there is no genuine issue of material fact as to whether
it billed plaintiff for water plaintiff did not consume. Plaintiff responds that several affidavits
and depositions show a genuine issue as to whether it was overcharged.
Federal Rule of Civil Procedure 56(a) states that any party moving for summary
judgment must identify “each claim or defense . . . on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” A party must
support its assertions by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). “[T]he mere existence of a scintilla of
evidence in support of the [nonmoving party’s] position will be insufficient [to defeat a motion

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for summary judgment]; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Here, there are genuine issues of material fact. For example, Larry Sirls testified
that defendant either ignored or did not recognize its flow-through system until 2009; he also
testified that this flow-through system partially consisted of old, structurally unsound pipes.
Practically, then, a jury could find that for some period of time defendant delivered water to its
customers through plaintiff’s meter via leaky pipes, unduly increasing plaintiff’s bill. Defendant
argues that every piece of pipe downstream from the north meter belonged to and was solely the
responsibility of plaintiff. While the Court recognizes the strength of this argument, it is notes
that defendant utilized these same pipes to deliver water to Wendy’s and CSL Plasma. At the
very least, this presents a genuine question of whether defendant was unjustly enriched.
Defendant offers several explanations for why the parties’ meter readings differ,
including the mall’s deteriorating infrastructure and meters, several system leaks from 2009 to
2014, and sporadic meter usage. In response, Brent Reetz testified that the mall’s internal meters
were working, so disparities in the north main meter and internal meter readings cannot be
simply discarded. The Court does not ignore defendant’s argument, but they present genuine
issues of material fact as to whether plaintiff was overcharged.
Accordingly,

IT IS ORDERED that defendant’s motion for summary judgment is granted as to
the declaratory judgment claim and denied as to the rest.

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s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: April 28, 2017
Detroit, Michigan

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on April 28, 2017.
s/Johnetta M. Curry-Williams
Acting in the Absence of Carol Mullins
Case Manager

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