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REAL ESTATE 55: Defendant allegedly removed notice of tax foreclosure.

This action for breach of contract, negligence, and abuse of process arises from the construction of a home.

Failure to Pay Property Taxes

During the construction, plaintiff failed to pay the property taxes, and the county foreclosed on the property.

Plaintiff filed suit against defendants and the parties responsible for construction of the home, asserting that defendants’ removal of the notice of foreclosure posted on the home prevented plaintiff from learning of the foreclosure and paying the taxes.

Suit against Contractor

Unable to obtain relief from the tax foreclosure, plaintiff filed suit against defendants.

Plaintiff alleged that it entered into a residential home construction agreement on March 3, 2011, that provided defendants were to construct a home on the site with a completion date of June 3, 2012. Further, it was asserted that a notice of show cause and tax foreclosure was affixed to the partially completed home on June 18, 2013. However, defendant allegedly removed the notice and failed to notify plaintiff’s representatives of the foreclosure.

It claimed that if defendants had completed the project on time, there would have been a resident in the home to receive the notice. Plaintiff also asserted that defendants knew that plaintiff would lose the property, yet they filed false affidavits for the county to facilitate the foreclosure proceeding.

Defendants filed an answer, counterclaim, and notice of nonparties at fault. Defendants alleged that plaintiff failed to allow them to complete the work and failed to pay for the work, resulting in a loss of approximately $80,000.

Trial Court

Plaintiff first alleges that the trial court failed to acknowledge that defendants did not timely complete the project, and but for this failure to complete, the home would have been occupied at the time the foreclosure notice was posted.

The plain, unambiguous language of the home construction contract provided that the duty to indemnify arose from the contractor’s performance of the contract to build a house. There is no indication that the contractor agreed to become plaintiff’s on-site agent for purposes of addressing the tax consequences of property ownership. It does not contemplate that defendants became the on-site agent to receive notices from third parties.

The contract also contained numerous events that could delay the project that were not attributable to defendants. Further, although the home’s completion was over a year past the targeted completion date, there was no indication that plaintiff invoked the $350 per day liquidated damages provision.

Summary Disposition Granted

The trial court granted defendants’ motion for summary disposition and denied plaintiff’s motion to adjourn to permit additional discovery. Plaintiff’s motion for reconsideration was also denied.

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