This brief argues that the lower court erred in entering a judgment of possession for the appellee landlord. It asserts that the lower court abused its discretion and lacked subject matter jurisdiction. The appellant tenant paid rent for months of November, December, and January, which were after the expiration date of the 30-day notice to quit served by the landlord. According to case law, a landlord accepts a payment for a period after the notice, it voids the notice. Therefore, a new notice was required before possession proceedings, which did not occur. The brief asks the appeals court to reverse the lower court's decision and remand the case for dismissal.

1. IN THE 16th
JUDICIAL CIRCUIT COURT FOR THE COUNTY OF MACOMB
_______________________________________________
No. 09-000-AV
Appellant,
v
Appellee.
_________________________________________________
ON APPEAL FROM THE 41B JUDICIAL DISTRICT COURT
__________________________________________________
BRIEF FOR THE APPELLANT
ORAL ARGUMENT REQUESTED
_________________________________________________
Agenique Smiley, Esq. (P69129)
1

2. QUESTIONS PRESENTED
1. Does a Landlord’s acceptance of a tenant’s rental payment for a rental
period occurring after the expiration of service of the thirty (30) day Notice
to Quit void the prerequisite notice and rob the Court of jurisdiction?
2

3. TABLE OF CONTENTS
Questions Presented 2
Table of Contents 3
Table of Authorities 4
Jurisdiction 5
Standard of Review 5
Statement of the Case 6
Summary of the Argument 8
Argument 9
I. The lower Court committed an abuse of discretion by entering the
January 2008 Judgment of Possession because it lacked subject
matter jurisdiction at the time of its entry
Conclusion 13
3

4. TABLE OF AUTHORITIES
STATE OF MICHIGAN COURT CASES
Pagel v Oxford Township, No. 241217, 2003 WL No. 22715687 (Mich App November
18, 2003) 5
Kefgen v Davidson, 241 Mich App 611; 617 NW2d 351 (2000) 5
Beaverton Transit Mix, Inc., v Onweller, No. 238931, 2003 WL No. 22399515 (Mich
App October 21, 2003) 5
Higendorf v St John Hospital, 245 Mich App 670, 682; 630 NW 2d 356 (2001) 5
Clohset v No Name Corporation, 302 Mich App 550; 840 NW 2d 375 (2013) 6
Edry v Adelman, 486 Mich. 634; 786 NW2d 567 (2010) 6
People v Babcock, 469 Mich. 247; 666 NW2d 231 clarification den 469 Mich. 1224
(2003) 6
Park Forest of Blackmun v Smith, 112 Mich App 421; leave den, 420 Mich 853; 316
NW 2d 442 (1984) 6
Shulick v Ricards, 273 Mich App 320; 729 NW 2d 533 (2006) 9
LaFleche v Ybarra, 242 Mich App 692; 619 NW 2d 738 (2000) 9
Ypsilanti Housing Commission v O’Day, 240 Mich App 62; 618 NW 2d 18 (2000) 12
FEDERAL STATUTES
24 CFR §966 11
MICHIGAN STATUTES
MCL 600.7701 5
MCL 600.5714 (1) (b) (iii) 11
4

5. IN THE 16th
JUDICIAL CIRCUIT COURT FOR THE COUNTY OF MACOMB
_______________________________________________
No. 09-000-AV
Appellant,
v
Appellee.
_________________________________________________
ON APPEAL FROM THE 41B JUDICIAL DISTRICT COURT
__________________________________________________
BRIEF FOR THE APPELLANT/ PETITIONER
ORAL ARGUMENT REQUESTED
_________________________________________________
JURISDICTION
The Judgment for Possession for Plaintiff/ Appellee was entered on January 8,
2009. Defendant/ Appellant filed a Claim of Appeal on January 14, 2009. The
Jurisdiction of this Honorable Court rests on MCL 600.7701.
STANDARD OF REVIEW
A Trial Court’s decision on a motion for summary disposition is reviewed De
Novo. Pagel v Oxford Township, No. 241217, 2003 WL No. 22715687 at *3 (Mich App
November 18, 2003); Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351
(2000). Whether to grant or deny a motion is entrusted to a trial Court’s discretion and
determination of whether said court abused its discretion in rendering its decision is
subject to appellate review. Beaverton Transit Mix, Inc., v Onweller, No. 238931,
2003 WL No. 22399515 at *2 (Mich App October 21, 2003); quoting, Higendorf v St
John Hospital, 245 Mich App 670, 682; 630 NW 2d 356 (2001). A trial court commits
5

6. an abuse of discretion when an unbiased person would conclude, after consideration of
the facts, that there was no justification or excuse for its decision. This standard of
review is certainly applicable in the present case because the lower Court denied
Appellant’s Motion for Summary Disposition despite the presentation of facts and
evidence that Appellant paid rent and held possession of the rental premises for over
two months that occurred subsequent to the expiration of the Notice to Quit. “An abuse
of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” Clohset v No Name Corporation, 302 Mich App 550, 558; 840
NW 2d 375 (2013); quoting, Edry v Adelman, 486 Mich. 634, 639; 786 NW2d 567
(2010), citing People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003),
clarification den 469 Mich. 1224 (2003). In light of the holding of the Michigan Court of
Appeals in Park Forest of Blackmun v Smith, which states that a Landlord voids the
Notice to Quit by accepting rental payments for a period of time subsequent to the date
specified in the notice, coupled with the fact that Appellant made, and Appellee
accepted, rental payments for months occurring after the expiration of the Notice to
Quit, there was no reasonable basis for the Trial Court’s decision to deny Appellant’s
motion. Park Forest of Blackmun v Smith, 112 Mich App 421, 425; leave den, 420
Mich 853; 316 NW 2d 442, 444 (1984).
STATEMENT OF THE CASE
Appellant hereby respectfully moves this Honorable Court to reverse the Judgment
for Possession entered on January 8, 2009 and to remand this matter back to the Trial
Court for dismissal of Appellee’s case on the grounds that, because Appellee accepted
Appellant’s payments for a rental periods beyond the date specified in the Demand for
6

7. Possession, Appellee’s notice was terminated, thereby robbing the lower Court of
subject-matter jurisdiction. The issue for disposition here is whether a Landlord’s
acceptance of a tenant’s rental payment for months in advance of the date to vacate
specified in the Demand for Possession sufficient to void the Notice to Quit.
On or about August 1, 2008, Appellee and Appellant, entered into a Lease
Agreement. The market rental rate for the premises in question is eight hundred fifty
($850) dollars per month. Appellant is a participant in the Michigan Housing Choice
Voucher Program (MHCVP) and, per Appellee’s contract with the Michigan State
Housing Development Authority (MSHDA), the portion of the rent that must be paid by
Appellant was seventy-nine ($79) dollars per month.
On November 12, 2008 Appellee served Appellant with a Notice to Quit, demanding
possession of the rental premises. In the Notice to Quit, Appellee claimed to have a
right to possession because Appellant violated her Lease Agreement by failing to pay
her rent. Appellee’s service of the Notice to Quit was prompted by her gaining
knowledge that Appellant’s participation in the MHCVP had been terminated. However,
Appellant paid, and Appellee accepted, her portion of the rent for the months of
November and December 2008 and January 2009.
December 18, 2008 was the date set for the bench trial on Appellee’s Complaint
for Possession. Prior to trial, Appellant timely filed a Motion for Summary Disposition
based on the holding of Park Forest of Blackmun v Smith, which clearly states that a
Landlord’s acceptance of payment for a rental period occurring beyond the expiration of
the Notice to Quit voids said notice and robs the Court of jurisdiction to decide the
matter. Park Forest of Blackmun v Smith, 112 Mich App 421, 425; leave den, 420
7

8. Mich 853; 316 NW 2d 442, 444 (1984). After hearing oral argument on Appellant’s
motion, the Court determined that, based on the previous agreement of the parties to
adjourn the matter until January 8, 2009 to allow Appellant an opportunity to contact
MSHDA regarding the termination of her assistance contract, a decision at that time
would be premature and reiterated the adjournment. Thereafter, Appellee filed an
untimely Motion for an Order of Eviction, which was heard on January 8, 2009. At the
hearing on Appellee’s motion, Appellant reiterated her Motion for Summary Disposition
and presented a Motion for Leave to Amend her pleadings to include a Third-Party
Complaint against MSHDA for the wrongful termination of her participation in the
MCHVP. The Court, against the presentation of facts and evidence and the good and
still binding holding in Park Forest of Blackmun v Smith, denied both of Appellant’s
motions and entered a Judgment for Possession in favor of Appellee. In response,
Appellant filed the instant appeal.
SUMMARY OF ARGUMENT
This Honorable Court must reverse the Judgment for Possession entered on
January 8, 2009 because the lower Court abused its discretion by denying Appellant’s
Motion for Summary Disposition. This Honorable Court must also reverse the Trial
Court’s entry of the Judgment of Possession in favor of Appellee on the grounds that it
lacked jurisdiction to enter said judgment due to Appellee’s failure to give the
prerequisite statutorily-required notice.
8

9. ARGUMENT
I. The lower Court committed an abuse of discretion by entering the January
2008 Judgment of Possession because it lacked subject matter jurisdiction
at the time of its entry
Findings of fact are reviewed pursuant to the great weight of the evidence
standard and, in accordance with that standard, a Trial Court’s factual findings will be
upheld unless “the evidence clearly preponderates in the opposite direction.” Shulick v
Richards, 273 Mich App 320, 323; 729 NW 2d 533, 536 (2006); quoting, LaFleche v
Ybarra, 242 Mich App 692, 695; 619 NW 2d 738 (2000). Discretionary rulings are
subject to review on an abuse of discretion standard. Id. Inherit in the concept of
discretion is the idea of choice or consideration and an abuse of that exercise of
consideration occurs when the resultant decision is so “palpably and grossly violative of
fact and logic” that it gives birth to an illogical or biased result. Id.
In the matter sub judice, the Trial Court’s entry of the January 2008 Judgment of
Possession can only be characterized as an abuse of discretion because its decision in
favor of Appellee was clearly against the great weight of the evidence and; therefore,
illogical. At the January 8, 2009 hearing on Appellee’s Motion for an Order of Eviction
Appellant presented evidence of her payment and Appellee’s acceptance of rent for not
one but three rental periods that occurred after the expiration of the November 12, 2008
Notice to Quit. However, despite that evidence, the Court still found in favor of Appellee.
It can be reasonably assumed that the Trial Court chose to ignore the overwhelming
evidence before it as there is no logical explanation to justify its ruling.
9

10. Furthermore, the ruling itself was void because the Court lacked subject-matter
jurisdiction to render it. A Landlord voids the notice to terminate a tenancy by accepting
rent for a period occurring after the date of termination specified in the notice. Park
Forest of Blackmun v Smith, 112 Mich App 421 at 426 leave den, 420 Mich 853
(1984). On March 26, 1979, Plaintiff, Park Forest of Blackmun (hereinafter “Plaintiff”),
served Defendant, Darlene Smith (hereinafter, “Defendant”), with a notice to terminate
her tenancy, demanding possession on or before April 28, 1979. Id. at 424. The notice
provided that Defendant’s tenancy was being terminated because she failed to pay her
rent. Id. On April 9, 1979 Defendant paid her rent for the entire month of April and did
not vacate the premises. Id. On May 7, 1979 Plaintiff began summary proceedings,
demanding possession of the apartment. Id. The case was scheduled to be heard May
22, 1979 and on May 8, 1979, Defendant paid her rent for the entire month of May. Id.
In Park Forest the Michigan Court of Appeals held that Plaintiff’s acceptance of
Defendant’s rent for periods subsequent to the final date listed on the notice to
terminate constituted a revocation and a new notice to terminate, then, must be served
on the tenant before summary proceedings can be commenced. Id. at 425. In arriving at
its holding, the Court reasoned that, by accepting rent, a landlord leads the tenant to
believe that further proceedings regarding termination of the tenancy were not
forthcoming, which the Court concluded was a reasonable expectation. Id. at 426. The
Court further reasoned that it is inconsistent for a landlord to assert a termination of
lease and then, after the time specified in the notice has passed, accept rent for a future
time period. Id. Based on the foregoing, the Court concluded that Plaintiff rescinded its
notice demanding that Defendant vacate the premises on or before April 28, 1979 and
10

11. that since notice was rescinded, Plaintiff failed to comply with the provision of the
statute, MCL 600.5714(1)(b)(iii), requiring notice before commencement of summary
proceedings. Id. The Court further reasoned that, in absence of Defendant’s receipt of
the statutorily-required prerequisite notice, it did not have subject-matter jurisdiction to
make a determination of the matter.
A termination of tenancy action requires service of a thirty (30) day Notice to Quit as
a pre-condition to filing a complaint to terminate said tenancy. 24 CFR §966; MCL
600.5714 (1) (b) (iii). Much like the Plaintiff in Park Forest of Blackmun v Smith,
Appellee accepted a rental payment for a period which occurred subsequent to the
expiration of the Notice to Quit. In fact, in the present case, Appellee accepted rent for
three subsequent rental periods. By accepting rent for the entire month of December
2008 Appellee waived the November 12, 2008 notice, making it null and void under the
law. Once notice was waived, Appellant, per the holding in Park Forest of Blackmun
v Smith, was reasonable in treating the Notice to Quit as if it were never served. Id. at
426. Consistent with the reasoning of the Michigan Court of Appeals in Park Forest,
stated supra, Appellant was also reasonable in her expectation that her tenancy would
continue; which was most certainly why she also paid rent for January 2009. Despite
the evidence that Appellant paid her rent for three rental periods in advance of the
Notice to Quit, the lower Court denied her Motion for Summary Disposition and,
improperly, entered a Judgment for Possession in favor of Appellee. Appellant did not
receive one month’s notice of the termination of her Lease as required by MCL
600.5714, therefore, the summary proceedings in the District Court were premature and
the resultant entry of a Judgment for Possession in favor or Appellee was improper.
11

12. In Ypsilanti Housing Commission v O’Day the Michigan Court of Appeals held
that the lower Court erred in failing to dismiss a case when the Landlord failed to give
sufficient notice of impending summary proceedings; stating, that the tenant was
entitled to one month’s notice in accordance with MCL 600.5714 (1) (b) (iii). Ypsilanti
Housing Commission v O’Day, 240 Mich App 621 at 627; 618 NW 2d 18, 21 (2000).
In Ypsilanti Housing Commission v O’Day the Plaintiff filed summary proceedings
against the Defendant after service and expiration of a Seven (7) Day Notice to Quit.
Plaintiff based its authority for the shortened notice period on a lease provision allowing
expedited proceedings in the case of a tenant’s involvement in alleged drug activity on
or outside of the rental premises. Id. at 624. The Court found that the lease provision
allowing expedited notice was void in light of the Michigan Truth in Renting Act; and
therefore, reasoned that the Seven Day Notice to Quit based thereon was also void. Id.
Finding that the Seven Day Notice to Quit was void and; therefore, the notice given
insufficient, the Court concluded that the trial court committed error in failing to dismiss
the case. Id.
In the present matter the lower court also erred by failing to dismiss on the
grounds that insufficient notice of impending summary proceedings was received.
Although the Notice to Quit served on Appellant in the case sub judice was not void on
its face like the notice in Ypsilanti Housing Commission v O’Day, by accepting
Appellant’s rental payments, Appellee made said notice void thereby, robbing the
District Court of jurisdiction to render a decision. The lower Court’s jurisdiction was
killed upon Appellee’s acceptance of Appellant’s full rental payment for December 2008;
therefore, the Court had no authority on which to proceed at the January 8, 2009
12

13. hearing and the Judgment of Possession was void and unenforceable when it was
pronounced. Even if the Court were to allow Appellee to proceed after acceptance of
Appellant’s November and December 2008 payments on the basis that Appellant
occupied the premises for the entire month, there was still no logical basis for entry of
the Judgment of Possession in light of the evidence presented at the hearing that
Appellee accepted Appellants full rent payment for January 2009. Based on the holding
of Ypsilanti Housing Commission v O’Day, the Court is in error when it fails to
dismiss summary proceedings for recovery of rental premises when a tenant does not
receive sufficient notice. Based on the foregoing, upon being presented with the facts
and evidence of Appellee’s acceptance of Appellant’s rent for three rental periods
occurring after the expiration of the November 12, 2008 Notice to Quit, the lower Court
should have granted Appellant’s Motion for Summary Disposition and its failure to do so
was an abuse of its discretion.
CONCLUSION
It is well-settled and binding law that a tenant must be given sufficient notice of
impending summary proceedings and a Landlord’s failure to provide said notice robs
the Court of jurisdiction to dispose of the matter. By accepting Appellant’s rental
payment for a period subsequent to the expiration of the Notice to Quit, Appellee voided
its notice to Appellant and revived her tenancy. Moreover, because sufficient notice of
commencement of summary proceedings is required in order for a landlord to proceed,
which Appellee in this case did not provide, entry of the Judgment of Possession was
improper and the judgment itself was void upon pronouncement. Therefore, it is in the
interest of justice that this Honorable Court reverse the January 2009 Judgment for
13

14. Possession and remand this matter back to the lower Court for dismissal Appellee’s suit
based on the Court’s lack of subject-matter jurisdiction.
Respectfully submitted,
_____________________________________
Agenique Smiley (P69129)
14