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STATE OF MICHIGAN
COURT OF APPEALS


CHRIS DOMBROWSKI and LORRAINE DOMBROWSKI, Plaintiffs-Appellants, and HELENE DOMBROWSKI and JAMES F. PAGELS, Appellants, v EDWARD EICHINGER, CAROL E. EICHINGER, GREGORY K. LIGHT, KIMBERLY S. LIGHT, C. DELBERT ANDREWS, JR., MARCIA A. ANDREWS, ROBERT L. HIPSHER, LISA M. HIPSHER, JOSEPH P. EDWARTOWSKI, RITA B. EDWARTOWSKI, MUSKEGON DEVELOPMENT COMPANY, JEROME A. CAPERS, NANCY B. CAPERS, JOSEPH FERRERA, LAURA D. FERRERA, and CATHERINE FERRERA, Defendants-Appellees.

UNPUBLISHED October 24, 2006

No. 269281 Otsego Circuit Court LC No. 04-010672-CH

Before: Whitbeck, C.J., and Murphy and Smolenski, JJ. PER CURIAM. Plaintiffs Chris and Lorraine Dombrowski (the Dombrowskis) appeal as of right, challenging the trial court's orders granting three separate motions for summary disposition brought by various defendants, dismissing four pro se defendants, denying the Dombrowskis' motion to amend their complaint to add additional parties, and denying the Dombrowskis' request for certain declaratory relief. The Dombrowskis' daughter, appellant Helene Dombrowski, challenges the trial court's order denying her motion to intervene. We affirm.

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I. Basic Facts And Procedural History This case involves a dispute regarding whether the Dombrowskis should be granted an easement, by necessity or express reservation, to provide access to either the eastern or southern portion of their undeveloped 160-acre parcel of property in the northwest quarter of section 12 in Charlton Township, Ostego County. The Dombrowskis, along with John and Pauline Turri (the Turris), acquired an ownership interest in section 12 in 1978. In October 1978, a survey was recorded to divide the entire eastern half of section 12 into 23 parcels (the Quiet parcels). The survey depicts a private road (Quiet Acres Road) and utility easement running between Quiet parcels 4, 5, 6, and 7 to the north and Quiet Parcels 10, 11, 12, and 13 to the south. Quiet parcels 8 and 9 separate Quiet parcels 7 and 10, respectively, from the Dombrowskis' 160-acre parcel in the northwest quarter of section 12. The Quiet parcels were subsequently sold to various purchasers, including predecessors-in-title to defendants Carol and Gregory Eichinger (Quiet parcels 3 and 4), Gregory and Kimberly Light (Quiet parcels 6 and 7), and C. Delbert and Marcia Andrews (Quiet parcel 12) (collectively, the Eichinger defendants). In February 1983, the Dombrowskis and the Turris entered into a land contract to sell the southwest quarter of section 12 to John and Edith Hofstra (the Hofstras). The land contract specified an understanding that the land would be split into smaller parcels for resale. The Hofstras thereafter subdivided and sold parcels in the southwest quarter (the SW parcels) to various purchasers. Two larger SW parcels, which abut the southern border of the Dombrowskis' 160-acre parcel, were subsequently acquired by defendants Jerome and Nancy Capers, and defendants Joseph, Laura, and Catherine Ferrera (the Capers defendants). Eight smaller, numbered SW parcels are situated south of the Capers defendants' two SW parcels. Defendant Muskegon Development Company (MDC) owned SW parcel 6 at the time relevant to this case. Defendants Robert and Lisa Hipsher (the Hipshers) owned SW parcel 1 and defendants Joseph and Rita Edwartowski (the Edwartowskis) owned SW parcel 2. In April 2004, the Dombrowskis filed this action against the Eichinger defendants and other alleged property owners along Quiet Acres Road, seeking a right to use Quiet Acres Road to access their 160-acre parcel under several different easement theories. Following a period of discovery, the Dombrowskis amended their complaint to add easement claims against property owners in the southwest quarter of section 12. The Dombrowskis obtained defaults against several defendants. The Eichinger defendants, the Capers defendants, and MDC each moved for summary disposition with respect to the Dombrowskis' easement claims. The Dombrowskis moved for summary disposition under MCR 2.116(I)(2), claiming that they had an express easement across Quiet parcels 8 and 9 that would entitle them to use Quiet Acres Road. Alternatively, the Dombrowskis claimed a right to an easement by necessity or implied reservation over land in the southwest quarter of section 12. The Dombrowskis further moved for a declaration that they did not have an express easement for their 160-acre parcel to use a private road (South Shore Drive), which was located to north of the 160-acre parcel in an area designated as section 1. The Dombrowskis later moved to add property owners along South Shore Drive as defendants if an easement was not placed in section 12. The trial court denied the Dombrowskis' motions and granted the motions for summary disposition brought by the Eichinger defendants, -2-


the Capers defendants, and MDC. Further, the trial court dismissed the Hipshers and the Edwartowskis, who appeared in propria persona. After the trial court's ruling, but before the entry of orders deciding the motions, the Dombrowskis quitclaimed interests in their 160-acre parcel to their daughter, Helene Dombrowski, and their attorney, James Pagels. The Dombrowskis also moved for reconsideration of the trial court's decision and again moved to add South Shore property owners as defendants. Additionally, Helen Dombrowski and Pagels moved to intervene. The trial court denied each motion. II. Express Easement Over Quiet Parcels 8 And 9 A. Standard Of Review The Dombrowskis challenge the trial court's decision to grant summary disposition in favor of the Eichinger defendants on the issue of whether the Dombrowskis have an express easement crossing Quiet parcels 8 and 9 that entitles them to use Quiet Acres Road. The Dombrowskis do not cite any authority in support of their challenge to the trial court's application of the doctrine of reciprocal negative easements. An appellant's arguments must be supported by citation to appropriate authority or policy.1 We may deem an issue abandoned when it is given only cursory treatment, with little or no citation to supporting authority.2 Nonetheless, this Court may overlook preservation requirements if the failure to consider an issue would result in manifest injustice, consideration of the issue is necessary to a proper determination in the case, or the issue is one of law for which the necessary facts have been presented.3 Because the existence of an express easement along Quiet Acres Road may affect whether an easement by necessity should be recognized with respect to other appellees appearing before us, specifically MDC and the Capers defendants, we will consider the Dombrowskis' argument. We review de novo the trial court's decision granting the Eichinger defendants summary disposition.4 Although the trial court did not specify whether it granted summary disposition under MCR 2.116(C)(8) or (10), because the trial court considered evidence beyond the parties' pleadings, we will review its decision under MCR 2.116(C)(10).5 B. Legal Standards A motion under MCR 2.116(C)(10) tests the factual support for a claim.6 A court considers the affidavits, pleadings, depositions, and other evidence submitted by the parties, to

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Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). Id. Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Spiek v Dep't of Transportation, 456 Mich 331, 338; 572 NW2d 201 (1998). Maiden, supra at 120.

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the extent the content or substance of the evidence would be admissible, in a light most favorable to the nonmoving party.7 "Where the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law."8 The mere fact that discovery is incomplete does not preclude summary disposition.9 The nonmoving party must present some independent evidence that a factual dispute exists.10 C. Easements Versus Dedications In considering this issue, it is necessary to distinguish easements from dedications, inasmuch as the trial court considered whether the Land Division Act11 has any effect on the Dombrowskis' claim. A dedication may arise under statutory or common law.12 Dedications were traditionally understood to appropriate land to a public use, when accepted for such use by or on behalf of the public.13 Before enactment of the Land Division Act (formerly the Subdivision Control Act of 1967), a dedication of land for private use could also be made. Such dedications were implicitly recognized as creating irrevocable easements.14 Under the Land Division Act, private dedications are expressly allowed.15 If a plat is certified, signed, acknowledged, and recorded as prescribed by the act, the private dedication conveys an interest in the donee, subject to the use expressed in the dedication.16 An easement is an interest in land, subject to the statute of frauds, that may be created by language in a writing that manifests a clear intent to create a servitude.17 It may be created by express grant, reservation, or agreement.18 Consideration of the parties' intent and the proper determination of an easement is confined to the four corners of the instrument granting the easement, unless it is ambiguous.19 As with other legal instruments, if there is ambiguity, a court

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MCR 2.116(G)(6); Maiden, supra at 120. Maiden, supra at 120. VanVorous v Burmeister, 262 Mich App 467, 476-477; 687 NW2d 132 (2004). Id. MCL 566.101 et seq. Little v Hirschman, 469 Mich 553, 557 n 4; 677 NW2d 319 (2004). Martin v Beldean, 469 Mich 541, 543 n 6; 677 NW2d 312 (2004). Little, supra at 562; Martin, supra at 548 n 18. MCL 560.253(1); Little, supra at 562. Martin, supra at 548-549.

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Forge v Smith, 458 Mich 198, 205; 580 NW2d 876 (1998); Chapdelaine v Sochocki, 247 Mich App 167, 170; 635 NW2d 339 (2001).
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Rossow v Brentwood Farms Dev, Inc, 251 Mich App 652, 661; 651 NW2d 458 (2002). Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 42; 700 NW2d 364 (2005).

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may examine extrinsic evidence to determine the parties' intent.20 Summary disposition is generally inappropriate if an instrument is ambiguous.21 Here, we note that the Dombrowskis have not challenged the trial court's determination that the Land Division Act is immaterial to whether there was factual support for their easement claim. Further, although the Eichinger defendants, as appellees, are entitled to argue alternative grounds for affirmance without filing a cross appeal,22 we conclude that the Eichinger defendants have not established any factual or legal support for their contention that the recorded 1978 survey for the Quiet Acres development constitutes a "plat" containing a private dedication of land for a private roadway, which ripened into a fee simple interest under MCL 560.253(1) in favor of any property owner in Quiet Acres, individually or collectively. Hence, we shall analyze the Dombrowskis' easement claim without regard to the Land Division Act. D. The Relevant Deeds The appropriate starting point in analyzing the Dombrowskis' easement claim against the Eichinger defendants is to identify the instrument that granted or reserved the alleged easement along Quiet Acres Road. The Dombrowskis' reliance on instruments pertaining to Quiet parcels 8 and 9 is misplaced because none of the Eichinger defendants were parties to those instruments. Rather, the pertinent instruments are the deeds that were executed in satisfaction of the land contracts for the predecessors-in-title to the Eichinger defendants' Quiet parcels 4, 6, 7, and 12, as well as instruments referred therein, including easements of record. It is apparent from the 1978 survey, which was recorded before the conveyances, that an appurtenant easement, that is, an easement to benefit another tract of land, was intended.23 Specifically, the easement benefits the particular parcels in Quiet Acres that abut the private road by providing access to a county road to the east. In light of the clear intent evidenced by the recorded survey, we reject the Dombrowskis' argument that an ambiguity exists because the instruments do not identify the dominant estate, that is, the land served or benefited by the appurtenant easement.24 Although the recorded 1978 survey does not itself contain grant or reservation language, the land contracts and subsequent deeds executed to satisfy the land contracts for the original purchases of the Quiet parcels owned by the Eichinger defendants

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Id.; Little v Kin, 468 Mich 699, 700; 664 NW2d 749 (2003).
Klapp v United Ins Group Agency, Inc, 468 Mich 459, 469; 663 NW2d 447 (2003).
Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994).


Dep't of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 378 n 40; 699
NW2d 272 (2005). An easement is in gross if it benefits a particular person, rather than a particular piece of land. Id. at 379 n 41.
24

Schadewald v Brul

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