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STATE OF MICHIGAN
COURT OF APPEALS


M. CAROL RONAN and FRANKLIN D. RONAN, Trustees of the M. CAROL RONAN TRUST, Plaintiffs-Appellants, v WILLIAM W. HOFMANN, MARLA E. HOFMANN, JAMES J. MURRAY, PATRICIA C. MURRAY, GRAHAM HAGEY, and HELEN HAGEY, Defendants-Appellees.

UNPUBLISHED October 24, 2006

No. 263106 Emmet Circuit Court LC No. 04-008127-CH

Before: Whitbeck, C.J., and Murphy and Smolenski, JJ. PER CURIAM. The parties in this case are all neighboring owners of property located in the Arlington Heights subdivision in Petoskey, Michigan. At issue is whether a recorded deed restriction limits the development of the property of plaintiffs M. Carol Ronan and Franklin D. Ronan, Trustees of the M. Carol Ronan Trust (the Ronans). The Ronans filed this action to quiet title to determine the applicability of the deed restriction to their property. The Ronans also alleged claims for slander of title and tortious interference with a business relationship or expectancy. The trial court granted the motion for summary disposition of defendants Graham and Helen Hagey (the Hageys) of the Ronans' quiet title claim under MCR 2.116(C)(8), and, in light of that decision, dismissed the remaining claims. The Ronans appeal as of right. We affirm. I. Basic Facts And Procedural History In 1977, the Ronans purchased lots 21, 22, 23, and 24 of block 1, and lot 7 of block 5 in the Arlington Heights subdivision from Dean and Gwendolyn Elliott (the Elliotts). The warranty deed from the Elliotts did not expressly refer to any deed restriction regarding the use of the property, but stated that the property was subject to any building or use restrictions "of record." The Elliotts acquired the property pursuant to a 1957 warranty deed from Grant and Genevieve Born (the Borns). The 1957 deed contained the following restriction: It is understood and agreed that no one shall build or cause to be built any building or structure, plant or cause to be planted any shrubbery or trees on the -1-


West side of Lots 21, 22, 23 and 24 within 50 feet of Grand Avenue[1] that would tend to obstruct the view on the West side of said Lots. In 1995, the Ronans conveyed the property to themselves as trustees of the M. Carol Ronan Trust. In 2000, the Ronans sold lot 7 to the Hageys. In 2002, the Ronans attempted to sell lots 21, 22, 23, and 24, but were unable to sell the property after defendant William Hofmann wrote the Ronans a letter, advising them that he and the other defendants intended to enforce the deed restriction that appeared in the 1957 warranty deed from the Borns to the Elliotts. According to Hofmann, the deed restriction was intended to preserve the view to a lake and valley for all lots in the subdivision that have views over Lots 21, 22, 23, and 24. The Ronans thereafter filed this action against William and Marla Hofmann (the Hofmanns), James and Patricia Murray (the Murrays), and Graham and Helen Hagey (the Hageys). They alleged a claim to quiet title in which they sought a determination that the deed restriction was either not applicable to their property or no longer enforceable. They also sought damages for slander of title and tortious interference with a business relationship or expectancy. The Hofmanns and Murrays moved to strike portions of the Ronans' pleadings that referred to violations of the Michigan Rules of Professional Conduct (MRPC). They also moved for partial summary disposition on Counts II and III under MCR 2.116(C)(8). The Hageys filed their own motion for summary disposition under MCR 2.116(C)(8), arguing that the Ronans had constructive notice of the restrictive covenant as a matter of law because the prior deed was recorded. The trial court granted the Hageys' motion for summary disposition, concluding that the Hageys had the right to enforce the restriction because they were in privity with the Ronans and their property was intended to benefit from enforcement of the building restriction. Further, viewing the facts in the light most favorable to the Ronans, the trial court concluded that the restriction in the deed ran with the land. Moreover, the trial court held that the Ronans were on notice that the property was subject to the building restriction, which appeared in their chain of title. The trial court also concluded that the fact that Grand Avenue was vacated did not change the building restriction because a change made by a zoning body cannot affect private deed restrictions. The trial court stated that its ruling granting summary disposition for the Hageys resolved all claims in the matter and that it did not need to address the remaining motions brought by the Hofmanns and the Murrays because the Ronans' remaining claims were dependent upon their position that the deed restriction was not enforceable against their property. The Ronans moved for rehearing and to amend their complaint, but the trial court denied both motions. The Ronans now appeal.

1

Grand Avenue was vacated in 1962.

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II. Summary Disposition A. Standard Of Review The Ronans argue that the trial court erred in granting the Hageys' motion for summary disposition. We review de novo a trial court's summary disposition decision.2 A motion under MCR 2.116(C)(8) tests the legal sufficiency of the plaintiff's complaint by the pleadings alone.3 All well-pleaded factual allegations are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the allegations.4 The motion should be granted only if the claims are so clearly unenforceable as a matter of law that no factual development could justify recovery.5 B. Factual Findings The Ronans argue that the trial court improperly made factual findings when granting summary disposition for the Hageys. A trial court may not make findings of fact when deciding a motion for summary disposition.6 However, when a written instrument upon which a claim is based is attached or referred to in a pleading, that exhibit becomes part of the pleading.7 Here, the Ronans attached copies of the relevant deeds and other documents to their complaint, and the trial court properly confined its review to the pleadings and the attachments. Further, contrary to the Ronans' argument, the map and the summary that the trial court attached to its decision do not demonstrate that it considered material beyond the pleadings. The Ronans attached the same map to their complaint, and the summary was merely a compilation of information already contained in the pleadings. C. Restrictive Covenant The Ronans argue that the trial court erred in determining that the restriction in the 1957 deed from the Borns to the Elliotts was a restrictive covenant that ran with the land, rather than a covenant personal to the Borns, and in determining that the Hageys were entitled to enforce the restriction. "A covenant is a contract created with the intention of enhancing the value of property and is a valuable property right."8 Restrictive covenants are based in contract, and the

2 3 4 5 6 7

Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). Peters v Dep't of Corrections, 215 Mich App 485, 486; 546 NW2d 668 (1996). Patterson, supra. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 117; 532 NW2d 866 (1995).

MCR 2.113(F)(2); Karam v Law Offices of Ralph J Kliber, 253 Mich App 410, 418 n 6; 655 NW2d 614 (2002).
8

The Mable Cleary Trust v The Edward-Marlah Muzyl Trust, 262 Mich App 485, 491; 686 NW2d 770 (2004).

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drafter's intent controls.9 Restrictive covenants are strictly construed against those seeking to enforce them, and all doubts are resolved in favor of the free use of the property.10 However, "when the intent of the parties is clearly ascertainable, courts must give effect to the instrument as a whole."11 In Webb v Smith (After Remand), this Court observed: In interpreting a restrictive covenant, our Supreme Court stated that the covenant should be "`construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it, the location and character of the entire tract of land, the purpose of the restriction, whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers, and whether it was in pursuance of a general building plan for the development and improvement of the property.'"[12] The elements necessary for finding that a covenant runs with the land and the distinction between covenants that run with the land and personal covenants are explained in Greenspan v Rehberg: In 21 CJS Covenants,

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