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STATE OF MICHIGAN
COURT OF APPEALS


SHUBH HOTELS DETROIT, L.L.C., Plaintiff-Appellant, v WELLS OPERATING PARTNERSHIP, L.P., Defendant-Appellee.

UNPUBLISHED June 3, 2008

No. 276666 Wayne Circuit Court LC No. 05-535718-CK

Before: Servitto, P.J., and Cavanagh and Kelly, JJ. PER CURIAM. Plaintiff, Shubh Hotels Detroit, L.L.C. ("Shubh"), appeals as of right the order of the trial court granting defendant, Wells Operating Partnership, L.P. ("Wells"), summary disposition. We affirm. This litigation concerns two properties, an office building and parking garage at 150 West Jefferson in Detroit ("the Office Property"), and the Hotel Pontchartrain ("the Hotel Property"), at Two Washington Boulevard in Detroit. Before December 31, 1984, the Hotel Pontchartrain Company owned the Hotel Property and two parcels of vacant land across the street ("the parking parcels"). On December 31, 1984, the Hotel Pontchartrain Company conveyed the Hotel Property to The Crescent Hotel Group of Michigan, Inc. ("Crescent"), and assigned Crescent their vendee's interest in a land contract to purchase the parking parcels. Crescent subsequently sold and conveyed the Hotel Property to the Hotel Pontchartrain Limited Partnership ("the Limited Partnership"), of which Crescent was sole general partner. In early 1987, the John Madden Company ("Madden") expressed an interest in using the parking parcels as part of the site for the proposed Madden Building, which was to be constructed across the street from the Hotel Property. On July 27, 1987, Crescent and Madden entered into an agreement by which Crescent would convey the parking parcels to Madden in consideration of Madden granting an easement for 175 parking spaces in the not-yet-constructed Madden Building. Crescent conveyed the parking parcels to Madden on July 31, 1987. On August 28, 1987, Madden conveyed the parking parcels to Detroit Development Group, L.L.C. ("DDG"). The same day, DDG granted Crescent an easement "for the exclusive use of 175 parking spaces by the Hotel Pontchartrain Limited Partnership," in a parking structure that DDG agreed to construct and maintain on the parking parcels ("the easement").

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In 1990, San Jacinto Savings Association, F.A. ("San Jacinto"), acquired the Hotel Property through a foreclosure of the Limited Partnership's mortgage. San Jacinto claimed that it also acquired the easement. However, Crescent disagreed. Crescent claimed it never conveyed rights to the easement to the Limited Partnership, and therefore, those rights could not have been acquired by San Jacinto through the foreclosure proceedings. This dispute became the subject of litigation ("the Texas Litigation"). The suit was filed in the Wayne Circuit Court, but was removed to the United States District Court for the Southern District of Texas by the Resolution Trust Corporation ("RTC"), which had been appointed San Jacinto's conservator and receiver. While the Texas Litigation was pending, Jefferson Street Properties, Inc. ("Jefferson"), acquired the Office Property. Jefferson entered into an agreement with San Jacinto, under which San Jacinto agreed to convey all of its "right, title, and interest in, to and under" the easement for $1,500,000. On September 26, 1991, Jefferson and San Jacinto executed a quitclaim deed ("the quitclaim deed") reflecting this agreement. The funds were deposited into an escrow account pending the satisfaction of certain conditions imposed by Jefferson. On September 27, 1991, Jefferson deposited a "Mutual Release" into escrow. This document stated that Jefferson and San Jacinto, along with their successors and assigns, release each other "from any and all claims or liability arising out of, or in connection with, the Premises, the Easement, or the parking structure which is the subject matter thereof." Only Jefferson signed this copy of the mutual release. On October 23, 1991, San Jacinto deposited a signed copy of the same mutual release into escrow. San Jacinto, Crescent, and Jefferson subsequently negotiated a settlement agreement under which Crescent released any claim to the easement in exchange for $225,000 of the $1,500,000 Jefferson had deposited into the escrow account. The Texas court entered an order on January 15, 1992, granting San Jacinto's/RTC's motion for summary disposition, finding that RTC, as receiver for San Jacinto, was "as against all other Claimants, the owner of all right, title and interest in the subject Easement," and denying Crescent's motion for summary disposition, finding that it had "no right, title or interest in the subject easement." Crescent agreed not to appeal the judgment and waived its right to appeal in consideration of San Jacinto's promise to pay, on the closing of the sale of the easement, $225,000. On February 19, 1992, San Jacinto and Jefferson authorized the escrowee to break escrow and disburse $1,275,000 plus interest to RTC, as receiver for San Jacinto, and $225,000 to Crescent upon further instruction. They also authorized the release of the mutual releases executed by each. The quitclaim deed was recorded on February 28, 1992. Shubh acquired the Hotel Property on February 11, 2005, and Wells acquired the Office Property on March 31, 2003. We first address Wells's argument that Shubh's claims on appeal are barred by the doctrine of res judicata. In order to be preserved for appellate review, an issue must generally have been raised by a party and addressed by the trial court. Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004). Wells's res judicata argument is not preserved for appeal because, although Wells argued before the trial court that Shubh's claim was barred by the doctrine of res judicata, the trial court did not address this argument. We review a trial court's decision on a motion for summary disposition de novo. Rose v Nat'l Auction Group, 466 Mich 453, 461; 646 NW2d 455 (2002). Although Shubh brought its motion for summary disposition under both MCR -2-


2.116(C)(9)1 and (C)(10), we will consider the trial court to have decided the motion under MCR 2.116(C)(10), because it considered documentary evidence submitted by the parties.2 When reviewing a decision on a motion for summary disposition pursuant to MCR 2.116(C)(10), we consider "the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion." Id. Summary disposition is appropriate "if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. We also review the issue of the applicability of res judicata de novo as a question of law. PT Today, Inc v Comm'r of Office of Financial and Ins Services, 270 Mich App 110, 146; 715 NW2d 398 (2006). Although this issue is unpreserved, we may review an issue that has been raised by a party but not addressed by the trial court if it is a question of law and all the necessary facts have been presented. Detroit Free Press, Inc, v Family Independence Agency, 258 Mich App 544, 555; 672 NW2d 513 (2003). "A party's claim is barred by the doctrine of res judicata when (1) the prior action was decided on the merits, (2) the decree in the prior action was a final decision, (3) the matter contested in the second case was or could have been resolved in the first, and (4) both actions involved the same parties or their privies." PT Today, supra at 146. In this case, the third element is not met. The issue here is whether the quitclaim deed terminated the easement. The quitclaim deed was being held in escrow during the Texas litigation and was not recorded until after the Texas court entered its order. Moreover, the issue of the validity and effect of the quitclaim deed depends, at least according to Shubh, upon the extent to which the quitclaim deed and the Texas court's order were properly recorded and appear in the relevant chains of title. Therefore, the Texas court did not and could not have addressed this issue and Shubh's claim is not barred by res judicata. "[I]f the facts change, or new facts develop, res judicata [does] not apply." Labor Council, Michigan Fraternal Order of Police v Detroit, 207 Mich App 606, 608; 525 NW2d 509 (1994). Shubh's primary argument on appeal is that the trial court erred in determining that the quitclaim deed executed by the parties' predecessors in interest terminated the easement. We disagree. Shubh asserts that the quitclaim deed purported to convey the Office Property, including any interest that property, as the servient estate, held in the easement, rather than conveying San Jacinto's interest in the easement. "The general rule is that courts will follow the plain language in a deed in which there is no ambiguity." Minerva Partners, Ltd v First Passage, LLC, 274

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A motion for summary disposition under MCR 2.116(C)(9) alleges that "[t]he opposing party has failed to state a valid defense to the claim asserted against him or her." "[A] motion for summary disposition under MCR 2.116(C)(9) is tested solely by reference to the parties' pleadings." Glass v Goeckel, 473 Mich 667, 677; 703 NW2d 58 (2005).

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Mich App 207, 216; 731 NW2d 472 (2007) (internal citation omitted). "[I]t is the duty of the court to construe a deed as it is written, and if a deed is clear and unambiguous, it is to be given effect according to its language, for the intention and understanding of the parties must be deemed to be that which the writing declares." Id. (change in Minerva; citation omitted.) The relevant language of the quitclaim deed is as follows: KNOW ALL MEN BY THESE PRESENTS [SIC]: That SAN JACINTO SAVINGS ASSOCIATION, F.A., [address], quit claims to JEFFERSON STREET PROPERTIES, INC., a Michigan corporation, [address], the following described premises, including but not limited to any right, title, and interest in that certain Grant of Easement dated August 28, 1987, recorded September 15, 1987 in Liber 23426, Page 657, Wayne County Records, situated in the City of Detroit, County of Wayne, and State of Michigan, to-wit: [Legal description of Office Property]3 for the sum of One Dollar ($1.00) and other good and valuable consideration. "A quitclaim deed is, by definition, a deed that conveys a grantor's complete interest or claim in certain real property but that neither warrants nor professes that the title is valid." Michigan Dep't of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 377378; 699 NW2d 272 (2005). The quitclaim deed in this case unambiguously conveys to Jefferson whatever interest San Jacinto had in the Office Property, explicitly including any interest in the August 28, 1987, easement. Because a quitclaim deed does not make any guarantees with respect to the extent or validity of the grantor's interest in or title to the subject property, id., a quitclaim deed necessarily requires further inquiry on the part of a subsequent purchaser or anyone examining the chain of title in order to discern the effect of the quitclaim deed. Both parties to this appeal cite 7 Michigan Legal Forms

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