Preview:

STATE OF MICHIGAN COURT OF APPEALS

WILLIAM VanBYNEN, CHARLOTTE VanBYNEN, BERNICE ROZWOD, RANDY VanBYNEN, ELLEN VanBYNEN, JON ZEEFF, JOSEPH McGUIRE, and SANDRA McGUIRE, Plaintiffs-Appellants, v BUHL BURTON, JoANN BURTON, FRANK DAY, TERESA DAY, DENNIS GRABOW, CHRISTINE GRABOW, TIMOTHY PRZYSIECKI, RENEE PRZYSIECKI, MARK WOOD, and BARBARA WOOD, Defendants-Appellees, and RICHARD BAKKA and JENNIFER BAKKA, Defendants.

UNPUBLISHED April 14, 2009

No. 282726; 284333 Livingston Circuit Court LC No. 04-021161-CK

Before: Cavanagh, P.J., and Fort Hood and Davis, JJ. PER CURIAM. Plaintiffs appeal as of right the dismissal of all four counts of their complaint against defendants. The trial court granted summary disposition in defendants' favor on three counts; the fourth proceeded to trial, and the trial court granted defendants' motion for dismissal after the conclusion of plaintiffs' proofs. Defendants appeal as of right the trial court's subsequent denial of their motion for attorney fees and costs. We affirm the trial court in its entirety. This case involves deed restrictions applicable to the property surrounding Sunset Lake in Hamburg Township, Livingston County. The property was purchased in 1956 by Stanley and Bernice Rozwod ("Rozwod"). It consisted of five numbered lots in the Supervisors Plat of Fernlands subdivision ("the Fernlands lots"), which had been platted in 1932; it also consisted of an undivided, wooded area surrounding Sunset Lake. The Fernlands lots did not have any frontage on Sunset Lake, and they were accessed by a road through the Fernlands subdivision. In 1973, Rozwod divided the property into "Parcel 1" and "Parcel 2." Rozwod sold Parcel 2 to -1-

Buhl Burton. The legal description of Parcel 1 included the Fernlands lots.1 All the deeds and deed restriction documents at issue in this matter were properly recorded. In 1979, Rozwod sold Parcel 1 to Conrad Ganzhorn III, Inc ("CGI") on a land contract that explicitly anticipated CGI reselling Parcel 1 in smaller lots, each of which was to be individually released from the land contract under certain conditions. Pursuant to the terms of the land contract, eleven blank deeds were placed in escrow, and as CGI paid off portions of the land contract, several were actually released to CGI. CGI had a survey performed and split the undivided portion of Parcel 1 into nine lots: A, B, C, D, E, F, G, H, and I. Joseph McGuire entered into a purchase agreement with CGI for lot C, although McGuire did not close on the transaction until 1982. The survey was not recorded until 1980. In 1980, Burton, as owner of Parcel 2, and CGI entered into an "Agreement Establishing Land Use Restrictions" (hereinafter, the "Restrictions Agreement"). The Restrictions Agreement stated that Parcels 1 and 2 surrounded Sunset Lake, and "the owners desire to adopt a plan to assure that the existing quiet, wooded environment of the lake and its shoreline is not disrupted as a result of the future use and development of their said lands." Among other provisions, "Parcel 1 shall be divided into 11 lots, none of which shall be further subdivided." In 1981, CGI, Burton, and Ian Higgins2 entered into a "Modification to Agreement Establishing Land Use Restrictions" (hereinafter, the "Modification"). The Modification referred to the Restrictions Agreement and to the survey. It also changed two parts of the Restrictions Agreement, which originally provided that (a) each owner of each lot other than Parcel 2 would be responsible for one eleventh of various expenses, and (b) the terms could be amended by a recorded instrument executed by at least nine lot owners, including Parcel 2. The Modification altered these provisions to make each lot owners other than Parcel 2 responsible for one ninth of the enumerated expenses, and to make the terms amendable by vote of seven lot owners, including Parcel 2. CGI subsequently defaulted on the remainder of the land contract. CGI and Rozwod entered into a mutual release agreement that included, among other things, an "assignment of land contract" stating that CGI "conveys and Warrants to [Rozwod] the land above described subject to any restriction upon the use of the same . . . ." McGuire split lot C and sold one of the created sub-parcels to John Zeeff. Rozwod split lots D, E, and H, and conveyed various portions thereof. Rozwod conveyed lot I to William and Charlotte VanVynen. The VanBynens split lot I and conveyed one sub-parcel to Hamid and Sheila Kia. It is undisputed that all of the property owners in this matter were either actual parties to the deed restriction documents or took their property by a conveyance explicitly stating that it was subject to encumbrances of record. Indeed, Zeeff negotiated a lower purchase price

1 2

As we discuss infra, the Fernlands lots have no role in this litigation. Higgins had, by this time, purchased one of the split parcels, lot A, from CGI.

-2-

from McGuire, in part based on Zeeff's discovery of the deed restrictions. Again, it is significant that all of the deeds at issue stated that they were subject to any encumbrences of record. Although a few houses were constructed, the area remained mostly undeveloped woodland, and it apparently remains in that state today.3 Although plaintiffs apparently began splitting their lots as early as 1995, there was no evidence that defendants had any knowledge thereof until at least 1998; indeed, the plaintiffs did not even know about each others' lot splits until later. In 1998, the VanBynens sought a variance from Hamburg Township, and at that meeting, several neighbors raised objections to the VanBynens splitting their lot. The Township approved the VanBynens' request with the admonition that doing so did not affect the deed restrictions, which were a civil matter. A neighborhood meeting took place in 2000, the exact details of which are unclear, but it appears that in this time period, McGuire and Zeeff attempted to persuade the neighbors to revise the deed restrictions, but that approval was not obtained. In 2002, plaintiffs recorded a "Second Modification to Agreement Establishing Land Use Restrictions" (hereinafter the "Second Modification"). In significant part, the Second Modification listed all of the split parcels and their owners, and it recognized them as valid. In 2004, defendants recorded a "Repudiation of `Second Modification to Agreement Establishing Land Use Restrictions'" (hereinafter the "Repudiation"), which in significant part stated that the Second Modification was invalid because it had only been agreed to by five of the required seven votes: Rozwod had three votes as owner of lots D, E, and H; McGuire had one vote as owner of lot C, and the VanBynens had one vote as owner of lot I. The Repudiation was signed by the owners of Parcel 2 and lots A, B, F, and G, for a total of six votes because by that time Parcel 2 had been properly split into two lots. Plaintiffs then commenced this action. The complaint alleged four counts: Count I, slander of title; Count II, quiet title/declaratory relief; Count III, tortious interference with contract and/or advantageous business relationship and/or expectancy; and Count IV, waiver, acquiescence, abandonment, estoppel, change of conditions, and laches. The trial court granted summary disposition in favor of defendants on the first three counts, and the matter proceeded to trial on the equitable theories. After the conclusion of plaintiffs' proofs, the trial court granted defendants' motion for dismissal. Thereafter, the trial court denied defendants' motion for attorney fees and costs. Both parties have appealed. "We review the trial court's findings of fact in a bench trial for clear error and conduct a review de novo of the court's conclusions of law." Chapdelaine v Sochocki, 247 Mich App 167, 169; 635 NW2d 339 (2001). "When reviewing a grant of equitable relief, an appellate court will set aside a trial court's factual findings only if they are clearly erroneous, but whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo." McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008). We review de

None of the houses are alleged to violate any of the deed restrictions. Although defendant Frank Day constructed a shed on his property that plaintiffs alleged was too close to the lake, plaintiffs presented no evidence that it actually was, and they further admitted that they did not even attempt to measure it.

3

-3-

novo a trial court's ultimate decision whether to grant a motion for involuntary dismissal pursuant to MCR 2.504(B)(2), under which "on the facts and the law the plaintiff has shown no right to relief," but the trial court's underlying factual findings will not be disturbed unless this Court is definitely and firmly convinced that the trial court made a mistake. Samuel D Begola Services, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995). We review de novo a trial court's grant of summary disposition and a trial court's interpretation of a contract. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999); Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003). As an initial matter, we have reviewed the record carefully, and we are satisfied that all of the learned trial judge's factual findings are amply supported. We additionally note that plaintiffs' equitable theories are typically considered to be defenses, rather than causes of action, but because we agree with the trial court's conclusion that plaintiffs failed to demonstrate the requisite elements of any of them, the unusual procedural posture is of no consequence. We note initially that plaintiffs' equitable theories are typically considered to be defenses, not causes of action. Nevertheless, the trial court did not make any clearly erroneous findings of fact, and on the basis of those factual findings, its legal conclusions regarding the equitable theories set forth in plaintiffs' Count IV were correct: plaintiffs failed to demonstrate that the requisite elements of any of them had been satisfied. The entirety of Count IV was premised on the general theory that defendants had failed to enforce the deed restrictions and/or had themselves violated those deed restrictions, and as a consequence they were no longer equitably entitled to enforce those deed restrictions. We disagree. "`A waiver is a voluntary relinquishment of a known right." McDonald, supra at 204, quoting Dahrooge v Rochester German Ins Co, 177 Mich 442, 451-452; 143 NW 608 (1913). A waiver entails "an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon." Warren v Crane, 50 Mich 300, 301; 15 NW 465 (1883). It is logically necessary, therefore, for a party to have full awareness of any material facts in order to make a truly voluntary and intentional decision to waive a right. See Fitzgerald v Hubert Herman, Inc, 23 Mich App 716, 718; 179 NW2d 252 (1970). Acquiescence simply means some kind of consent or agreement that is implied from a lengthy period of peaceful inaction when presented with something to which a party could object. "The doctrine of estoppel by acquiescence presupposes that the party against whom the doctrine is asserted was guilty of inaction." B.P.A. II v Harrison Twp, 73 Mich App 731, 735; 252 NW2d 546 (1977). It is a venerable doctrine as to settling property line disputes: It has been held very generally, that when there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession. Where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds. But where the parties have only tried to find the true boundary, it has -4-

been held that the statute was not infringed, and the line was fixed by acquiescence. [Smith v Hamilton, 20 Mich 433, 438 (1870).] However, a "mere act of acquiescence" is not sufficient. Wood v Denton, 53 Mich App 435, 439-440; 219 NW2d 798 (1974). There are three theories of legal acquiescence: acquiescence for the statutory period of fifteen years, acquiescence in a mutual agreement following a dispute, and acquiescence based on a description in a subsequent deed. Pyne v Elliott, 53 Mich App 419, 426-428; 220 NW2d 54 (1974). As with waiver, it is not logically possible to "acquiesce" in something without knowledge that there was something in which to acquiesce or without some genuine uncertainty as to the matter in which the party has allegedly acquiesced. "Two requirements must be met to establish abandonment. First, it must be shown that there is an intent to relinquish the property and, second, there must be external acts that put that intention into effect. Nonuse alone is insufficient to prove abandonment." Sparling Plastic Industries, Inc v Sparling, 229 Mich App 704, 717-718; 583 NW2d 232 (1998) (internal citation omitted). Whether this applies to property or to rights, it is again clear that one cannot intentionally abandon something without knowledge that one is doing so. Taking waiver, acquiescence, and abandonment together, all three legal concepts require the party against whom they are asserted (in this case, defendants) to have had knowledge of something (in this case, plaintiffs' violations of the deed restrictions) and to have acted in a way that, at a minimum, reflected a lack of interest. In other words, as defendants correctly conclude, plaintiffs were required to show that defendants knew about the lot splits and that defendants minimally did nothing at all in response to that knowledge. The trial court correctly found that none of these three doctrines could have applied. The testimony showed that none of the plaintiffs gave notice to any of their neighbors

Download WILLIAM VANBYNEN V BUHL BURTON.pdf

Michigan Law