William W Carruthers v. Frederic S Shaffer Jr Family Lp II ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM W. CARRUTHERS, HUNT/KERN UNPUBLISHED
COTTAGE, LLC, DAVID E. KERN, February 24, 2015
KATHERINE S. KERN, MARY G. PETERS,
ROBERT H. RUSSELL, LEAH H. STEARNS,
and SALLY VAN VLECK,
Plaintiffs-Appellees,
v No. 319091
Grand Traverse Circuit Court
FREDERIC S. SHAFFER JR. FAMILY LIMITED LC No. 12-029338-CH
PARTNERSHIP, II,
Defendant-Appellant,
and
NE-AH-TA-WANTA RESORT ASSOCIATION,
Defendant-Appellee.
Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.
PER CURIAM.
Defendant-appellant (the partnership) appeals as of right an order of the circuit court
granting plaintiffs’ motion for summary disposition on count I of plaintiffs’ three-count
complaint to quiet title to disputed property; the three counts reflected three different theories
under which plaintiffs claimed to hold an easement interest in a walkway. Count I sought a
declaratory judgment recognizing a walkway easement as reserved under a 1923 deed. The
parties stipulated to the dismissal of count II of plaintiffs’ complaint, which had sought
recognition of a walkway easement by prescription (adverse possession principles applied to
easements). The circuit court, with a caveat discussed below, granted the partnership’s motion
for summary disposition on count III of plaintiffs’ complaint, which had sought a declaratory
judgment recognizing a walkway easement pursuant to the private rights held by plat lot owners
to platted streets. We affirm the circuit court’s ruling that recognized the existence and
enforceability of a continuing walkway easement.
The disputed walkway crosses Cottage Grove Avenue, which platted road was located
adjacent to and west of the Bower’s Harbor shoreline, while also abutting various parcels on
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their eastern borders, including lots owned by the partnership, creating a path of separation
between the lots and the water. The partnership is the owner of lot 15 and the southern half of
lot 13 in block one, which are both adjacent to Cottage Grove Avenue, along with lot 14 in block
one in the Ne-Ah-Ta-Wanta plat in Peninsula Township. Plaintiffs are lot owners in the Ne-Ah-
Ta-Wanta plat, including some who own lots in block 1 adjacent to Cottage Grove Avenue,
and/or shareholders of the Ne-Ah-Ta-Wanta Resort Association who wish to use the walkway to
access the shoreline and other common areas on the peninsula. The section of the walkway at
issue is the section which passes over that portion of Cottage Grove Avenue directly abutting the
partnership’s property. The partnership, claiming ownership of that portion of Cottage Grove
Avenue and therefore ownership of the walkway located therein, erected a fence across and over
the walkway, accompanied with a no-trespassing sign, as a measure to block access by others,
including plaintiffs. For nearly a century, the walkway was utilized by lot owners in the plat
without dispute.
The Universalist Resort Association (URA), a former Michigan corporation organized
under 1889 PA 39, established the Ne-Ah-Ta-Wanta plat on August 4, 1890, and dedicated
multiple streets for public use, including Cottage Grove Avenue. No governmental entity or
authority ever formally or informally accepted the dedicated street, and there is no dispute
between the parties on that matter. In 1890, the URA deeded lots 13, 14, and 15 to individual
purchasers; the earliest predecessors to the partnership’s interests. It is these conveyances that
the partnership contends, for reasons discussed below, created fee interests held by their
predecessors in the abutting portions of Cottage Grove Avenue to the full extent of its width
down to the lake, including the area of the now-disputed section of walkway.
Around 1907, the URA became insolvent and Orrin E. Brown became the receiver of “all
the estate and effects” of the URA. Brown sold all of the URA’s remaining property in the Ne-
Ah-Ta-Wanta plat to Elizabeth R. Furman and Mary Kroupa at a public auction on May 11,
1907. The deed indicated that the URA’s property was “platted into lots and streets by plat
dedicated [to] the public as the plat of ‘Neahtawanta.’ ” In addition to all unsold lots within the
Ne-Ah-Ta-Wanta plat, the deed conveyed to Furman and Kroupa “all other property, estate and
effects of said dissolved corporation of every kind and nature and wherever situated . . . together
with all and singular the hereditaments and appurtenances thereunto belonging.” Thereafter,
Kroupa apparently deeded her interest to Furman’s husband, and the Furmans together deeded
the property to Leon Titus.
On May 12, 1908, Titus deeded the unsold lots in the Ne-Ah-Ta-Wanta plat remaining
from the conveyance by the Furmans to the Ne-Ah-Ta-Wanta Resort Association. This deed
transferred “all and singular the hereditaments and appurtenances thereunto belonging” to the
conveyed property within the plat. The deed made multiple references to the recorded plat. On
August 6, 1923, the Ne-Ah-Ta-Wanta Resort Association, by quitclaim deed, conveyed to Mary
Black, Frances Hunt, Eloise Howe, and Margo Minor the following:
All that tract formerly occupied and used as part of the highway abutting
upon and next to the lots in Block One (1) of Nehatawanta, according to the plat
thereof recorded in the office of the register of deeds for Grand Traverse County,
August 29, 1893, in Liber 2, page 46.
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Together with all and singular the hereditaments and appurtenances
thereunto belonging or in anywise appertaining: TO HAVE AND TO HOLD the said
premises above described to the said parties of the second part, and to their heirs
and assigns, to the sole and only proper use, benefit and behoof of the said parties
of the second part, their heirs and assigns forever; subject, however, to the right of
the grantor herein and any and all other parties whomsoever, which said right is
hereby excepted and reserved to a right of way over the premises herein granted
for pedestrian travel only. [Emphasis added.]
Although the 1923 deed did not refer to the highway abutting the lots in block one as “Cottage
Grove Avenue,” the circuit court found that the deed was in fact referencing Cottage Grove
Avenue. The circuit court also found that the language of the 1923 deed reserved an easement
for pedestrian use over Cottage Grove Avenue in favor of all lot owners in the Ne-Ah-Ta-Wanta
plat and all members of the Ne-Ah-Ta-Wanta Resort Association. The partnership adamantly
maintains that the 1923 deed did not and could not convey any interest in that portion of Cottage
Grove Avenue that abutted its property, given that the partnership’s predecessors in title held a
full fee simple interest in that portion, not the Ne-Ah-Ta-Wanta Resort Association, in light of
the fact that the dedication of Cottage Grove Avenue had never been accepted by a governmental
entity or authority. Thus, according to the partnership, the Ne-Ah-Ta-Wanta Resort Association
lacked the legal capacity to convey the roadway it did not own. And therefore, it was impossible
for the Ne-Ah-Ta-Wanta Resort Association to reserve any easement in Cottage Grove Avenue
for the benefit of others. The four grantees in the 1923 deed were the owners of lots in block I
that abutted Cottage Grove Avenue, and we further note that grantee Margo Minor was a
predecessor in title to the partnership’s property.
In September 1978, Frederic S. Shaffer, Jr., Margo Shaffer, and Margaret Shaffer Smith,
the partnership’s predecessors in title, filed an application in Grand Traverse Circuit Court to
vacate the portions of Cottage Grove Avenue abutting their lots (13 and 15) in block one of the
Ne-Ah-Ta-Wanta plat. On October 13, 1980, the court issued an order vacating the portions of
Cottage Grove Avenue abutting lots 13 and 15, “[s]ubject to easements or restrictions, if any.”
The judgment vested title to Cottage Grove Avenue in the partnership’s predecessors “free and
clear of all right and title which the County of Grand Traverse, Township of Peninsula, or the
public generally, has or heretofore may have had, by reason of any survey, plat or dedication
thereof.”
In August 2012, after the partnership had erected the fence and attempts at settlement
failed, plaintiffs filed a complaint claiming the right to use the walkway across Cottage Grove
Avenue, including that portion abutting the partnership’s property. In count I, plaintiffs sought a
declaratory judgment recognizing a walkway easement as reserved under the 1923 deed. In
count II, plaintiffs claimed that an easement by prescription had been established with respect to
the walkway. In count III, plaintiffs sought a declaratory judgment recognizing a walkway
easement pursuant to the private rights held by plat lot owners to platted streets. On motions and
countermotions for summary disposition, the circuit court granted summary disposition in favor
of plaintiffs with respect to count I of their complaint. On count I, the circuit court found that the
1923 deed “reserved a valid easement for pedestrian purposes across Cottage Grove Avenue,
including any portion of Cottage Grove Avenue that [was subsequently] vacated.” The circuit
court entered a stipulated order dismissing count II of plaintiffs’ complaint without prejudice.
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The circuit court granted summary disposition in favor of the partnership on count III of
plaintiffs’ complaint, but then noted that the order “shall not be construed as impairing any of the
relief granted by the court in its order on count I.”
We review de novo a trial court’s decision on a motion for summary disposition. Latham
v Barton Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008). In this case, the circuit court
did not specifically indicate whether it granted plaintiffs’ motion for summary disposition
pursuant to MCR 2.116(C)(8) or (C)(10), which grounds were both argued by plaintiffs in their
motion. However, because the court considered documents outside the pleadings, we review the
court’s decision under MCR 2.116(C)(10). See Spiek v Mich Dep’t of Transp, 456 Mich. 331,
338; 572 NW2d 201 (1998). Summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of a complaint and entails examination of all the documentary evidence submitted in
the case in a light most favorable to the party opposing the motion. Maiden v Rozwood, 461
Mich. 109, 120; 597 NW2d 817 (1999). If “the proffered evidence fails to establish a genuine
issue regarding any material fact, the moving party is entitled to judgment as a matter of law.”
Id.
On appeal, the partnership argues that the circuit court erred in granting plaintiffs’ motion
for summary disposition on count I because the Ne-Ah-Ta-Wanta Resort Association did not
possess property rights in Cottage Grove Avenue when it executed the 1923 deed. Therefore,
according to the partnership, the Ne-Ah-Ta-Wanta Resort Association did not have the legal
capacity to reserve any easement over Cottage Grove Avenue.
A dedication is “an appropriation of land to some public use, accepted for such use by or
in behalf of the public.” Clark v Grand Rapids, 334 Mich. 646, 656-657; 55 NW2d 137 (1952).
“For a road to become public property, there must be (a) a statutory dedication and an acceptance
on behalf of the public, (b) a common-law dedication and acceptance, or (c) a finding of highway
by public user.” 2000 Baum Family Trust v Babel, 488 Mich. 147, 150; 793 NW2d 633 (2010).
Here, a statutory dedication under the plat act was pursued by the plat proprietor, URA, because
the dedication was contained in a recorded plat that designated roads for public use, evidencing a
clear dedicatory intent. Id. at 149. Two elements are required to establish a public road through
statutory dedication: (1) “a recorded plat designating the areas for public use, evidencing a clear
intent by the plat proprietor to dedicate those areas to public use,” which we had here, and (2)
“acceptance by the proper public authority.” Kraus v Dep’t of Commerce, 451 Mich. 420, 424;
547 NW2d 870 (1996). A competent public authority must properly accept dedicated property to
establish a public road because a dedicator cannot impose property upon a public entity without
consent. Wayne Co v Miller, 31 Mich. 447, 450 (1875). “[P]ublic acceptance is always
required[.]” 2000 Baum Family Trust, 488 Mich. at 149. “Under any other rule, duties and
financial responsibilities would be imposed on the government for dedicated roads that it never
knowingly or intentionally accepted.” Id. at 150.
A public authority may formally accept a dedicated roadway through resolution or
ordinance, or may informally accept a dedicated roadway by expending public funds to repair,
improve, or construct a road. Rice v Clare Co Rd Comm, 346 Mich. 658, 665; 78 NW2d 651
(1956). With respect to the historical timeframe at issue here, if a road was accepted by a public
authority, the public obtained what was described as a “base fee,” which conveyed only the
rights necessary to fulfill the use and purpose for which the property was dedicated. 2000 Baum
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Family Trust, 488 Mich. at 158-166, 173 (discussing the Plat Act of 1887; 1887 PA 309);1 see
also Baldwin Manor, Inc v City of Birmingham, 341 Mich. 423, 430; 67 NW2d 812 (1954) (“[I]f
a dedication is made for a specific or defined purpose, neither the legislature, a municipality or
its successor, nor the general public has any power to use the property for any other purpose than
the one designated.”) (citation and quotation marks omitted). The owner of property that abuts a
public street holds an interest the same as the general public to use the street, holds a
reversionary interest to the center of the street, and holds the right of ingress and egress to and
from the street. 2000 Baum Family Trust, 488 Mich. at 152.
When a public street is vacated or abandoned, the land reverts to the abutting property
owners. Id. at 155-156 (“[W]ithout regard to the road’s location, title to a street that is vacated
or abandoned vests in the owners of the lots abutting the street.”); see also Mich Central R Co v
Miller, 172 Mich. 201, 208; 137 N.W. 555 (1912) (“It is elementary that upon the vacation of a
street or alley the land reverts to the abutting owner or owners.”). Likewise, as to publicly-
accepted roadways, “[w]here one conveys land bounded upon a public highway, or lots upon a
plat, representing them to be bounded by a street, the grantee takes the land to the center of the
highway or street.” Scudder v Detroit, 117 Mich. 77, 80; 75 N.W. 286 (1898). Here, had the
dedication of Cottage Grove Avenue for public use been accepted, the accepting governmental
entity would have held a base fee, with the abutting lot owners holding a reversionary interest
and a property interest that the partnership refers to as an “underlying fee” (that part of a fee
interest not encompassed by the government’s base fee in the roadway).
The question that arises concerns identifying the nature of a street-abutting lot owner’s
interest when a dedication of the street for public use is never accepted and the street never
becomes a public street. In Field v Village of Manchester, 32 Mich. 279, 281 (1875), our
Supreme Court indicated:
It is very evident that something more than a mere offer of dedication by
platting is necessary in order to make it a public highway. There must be an
1
Our Supreme Court explained in more detail:
The lower courts' fundamental error was in their understanding of the
property interest conveyed to the [governmental entity] by the 1887 plat act. We
are not left to analogy or intimation in ascertaining the law of this state governing
the nature of this interest. The statute and our precedents dating back well over a
century tell us all we need to know to decide this case. We know that the “fee”
conveyed by the statute is held “in trust to and for the uses and purposes therein
designated, and for no other use or purpose whatever.” 1887 PA 309. We know
this fee conveys only “nominal title.” We know that the statute does not convey
“title in the nature of a private ownership.” We know that the [governmental
entity] was not conveyed any rights that were not necessary to the use and
purpose for which the street was dedicated. And we know that the nomenclature
to describe this interest is a “base fee.” [2000 Baum Family Trust, 488 Mich. at
173 (citations omitted).]
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acceptance on the part of the public. When a person in platting property maps out
streets thereon, the authorities may accept them in whole or in part. . . . In case
they do not, however, within a reasonable time accept of the streets thus offered to
be dedicated, the owners of the lands fronting thereon, may again take possession
of the property, and treat it as though, in all respects, no offer of dedication had
ever been made. [Id. at 281 (emphasis added).]
In Loud v Brooks, 241 Mich. 452, 456; 217 N.W. 34 (1928), the Michigan Supreme Court
similarly observed:
We hold the correct rule to be that a conveyance of land bounded on a
highway, street, or alley carries with it the fee to the center thereof, subject to the
easement of public way, provided the grantor at the time of conveyance owned to
the center and there are no words in the deed showing a contrary intent, whether
the dedication of the highway, street, or alley has been accepted or not, and
whether it has been opened or not. [Emphasis added; see also Minerva Partners,
Ltd v First Passage, LLC, 274 Mich. App. 207, 215-216; 731 NW2d 472 (2007).]
The same proposition was reiterated by our Supreme Court in Shewchuck v City of
Cheboygan, 372 Mich. 110, 114; 125 NW2d 273 (1963), wherein the Court stated:
The defendant city by its nonacceptance of the dedication and by nonuser
is barred from claiming any rights in the disputed portion of the strip in question,
and the case is remanded so that a suitable order may be issued accordingly, and,
further, for such proceedings as are necessary to grant appellants' prayer for relief,
namely, that the whole strip be divided according to abutting footage on the strip,
among plaintiffs and defendants. [Emphasis added; quotation marks and ellipsis
omitted.]
The rule reflected in Field, Loud, and Shewchuck holds true “unless something appears
upon the plat, or in the terms of the conveyance, excluding the title from passing under a
boundary so described.” Plumer v Johnston, 63 Mich. 165, 173; 29 N.W. 687 (1886), overruled in
part on other grounds in Loud, 241 Mich. 452.
Accordingly, on the strength of these authorities, the original purchasers of the lots now
owned by the partnership, which were deeded to them by the URA back in 1890, held ownership
or fee simple interests in Cottage Grove Avenue where it abutted their lots (lots 13 and 15), as
the roadway was never accepted by a governmental entity or authority and no base fee arose.2
Given that the shoreline abutted the other side of the roadway, as opposed to other parcels or
lots, the ownership interests extended the full width of Cottage Grove Avenue. See 2000 Baum
2
It appears that the 1890 plat contained no language providing the URA with a reversionary
interest in the platted public roads should the dedication not be accepted. And there is no
indication that the 1890 deeds contained language retaining title in the URA to abutting
roadways.
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Family Trust, 488 Mich. at 138-140 (recognizing not only lot-owner rights in the abutting
roadway stretching between the lots and the waterway but also riparian rights); see also Valoppi
v Detroit Engineering & Machine Co, 339 Mich. 674, 678; 64 NW2d 884 (1954).
This brings us to the 1923 quitclaim deed that was executed and recorded 33 years after
the plat was established and beyond a reasonable time for acceptance by a public entity or
authority. Consistent with the partnership’s theory and the recited authorities, and based on the
existing record of deeds, the Ne-Ah-Ta-Wanta Resort Association did not hold title to Cottage
Grove Avenue, such that it could convey the roadway to the four lot owners that had property
abutting it; those lot owners effectively already held respective ownership interests in Cottage
Grove Avenue.3 This of course places into question the validity of the reservation of an
easement contained in the 1923 deed, as a party cannot reserve an interest in property not owned
by that party.
We note that the 1923 deed was a quitclaim and not a warranty deed. The grantor of a
quitclaim deed warrants no title and conveys only that interest that he or she actually owns at the
time of conveyance, which may be no interest at all. Richards v Tibaldi, 272 Mich. App. 522,
541; 726 NW2d 770 (2006). “A deed of quit claim and release, of the form in common use, shall
be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain
and sale.” MCL 565.3. The 1923 conveyance was made “for and in consideration of the sum of
One Dollar and other good and valuable considerations to it in hand paid by the” grantees, which
included the partnership’s own predecessor in interest. We surmise that in 1923 there existed
some uncertainty as to the ownership status of Cottage Grove Avenue, given that there had been
no acceptance of this dedicated road, and that a quitclaim deed was employed by the Ne-Ah-Ta-
Wanta Resort Association and the grantees to eliminate any possibility of future disputes over
ownership.4 This would explain the use of a quitclaim deed, as the Ne-Ah-Ta-Wanta Resort
3
The Ne-Ah-Ta-Wanta Resort Association presents an argument under MCL 455.10, which is
part of the Summer Resort and Park Associations Act (SRPAA), MCL 455.1 et seq. (see 1897
PA 230), pursuant to which the Association was purportedly incorporated. MCL 455.10
provides that the board of directors of an SRPAA corporate entity “shall have jurisdiction over
the lands of the corporation and all streets, alleys, and highways passing through and over the
same[.]” However, assuming the applicability of this provision, having jurisdiction over streets
does not equate to having a real property interest in the streets that is subject to conveyance.
The Ne-Ah-Ta-Wanta Resort Association additionally argues that the 1908 deed from Titus to
the Association conveyed “lots and streets.” However, the quote is taken out of context. The
1908 deed provided, “The property above described has heretofore been platted into lots and
streets, by plat dedicated to the public . . . .” Moreover, there is no indication that previous deeds
in the chain of title reflected conveyances of the roadways, making the 1908 deed just as
susceptible to doubt as the 1923 deed even if the 1908 deed expressly reflected a conveyance of
streets from Titus to the Association.
4
Of course, it is also feasible that, given the many years that have passed and the age and
legibility of the documentation, and considering that the 1923 deed itself was only discovered
fortuitously in 2007, there may well have been some instrument providing ownership of Cottage
Grove Avenue to the Ne-Ah-Ta-Wanta Resort Association prior to 1923.
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Association was not warranting that it actually owned the road. If it did actually hold an
ownership interest, the quitclaim deed conveyed it to the grantees, putting all concerns to rest.
We find it a bit disconcerting that the partnership, whose predecessor in interest benefited
from the 1923 quitclaim deed either through an actual conveyance to her or through the
attainment of some of peace of mind with the confirmation of ownership, now seeks to disavow
the deed and its reservation of an easement. The 1923 deed, in our view, reflected an
acknowledgment by the grantees of an easement for pedestrian travel to be enjoyed by the Ne-
Ah-Ta-Wanta Resort Association and lot owners in the plat. As far as the grantees were
concerned in 1923, the easement would be ongoing in light of the deed, and Cottage Grove
Avenue and the walkway were indeed used for the years to come in a manner consistent with an
easement. Principles of estoppel and waiver would seem to bar the partnership’s attempt at this
late date to challenge the existence of the easement. Had the Ne-Ah-Ta-Wanta Resort
Association held title to Cottage Grove Avenue in 1923, the reserved easement would have been
indisputably valid, circumventing the partnership’s theory in this case. Regardless, preexisting
ownership of Cottage Grove Avenue by the grantees of the 1923 deed and the lack of the
Association’s capacity to convey the roadway did not mean that no easement existed, quite the
contrary.
Despite the fact that the partnership’s predecessors held title to Cottage Grove Avenue
free from any rights held by the public at large because the dedicated roadway was never
publicly accepted, and even if the Ne-Ah-Ta-Wanta Resort Association lacked the capacity to
convey the roadway under the 1923 deed, the Association and the owners of lots in the plat
already held easement rights to use the roadway by virtue of simply purchasing property within
the plat under deeds referencing the plat. A purchaser of lands within a recorded plat receives
not only the interest described in a deed but also whatever rights are indicated from the plat.
Kirchen v Remenga, 291 Mich. 94, 104; 288 N.W. 344 (1939) (“The sale of lots with reference to a
plat in which areas are designated as parks passes to the purchasers of the lots a common right to
use such areas for park purposes.”). In Nelson v Roscommon Co Rd Comm’n, 117 Mich. App.
125, 132; 323 NW2d 621 (1982), this Court explained:
Defendant's last argument is that the other lot owners in the subdivision
have inherent rights to use the streets and public areas dedicated in the recorded
plat, and their rights were ignored because plaintiffs failed to join them in the
litigation. Plaintiffs counter that since the street has never been open to public use,
the other lot owners have no right to use it nor any interest in it such that they
would have to be made part of this litigation.
Plaintiff's contention that the other subdivision lot owners have no interest
in the vacated street is incorrect. It is well-established that a purchaser of property
in a recorded plat receives not only the interest as described in the deed but also
whatever rights are indicated in the plat. A grantee of property in a platted
subdivision acquires a private right entitling him to the use of the streets and ways
laid down on the plat, regardless of whether there was a sufficient dedication and
acceptance to create public rights. Therefore, whether or not the street in question
was properly dedicated or accepted by Gerrish Township is irrelevant as to the
interests of the property owners within the subdivision. The private rights of those
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property owners to use the dedicated street cannot be extinguished by the
township's failing to accept the street for public use. [Citations and quotation
marks omitted.]
A grantee of property within a plat acquires a private right entitling him “to the use of the streets
and ways laid down on the plat,” regardless of whether there was a dedication and acceptance to
create public rights. Rindone v Corey Community Church, 335 Mich. 311, 317; 55 NW2d 844
(1952).
Accordingly, whether recognized under the 1923 deed or simply on the basis of the
platted streets and purchase of lots referencing the plat, the Ne-Ah-Ta-Wanta Resort Association
and plat lot owners held and hold easement rights over the walkway and the area that formed
Cottage Grove Avenue. Furthermore, the easement survived the 1980 court judgment vacating
Cottage Grove Avenue. The judgment and the vacation of the roadway was “[s]ubject to
easements or restrictions, if any.” And the judgment vested title to Cottage Grove Avenue in the
partnership’s predecessors “free and clear of all right and title which the County of Grand
Traverse, Township of Peninsula, or the public generally, has or heretofore may have had, by
reason of any survey, plat or dedication thereof.” (Emphasis added.) This order simply did not
vacate or terminate the private easement interests held by plaintiffs and plat lot owners.
We recognize that our analysis is more consistent with count III of plaintiffs’ complaint
upon which the circuit court granted summary disposition in favor of the partnership. However,
as reflected above, the circuit court very astutely added the caveat that the order “shall not be
construed as impairing any of the relief granted by the court in its order on count I.” The relief
granted by the circuit court was proper. Moreover, the order on count III was the final order in
the case triggering our jurisdiction on the claim of appeal, MCR 7.203(A)(1), providing us the
authority to reverse the order.
Affirmed. Having fully prevailed on appeal, plaintiffs are awarded taxable costs pursuant
to MCR 7.219.
/s/ Michael J. Riordan
/s/ William B. Murphy
/s/ Mark T. Boonstra
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