Cary Loyer v. Paula M Rini ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CARY LOYER and EILEEN LOYER, UNPUBLISHED
October 6, 2022
Plaintiffs-Appellees,
v No. 356771
Oakland Circuit Court
PAULA M. RINI, LC No. 2017-158333-CZ
Defendant-Appellant,
and
STEPHEN HUDSON,
Defendant.
Before: CAVANAGH, P.J., and GARRETT and YATES, JJ.
PER CURIAM.
In this boundary dispute, defendant Paula M. Rini appeals as of right the trial court’s
judgment, entered after a bench trial, holding that plaintiffs Cary and Eileen Loyer have a 30-foot-
wide easement over the disputed property, a private road known as Robert Castle Drive. 1 We
vacate and remand for further proceedings.
1
Stephen Hudson was also named as a defendant, but he was dismissed from this case before trial
and is not a party to this appeal.
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I. BACKGROUND
This case arises from a boundary dispute between the Loyers and Rini, who are neighbors
in White Lake Township, Michigan. The properties at issue are depicted below in the survey
attached to the trial court’s judgment:2
The Loyers reside at Lot 021 and have lived there since 1984. When this action was filed, Rini
was the sole owner of Lot 031 and resided there with her fiancé, Stephen Hudson. North of the
Loyers’ property and east of Rini’s property is Lot 017. When this action was filed, Lot 017 was
owned by Charles Murphy, but he subsequently conveyed the property to Rini and Hudson.
2
As depicted in the survey, we will refer to Parcel No. 12-15-251-021 as Lot 021, Parcel No. 12-
15-251-031 as Lot 031, and Parcel No. 12-15-251-017 as Lot 017.
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At issue is an easement on Robert Castle Drive, a private road that runs from the Loyers’
property north to Pontiac Lake Road, and is the only means of ingress (entry) and egress (exit)
from Lot 021, which otherwise is landlocked. After Rini and Hudson began placing obstructions
in the roadway that impeded the Loyers’ access to their property, the Loyers filed this action to
establish and enforce their rights to use a 30-foot-wide easement on Robert Castle Drive for ingress
and egress. The Loyers’ complaint alleged that the owners of the properties immediately adjacent
to the easement entered into a private road maintenance agreement, recorded in 1987, which
memorialized “their rights and obligations” under the 30-foot-wide easement; the owners of Lot
031—Rini’s predecessors in interest—did not join this agreement. The complaint also identified
Rini’s Lot 031 as the only other property at issue in the lawsuit.
Following a bench trial, the trial court held that the Loyers had a 30-foot-wide easement
for ingress and egress, consistent with the recorded private road maintenance agreement: two
adjacent 15-foot-wide easements, one running along the eastern border of Lot 031 and the other
along the western border of Lot 017. In addition, the court found that the Loyers had an easement
by prescription and acquiescence at the curved ends of the roadway, extending beyond the 30-foot
width, as depicted in a survey prepared by GreenTech Engineering, Inc. Rini now appeals.
II. DISCUSSION
Rini argues that the trial court’s judgment must be reversed because (1) there is no writing
enforceable under the statute of frauds that establishes the Loyers’ easement rights over Lot 031,
and (2) the court was not permitted to issue a judgment affecting Lot 017 since that property was
never properly included in this lawsuit.
A. STANDARDS OF REVIEW
This case involves an action to quiet title—a suit brought by the Loyers to determine their
interests in land. See MCL 600.2932; Richards v Tibaldi, 272 Mich App 522, 532; 726 NW2d
770 (2006). An action to quiet title is equitable in nature and equitable rulings are reviewed de
novo. Houston v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). “[T]he
interpretation and applicability of a statute, such as the statute of frauds” is also reviewed de novo.
Zaher v Miotke, 300 Mich App 132, 140; 832 NW2d 266 (2013). “De novo review means that we
review the legal issue[s] independently” and without deference to the trial court. Wright v Genesee
Co, 504 Mich 410, 417; 934 NW2d 805 (2019). The trial court’s factual findings in a bench trial
are reviewed for clear error, but its legal conclusions are reviewed de novo. Trahey v Inkster, 311
Mich App 582, 593; 876 NW2d 582 (2015). “A finding is clearly erroneous if there is no
evidentiary support for it or if this Court is left with a definite and firm conviction that a mistake
has been made.” Id. (quotation marks and citation omitted).
B. LOT 031
Rini argues that the trial court erred by holding that a 30-foot-wide easement for ingress
and egress existed, which included a 15-foot-wide easement on Rini’s Lot 031. Rini contends that
the trial court’s judgment contravenes the statute of frauds because the judgment relies on the
private road maintenance agreement, which was not signed by Rini or her predecessors in interest
on Lot 031, and the GreenTech survey, which does not establish that the easement is 30 feet wide.
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In order to preserve an issue for appeal, a party generally must raise the issue before the
trial court. Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994).
And “so long as the issue itself is not novel, a party is generally free to make a more sophisticated
or fully developed argument on appeal than was made in the trial court.” Glasker-Davis v
Auvenshine, 333 Mich App 222, 228; 964 NW2d 809 (2020). Although Rini did not specifically
raise a statute-of-frauds argument before the trial court, Rini asserted in her closing brief that the
private road maintenance agreement could not be used to create easement rights over Lot 031
because “[n]either [Rini] nor [Rini’s] predecessors signed the road maintenance agreement.” In
essence, Rini’s reliance on the statute of frauds on appeal is a more advanced argument about the
validity of the private road maintenance agreement to create easement rights over Lot 031. Thus,
we consider this issue preserved for our review.3
“In Michigan, the sale of land is controlled by the statute of frauds,” found at MCL 566.106
and MCL 566.108. Lakeside Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 524; 644
NW2d 765 (2002). MCL 566.106 provides:
No estate or interest in lands, other than leases for a term not exceeding 1
year, nor any trust or power over or concerning lands, or in any manner relating
thereto, shall hereafter be created, granted, assigned, surrendered or declared,
unless by act or operation of law, or by a deed or conveyance in writing, subscribed
by the party creating, granting, assigning, surrendering or declaring the same, or by
some person thereunto by him lawfully authorized by writing.
MCL 566.108 similarly states:
Every contract for the leasing for a longer period than 1 year, or for the sale
of any lands, or any interest in lands, shall be void, unless the contract, or some
note or memorandum thereof be in writing, and signed by the party by whom the
lease or sale is to be made, or by some person thereunto by him lawfully authorized
in writing[.]
In Forge v Smith, 458 Mich 198, 205; 580 NW2d 876 (1998), our Supreme Court held:
An easement is an interest in land that is subject to the statute of frauds. In
order to create an express easement, there must be language in the writing
3
Even if we determined that Rini did not preserve the issue, we “may overlook preservation
requirements if the failure to consider the issue would result in manifest injustice, if consideration
is necessary for a proper determination of the case, or if the issue involves a question of law and
the facts necessary for its resolution have been presented.” Smith v Foerster-Bolser Constr, Inc,
269 Mich App 424, 427; 711 NW2d 421 (2006). Consideration of Rini’s statute-of-frauds
argument “is necessary for a proper determination of the case,” and “the issue involves a question
of law and the facts necessary for its resolution have been presented.” Id.-4-
manifesting a clear intent to create a servitude. Any ambiguities are resolved in
favor of use of the land free of easements. [Footnotes omitted.]
Rini does not dispute the existence of an easement on Robert Castle Drive but instead
contests the size of that easement as found by the trial court. Rini’s statute-of-frauds argument
reflects the trial court’s lack of clarity in explaining the legal basis for its determination that the
Loyers have a 30-foot-wide easement, which includes a 15-foot-wide easement over a portion of
Rini’s Lot 031. In its opinion and order, the trial court stated that the Loyers “have an easement
in conformity with the private road maintenance agreement which extends fifteen feet on either
side of the property line.” The trial court’s final judgment likewise states that the Loyers “have an
easement in conformity with the Private Road Maintenance Agreement . . . which extends fifteen
(15) feet on either side of the property line as described in that document.” As Rini indicates,
however, neither she nor an owner of record for Lot 031 was a party to the private road
maintenance agreement, so that written agreement cannot serve as a basis for finding that the
Loyers have an easement interest over a 15-foot-wide portion of Lot 031 enforceable under the
statute of frauds. Nor did the Loyers introduce into evidence any other document signed by the
owners of Lot 031, or their predecessors in interest, expressly granting an easement over Lot 031.
The Loyers argue that, although the trial court referenced the private road maintenance
agreement when determining the scope of the easement, the trial court did not solely rely on this
agreement to find the existence of an easement over Lot 031. Rather, the Loyers contend, the trial
court analyzed several recorded instruments that supported a 30-foot easement. Even if that is
accurate, it does not explain the legal basis for the trial court’s determination that an easement over
Lot 031 existed in the first instance. The legal basis for the trial court’s finding that the Loyers
have a 30-foot-wide easement that extends 15 feet on either side of the property line is simply
unclear from the record.
In its opinion and order, the trial court found that the Loyers have an easement by
acquiescence and prescription at the curves that extend beyond the 15-foot-wide portions of Lots
017 and 031, at both the northern and southern ends of Robert Castle Drive. But the trial court did
not otherwise specify its legal conclusions supporting its determination that an easement existed
with respect to the 15-foot-wide portions on either side of the property line separating Lots 017
and 031. For instance, the trial court did not specify whether the Loyers possessed an express
easement, an easement by prescription or acquiescence, an implied easement, or a property interest
derived under some other legal theory.
Although Rini is correct that an express easement would be an interest in land subject to
the statute of frauds, Forge, 458 Mich at 205, an easement interest can arise in other ways. As
noted in the trial court’s written opinion, an easement by prescription is established by actual,
continuous, open, notorious, hostile, and uninterrupted use for the relevant 15-year statutory
period. See Marlette Auto Wash, LLC, v Van Dyke SC Props, LLC, 501 Mich 192, 202; 912 NW2d
161 (2018) (explaining that a claim of easement by prescription involves the same elements as
adverse possession, except possession need not be exclusive). Further, because the Loyers’ parcel
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is landlocked, an easement could have arisen by implication. As this Court explained in Charles
A. Murray Trust v Futrell, 303 Mich App 28, 41-42; 840 NW2d 775 (2013):
An easement by necessity “may be implied by law where an owner of land splits
his property so that one of the resulting parcels is landlocked except for access
across the other parcel.” Chapdelaine v Sochocki, 247 Mich App 167, 172; 635
NW2d 339 (2001), citing Schmidt [v Eger, 94 Mich App 728, 732; 289 NW2d 851(1980)]. “An easement by necessity may arise either by grant, where the grantor
created a landlocked parcel in his grantee, or it may arise by reservation, where the
grantor splits his property and leaves himself landlocked.” Chapdelaine, 247 Mich
App at 172-173. “This sort of implied easement is not dependent on the existence
of any established route or quasi-easement prior to the severance of the estate by
the common grantor; it is first established after the severance.” Schmidt, 94 Mich
App at 733. “A right of way of necessity is not a perpetual right. It ceases to exist
when the necessity for its continuance ceases.” Waubun Beach [Ass’n v Wilson,
274 Mich 598, 609; 265 NW 474 (1936)].
The trial court did not make any factual findings or conclusions of law explaining what
legal theory supported the existence of a 30-foot-wide easement that included a 15-foot-wide
easement over Lot 031. Without knowing the factual or legal basis for the trial court’s conclusion
that the Loyers have an easement over Lot 031, it is not possible to determine whether any such
easement would even be subject to the statute of frauds. Therefore, we vacate the portion of the
trial court’s judgment holding that the Loyers have an easement over Lot 031 as specified in the
private road maintenance agreement and remand for the trial court to articulate the legal basis for
finding this easement.
C. LOT 017
Rini also argues that the trial court erred by including Lot 017 in its final judgment because
Lot 017 was not included in the Loyers’ complaint.
The trial court’s judgment expressly provides that it affects Lot 017. The judgment also
provides that the Loyers “have an easement in conformity with the Private Road Maintenance
Agreement . . . which extends fifteen (15) feet on either side of the property line as described in
that document,” which encompasses Lot 017.
MCR 3.411(B) describes the requirements for a complaint filed in an action to determine
interests in land:
(1) The complaint must describe the land in question with reasonable
certainty by stating
(a) the section, township, and range of the premises;
(b) the number of the block and lot of the premises; or
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(c) another description of the premises sufficiently clear so that the premises
may be identified.
(2) The complaint must allege
(a) the interest the plaintiff claims in the premises;
(b) the interest the defendant claims in the premises; and
(c) the facts establishing the superiority of the plaintiff’s claim.
When the Loyers filed this action, Murphy, then the owner of Lot 017, was not named as
a party, and Lot 017 was not identified in the complaint. Thus, the complaint did not describe Lot
017 at all, let alone “with reasonable certainty.” After the Loyers filed this action, Rini and Hudson
purchased Murphy’s interest in Lot 017, but the Loyers, despite having knowledge of this
transaction, never sought to amend their complaint to include Lot 017 as part of the “land in
question” in this lawsuit.
Although Lot 017 was not described in the complaint, it was the subject of substantial
evidence and testimony at trial. MCR 2.118(C) expressly contemplates this scenario, authorizing
amendments of the pleadings to conform to the evidence. MCR 2.118(C)(1) provides:
When issues not raised by the pleadings are tried by express or implied
consent of the parties, they are treated as if they had been raised by the pleadings.
In that case, amendment of the pleadings to conform to the evidence and to raise
those issues may be made on motion of a party at any time, even after judgment.
Rini never consented to the inclusion of Lot 017 in this action, either expressly or impliedly, and
the Loyers never moved to amend their complaint to include Lot 017. On the contrary, Rini
opposed the Loyers’ motion for settlement of the judgment on the ground that the court’s judgment
could not address Lot 017 because Lot 017 was not made a part of the litigation. And during trial,
Hudson’s attorney informed the trial court that although there had been discussion at trial about
“quieting title” to Lot 017, this property was not part of the complaint or the case. The trial court
responded, “We all know that, I think.” Considering this record, we cannot conclude that the
parties consented, expressly or impliedly, to the inclusion of Lot 017 in this lawsuit.
Nevertheless, the Loyers argue that Rini should be estopped from challenging the
judgment’s application to Lot 017. The Loyers assert that Rini and Hudson misled the trial court
to believe that Hudson had no interest in Lot 017—leading to Hudson’s dismissal from the suit—
when in fact, Hudson was under contract to purchase Lot 017.4 The Loyers do not cite any legal
4
Hudson moved to be dismissed from the case in March 2018 on the basis that he did not have an
interest in any property that was the subject of litigation. But Murphy testified that he entered into
a purchase agreement in January 2018 with Rini and Hudson to sell them Lot 017. Further, in
what appears to be a clear act of gamesmanship, after Hudson successfully had himself dismissed
from the case with prejudice on the basis of his representations, Rini conveyed Lot 031 to herself
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basis for their estoppel argument, and therefore we consider this argument abandoned. A party
cannot simply “announce a position . . . then leave it up to this Court to discover and rationalize
the basis for his claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Yee v Shiawassee Co Bd of Comm’rs, 251 Mich
App 379, 406; 651 NW2d 756 (2002). Even so, the Loyers’ estoppel argument does not address
their failure to include Lot 017 in the complaint, as required by MCR 3.411(B), or to amend the
pleadings to conform to the evidence, as authorized by MCR 2.118(C)(1).
The trial court erred by including Lot 017 within the scope of the easement awarded to the
Loyers because Lot 017 was not included in the Loyers’ complaint, Rini never consented to the
inclusion of Lot 017 in this action, and the Loyers never moved to amend their complaint to include
Lot 017. Accordingly, we vacate the portion of the trial court’s judgment related to Lot 017.5
D. REMAINING ARGUMENTS
Because we are vacating portions of the trial court’s judgment and remanding for further
proceedings, it is unnecessary to discuss Rini’s remaining challenges to the judgment. One of
these additional unresolved issues, however, is likely to arise on remand, so we choose to address
it for purposes of judicial efficiency.
Rini contends that the trial court was prohibited from entering a judgment affecting Lot
031 because Hudson later acquired an interest in that property and was not a party to this action at
the time judgment was entered. Although Rini failed to preserve this argument below, we reach
the issue because it “involves a question of law and the facts necessary for its resolution have been
presented.” Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006).
MCR 3.411 provides in pertinent part:
(H) Judgment Binding Only on Parties to Action. Except for title acquired by
adverse possession, the judgment determining a claim to title, equitable title, right
to possession, or other interests in lands under this rule, determines only the rights
and interests of the known and unknown persons who are parties to the action, and
and Hudson on June 4, 2018, by quitclaim deed. Despite this questionable behavior, our decision
to vacate the portion of the judgment related to Lot 017 does not turn on Hudson’s dismissal as a
party but rather relies on the Loyers’ failure to identify the property of Lot 017 in the complaint,
or to amend the complaint to conform to the evidence.
5
We express no opinion whether the Loyers do indeed have easement rights over Lot 017. We
only hold that it was improper for the court to enter a judgment that encompassed Lot 017 when
that property was never properly included as part of this action. Given our resolution of the issue,
it is also unnecessary to consider Rini’s argument that the trial court’s judgment related to Lot 017
is invalid on the ground that Hudson, an interest holder in Lot 017, was not a party to this litigation
when the judgment was entered.
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of persons claiming through those parties by title accruing after the commencement
of the action. [Emphasis added.]
Rini complains that Hudson was not a party to this lawsuit at the time the trial court entered its
judgment affecting Lot 031, but Hudson did not acquire his interest in Lot 031 until after this
lawsuit was commenced, by title acquired through Rini, a party to this action. Thus, because
Hudson’s interest in Lot 031 “accru[ed] after the commencement of the action,” MCR 3.411(H)
does not prohibit enforcement of any judgment against Hudson with respect to Lot 031.
III. CONCLUSION
We vacate the portion of the trial court’s judgment awarding the Loyers an easement over
a portion of Lot 017. We also vacate the portion of the trial court’s judgment holding that the
Loyers have an easement over a 15-foot-wide section of Lot 031 and remand for the trial court to
sufficiently articulate the legal basis for finding this easement. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Kristina Robinson Garrett
/s/ Christopher P. Yates
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