Details Automotive Finishes LLC v. Four Childrens Enterprises LLC ( 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
DETAILS AUTOMOTIVE FINISHES, LLC, UNPUBLISHED
April 21, 2022
Plaintiff-Appellee,
v No. 355711
Wayne Circuit Court
FOUR CHILDRENS ENTERPRISES, LLC and LC No. 18-005305-CH
LACRESHA WARE,
Defendants-Appellees,
and
BUCHAREST INVESTMENTS, LLC,
Defendant,
and
GAYANGA COMPANY, LLC and BRIAN
MCKINNEY,
Defendants-Appellants.
DETAILS AUTOMOTIVE FINISHES, LLC,
Plaintiff-Appellee,
v No. 356324
Wayne Circuit Court
FOUR CHILDRENS ENTERPRISES, LLC and LC No. 18-005305-CH
LACRESHA WARE,
Defendants-Appellants,
and
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BUCHAREST INVESTMENTS, LLC,
Defendant,
and
GAYANGA COMPANY, LLC and BRIAN
MCKINNEY,
Defendants-Appellees.
Before: BORRELLO, P.J., and MARKEY and SERVITTO, JJ.
PER CURIAM.
In these consolidated1 appeals involving a real property dispute, defendants appeal as of
right the trial court’s judgment in favor of the plaintiff that followed a bench trial. In Docket No.
355711, defendants Brian McKinney and Gayanga Company, LLC (Gayanga) appeal the portion
of the trial court’s judgment holding them liable and assessing damages for trespass. In Docket
No. 356324, defendants Lecresha Ware and Four Childrens Enterprises, LLC (FCE), appeal the
portion of the trial court’s judgment assessing damages against them for slander of title. For the
reasons set forth in this opinion, we affirm in part, reverse and vacate in part, and remand for
further proceedings.2
1
Details Automotive Finishes LLC v Four Childrens Enterprises LLC, unpublished order of the
Court of Appeals, entered August 10, 2021 (Docket Nos. 355711 and 356324).
2
We reject plaintiff’s argument that this Court lacks jurisdiction over McKinney and Gayanga’s
appeal because their claim of appeal was filed prematurely. Plaintiff argues that because
McKinney and Gayanga filed their claim of appeal after the trial court issued its written findings
of fact and conclusions of law on November 18, 2020, but before the trial court entered its
judgment on January 27, 2021, which resolved the amount of attorney fees issue that had been left
open in the earlier findings of fact and conclusions of law, McKinney and Gayanga were not
appealing “the final order” in this case. In general terms, this Court has jurisdiction over an appeal
of right filed by an aggrieved party from a final judgment or final order of the circuit court. MCR
7.203(A)(1). However, this Court may also grant leave to appeal from “a judgment or order of the
circuit court and court of claims that is not a final judgment appealable of right,” MCR 7.203(B)(1),
or “any judgment or order when an appeal of right could have been taken but was not timely filed,”
MCR 7.203(B)(5). Plaintiff does not claim that McKinney and Gayanga would not have been
entitled to an appeal of right had they waited for the trial court to enter its judgment on January
27, 2021, before filing their claim of appeal. Moreover, “there can be more than one final judgment
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I. BACKGROUND
On November 30, 2015, plaintiff acquired by quitclaim deed real property at 14360
Washburn Street in Detroit (the “Washburn property”) through a tax foreclosure proceeding.
Defendants Ware and/or FCE were the previous owners of the property.3 Ware and/or FCE also
owned adjacent parcels at 14385 Wyoming Street and 14365 Wyoming Street. Plaintiff’s founder,
Shannon Ferguson, testified that he purchased the Washburn property so he could expand his
business. After purchasing the property, plaintiff discovered trucks, construction equipment,4 and
boxes of files on the property. Access to the Washburn property from the public right-of-way on
Washburn Street was blocked by a concrete barrier. In March 2016, plaintiff brought eviction
proceedings against all occupants of the Washburn property and obtained a judgment of possession
and writ of eviction. There was testimony that Ware was present when a court officer carried out
the eviction order at the property and that Ware told the court officer that she had not been notified
of the eviction. There was also testimony that it was necessary to hire a locksmith to cut the lock
on a gate on Wyoming Street in order to enter the Washburn property to execute the eviction
because the Washburn entrance was blocked. Ferguson told Ware at the eviction that she could
remove her personal property, but she was not interested in retaining much of it. By July 15, 2016,
plaintiff installed a gate in the concrete wall in order to permit access to the property from
Washburn Street.
Ware subsequently executed a quitclaim deed dated May 17, 2017, purporting to convey
the Washburn property from FCE to defendant Bucharest Investments. This deed was recorded.
In July 2017, plaintiff was attempting to sell the Washburn property and plaintiff learned at this
time of the May 17, 2017 deed and Ware’s attempt to transfer the Washburn property to Bucharest.
In July, plaintiff had agreed to sell the Washburn property to Kenji Lemon for $150,000, but
Lemon became uninterested in completing the transaction once it was learned that plaintiff could
not provide clear title.
or order in an action.” Avery v Demetropoulos, 209 Mich App 500, 503; 531 NW2d 720 (1994).
Here, the trial court indicated its decisions regarding the liabilities of the parties and all damages
other than attorney fees in its November 18, 2020 findings of fact and conclusions of law. These
decisions were repeated in the January 27, 2021 judgement, with the addition of the court’s
resolution of the attorney fee amount. “An order to allow attorney fees after entry of an order
disposing of the meritorious question is one of the specific circumstances where separate final
orders are recognized.” Id.; see also MCR 7.202(6)(a)(iv) (stating that “a postjudgment order
awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625 or other law or court
rule” is a final judgment or final order). We are not convinced that we lack jurisdiction over this
matter. However, even assuming without deciding that plaintiff’s characterization of the
November 18, 2020 findings of fact and conclusions of law is correct, we would treat this appeal
as being on leave granted. MCR 7.203(B); Waatti & Sons Electric Co v Dehko, 230 Mich App
582, 585; 584 NW2d 372 (1998).
3
Ware testified that she had been a managing member of FCE.
4
Plaintiff’s property manager described this construction equipment as “[b]arricade, fencing,
boxes of nails like general construction—style equipment.”
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Additionally, Ware also conveyed the adjacent Wyoming parcels (14385 Wyoming Street
and 14365 Wyoming Street) from FCE to defendant McKinney by quitclaim deeds in 2017.
McKinney was in the business of performing construction engineering and demolition services.
He testified that he founded Gayanga at some point after plaintiff’s March 2016 eviction
proceedings involving the Washburn property. McKinney testified that he acquired the 14385 and
14365 Wyoming parcels in 2017 to use for his business purposes. Ware testified that she knew
McKinney because she worked for him as an estimator at Gayanga beginning in 2017. She also
testified that before she conveyed the Wyoming properties to Gayanga in 2017, Gayanga was not
using the property and was leasing space in a different location. Ware testified that she thought
she stopped storing her equipment on the Washburn property in 2018. Ware claimed that she could
not definitively identify property and heavy equipment depicted in photographs of the parcels, but
she acknowledged that she and McKinney (including Gayanga) were the only individuals to have
such equipment on these parcels.
At trial, McKinney did not claim any ownership interest in the Washburn property and he
denied having any connection to Bucharest. McKinney used a gate located on Wyoming Street
and apparently located partially on both the 14365 Wyoming property and a separate parcel owned
by a railroad company, to access his Wyoming properties. McKinney had a key to open this gate.
He acknowledged that he had to cross a portion of the railroad’s parcel in order to get to his
property through this gate. Ware testified that when she had owned all three of these properties,
she used this entrance to access the entire area consisting of the three adjoining parcels because
the Washburn property was “in the middle of everything” and she did not know that it had a
separate address. Ware thought “it was all one space.”
Plaintiff’s property manager, Tepi-Ara Aalakebuan, testified that when he visited the
Washburn property on January 12, 2018, he entered through the Washburn gate entrance and he
discovered miscellaneous equipment being stored on the property that had not been there at the
time the eviction order was executed in 2016. He also discovered a “breached door that was
previously closed and locked.” The locks had been broken. Aalakebuan testified that he was
approached by some workers who told him that he was trespassing and needed to leave. A worker
was driving an excavator or bulldozer. The workers claimed to work for McKinney. When
Aalakebuan called Ware to inform her that he was on the property, she indicated that “she had
nothing to do with the property” and that Aalakebuan needed to call McKinney. One of the
workers then handed Aalakebuan a phone and someone claiming to be McKinney told Aalakebuan
that he was trespassing, that he needed to “get off,” and that he would be “forcefully removed” if
he did not leave. McKinney also told Aalakebuan that a letter had been sent to plaintiff explaining
that plaintiff was trespassing. McKinney further claimed that “the property was landlocked and
[Aalakebuan] had no legal access.” Aalakebuan did not enter the property again after this
conversation. Ferguson testified that he received the letter from Gayanga’s attorney in January
2018 asserting that plaintiff was trespassing. Ferguson stated that at this point, plaintiff had no
access to its property or ability to use it.
On January 15, 2018, Aalakebuan observed new signs warning against trespass that had
been posted on the outside of the Washburn gate plaintiff had installed. Aalakebuan did not post
these signs and he did not know who had posted them. On February 19, 2018, Aalakebuan took
an aerial photograph with a drone that depicted a new pile of dirt on the Washburn property with
an excavator sitting on the dirt pile. Three days later, Aalakebuan observed by drone that there
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were piles of dirt, machinery, and “breached” doors on the property. Aalakebuan again took aerial
photographs showing “another pile of dirt with breached doors” on April 14, 2018, although he
did not know if the doors had been closed between February and April because “outside of these
aerials we had no access to the property.”
On May 10, 2018, plaintiff filed a complaint to quiet title to the Washburn property, as
well as seeking injunctive relief and damages. In the complaint, plaintiff alleged that Ware and
FCE had unlawfully clouded plaintiff’s title to the Washburn property by fraudulently conveying
a deed for this property to Bucharest despite knowing that they had no legal interest to convey.
Plaintiff also alleged that a March 5, 2017 quitclaim deed purporting to transfer the 14365
Wyoming parcel from FCE to McKinney contained the legal description for the Washburn
property. Plaintiff alleged that McKinney and Gayanga were wrongfully occupying and denying
plaintiff’s access to the Washburn property and that these acts constituted a trespass on plaintiff’s
property and unlawful taking of plaintiff’s property interest. Plaintiff requested that the court quiet
title to the Washburn property in plaintiff’s favor. Plaintiff also raised a slander-of-title claim and
sought injunctive relief and damages based on these allegations.
Nonetheless, there was evidence that the Washburn property was still being used by some
entity other than plaintiff. A drone aerial photograph from July 25, 2018, showed an absence of
dirt piles, damage to plaintiff’s building, and the storage of more new machinery. Aalakebuan
testified that an aerial photograph taken on September 1, 2018, depicted “excavator dump trailers
or gravel trains along with additional equipment on the property,” as well as “a concrete barrier
blocking the access gate that we put in from Washburn Street.” Aalakebuan explained that he did
not install the concrete barrier. Aerial photographs from September 2019, showed excavators,
trucks and other equipment on the property in front of plaintiff’s building, as well as additional
barriers blocking access to the property through the Washburn gate.
With respect to the court proceedings, a default was entered against FCE. Plaintiff and
defendants Ware, McKinney, and Gayanga entered into a stipulation that essentially quieted title
to the Washburn property in favor of plaintiff and required defendants to remove any equipment
and property from the Washburn property and refrain from blocking plaintiff’s access to the
Washburn property. The matter proceeded to a bench trial that began on March 9, 2020. Although
the record is somewhat unclear, it does indicate plaintiff received a deed for the property from
Bucharest by the time of trial and that plaintiff was no longer pursuing any claims against
Bucharest in this litigation.
The trial evidence reflected that plaintiff had not used the Washburn property during 2017,
2018, and 2019. Aalakebuan referred to photographs that had been admitted as exhibits showing
trucks and equipment that had been located on the Washburn property currently being stored on
Gayanga’s adjacent property. Ferguson testified that he had never authorized any entity to store
dirt or equipment on the Washburn property. Ferguson testified that he was seeking damages for
defendants’ unlawful use of his property that prevented plaintiff from selling, leasing, or using its
property for a period of 22 months from January 2018 to October 2019. He maintained at trial that
“currently despite having the deeds cleared up and all of those things there still [has] been activity
at the property which has nothing to do with us with heavy equipment and machinery being moved
and placed around the building consistently.” Aalakebuan testified that Mckinney was “not in the
picture” at the time of the 2016 eviction. Plaintiff presented evidence that the current market value
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of the Washburn property was approximately $148,000 and that the current market lease value of
the property was approximately $2,500 or $2,900 per month.
Ware testified that she never attempted to block the Washburn Street access point and that
she had never damaged plaintiff’s property. She also testified that she allowed plaintiff to access
the Washburn property through the Wyoming Street entrance when plaintiff initially purchased
the property, at which time she still owned the Wyoming properties. McKinney also denied any
responsibility for erecting any concrete barrier. McKinney admitted to storing machinery,
equipment, and dirt on the Washburn property, but he apparently conceded only to doing so
temporarily as he was clearing debris from his property. McKinney testified that he was not on
the property in 2016. He also testified that there was a lot of old equipment already on the site
when he purchased the Wyoming properties from Ware in 2017. According to McKinney, he
started purchasing excavators in 2017 and received delivery of his first excavator in January 2018.
Before that time, he rented equipment to use for his jobs and he claimed that the equipment he
rented was not being stored on the Washburn property.
Following the bench trial, the trial court quieted title to the Washburn property in favor of
plaintiff. The trial court found that Ware executed the deed for the Washburn property to
Bucharest without a legal basis to do so, knowing that her rights and the rights of FCE had been
extinguished through the tax sale, and with the requisite intent to harass or intimidate plaintiff as
the rightful owner. The trial court then awarded plaintiff damages of $163,800 for slander of title
against Ware and FCE jointly and severally, consisting of $150,000 as compensation for the lost
sale of the property to Lemon and $13,800 for plaintiff’s 2016 eviction costs and other expenses
in physically removing personal property from the premises and making repairs or improvements.
The trial court also ordered that Ware and FCE were jointly and severally liable for plaintiff’s
actual attorney fees of $30,100.26. Finally, the trial court found McKinney and Gayanga liable
for trespass, jointly and severally, in the amount of $130,000, which represented the fair monthly
rental cost of $2,500 per month for a 52-month period of using the Washburn property for storage.
The trial court ordered McKinney and Gayanga to remove barriers to the Washburn Street access
and to improve the driveway with gravel.
These appeals followed.
I. DOCKET NO. 355711
A. LIABILITY FOR TRESPASS
Defendants McKinney and Gayanga first argue that the trial court abused its discretion by
granting plaintiff relief for trespass when plaintiff did not raise a trespass claim in its complaint or
amend its pleadings to include a trespass claim.
“Decisions concerning the meaning and scope of pleadings fall within the sound discretion
of the trial court,” Dacon v Transue, 441 Mich 315, 328; 490 NW2d 369 (1992), as are “decisions
granting or denying motions to amend pleadings,” Weymers v Khera, 454 Mich 639, 654; 563
NW2d 647 (1997). Reversal of such decisions on appeal is only appropriate if the trial court
abused its discretion. Dacon, 441 Mich at 328; Weymers, 454 Mich at 654. “A trial court abuses
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its discretion only when its decision results in an outcome falling outside the range of principled
outcomes.” Lockridge v Oakwood Hosp, 285 Mich App 678, 692; 777 NW2d 511 (2009).
During closing arguments at trial, plaintiff’s counsel argued that the acts of McKinney and
Gayanga constituted trespass that entitled plaintiff to injunctive relief and money damages.
Plaintiff’s counsel referenced language under the third count of the complaint alleging that the
actions of McKinney and Gayanga “constituted a trespass and an unlawful encroachment on
Plaintiff’s property.” Defendants’ counsel argued in response that plaintiff’s trespass claim was a
new legal theory that was not raised in the complaint because plaintiff’s complaint referred to
“trespass” within the allegations under Count 3, which was titled “Injunctive Relief.” Defendants’
counsel thus maintained that plaintiff only pled a claim for injunctive relief and not trespass.
Following the bench trial, the trial court issued written findings of fact and conclusions of
law in which it ruled as follows regarding this issue:
Count III of the Complaint was entitled Injunctive Relief. Despite the name
of the count, the substance of the claim is trespass. In Paragraph 41, Detail Auto
alleges that he actions of Defendant Gayanga constitute trespass, unlawful
encroachment, and unlawful taking. In the demand for relief, Detail Auto requests
a determination that the actions of Gayanga constituted a trespass and requests
money damages and injunctive relief. The court finds that Detail Auto has met its
burden to establish trespass against Gayanga and Brian McKinney and is entitled
to both money damages and injunctive relief.
On appeal, defendants McKinney and Gayanga argue that “the trial court abused its
discretion by amending the Plaintiff’s pleading sua sponte to include a claim for trespass against
the Appellants.” McKinney and Gayanga maintain that plaintiff’s complaint did not allege a claim
of trespass, that plaintiff never moved to amend its pleadings, and that plaintiff could not have
shown an absence of prejudice to defendants McKinney and Gayanga that would have permitted
the trial court to allow plaintiff to amend its pleadings pursuant to MCR 2.118(C).
“Michigan is a notice-pleading state.” Johnson v QFD, Inc, 292 Mich App 359, 368; 807
NW2d 719 (2011). “[T]he primary function of a pleading in Michigan is to give notice of the
nature of the claim or defense sufficient to permit the opposite party to take a responsive position.”
Dalley v Dykema Gossett, 287 Mich App 296, 305; 788 NW2d 679 (2010) (quotation marks and
citation omitted; alteration in original). “All that is required is that the complaint set forth
‘allegations necessary reasonably to inform the adverse party of the nature of the claims the
adverse party is called on to defend[.]’ ” Johnson, 292 Mich App at 368, quoting MCR
2.111(B)(1)5 (alteration in original). “Courts are not bound by the labels that parties attach to their
claims,” and it is “well settled that the gravamen of an action is determined by reading the
complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature
5
Under MCR 2.111(B)(1), a “complaint . . . must contain . . . [a] statement of the facts, without
repetition, on which the pleader relies in stating the cause of action, with the specific allegations
necessary reasonably to inform the adverse party of the nature of the claims the adverse party is
called on to defend[.]”
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of the claim.” Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 691-692; 822 NW2d
254 (2012) (quotation marks and citation omitted); see also Johnson, 292 Mich App at 368 (“[I]t
is well settled that we will look beyond mere procedural labels and read the complaint as a whole
when ascertaining the exact nature of a plaintiff’s claims.”).
A trespass is “an unauthorized invasion on the private property of another,” Dalley, 287
Mich App at 315, infringing “the plaintiff’s interest in the exclusive possession of his land,” id. at
320 (quotation marks and citation omitted). To recover on a claim for trespass to land, there must
be “proof of an unauthorized direct or immediate intrusion of a physical, tangible object onto land
over which the plaintiff has a right of exclusive possession,” and the intrusion must have been
“intentional.” Terlecki v Stewart, 278 Mich App 644, 654; 754 NW2d 899 (2008) (quotation marks
and citation omitted). “Under the common law, a trespass on land violated the landowner’s right
to exclude others from the premises.” Dalley, 287 Mich App at 320.
Here, plaintiff’s complaint alleged that it was the sole owner of the Washburn property and
that McKinney was involved with Gayanga and was Gayanga’s resident agent. The complaint
alleged that Gayanga was an adjoining neighbor of plaintiff, that Gayanga was “occupying”
plaintiff’s Washburn property, that Gayanga was “claiming possession” of the Washburn property,
and that Gayanga was “denying Plaintiff access to its property.” Plaintiff’s complaint referred to
a letter, which was addressed to plaintiff and attached to the complaint as an exhibit, in which an
attorney representing Gayanga asserted that the Washburn property was “located on” Gayanga’s
property, that the Washburn property could only be accessed by entering Gayanga’s property, and
that Gayanga had not granted plaintiff permission to enter Gayanga’s property. This letter further
stated that if plaintiff entered the property, “we will be forced to prosecute in any way possible the
trespass.” The letter was dated January 9, 2018. The complaint alleged that Gayanga’s actions
“constitute a trespass and unlawful encroachment upon Plaintiff’s property and an unlawful taking
of Plaintiff’s property interest in 14360 Washburn . . . .” The complaint sought relief in the form
of injunctive relief and damages for the asserted trespass.
Reading the complaint as a whole, it becomes clear plaintiff’s claim was that Gayanga was
intentionally interfering with plaintiff’s exclusive possession of its Washburn property by
occupying the property without plaintiff’s authorization and actively denying plaintiff’s ability to
access the property. Johnson, 292 Mich App at 368; Dalley, 287 Mich App at 315, 320; Terlecki,
278 Mich App at 654. The heavy reliance by McKinney and Gayanga on the fact that plaintiff
labeled its claim “Injunctive Relief” rather than “Trespass” is of no merit because courts are not
bound by a party’s choice of procedural label for its claim. Buhalis, 296 Mich App 691-692.
Moreover, “an injunction is an equitable remedy, not an independent cause of action.” Terlecki,
278 Mich App at 663. It is evident from the language of the complaint as a whole that plaintiff
sought the equitable remedy of an injunction, as well as money damages, based on alleging an
underlying claim of trespass. The trial court thus did not abuse its discretion in concluding that
the substance of plaintiff’s claim against McKinney and Gayanga was trespass. Buhalis, 296 Mich
App 691-692. Accordingly, the trial court also did not sua sponte permit plaintiff to amend its
complaint as McKinney and Gayanga argue. No relief is warranted.
B. CALCULATION OF DAMAGES FOR TRESPASS
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McKinney and Gayanga also argue that the trial court clearly erred in its calculation of
damages for trespass because it was based on a 52-month period of trespass that is not supported
by the evidence.
“We review a trial court’s findings of fact in a bench trial for clear error and its conclusions
of law de novo.” Chelsea Investment Group, LLC v City of Chelsea, 288 Mich App 239, 250; 792
NW2d 781 (2010). “This Court reviews the trial court’s determination of damages following a
bench trial for clear error.” Alan Custom Homes, Inc v Krol, 256 Mich App 505, 513; 667 NW2d
379 (2003). “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.” Chelsea Investment
Group, 288 Mich App at 251. Although “damages that are speculative or based on conjecture are
not recoverable,” it is not required “that damages be determined with mathematical certainty;
rather, it is sufficient if a reasonable basis for computation exists.” Id. at 255.
“Generally speaking, damages in trespass to land are measured by the difference between
the value of the land before the harm and the value after the harm, but there is no fixed, inflexible
rule for determining, with mathematical certainty, what sum shall compensate for the invasion of
the interests of the owner.” Schankin v Buskirk, 354 Mich 490, 494; 93 NW2d 293 (1958). The
measure of damages based on the difference between the value of the land before and after the
harm “may, but does not always, accurately measure the harm to the owner’s interest.” Thiele v
Detroit Edison Co, 184 Mich App 542, 544-545; 458 NW2d 655 (1990). The “ultimate goal” in
awarding damages for trespass is “compensation for the harm or damage done.” Kratze v Indep
Order of Oddfellows, Garden City Lodge No 11, 442 Mich 136, 149; 500 NW2d 115 (1993).
Accordingly, courts may employ the method of calculating damages that is most appropriate to
compensate the plaintiff for the loss incurred under the facts of a particular case. Id.; Schankin,
354 Mich at 494; Szymanski v Brown, 221 Mich App 423, 430; 562 NW2d 212 (1997); Thiele, 184
Mich App at 545. “[W]here a party commits a trespass he must be held to contemplate all the
damages which may legitimately follow from his illegal act.” Allison v Chandler, 11 Mich 542,
561 (1863).
Here, the trial court’s damage calculation was based on its conclusion that McKinney and
Gayanga had trespassed on plaintiff’s property, or prevented plaintiff’s access to the property,
from December 2015 through March 9, 2020, which was the date of trial. In support of its
conclusion that McKinney and Gayanga’s trespass began in December 2015, the trial court found
that McKinney and Gayanga’s property and equipment was present on the Washburn property at
the time plaintiff purchased the parcel, that McKinney and Gayanga failed to remove their property
and continued to use plaintiff’s property and block plaintiff’s access until the time of trial, and that
McKinney told plaintiff before McKinney had obtained title to the adjacent Wyoming properties
to leave the property because plaintiff was trespassing.
However, our review of the record has not uncovered any evidence to support a conclusion
that McKinney, Gayanga, or equipment owned by either McKinney or Gayanga was ever on the
Washburn property as early as December 2015. Plaintiff also does not direct our attention to any
such evidence in the record, but instead relies on speculative hypotheses about how McKinney
could have been involved in trespassing on plaintiff’s property at a time earlier than the record
evidence actually supports. The trial court appears to have primarily relied on a series of specific
photographic trial exhibits to support its conclusion that McKinney and Gayanga’s trespass began
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in December 2015. These exhibits have not been presented to this Court for our review, but the
trial testimony regarding their admission indicates that all of the photographs cited by the trial
court regarding this issue were taken in 2018 and 2019. Furthermore, contrary to the finding of
the trial court, the only evidence that McKinney ever was involved in claiming that plaintiff was
trespassing by accessing its Washburn property indicates that this incident occurred in January
2018, after McKinney had obtained title to the Wyoming properties. The evidence cited by the
trial court to support its factual finding regarding the beginning of the trespass committed by
McKinney and Gayanga does not establish any connection between the Washburn property and
McKinney or Gayanga as early as December 2015.
Because there is no record evidence that would permit the conclusion that McKinney and
Gayanga trespassed on plaintiff’s property as early as December 2015, the trial court clearly erred
by finding that this was the starting date of the trespass period. Chelsea Inv Group, 288 Mich App
at 250. The trial court’s calculation of damages based on this erroneous period is thus also clearly
erroneous. Id. We vacate the trial court’s damages award against McKinney and Gayanga and
remand for recalculation of the damages against these parties for their trespass.
II. DOCKET NO. 356324
In Docket No. 356324, defendants Ware and FCE challenge the trial court’s calculation of
damages against them for slander of title.
As we already noted, our review of a trial court’s determination of damages after a bench
trial is for clear error. Alan Custom Homes, 256 Mich App at 513.
The trial court awarded plaintiff damages against Ware and FCE for slander of title
pursuant to MCL 600.2907a(1), which provides as follows:
(1) A person who violates section 25 of chapter 65 of the Revised Statutes
of 1846, being section 565.25 of the Michigan Compiled Laws, by encumbering
property through the recording of a document without lawful cause with the intent
to harass or intimidate any person is liable to the owner of the property encumbered
for all of the following:
(a) All of the costs incurred in bringing an action under section 25 of chapter
65 of the Revised Statutes of 1846, including actual attorney fees.
(b) All damages the owner of the property may have sustained as a result of
the filing of the encumbrance.
(c) Exemplary damages.
Ware and FCE first argue on appeal that the trial court clearly erred by awarding damages
of $150,000 for the lost sale of the property because “the alleged lost property sale to one Kenji
Lemon, which is the only potential sale of the property for which evidence was presented at trial,
clearly did not cause the Plaintiff to incur $150,000 in damages, especially given that the Court
has quieted title to the subject property in the Plaintiff, allowing Plaintiff to keep the property.”
Ware and FCE maintain that because plaintiff retained title to the property and there was evidence
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that the fair market value of the property was $148,000, plaintiff only incurred $2,000 in damages
based on the lost sale. Ware and FCE additionally argue that the trial court clearly erred by
ordering them to be liable for $13,800 in damages for expenses that plaintiff incurred in 2016 when
the slander of title on which Ware and FCE’s liability was predicated did not occur until 2017.
The arguments advanced by Ware and FCE implicate MCL 600.2907a(1)(b),6 which
authorizes recovery of “[a]ll damages the owner of the property may have sustained as a result of
the filing of the encumbrance.” (Emphasis added.) A slander-of-title claim requires the plaintiff
to demonstrate that the damages sought were caused by the defendant’s act that constituted the
disparagement or slander of the plaintiff’s title. GKC Mich Theaters, Inc v Grand Mall, 222 Mich
App 294, 301; 564 NW2d 117 (1997); see also MCL 600.2907a(1)(b). In GKC Mich Theaters,
222 Mich App at 304, this Court adopted the “substantial-factor test” from 3 Restatement Torts,
2d, § 632, p 352, as the “appropriate test to determine whether causation exists in a slander of title
claim.” This Court quoted the Restatement test as follows:
The publication of an injurious falsehood is a legal cause of pecuniary loss
if
(a) it is a substantial factor in bringing about the loss, and
(b) there is no rule of law relieving the publisher from liability because of
the manner in which the publication has resulted in the loss. [GKC Mich Theaters,
222 Mich App at 302, quoting Restatement, § 632 (quotation marks omitted).]
This Court continued by stating that
[c]omment c of § 632 explains the meaning of the phrase “substantial factor”:
In order for the false statement to be a substantial factor in
determining the conduct of an intending or potential purchaser or
lessee, it is not necessary that the conduct should be determined
exclusively or even predominantly by the publication of the
statement. It is enough that the disparagement is a factor in
determining his decision, even though he is influenced by other
factors without which he would not decide to act as he does. Thus
many considerations may combine to make an intending purchaser
decide to break a contract or to withdraw or refrain from making an
offer. If, however, the publication of the disparaging matter is one
of the considerations that has substantial weight, the publication of
6
The trial court specifically declined, in its written findings of fact and conclusions of law, to
award exemplary damages. Accordingly, the trial court’s damage award for slander of title cannot
be justified by citation to MCL 600.2907a(1)(c), and we need not address this particular provision
in this opinion. However, in light of our conclusion that the trial court’s damage award must be
vacated because it was clearly erroneous, MCL 600.2907a(1)(c) may be addressed on remand in
recalculating damages if applicable. We express no opinion on this issue.
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the disparaging matter is a substantial factor in preventing the sale
and thus bringing financial loss upon the owner of the thing in
question. GKC Mich Theaters, 222 Mich App at 302-303, quoting
Restatement, § 632.]
In GKC Mich Theaters, 222 Mich App at 304-305, this Court held that there were genuine
issues of material fact regarding “whether the filing of the invalid notice of termination [of
easement] was a substantial factor in the purchaser’s decision to delay the sale of the property”
such that the determination should have been made by the trier of fact and the grant of summary
disposition was improper.
In this case, although there is record support for the trial court’s conclusion that the acts of
Ware (apparently acting on behalf of defaulted party FCE) constituting slander of title were a
substantial factor causing the loss of the sale from plaintiff to Lemon, there is no evidence to
support a conclusion that the loss of this sale caused plaintiff $150,000 in damages. It is true that
plaintiff had agreed to sell the Washburn property to Lemon for $150,000. However, after the sale
fell through and at the conclusion of the trial below, title to the property remained with plaintiff.
The trial court found that the fair market value of the property was $148,000 based on the evidence
submitted by plaintiff at trial. Thus, although plaintiff lost the opportunity to sell the property for
$150,000, plaintiff still retained the real property with a value of $148,000, thereby mitigating the
damages incurred from the lost sale. The trial court therefore clearly erred by determining that
plaintiff had suffered a loss of $150,000 that was caused by Ware and FCE’s slander of title. GKC
Mich Theaters, Inc v Grand Mall, 222 Mich App 294, 301-304; MCL 600.2907a(1)(b).
The trial court also clearly erred in its additional award of $13,800 in damages7 that were
based on expenses plaintiff incurred related to the eviction and other work performed on the
property in 2016; all of these expenses were incurred before Ware committed the act constituting
slander of title and such damages therefore were not attributable to the disparagement of plaintiff’s
title. GKC Mich Theaters, Inc v Grand Mall, 222 Mich App 294, 301-304; MCL 600.2907a(1)(b).
Accordingly, we vacate the trial court’s damage award for the slander-of-title claim and remand
for recalculation of the appropriate damages.8
7
This amount consisted of separately incurred expenses of $10,200, $3,300, and $300, all of which
were incurred in 2016.
8
Plaintiff argues that the challenge to damages raised by Ware and FCE is “waived” because Ware
and FCE did not object to plaintiff’s evidence of damages at trial. However, even accepting all of
plaintiff’s evidence of damages as true, there was still no basis for the trial court to award damages
against Ware and FCE for slander of title based on the entire sale price of the lost sale or expenses
incurred by plaintiff before the slander of title was committed. We have thoroughly explained our
reasoning for that conclusion in the body of this opinion. We therefore reject plaintiff’s claim of
waiver. Moreover, we also reject plaintiff’s argument that this issue is not preserved for appeal.
Ware and FCE challenge the trial court’s findings on damages following a bench trial, and they
were not required to object to those findings below in order to preserve this appellate challenge.
MCR 2.517(A)(7).
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Affirmed in part, reversed and vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction. No party having prevailed in full, no
costs are awarded. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Deborah A. Servitto
Furthermore, plaintiff’s assertion that the trial court’s award of damages is proper because
Ware and FCE committed slander of title with respect to the 2016 eviction proceedings is also
without merit. The trial court unequivocally found that the acts constituting slander of title were
those related to the purported transfer of the Washburn property to Bucharest by quitclaim deed
dated March 5, 2017, and the recording of this deed, where FCE and Ware had no legal basis at
that time for effectuating such a transfer. Liability for slander of title is predicated on the
“recording of an instrument.” See MCL 565.25(3); see also MCL 600.2907a(1). There is no
evidence that Ware or FCE recorded any instrument that could have slandered title during the 2016
eviction proceedings.
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