Armstrong v. Gary

• Decision Date: 09 November 2021
• Docket Number: 351258
• Parties: ANGELO T. ARMSTRONG, CYNTHIA C. SNOW-ARMSTRONG, ROBERT D. LANE, JR., and JANET E. LANE, Plaintiffs/Counterdefendants-Appellees/Cross-Appellants, v. NICK GARY and LISA GARY, Defendants/Counterplaintiffs/Cross-Plaintiffs/Third-Party Plaintiffs-Appellants/Cross-Appellees, and JOSEPH S. SAWYER, Plaintiff/Counterdefendant-Appellee, and GLADWIN COUNTY TREASURER, Defendant/Cross-Defendant/Third-Party Plaintiff-Cross-Appellee, and TOWNSHIP OF TOBACCO, TOBACCO TOWNSHIP ASSESSOR, and TOBACCO TOWNSHIP SUPERVISOR, Third-Party Defendants.
• Court: Court of Appeal of Michigan — District of US

ANGELO T. ARMSTRONG, CYNTHIA C. SNOW-ARMSTRONG, ROBERT D. LANE, JR., and JANET E. LANE, Plaintiffs/Counterdefendants-Appellees/Cross-Appellants, and JOSEPH S. SAWYER, Plaintiff/Counterdefendant-Appellee,
v.
NICK GARY and LISA GARY, Defendants/Counterplaintiffs/Cross-Plaintiffs/Third-Party Plaintiffs-Appellants/Cross-Appellees,

and GLADWIN COUNTY TREASURER, Defendant/Cross-Defendant/Third-Party Plaintiff-Cross-Appellee, and TOWNSHIP OF TOBACCO, TOBACCO TOWNSHIP ASSESSOR, and TOBACCO TOWNSHIP SUPERVISOR, Third-Party Defendants.

No. 351258

Court of Appeals of Michigan

November 9, 2021

UNPUBLISHED

Gladwin Circuit Court LC No. 16-008700-CH

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Before: Ronayne Krause, P.J., and Cameron and Rick, JJ.

Per Curiam.

In this real property dispute, defendants Nick Gary and Lisa Gary^[1] appeal by right the trial court's order, following a bench trial, holding that plaintiffs, Angelo T. Armstrong, Cynthia C. Snow-Armstrong, Robert D. Lane, Jr., Janet E. Lane, and Joseph S. Sawyer, have a right-of-way easement over property owned by defendants. The trial court awarded plaintiffs $1 in nominal damages for defendants' trespass to the easement; and it ordered defendants to remove a deck, dock, seawall, and any other improvements made to the property. On cross-appeal, plaintiffs appeal an earlier order of the trial court holding that defendants are the fee simple title owners of the property encumbered by the right-of-way easement. We affirm the trial court's holding that defendants are the fee simple title holders, and we reverse the trial court's holding that plaintiffs enjoy easement rights over the property.

I. BACKGROUND

The property at issue is a strip of land running from a public street, Quillette Street, to the Tobacco River. In 1947, the Rio Vista Subdivision was platted, consisting of a number of similar lots running from Quillette Street to the river. The plat designated three lots as public streets: Dennis Street, Harley Street, and Paige Street. The property at issue is the land designated as Paige Street, which lies between Lots 19 and 20. Paige Street was never developed and remains largely wooded. In December 2005, Tobacco Township adopted a resolution placing Paige Street and the other two undeveloped streets on its tax roll. In so doing, it split the Paige Street parcel in half, joining the western half of Paige Street with Lot 19 and the eastern half of Paige Street with Lot 20. However, although each half of Paige Street was given the same owner address as the lot to which it was assigned (i.e., Lot 19 or Lot 20), the halves were given their own individual parcel identification numbers (referred to as Parcel 1 and Parcel 2) and were placed on the 2006 tax roll independently with the owners listed as "unknown." Nevertheless, the assessments and tax bills were mailed to, respectively, Lot 19 and Lot 20.

At the time, Lot 19 was owned by Harold and Pamela Brenizer, and Lot 20 was owned by Dennis Doede. No objections were made to the tax assessment of the Paige Street parcels, nor did the Tobacco Township Supervisor receive any other communication from the Brenizers or Doede regarding the parcels. The property taxes levied on the two parcels were not paid and the taxes were turned over as delinquent to the Gladwin County Treasurer on March 1, 2007. The taxes remained unpaid, and a certificate of forfeiture was sent to each owner address for Lot 19 and Lot 20 on file; the certificates were recorded against the two parcels with the Gladwin County Register of Deeds on April 11, 2008. Each certificate stated, "This property will be titled absolutely in the name of the foreclosing governmental unit (FGU) if not redeemed by March 31, 2008 immediately succeeding the entry of a Judgment of Foreclosure pursuant to MCL 211.78(k). After this date the parties of interest in this property WILL HAVE NO FURTHER RIGHT TO REDEEM."

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The property taxes on Parcels 1 and 2 remained unpaid. On June 3, 2008, the Gladwin County Treasurer filed a petition seeking to foreclose all tax-delinquent property that were forfeited for unpaid 2006 real property taxes, including Parcels 1 and 2. On September 8, 2008, a representative of the treasurer, Patricia Engel, made a personal visit to the property and posted notice of the show cause hearing and judicial foreclosure hearing in a conspicuous location on each parcel. A notice of show cause hearing and judicial foreclosure hearing was also sent by certified mail to the owner addresses for Parcels 1 and 2. On February 23, 2009, the Gladwin Circuit Court held a hearing on the petition for foreclosure. No one appeared at the hearing. The court found that "petitioner filed with the clerk of the court proof of the notice, service, or publication required under the General Property Tax Act (GPTA), PA 206 of 1893, as amended, MCL 211.1 et seq." and that "those parties entitled to notice and an opportunity to be heard have been provided that notice and opportunity."

The court entered a judgment of foreclosure. In relevant part, the judgment vested fee simple title to each parcel in the treasurer, and it extinguished "all existing recorded and unrecorded interests in each parcel" other than "a visible or recorded easement or right-of-way." The properties were not timely redeemed, resulting in the transfer to Gladwin County Treasurer of fee simple title to the properties without further rights of redemption. On May 4, 2009, the treasurer recorded a "Notice of Judgment of Foreclosure" together with a copy of the judgment of foreclosure for each parcel. On September 9, 2009, the county sold Parcels 1 and 2 (i.e., the Paige Street property) to Harry R. Gary and Brenda L. Gary Trust (the trust) via quitclaim deed. Plaintiffs Angelo T. Armstrong and Cynthia C. Snow-Armstrong purchased Lot 20 from Doede via warranty deed on April 28, 2014. Plaintiffs Robert D. Lane, Jr. and Janet E. Lane purchased Lot 19 from the Brenizers via warranty deed on January 27, 2015. Plaintiff Joseph S. Sawyer purchased Lot 24 (847 Quillette Drive) via warranty deed on July 21, 2014. On May 27, 2015, the trust transferred Parcels 1 and 2 to defendants via quitclaim deed. At the time of purchases, and at the time of trial, the plat of Rio Vista Subdivision remained unaltered as to Paige Street.

According to Brenda Gary (Brenda), after purchasing the property she was not aware of anyone using the property and she never saw anyone other than her family use the property. The detached garage on Doede's lot had a fence that ran from the garage to the center of the property and down to the water. She only saw Doede on the property when he would come onto it to talk and visit. Before the filing of the present lawsuit, nobody said that she did not own the property. She said that she had the property surveyed, but someone kept pulling out the survey marker from the southwest corner of the property. Defendant Nick Gary (Nick) said that he was first on the property in 2008 just before his parents bought the property. He also observed the fence on the property at that time. Doede had junk, metal, and tire rims on the property, but he cleaned out most of the junk after Nick's parents bought the property. In 2009 or 2010 he and his father and his brother cleared a space at the road end of the property and put in tiles and a small driveway.

Plaintiffs alleged in their complaint that "the Gladwin County Road Commission never assumed jurisdiction or authority over Paige Street." Plaintiffs testified that nobody used Paige Street to access the water. Each of the plaintiffs' lots had access to the water and to Quillette Street. Each plaintiff testified that they did not intend to give up any rights to Paige Street or do any visual acts to indicate to anyone that they were giving up rights to Paige Street. Plaintiff Sawyer said that he had "potential ideas for Paige Street" such as access to the water via

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snowmobile or quad and that the seawall interfered with such use. He said that the property as it currently existed could not be developed for the purposes he envisioned.

Nick Gary testified that the Lanes' jet...