Bloomfield Estates v. City of Birmingham

• Decision Date: 18 July 2007
• Docket Number: Docket No. 130990.,Calendar No. 1.
• Citation: 737 N.W.2d 670,479 Mich. 206
• Parties: BLOOMFIELD ESTATES IMPROVEMENT ASSOCIATION, INC., Plaintiff-Appellee, v. CITY OF BIRMINGHAM, Defendant-Appellant.
• Court: Michigan Supreme Court

737 N.W.2d 670

479 Mich. 206

BLOOMFIELD ESTATES IMPROVEMENT ASSOCIATION, INC., Plaintiff-Appellee, v. CITY OF BIRMINGHAM, Defendant-Appellant.

Docket No. 130990.

Calendar No. 1.

Supreme Court of Michigan.

Argued April 10, 2007.

Decided July 18, 2007.

Kemp, Klein, Umphrey, Endelman & May, P.C. (by Raymond L. Morrow and Ronald S. Nixon), Troy, for the plaintiff.

Beier Howlett, P.C. (by Timothy J. Currier and Jeffrey S. Kragt), Bloomfield Hills, for the defendant.

MARKMAN, J.

We granted leave to appeal to consider: (1) whether the use of a park as a "dog park" violates a deed restriction limiting use of the land to "residential purposes only"; and (2) whether a plaintiff has waived the ability to challenge a violation of a deed restriction when the plaintiff has failed to challenge less serious violations of the deed restriction in the past. We affirm the judgment of the Court of Appeals that use of land for a "dog park" violates a deed restriction limiting use of the land to "residential purposes only." Moreover, we also affirm the judgment of the Court of Appeals that a plaintiff may contest a "more serious" violation of a deed restriction, even if such plaintiff has not contested less serious violations of the deed restriction in the past. Accordingly, we remand this case to the trial court for the entry of an order of summary disposition in favor of plaintiff, and for a determination of the appropriate remedy.

I. STATEMENT OF FACTS

In 1915, the Bloomfield Estates Company recorded deed restrictions on lots in the Bloomfield Estates subdivision. Among the lots on which the deed restrictions were imposed was Lot 52, which is the lot at issue in this case. Around 1928, Bloomfield Township purchased Lot 52 and other restricted subdivision lots pursuant to a plan to create a park. In 1929, a complaint was filed by the Bloomfield Township Board of Trustees to remove these deed restrictions, but the complaint was later voluntarily dismissed. In 1938, defendant city of Birmingham was deeded the restricted lots being used as a park, including Lot 52. The quitclaim deeds were "subject to the building and use restrictions of record." This land was incorporated into Springdale Park, a 55-acre park administered by defendant city. Only a portion of Springdale Park is burdened by the deed restriction at issue in this case. In 1941, plaintiff association was formed to enforce the deed restrictions on behalf of landowners in the Bloomfield Estates subdivision. The Bloomfield Estates Company quitclaimed its remaining rights to plaintiff in 1955.

Springdale Park has been used over the years for a variety of park-related activities, including those that might be characterized as involving unusual amounts of noise. For example, the park has been used for dances, Girl Scout camping, and baseball games. However, the Girl Scout camping and the dances did not occur on land burdened by the deed restrictions. Although baseball games took place on lots burdened by the deed restrictions in 1947, plaintiff requested that defendant cease allowing baseball games on these lots. Defendant responded by stating that "restrictions will be placed on the use of the park," and "it is not our intent to use Lots 57 and 58 for baseball games." Another 1947 letter challenged a building on Lot 42 that violated the deed restrictions, and defendant responded by stating that it would remove the building. In 1951, plaintiff again challenged the use of restricted lots for baseball games and the presence of a maintenance building on a restricted lot. Defendant responded by noting that baseball had not been played on the property for 12 months, and that defendant would "remove this [maintenance] building from this lot." Although plaintiff has challenged violations of the deed restrictions occurring on restricted lots of the park, plaintiff has never challenged the use of the lots as a park.

In 2003, plaintiff became aware that defendant planned to use Lot 52 of Springdale Park as a "dog park," a fenced area within which dogs could roam unleashed. Plaintiff alerted defendant that plaintiff would enforce its rights under the deed restriction if the dog park was built. In 2004, defendant built the dog park. At the time the dog park was erected, dogs were not allowed in Springdale Park, and signs indicated that dogs were prohibited. Plaintiff filed suit against defendant, seeking enforcement of the deed restriction and injunctive relief against use of Lot 52 as a dog park. Plaintiff also asked the trial court to order defendant to tear down the fence.

Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff had waived its right to enforce the deed restriction, and that the use of Lot 52 as a dog park did not violate the deed restriction. The trial court granted summary disposition to defendant. The trial court ruled that plaintiff had not waived its right to enforce the deed restriction through acquiescence; however, the trial court also concluded that the deed restriction was not violated, because the use of Lot 52 as a dog park constituted a "residential" use.

Plaintiff appealed to the Court of Appeals, and the Court of Appeals reversed in a split decision. Unpublished opinion per curiam of the Court of Appeals, issued March 14, 2006 (Docket No. 255340), 2006 WL 626191. The Court of Appeals determined that "reference to dictionary definitions shows that the restriction did not contemplate using the property as a park." Id., slip op at 3. Consequently, "[u]se of Lot 52 as part of a municipal park violates the deed restriction irrespective of whether part of it is fenced off as a dog park." Id. Because the lots had been used as a park for 75 years, "equity will no longer permit plaintiff to seek enforcement of the deed restriction against that use." Id., slip op at 4. However, plaintiff could "challenge more serious or more extensive violations." Id., citing Boston-Edison Protective Ass'n v. Goodlove, 248 Mich. 625, 629-630, 227 N.W. 772 (1929). Because the dog park constituted a "more serious violation of the deed restrictions," plaintiff could challenge that use. Id. Consequently, the Court of Appeals found that the trial court erred in granting summary disposition for defendant. The Court of Appeals reversed the trial court and remanded for the entry of an order of summary disposition in favor of plaintiff. It also remanded for the trial court to determine if an injunction was warranted under these circumstances.

The dissenting judge would have held that plaintiff could not object to the use of Lot 52 as a dog park, because "common sense would . . . suggest that while [Lot 52] has been a park for the past seventy-five years, people have brought their dogs to this park." Id., slip op at 2. For that reason, the use of Lot 52 as a dog park did not constitute a "`more serious violation of the deed restrictions.'" Id. We granted defendant's application for leave to appeal. 477 Mich. 958, 723 N.W.2d 910 (2006).

II. STANDARD OF REVIEW

We review de novo the grant or denial of a motion for summary disposition. Saffian v. Simmons, 477 Mich. 8, 12, 727 N.W.2d 132 (2007). The scope of a deed restriction is a question of law that is reviewed de novo. Terrien v. Zwit, 467 Mich. 56, 60-61, 648 N.W.2d 602 (2002).

III. ANALYSIS

A. VIOLATION OF DEED RESTRICTION

A deed restriction represents a contract between the buyer and the seller of property. Uday v. City of Dearborn, 356 Mich. 542, 546, 96 N.W.2d 775 (1959). "Undergirding this right to restrict uses of property is, of course, the central vehicle for that restriction: the freedom of contract, which is . . . deeply entrenched in the common law of Michigan." Terrien, supra at 71 n. 19, 648 N.W.2d 602, citing McMillan v. Mich. S. & N. I. R. Co., 16 Mich. 79 (1867). The United States Supreme Court has listed the "right to make and enforce contracts" among "those fundamental rights which are the essence of civil freedom." United States v. Stanley, 109 U.S. 3, 22, 3 S.Ct. 18, 27 L.Ed. 835 (1883). We "respect[ ] the freedom of individuals freely to arrange their affairs via contract" by upholding the "fundamental tenet of our jurisprudence . . . that unambiguous contracts are not open to judicial construction and must be enforced as written," unless a contractual provision "would violate law or public policy." Rory v. Continental Ins. Co., 473 Mich. 457, 468, 470, 703 N.W.2d 23 (2005) (emphasis in original). As one court has stated:

Courts do not make contracts for parties. Parties have great freedom to choose to contract with each other, to choose not to do so, or to choose an intermediate course that binds them in some ways and leaves each free in other ways. [Rarities Group, Inc. v. Karp, 98 F.Supp.2d 96, 106 (D.Mass., 2000).]

"`Were courts free to refuse to enforce contracts as written on the basis of their own conceptions of the public good, the parties to contracts would be left to guess at the content of their bargains . . . .'" Fed. Deposit Ins. Corp. v. Aetna Cas. & Surety Co., 903 F.2d 1073, 1077 (C.A.6, 1990), quoting St. Paul Mercury Ins. Co. v. Duke Univ., 849 F.2d 133, 135 (C.A.4, 1988). Because the parties have freely set forth their rights and obligations toward each other in their contract, when resolving a contractual dispute, "society is not motivated to do what is fair or just in some abstract sense, but rather seeks to divine and enforce the justifiable expectations of the parties as determined from the language of their contract." Rich Products Corp. v. Kemutec, Inc., 66 F Supp 2d 937, 968 (E.D.Wis., 1999). Rather than attempt to apply an abstract notion of "justice" to each particular case arising out of a contract, we recognize that refusal to enforce a contract is "contrary to the real justice as between [the parties]." Mitchell v. Smith, 1 Binn 110, 121 (Pa., 1804). See also Brown v. Vandergrift, 80 Pa. 142, 148 (1875) (holding that enforcing a contract...