Orvis v. DeGroot, 306431
| Decision Date | 16 October 2012 |
| Docket Number | No. 306431,306431 |
| Parties | AUGUST ORVIS, VAUGHAN A. ORVIS, and MARY IRENE HALL, Plaintiffs-Appellees, v. JOHN D DeGROOT and CAROL DeGROOT, THOMAS ARMSTRONG AND MARY ALICE ARMSTRONG, Defendants, and DEVLON PROPERTIES, INC., Intervening Defendant/Appellant |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Charlevoix Circuit Court
Before: FITZGERALD, P.J., and METER and BOONSTRA, JJ.
Intervening defendant (hereinafter "Devlon") appeals by right from the order of the trial court ordering that a nunc pro tunc judgment be entered for plaintiffs to enforce the terms of the 1989 settlement agreement between plaintiffs and defendants (the DeGroots and the Armstrongs). We affirm.
This case arises out of a lawsuit filed in 1988 by plaintiffs against the DeGroots and Armstrongs for adverse possession and easement by prescription. The Orvis family was the owner of Lot 73 of a subdivision known as Schoffen's Addition to Ironton; the DeGroots and Armstrongs were owners of lots 71 and 72. Plaintiffs alleged that they and their predecessors had used portions of lots 71 and 72 for more than 40 years. Plaintiffs had constructed a dock and boat house on the portion of Lot 71, had periodically constructed ice shanties on that portion, andused that portion to access Lake Charlevoix. Plaintiffs used the portion of Lot 72 for ingress and egress to their lot and had constructed a driveway and artesian well on that portion.
The parties to the 1988 lawsuit negotiated a settlement of that case. The terms of the settlement were memorialized in a document, labeled simply "Agreement," dated July 19, 1989. The Agreement contains nine numbered subsections describing the rights and duties of the parties under the agreement. Because these terms form the basis for the current dispute, they are produced in full below.
The Agreement was signed by all of its parties and was notarized. The Agreement later was recorded with the Charlevoix County Register of Deeds. Plaintiffs entered a voluntary dismissal of claims in the 1988 lawsuit, without prejudice, in 1989.
In 2004, Devlon purchased Lots 71 and 72, subject to easements, restrictions, and reservations of record. In 2009, plaintiffs filed a lawsuit against Devlon, alleging that in 2009 Devlon had "trespassed on" and "plowed under" plaintiffs' artesian water well and pump house on Lot 72. That lawsuit also was settled by agreement; the agreement provided that Devlon would pay $5,000 towards a replacement well (to be constructed on Lot 73) and that plaintiffs would move an encroaching shed onto their own property.
In 2010, plaintiffs again filed suit against Devlon, alleging that Devlon had "erected or attempted to erect a gate at the entrance of Plaintiffs' existing dock on Lake Charlevoix, made efforts to disassemble Plaintiffs' dock, and threatened to erect a fence to block Plaintiffs [sic] access over and across their easement to Lake Charlevoix and their dock." Plaintiffs requested, and the trial court issued, a temporary restraining order (TRO) against Devlon, enjoining Devlon from interfering with plaintiffs' use of the easement and dock and ordering Devlon to remove existing gates and blockades from plaintiffs' dock.
While that case proceeded to trial, plaintiffs also moved the trial court to reopen the 1988 lawsuit, alleging that Devlon1 had denied the existence of the easement granted by the Agreement. Devlon moved to intervene in the 1988 lawsuit. In a motion hearing on September 9, 2011, the trial court granted Devlon's motion to intervene, and ordered that a nunc pro tunc judgment be entered to enforce the terms of the Agreement. This appeal followed.
The interpretation of clear contractual language is an issue of law that we review de novo on appeal. DeFrain v State Farm Mut Automobile Ins Co, 491 Mich 359, 366-367; ____ NW2d ____ (2012). The determination of whether contractual language is ambiguous is also a question of law subject to de novo review. Farm Bureau Mut Ins Co v Nikkel, 460 Mich 558, 563; 596 NW2d 915 (1999). We review a trial court's rulings on equitable issues de novo but review the trial court's factual findings for clear error. McFerren v B&B Inv Group, 253 Mich App 517, 522; 655 NW2d 779 (2002). We review the trial court's decision to reopen a case for abuse of discretion. Kogowski v Kogowski, 319 Mich 511, 516; 29 NW2d 851 (1947).
Devlon first argues that plaintiffs' claim for enforcement of the Agreement is barred by the applicable statute of limitations. We disagree. Devlon claims that most of the material terms contained in the Agreement were not performed. For example, Devlon claims that paragraph 1 of the Agreement was not performed, because, although the paragraph states that "DeGroot will grant an easement to Orvis which will permit ingress, egress . . ." (emphasis added), no such easement was ever granted. Devlon makes a similar claim concerning paragraph 4 and the grant of an easement on Lot 72. Devlon also claims that the parties never made a joint application to vacate River Street. Lastly, Devlon claims that Paragraph 8, which provides that "[t]his proposal is subject to approval of the Corp. [sic] of Engineers, Department of Natural Resources, and Eveline Township" was never satisfied.
Devlon is correct that the relevant statute of limitations for breach of contract actions is six years. MCL 600.5807(8). Devlon also is correct that a settlement agreement is a contract and is governed by the principles of contract construction and interpretation. Michigan Mut Ins Co v Indiana Ins Co, 247 Mich App 480, 484; 637 NW2d 232 (2001). However, from these principles Devlon attempts to fashion a rule of law that simply does not exist, i.e., that a contract that is not fully performed, or is breached, within six years is somehow invalid and unenforceable. That is not the law of Michigan.
MCL 600.5807 provides that "[n]o person may bring or maintain any action . . . for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section." (Emphasis added). Thus, "a cause of action accrues when a breach of contract occurs, namely, when the promisor fails to perform under the contract." Vandenries v General Motors Corp, 130 Mich App 195, 201; 343 NW2d 4 (1983). Devlon's alleged breaches of the settlement agreement occurred in 2009 and 2010 when it interfered with plaintiffs' use of the property at issue. Even if Devlon's factual allegations were true, the fact that Devlon's predecessors also may have breached or failed to fully perform the Agreement does not render the Agreement somehow invalid or unenforceable.
Further, Devlon's claims regarding the performance of terms of the Agreement were rejected by the trial court. The trial court found that all contractual terms had been completed apart from the joint application to vacate River Street. This factual finding was not clearly erroneous. As to Devlon's...
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