Rossow v. Brentwood Farms Dev., Inc.

• Decision Date: 18 June 2002
• Docket Number: Docket No. 224060.
• Citation: 651 N.W.2d 458,251 Mich. App. 652
• Parties: Glenn R. ROSSOW and Ginger K. Rossow, Plaintiffs-Appellants, v. BRENTWOOD FARMS DEVELOPMENT, INC., Brentwood Association, and James and Linda Hogan, Defendants-Appellees, and James and Linda Hogan, Third-Party Plaintiffs, and Steven L. Chaplin, Raymond P. Leduc, Kem-Tec Land Surveyors, and Brentwood Association, Third-Party Defendants.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 458

251 Mich. App. 652

Glenn R. ROSSOW and Ginger K. Rossow, Plaintiffs-Appellants, v. BRENTWOOD FARMS DEVELOPMENT, INC., Brentwood Association, and James and Linda Hogan, Defendants-Appellees, and James and Linda Hogan, Third-Party Plaintiffs, and Steven L. Chaplin, Raymond P. Leduc, Kem-Tec Land Surveyors, and Brentwood Association, Third-Party Defendants.

Docket No. 224060.

Court of Appeals of Michigan.

Submitted November 5, 2001, at Detroit.

Decided June 18, 2002, at 9:00 a.m.

Released for Publication September 10, 2002.

Mark F. Makower & Associates, P.C. (by Mark F. Makower and Christopher Hartman), Farmington Hills, for Glenn R. and Ginger K. Rossow.

Dean & Fulkerson, P.C. (by Jeffrey L. Hudson), Troy, for Brentwood Farms Development, Inc., and Brentwood Association.

Cummings, McClorey, Davis & Acho, P.L.C. (by T. Joseph Seward, Francis P. Dempsey, Dana Drebes-Ulrich, and Anne McClorey McLaughlin), Livonia, for James and Linda Hogan.

Before: NEFF, P.J., and WILDER and COOPER, JJ.

WILDER, J.

In this real estate action, plaintiffs appeal as of right¹ from the trial court's order denying plaintiffs summary disposition pursuant to MCR 2.116(C)(10) and granting defendants summary disposition pursuant to MCR 2.116(I)(2). We affirm.

I. Facts and Proceedings

Defendant Brentwood Farms Development, Inc. (Brentwood Farms), developed the Brentwood Farms Condominium Project (project), located in White Lake Township. The project consists of single family homes built as part of a condominium complex under the auspices of the Michigan Condominium Act, M.C.L. § 559.101 et seq. As required under § 8 of the act, Brentwood Farms executed a master deed for the condominium project on October 25, 1993, and recorded the master deed on November 9, 1993. MCL 559.108. Brentwood Farms attached a site plan as part of the master deed.

On December 22, 1993, plaintiffs signed a land contract to purchase Unit 82 of the project. A warranty deed for Unit 82 was recorded on June 19, 1997. Both the warranty deed and the site plan attached to the master deed state clearly that Unit 82 was part of Brentwood's condominium project. Sometime after October 1996 and before the end of 1997,² James and Linda Hogan purchased a condominium home with side entry garage and asphalt driveway located at 2379 Mayfair. The home was constructed on Unit 83 of the condominium project, which is adjacent to Unit 82. On or about September 30, 1996, Unit 83 was surveyed by Kem-Tec Surveyors. Kem-Tec's survey discovered that the asphalt driveway located on Unit 83 encumbered Unit 82 by approximately nine feet. According to Brentwood Farms, the encumbrance occurred because a surveying and staking error was made before the Hogans' home was constructed, so that the home was built too close to plaintiffs' property to allow for entrance into an attached side entry garage if the driveway was located entirely within Unit 83. Because the by-laws of the association require all garages to be built as side entry accessible, the driveway was constructed in such a way that it resulted in the encumbrance on plaintiffs' property.³

On October 5, 1998, Brentwood Association recorded an easement over Unit 82 for the benefit of Unit 83. In pertinent part the easement stated as follows:

Pursuant to the authority granted in Article IX(C)(1) of said Master Deed, the Association, through its Board of Directors, has authority to grant easements for access purposes. It is because of that authority and because of an error in the locating of the driveway of one unit onto another that in consideration of $1.00, receipt of which is hereby acknowledged, the Association grants the following easement.

There shall be an easement 10 feet wide on the side of Unit 82 that adjoins Unit 83 for purposes of ingress and egress as well as maintenance of the existing driveway and existing landscaping. This easement shall perpetually run with the land until such time, if any, the Co-owner of Unit 83 relocates his driveway to be off of Unit 82. All costs of maintenance, repair, and replacement of that driveway shall be borne by the Co-owner of Unit 83.

Defendants did not seek or obtain plaintiffs' agreement to the easement before it was recorded. Plaintiff filed this action alleging that defendants had violated the Condominium Act and slandered title to their property by recording the easement, and requesting that the trial court quiet title to their land and remove any encumbrance and easement placed on their land without their permission. Plaintiffs then filed a motion for summary disposition, which the trial court denied following a motion hearing. Instead, the trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(I)(2), stating:

The provisions of the Master Deed were expressly accepted by Plaintiffs when they purchased the Unit. The Master Deed and Bylaws ran with Plaintiffs['] property as a matter of law and contract. The language of the Master Deed is clear and unambiguous. The Master Deed specifically provides that a driveway is a Common Element. The Master Deed also specifically provides that if any portion of a Common Element encroaches upon another Site, reciprocal easements shall exist for maintenance and it specifically gives the Association the right and the duty to grant an easement for ingress or egress. This Court finds that there is no genuine issue of material fact that the Master Deed empowered and obligated the defendant Association to grant the easement for the driveway to the Hogan Defendants. Furthermore, this Court finds that Plaintiffs cannot establish claims of slander of title, breach of condominium documents or violation of the Condominium Act [MCL 559.101 et seq.], because the grant of the easement in the Common Element was lawful and in accordance with the Master Deed. Therefore, Plaintiffs['] Motion for Summary Disposition is denied pursuant to MCR 2.116(C)(10) and Defendants are entitled to Summary Disposition pursuant to MCR 2.116(I)(2).⁴

II. Standard of Review

A. Motions for Summary Disposition

This Court's review of a trial court's decision to deny or grant summary disposition is de novo. Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000). A motion under MCR 2.116(C)(10) tests the factual support for a claim and is reviewed to determine whether the affidavits, pleadings, depositions, or any other documentary evidence establishes a genuine issue of material fact to warrant trial. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). In reviewing a summary disposition motion, the Court gives the nonmoving party the benefit of all reasonable inferences. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 615, 537 N.W.2d 185 (1995). The trial court appropriately grants summary disposition to the opposing party under MCR 2.116(I)(2) when it appears to the court that the opposing party, rather than the moving party, is entitled to judgment as a matter of law. Gyarmati v. Bielfield, 245 Mich.App. 602, 604, 629 N.W.2d 93 (2001), citing Sharper Image v. Dep't of Treasury, 216 Mich.App. 698, 701, 550 N.W.2d 596 (1996).

B. Interpretation of Contracts

The construction and interpretation of an unambiguous contract is a question of law that we review de novo. Henderson v. State Farm Fire & Casualty Co., 460 Mich. 348, 353, 596 N.W.2d 190 (1999); Morley v. Automobile Club of Michigan, 458 Mich. 459, 465, 581 N.W.2d 237 (1998); see also Michigan Nat'l Bank v. Laskowski, 228 Mich.App. 710, 714, 580 N.W.2d 8 (1998), and Zurich Ins. Co. v. CCR & Co. (On Rehearing), 226 Mich.App. 599, 604, 576 N.W.2d 392 (1997). Whether terms of a contract are ambiguous is also a question of law that we will review de novo. Henderson, supra; Port Huron Ed. Ass'n v. Port Huron Area School Dist.,

452 Mich. 309, 323, 550 N.W.2d 228 (1996). In determining whether a contract provision is ambiguous, we are to give the language used its ordinary and plain meaning, Michigan Nat'l Bank, supra, to see if "its words may reasonably be understood in different ways." Trierweiler v. Frankenmuth Mut. Ins. Co., 216 Mich.App. 653, 656-657, 550 N.W.2d 577 (1996). "[I]f a word or phrase is unambiguous and no reasonable person could differ with respect to application of the term or phrase to undisputed material facts," summary disposition should be granted to the proper party. Henderson, supra at 353, 596 N.W.2d 190, citing Moll v. Abbott Laboratories, 444 Mich. 1, 28, n. 36, 506 N.W.2d 816 (1993).

C. Statutory Interpretation

As Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 158, 627 N.W.2d 247 (2001), observed:

In considering a question of statutory construction, this Court begins by examining the language of the statute. We read the statutory language in context to determine whether ambiguity exists. If the language is unambiguous, judicial construction is precluded. We enforce an unambiguous statute as written. Where ambiguity exists, however, this Court seeks to effectuate the Legislature's intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. [Citations omitted.]

Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used, Phillips v. Jordan, 241 Mich.App. 17, 22, n. 1, 614 N.W.2d 183 (2000), citing Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 539, 565 N.W.2d 828 (1997). Further, the language must be applied as written, Camden v. Kaufman, 240 Mich.App. 389, 394, 613 N.W.2d 335 (2000); Ahearn v. Bloomfield Charter Twp., 235 Mich.App. 486, 498, 597 N.W.2d 858 (1999), and nothing should be read into a statute that is not within the manifest intent of the Legislature as evidenced from the act itself. In re S R, 229 Mich.App. 310, 314, 581 N.W.2d 291 (1998).

III. Analysis

On appeal, plaintiffs argue that the trial court erred in...