Zaher v. Miotke

• Decision Date: 28 March 2013
• Docket Number: Docket No. 307394.
• Citation: 832 N.W.2d 266,300 Mich.App. 132
• Parties: ZAHER v. MIOTKE.
• Court: Court of Appeal of Michigan — District of US

300 Mich.App. 132
832 N.W.2d 266

ZAHER
v.
MIOTKE.

Docket No. 307394.

Court of Appeals of Michigan.

Submitted March 5, 2013, at Detroit.
Decided March 28, 2013, at 9:00 a.m.

[832 N.W.2d 267]

Rizik & Rizik, Grand Blanc, (by George F. Rizik, II) for plaintiff.

Jason M. Ministrelli, Birmingham, for defendant.

Before: GLEICHER, P.J., and SAWYER and FORT HOOD, JJ.

PER CURIAM.

[300 Mich.App. 135]The question presented in this case is whether an easement is void ab initio or merely subject to a lien-type interest when the male owner of a servient estate violates the statute of frauds by granting an easement without securing his wife's waiver of her then inchoate dower interest. Consistent with long-standing precedent of the Michigan Supreme Court, an inchoate dower interest is an encumbrance on a husband's property that can be valued. Therefore, a purchaser who takes land subject to such an encumbrance can be recompensed without invalidating the conveyance.

In this case, defendant is the successor in interest to a husband who, without his wife's participation, granted an easement across his property in plaintiff's favor. The husband's wife has since waived her dower interest in the property and there is nothing left to encumber the easement transfer. Although there may be notice issues nullifying plaintiff's claimed easement, the transfer is not void under the statute of frauds. We affirm the circuit court's grant of partial summary disposition in plaintiff's favor.

[300 Mich.App. 136]I. BACKGROUND

In 2003, Gregory Hoover (Hoover), although married to Linda Hoover (Linda), purchased in his name alone contiguous lots 2 and 3 in the North Bay Shores site

[832 N.W.2d 268]

condominium development in Fenton. When Hoover bought the lots, Linda acquired a dower interest in the property, although that interest would not vest unless or until Hoover died before Linda. MCL 558.1. Hoover hired plaintiff, Raji Zaher, to construct a house for him on lot 2. In the construction contract, signed by Hoover without his wife, Hoover agreed to transfer ownership of lot 3 to Zaher as payment. Zaher built a home for Hoover on lot 2 and simultaneously constructed his own home on lot 3.

During the construction process, Zaher concluded that he would not have sufficient room to maneuver into his sideways-facing garages if his driveway occupied only his own lot. Accordingly, he sought and obtained a “joint driveway easement” over lot 2. Hoover signed a written easement on October 27, 2007, in his name alone and without his wife's participation. Neither Zaher nor Hoover recorded the easement. Thereafter, Zaher constructed a single, 30–foot–wide driveway straddling the boundary line between the lots. Twenty feet of the driveway's width was on lot 2, which was then owned by Hoover. The driveway was paved with a uniform brick pattern and shared a single entry ramp from the road.

On April 26, 2010, Hoover sold lot 2 along with the newly constructed home to defendant, Michael Miotke. Hoover and his wife, Linda, signed the warranty deed transferring Hoover's interest in the property. On August 30, 2010, Hoover and Linda signed a warranty deed transferring Hoover's interest in lot 3 to Zaher. [300 Mich.App. 137]Both deeds were recorded. Both also provided that the property interest conveyed was subject to “easements of record.”

In May 2011, Miotke removed a line of brick pavers just inside his property's boundary line and planted a row of rosebushes. Miotke claimed that his decision to divide the driveway coincided with his decision to have other masonry work performed on the property. Miotke also had his front porch repoured and installed a new pattern of brick pavers on the porch and “his” 20–foot portion of the driveway. Zaher, who was out of town at the time, returned to discover that he could no longer park his vehicles in his garages as he only had access to a 10–foot–wide portion of the driveway.

The current lawsuit ensued. Zaher sought a preliminary injunction to return the driveway to the condition it had been in before Miotke changed it and also a permanent injunction to enforce the joint-driveway easement. Miotke filed a counterclaim seeking demolition of Zaher's garages as they were constructed outside the “building envelope” allowed by the condominium development's master plan. Miotke also filed a third-party action against the Hoovers and their real estate broker for their alleged failure to advise him of the joint-driveway easement before closing the sale.

The circuit court granted Zaher's motion for a preliminary injunction and Miotke does not challenge that decision. The court thereafter denied the parties' motions and cross-motions for summary disposition, determining that there remained questions of fact regarding, among other issues, Miotke's awareness of the joint driveway use when the sale occurred. The court did, however, grant partial summary disposition in Zaher's favor on one issue. The court ruled, contrary to Miotke's protestations, that the easement over lot 2 was not [300 Mich.App. 138]void or voidable from its inception even though Linda was not a party to the document and therefore did not release her inchoate dower interest in the encumbered lot 2.

Miotke continues to contend that the joint-driveway easement was void from its

[832 N.W.2d 269]

inception. Under the statute of frauds, MCL 566.106 and MCL 566.108, an easement is the transfer of a property interest and must be made in writing and signed by everyone with an interest in the property. Linda, although not a coowner of lot 2, obtained an inchoate dower interest in the property when her husband purchased it. And, according to Miotke, Linda did not waive her inchoate dower interest by joining the transfer of the easement to Zaher, rendering that transfer invalid.

Zaher counters that Linda's failure to sign the easement did not render the easement void; rather, Linda's failure to waive her inchoate dower interest at the time the easement was created “merely cloud[ed] the title to that grant.” If Hoover died without Linda having waived her dower interest, then the property subject to the easement also would have become subject to Linda's realized dower interest. However, according to Zaher, Linda did waive her inchoate dower interest in lot 2 when she joined Hoover's transfer to Miotke through the warranty deed and no longer has an interest to claim in the property.

The circuit court agreed with Zaher that the easement was not void ab initio. The court concluded that the situation had to be “evaluated or reviewed” by “looking at it now, not then.” The court held that Linda had since waived her dower interest in lot 2 by joining her husband's transfer of his fee interest to Miotke and thereby “cured” any deficiency in the easement conveyance. The court therefore granted partial summary [300 Mich.App. 139]disposition in Zaher's favor and denied Miotke's motion for summary disposition on this limited issue. ¹

II. STANDARD OF REVIEW

We review a trial court's decision on a motion for summary disposition de novo. Wayne Co. v. Wayne Co. Retirement Comm., 267 Mich.App. 230, 243, 704 N.W.2d 117 (2005). A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the complaint on the basis of the pleadings alone to determine if the opposing party has stated a claim for which relief can be granted.” Begin v. Mich. Bell Tel. Co., 284 Mich.App. 581, 591, 773 N.W.2d 271 (2009). We must accept all well-pleaded allegations as true and construe them in the light most favorable to the nonmoving party. Id. The motion should be granted only if no factual development could possibly justify recovery. Id.

A motion under MCR 2.116(C)(10) “tests the factual support of a plaintiff's claim.” Walsh v. Taylor, 263 Mich.App. 618, 621, 689 N.W.2d 506 (2004). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich.App. at 621, 689 N.W.2d 506. “A genuine issue of material fact exists when the record, giving the [300 Mich.App. 140]benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, 469 Mich. at 183, 665 N.W.2d 468.

We review de novo underlying issues regarding the interpretation and applicability

[832 N.W.2d 270]

of a statute, such as the statute of frauds relied upon by the parties in this case. Adams Outdoor Advertising, Inc. v. City of Holland, 463 Mich. 675, 681, 625 N.W.2d 377 (2001).

III. ANALYSIS

“An easement is an interest in land that is subject to the statute of frauds.” Forge v. Smith, 458 Mich. 198, 205, 580 N.W.2d 876 (1998). The statute of frauds is codified at MCL 566.106, which provides:

No estate or interest in lands ... shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.

MCL 566.108 provides similar requirements for contracts covering the transfer of a property interest:

Every contract ... for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing.... ²

[300 Mich.App. 141]The easement granted by Hoover over his property, lot 2, for the benefit of Zaher and his...