Angelique Bruening v. Carlos Sanchez

STATE OF MICHIGAN
COURT OF APPEALS
ANGELIQUE BRUENING, UNPUBLISHED
November 24, 2015
Plaintiff-Appellant,
v No. 322822
Washtenaw Circuit Court
CARLOS SANCHEZ and TERRY SANCHEZ, LC No. 13-000867-CH
Defendants-Appellees.
ANGELIQUE BRUENING,
Plaintiff-Appellee,
v No. 323597
Washtenaw Circuit Court
CARLOS SANCHEZ and TERRY SANCHEZ, LC No. 13-000867-CH
Defendants-Appellants.
Before: METER, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
These consolidated appeals involve a property dispute between neighbors and a request
for sanctions. In Docket no. 322822, plaintiff appeals the trial court order granting defendants’
motion for a directed verdict and denying plaintiff’s motion for injunctive relief. In Docket no.
323597, defendants appeal the trial court order denying their motion for sanctions under MCR
2.625. In both instances, we affirm the decisions of the trial court.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
A. THE “ALLEY”
Plaintiff and defendants live on adjoining parcels on the shores of Joslin Lake in Lyndon
Township. Both properties are located in the Home Wild Resort subdivision. Plaintiff resides at
5104 Joslin Lake Drive (“5104”) and defendants reside at 5100 (“5100”). As situated, plaintiff’s
only access to her property is via a sidewalk running through 5100. However, the original 1923
plat map depicting the properties provided for a 10-foot wide “alley” running across the middle
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of both properties to “Outlot 2,” which borders defendants’ parcel. Although termed an “alley,”
the 10-foot strip of land in question is better understood as a grassy strip of land that originates
on Outlot 2 and runs across plaintiff’s and defendants’ lots. The alley has no visible borders on
either side, and appears from photographs to merely be a part of the parties’ respective front
yards. On plaintiff’s property, the alley was partially blocked at one time by a wooden deck
attached to plaintiff’s residence.
B. PRIOR OWNERSHIP
We briefly set forth the prior ownership of the properties, as this ownership will become
pertinent later in this opinion. In 1956, what is now known as 5100 and 5104 were owned by
John and Catherine Hoban. The Hobans conveyed the lots to twin brothers Cletus and Clifford
Busen. In 1962, Cletus and Clifford divided the lots into their current configuration, with Cletus
and his wife Elise receiving 5104 and Clifford and his wife Roberta receiving 5100.
In 1979, Clifford and Roberta deeded 5100 to Jane Niemeyer. In 1980, Niemeyer deeded
the property to herself, Clifford and Roberta, Daniel Busen, Michael Busen, and Ann Marie
Busby. In 1997, the property was deeded to the Clifford W. Busen Revocable Trust. In 2004,
defendants purchased 5100 from the Busen Trust. In 2005, the Busen Trust purported to convey
by quitclaim deed the portion of the alley located along Lots 61 and 63, i.e., the 5100 property, to
defendants.
In 1988, Elsie Busen sold her interest in 5104 to Matthew and Rita Busen. Matthew and
Rita granted mortgages to D & N Bank and Ameriquest Mortgage Company. In 2001,
Ameriquest foreclosed on the property, and then sold it to Republic Bank. In 2008, plaintiff
purchased 5104 from Republic.
C. THE INSTANT DISPUTE
When plaintiff purchased her property in 2008, there was fence along the border of
defendants’ property and Outlot 2. The fence had an opening that was approximately 10 feet
wide; the parties stipulated however, that this opening was not the location of the platted alley.1
Defendants constructed a fence on the border between their property and plaintiff’s property
sometime in 2012 or 2013 (thus crossing the area alleged to be the alley). The instant dispute
arose in 2013 when defendants closed off the 10-foot-wide opening in the fence that ran between
their property and Outlot 2. When defendants refused to re-open the gap in the fence, plaintiff
brought suit seeking rights to use the platted alley for vehicular access to her property. Plaintiff
claimed the right of vehicular access over the portion of the platted alley crossing defendants’
property under various theories. In response to plaintiff’s complaint, defendants primarily
argued that their predecessors had long before gained title to the portion of the alley crossing
5100 by adverse possession. They asserted adverse possession only in their answer; they never
filed a separate claim in regard to adverse possession.
1
We note as much because plaintiff’s brief on appeal at times conflates this opening with the
disputed alley.
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After a two-day bench trial, the trial court granted defendants’ motion for a directed
2
verdict and entered an order declaring that plaintiff failed to establish any right to use, possess,
or access the alley. In addition, the trial court stated that “in any event, such use, possession or
access” was “lost by adverse possession” to defendants. Plaintiff appeals this order in Docket
No. 322822. Subsequently, defendants moved for sanctions in the form of costs and attorney
fees, arguing that plaintiff’s claims were frivolous as devoid of arguable merit. The trial court
denied the motion. Defendants appeal this order in Docket No. 323597.
II. DOCKET NO. 322822
A. STANDARD OF REVIEW
Because this was a bench trial, we treat defendants’ motion for a “directed verdict” as a
motion for involuntary dismissal. Samuel D Begola Servs, Inc v Wild Bros, 210 Mich. App. 636,
639; 534 NW2d 217 (1995). “The involuntary dismissal of an action is appropriate where the
trial court, when sitting as the finder of fact, is satisfied at the close of the plaintiff’s evidence
that ‘on the facts and the law the plaintiff has shown no right to relief.’ ” Id., quoting MCR
2.504(B)(2). Unlike in a motion for a directed verdict, where credibility determinations are
inappropriate, “a motion for involuntary dismissal calls upon the trial judge to exercise his
function as trier of fact, weigh the evidence, pass upon the credibility of witnesses and select
between conflicting inferences. Plaintiff is not given the advantage of the most favorable
interpretation of the evidence. Williamston Twp v Hudson, __ Mich App __; __ NW2d __
(Docket No. 321306, released for publication July 2, 2015), slip op at 5-6 (citation and quotation
marks omitted). “Following a bench trial, we review for clear error the trial court’s factual
findings and review de novo its conclusions of law.” Ligon v Detroit, 276 Mich. App. 120, 124;
739 NW2d 900 (2007). “The clear error standard provides that factual findings are clearly
erroneous where there is no evidentiary support for them or where there is supporting evidence
but the reviewing court is nevertheless left with a definite and firm conviction that the trial court
made a mistake.” Hill v City of Warren, 276 Mich. App. 299, 308; 740 NW2d 706 (2007).
2
Because this was a bench trial, the motion for a directed verdict would be more accurately
described as a motion for involuntary dismissal under MCR 2.504. Sands Appliance Servs, Inc v
Wilson, 463 Mich. 231, 235 n 2; 615 NW2d 241 (2000).
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B. WHETHER THE PLAT DEDICATED THE ALLEY TO ALL HOMEOWNERS IN THE
SUBDIVISION3
Plaintiff argues that the original 1923 plat dedicated the use of the alley to the subdivision
lot owners as a whole. We disagree. The determination of a party’s rights under a plat
dedication depends on the intent of the platters. See Higgins Lake Prop Owners Ass’n v Gerrish
Twp, 255 Mich. App. 83, 88; 662 NW2d 387 (2003). Where the language of the plat is clear and
unambiguous, it must be enforced as written and no further inquiry is allowed. Dyball v Lennox,
260 Mich. App. 698, 704; 680 NW2d 522 (2003).
The original plat dictates that “Joslin Drive as shown on the plat [is] hereby dedicated to
the use of the public and that the courts, walks, and park and Shore Drive and Home Wild Drive
are hereby dedicated to the use of the Lot Owners.” (Emphasis added). There is no other
language in the plat referring to lands dedicated to either the public or the lot owners as a whole.
There is also no ambiguity in the language. Courts, walks, a park, and the two drives are
identified in the plat; however, there is no indication that the alley was intended to be included in
these dedications. Indeed, plaintiff’s own expert testified that, as platted, the alley was part of
Outlot 2, which is now owned by a private party. The plat does not dedicate the outlots to the
public or lot owners as a whole. Thus, the unambiguous language of the plat dedication does not
3
The parties spend a considerable portion of their briefs arguing over whether defendants
acquired title to the alley through adverse possession. Presumably, this was based on the trial
court’s alternative pronouncement that, assuming plaintiff had any interest in the alley, she lost
that interest “by adverse possession” to defendants. We do not read the trial court’s order in the
same manner as do the parties. Namely, we do not find this alternative line of reasoning by the
trial court as the equivalent of a declaratory judgment in favor of defendants, finding that they
established the elements of adverse possession and could quiet title to the alley. And, to the
extent this line in the trial court’s written order was meant to declare that defendants held title to
the alley by adverse possession, we would vacate that portion of the order. In this regard, we
first note that Robert and Patricia Cencek—the owners of Outlot 2—whom both parties agree
originally owned the alley pursuant to the platted agreement, were not a party to the action.
Thus, we question the validity of a declaration of ownership rights in the alley without the
platted owner of the property being involved in the action. Furthermore, we note that defendants
never pled a quiet title action involving the Cenceks before the trial court; thus, the court should
not have entered judgment on this matter. See Pransky v Falcon Group, Inc, __ Mich App __;
__ NW2d __ (Docket Nos. 319266; 319613), slip op at 16. Further, we note that if defendants
wish to quiet title to the property, this is a matter that should involve the Cenceks, not plaintiff.
However, because we do not read the trial court’s written order as one entering judgment
on a quiet title claim that was never pled, we see no need to vacate any such portion of the order.
Accordingly, we find it unnecessary to decide the parties’ arguments with regard to adverse
possession, and instead focus on the heart of the matter that was properly before the the trial
court: did plaintiff have a right to use the alley or have a right to use any other means of crossing
defendants’ property? For the reasons discussed infra, we agree with the trial court that plaintiff
did not have any such rights.
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provide plaintiff any rights of access or ownership over the alley and, accordingly, the trial court
did not err in refusing to grant plaintiff any rights over the alley based on the plat dedication.
C. EASEMENTS
Plaintiff next argues that she can assert an easement to use the alley by one or more of the
following easement-creation methods: an easement by necessity, an implied easement, and/or a
prescriptive easement. We disagree.
1. IMPLIED EASEMENT AND EASEMENT BY NECESSITY
Although not phrased as such, plaintiff’s claims for an “implied easement” and an
“easement by necessity” are both claims for an easement by necessity, which is itself a
subcategory of implied easements:
An implied easement may arise in essentially two ways: (1) an easement
by necessity and (2) an easement implied from a quasi-easement. An easement by
necessity may be implied by law where an owner of land splits his property so
that one of the resulting parcels is landlocked except for access across the other
parcel. An easement by necessity may arise either by grant, where the grantor
created a landlocked parcel in his grantee, or it may arise by reservation, where
the grantor splits his property and leaves himself landlocked. This sort of implied
easement is not dependent on the existence of any established route or quasi-
easement prior to the severance of the estate by the common grantor; it is first
established after the severance. A right of way of necessity is not a perpetual
right. It ceases to exist when the necessity for its continuance ceases. [Charles A
Murray Trust v Futrell, 303 Mich. App. 28, 41-42; 840 NW2d 775 (2013)
(quotation marks and citations omitted).]
Plaintiff claims an implied easement on the grounds that (1) absent the easement,
vehicles, especially emergency vehicles, cannot access 5104, the latter being in violation of the
Michigan Building Code and (2) the two parcels at issue were originally one and, having been
divided, left 5104 landlocked such that plaintiff does not possess the necessary vehicular access
to her property.
We conclude that the trial court did not err in failing to grant plaintiff an easement by
necessity over the alley. There is no dispute that, when the parties’ properties were acquired in
1956, they were part of the same parcel. They were divided into their current configuration in
1962. Plaintiff’s parcel is not now “landlocked.” “[T]he requirement for an easement by
necessity is that of strict or absolute necessity, and an easement by necessity ceases to exist when
the necessity ceases.” Id. at 55. That is, “an easement by necessity is not a right of way of mere
convenience.” Id. Plaintiff undisputedly has an easement over the sidewalk allowing her and
her guests to reach her property on foot from the nearest court, where parking is available to
plaintiff and others. The only question is whether a lack of direct vehicular access to plaintiff’s
property renders 5104 “landlocked” to the extent that an easement over the alley is of “strict or
absolute necessity.”
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As noted, the law requires that the necessity be absolute and strict. Id. at 55. Thus, we
must strictly construe this requirement and hold that vehicular access over the alley is not
necessary, given that plaintiff has undisputed pedestrian access to her property. Indeed, this is
not a case where plaintiff’s property was completely landlocked with no practical way to access
the property. Cf. Kamm v Bygrave, 356 Mich. 189; 96 NW2d 770 (1959). Rather, plaintiff had a
way to access the property, i.e., the sidewalk and parking area a short distance away, and wanted
a more convenient means of access. On the facts presented, this is not enough to establish a
strict necessity. See Charles A Murray Trust, 303 Mich. App. at 55 (explaining that “mere
convenience” will not establish an easement by necessity). With regard to emergency vehicles,
defendants argued and plaintiff did not dispute that it was approximately 50 feet from a separate
maintenance easement over Outlot 2 to her front door, via the sidewalk easement. On these
facts, we agree that plaintiff did not establish that it was strictly necessary to have access right to
her front door. Moreover, with regard to emergency vehicles, the law recognizes that emergency
personnel responding to emergency situations arrive under unusual circumstances “and may
enter portions of the premises not open to the public.” Kreski v Modern Wholesale Elec Supply
Co, 429 Mich. 347, 368; 415 NW2d 178 (1987). Plaintiff has not established that it was strictly
necessary to use her preferred, proposed route for emergency vehicles. Accordingly, the trial
court as the finder of fact did not err in failing to grant plaintiff an easement by necessity for
emergency vehicle access.
Plaintiff’s related argument that an easement by necessity is required to allow repair or
construction vehicles to access her property also fails. Plaintiff testified that she would like to
have work done to her property, e.g., removing rocks, having new siding and windows put in,
and getting new furniture. However, plaintiff admitted that she had not talked to any vendor who
told her that things she wanted done to the property could not be accomplished without vehicular
access directly to 5104. Thus, although it is reasonable to assume that repair work might be
made more arduous by workers only being able to access plaintiff’s property by the sidewalk
easement, plaintiff presented no evidence to that effect. It was plaintiff’s burden to show that she
was entitled to an easement by necessity. See Mulcahy v Verhines, 276 Mich. App. 693, 699; 742
NW2d 393 (2007). Due to the lack of evidence offered by plaintiff to suggest that her desired
repair work could not be accomplished by using the sidewalk easement, combined with the fact
that any necessity must be strict and absolute, Charles A Murray Trust, 303 Mich. App. at 55, the
trial court did not err by failing to grant plaintiff an easement by necessity on the basis of non-
emergency vehicular access. Again, plaintiff has at most established that an easement would be
more convenient, but that is not enough to permit an easement for large delivery vehicles. See
Kahn-Reiss, Inc v Detroit & Northern S & L Ass’n, 59 Mich. App. 1, 13; 228 NW2d 816 (1975),
overruled in part on other grounds Schmidt v Eger, 94 Mich. App. 728, 734-735; 289 NW2d 851
(1980).
Plaintiff’s argument that an easement by necessity is required under the Michigan
Building Code is without merit as well. Plaintiff notes that Michigan has adopted the
International Residential Code, 2012 edition. Mich Admin Code, R 408.30401. Plaintiff cites R
310.1 therein, which requires that “every sleeping room” have an emergency exit which “shall
open directly into a public way, or a yard or court that opens to a public way.” International
Residential Code, R 310.1 (2012). As a preliminary matter, this rule deals with emergency
egress from a home and has nothing to do with emergency vehicle access to a residential lot.
Plaintiff does not appear to dispute that any emergency egress from her home leads “directly” to
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her yard, thus satisfying the first part of the rule. Plaintiff argues, however, that having to cross
her sidewalk easement over 5100 means that her yard does not “open[] to a public way” absent
an easement by necessity over the alley. This argument fails for two reasons. First, the rule does
not require that plaintiff’s yard open directly to a public way. Rather, the yard must merely
“open” to a public way. Plaintiff’s yard leads to her sidewalk easement, which leads to her
maintenance easement over Outlot 2, which leads to a court dedicated to all subdivision lot
owners, which leads to Joslin Lake Drive, dedicated to the public (See plat map). Thus, her yard
“opens” to a public way. Second, the International Residential Code defines “public way” as
“[a]ny street, alley or other parcel of land open to the outside air leading to a public street, which
has been deeded, dedicated or otherwise permanently appropriated to the public for public
use . . . .” International Residential Code, R 202 (2012). Under no circumstances is the alley a
“public way.” The alleys in Home Wild Resort subdivision were not dedicated to anyone and
were certainly not dedicated permanently to the public. Moreover, plaintiff has repeatedly
asserted in this case that the alley is part of Outlot 2, which is privately owned by a non-party to
this litigation, further defeating any claim that the alley is or ever was permanently deeded or
dedicated to the public. Accordingly, plaintiff is not entitled to an easement by necessity under
the cited grounds of the International Residential Code.
2. PRESCRIPTIVE EASEMENT
We also conclude that the trial court did not err in finding that plaintiff was not entitled to
a prescriptive easement.
An easement by prescription results from use of another’s property that is
open, notorious, adverse, and continuous for a period of fifteen years. The burden
is on the party claiming a prescriptive easement to show by satisfactory proof that
the use of the defendant’s property was of such a character and continued for such
a length of time that it ripened into a prescriptive easement. [Mulcahy, 276 Mich
App at 699 (quotation marks and citation omitted).]
Plaintiff’s prescriptive easement claim is at times confusing with regard to whether it
refers to the platted alley or the 10-foot opening in the fence on defendants’ property. We first
address the platted alley, and note that there was no evidence to support a claim of a prescriptive
easement over the platted alley. A vast majority of the testimony presented at trial referred to the
10-foot opening, not the platted alley. Based on the record before us, there was no testimony
concerning the use of the alley that would permit a finding of a prescriptive easement for
vehicular access.
We next consider, and reject, the claim that the use of the 10-foot opening in the fence on
defendants’ property could establish a prescriptive easement for vehicular access. Plaintiff’s
claim in this regard fails because she cannot establish a continuous 15-year period where
vehicular access occurred through a 10-foot gap in the fence in order to reach 5104. Plaintiff
testified that she, along with her visitors and repair workers she had hired, crossed 5100 in a
vehicle via the 10-foot gap in the fence approximately 10 to 20 times per year. However, at the
time of trial, plaintiff had only owned 5104 for approximately six years. This is well short of the
15-year continuous period necessary to establish a prescriptive easement. Id. While “[a] party
may ‘tack’ on the possessory periods of predecessors in interest to achieve this fifteen-year
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period by showing privity of estate,” Killips v Mannisto, 244 Mich. App. 256, 259; 624 NW2d
224 (2001), plaintiff did not establish the 15-year period even considering tacking. Immediately
prior to plaintiff’s purchase in 2008, 5104 had been owned by banks and remained vacant. The
only testimony regarding any use during that period was from Ronald Sipes, the realtor who sold
plaintiff the property. However, Sipes testified that he only ever walked across 5100 to get to
5104.
Rita Munz4 (formerly Busen) testified that she lived in 5104 from 1987 until 2000, i.e.,
13 years. She further testified that the 10-foot gap in the fence was present the entire 13 years
and that she, and others, used the gap to transport snowmobiles and allow in repair trucks
approximately 10 times per year. However, Munz’s testimony only establishes a 13-year period
of continuous use and, moreover, she admitted that she had no idea whether the uses she
described were with or without permission. Nonpermissive use is a necessary element of an
easement by prescription. Mulcahy, 276 Mich. App. at 699. Furthermore, plaintiff failed to
present any evidence to suggest that the 10-foot gap in the fence was used for vehicular access
from 1985-1987 (which could be tacked to Munz’s 13-year period to reach the necessary 15-year
period) or any other 15-year period of continuous use by her predecessors in title. The only
person to testify with any knowledge of that prior period was Michael Busen, who testified that,
to the best of his recollection, a white “cross-buck” fence spanned all the way down the property
line to the lakeshore from 1956 until 1979. Thus, the only evidence provided for this time period
suggests that there was no 10-foot gap in the fence at all, indicating that no vehicular access was
available through plaintiff’s asserted opening from 1956 until 1979. 1979 is eight years before
Munz began living at 5104. Moreover, Michael further testified that, to his knowledge, no one
had ever driven across 5100 to access 5104 without permission.
Plaintiff, as the party asserting entitlement to a prescriptive easement, bore the burden of
establishing the necessary elements. Id. She failed to do so. Accordingly, the trial court did not
err in refusing to grant plaintiff a prescriptive easement.
III. DOCKET NO. 323597
In Docket no. 323597, defendants argue that the trial court erred in failing to find
plaintiff’s claims frivolous and, accordingly, award defendants costs and attorney fees. “We
review for clear error the circuit court’s decision to impose sanctions on the ground that an action
was frivolous . . . .” Ladd v Motor City Plastics Co, 303 Mich. App. 83, 103; 842 NW2d 388
(2013). “A decision is clearly erroneous where, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” Robert
A Hansen Family Trust v FGH Indus, LLC, 279 Mich. App. 468, 486; 760 NW2d 526 (2008)
(citation and quotation marks omitted).
Defendants moved the trial court for sanctions pursuant to MCR 2.625(A)(2), which
provides that:
4
We note that the record and briefs inconsistently refer to Rita Munz as “as Rita Muns” and
“Rita Munz.” For the sake of consistency, this opinion will refer to her as “Rita Munz.”
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In an action filed on or after October 1, 1986, if the court finds on motion
of a party that an action or defense was frivolous, costs shall be awarded as
provided by MCL 600.2591.
Defendants argued that plaintiff’s claims were frivolous as defined in MCL 600.2591(3)(a)(iii),
i.e., they were “devoid of arguable merit.” Plaintiff originally brought four claims, alleging that
she was entitled to: (1) access the alley due to the plat dedication; (2) an easement by necessity;
(3) a prescriptive easement; and (4) an “easement by acquiescence.” Each claim must be
analyzed individually for frivolity. See MCR 2.625(B)(2).
Plaintiff’s claim that the original plat of the subdivision dedicated the alleys to use of the
lot owners was not frivolous. Although the plat did not dedicate the alleys, all of the other alleys
connect to a street or court except the alley at issue. And plaintiff provided a persuasive
argument concerning the intent of the platters which may have prevailed had we found the plat
language ambiguous. Id. Although the unambiguous language of the plat controls, Dyball, 260
Mich. App. at 704, this claim was not so “devoid of arguable merit” as to render it frivolous.
Plaintiff’s claim for easement by necessity was also not frivolous. This action was filed
almost two months before this Court decided Charles A Murray Trust, 303 Mich. App. 28. Prior
to that opinion, it was not settled that the sought access must be strictly, as opposed to
reasonably, necessary. Id. at 45-49. Therefore, at the time of filing, plaintiff’s argument for
vehicular access would have been even more colorable. Because plaintiff’s easement by
necessity claim involved close and unresolved questions of law, it was not frivolous as devoid of
arguable merit. Plaintiff’s claim for a prescriptive easement was also not frivolous. While the
claim fails, the evidence was not completely one-sided and, in our view, not so lacking as to
render the claim frivolous.
Nor do we find that the trial court clearly erred by failing to deem frivolous plaintiff’s
claim for “easement by acquiescence.” Plaintiff produced evidence that, at least for brief periods
of time, there may have been some level of agreement in using the opening in the fence for some
vehicular access. And, while the doctrine of acquiescence has traditionally been limited to
boundary disputes when the parties are mistaken as to the true boundary line, see Killips, 244
Mich. App. at 260, we do not find clear error in the trial court’s decision not to declare as
frivolous plaintiff’s assertion of the doctrine in support of her claim for an easement. Indeed,
there was evidence of at least some mistake as to the location of the platted alley, and plaintiff
sought to argue that the platted alley was meant to be used by all lot owners, not just the owners
of Outlot 2. Taking this argument to its conclusion, it could be argued that if all lot owners could
use the platted alley, and if the platted alley was mistaken for the 10-foot opening in the fence,
then all lot owners could use the 10-foot gap. Thus, there was at least arguable—although not
particularly compelling—merit to plaintiff’s assertion of the doctrine under these circumstances.
IV. CONCLUSION
In Docket no. 322822, we affirm the trial court’s ruling that plaintiff had no rights over
the disputed portion of the alley crossing 5100 Joslin Lake Drive or in the 10-foot opening in the
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fence. In Docket no. 323597, we affirm the trial court’s denial of defendants’ motion for
sanctions.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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