Opinion
355223
10-14-2021
EVERETT T. TURVEY and BETSY Y. TURVEY, Plaintiffs-Appellants, v. THE JENNIFER MARIE BIONDO TRUST UAD 11/6/07, JENNIFER MARIE BIONDO, and BENEDECT BIONDO, Defendants-Appellees.
UNPUBLISHED
Oakland Circuit Court LC No. 2019-177260-CH
Before: Brock A. Swartzle, P.J., and Mark J. Cavanagh and Michael F. Gadola, JJ.PER CURIAM.
Plaintiffs, Everett T. Turvey and Betsy Y. Turvey, appeal as of right the order of the trial court granting defendants, The Jennifer Marie Biondo Trust, Jennifer Marie Biondo, and Benedect Biondo, summary disposition of plaintiffs' complaint under MCR 2.116(C)(8) and (10). We vacate the order of the trial court and remand for further proceedings.
I. FACTS
This case involves a dispute over a driveway easement. The underlying facts are not disputed. Defendants, Jennifer and Benedect Biondo, live at a home at 2561 Pebble Beach Drive in Oakland, Michigan, which is located in the Twin Lakes Condominium development. The home is owned by defendant, The Jennifer Marie Biondo Trust, of which Jennifer Biondo is the trustee.
In 2018, plaintiffs purchased property directly east of defendants' home and began building a home on the property. Appurtenant to plaintiffs' property is a driveway easement across defendants' home site. The easement was granted in 1997 to the previous owner of plaintiffs' property, Joan K. Quitmeyer, by the development group developing Twin Lakes Condominium (Twin Lakes). In exchange for Quitmeyer agreeing to terminate certain previous easements that benefitted that property, Twin Lakes granted Quitmeyer the driveway easement as follows, in pertinent part:
INGRESS, EGRESS AND DRIVEWAY EASEMENT
Twin Lakes Development, L.L.C., a Michigan limited liability company, Twin Lakes Gold Club, L.L.C., a Michigan limited liability company, and Resco, Inc., a Michigan Corporation whose address is 41400 Dequindre Road, Suite 105, Sterling Heights, Michigan 48316 (hereinafter collectively "Twin Lakes"), being the owners of certain land located in The Township of Oakland, Oakland County, Michigan, more fully described on the attached Exhibit "A" (hereinafter the "Burdened Property").
For and in consideration of $1.00, the receipt and adequacy of which is hereby acknowledged,
Does hereby grant to Joan K. Quitmeyer (["]Quitmeyer"), whose address is 400 Oak Street, Rochester, Michigan 48306, for the benefit of the land described on the attached Exhibit "B" (hereinafter the "Benefitted Property") and for the benefit of [] Quitmeyer.
A non-exclusive perpetual easement for vehicular and pedestrian ingress and egress over Twin Lakes Drive, Invitation Drive, Spyglass Drive and Pebble Beach Drive (collectively the "Roads"), private roads to be located and constructed within Twin Lakes Condominium being developed by Twin Lakes as Developer on the Burdened property, together with a driveway easement over the south ten (10) feet of proposed Unit 11 of Twin Lakes Condominium, (the "Driveway Easement"), as more fully described and depicted on the attached Exhibit "C," upon the terms hereinafter set forth.
1. This easement shall not be personal to Quitmeyer but shall be appurtenant to the Benefitted Property and shall run with the land.
2. This easement shall be for the purpose of vehicular and pedestrian ingress and egress over the Roads and the Driveway Easement to and from the Benefitted Property and Rochester and Buell Roads.
3. Quitmeyer shall have the right to enter upon the Driveway Easement and the land lying within five (5) feet on either side of the Driveway Easement as necessary to permit the construction, installation, maintenance, repair, removal and /or replacement of the driveway within the Driveway Easement; provided that in no event shall Quitmeyer install any asphalt, concrete, stones, gravel or any other paving material other than wood chips or similar natural material (the initial installation of which shall be made by Twin Lakes) without the prior written consent of Twin Lakes or any subsequent owner of Unit 11 of Twin Lakes Condominium. All such work shall be performed at Quitmeyer's sole cost and expense. Quitmeyer shall keep the Driveway Easement properly maintained at all times, and shall keep the Driveway Easement and the Burdened Property free andclear of all liens and encumbrances arising out of or related to such work and shall indemnify, defend and hold Twin Lakes harmless with respect to the same.
The easement instrument thereafter continues with paragraph 5, but paragraph 4 is absent from the copy of the document provided.
The driveway easement is located on the southern edge of Lot 11 of Twin Lakes, which is the lot where defendants' home is located. The southern edge of defendants' home is built on the northern edge of the driveway easement. At the time plaintiffs purchased the Quitmeyer property in 2018, Twin Lakes had already installed the driveway composed of wood chips, but the driveway was rarely used. After purchasing the property, plaintiffs determined that a woodchip surface was not adequate for use of the driveway as a regular means of ingress and egress to and from the property, and was very difficult to maintain. According to plaintiffs, the woodchip driveway becomes rutted and flooded during inclement weather, and Twin Lakes has complained that the wood chips wash into the condominium roadway, necessitating plaintiffs installing a silt barrier and continually repairing the driveway. Plaintiffs also assert that the close proximity of defendants' home to the driveway contributes to the erosion of the surface because rainwater from defendants' home's eaves and meltwater from defendants' home's biothermal heating flood the driveway.
Plaintiffs therefore sought defendants' consent to install a paving material on the driveway other than wood chips. When defendants did not agree to plaintiffs' request, plaintiffs contemplated improving the driveway with wood planks, which plaintiffs assert meet the terms of the easement. However, plaintiffs allege that defendants threatened to call the police and also to sue plaintiffs if they attempted to install wood planks. Plaintiffs therefore initiated this lawsuit seeking declaratory and injunctive relief to permit them to install wood planks as the surface of the driveway.
Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), contending that the plain language of the instrument granting the easement limits the plaintiffs to maintaining the surface with "woodchips or similar natural material," and that wood planks do not comply with this limitation. At the hearing on the motion, the trial court observed that resolution of that question might necessitate expert testimony. At the conclusion of the hearing on the motion, however, the trial court determined that the parties were in sufficient agreement regarding the facts to permit a decision by the trial court on the motion. The trial court granted defendants' motion for summary disposition, stating:
Since both of you are - seem to be in agreement, then I can make the call. I'm going to make the call. I don't find that the wood planks that plaintiff[s want] to use are contemplated by this easement that references wood chips or other natural material. I don't find that it's natural material, I find that it is a paving material and therefore, would require written consent of either the association or the defendant. So, therefore, I am granting defendants['] motion.
Plaintiffs now appeal.
II. DISCUSSION
Plaintiffs contend that the trial court erred by granting defendants summary disposition under MCR 2.116(C)(8) and (10) of plaintiffs' complaint for declaratory and injunctive relief. Plaintiffs assert that under the terms of the easement, they are entitled to maintain and improve the driveway that crosses defendants' lot by installing wood planking. Plaintiffs argue that the trial court erred by granting defendants summary disposition on the basis that wood planking is a paving material and therefore is not permitted by the terms of the easement. We agree that the basis stated by the trial court was not sufficient to support summary disposition.
A. STANDARD OF REVIEW
We review de novo a trial court's decision to grant or deny a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim. Id. When reviewing a grant or denial of summary disposition under MCR 2.116(C)(8), we consider the motion based upon the pleadings alone and accept all factual allegations as true. Id. Summary disposition under MCR 2.116(C)(8) is warranted when the claim is so unenforceable that no factual development could justify recovery. Id. at 160.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. When reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court considers the documentary evidence submitted by the parties in the light most favorable to the nonmoving party, id., and will find that a genuine issue of material fact exists if "the record leaves open an issue upon which reasonable minds might differ." Johnson v Vanderkooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018) (quotation marks and citations omitted). The moving party has the initial burden to support its motion with documentary evidence, but once met, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich.App. 255, 261; 704 N.W.2d 712 (2005).
The interpretation and construction of a contract is a question of law that this Court reviews de novo. Barton-Spencer v Farm Bureau Life Ins Co of Mich, 500 Mich. 32, 39; 892 N.W.2d 794 (2017). Whether a contract is ambiguous is also a question of law that this Court reviews de novo. Id. The extent of a party's rights under an easement is a question of fact, and this Court reviews the trial court's determination of those facts for clear error. Bayberry Group, Inc v Crystal Beach Condo Ass'n, __ Mich.App. __, __; __ N.W.2d __ (2020) (Docket No. 349378); slip op at 2.
B. THE EASEMENT LANGUAGE
An easement is a limited property interest granting the right to use the land of another for a specific purpose. Smith v Straughn, 331 Mich.App. 209, 215; 952 N.W.2d 521 (2020). Specifically, an ingress and egress easement grants "[t]he right to use land to enter and leave another's property." Bayberry Group, Inc, __ Mich.App. at __; slip op at 6 (quotation marks omitted). "An easement does not displace the general possession of the land by its owner, but merely grants the holder of the easement qualified possession only to the extent necessary for enjoyment of the rights conferred by the easement." Schadewald v Brule, 225 Mich.App. 26, 35; 570 N.W.2d 788 (1997). Nonetheless, the easement holder enjoys "all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement." Blackhawk Dev Corp v Dexter, 473 Mich. 33, 41-42; 700 N.W.2d 364 (2005) (quotation marks and citations omitted). Generally, "[t]he necessity of an easement holder's conduct can be informed by the purpose and scope of the easement in addition to the easement holder's accustomed use of the easement." Smith, 331 Mich.App. at 216, citing Harvey v Crane, 85 Mich. 316, 318-319, 325; 48 N.W. 582 (1891).
An easement may be created by express agreement, Rossow v Brentwood Farms Dev, Inc, 251 Mich.App. 652, 661; 651 N.W.2d 458 (2002), and the use of an express easement is confined to the purposes for which the easement was granted. Blackhawk Dev Corp, 473 Mich. at 41. The language of an express easement is interpreted by applying rules similar to those used to interpret contracts. Wiggins v Burton, 291 Mich.App. 532, 551; 805 N.W.2d 517 (2011). Accordingly, to determine the scope and extent of an easement, it is necessary to ascertain the intent of the parties at the time the easement was granted. Id. However, the scope of an express easement may be determined by reference to extrinsic evidence only when the text of the instrument granting the easement is ambiguous. Smith, 331 Mich.App. at 216. When the language of the instrument granting the easement is plain and unambiguous, it is enforced as written and no further inquiry is permitted. Little v Kin, 468 Mich. 699, 700; 664 N.W.2d 749 (2003).
In this case, Twin Lakes granted plaintiffs' predecessor in interest, Quitmeyer, an express easement for ingress and egress between plaintiffs' property and Twin Lakes. The easement permits plaintiffs perpetual use "for vehicular and pedestrian ingress and egress" over the roads of the condominium, to be accessed by use of a driveway from plaintiffs' property to Twin Lakes, specifically, "a driveway easement over the south ten (10) feet of proposed Unit 11 of Twin Lakes Condominium." The easement agreement requires plaintiffs to "keep the Driveway Easement properly maintained at all times" but also provides that "in no event shall Quitmeyer install any asphalt, concrete, stones, gravel or any other paving material other than wood chips or similar natural material . . . without the prior written consent of Twin Lakes or any subsequent owner of Unit 11 of Twin Lakes Condominium."
Plaintiffs allege that the woodchip surface of the driveway is not adequate to withstand regular vehicular ingress and egress to their property, and is nearly impossible to maintain. Plaintiffs urge that the wood plank material is sufficiently similar to wood chips to meet the restrictions of the easement and thus does not require defendants' consent under the terms of the easement agreement. Plaintiffs argue that the trial court erred by finding that the wood planks are prohibited by the easement agreement because they are a paving material, not a natural material. We agree. The instrument granting the easement states that "provided that in no event shall [plaintiffs] install any asphalt, concrete, stones, gravel or any other paving material other than wood chips or similar natural material. . . ." This language does not prohibit the use of paving materials. Rather, all the materials named are identified as paving materials, including wood chips; some of the paving materials are permitted and some are not, but the relevant inquiry is not whether wood planks are a paving material. The trial court's conclusion that the wood planks were not permitted under the terms of the easement because they are a paving material therefore is erroneous.
The test, rather, is whether the proposed wood planks are a "similar natural material" to wood chips. The trial court did not determine whether the wood planks were a similar natural material to wood chips, but instead found that the wood planks were a "paving material" rather than a "natural material." The trial court does not state what evidence it relied upon to conclude that wood planks are not a natural material. According to documentation provided by plaintiffs, the proposed wood planks are made of wood. If so, the wood planks are the same natural material as the wood chips. The trial court's determination that the wood planks were not permitted under the easement because they are not a natural material is unsupported by the evidence.
Before the trial court, defendants argued that the wood planks were not sufficiently similar to wood chips to be permitted by the easement because they form a much more substantial and intrusive surface than wood chips. By contrast, plaintiffs argued that wood planking is made of wood, the same natural material as wood chips, and therefore is a similar natural material permitted under the terms of the easement. These different interpretations underscore an ambiguity in the easement agreement. As noted, the instrument granting the easement states that "in no event shall [plaintiffs] install any asphalt, concrete, stones, gravel or any other paving material other than wood chips or similar natural material. . . ." Plaintiffs apparently read the phrase "similar natural material" to mean "a product made from a natural material similar to the material found in wood chips." Defendants apparently read the phrase to mean "a product similar to wood chips in size, consistency, appearance, permanence, and installation, and made from a natural material."
Both interpretations are plausible readings of the language, but raise further questions. The language of the easement agreement provides that plaintiffs are not limited to wood chips; the driveway paving material may be something other than wood chips as long as it is a similar natural material. If wood planking is not a "similar natural material" to wood chips, what product is contemplated? Stones and gravel are similar in size and installation to wood chips and are a natural material, but specifically are excluded. If not wood planks, is there a product that is sufficiently similar, and if not, does that construction of the language render a term of the agreement meaningless?
Ordinarily, the scope of an easement is determined by the language of the grant. Blackhawk Dev Corp, 473 Mich. at 42. If the terms of an express easement are plain and unambiguous, this Court enforces the terms as written without further inquiry. Little, 468 Mich. at 700. When the grant of the easement is ambiguous, however, the court may consider extrinsic evidence to determine the scope of the easement. Blackhawk Dev Corp, 473 Mich. at 42. A contract is ambiguous if it is equally susceptible of more than one meaning. Barton-Spencer, 500 Mich. at 40. In this case, the ambiguity in the language granting the easement necessitated the trial court determining the scope of the easement. To determine the scope of an easement, "it is necessary to determine the true intent of the parties at the time the easement was created," Wiggins, 291 Mich.App. at 551, and may necessitate looking to extrinsic evidence. See Smith, 331 Mich.App. at 216. Further, if a contract is ambiguous, summary disposition generally is inappropriate because factual development is necessary to determine the intent of the parties. Michaels v Amway Corp, 206 Mich.App. 644, 649; 522 N.W.2d 703 (1994).
Before the trial court, plaintiffs argued that extrinsic evidence supported a finding that Twin Lakes and Quitmeyer did not intend for the "woodchips" requirement to be a permanent requirement of the easement, but rather a temporary measure during the construction of the development, with more permanent surfacing to be installed by Quitmeyer thereafter. Plaintiff supported this argument with affidavits. However, the trial court did not reach the issue whether the language granting the easement was ambiguous and apparently did not consider the extrinsic evidence, instead disposing of the matter by concluding that wood planks are a paving material and therefore are not permitted. We conclude that the language granting the easement is ambiguous, necessitating the trial court ascertaining the scope of the easement and the intent of the parties at the time the easement was granted. See Smith, 331 Mich.App. at 216; see also Wiggins, 291 Mich.App. at 551.
C. NECESSITY/UNREASONABLE BURDEN
Before the trial court, plaintiffs also contended that the proposed wood plank driveway was necessary to the use of the easement and would not impose an unreasonable burden upon defendants' property. The trial court did not reach these issues, however.
An easement holder's use of the easement is limited to the purposes for which the easement was granted and must impose the minimum burden possible to the fee owner of the land. Smith, 331 Mich.App. at 215. Nonetheless, the easement holder enjoys "all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement." Blackhawk, 473 Mich. at 41-42. "What may be considered a proper and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper use, as well as what may be necessary to [the easement holder's] use and enjoyment, are questions of fact to be determined by the trial court or jury." Smith, 331 Mich.App. at 216, quoting Harvey, 85 Mich. at 322-323.
The driveway easement in this case was granted for the purpose of permitting Quitmeyer, and thereafter plaintiffs, vehicular and pedestrian ingress and egress to and from plaintiffs' property via the driveway. By necessity, the driveway must be adequate to support that purpose. In addition, plaintiffs are tasked with maintaining the driveway. Again, by necessity, the driveway must be adequate to enable plaintiffs to maintain its condition. However, the driveway must be the minimum burden upon defendants' property possible while still achieving the purpose of the easement. The inquiry in this case, thus, is larger than whether the wood planking is a similar natural material to wood chips.
As an error-correcting court, this Court generally limits its review to issues actually decided by the trial court. Jawad A. Shah, MC, PC v State Farm Mut Auto Ins Co, 324 Mich.App. 182, 210; 920 N.W.2d 148 (2018). Although this Court may overlook preservation requirements to prevent a miscarriage of justice, to decide an issue necessary to the proper determination of the case, or to decide an issue involving a question of law when the facts necessary to the decision have been presented, Autodie, LLC v City of Grand Rapids, 305 Mich.App. 423, 431; 852 N.W.2d 650 (2014), in this case questions of fact exist that suggest that summary disposition was not appropriate. We therefore decline to decide these issues for the first time on appeal and instead remand the matter to the trial court for determination of these issues by the trial court in the first instance. See Jawad A. Shah, MD, PC, 324 Mich.App. at 210.
The trial court's order is vacated and this matter is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.