PATTIE A JONES V BURTON FREEDMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PATTIE A. JONES and CONTI MORTGAGE,
UNPUBLISHED
April 23, 2002
Plaintiffs / Counter-DefendantsAppellees,
v
BURTON FREEDMAN and JUDY FREEDMAN,
No. 229686
Wayne Circuit Court
LC No. 98-817595-CH
Defendants / Counter- Plaintiffs /
Third-Party Plaintiffs-Appellants,
and
FIRST AMERICAN TITLE INSURANCE
COMPANY and NORTH AMERICAN TITLE
INSURANCE AGENCY,
Third-Party Defendants-Appellees.
Before: Bandstra, P.J., and Smolenski and Meter, JJ.
PER CURIAM.
In this quiet title action, defendants Burton and Judy Freedman appeal as of right from
the circuit court’s grant of summary disposition to plaintiffs, under MCR 2.116(C)(7) and
(C)(10). We affirm.
As a threshold matter, we reject the jurisdictional challenge advanced by plaintiffs and
third-party defendants. Defendants filed their claim of appeal on September 8, 2000, within
twenty-one days of the circuit court’s final order, which was entered on August 21, 2000. MCR
7.204(A)(1). “Where a party has claimed an appeal from a final order, the party is free to raise
on appeal issues related to other orders in the case.” Bonner v Chicago Title Ins Co, 194 Mich
App 462, 472; 487 NW2d 807 (1992). Therefore, this Court is not deprived of jurisdiction to
decide defendants’ claim that the circuit court erroneously granted summary disposition to
plaintiffs by orders dated December 10, 1999, and January 6, 2000.
This Court reviews an order granting or denying summary disposition de novo as a
question of law. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
When such a motion is brought under MCR 2.116(C)(7), this Court reviews all the affidavits,
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pleadings, and other documentary evidence submitted by the parties and, where appropriate,
construes the pleadings in favor of the nonmoving party. The motion should be granted only if
no factual development could provide a basis for recovery. Cole v Ladbroke Racing Michigan,
Inc, 241 Mich App 1, 7; 614 NW2d 169 (2000). When such a motion is brought under MCR
2.116(C)(10), the following standard applies:
A motion under MCR 2.116(C)(10) must be supported by affidavits,
depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b).
The adverse party may not rest on mere allegations or denials of a pleading, but
must, by affidavits or other appropriate means, set forth specific facts to show that
there is a genuine issue for trial. MCR 2.116(G)(4). All this supporting and
opposing material must be considered by the court. MCR 2.116(G)(5). [Cole,
supra at 7.]
Defendants argue on appeal that the circuit court erroneously granted summary
disposition to plaintiffs on their quiet title count. We disagree. Defendant Burton Freedman
recorded a “Notice of Claim of Financial Interest” regarding the subject property, before plaintiff
Pattie Jones recorded the warranty deed under which she claims title. Defendants argue that this
claim of interest was properly recorded under § 103 of the Marketable Record Title Act
(MRTA), MCL 565.103. We agree with the circuit court that the act did not authorize the
recordation of defendant’s alleged interest in the property. Furthermore, even if the claim of
interest was properly authorized under MCL 565.103, we would conclude that the claim is
unenforceable under the statute of frauds.
The MRTA provides, in pertinent part:
Any person, having the legal capacity to own land in this state, who has an
unbroken chain of title of record to any interest in land for 20 years for mineral
interests and 40 years for other interests, shall at the end of the applicable period
be considered to have a marketable record title to that interest, subject only to
claims to that interest and defects of title as are not extinguished or barred by
application of this act . . . . However, a person shall not be considered to have a
marketable record title by reason of this act, if the land in which the interests
exists is in the hostile possession of another. [MCL 565.101.]
Defendants rely on § 103 of the act for authority to file a unilateral claim against real
property. That statutory section provides, in pertinent part:
Marketable title shall be held by a person and shall be taken by his or her
successors in interest free and clear of any and all interests, claims, and charges
whatsoever the existence of which depends in whole or in part upon any act,
transaction, event, or omission that occurred prior to the 20-year period for
mineral interests and 40-year period for other interests, and all interests, claims,
and charges are hereby declared to be null and void and of no effect at law or in
equity. However, an interest, claim, or charge may be preserved and kept
effective by filing for record within 3 years after the effective date of the
amendatory act that added [MCL 565.101a] or during the 20-year period for
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mineral interests and the 40-year period for other interests, a notice in writing,
verified by oath, setting forth the nature of the claim. . . . [MCL 565.103.]
Specifically, defendants rely on the statutory language stating that “an interest, claim, or charge
may be preserved and kept effective by filing for record . . . a notice in writing, verified by oath,
setting forth the nature of the claim.” MCL 565.103.
As explained in Cameron, Michigan Real Property Law, § 12.10, p 414, the MRTA bars
“certain ancient claims” that might otherwise interfere with a property owner’s ability to convey
marketable title. In order to reach this result, the act “established a method by which certain title
matters possessing little or no validity in themselves may be safely ignored even though they
may appear in the chain of record title to a parcel of Michigan real estate.” Id. Defendant
Burton Freedman did not record an “ancient claim” to the subject real property. Rather, he
attempted to use the statute to record a current claim of lien for monies lent to the titleholder and
for repairs done to the property. We agree with the circuit court’s conclusion that this was an
improper use of the act.
Defendants rely on a federal district court decision to support their contention that
defendant Burton Freedman was entitled to unilaterally record a claim of interest in real property
under § 103 of the MRTA. Cipriano v Tocco, 757 FSupp 1484 (ED Mich, 1991). “Although
this Court is not bound by a federal court decision construing Michigan law, it may follow the
decision if the reasoning is persuasive.” Allen v Owens-Corning Fiberglass Corp, 225 Mich App
397, 402; 571 NW2d 530 (1997). We conclude that Cipriano is distinguishable from the instant
case because the affidavit recorded by the plaintiffs in Cipriano reflected a written assignment of
vendees’ interest in a land contract. Id. at 1485-1486. The underlying assignment had been
signed by the vendees and could have been separately recorded by the plaintiffs. Id. In the
present case, defendant Burton Freedman’s “Notice of Claim of Financial Interest” did not
memorialize another written document in which the titleholder granted an interest in the
property.
Defendants also note that the Cipriano Court relied on a Michigan Attorney General
opinion interpreting the MRTA. 1985-1986 OAG No. 6319, p 164 (November 1, 1985). In that
matter, the Attorney General was asked whether a memorandum of land contract may be
recorded without certification under MCL 211.135 that there are no tax liens against the property
and that all property taxes have been paid for the last five years. Id. at 164-165.
The opinion noted that a memorandum of land contract “is an instrument executed for the
purpose of reflecting the existence of a land contract and the vendee’s interest in the real
property subject to the underlying land contract.” Id. at 165. In essence, a memorandum of land
contract contains only the names of the parties to the contract, the date of its execution, and the
description of the real property involved. It does not disclose the consideration involved, the
terms of payment, the time of performance, or the covenants of warranty. Id. Because the
memorandum of land contract does not contain all of the essential elements of a land contract,
the Attorney General concluded that the tax lien and five-year certificate requirements contained
in MCL 211.135 did not apply to the memorandum. Id. at 166.
The opinion then discussed the authority under which a memorandum of land contract
could be recorded, noting an earlier Attorney General Opinion’s conclusion that “the register of
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deeds has a duty to record only those instruments authorized by law to be recorded.” Id., citing
1955 OAG No. 1944, p 462 (September 8, 1955). The opinion proceeded to discuss § 103 of the
MRTA, and concluded that a memorandum of land contract “may be considered” a claim against
land which can be recorded under that statutory section. Id. In reaching that conclusion, the
opinion noted that a land contract vendee is vested with equitable title in real property, and that a
recorded memorandum of land contract would also have the legal effect of transferring equitable
title. Id.
Attorney General opinions are not binding on this Court, but can be considered
persuasive authority. Williams v City of Rochester Hills, 243 Mich App 539, 556; 625 NW2d 64
(2000). As with the federal court opinion in Cipriano, we conclude that the Attorney General
opinion is distinguishable from the present case. The document being recorded in that matter
was meant to memorialize a written instrument, signed by the titleholder, which could itself have
been recorded. In the present case, the affidavit recorded by defendant Burton Freedman did not
memorialize any written grant of interest in the property, signed by the 40/40 Institute.
We conclude that the circuit court properly granted summary disposition to plaintiffs on
their quiet title claim under MCR 2.116(C)(10) because MCL 565.103 does not authorize the
filing of defendant Burton Freedman’s unilateral claim of interest in the property. However,
even if Burton Freedman’s claim of interest were properly authorized under MCL 565.103, we
would nevertheless conclude that the claim is unenforceable under the statute of frauds. MCL
566.106 provides:
No estate or interest in lands, other than leases for a term not exceeding 1
year, nor any trust or power over or concerning lands, or in any manner relating
thereto, 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.
Further, MCL 566.108 provides:
Every contract for the leasing for a longer period than 1 year, or 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 . . .
In the present case, defendant Burton Freedman never produced a written instrument,
signed by 40/40, granting him an interest in the real property. Instead, his claim of interest is
premised on a document that he unilaterally signed and recorded. In essence, defendant Burton
Freedman attempted to grant himself a mortgage against 40/40’s property, without obtaining
anything in writing from 40/40. All claims for an interest in real property must be in writing and
signed by the person granting the interest. MCL 566.106; MCL 566.108. Therefore, even if
defendant Burton Freedman’s “Notice of Claim of Financial Interest” were properly filed under
the MRTA, it would nevertheless fail under the statute of frauds. Therefore, we conclude that
the circuit court properly granted summary disposition to plaintiffs on their quiet title claim
under MCR 2.116(C)(7).
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Defendants next argue that the circuit court erred in ruling that the “Notice of Claim of
Financial Interest” was unenforceable under the Construction Lien Act (CLA), MCL
570.1117(1). After it determined that defendant Burton Freedman’s claim of interest was not
validly filed under the MRTA, the circuit court concluded that only compliance with the
provisions of the CLA could salvage that claim of interest. The circuit court made a factual
finding that defendant Burton Freedman’s claim of interest was intended to put the world on
notice that he had invested money and labor into repairing the real property. Therefore, the court
analogized defendant Burton Freedman to a contractor, supplier, or laborer, and ruled that he was
required to comply with the provisions of the CLA in order to claim a valid lien against the
property.
The CLA provides that each “contractor, subcontractor, supplier, or laborer who provides
an improvement to real property shall have a construction lien upon the interest of the owner or
lessee who contracted for the improvement to the real property.” MCL 570.1107. The act also
provides that the right of a contractor, subcontractor, supplier or laborer to a construction lien
“shall cease to exist” if a claim of lien is not recorded in the register of deeds office “within 90
days after the lien claimant’s last furnishing of labor or material for the improvement.” MCL
570.1111. Finally, the act provides that proceedings for the enforcement of a construction lien
and the foreclosure of any interests subject to the construction lien “shall not be brought later
than 1 year after the date the claim of lien was recorded.” MCL 570.1117.
Defendants argue on appeal that they loaned $24,065.81 to the 40/40 Institute in order to
facilitate its purchase of the property, and that those funds were not used for improvement of the
property. We agree that the documents contained in the lower court record do not support a
conclusion that the $24,065.81 loan was intended or used for “an improvement to real property.”
MCL 570.1107. Therefore, this loan does not fall within the provisions of the CLA. However,
to the extent that defendant Burton Freedman allegedly performed $6,910.00 worth of repairs to
the subject property, we conclude that those funds do fall within the scope of the CLA. It was
undisputed below that defendants never recorded a claim of lien under MCL 570.1111 and never
filed a foreclosure action under MCL 570.1117. Therefore, the circuit court correctly ruled that
defendants cannot claim a lien against the property through the CLA, either for monies advanced
to the 40/40 Institute, or for repairs that defendant Burton Freedman performed on the premises.
Defendants next argue that the circuit court erroneously granted summary disposition to
plaintiffs because a genuine issue of material fact existed regarding the authenticity of Antonio
Pollard’s signature on the quitclaim deed from the 40/40 Institute to Deborah Saunders. Because
the forgery issue was never addressed by the circuit court, it is not properly preserved for appeal.
Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). Further, even if this
claim were preserved, we would conclude that defendants are not entitled to relief on this issue.
The circuit court was not asked to decide whether plaintiff Jones had valid title to the property,
as against 40/40. Rather, the issue before the circuit court was whether defendants had a valid
claim of interest in the property, as against Jones. Even if we concluded that the quitclaim deed
from the 40/40 Institute to Saunders was a forgery, such a conclusion would not alter the fact that
defendant Burton Freedman did not have a legal and enforceable interest in the property.
Because the resolution of the forgery issue is not material to defendants’ claim of interest in the
subject real property, the circuit court did not commit error requiring reversal when it failed to
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resolve the issue. Crown Technology Park v D&N Bank, FSB, 242 Mich App 538, 547; 619
NW2d 66 (2000).
Finally, defendants argue that the circuit court erroneously granted summary disposition
to plaintiffs because they raised a genuine issue of material fact regarding plaintiffs’ actual
knowledge of the mortgage purportedly granted to defendant Judy Freedman by the 40/40
Institute. Defendants’ argument blurs the important distinction between the “Notice of Claim of
Financial Interest” recorded by defendant Burton Freedman and the purported mortgage
subsequently recorded by defendant Judy Freedman. Although defendants did present evidence
that plaintiff Jones knew about defendant Burton Freedman’s claim of interest before closing on
the sale from Saunders, they presented no evidence that plaintiffs or third-party defendants had
any knowledge of defendant Judy Freedman’s purported mortgage interest, which was not
recorded until one year after plaintiff Jones recorded her deed. On appeal, defendants do not
point to any evidence indicating that plaintiffs had reason to know about Judy Freedman’s
purported mortgage when title passed to Jones. Accordingly, we conclude that defendants did
not raise a genuine issue of material fact regarding plaintiffs’ knowledge of Judy Freedman’s
claimed mortgage interest.
Affirmed.
/s/ Richard A. Bandstra
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
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