MANISTEE CNTY ROAD COMM V NORTHWOODS DEVELOPMENT LLC
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STATE OF MICHIGAN
COURT OF APPEALS
MANISTEE COUNTY ROAD COMMISSION,
UNPUBLISHED
May 25, 2004
Plaintiff-Appellee,
v
No. 243971
Manistee Circuit Court
LC No. 96-008236-CH
NORTHWOODS DEVELOPMENT, LLC,
Defendant/Third-Party PlaintiffAppellant,
and
ONEKAMA TOWNSHIP, DEPARTMENT OF
CONSUMER & INDUSTRY SERVICES, and
DEPARTMENT OF NATURAL RESOURCES,
Third-Party Defendants-Appellees,
and
MANISTEE COUNTY DRAIN COMMISSIONER,
CONSUMERS ENERGY COMPANY,
AMERITECH, ALLAN AND CATHERINE
DOMRES, MARY JANE CLARK SWANSON,
EVELYN SORENSON TRUST, THOMAS W.
CAREY, JR., PORTAGE POINT DEVELOPMENT,
and PORTAGE POINT CONDOMINIUM
ASSOCIATION,
Third-Party Defendants,
and
ALBERT HERZOG, JUDITH HERZOG, DANIEL
MONAHAN, SANDRA MONAHAN, RICHARD S.
FORWOOD LIVING TRUST, RICHARD S.
FORWOOD, SHARON OLSON, DANIEL OLSON,
ANN M. DILLON, ADAMS FAMILY TRUST,
HILDEGARD ADAMS, EARL ADAMS, EVELYN
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LYSETT SORENSON TRUST, EVELYN L.
SORENSON, BARBARA L. VANDERVEEN
REVOCABLE LIVING TRUST, BARBARA L.
VANDERVEEN, PETER VANDERVEEN, ANN S.
WHELAN TRUST, JOHN T. WHELAN, ANN S.
WHELAN, DONALD WIPER, SALLY WIPER,
JOHN P. HERZOG, SUSAN B. HERZOG, ALFRED
A. TURNER, SUSAN TURNER, and GAIL
DRAKE,
Intervening Appellees.
Before: Whitbeck, C.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendant Northwoods Development, LLC appeals as of right from a judgment in favor
of plaintiff Manistee County Road Commission. We affirm.
I. Overview
This appeal concerns the ownership of Portage Lake beachfront property located on 7th
Street in the Plat of Portage Point in Onekama Township in Manistee County (the 7th Street
parcel). Seventh Street is an east/west road that is perpendicular to and ends at Portage Point
Drive. In a September 9, 2002, judgment, the trial court ruled that the 7th Street parcel was a
public road under the jurisdiction of the Road Commission. The trial court’s judgment was
entered “in accordance with” a February 8, 2000, order granting summary disposition in favor of
the Road Commission. In that order, the trial court held that Northwoods Development’s
ownership claims to the 7th Street parcel were precluded under res judicata or collateral estoppel
based on a 1979 order in a previous action. Although the trial court’s judgment and February 8,
2000, order involve more than the 7th Street parcel, Northwoods Development has explicitly
limited its appeal to the 7th Street parcel.
II. Basic Facts And Procedural History
A. The 1979 Case
On March 6, 1979, Portage Point Inn, Ltd., Northwoods Development’s predecessor in
interest, filed a “petition to vacate a portion of a street.” The Road Commission was named as a
defendant in the 1979 case. In the petition, Portage Point Inn sought vacation of, among other
properties, the 7th Street parcel. Portage Point Inn filed an amended petition to vacate a portion
of a street around May 30, 1979. In contrast to the original petition, however, the amended
petition sought vacation of the beach property on both sides of the 7th Street parcel, but the
description of the property it sought to vacate did not include the 7th Street parcel.
On July 6, 1979, the Manistee Circuit Court issued a “Judgment and Order of Vacation,”
in which the court granted Portage Point Inn’s amended request for vacation, subject to “several
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modifications and exceptions.” In granting the motion for vacation, the trial court’s vacation
order did not expressly include the 7th Street parcel, in accordance with Portage Point Inn’s
amended petition. However, in its judgment and order, the trial court stated, in relevant part:
It is further ordered and adjudged that no new permanent structures be
constructed or located in any part of Seventh or Ninth Streets as they are platted,
between Avenue A as constructed and the water’s edge of Portage Lake.
B. The Current Case
Seventeen years later, on September 11, 1996, the Road Commission filed a complaint
against Northwoods Development seeking, among other things, to quiet title to the 7th Street
parcel in favor of the Road Commission. Northwood Development’s amended answer denied
that the portion of 7th Street between Portage Point Drive and Portage Lake was a public road
and contained a counterclaim in which Northwoods Development sought vacation and correction
of the Plat of Portage Point to reflect that the 7th Street parcel was not a public road and to quiet
title to the 7th Street parcel in its favor.
The Road Commission moved for summary disposition, arguing that Northwoods
Development’s claims to quiet title to the 7th Street parcel and have the 7th Street parcel vacated
were barred by the doctrines of res judicata and collateral estoppel based on the trial court’s 1979
judgment and order. Northwoods Development also moved for summary disposition, arguing,
among other things, that the public authorities never officially accepted the streets in the Plat of
Portage Point in a resolution and never improved or maintained the 7th Street parcel and that the
offer of dedication of the 7th Street parcel therefore lapsed; that the dedication of the 7th Street
parcel as a public road was withdrawn by Northwoods Development’s encroachment on the
property; and that the 1979 order did not address whether the 7th Street parcel was a public road
because Portage Point Inn’s amended petition in the 1979 case did not include a request to vacate
the 7th Street parcel.
The trial court concluded that Northwoods Development’s claims were precluded, stating
on the record:
I think we have a—we have a case of estoppel by judgment. Whether this
estoppel by judgment is denominated res judicata or collateral estoppel, I’ll let
someone else worry about that. It is, in this Court’s opinion, clear estoppel by
judgment.
There’s a prior judgment on the issue by the parties or their privies that
has preclusive effect.
In its order granting the Road Commission’s motion for summary disposition, the trial
court specifically found that “Seventh Street and Ninth Street as platted between Portage Point
Drive and the water’s edge of Portage Lake are public rights-of-way.” The trial court also held
that Northwoods Development’s counterclaim seeking to quiet title in the 7th Street parcel and
seeking vacation of that parcel was precluded by the 1979 order.
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Northwoods Development subsequently moved for reconsideration of the trial court’s
February 8, 2000, order. The trial court denied the motion and ordered Northwoods
Development to pay the Road Commission’s costs and attorney fees associated with the motion
for reconsideration. On September 9, 2002, the trial court entered a “Final Judgment as to all
Parties.” Regarding the 7th Street parcel, the order stated, “The portion of 7th Street located
easterly of relocated Avenue A (locally known as Portage Point Drive) as presently platted, is a
public road and shall remain under the jurisdiction of the Manistee County Road Commission
and/or Onekama Township.”
III. Res Judicata
A. Standard Of Review
Northwoods Development argues that the trial court erred in holding that its ownership
claims to the 7th Street parcel were precluded under the doctrine of res judicata. The
applicability of the doctrine of res judicata is a question of law that this Court reviews de novo.1
B. The Application Of Res Judicata
Res judicata relieves parties of the cost and vexation of multiple lawsuits, conserves
judicial resources, and encourages reliance on adjudication.2 Res judicata applies when (1) the
prior action was decided on the merits; (2) the decree in the prior decision was a final decision;
(3) both actions involved the same parties or their privies; and (4) the matter in the second case
was or could have been resolved in the first.3 Michigan has adopted the “broad” application of
res judicata, which bars claims arising out of the same transaction that plaintiff could have
brought but did not, as well as those questions that were actually litigated.4
We conclude that the elements of res judicata are satisfied and that the trial court did not
err in holding that’s ownership claims to the 7th Street parcel were precluded under the doctrine.
The first element of res judicata is satisfied because the 1979 action was decided on the merits.
According to Northwoods Development, res judicata does not preclude its ownership claims to
the 7th Street parcel because the 1979 order was a consent judgment and therefore cannot
preclude the trial court’s consideration of its claims. However, even if the 1979 order was a
consent judgment, the order was still a decision on the merits because the doctrine of res judicata
applies to consent judgments.5
1
Ditmore v Michalik, 244 Mich App 569, 574; 625 NW2d 462 (2001).
2
Id. at 576.
3
Id.
4
Jones v State Farm Mutual Auto Ins Co, 202 Mich App 393, 401; 509 NW2d 829 (1993).
5
Ditmore, supra at 576.
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The second and third elements of res judicata are also met. The 1979 order was a final
decision, and both actions involved the same parties or their privies. The Road Commission was
a party in both the 1979 and the present case and Northwoods Development does not dispute the
Road Commission’s assertion that Northwoods Development purchased the resort from Portage
Point Inn. Northwoods Development and Portage Point Inn in the 1979 case are therefore privies
because Northwoods Development “acquired an interest in the subject matter affected by the
judgment . . . by . . . purchase.”6
We also conclude that the fourth element of res judicata is satisfied in this case. Even
though the amended 1979 petition did not seek vacation of the 7th Street parcel, the trial court’s
1979 judgment and order of vacation nonetheless addressed the 7th Street parcel. Specifically,
the trial court stated in the 1979 order, “It is further ordered and adjudged that no new permanent
structures be constructed or located in any part of Seventh or Ninth Streets as they are platted,
between Avenue A as constructed and the water’s edge of Portage Lake.” In granting the Road
Commission’s motion for summary disposition in the present case, the trial court observed that
the above-quoted language from the trial court’s 1979 judgment and order of vacation
constituted an implicit determination that the 7th Street parcel was public land. We agree.
The portion of the 1979 judgment and order of vacation prohibiting the construction of
new permanent structures on the 7th Street parcel constitutes an implicit determination that the
7th Street parcel was a public way because the trial court would not have prohibited the
construction of any new permanent structures on privately owned property. “[O]wners of land
have broad freedom to make legal use of their property.”7 A component of a landowner’s right
to freely and exclusively enjoy his property is the right to build on that property.8 Accordingly,
the trial court could prohibit construction of any new permanent structures on the 7th Street
parcel only if it was public, not private, property.
The doctrine of res judicata applies to points of law necessarily adjudicated in
determining and deciding the subject matter of the litigation.9 We hold that in ordering that there
were to be no new permanent structures built on the 7th Street parcel, the 1979 court necessarily
determined, as a matter of law, that the 7th Street parcel was a public way. Accordingly, the
matter in the present case was actually resolved in the 1979 case even though the amended
petition did not specifically raise it. The fourth element of res judicata is therefore satisfied, and
the trial court did not err in entering a judgment in favor of the Road Commission.
6
Rohe Scientific Corp v Nat’l Bank of Detroit, 133 Mich App 462, 467; 350 NW2d 280 (1984).
7
O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 343; 591 NW2d 216 (1999).
8
Nollan v California Coastal Comm, 483 US 825, 834; 107 S Ct 3141; 97 L Ed 677 (1987).
9
Jones, supra at 401.
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IV. MCL 565.5
A. Standard Of Review
Northwoods Development argues that the 1979 order violated MCL 565.5 because it
conveyed title to the 7th Street parcel to plaintiff by implication. The interpretation and
application of a statute are questions of law that this Court reviews de novo.10
B. Effect Of MCL 565.5 On Implied Conveyances
MCL 565.5 provides, “No covenant shall be implied in any conveyance of real estate,
except oil and gas leases, whether such conveyance contain special covenants or not.” The clear
language of MCL 565.5 prohibits implied covenants in any conveyance of real estate. It does not
prohibit implied conveyances. Nothing will be read into a clear and unambiguous statute that is
not within the manifest intention of the Legislature as derived from the language of the statute
itself.11 Northwoods Development’s interpretation of MCL 565.5 is contrary to its plain
language. We agree that the 1979 order implicitly and necessarily determined that the 7th Street
parcel was a public way. However, we conclude that there was no violation of MCL 565.5
because there was no implied covenant in any conveyance.
V. Costs And Attorney Fees
Northwoods Development argues that the trial court abused its discretion in ordering it to
pay the Road Commission’s costs and attorney fees associated with Northwoods Development’s
motion for reconsideration. Northwoods Development’s argument regarding this issue consists
of two sentences and cites no court rules, statutes, or case law to support its assertion of error.
“[A] mere statement without authority is insufficient to bring an issue before this Court.”12 A
party may not simply announce a position “‘and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position.’”13 An appellant who fails to properly
address the merits of his assertion of error has abandoned the issue.14 Because Northwoods
Development merely announced its position without citing authority or properly addressing the
merits of its claim of error, it has abandoned this issue on appeal.
10
Lewis v LeGrow, 258 Mich App 175, 183; 670 NW2d 675 (2003).
11
Roberts v Mecosta Co General Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002).
12
Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998).
13
Id., quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
14
Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
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VI. Motion For Reconsideration
A. Standard Of Review
Northwoods Development argues that the trial court erred in denying its motion for
reconsideration. We review a trial court’s decision denying a motion for reconsideration for an
abuse of discretion.15
B. The Trial Court’s Grounds For Denying The Motion
Northwoods Development cited MCL 455.20 and MCL 455.21 in support of its motion
for reconsideration. In granting the Road Commission’s motion for summary disposition, the
trial court ruled that the 7th Street parcel was a public right-of-way. Although the trial court did
not explicitly address MCL 455.20 or MCL 455.21 on the record at the hearing or in its opinion
granting the Road Commission’s motion for summary disposition, the trial court’s ruling that the
7th Street parcel was a public right-of-way constitutes an implicit rejection of Northwoods
Development’s arguments in its motion for reconsideration. “Generally . . . a motion for . . .
reconsideration which merely presents the same issues ruled on by the court, either expressly or
by reasonable implication, will not be granted.”16 Accordingly, we conclude that the trial court
did not abuse its discretion in denying Northwoods Development’s motion for reconsideration.
Affirmed.
/s/ William C. Whitbeck
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
15
Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).
16
MCR 2.119(F)(3).
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