AMANDA MORRILL V ST JOSEPH CO ROAD COMM
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STATE OF MICHIGAN
COURT OF APPEALS
ALLEN H. SCHIEFELBEIN, JR., and JOAN
ELLEN SCHIEFELBEIN,
UNPUBLISHED
November 2, 2004
Plaintiffs-Appellants,
and
AMANDA MORRILL,
Plaintiff,
v
ST. JOSEPH COUNTY DRAIN COMMISSION,
DEPARTMENT OF CONSUMER & INDUSTRY
SERVICES, DEPARTMENT OF
TRANSPORTATION, DEPARTMENT OF
NATURAL RESOURCES, ALICE C. FIELD,
DENNIS L. KANE, JR., JOHN J. HAGNER,
JENNIFER BELLOWS, a/k/a JENNIFER
HAGNER,
Defendants-Appellees,
and
GEORGE F. FIELD, MICHIGAN GAS
UTILITIES, GTE NORTH, AMERICAN
ELECTRIC POWER, WHITE PIGEON
KLINGER LAKE, MICHIGAN GATV,
CITIZENS BANK, JAMES R. GERCHOW,
JEANNIE L. GERCHOW, E.U. SMITH, SUE B.
SMITH, JEAN F. SHANK, CHARLES H.
BABER, MARGARET J. BABER, and
MICHAEL D. MOORE,
Defendants.
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
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No. 247771
St. Joseph Circuit Court
LC No. 96-000943-CH
PER CURIAM.
Plaintiffs appeal as of right from the trial court’s order granting defendants’ motion for a
directed verdict. We affirm.
Plaintiffs filed suit to quiet title to a portion of Stewart Street in St. Joseph County,
Michigan. In a prior consolidated appeal, we concluded that the trial court’s sua sponte entry of
summary disposition was inappropriate and factual issues required remand. However, we
affirmed the trial court’s conclusion that summary disposition was proper in favor of plaintiffs
with regard to the issue of formal acceptance.1 The Supreme Court reversed the opinion only
with regard to the issue of formal acceptance, stating:
On order of the Court, the applications for leave to appeal from the December 11,
2001 decision of the Court of Appeals are considered, and, pursuant to MCR 7.302(F)(1),
in lieu of granting leave to appeal, we REVERSE the decision of the Court of Appeals to
the extent that it affirms the grant of summary disposition to plaintiffs on the issue of
formal acceptance of Stewart Street, and REMAND to the St. Joseph Circuit Court for
further proceedings not inconsistent with this order. A McNitt resolution that expressly
identifies the platted road in dispute or the recorded plat in which that road was dedicated
is sufficient to effect acceptance of the offer to dedicate the road to public use. Kraus v
Dep’t of Commerce, 451 Mich 420, 430; 547 NW2d 870 (1996). Although in this case
the road in dispute is not identified by name or by reference to the recorded plat,
appellants argue that the street is identified by a map attached to the resolution. In
addition to the issues identified by the Court of Appeals, the circuit court on remand shall
reconsider the motions for summary disposition on this question and determine whether
there is any genuine issue of material fact regarding the identification of Stewart Street or
its formal acceptance by means of the McNitt resolution.
We do not retain jurisdiction. [467 Mich 870 (September 17, 2002)]
On remand, the trial court granted the renewed motion for summary disposition with regard to
the issue of formal acceptance. A bench trial was held to address the issue of abandonment. At
the conclusion of plaintiffs’ proofs, the trial court granted the defense motion for directed
verdict, concluding that plaintiffs failed to meet their burden of proof.
Plaintiffs first allege that the trial court erred in granting the renewed motion for
summary disposition. We disagree. We review summary disposition decisions de novo. In re
Capuzzi Estate, 470 Mich 399, 402; 684 NW2d 677 (2004). The law of the case doctrine
provides that where an appellate court has passed on a legal question and remanded the case for
further proceedings, the legal question binds lower tribunals. Grievance Administrator v
1
Morrill v St Joseph Co Rd Comm, unpublished opinion per curiam of the Court of Appeals,
issued December 11, 2001 (Docket Nos. 217365 and 217420).
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Lopatin, 462 Mich 235, 259-260; 612 NW2d 120 (2000). We note that plaintiffs present the
same arguments to this Court regarding formal acceptance that were raised in the initial appeal.
However, the Supreme Court in its order of remand limited the issue to consider whether the
identification of Stewart Street was sufficient, although not referenced by name or to the
recorded plat, by reference to the map attached to the resolution. Morrill, supra at 467 Mich
870. Based on our review of the documentary evidence submitted to the trial court, we cannot
conclude that the trial court erred in granting the renewed motion for summary disposition in
light of the language of the resolution, its accompanying reference to the map, and the footage
contained on the map which sufficiently identified Stewart Street as a county road. Capuzzi,
supra; Lopatin, supra.2
Plaintiffs next allege that the trial court erred in granting the defense motion for directed
verdict. We disagree. The grant or denial of a motion for a directed verdict is reviewed de novo.
Cacevic v Simplimatic Engineering Co (On Remand), 248 Mich App 670, 679-680; 645 NW2d
287 (2001). However, in a bench trial, the motion for directed verdict is more accurately entitled
a “motion for involuntary dismissal.” See Sands Appliance Services, Inc v Wilson, 463 Mich
231, 235-236 n 2; 615 NW2d 241 (2000). A motion for involuntary dismissal is appropriately
granted by the trial court after the presentation of the plaintiff’s proofs where the court is
satisfied that, on the facts and the law, the plaintiff has shown no right to relief. Id.; see also
MCR 2.504(B)(2).
The elements of a claim of abandonment were set forth in Roebuck v Mecosta Co Rd
Comm, 59 Mich App 128, 132; 229 NW2d 343 (1975):
Abandonment is composed of two elements, namely, an intention to relinquish the
right or property, but without intending to transfer title to any particular person,
and the external act by which such intention is carried into effect. Both of these
elements must concur. Intention alone is insufficient to show an abandonment – it
must be accompanied by some act or circumstances showing an intention to
relinquish the property.
The party asserting abandonment has the burden of proof, and abandonment occurs only when
the use for which the property is dedicated wholly fails. Richey v Shephard, 333 Mich 365, 370;
53 NW2d 487 (1952). Mere nonuse does not necessarily operate as an abandonment. Hoffman v
Diekman, 259 Mich 290, 292; 243 NW2d 8 (1932).
When these rules are applied to the factual findings by the trial court, the trial court did
not err in granting the motion for directed verdict. Plaintiffs bore the burden of proof, and
2
Review of the contents of the brief on appeal reveals that plaintiffs also raise two additional
challenges, namely lapse and withdrawal. However, these issues were not raised in the statement
of questions presented, and therefore, are waived on appeal. Caldwell v Chapman, 240 Mich
App 124, 132; 610 NW2d 264 (2000). Moreover, these issues are not properly preserved for
appellate review because the trial court did not decide them, particularly in light of its ruling
regarding formal acceptance. Miller v Inglis, 223 Mich App 159, 168; 567 NW2d 253 (1997).
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abandonment occurs when the use for which the property is dedicated wholly fails. Richey,
supra. There must be an intent to abandon and external acts by which such intention is carried
into effect. Roebuck, supra. In this case, there was no indication that the use for which the
property was dedicated wholly failed. Stewart Street provided access to the lake. Although
there was evidence that the terrain was difficult to manage near the gully area, nonetheless,
neighboring residents acknowledged that one could walk the street. Despite Jones’ letter
indicating that the vacation of the road would not be protested, Jones testified that he was
mistaken when he wrote that letter. He also indicated that there was difficulty in maintaining
consistency in the road commission records because of mislabeling of roads by different names.
Irrespective of the letter, external acts did not indicate an intent to abandon. When called with
requests for services (albeit infrequently), the road commission addressed gravel and tree
removal issues. Additionally, the road commission received petitions for a pier and extension of
a sea wall. The road commission did not direct residents to seek permission from the
neighboring landowners of the subject road, but acted on the requests. Although neighboring
residents may have maintained the area, the entire roadway was not blocked by the maintenance
activities. Accordingly, the trial court’s grant of the motion for directed verdict was proper.
Roebuck, supra. Plaintiffs’ argument that our prior appellate opinion precluded a directed
verdict is without merit. We previously held that factual issues existed for trial. However, the
opinion never indicated that a motion for directed verdict could not be granted.
Lastly, plaintiffs allege that the trial court erred in failing to determine the scope of the
dedication of Stewart Street. An issue is abandoned on appeal when a party makes a cursory
argument, failing to rationalize or explain the position, and fails to cite relevant authority.
Newton v Bank West, 262 Mich App 434, 437 n 2; 686 NW2d 491 (2004). Review of the brief
reveals that plaintiffs fail to cite authority in support of their position. Accordingly, this issue
has been abandoned on appeal.3
Affirmed.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
3
Moreover, to the extent the trial court’s ruling may have resulted in the exclusion of evidence,
it was incumbent on plaintiffs to submit an offer of proof in order to allow this Court to examine
the validity of the issue. MRE 103(a)(2). Without an offer of proof, we cannot analyze this
issue.
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