CITY OF WAYNE V STURDY HOMES CORP
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF WAYNE,
UNPUBLISHED
November 10, 2005
Plaintiff-Appellee,
v
No. 256056
Wayne Circuit Court
LC No. 01-143017-CH
STURDY HOMES CORPORATION,
Defendant-Appellant.
Before: Saad, P.J., and Jansen and Markey, JJ.
PER CURIAM.
Defendant Sturdy Homes Corporation appeals as of right from a trial court order granting
plaintiff City of Wayne’s motion for summary disposition, ordering that plaintiff is the owner in
fee simple of land described as lots 82, 83, 84, and 85 in Louis Savage Garfield Park Subdivision
in Wayne County (hereinafter “lots 82-85”), and ordering that the court order be recorded with
the Wayne County Register of Deeds to vest good title in plaintiff. On appeal, defendant argues
that the trial court erred in granting summary disposition pursuant to adverse possession and
equitable principles when it did not receive proper notice to redeem the property pursuant to
MCL 211.140 and MCL 211.141,1 when the State of Michigan acquired the property through its
forfeiture process. We affirm.
I
1
The Legislature has extensively amended the procedure to collect taxes assessed after
December 31, 1998, that are delinquent, replacing the statutes here at issue with a system of
forfeiture, foreclosure, and sale. See 1999 PA 123. Some of the statutes noted in this case have
been repealed effective December 31, 2003, or will be repealed effective December 31, 2006.
Id. (enacting §§ 4 and 5); 2001 PA 94 (enacting § 1). Statutory sections contained within the
General Property Tax Act (GPTA) refer to the statutes in effect at the time the original complaint
was filed, December 20, 2001. See In re Wayne Co Treasurer Petition, 265 Mich App 285; 698
NW2d 879 (2005).
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Defendant purchased lots 82, 83, 84, 85, 205, and 206, on February 7, 1972 for $2,500.
Tax rolls indicate that taxes were not paid for lots 82-85 in 1977, 1979, 1980, and 1981, but they,
apparently, were paid in 1976 and 1978. In 1981, the State of Michigan acquired the property
through its forfeiture process pursuant to defendant’s non-redemption from a 1980 tax sale. In
1982, the Michigan Department of Natural Resources (DNR) conveyed the property to plaintiff
for $1.00. No taxes have been paid on the property since plaintiff acquired it.
On December 20, 2001, plaintiff filed a complaint to quiet title alleging that: (1)
defendant at one point was the owner of a piece of property known as lots 82-85; (2) plaintiff
obtained from the State of Michigan a deed to the property subsequent to the property not being
redeemed; (3) plaintiff has had equitable title for several years; (4) plaintiff was in the process of
selling the property for development and learned there was a cloud on the title; (5) plaintiff needs
to clear the title for title insurance; and (6) plaintiff has carried the property on its tax role for
several years having taxed no individual, corporation, or partnership. Defendant filed an answer
to the complaint in which it asserted that it had never received notice of delinquent taxes and that
plaintiff had not even claimed as such in its complaint.
Subsequently, plaintiff filed a motion for summary disposition, and contended that there
were no genuine issues of material fact, and that defendant failed to state a valid defense.2 A
hearing was conducted on plaintiff’s motion for summary disposition, and the trial court stated
that once plaintiff produces the deed as prima facie evidence the burden is on defendant to show
that it did not receive notice. The trial court granted plaintiff’s motion for summary disposition
finding that defendant could not meet its burden, and further ordered that plaintiff was the owner
in fee simple of lots 82-85.
Defendant filed a delayed application for leave with this Court. This Court issued an
order under MCR 7.205(D)(2), reversing the order granting plaintiff summary disposition
because defendant “stated a valid defense” to plaintiff’s claims (Docket No. 245828).
Subsequently, defendant filed a motion for summary disposition and contended that
plaintiff failed to state a cause of action and or raise genuine issues of material fact because it
failed to plead or provide evidence that it complied with the statutory requirements to commence
the redemption period and quiet title in itself.
Plaintiff filed a motion to amend its complaint to include adverse possession, stating that
it had learned through additional discovery that it has openly and notoriously possessed the
property for more than fifteen years, and contended in its brief in support that the amendment
would not prejudice defendant. Thereafter, plaintiff filed a motion for summary disposition, and
contended that: (1) defendant made no tax payments 1977, 1979, 1980, and 1981, at which time
the State of Michigan acquired title in September 1981 through its forfeiture process; (2) the
2
We note that plaintiff did not reference which provision of the court rule its motion was
brought pursuant to, but defendant treated the motion as a MCR 2.116(C)(9) motion for failure to
assert a defense, but plaintiff’s motion did reference “no genuine issue of material fact,” which
suggests the motion was brought pursuant to MCR 2.116(C)(10).
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State through the DNR deeded the property to plaintiff; (3) defendant acknowledged tax
deficiencies;3 (4) plaintiff has maintained the property since it acquired title in 1982 and has
listed it as plaintiff owned property; (5) laches applies; (6) Michael Tobin, an officer for
defendant, stated that defendant mailed in a list of properties it wanted to pay taxes on and that at
a certain point lots 82-85 were not listed, thus, defendant actively decided not to pay;4 and (7)
plaintiff has openly, notoriously and adversely possessed the property for over twenty years
having cared for it, listed it on city records, and mowed it, thus, plaintiff has acquired title
through adverse possession.
Defendant filed a response to plaintiff’s motion to amend the complaint, and argued that
the adverse possession claim was not properly plead, was factually and legally void of any
substance, and was futile. In addition, defendant filed a response to plaintiff’s motion for
summary disposition, and contended there was no notice and that the adverse possession was not
pleaded properly and had no relevance to the case.
A hearing was conducted on the parties cross motions for summary disposition. The trial
court granted plaintiff’s motion for summary disposition, and seemed to rely on D&W
Rottschafer, Inc v Grand Rapids, 346 Mich 687; 78 NW2d 624 (1956), in applying a
combination of adverse possession, equitable estoppel, and laches.
II
On appeal, defendant argues that the trial court erred in granting summary disposition to
plaintiff on the basis that it acquired title to the property by a combination of adverse possession,
equitable estoppel,5 and laches,6 without formally granting plaintiff’s motion to amend its
complaint and allowing defendant to answer and properly oppose the complaint.
3
Defendant in its answers to plaintiff’s request for admissions admitted it did not pay taxes from
1981 to 2003, but claimed it was because it was not invoiced.
4
Defendant owned a significant number of properties in southeast Michigan. Tobin testified in a
deposition that typically in the 1980s and 1990s defendant would allow tax deficiencies to
continue for a period of two or three years on its properties, and then pay off the deficiencies and
penalties during the redemption process. Apparently, each year, defendant would mail a list of
its Wayne County properties to request outstanding amounts owed, and would redeem to save
the properties from tax sales. Defendant’s list of properties sent to Wayne County during the
challenged years did not include lots 82-85.
5
With regard to equitable estoppel, in Conagra, Inc v Farmers State Bank, 237 Mich App 109,
140-141; 602 NW2d 390 (1999), this Court stated:
Equitable estoppel may arise where (1) a party, by representations, admissions, or
silence intentionally or negligently induces another party to believe facts, (2) the
(continued…)
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A. Standard of Review
This Court will not reverse a trial court's decision on a motion to amend a complaint
absent an abuse of discretion that results in injustice. Phillips v Deihm, 213 Mich App 389, 393;
541 NW2d 566 (1995). We review a trial court's equitable decisions de novo. Yankee Springs
Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004). This Court also reviews de novo
the grant or denial of summary disposition to determine if the moving party is entitled to
judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A
motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). When
deciding a motion for summary disposition, a court must consider the pleadings, affidavits,
depositions, admissions and other documentary evidence submitted in the light most favorable to
the nonmoving party. Id. A motion for summary disposition based on the lack of a material
factual dispute must be supported by documentary evidence. MCR 2.116(G)(3)(b); Scalise v
Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). The moving party must
specifically identify the matters which have no disputed factual issues, MCR 2.116(G)(4);
Maiden, supra at 120, and has the initial burden of supporting his position by affidavits,
depositions, admissions, or other documentary evidence, Smith v Globe Life Ins Co, 460 Mich
446, 455; 597 NW2d 28 (1999). The party opposing the motion then has the burden of showing
by evidentiary materials that a genuine issue of disputed fact exists, Smith, supra, and the
disputed factual issue must be material to the dispositive legal claims, Auto Club Ins Ass’n v
State Automobile Mutual Ins Co, 258 Mich App 328, 333; 671 NW2d 132 (2003). When the
burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon
mere allegations or denials in the pleadings, but must, by documentary evidence, set forth
specific facts showing that there is a genuine issue for trial. Quinto v Cross & Peters Co, 451
Mich 358, 362; 547 NW2d 314 (1996).
B. Motion to Amend the Complaint
Defendant argues that the trial court improperly granted plaintiff’s motion to amend its
complaint. MCR 2.118(A)(2) states: "Except as provided in subrule (A)(1), a party may amend a
pleading only by leave of the court or by written consent of the adverse party. Leave shall be
freely given when justice so requires." Further, our Supreme Court has provided that:
(…continued)
other party justifiably relies and acts on that belief, and (3) the other party is
prejudiced if the first party is allowed to deny the existence of those facts.
"Equitable estoppel is not an independent cause of action, but instead a doctrine that may assist a
party by precluding the opposing party from asserting or denying the existence of a particular
fact." Id. at 140-141.
6
Laches bars a party from bringing a delayed claim when the other party has been prejudiced by
the delay, Dep't of Public Health v Rivergate Manor, 452 Mich 495, 507; 550 NW2d 515 (1996),
and requires a showing of prejudice, the passage of time, and lack of diligence. Torakis v
Torakis, 194 Mich App 201, 205; 486 NW2d 107 (1992).
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A motion to amend ordinarily should be granted, and denied only for
particularized reasons:
"In the absence of any apparent or declared reason - such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc. - the
leave sought should, as the rules require, be 'freely given.'" [Ben P Fyke & Sons,
Inc v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), quoting Foman v
Davis, 371 US 178, 182; 83 S Ct 227; 9 L Ed 2d 222 (1962).]
"On a motion to amend, a court should ignore the substantive merits of a claim or defense unless
it is legally insufficient on its face and, thus, . . . it would be 'futile' to allow the amendment."
Fyke, supra at 660. Where a plaintiff merely restates or slightly elaborates on counts or
allegations already pleaded, an amendment is futile. Dowerk v Oxford Charter Twp, 233 Mich
App 62, 76; 592 NW2d 724 (1998).
The trial court did not abuse its discretion in allowing plaintiff to amend its complaint.
There is nothing before this Court supporting that the amended complaint caused undue delay,
was the result of bad faith or dilatory motive, was the result of repeated failures to cure
deficiencies, caused undue influence, or was futile. The amendment was not futile as it was
more than a restatement of the previous allegations because it added the adverse possession
claim, which as discussed, infra, is a claim with merit.
Defendant also contends that if it had known the Court was considering the motion it
would have presented further evidence to the contrary. However, defendant did respond to the
motion. Defendant filed a response to the motion for the amended complaint and a response to
the motion for summary disposition, and argued that: (1) it would be futile to add adverse
possession; (2) the adverse possession claim was not properly plead; and (3) mowing the grass is
not enough to support a claim for adverse possession. To the extent defendant did not raise
arguments or present further evidence in its response motion, it cannot now claim reversible
error on the account of its own omissions. Reversible error must be predicated on trial court
error, not upon an error contributed to by the aggrieved party's plan or negligence. Lewis v
LeGrow, 258 Mich App 175, 210; 670 NW2d 675 (2003). Thus, any error in this regard was
contributed to by defendant’s plan or negligence and is not grounds for reversal.
C. Adverse Possession
Defendant argues that the trial court erred in granting summary disposition on the basis of
adverse possession, equitable estoppel, and laches. The trial court, following D&W Rottschafer,
supra, applied both adverse possession and equitable principles in granting plaintiff’s motion for
summary disposition. In D&W Rottshafer, supra, an ejectment case, the court applied adverse
possession and estoppel where the municipality had exercised acts of ownership for fifteen years
via its tax deeds and more than ten years had elapsed before the claim was commenced.
We find on review de novo that the trial court erred in applying D&W Rottshafer, which
was an ejectment case to the present situation, a adverse possession claim with a question
regarding statutory notice for redemption. A court may not act in equity to avoid the application
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of a statute. Stokes v Millen Roofing Co, 466 Mich 660, 671; 649 NW2d 371 (2002). Rather,
where a statute controls the requirements of redemption, equitable considerations are
inapplicable '"absent fraud, accident, or mistake."' Freeman v Wozniak, 241 Mich App 633, 637;
617 NW2d 46 (2000), quoting Senters v Ottawa Savings Bank, 443 Mich 45, 55; 503 NW2d 639
(1993). The General Property Tax Act (GPTA), MCL 211.1 et. seq., controls the taxation of
property and establishes the procedures through which property delinquent for taxes may be
conveyed. The GPTA specifically sets forth how property conveyed through a tax deed may be
redeemed, notice requirements, and what happens if the GPTA's notice requirements are not met.
MCL 211.73c; MCL 211.74; MCL 211.131e; MCL 211.140; MCL 211.141.
In this case, the trial court repeatedly noted that its decision was based on equitable
principles and adverse possession. Based on the record, the trial court erred in relying on
equitable principles because there is a controlling statutory scheme that sets forth the
requirements for redeeming property conveyed through a tax deed and what should happen if the
statutory scheme's notice requirements are not met. MCL 211.73c; MCL 211.74; MCL
211.131e; MCL 211.140; MCL 211.141; Freeman, supra at 637. There have been no specific
allegations of fraud, accident, or mistake raised in this case to support the reliance on equitable
principles. Therefore, the use of equitable principles was error.
However, we affirm the trial court on the basis of adverse possession alone. This Court
need not reverse where the trial court reached the right result for the wrong reason. Taylor v
Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000). We find on review de novo that
plaintiff’s motion for summary disposition is properly granted on the basis of adverse possession.
To support a claim for adverse possession, plaintiffs were required to show that during
the fifteen-year statutory period they had actual, visible, open, notorious, exclusive, and
uninterrupted possession of the property that was hostile to the owner and under cover of a claim
of right. Rozmarek v Plamondon, 419 Mich 287, 295; 351 NW2d 558 (1984) (citation omitted).
The true owner must have actual knowledge of the adverse possession, or alternatively, the
possession must be so notorious as to raise the presumption to the world that the possessor
claims ownership. Ennis v Stanley, 346 Mich 296, 301; 78 NW2d 114 (1956). Generally, the
extent of the actions necessary to constitute adverse possession depends on the character of the
land involved. See Davids v Davis, 179 Mich App 72, 83; 445 NW2d 460 (1989). The
possession must be continuous. Beecher v Ferris, 117 Mich 108, 110; 75 NW 294 (1898); Duck
v McQueen, 263 Mich 325, 327-328; 248 NW 637 (1933).
In plaintiff’s motion for summary disposition, it contended, with regard to lots 82-85, that
since September 1982: (1) it had maintained the property by virtue of cutting or mowing weeds
and caring for the lawn on lots 82-85 on a continuous basis for at least twenty years; (2) listed it
on its city owned property list; (3) listed it with the Register of Deeds’ office as property owned
by plaintiff; and (4) when inquiries were made by parties interested in acquiring said property
over the last twenty years, plaintiff indicated that it was the owner. In response to plaintiff’s
motion for summary disposition, defendant attached no documentary evidence to dispute the
supported contentions of plaintiff, and argued: (1) plaintiff did not plead proper elements and (2)
periodically cutting wild grass does not constitute actual possession to constitute adverse
possession (citing Bankers Trust Co v Robinson, 280 Mich 458; 273 NW 768 (1937)).
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Plaintiff’s acts of regularly maintaining the property, listing the property, and informing
people interested in the property that it was plaintiff’s property, openly indicated an assumption
of control and was consistent with the character of possession of the property. We find that this
supports that plaintiff’s behavior was "actual, visible, open, and notorious."
Plaintiff’s alleged possession can be construed as hostile because it was possessing the
land of another up to a recognizable boundary. See Gorte v Dep't of Transportation, 202 Mich
App 161, 170; 507 NW2d 797 (1993). There was documentary evidence supporting that
plaintiffs had been mowing the disputed property for over twenty years. To support a claim of
adverse possession, the "acts of possession must be open and of a hostile character, but it is
sufficient if the acts of ownership are of such character as to indicate openly and publicly an
assumed control or use such as is consistent with the character of the premises in question."
Rose v Fuller, 21 Mich App 172, 175; 175 NW2d 344 (1970), citing Monroe v Rawlings, 331
Mich 49,52; 49 NW2d 55 (1951); Denison v Deam, 8 Mich App 439, 443; 154 NW2d 587
(1967). Regarding these "hostile" and "exclusive" elements, plaintiff’s maintenance of the
property constituted "use inconsistent with the right of the owner;" this was done without
permission and would have "entitled the owner to a cause of action against the intruder."
Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976). We find that plaintiff’s use
was exclusive and hostile.
A claimant attempting to establish adverse possession must act under a claim of right. In
the context of an adverse possession claim, "claim of right" contemplates that the claimant
possesses the land "with [the] intent to claim the land as his or her own, and not in recognition or
subordination to [the] record title owner." Black's Law Dictionary, (6th ed.), p 170. The
claimant must only intend to take title. See Smith v Fenley, 240 Mich 439, 441-442; 215 NW2d
353 (1927). The payment of taxes is persuasive evidence of a claim of right in an adverse
possession action. See Davids, supra at 85; Burns v Foster, 348 Mich 8, 15; 81 NW2d 386
(1957); Gardner v Gardner, 257 Mich 172, 176; 241 NW2d 179 (1932). Our Supreme Court in
McVannel v Pure Oil Co, 262 Mich 518, 528; 247 NW2d 735 (1933), stated that "one in
possession of land, claiming title, is bound to pay the taxes upon it" (citation omitted). We note
that although plaintiff was exempt from taxes, it carried the property on its tax roll, and was
listed as the owner for tax purposes, but as exempt. And, that the fact that defendant was not
paying taxes further supports that plaintiff was in possession of the land. The fact that plaintiff
was the owner for tax purposes would be persuasive evidence on a claim for adverse possession.
However, that the claimant paid taxes (or carried on the tax roll as the owner in this case) is but
one of many factors that may support a claim of adverse possession, and is not itself conclusive.
See e.g. Monroe, supra at 51-52; Corby v Thompson, 196 Mich 706, 711; 163 NW2d 80 (1917).
Here, plaintiff's actions in caring for the land and mowing the weeds to keep the property
compliant with city ordinances, in addition to carrying the property as the owner on its tax roll,
demonstrates its intention to claim the land as its own.
Furthermore, plaintiff satisfied the requirement that it had actual, visible, open, notorious,
exclusive, and uninterrupted possession that was hostile and under claim of right continuously
beyond the statutory period of fifteen years since they have been listed as the tax owner and have
mowed the lawn and cared for the land for a period of more than twenty years.
In Davids, supra at 72, this Court found that the plaintiff had established fee simple title
of an undeveloped parcel of property by adverse possession where he took under color of title,
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paid property taxes, posted "no trespass" signs, built a fence, and placed posts and chains across
the entrance. Id. In this case, plaintiff took possession of lots 82-85 under color of title, was
listed as the owner for tax purpose (carried the property on its tax roll), informed those inquiring
about the land that it was plaintiff’s land, and regularly maintained the lawn for a period of more
than twenty years. Plaintiffs' acts were of such character as to indicate it openly and publicly an
assumed control or use consistent with the character of the disputed property. Monroe, supra at
52; Denison, supra at 443.
Defendant argues that adverse possession has not been established pursuant to Bankers
Trust Co of Muskegon, supra at 464-465, which held that the plaintiff's occasional mowing of the
defendant's grass did not reasonably apprise the defendant that another was assuming control of
the property. However, there is nothing plaintiff’s documentation supporting that the grass
mowing was sporadic and was coupled with the property being listed as plaintiff’s property on
the tax roll, thus, we find no merit to this argument.
Plaintiff’s motion for summary disposition was supported by documentation, which
established its adverse possession claim. See MCR 2.116(G)(4); Maiden, supra at 120; Smith,
supra at 455. The party opposing the motion then has the burden of showing by evidentiary
materials that a genuine issue of disputed fact exists, Smith, supra; and the disputed factual issue
must be material to the dispositive legal claims, Auto Club Ins Ass’n, supra at 333; 671. The
existence of a disputed fact must be established by admissible evidence. MCR 2.116(G)(6);
Maiden, supra at 121. Defendant presented no documentary evidence in response to plaintiff’s
motion for summary disposition, in order to raise a genuine issue fact. As such, we find, on
review de novo, summary disposition is properly granted in favor of plaintiff on the basis of
adverse possession.7
Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Jane E. Markey
7
Because we find that summary disposition was proper on the basis of adverse possession we
need not address defendant’s arguments that the trial court erred in denying defendant’s motion
for summary disposition and in granting plaintiff’s motion because proper notice was not given
for the redemption period.
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