GLEN SMILEY V GROSSE POINTE WAR MEMORIAL ASS'N
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STATE OF MICHIGAN
COURT OF APPEALS
GLEN SMILEY, DONNA SMILEY, RICHARD
L. HURFORD, JUDI HURFORD, MALCOM J.
SUTHERLAND, JULIE T. SUTHERLAND,
COLTON P. WEATHERSPOON, DEBORAH J.
WEATHERSPOON, BRIT GORDON, ANN
GORDON, CURTIS MARSH, JUDI MARSH,
DAVID E. SORGE, MADALYNNE SORGE,
WILLIAM H. DANCE, NICK SPAIN, SALLY
SPAIN, THERESE CARDOZE, RICHARD C.
CARDOZE, TODD V. CALLEWAERT,
JENNIFER S. CALLEWAERT, ANTHONY
PADDOCK, DARBY PADDOCK, MARGARET
FERINGA, HELEN P. THURBER, ROY
LOMBARDO, SALLY LOMBARDO, NILA L.
CARTER, DAVID FITZSIMONS JR., HOLLY
FITZSIMONS, ROBERT OLLISON and
DEMPSEY OLLISON,
UNPUBLISHED
February 26, 2008
Plaintiffs-Appellants,
v
No. 275937
Wayne Circuit Court
LC No. 06-617425-CZ
GROSSE POINTE WAR MEMORIAL
ASSOCIATION,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Murphy and Borrello, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting defendant’s motion for
summary disposition under MCR 2.116(C)(5), (8) and (10) and denying their motion for
summary disposition under MCR 2.116(C)(10). In granting defendant’s motion, the trial court
rejected plaintiffs’ attempt to enjoin defendant from constructing condominiums on defendant’s
property based on an express restrictive covenant and the doctrine of reciprocal negative
easement. We reverse and remand for entry of an order granting plaintiffs’ motion for summary
disposition and issuing a permanent injunction prohibiting defendant from using the property in
contravention of the express restrictive covenant.
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I. Facts and Procedural History
The Joseph H. Berry subdivision was recorded on April 12, 1895. It is located in Grosse
Pointe Farms, Michigan. The subdivision consisted of lots 1 through 6. Lots 1 through 5 are
located north of Lakeshore Drive, and Lot 6 is located south of Lakeshore Drive. When Berry
died, all of lots 1 through 6 went to his heirs. The heirs developed three subdivisions in the
property north of Lakeshore Drive. Plaintiffs all live in the subdivisions north of Lakeshore
Drive. The lots in these subdivisions all contain express restrictions limiting buildings to singlefamily dwellings. Lot 6 is located south of Lakeshore Drive. Berry’s heirs subdivided lot 6 into
40, 46, 50 and 60 Lakeshore Drive. Defendant owns 40, 50 and 60 Lakeshore Drive.1 It is not
disputed that each of these properties, as well as 46 Lakeshore Drive, also contains an express
restriction limiting buildings to single-family dwellings.2 The property at 40 Lakeshore Drive
was the subject of previous litigation. Defendant acquired the property at 40 Lakeshore Drive in
May 1990 and successfully had the property rezoned from residential to a “community service”
district. The plaintiffs, adjacent landowners, sought an injunction, alleging that defendant’s
proposed use violated the same single-family dwelling restrictive covenant that is at issue in this
case. The trial court granted the plaintiffs a permanent injunction prohibiting defendant from
using the property in contravention of the restrictive covenant, and this Court affirmed. Bodman
v Grosse Pointe War Memorial Ass’n, unpublished opinion per curiam of the Court of Appeals,
issued July 29, 1993 (Docket No. 138990).
The property at issue in this case is 50 and 60 Lakeshore Drive. In a letter dated July 27,
2002, defendant explained its rationale for acquiring 50 and 60 Lakeshore Drive:
As deed restrictions are private agreements between property owners
which run with the land, the only realistic and viable solution to gain community
use of 40 Lake Shore is to acquire the remaining deed restrictions through the
purchase of property. Thus, the War Memorial recently acquired 50 and 60 Lake
Shore Drive for the purpose of removing the deed restrictions. . . .
Please know that the War Memorial’s actions relevant to these land
acquisitions are simply strategic efforts to eliminate the deed restrictions so that
our original investment in 40 Lake Shore can be maximized for the benefit of the
community. . . .
1
Defendant also owns 32 Lakeshore Drive, but this property is not the subject of this dispute.
2
This restriction can be traced back to a 1941 deed, in which Berry’s heirs conveyed Lot 6 to
Ruth W. Prescott. The deed contained the following express restriction: “No building shall be
erected on said premises except a single private dwelling . . . . Said dwelling shall be occupied
by not more than one family for residence purposes only . . . .” The deed also provided that all
“the foregoing restrictions . . . shall run with the land.”
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Defendant razed the residences on 50 and 60 Lakeshore Drive and initiated plans to
construct three multi-family residential condominiums, which would each contain four singlefamily condominiums, on 50 and 60 Lakeshore Drive. Defendant succeeded in effectuating the
rezoning of 50 and 60 Lakeshore Drive to permit the construction of the condominiums.
Plaintiffs thereafter filed a complaint against defendant, seeking to enjoin defendant from
constructing the condominiums.
Plaintiffs and defendant filed cross motions for summary disposition. Defendant moved
for summary disposition under MCR 2.116(C)(5), (8) and (10). Defendant argued that plaintiffs
lacked standing to enforce a reciprocal negative easement against defendant because plaintiffs’
property was not located in the same subdivision as defendant’s property at 50 and 60 Lakeshore
Drive. Defendant also argued that plaintiffs’ complaint failed to state a claim for a reciprocal
negative easement and that it was entitled to summary disposition under the doctrine of laches
because plaintiffs waited to bring suit, and defendant detrimentally relied on this delay. Finally,
defendant argued that the construction of three residential condominium buildings, each
containing four single-family condominiums, did not violate the restriction on 50 and 60
Lakeshore Drive that buildings must be “a single private dwelling . . . occupied by not more than
one family.” Plaintiffs moved for summary disposition under MCR 2.116(C)(10), arguing that
“this case clearly and completely falls within the doctrine of reciprocal negative easements” and
that because all of the elements of a reciprocal negative easement were met, defendant was
precluded from constructing the condominiums it sought to build at 50 and 60 Lakeshore Drive.
The trial court denied plaintiffs’ motion for summary disposition and granted defendant’s
motion under MCR 2.116(C)(5), (8) and (10). The trial court ruled that plaintiffs did not have
standing to bring the action against defendant because plaintiffs did not own property in
defendant’s subdivision. The trial court also ruled that the doctrine of reciprocal negative
easement did not apply to the facts of the case because the doctrine is an equitable doctrine that
only applies when there is not an express restriction on the land, and defendant’s land is already
burdened with an express restrictive covenant. The trial court relied on Sanborn v McLean, 233
Mich 227; 206 NW 496 (1925) and Dwyer v Ann Arbor, 79 Mich App 113; 261 NW2d 231
(1977), rev’d on other grounds 402 Mich 915 (1978), in concluding that the doctrine of
reciprocal negative easement did not apply to the facts of the case.
II. Standard of Review
This Court reviews de novo a trial court’s grant or denial of summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Summary disposition is proper under MCR 2.116(C)(5) if “[t]he party asserting the claim
lacks the legal capacity to sue.” This Court must consider the affidavits, depositions, admissions
and other relevant documentary evidence when ruling on a motion brought under MCR
2.116(C)(5). MCR 2.116(G)(2).
“A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of
a claim on the basis of the pleadings alone to determine whether the plaintiff has stated a claim
upon which relief can be granted.” Morden v Grand Traverse Co, 275 Mich App 325, 331; 738
NW2d 278 (2007). This Court must accept the plaintiff’s well-pleaded factual allegations as true
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and construe them in a light most favorable to the nonmoving party. Id. “The motion should be
granted if no factual development could possibly justify recovery.” Beaudrie v Henderson, 465
Mich 124, 130; 631 NW2d 308 (2001).
This Court’s review of a trial court’s grant of summary disposition pursuant to MCR
2.116(C)(10) is as follows:
This Court reviews de novo a trial court’s grant or denial of summary
disposition under MCR 2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich
331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10)
tests the factual support for a claim. Downey v Charlevoix Co Rd Comm’rs, 227
Mich App 621, 625; 576 NW2d 712 (1998). The pleadings, affidavits,
depositions, admissions, and any other documentary evidence submitted by the
parties must be considered by the court when ruling on a motion brought under
MCR 2.116(C)(10). Downey, supra at 626; MCR 2.116(G)(5). When reviewing
a decision on a motion for summary disposition under MCR 2.116(C)(10), this
Court “must consider the documentary evidence presented to the trial court ‘in the
light most favorable to the nonmoving party.’” DeBrow v Century 21 Great
Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001), quoting
Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999). A trial
court has properly granted a motion for summary disposition under MCR
2.116(C)(10) “if the affidavits or other documentary evidence show that there is
no genuine issue in respect to any material fact, and the moving party is entitled to
judgment as a matter of law.” Quinto v Cross & Peters Co, 451 Mich 358, 362;
547 NW2d 314 (1996). [Clerc v Chippewa Co War Mem Hosp, 267 Mich App
597, 601; 705 NW2d 703 (2005), remanded in part 477 Mich 1067 (2007).]
III. Analysis
A. Reciprocal Negative Easement
We find that the trial court properly concluded that the doctrine of reciprocal negative
easement is inapplicable to the facts of this case. The burden of establishing the restrictions by
way of reciprocal negative easement is on plaintiffs. Grant v Craigie, 292 Mich 658, 662; 291
NW 44 (1940); Fenwick v Leonard, 255 Mich 85, 90; 237 NW 381 (1931). As a general rule,
restrictions such as those contained in reciprocal negative easements are construed strictly
against those seeking their enforcement, and any doubts are resolved in favor of the free use of
property. Moore v Kimball, 291 Mich 455, 461; 289 NW 213 (1939).
The doctrine of reciprocal negative easement was explained in Sanborn, supra:
If the owner of two or more lots, so situated as to bear the relation, sells one with
restrictions of benefit to the land retained, the servitude becomes mutual, and,
during the period of restraint, the owner of the lot or lots retained can do nothing
forbidden to the owner of the lot sold. For want of a better descriptive term this is
styled a reciprocal negative easement. It runs with the land sold by virtue of
express fastening and abides with the land retained until loosened by expiration of
its period of service or by events working its destruction. . . . They arise, if at all,
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out of a benefit accorded land retained, by restrictions upon neighboring land sold
by a common owner. [Sanborn, supra at 229-230.]
In this case, the facts do not support the creation of a reciprocal negative easement. The
doctrine of reciprocal negative easement generally applies to circumstances in which a
conveyance was made by an owner, who retained some land unburdened by restrictions of
record. See Lanski v Montealegre, 361 Mich 44, 47; 104 NW2d 772 (1960). In Dwyer, supra,
this Court refused to apply the doctrine of reciprocal negative easements when the properties in
question all contained use restrictions. Dwyer, supra at 119-120. The facts in this case are
similar to the facts in Dwyer in that plaintiffs’ lots and defendant’s lot all contain an express
single-family dwelling restriction. According to the Court in Dwyer, the doctrine of reciprocal
negative easement was developed “[t]o protect those who were expressly restricted in the use of
their lots from uses by unrestricted lot owners that would adversely affect the character of the
subdivision[.]” Id. at 118. The rationale for the doctrine “is based upon the fairness inherent in
placing uniform restrictions upon the use of all lots similarly situated, notwithstanding that less
than all of the deeds contain an express restriction. Thus, the implied restriction arises from the
express restriction.” Id. at 118-119. Therefore, this Court in Dwyer concluded that because
“[a]ll lot owners were subject to a uniform restraint on the use of their land[,] reciprocal negative
easements were unnecessary to achieve that uniformity.” Similarly, we conclude in the instant
case that because plaintiffs’ and defendant’s property all contained an express single-family
dwelling restriction, the doctrine of reciprocal negative easements is not applicable. When there
is an express restriction, a court need not determine whether a restriction by implication arises.
Therefore, the trial court properly concluded that the facts of the case do not warrant application
of the doctrine of reciprocal negative easement.
B. Standing
Plaintiffs argue that they have the right, or standing, to enforce the express restrictive
covenant limiting defendant’s property at 50 and 60 Lakeshore Drive to single-family dwellings.
Whether a party has legal standing to assert a claim is a question of law that this Court reviews
de novo. Michigan Education Ass’n v Superintendent of Public Instruction, 272 Mich App 1, 4;
724 NW2d 478 (2006). The trial court ruled that plaintiffs lacked standing because they did not
own property in the subdivision in which defendant owned property.3 In concluding that
plaintiffs did not have standing, the trial court did not distinguish between standing to enforce the
express restrictive covenant or standing to enforce a reciprocal negative easement. To the extent
that the trial court’s standing ruling related to plaintiffs’ standing to enforce a reciprocal negative
easement, we need not determine whether the trial court’s holding in this regard was erroneous in
3
The trial court appeared to grant summary disposition under MCR 2.116(C)(5) based on its
conclusion that plaintiffs lacked standing to enforce a reciprocal negative easement. If this is the
case, we caution the trial court not to equate standing with capacity to sue for the purposes of
dispositive motions under MCR 2.116(C)(5). See Michigan Chiropractic Council v Comm’r of
the Office of Financial & Ins Services, 475 Mich 363, 374 n 25; 716 NW2d 561 (2006); Leite v
Dow Chemical Co, 439 Mich 920; 478 NW2d 892 (1992).
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light of our conclusion that the doctrine of reciprocal negative easement is inapplicable to the
facts of this case. To the extent that the trial court’s standing ruling related to plaintiffs’ standing
to enforce the express restrictive covenants on 50 and 60 Lakeshore Drive, we disagree. In Civic
Ass’n of Hammond Lake v Hammond Lake Estates No 3 Lots 126-135, 271 Mich App 130, 134136; 721 NW2d 801 (2006), we held that the plaintiffs had standing to enforce a deed restriction
prohibiting the use of motor boats on Hammond Lake even though the plaintiffs did not own lots
in the subdivision containing the deed restriction. Defendant attempts to distinguish Hammond
Lake, arguing that Hammond Lake involved riparian rights, whereas the instant case does not.
We are not persuaded by defendant’s attempt to distinguish Hammond Lake on this basis. We
also reject defendant’s suggestion that the basis for this Court’s conclusion that the plaintiff had
standing in Hammond Lake was that all of the lots involved in that case had originally been part
of the same subdivision. A reading of the standing analysis in Hammond Lake reveals that
whether the property had, at one time, all been part of the same subdivision was not a part of this
Court’s standing analysis. This Court’s conclusion that the plaintiff had standing in Hammond
Lake was based on protecting the property owners who had complied with the prohibition of the
use of motor boats on the lake and preserving the property value of their valuable lakefront real
estate. Hammond Lake, supra at 135-136. Although this Court in Hammond Lake did discuss
the fact that all the property at issue had once been a part of a single subdivision platted in 1954,
this discussion occurred in the context of determining whether the common grantor and general
plan requirements of a reciprocal negative easement were satisfied. We need not determine
whether plaintiffs’ and defendant’s property were located in the same subdivision because under
Hammond Lake, plaintiffs have standing to enforce the express restrictive covenant applicable to
50 and 60 Lakeshore Drive even if their lots are not located in the same subdivision as
defendant’s.
“Restrictive covenants are to be read as a whole to give effect to the ascertainable intent
of the drafter.” The Mable Cleary Trust v The Edward-Marlah Muzyl Trust, 262 Mich App 485,
505; 686 NW2d 770 (2004). Courts should not infer restrictions that are not expressly provided
for in the controlling documents. O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 341;
591 NW2d 216 (1999). Restrictive covenants are construed strictly against individuals claiming
the right to enforce them. Id. at 341-342. All doubts must be resolved in favor of the free use of
property. Id. at 341. Nevertheless, “courts must normally enforce unwaived restrictions on
which the owners of other similarly burdened property have relied.” Id. at 343. Furthermore,
courts place a value on residential restrictions: “‘[r]estrictions for residence purposes, if clearly
established by proper instruments, are favored by definite public policy. The courts have long
and vigorously enforced them by specific mandate.’” Id. at 342, quoting Wood v Blancke, 304
Mich 283, 288; 8 NW2d 67 (1943). “‘It is the policy of the courts of this State to protect
property owners who have not themselves violated restrictions in the enjoyment of their homes
and holdings.’” O’Connor, supra at 342, quoting Wood, supra at 287-288. “Restrictive
covenants, especially those pertaining to residential use, enhance and preserve the value of real
estate.” Lakes of the North Ass’n v TWIGA Ltd Partnership, 241 Mich App 91, 99; 614 NW2d
682 (2000).
The trial court did not decide the issue whether defendant’s proposed construction of
three multiple-family condominium buildings violated the express restrictive covenant. An issue
that has not been addressed by and decided by the trial court is generally not preserved for
review; however, if the trial court record provides the necessary facts, appellate consideration of
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an issue not decided by the trial court is not precluded. Hines v Volkswagen of America, Inc, 265
Mich App 432, 443-444; 695 NW2d 84 (2005). Because the record contains the necessary facts,
we exercise our discretion to address this issue.
The restrictive covenant that applies to defendant’s property provides: “No building shall
be erected on said premises except a single private dwelling . . . . Said dwelling shall be
occupied by not more than one family for residence purposes only . . . .” This deed restriction is
not ambiguous. According to its plain and express language, every building on defendant’s
property must be occupied by only one family. Defendant’s proposed condominium buildings
are not single-family condominium units. Defendant proposes to build three buildings; each
building would be occupied by four single-family condominiums and therefore four families.
Our Supreme Court has held that buildings housing more than one single family violates a
single-family restrictive covenant. See, e.g. Michiana Shores Estates, Inc v Robbins, 290 Mich
384, 387; 287 NW2d 547 (1939) (“It is clear . . . that erection of a dwelling house for two or
more families must be held a violation of the language of the deeds limiting structures to ‘one
residence only.’”). See also Nechman v Supplee, 236 Mich 116, 118, 119, 124-125; 210 NW2d
323 (1926) (erection of a four-family flat violates a “one (1) family residence” restriction.). In
light of the plain language of the express restrictive covenant, we conclude that defendant’s
proposed construction of three residential condominium buildings, each with four single-family
condominiums, violates the express restrictive covenant that applies to defendant’s property.
Therefore, the trial court erred in granting defendant’s motion for summary disposition.
C. Alternative Grounds for Affirming the Trial Court’s Grant of Summary Disposition
Defendant raises alternative grounds for affirming the trial court’s decision to grant
summary disposition in its favor. Most of these issues were not addressed by the trial court, and
we decline to address them on appeal because the record does not contain sufficient facts to
enable us to address them. Hines, supra at 443-444. However, two of these arguments merit
brief discussion. First, defendant argues that the defense of laches bars plaintiffs’ action in this
case. Although the trial court did not address this argument, we note that the facts of this case do
not support defendant’s contention that it would be inequitable to enforce plaintiffs’ claims
against defendant. Defendant also contends that this Court should reject plaintiffs’ attempt to
enforce the express deed restriction because plaintiffs are attempting to enforce the express deed
restriction for the first time on appeal. According to defendant, plaintiffs specifically limited the
issue before the trial court to whether the doctrine of reciprocal negative easement precluded
defendant’s construction of the condominium buildings. We have reviewed the trial court record
and conclude that plaintiffs made alternative arguments before the trial court. Plaintiffs
attempted to enforce the express restrictive covenant and an implied restrictive covenant under
the doctrine of reciprocal negative easement. We further note that even if plaintiffs did not
specifically raise before the trial court the issue of enforcement of the express restrictive
covenant, this Court is empowered to grant relief on a basis not advanced by the parties or
addressed by the trial court under our broad discretion to grant relief as a case may require.
MCR 7.216(A)(7).
IV. Holding
For the reasons articulated in this opinion, we find that the trial court did not err in
concluding that the doctrine of reciprocal negative easement does not apply to the facts of this
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case. However, in light of Hammond Lake, the trial court did err in concluding that plaintiffs did
not have standing to enforce the express restrictive covenants at 50 and 60 Lakeshore Drive.
Furthermore, because defendant’s proposed construction of condominiums violates the express
single-family dwelling restrictive covenant, the trial court erred in granting defendant’s motion
for summary disposition.
Reversed and remanded for entry of an order granting plaintiffs’ motion for summary
disposition and issuing a permanent injunction prohibiting defendant from using the property at
50 and 60 Lakeshore Drive in contravention of the express restrictive covenant. We do not
retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ William B. Murphy
/s/ Stephen L. Borrello
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