CHARLES MICHAEL FIEBING V RICHARD R ERICKSON (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLES MICHAEL FIEBING and MONIKA
H. FIEBING,
UNPUBLISHED
July 26, 2011
Plaintiffs-Appellants,
V
No. 298433
Grand Traverse Circuit Court
LC No. 09-027707-PD
RICHARD R. ERICKSON, MEREDITH J.
ERICKSON, and PORT OF OLD MISSION
ASSOCIATES, INC.,
Defendants-Appellees.
Before: BECKERING, P.J., and FORT HOOD and STEPHENS, JJ.
PER CURIAM.
In this action seeking the recovery of personal property, plaintiffs appeal as of right from
the trial court order granting summary disposition in favor of defendants, holding that plaintiffs
abandoned their property. We reverse and remand.
I. FACTS
The relevant facts are not in dispute.1 On May 9, 2003, plaintiffs purchased from
defendants by land contract the property located at 1361 Silver Lake Road, Traverse City,
Michigan. Plaintiffs failed to make all of the required payments, and defendants instituted a land
contract forfeiture proceeding. At the hearing on September 9, 2009, the parties informed the
district court that they had reached a settlement under which plaintiffs would vacate the
residence by October 15, 2009, and the storage building located on the property by October 30,
2009, and would provide defendants with a quitclaim deed. The parties agreed that no judgment
would be entered in the forfeiture proceeding if plaintiffs timely provided the deed to defendants.
1
Defendants dispute plaintiffs’ valuation of the personal property claimed by plaintiffs and do
not concede that all of the listed items were on the premises when defendants took possession of
the real estate. Those facts are not necessary for determination of the appeal as defendants
concede that plaintiffs left behind at least some of the claimed items.
-1-
Plaintiffs admit that they did not timely vacate the property. Plaintiffs delivered the
quitclaim deed to defendants on November 3 or 4, 2009. The deed states that its purpose “is to
extinguish all rights of the [plaintiffs] arising pursuant to a Land Contract dated May 9, 2003
. . . .” Plaintiffs attempted to remove their personalty on November 3, 2009, but alleged that they
were rebuffed by the individual defendants’ daughter. Plaintiffs also asserted that they attempted
to remove their property on November 9, 2009, but defendants’ daughter arrived on the scene
and prevented the removal.
Plaintiffs filed a complaint for claim and delivery on December 18, 2009. They claim
that they left various tools and supplies worth $80,000 at the Silver Lake property, and that these
items still belong to them. Plaintiffs moved for possession pending final judgment. At this
hearing, plaintiffs’ counsel stated that he was experiencing double vision and was having
difficulty citing authority to the court. In response to authority cited by plaintiffs’ counsel, the
trial court stated, “Maybe the law does protect the lazy and incompetent.” The trial judge also
stated that he wondered why plaintiffs did not remove their property by October 30 (sic), but did
not give plaintiffs the opportunity to explain or provide sworn testimony. Despite these
deficiencies, the trial court proceeded to rule on the motion for possession. The court found that
plaintiffs had abandoned any property left behind, because plaintiffs had agreed in the settlement
of the forfeiture proceedings to remove all of their property. The trial court instructed plaintiffs’
counsel to file a motion for reconsideration in light of his vision problems and representation that
case law had been left at his office.
Plaintiffs filed a motion for reconsideration, and the trial court ordered defendants to file
a response. In a written decision, the court denied plaintiffs’ motion for reconsideration, holding
that plaintiffs were estopped from challenging the prior settlement, that they had abandoned any
personal property left behind, and had also extinguished any claims by the language of the
quitclaim deed. The court also granted defendants attorney fees for having to defend the motion
for reconsideration. Realizing that these orders effectively precluded plaintiffs from obtaining
any relief in this case, defendants moved for summary disposition, and the trial court granted the
motion. Plaintiffs now challenge the award of summary disposition and attorney’s fees.
II. ABANDONMENT
Appellate review of a trial court’s ruling on a motion for summary disposition is de novo.
Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 317; 783 NW2d 695
(2010). A summary disposition motion under MCR 2.116(C)(8) tests the legal sufficiency of the
claim based on the pleadings alone. Wormsbacher v Phillip R Seaver Title Co, Inc, 284 Mich
App 1, 3; 772 NW2d 827 (2009). The motion should be granted only if “no factual development
could possibly justify recovery.” Id.
A motion under MCR 2.116(C)(10) tests the factual support of the claim. Coblentz v City
of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). The Court considers the evidence submitted
in the light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich 109, 119-120;
597 NW2d 817 (1999). If the evidence does not establish a genuine issue of material fact,
summary disposition is appropriate. Id. at 120.
-2-
The trial court found and defendants argue on appeal that plaintiffs are estopped from
attempting to alter the terms of the settlement reached in the prior case between the parties. In
general, the trial court’s decision is based on a correct statement of the law. An agreement
between the parties entered on the record in open court is binding except in cases of mistake,
fraud, or unconscionable advantage. MCR 2.507(G); Groulx v Carlson, 176 Mich App 484,
488-489; 440 NW2d 644 (1989).2 The first party to breach a contract may not sue another party
for his subsequent breach or failure to perform. Michaels v Amway Corp, 206 Mich App 644,
650; 522 NW2d 703 (1994). However, contrary to the trial court’s decision, this rule is
immaterial to the present case.3 Plaintiffs are not suing defendants for a breach of the settlement
agreement. Rather, they claim that defendants refused to allow plaintiffs to recover their
personal property.
The terms of the settlement agreement called for plaintiffs to remove the property prior to
October 31, 2009. Neither party stated that a breach of this term would cause defendants to
become the owners of all personal property left on the premises, and defendants cite no authority
to that effect. Defendants may have a right to damages under the settlement agreement if the
presence of plaintiffs’ personal property caused them harm somehow, but the settlement
agreement does not support a claim that plaintiffs abandoned their property.
Defendants next point to the language of the quitclaim deed explaining that the deed’s
purpose “is to extinguish all rights of the [plaintiffs] arising pursuant to a Land Contract dated
May 9, 2003 . . . .” Again, this language has no bearing on plaintiffs’ personal property.
Plaintiffs’ rights to the property at issue in this case did not arise from the land contract, and
therefore are not extinguished by the quitclaim deed. The land contract and quitclaim deed only
involved real estate, not personal property. Similarly, plaintiffs attorney’s statement that the
settlement agreement would extinguish all parties’ claims referred only to the real estate because
at that point no personal property was in dispute.
Defendants finally argue that plaintiffs abandoned any property remaining on the
premises after delivery of the quitclaim deed. Defendants raised the affirmative defense of
abandonment and bear the burden of proving that plaintiffs abandoned their property. See Ambs
v Kalamazoo Co Road Comm, 255 Mich App 637, 652; 662 NW2d 424 (2003). Proof of
abandonment requires a showing of “intent to relinquish the property and external acts putting
that intention into effect.” Id. Nonuse by itself is insufficient to show abandonment. Sparling
2
At the time Groulx was decided the rule was found under MCR 2.507(H), but the text of the
rule is identical. Defendants point out that no judgment was actually entered in the forfeiture
proceeding, but the settlement agreement is nonetheless binding as it was made in open court.
3
The trial court faulted plaintiffs for failing to comply with the settlement agreement. However,
we note that the settlement agreement provided that the remedy for noncompliance would be
entry of judgment. Although we do not have the benefit of the district court file, there is no
indication that defendants returned to district court for entry of the judgment or filed a motion to
enforce the settlement agreement in district court in light of the deadlines set forth in the
settlement.
-3-
Plastic Indus, Inc v Sparling, 229 Mich App 704, 718; 583 NW2d 232 (1998). “Rather, nonuse
must be accompanied by some act showing a clear intent to abandon.” Ludington & Northern R
v The Epworth Assembly, 188 Mich App 25, 33; 468 NW2d 884 (1991) (citations omitted).
The facts in this case are that plaintiffs agreed to vacate the real estate by October 31 and
provide defendants with a deed. They provided the deed probably on November 3, and returned
the same day to retrieve the property at issue here. Defendants argue that the signing of the deed
coupled with the failure to remove all personalty before hand sufficiently proves abandonment.
The trial court stated that it was “illogical to think that a grantor could execute a quit claim deed
extinguishing all his or her rights to the realty, but still retain rights to enter upon the land and
retrieve personal property.” However, neither defendants nor the trial court could find any
authority that directly supports this conclusion.
Simply handing over title to real estate is not a sufficient act to indicate intent to abandon
valuable property. In Cunningham v Kinyon, 156 Mich 428; 120 NW 806 (1909), our Supreme
Court noted that a conveyance of real estate did not necessarily include a conveyance of personal
property located on the real estate, which it must include if granting a deed alone were sufficient
to abandon that personalty. Id. at 431. The case did not involve the question of abandonment,
but is otherwise similar to the present case in that it involved the conveyance of real estate and a
subsequent dispute over the ownership of personal property left on the real estate. And surely it
must on occasion happen that a grantor has forgotten certain items or simply not had time to
remove them all. Carelessness or sloth should not be equated with intent to abandon.
Initially, the only issue before the court was plaintiffs’ motion for possession. However,
the trial court did not limit a ruling on possession pending resolution of the litigation, but
proceeded to conclude that plaintiffs intended to abandon the property at issue. However, the
intent to abandon was at odds with plaintiffs’ assertions that they returned to remove more of
their property on the same day they delivered the deed. The issues of intent and credibility
present issues for the trier of fact to resolve. Triple E Produce Corp v Mastronardi Produce,
Ltd, 209 Mich App 165, 174; 530 NW2d 772 (1995). Summary disposition is generally
inappropriate where motive and intent are at issue or where the credibility of a witness is crucial.
Foreman v Foreman, 266 Mich App 132, 135-136; 701 NW2d 167 (2005). In addition,
plaintiffs claim upwards of $80,000 in this lawsuit, and it is reasonable to infer that plaintiffs
would not want to abandon such valuable property. See Emmons v Easter, 62 Mich App 226,
236-237; 233 NW2d 239 (1975). Moreover, intent to abandon is shown by nonuse plus an
external act. Ludington, 188 Mich App at 33. It is not fair to say that this was a case of nonuse,
because plaintiffs returned the same day to retrieve their property.
Delivery of the quitclaim deed may provide some support for a finding of intent to
abandon, but it is not sufficient on its own. Where there is no nonuse of the property and where
the property is valuable, the mere fact of conveyance of real estate does not prove abandonment
-4-
of the personalty. The undisputed facts as alleged in the pleadings do not support a finding that
plaintiffs intended to abandon their property.4
Because the trial court erred in finding abandonment, it also erred in awarding attorney’s
fees to defendants. Plaintiffs’ position was not frivolous.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Jane M. Beckering
/s/ Karen M. Fort Hood
/s/ Cynthia Diane Stephens
4
Plaintiffs also argue that the trial court denied them the opportunity to properly argue the merits
of the case. Defendants say plaintiff failed to preserve this question. This question is immaterial
because of our finding that summary disposition was inappropriate.
-5-
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