Turvey v. The Jennifer Marie Biondo Tr. UAD 11/6/07

EVERETT T. TURVEY and BETSY Y. TURVEY, Plaintiffs-Appellants, v. THE JENNIFER MARIE BIONDO TRUST UAD 11/6/07, JENNIFER MARIE BIONDO, and BENEDECT BIONDO, Defendants-Appellees.

No. 355223

Court of Appeals of Michigan

October 14, 2021

UNPUBLISHED

Oakland Circuit Court LC No. 2019-177260-CH

Before: Brock A. Swartzle, P.J., and Mark J. Cavanagh and Michael F. Gadola, JJ.

PER CURIAM.

Plaintiffs Everett T. Turvey and Betsy Y. Turvey, appeal as of right the order of the trial court granting defendants, The Jennifer Marie Biondo Trust, Jennifer Marie Biondo, and Benedect Biondo, summary disposition of plaintiffs' complaint under MCR 2.116(C)(8) and (10). We vacate the order of the trial court and remand for further proceedings.

I. FACTS

This case involves a dispute over a driveway easement. The underlying facts are not disputed. Defendants, Jennifer and Benedect Biondo, live at a home at 2561 Pebble Beach Drive in Oakland, Michigan, which is located in the Twin Lakes Condominium development. The home is owned by defendant, The Jennifer Marie Biondo Trust, of which Jennifer Biondo is the trustee.

In 2018, plaintiffs purchased property directly east of defendants' home and began building a home on the property. Appurtenant to plaintiffs' property is a driveway easement across defendants' home site. The easement was granted in 1997 to the previous owner of plaintiffs' property, Joan K. Quitmeyer, by the development group developing Twin Lakes Condominium (Twin Lakes). In exchange for Quitmeyer agreeing to terminate certain previous easements that benefitted that property, Twin Lakes granted Quitmeyer the driveway easement as follows, in pertinent part:

INGRESS, EGRESS AND DRIVEWAY EASEMENT

Twin Lakes Development, L.L.C., a Michigan limited liability company, Twin Lakes Gold Club, L.L.C., a Michigan limited liability company, and Resco, Inc., a Michigan Corporation whose address is 41400 Dequindre Road, Suite 105, Sterling Heights, Michigan 48316 (hereinafter collectively "Twin Lakes"), being the owners of certain land located in The Township of Oakland, Oakland County, Michigan, more fully described on the attached Exhibit "A" (hereinafter the "Burdened Property").

For and in consideration of $1.00, the receipt and adequacy of which is hereby acknowledged,

Does hereby grant to Joan K. Quitmeyer (["]Quitmeyer"), whose address is 400 Oak Street, Rochester, Michigan 48306, for the benefit of the land described on the attached Exhibit "B" (hereinafter the "Benefitted Property") and for the benefit of [] Quitmeyer.

A non-exclusive perpetual easement for vehicular and pedestrian ingress and egress over Twin Lakes Drive, Invitation Drive, Spyglass Drive and Pebble Beach Drive (collectively the "Roads"), private roads to be located and constructed within Twin Lakes Condominium being developed by Twin Lakes as Developer on the Burdened property, together with a driveway easement over the south ten (10) feet of proposed Unit 11 of Twin Lakes Condominium, (the "Driveway Easement"), as more fully described and depicted on the attached Exhibit "C," upon the terms hereinafter set forth.

1. This easement shall not be personal to Quitmeyer but shall be appurtenant to the Benefitted Property and shall run with the land.

2. This easement shall be for the purpose of vehicular and pedestrian ingress and egress over the Roads and the Driveway Easement to and from the Benefitted Property and Rochester and Buell Roads.

3. Quitmeyer shall have the right to enter upon the Driveway Easement and the land lying within five (5) feet on either side of the Driveway Easement as necessary to permit the construction, installation, maintenance, repair, removal and /or replacement of the driveway within the Driveway Easement; provided that in no event shall Quitmeyer install any asphalt, concrete, stones, gravel or any other paving material other than wood chips or similar natural material (the initial installation of which shall be made by Twin Lakes) without the prior written consent of Twin Lakes or any subsequent owner of Unit 11 of Twin Lakes Condominium. All such work shall be performed at Quitmeyer's sole cost and expense. Quitmeyer shall keep the Driveway Easement properly maintained at all times, and shall keep the Driveway Easement and the Burdened Property free and clear of all liens and encumbrances arising out of or related to such work and shall indemnify, defend and hold Twin Lakes harmless with respect to the same.^[1]

The driveway easement is located on the southern edge of Lot 11 of Twin Lakes, which is the lot where defendants' home is located. The southern edge of defendants' home is built on the northern edge of the driveway easement. At the time plaintiffs purchased the Quitmeyer property in 2018, Twin Lakes had already installed the driveway composed of wood chips, but the driveway was rarely used. After purchasing the property, plaintiffs determined that a woodchip surface was not adequate for use of the driveway as a regular means of ingress and egress to and from the property, and was very difficult to maintain. According to plaintiffs, the woodchip driveway becomes rutted and flooded during inclement weather, and Twin Lakes has complained that the wood chips wash into the condominium roadway, necessitating plaintiffs installing a silt barrier and continually repairing the driveway. Plaintiffs also assert that the close proximity of defendants' home to the driveway contributes to the erosion of the surface because rainwater from defendants' home's eaves and meltwater from defendants' home's biothermal heating flood the driveway.

Plaintiffs therefore sought defendants' consent to install a paving material on the driveway other than wood chips. When defendants did not agree to plaintiffs' request, plaintiffs contemplated improving the driveway with wood planks, which plaintiffs assert meet the terms of the easement. However, plaintiffs allege that defendants threatened to call the police and also to sue plaintiffs if they attempted to install wood planks. Plaintiffs therefore initiated this lawsuit seeking declaratory and injunctive relief to permit them to install wood planks as the surface of the driveway.

Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), contending that the plain language of the instrument granting the easement limits the plaintiffs to maintaining the surface with "woodchips or similar natural material," and that wood planks do not comply with this limitation. At the hearing on the motion, the trial court observed that resolution of that question might necessitate expert testimony. At the conclusion of the hearing on the motion, however, the trial court determined that the parties were in sufficient agreement regarding the facts to permit a decision by the trial court on the motion. The trial court granted defendants' motion for summary disposition, stating:

Since both of you are - seem to be in agreement, then I can make the call. I'm going to make the call. I don't find that the wood planks that plaintiff[s want] to use are contemplated by this easement that references wood chips or other natural material. I don't find that it's natural material, I find that it is a paving material and therefore, would require written consent of either the association or the defendant. So, therefore, I am granting defendants['] motion.

Plaintiffs now appeal.

II. DISCUSSION

Plaintiffs contend that the trial court erred by granting defendants summary disposition under MCR 2.116(C)(8) and (10) of plaintiffs' complaint for declaratory and injunctive relief. Plaintiffs assert that under the terms of the easement, they are entitled to maintain and improve the driveway that crosses defendants' lot by installing wood planking. Plaintiffs argue that the trial court erred by granting defendants summary disposition on the basis that wood planking is a paving material and therefore is not permitted by the terms of the easement. We agree that the basis stated by the trial court was not sufficient to support summary disposition.

A. STANDARD OF REVIEW

We review de novo a trial court's decision to grant or deny a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim. Id. When reviewing a grant or denial of summary disposition under MCR 2.116(C)(8), we consider the motion based upon the pleadings alone and accept all factual allegations as true. Id. Summary disposition under MCR 2.116(C)(8) is warranted when the claim is so unenforceable that no factual development could justify recovery. Id. at 160.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. When reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court considers the documentary evidence submitted by the parties in the light most favorable to the nonmoving party, id., and will find that a genuine issue of material fact exists if "the record leaves open an issue upon which reasonable minds might differ." Johnson v Vanderkooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018) (quotation marks and citations omitted). The moving party has the initial burden to support its motion with documentary evidence, but once met, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich.App. 255, 261; 704 N.W.2d 712 (2005).

The interpretation and construction of a contract is a question of law that ...