Joan Grattan v. Estate of Silvia Eilender

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JOAN GRATTAN, UNPUBLISHED

July 29, 2021

Plaintiff-Appellant,

v No. 354274

Lapeer Circuit Court

ESTATE OF SILVIA EILENDER, by EDITH LC No. 19-053366-CH

EILENDER, Personal Representative, ESTATE OF

JANET EILENDER, ROBERT E. NELSON, and

ESTATE OF ERIC T. NELSON, by DAVID P.

NELSON, Personal Representative,

Defendants-Appellees.

Before: GADOLA, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

In this quiet title action, plaintiff appeals as of right the trial court’s order granting summary

disposition to defendants. Plaintiff contends on appeal that the trial court erred in granting

defendants summary disposition prior to discovery in the case. We affirm.

I. FACTUAL BACKGROUND

Plaintiff’s mother, Erma Hewson, entered into a single land contract with defendants to sell

two parcels of land in Lapeer County on August 19, 1969. Despite the contract, on

January 12, 1971, Hewson deeded the same parcels to herself and plaintiff as joint tenants with

full rights of survivorship. Subsequently, defendants paid the purchase price for the first parcel,

and Hewson and plaintiff delivered a signed warranty deed to defendants on September 3, 1979.

The payment for and conveyance of the second parcel is the subject of this suit. Defendants

submitted correspondence between the attorneys responsible for the sale of the parcels indicating

that defendants paid the full purchase price for the second parcel on June 8, 1982. Defendants’

then-attorney wrote that, with the letter, he enclosed a check made payable to the order of Hewson

and plaintiff. Two days later the attorney then representing plaintiff and Hewson mailed to

defendants a warranty deed that was signed only by Hewson. The fact that plaintiff did not sign

the deed apparently went unnoticed for nearly 40 years until defendants tried to sell the property.

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Defendants contacted plaintiff to sign a deed to correct the error. Plaintiff refused and filed

this single count action to quiet title and for declaratory relief, alleging that she is the true owner

of the second parcel as the only remaining survivor of the joint tenancy she shared with her mother.

Plaintiff’s complaint alleged that she never received payment for the second parcel and is,

therefore, the rightful owner of the property.

Defendants moved for summary disposition. They argued that the parcel was paid for in

full in 1982, and it was a mere oversight or mistake that plaintiff did not sign the deed in addition

to Hewson. Plaintiff had not stepped foot on the property in decades, nor had she ever paid

property taxes or contributed to maintenance and upkeep of the property. Plaintiff argued in

response that she owned at least a one-half interest in the parcel because she was never

compensated for it, and that she was cut out of the transaction for the second parcel for some

unknown reason. The court granted defendants’ motion for summary disposition, holding that

defendants, as purchasers under the land contract, had superior title to the seller under the land

contract as it was never forfeited or foreclosed upon. This appeal followed.

II. DISCUSSION

Plaintiff contends that the trial court erred by granting defendants summary disposition

prior to discovery. We affirm.

This Court reviews de novo a trial court’s decision to grant or deny summary disposition.

Bowden v Gannaway, 310 Mich App 499, 503; 871 NW2d 893 (2015). Defendants brought their

motion for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10). The trial court did

not specify under which rule it granted defendants’ motion, though it held that there was no

genuine issue of material fact that defendants have superior title, and its order stated the same.

“MCR 2.116(C)(7) permits summary disposition ‘because of release, payment, prior judgment,

[or] immunity granted by law.’ ” Clay v Doe, 311 Mich App 359, 362; 876 NW2d 248 (2015),

quoting MCR 2.116(C)(7). Defendants argued summary disposition was appropriate under MCR

2.116(C)(7) because they submitted evidence of payment. However, the trial court did not

conclude that a question of fact existed regarding whether payment had been made, so it did not

grant summary disposition under MCR 2.116(C)(7). Summary disposition was also not granted

under MCR 2.116(C)(8) because the court’s decision relied on evidence outside the pleadings. A

court cannot address facts outside the pleadings in a motion under MCR 2.116(C)(8). Maiden v

Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). Therefore, the trial court granted

summary disposition under MCR 2.116(C)(10).

“A motion made under MCR 2.116(C)(10) tests the factual sufficiency of a claim, and

when the proffered evidence fails to establish a genuine issue of material fact, the moving party is

entitled to judgment as a matter of law.” Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88

(2012). “In considering a motion pursuant to MCR 2.116(C)(10), a court considers affidavits,

pleadings, depositions, admissions, and other documentary evidence submitted by the parties in a

light most favorable to the nonmoving party.” Watts v Mich Multi-King, Inc, 291 Mich App 98,

102; 804 NW2d 569 (2010). “A genuine issue of material fact exists when the record, giving the

benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable

minds might differ.” Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013)

(quotation marks and citation omitted). This Court also reviews de novo actions to quiet title and

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the application of the doctrine of laches, which are equitable in nature. Beach v Lima, 489 Mich

99, 106; 802 NW2d 1 (2011) (actions to quiet title are reviewed de novo); Knight v Northpointe

Bank, 300 Mich App 109, 113; 832 NW2d 439 (2013) (application of the doctrine of laches is

reviewed de novo).

However, it should be noted that plaintiff did not specifically raise in the trial court the

issue whether summary disposition was premature because discovery had not been completed, nor

did the trial court decide the issue. Therefore, that aspect of the issue is unpreserved. “[T]his

Court may overlook preservation requirements if the failure to consider the issue would result in

manifest injustice, if consideration is necessary for a proper determination of the case, or if the

issue involves a question of law and the facts necessary for its resolution have been presented[.]”

Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). This Court

“review[s] unpreserved challenges for plain error.” Total Armored Car Serv, Inc v Dep’t of

Treasury, 325 Mich App 403, 412; 926 NW2d 276 (2018). To establish plain error, a party “must

show (1) that an error occurred, (2) that the error was plain, and (3) that the plain error affected

[the party’s] substantial rights.” Id. (quotation marks and citation omitted). “[A]n error affects

substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.” In re

Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018) (quotation marks and citation omitted;

alteration in original).

Actions to quiet title are governed by MCL 600.2932, which provides in relevant part:

Any person, whether he is in possession of the land in question or not, who

claims any right in, title to, equitable title to, interest in, or right to possession of

land, may bring an action in the circuit courts against any other person who claims

or might claim any interest inconsistent with the interest claimed by the plaintiff,

whether the defendant is in possession of the land or not. [MCL 600.2932(1).]

Actions to quiet title are equitable in nature. Beulah Hoagland Appleton Qualified

Personal Residence Trust v Emmet Co Rd Comm, 236 Mich App 546, 550; 600 NW2d 698 (1999).

“In an action to quiet title, the plaintiffs have the burden of proof and must make out a prima facie

case of title.” Id. Plaintiff has made out a prima facie case for title through her 1971 warranty

deed in which Hewson deeded the property to herself and plaintiff as joint tenants with full rights

of survivorship. Once plaintiff has made a prima facie case, “the defendants then have the burden

of proving superior right or title in themselves.” Id. Defendants’ evidence of title consists of the

1969 land contract which provided for the sale of the second parcel, the 1982 letters evidencing

payment and delivery of the deed, and the 1982 deed to the disputed parcel that was signed only

by Hewson. The question is whether plaintiff’s or defendants’ claim to title is superior.

When a sale of land is made under a land contract, the vendee purchases the property for

all intents and purposes upon signing the contract. Graves v American Acceptance Mtg Corp, 469

Mich 608, 616; 677 NW2d 829 (2004). The vendor retains legal title to the property as a security

under the terms of the contract. Id. The vendee takes equitable title, which is a present interest

that includes seisen, meaning the vendee has the right to sell, devise, or encumber the property.

Id. Whether a vendee ultimately defaults on the contract has no bearing on the fact that he or she

has, “in a real sense, purchased the property.” Id. “That legal title remains in the vendor until full

performance of all contractual obligations likewise does not negate the fact that the vendee has

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already purchased the property.” The vendor merely holds the legal title in trust for the vendee,

and as security to the debt, until the contract’s terms have been performed. Batton-Jajuga v Farm

Bureau Gen Ins Co of Mich, 322 Mich App 422, 432; 913 NW2d 351 (2017). When a purchaser

defaults on the contract, equitable title does not automatically revert to the seller; the seller must

use a judicial remedy to retake full title to the property through forfeiture or foreclosure. See

generally Entingh v Grooters, 236 Mich App 458; 600 NW2d 415 (1999) (explaining the forfeiture

process); see also Flynn v Korneffel, 451 Mich 186; 547 NW2d 249 (1996) (explaining the

foreclosure redemption process).

The trial court did not err in holding that defendants have superior title in the property over

plaintiff. Defendants purchased the parcel under the land contract and took equitable title at that

time. After that date, Hewson’s status as the legal title holder to the parcel only extended as far as

a security interest against the debt, held in trust for defendants until the terms of the land contract

were fulfilled. Any interest in the property Hewson conveyed to plaintiff in 1971 was subject to

defendants’ purchase under the land contract. As noted above, even if defendants defaulted on

payment or failed to pay the purchase price, equitable title would not automatically pass back to

the vendor of the land. Even if plaintiff was not compensated for the land, as she contends, that

fact does not give her superior title to defendants. In the event of a default, plaintiff would have

had to go through the legal process of forfeiture or foreclosure, that included procedural protections

to defendants, to regain full title to the property. As such, defendants hold superior title to plaintiff.

Plaintiff’s main contention on appeal, however, is that summary disposition was

prematurely granted because discovery had not yet taken place. We disagree. Because this issue

is unpreserved, it will be reviewed to determine whether plain error occurred. Total Armored Car

Serv, Inc, 325 Mich App at 412. “Generally, summary disposition under MCR 2.116(C)(10) is

premature if it is granted before discovery on a disputed issue is complete.” Marilyn Froling

Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234

(2009). However, summary disposition is not necessarily premature if granted before the close of

discovery. Id. “The question is whether further discovery stands a fair chance of uncovering

factual support for the opposing party’s position.” Id. It is not enough for the party opposing the

motion to simply allege that summary disposition is premature. Powell-Murphy v Revitalizing

Auto Communities Environmental Response Trust, ___ Mich App ___, ____; ___ NW2d ___

(2020) (Docket No. 348690); slip op at 9. “The party must clearly identify the disputed issue for

which it asserts discovery must be conducted and support the issue with independent evidence.”

Id.

Plaintiff identifies as a disputed issue whether she ever received payment for the disputed

parcel. The question is, thus, whether further discovery has a fair chance of yielding support for

plaintiff’s position that she was never compensated for the land. Plaintiff supports her contention

that she was never paid for the property with an affidavit in which she avers she never received

money or any other consideration in exchange for her interest in the land. However, plaintiff fails

to point out what additional evidence she believes she can uncover during discovery to further

support that position. Plaintiff’s position is contradicted by the evidence in the letter from

defendants’ then-attorney stating that the enclosed check for the remainder of the purchase price

was payable to the order of plaintiff and Hewson. Although the response from plaintiff and

Hewson’s attorney did not specifically acknowledge receipt of payment, it was dated two days

after the letter from defendants’ attorney and purported to enclose a warranty deed, implying full

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payment was made. Plaintiff has not pointed to evidence she believes exists to bolster her claim

of nonpayment or that there is any likelihood she could find such evidence if it existed. The person

who could have offered the best testimony to clear up any confusion around the conveyances,

Hewson, is deceased. Plaintiff has not identified any other testimony or documents that she could

uncover in discovery to support her position. Even if plaintiff could find documents showing she

was never paid for the parcel, again, the issue of nonpayment is not dispositive to who holds

superior title to the land because the land contract was never forfeited or foreclosed upon. A party

must identify specific facts or evidence she would anticipate discovering to support her claim. St

Clair Medical, PC v Borgiel, 270 Mich App 260, 271; 715 NW2d 914 (2006). As such, plaintiff

has not shown a disputed issue in which further discovery would provide support for her position

or supported that issue with independent evidence, and summary disposition was properly granted.

Lastly, plaintiff contends that it was error for the trial court to hold that the doctrine of

laches bars her claim because neither party had changed their position, as the land was still vacant.

We again disagree.

“If a plaintiff has not exercised reasonable diligence in vindicating his or her rights, a court

sitting in equity may withhold relief on the ground that the plaintiff is chargeable with laches.”

Knight, 300 Mich App at 114. “The doctrine of laches is triggered by the plaintiff’s failure to do

something that should have been done under the circumstances or failure to claim or enforce a

right at the proper time.” Attorney General v PowerPick Player’s Club of Mich, LLC, 287 Mich

App 13, 51; 783 NW2d 515 (2010). The passage of time, on its own, does not necessitate the

application of the doctrine of laches. Knight, 300 Mich App at 114. Rather, laches applies when

the plaintiff’s delay in asserting a right causes prejudice to the defendant such that it would be

inequitable for a court sitting in equity to enforce plaintiff’s right. Id. at 115. The doctrine of

laches applies when a party’s delay in asserting his or her rights is unexplained or unexcused. City

of Fraser v Almeda University, 314 Mich App 79, 102; 886 NW2d 730 (2016).

Plaintiff delayed nearly 40 years to enforce what rights she has to the disputed parcel, and

defendants have been prejudiced by having to attempt to clear the cloud over their title after acting

as true owners over that time. Taking as true plaintiff’s assertion that she was never paid for the

disputed parcel, she should have been on notice that she had to take some action to assert her right

as an owner. Plaintiff took title to the land in 1971, which was subject to the land contract, and

participated in the conveyance of title to the first parcel in 1979. Plaintiff contends she was not

compensated when the second parcel was paid off in 1982, and took no part in executing the deed.

Even if plaintiff was unaware of the conveyance of the second parcel, at some point over the

ensuing decades she should have become aware that defendants were no longer making payments

under the land contract. Further, plaintiff was surely aware her mother passed away, leaving her

as the sole survivor to the joint tenancy. But it is undisputed that plaintiff did not take any actions

that would be consistent with her ownership, such as paying property taxes or performing

maintenance.

Contrary to plaintiff’s assertion, defendants had changed their position regarding the

land—they attempted to sell it. Plaintiff did not do anything to assert her rights to the parcel until

filing this action, when she discovered defendants were attempting to sell the property. This

prejudiced defendants, who had been taking all the actions of a true owner including paying the

property taxes and performing upkeep. Defendants have had to defend their title through this

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litigation, and, in the meantime, their sale fell through. Plaintiff’s failure to assert her rights is

unexplained, and she has offered no excuse. And defendants have been prejudiced. As such, the

doctrine of laches should bar her claim.

Summary disposition was properly granted to defendants and it was not premature, as there

is no fair likelihood that discovery would yield support for plaintiff’s position. Additionally, the

doctrine of laches bars plaintiff’s claim.

Affirmed.

/s/ Michael F. Gadola

/s/ Kathleen Jansen

/s/ Colleen A. O’Brien

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