STATE OF MICHIGAN

                          COURT OF APPEALS



LAKEWOOD ESTATES IMPROVEMENT                                     UNPUBLISHED
ASSOCIATION, INC. and CAROL WILDER                               June 21, 2018
PORTH, formerly known as CAROL WILDER,

              Plaintiff-Appellants,

v                                                                No. 339379
                                                                 Saginaw Circuit Court
MICHELE BUEKER, Trustee of the MICHELE                           LC No. 16-031402-CH
M. BUEKER REVOCABLE LIVING TRUST,

              Defendant-Appellee.


Before: CAMERON, P.J., and METER and BORRELLO, JJ.

PER CURIAM.

       Plaintiffs, Lakewood Estates Improvement Association, Inc. (Lakewood) and Carol
Wilder Porth, formerly known as Carol Wilder, appeal as of right from the trial court’s May 15,
2017 order granting summary disposition under MCR 2.116(C)(10) and quieting title to a
contested strip of land (the property) in favor of defendant, Michele Bueker as trustee of the
Michele M. Bueker Revocable Living Trust. We affirm.

                                      I. BACKGROUND

       This case arises out of a dispute over the property, which is located in Swan Creek
Township, Michigan. In 2012, Lakewood sued defendant and the Michele M. Bueker Revocable
Living Trust, alleging Bueker’s installment of a driveway over the property violated Lakewood’s
deed restrictions. The trial court ruled in favor of defendants, and Lakewood appealed that
decision. In our prior opinion, this Court described the facts of the 2012 lawsuit as follows:

       In 1999, Bueker purchased a 6.41 acre piece of property abutting Lakewood
       Estates No. 2., a platted subdivision. Unbeknownst to Bueker, a prior owner had
       divided a lot in the platted subdivision in 1978, and a very narrow portion of
       Bueker’s property falls within the subdivision. The parcel that Bueker owns
       varies from about 15 to 40 feet wide and it is a drain, not a lot. At some point,
       Bueker built a driveway over the drain, and she wishes to build a house on her
       remaining [unplatted] property.

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       In November 2012, Lakewood filed suit in this action. In pertinent part,
       Lakewood contended that Bueker’s driveway violated the deed restrictions
       because it was not for residential purposes and Bueker built it without approval of
       the architectural control committee. [Lakewood Estates Improvement Ass’n, Inc v
       Bueker, unpublished per curiam opinion of the Court of Appeals, issued July 14,
       2015 (Docket No. 321826), p 1.]

The property is east of Lot 28 and west of Bueker’s unplatted property:




      In the trial court’s written opinion disposing of the 2012 action, it acknowledged that
Lakewood had raised concerns about chain of title relating to the property and Lot 28:

       At oral argument, and in a post-argument supplemental brief, Plaintiff for the first
       time noticed that the unusual nature of Defendant’s Property (i.e., partially within
       Lakewood Estates and partially outside) was accomplished by a 1977 conveyance
       by Birnbaum (one of the original developers) to a couple named Bommarito.
       That deed conveyed the lion’s share of Lakewood Estates Lot 28 to the
       Bommaritos, but excepted the small strip that Defendants now own. It is
       undisputed that in 1977, Birnbaum also owned that portion of Bueker’s Property
       that is outside of Lakewood Estates. The obvious inference is that Birnbaum did

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       this deliberately to insure access over the County Drain. Plaintiff’s late-breaking
       argument, to the extent the Court can discern it, appear [sic] to be that this
       division of Lot 28 some 37 years ago was somehow wrongful, although it is most
       unclear just how the act was improper, or, if true, how this would affect the
       present case. There is no claim before the Court in this lawsuit challenging the
       division of Lot 28. For purposes of summary judgment, the Court accepts the
       current state of parcel boundaries, and the prior history of conveyances, as
       established facts.

In this Court’s 2015 opinion affirming the trial court’s decision, we declined to address
Lakewood’s claim that the division of Lot 28 in the 1970s violated the Land Division Act
“[b]ecause Lakewood did not raise any claims regarding the propriety of this division, [and] the
trial court refused to infer that it was improper.” Id. at 4.

        In 2016, plaintiffs filed a second lawsuit to quiet title, claiming Lakewood was the
rightful owner of the property because defendant acquired the parcel in question due to the
invalid division and transfer of the property in the 1970s. Porth asserted that as the current
owner of Lot 28, any decision concerning the contested strip of land would affect the value of
her property as a resident of Lakewood Estates. The trial court disagreed and granted summary
disposition in favor of defendant because Lakewood’s claim was barred on judicial estoppel and
res judicata grounds, and Porth’s claim failed for lack of standing. Plaintiffs now appeal the trial
court’s decision.

                                   II. LAKEWOOD’S CLAIM

       Plaintiffs first argue that the trial court erred when it dismissed Lakewood’s claim against
defendant on res judicata grounds. We disagree.

       This Court reviews de novo rulings on a motion for summary disposition under MCR
2.116(C)(10), as well as its application of the legal doctrine of res judicata. Garrett v
Washington, 314 Mich. App. 436, 440-441; 886 NW2d 762 (2016). Summary disposition is
proper under MCR 2.116(C)(10) if “there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich.
177, 183; 665 NW2d 469 (2003). In ruling on a motion under MCR 2.116(C)(10), a trial court
may “consider the affidavits, pleadings, depositions, admissions, and other documentary
evidence submitted by the parties in the light most favorable to the party opposing the motion.”
Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich. App. 25, 29; 772 NW2d 801 (2009). “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.” West, 469
Mich. at 183.

        “The doctrine of res judicata is intended to relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to
foster the finality of litigation.” Garrett, 314 Mich. App. at 441, quoting Bryan v JPMorgan
Chase Bank, 304 Mich. App. 708, 715; 848 NW2d 482 (2014) (quotation marks omitted). “Res
judicata applies if: ‘(1) the prior action was decided on the merits, (2) both actions involve the
same parties or their privies, and (3) the matter in the second case was, or could have been,

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resolved in the first.’ ” William Beaumont Hosp v Wass, 315 Mich. App. 392, 398; 889 NW2d
745 (2016), quoting Adair v Michigan, 470 Mich. 105, 121; 680 NW2d 386 (2004).

        Defendant and Lakewood were both parties to the original 2012 action, and it is
undisputed that the original action was decided on its merits. The issue, instead, implicates the
third element of res judicata, i.e., whether Lakewood’s quiet title action could have been litigated
in the original 2012 action. See William Beaumont Hosp, 315 Mich. App. at 398.

        “Our Supreme Court ‘has taken a broad approach to the doctrine of res judicata, holding
that it bars not only claims already litigated, but also every claim arising from the same
transaction that the parties, exercising reasonable diligence, could have raised but did not.’ ”
Garrett, 314 Mich. App. at 442, quoting Adair, 470 Mich. at 121. In analyzing the third prong
under the doctrine of res judicata, “Michigan courts employ the broad, pragmatic same
transaction test,” which looks at “whether the claims in the instant case arose as part of the same
transaction as did [the plaintiff’s] claims in the original action.” Garrett, 314 Mich. App. at 442,
quoting Adair, 470 Mich. at 123-125 (quotation marks omitted). “Under the transactional test, a
claim is viewed in factual terms and considered coterminous with the transaction, regardless of
the number of substantive theories, or variant forms of relief flowing from those theories, that
may be available to the plaintiff[.]” Garrett, 314 Mich. App. at 442, quoting Adair, 470 Mich. at
124 (quotation marks omitted; alteration in original). Thus, “[w]hether a factual grouping
constitutes a transaction for purposes of res judicata is to be determined pragmatically, by
considering whether the facts are related in time, space, origin or motivation, [and] whether they
form a convenient trial unit.” Garrett, 314 Mich. App. at 442, quoting Adair, 470 Mich. at 125
(quotation marks omitted; alteration in original).

        In this case, the trial court concluded that Lakewood had every opportunity in the
previous lawsuit to timely amend its complaint to add a quiet title claim for the contested
property. Instead, Lakewood’s only substantive theory for relief set forth in the first action was
that, even though the property belonged to defendant, she failed to obtain a permit or abide by
Lakewood’s Bylaws and Use Restrictions when installing a driveway over the property.
Lakewood had access to the title history, and it could have alleged that the property on which the
driveway and culvert was installed belonged to Lakewood—not defendant. Not only did
Lakewood fail to raise any such argument in the previous action until the hearing on defendant’s
motion for summary disposition, it had admitted the property belonged to defendant up until that
point. The trial court refused to allow Lakewood, after summary disposition had been granted in
favor of defendant, to amend the 2012 complaint for a third time to add a quiet title action
because the time limit for filing such an amendment had lapsed. Therefore, not only could
Lakewood have raised the current issue in the original action, it attempted to do so once it was
too late. The trial court did not err when it granted defendant’s motion for summary disposition
on res judicata grounds.

        However, even if the trial court erred when it granted summary disposition on res
judicata grounds, it also found that judicial estoppel barred Lakewood’s quiet title action. On
appeal, Lakewood has not challenged the trial court’s decision as it relates to judicial estoppel.
Therefore, this claim is deemed abandoned because Lakewood failed to raise this issue in its
statement of the questions presented, MCR 7.212(C)(5); In re ASF, 311 Mich. App. 420, 440; 876
NW2d 253 (2015), and has provided no argument or other authority challenging this issue.

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According to Lakewood, the trial court dismissed the case only on res judicata grounds, but this
is not true. The trial court, after undergoing a judicial estoppel analysis on the record, concluded
“that the case is properly dismissed under the judicial estoppel theory, and that part of the motion
is granted.”

        The trial court also did not err in finding that the affidavit of surveyor Roger Mahoney
carried no weight, thereby concluding Lakewood failed to raise a genuine issue of material fact.
Mahoney, a licensed surveyor, was in no position to provide a legal conclusion based on his
review of the chain of title. A determination as to legal title should be left to the court. Thus,
Lakewood’s argument that Mahoney’s affidavit presented a disputed question of fact that
survives summary disposition is without merit. As a final point, the trial court was allowed to
quiet title in favor of defendant even though she did not expressly request such relief at the
outset. On the record, the trial court held:

       [U]nder MCR 2.601(A), which provides . . . every final judgment may grant the
       relief to which the party in whose favor it is rendered entitled, even if the party
       has not demanded that relief in his or her pleadings, end quote, as to that rule,
       [defendant] is entitled to a judgment in her favor, quieting title to the strip of land
       in question.

The trial court, in light of Lakewood seeking to quiet title, was allowed to provide a judgment
that quieted title in favor of defendant.

                                      III. PORTH’S CLAIM

         Plaintiffs also argue the trial court erred when it dismissed Porth’s claim for lack of
standing because Porth should have been allowed to amend the complaint to add a direct quiet
title claim against defendant. We disagree.

       An issue is preserved if it was “raised, addressed, and decided by the lower court.”
Mouzon, 308 Mich. App. at 419 (quotation marks and citation omitted). “[W]here an issue is first
presented in a motion for reconsideration, it is not properly preserved.” Vushaj v Farm Bureau
Gen Ins Co of Mich, 284 Mich. App. 513, 519, 521; 773 NW2d 758 (2009). The trial court
granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10), dismissing
Porth’s claim for lack of standing.1 Thereafter, plaintiffs requested in a motion for
reconsideration to “allow [Porth’s] portion of the case to proceed, thereafter schedule a discovery



1
  Plaintiffs do not challenge the trial court’s ruling that Porth lacked standing. Instead, plaintiffs
only claim that Porth should have been given an opportunity to amend the complaint to allow her
the chance to assert a quiet title claim. An appellant must identify the issues in her brief in the
statement of question presented, MCR 7.212(C)(5), and she cannot merely assert an error and
leave it up to this Court to discover and rationalize the basis for the claim. Wilson v Taylor, 457
Mich. 232, 243; 577 NW2d 100 (1998) (quotation marks and citation omitted). Therefore, this
Court does not address the trial court’s decision to dismiss Porth’s claim for lack of standing.


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time period; and, allow her to amend her portion of plaintiffs’ Complaint.” The trial court,
however, denied plaintiffs’ motion for reconsideration. On appeal, plaintiffs argue that the trial
court should have allowed Porth to amend the complaint to bring an action to quiet title.
Because Porth did not seek to amend the complaint until she filed a motion for reconsideration,
the issue is not properly preserved. Vushaj, 284 Mich. App. at 519.

        Generally, a trial court’s decision on a motion to amend pleadings is reviewed for an
abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich. 45, 53; 684 NW2d 320 (2004).
However, this Court reviews unpreserved issues for plain error affecting substantial rights. King
v Oakland Co Prosecutor, 303 Mich. App. 222, 239; 842 NW2d 403 (2013). “To avoid forfeiture
under the plain-error rule, three requirements must be met: (1) an error must have occurred; (2)
the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights.”
Rivette v Rose–Molina, 278 Mich. App. 327, 328-329; 750 NW2d 603 (2008) (citation omitted).
To the extent this issue requires the interpretation and application of court rules, such matters are
reviewed de novo as questions of law. CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich.
549, 553; 640 NW2d 256 (2002).

       Under MCR 2.118(A)(2), a party can “amend a pleading only by leave of the court or by
written consent of the adverse party,” and “[l]eave shall be freely given when justice so
requires.” This Court explained:

       Because a court should freely grant leave to amend a complaint when justice so
       requires, a motion to amend should ordinarily be denied only for particularized
       reasons. Those reasons include undue delay, bad faith or dilatory motive,
       repeated failure to cure deficiencies by amendments previously allowed, undue
       prejudice, or futility. Further, MCR 2.116(I)(5) states that when the trial court
       summarily disposes of a case under subrules (C)(8), (C)(9), or (C)(10), the trial
       court shall give the parties an opportunity to amend their pleadings as provided by
       MCR 2.118, unless the evidence then before the court shows that amendment
       would not be justified. [Kincaid v City of Flint, 311 Mich. App. 76, 94-95; 874
       NW2d 193 (2015) (quotation marks and citations omitted).]

While the general rule favors granting leave to amend, in no way does it address whether a trial
court has an affirmative obligation, in the absence of a motion requesting an opportunity to
amend, to offer a party such relief. This Court has addressed an issue nearly identical to that
raised in plaintiffs’ brief. In Kloian v Schwartz, 272 Mich. App. 232, 241-242; 725 NW2d 671
(2006), the trial court granted summary disposition under MCR 2.116(C)(8), and the plaintiff did
not file a motion to amend the complaint. On appeal, the plaintiff, having failed to preserve the
issue, argued he was denied the opportunity to amend his complaint. Id. However, this Court
concluded: “Because [the] plaintiff did not seek leave of the court or obtain defendants’ written
consent to amend his complaint as required by MCR 2.118(A)(2), MCR 2.116(I)(5) did not
require the court to sua sponte offer plaintiff an opportunity to amend. Therefore, no plain error




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occurred.” Kloian, 272 Mich. App. at 241-242. In this case, as in Kloian, Porth failed to preserve
the issue by filing a motion to amend the complaint, and thus, the trial court was not obligated to
allow the amendment. No plain error occurred.

       Affirmed.



                                                            /s/ Thomas C. Cameron
                                                            /s/ Patrick M. Meter
                                                            /s/ Stephen L. Borrello




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