Opinion Date: 05/15/2012
Issues: Boundary line dispute; The "doctrine of repose"; Whether defendant-Tudor's first issue on appeal was properly preserved; Camden v. Kaufman; Applicability of res judicata; Washington v. Sinai Hosp. of Greater Detroit; Labor Council, MI Fraternal Order of Police v. City of Detroit; Requirement that the appellant "adequately prime the pump"; Mitcham v. Detroit; Due process; Reed v. Reed; "Inverse condemnation"; In re Acquisition of Land-Virginia Park; Procedural due process; York v. Civil Serv. Comm'n
Court: Michigan Court of Appeals (Unpublished)
Case Name: Morelli v. Tudor
e-Journal Number: 51655
Judge(s): Per Curiam – Murphy, Stephens, and Riordan
Concluding, inter alia, that defendant-Tudor's first argument on appeal was not properly preserved and that it would likely have been rejected by the trial court on the basis of res judicata, the court affirmed the trial court's order granting the plaintiffs summary disposition in this boundary line dispute. The parcels of land that plaintiffs and Tudor owned originally were a portion of a larger parcel owned by the Ls. The Ls split their land into parcels in 1979. They commissioned a survey of the property, which was performed by F. He marked the corners of each parcel with iron rods and caps, and recorded the survey on 8/7/79. The Ls then sold one of the newly marked parcels of property by warranty deed. That parcel of land was eventually transferred three more times by warranty deed and was then transferred to Tudor, also by warranty deed, on 9/15/00. Each of the warranty deeds related to Tudor's parcel used F's property description. The parcel of land that plaintiffs own was situated adjacent to the northern border of Tudor's parcel. In 1999, the county commissioned a survey of the property, which was completed by W, who apparently did not reference the F survey when placing his corner markers that established the boundary between Tudor's and plaintiffs' parcels. The markers from the W survey were placed 30 feet north of the F markers. Tudor asserted that the W survey was consistent with a government survey completed in the 1930s. It did not appear that the W survey was recorded, and there was no evidence that the W survey was ever referenced in any deed. In 2002, plaintiffs purchased their parcel, which was separated from Tudor's parcel by a fence that sat on the boundary line as set forth by the F survey. Tudor approached plaintiffs seeking to purchase a 30 foot wide strip of land that ran the length of the border between the parcels. They rejected her offer. Tudor hired a surveyor to conduct a survey of the land. That surveyor used the W corner markers, as opposed to the F corner markers, and determined that the property line was situated 30 feet north of the fence and the F markers. Thus, Tudor removed the fence between the properties and erected a new fence, which was 30 feet north of the original one. Plaintiffs sued to quiet title to the strip of land at issue. The trial court ruled for plaintiffs, determining that the doctrine of repose established the F corner markers as the markers that established the property boundaries. The court previously affirmed that decision. Later, plaintiffs filed this case, alleging that Tudor had constructed a fence 33 feet north of the property line as determined by the trial court and affirmed by the court in the prior case. Tudor asserted in the trial court that the county had completed a new survey in 2007 and placed a new corner monument, and she built the fence after measuring from the new corner monument. However, her brief on appeal did not even mention the 2007 survey. The court concluded that "absent any reference to the 2007 survey or plaintiffs' alleged expansion of their property rights granted by this Court, there are no new facts or arguments that would have precluded the application of" res judicata. Tudor's argument on appeal solely related to the F survey and could not be read as anything other than an attempt to relitigate the court's prior decision. "To now argue that prior decision was legally wrong is to seek the proverbial second bite of the apple."
Full Text Opinion