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Petersen Financial LLC v. Twin Creeks LLC

Court of Appeals of Michigan

November 22, 2016

PETERSEN FINANCIAL LLC, Plaintiff-Appellant,
v.
TWIN CREEKS LLC, Defendant, and TWIN CREEK ESTATES ASSOCIATION, JAMES SCHAEFER, JILL SCHAEFER, GARY BURGHGRAEF, and MELANIE BURGHGRAEF, Defendants-Appellees. PETERSEN FINANCIAL LLC, Plaintiff-Appellee,
v.
TWIN CREEKS LLC, TWIN CREEK ESTATES ASSOCIATION, GARY BURGHGRAEF, and MELANIE BURGHGRAEF, Defendants, and JAMES SCHAEFER and JILL SCHAEFER, Defendants-Appellants.

         Kent Circuit Court LC No. 14-006711-CH

          Before: SAWYER, P.J., and MARKEY and O'BRIEN, JJ.

          PER CURIAM.

         In Docket No. 329019, plaintiff appeals from the trial court's grant of summary disposition in favor of defendants on plaintiff's claim for slander of title and tortious interference with a business expectancy. In Docket No. 329622, defendants James and Jill Schaefer appeal from the trial court's grant of summary disposition in favor of plaintiff on plaintiff's claim to quiet title, specifically that certain deed restrictions do not apply to their property. We affirm.

         This dispute involves a parcel located in the Twin Creeks development in Cannon Township in Kent County. The time line begins in 2000, when defendant Twin Creeks Development, LLC, owned all of the lots in the development. Thereafter, the following relevant events occurred:

• In 2002, most of the lot at issue here was conveyed by Twin Creeks Development to Carla Wolterstoff, with the remainder of the lot conveyed in 2004.
• In 2006, Twin Creeks, LLC, [1] recorded a document entitled "Deed Restrictions" covering all of the lots in the development; the date on the documents suggests that it had been executed four years earlier, in 2002.
• Carla Wolterstoff lost the lot due to a tax lien, with the Kent County Treasurer obtaining title early in February 2011.
• Plaintiff purchased the lot at a foreclosure sale in September 2011.

         The individual defendants, the Schaefers and the Burghgraefs, own parcels within the development.[2] According to plaintiff, it was unaware of the deed restrictions when it purchased the property, but when it listed the property for sale, Gary Burghgraef sent an email to plaintiff's real estate agent notifying the agent that the property was subject to deed restrictions. (Plaintiff's Exhibit 13.) Additionally, according to an affidavit by plaintiff's real estate agent, she had been "contacted several times by the Defendants in this matter who informed me that there were deed restrictions on Plaintiff's property and that they intended to enforce those restrictions." According to the real estate agent, they passed this information along to prospective buyers, who thereafter lost interest as a result.

         Based upon this, plaintiff filed the instant action. Ultimately, the trial court granted summary disposition in favor of defendants on the claim for slander of title. The trial court opined as follows:

In order to prevail on a common-law slander of title claim, a plaintiff must prove "that the defendant maliciously published false statements that disparaged a plaintiff's right in property, causing special damages." Fed Nat Mortg Ass'n v Lagoons Forest Condo Ass'n, 305 Mich.App. 258, 270; 852 N.W.2d 217 (2014).
The dispositive issue here is the publication requirement. Plaintiff has produced no evidence that Defendants made comments or other communications regarding the deed restrictions to anyone other than Plaintiff and Plaintiff's real estate agents. "Publication to an agent of the plaintiff who is acting at plaintiff's behest and on his behalf is tantamount to a publication to the plaintiff himself, and as such does not fulfill the publication requirement." Delval v PPG Indus, Inc, 590 N.E.2d 1078, 1081 (Ind App, 1992).
Since Plaintiff cannot satisfy the publication requirement, its slander of title claim fails and must be dismissed ...

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