Morse v. Colitti

Decision Date29 July 2021
Docket Number354720
PartiesRICHARD MORSE, Plaintiff/Counter defendant-Appellee, v. MARC COLITTI, also known as MARK COLITTI, and JOAN COLITTI, Defendants/Counter plaintiffs-Appellants, and BARRY COUNTY ZONING AND PLANNING, also known as BARRY CO ZONING AND PLANNING, and JAMES MCMANUS, Defendants.
CourtCourt of Appeal of Michigan — District of US

UNPUBLISHED

Barry Circuit Court LC No. 2013-000588-CH

Before: Ronayne Krause, P.J., and Beckering and Boonstra, JJ.

PER CURIAM

This property dispute between neighbors returns to this Court after being remanded to the trial court to resolve certain factual questions and to determine appropriate remedies. Defendants Marc and Joan Colitti[1] appeal by right from the trial court's judgment on remand after a bench trial. We affirm.

I. BACKGROUND

This Court previously set forth the following facts:

Plaintiff and defendants own lots in the West Beach neighborhood bordering Fine Lake in Barry County. The 1928 West Beach plat dedicated the "streets, alleys and parks" to "the use of the present and future lot owners." The plat designates a park (the Park) as running along the lakeshore, separating Fine Lake from platted Lots 1 through 26 (the front lots). Additionally, a 10-foot-wide "walk" (the Walk) exists between Lot 5, which is owned by defendants, and Lot 6, which is owned by plaintiff. In 2009, defendants used landscaping blocks to create a pathway, including a retaining wall, on the Walk. They also built a stairway from the pathway to the lake. They subsequently erected a wooden fence on the Walk within inches of the lot line separating the Walk and plaintiff's Lot 6. Defendants also own the back-lot property at 3406 West Shore Drive, which lies to the west of the West Beach plat but includes a strip of the southern 16 feet of Lot 44 in the West Beach plat. After defendants rented out the property at 3406 West Shore Drive, they built a dock on Fine Lake that was in line with the Walk.
Plaintiff filed suit in 2013, in part alleging and seeking monetary damages for trespass, nuisance, and the violation of the Barry County Zoning Ordinance (BCZO). Plaintiff additionally requested that the trial court (1) determine that he owned the fee to the center of the Walk, subject to an easement for ingress and egress; (2) determine that defendants had trespassed on his property and order defendants to remove all dirt, landscaping blocks, and fences from his portion of the Walk (and that, if defendants failed to do so and plaintiff removed the items, plaintiff would receive a judgment against defendants with damages trebled) (3) determine that defendants' erection of a dock at the end of the Walk violated the BCZO; (4) enjoin defendants from allowing their tenants at 3406 West Shore Drive to use the Walk to gain access to Fine Lake; and (5) grant plaintiff attorney fees and costs. Plaintiff later added a claim that as an owner of land abutting the Walk, he had a reversionary interest in the fee of the Walk to its center, which would become a possessory interest if and when the Walk was vacated. [Morse v Colitti (Morse I), 317 Mich.App. 526, 531-533; 896 N.W.2d 15 (2016) (footnotes omitted).]

In resolving summary disposition motions and after a bench trial, the trial court determined that the Walk was not subject to any reversionary interest held by Plaintiff, that all lot owners were entitled to use the Walk, that several of plaintiff's claims were barred by the running of the limitations period, and that defendants' dock overburdened the easement; it also declined to order defendants to remove the fence or the landscaping blocks. Id. at 531, 533.

On appeal, this Court held that the trial court erred, albeit likely due to a misstatement than a truly mistaken ruling, that the public at large had a right to use the Walk, but the trial court had not improperly treated the Walk and the Park as a single property feature. Id. at 533-536. This Court found that plaintiff had standing to challenge defendants' dock, the trial court properly declined to order that defendants' tenants be precluded from using the Walk, the trial court properly found that defendants' constructions did not violate the BCZO, and the trial court had partially erred in finding some of plaintiff's claims barred by the applicable statutes of limitations. Id. at 536-539, 547-555.

Relevant to this appeal, this Court summarized,

[t]he trial court erred by not determining that plaintiff owned a fee interest in the Walk to the centerline, by failing to determine the extent to which the fence and related structures encroached on plaintiff's property and to fashion an appropriate remedy, and by holding that the fence did not overburden the easement. Further, plaintiff's nuisance claim regarding the installation of gravel and landscaping blocks was not time-barred, nor was plaintiff's trespass claim (which we construe as a claim to quiet title) insofar as it sought injunctive relief. [Id. at 555.]

This Court held "that plaintiff and defendants each own a fee interest in one-half of the Walk, subject to the easement rights of lot owners generally," but the record did not permit a definitive determination of "to what extent the fence and related structures encroach onto plaintiff's portion of the Walk," so a remand was necessary to make that determination. Id. at 543-544. This Court went on to observe that "plaintiff and defendants each own a portion of the Walk while simultaneously possessing an easement right in the Walk," which entitled each of them to limited rights to repair and maintain the Walk and to make any use of their own half of the Walk that did not interfere with the other party's easement rights. Id. at 544-547. This Court opined that a fence might have some utility, but it expressed doubt that this particular fence was necessary to the effective use of the Walk in its current form and location; and when the entirety of the structures on the Walk were considered, those structures gave the impression that defendants had appropriated the walk. Id. This Court directed that on remand, the trial court should also "determine which portions [of the structures] erected on defendants' side of the midpoint of the Walk are valid uses of the property that do not conflict with the rights of the easement holders to use the Walk." Id. at 547.

On remand, plaintiff filed an amended complaint, generally alleging trespass and nuisance. Plaintiff sought an order requiring defendants to remove the pathway and stairway from plaintiff's half of the Walk, quieting title to his five feet of the Walk, removal of a retaining wall, and restoration of his half of the Walk to its previous grassy state. Defendants filed a counter complaint, in which they alleged that plaintiff invaded and hampered their easement rights in the Walk and the Park when he built or installed a (different[2]) concrete retaining wall, a stamped concrete platform, and a shed. Defendants requested that plaintiff be ordered to remove these structures. Defendants also asserted the affirmative defenses of laches and unclean hands. Following a one-day bench trial, the trial court found that the fence and the brick retaining wall in the pathway encroached on plaintiff's fee interest in one-half of the Walk. It also found that the fence, brick retaining wall, and stairway overburdened the easement. The trial court ordered defendants to remove the fence, brick retaining wall, and stairway. However, the trial court declined to order the walk restored to a grassy state. The trial court also declined to order removal or modification of the structures, including plaintiff's concrete retaining wall, at the end of the walkway, finding that the parties had constructed those structures with mutual consent "when they were on better terms." The trial court's order has been stayed pending this appeal.[3]

II. STANDARDS OF REVIEW

Following a bench trial, this Court reviews a trial court's conclusions of law de novo and its factual findings for clear error. Walters v Snyder, 239 Mich.App. 453, 456; 608 N.W.2d 97 (2000). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Id. "What may be considered a proper and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper use, as well as what may be necessary to plaintiff's beneficial use and enjoyment, are questions of fact to be determined by the trial court or jury." Cantieny v Friebe, 341 Mich. 143, 146; 67 N.W.2d 102 (1954) (quotation marks and citation omitted). "When reviewing a grant of equitable relief, an appellate court will set aside a trial court's factual findings only if they are clearly erroneous, but whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo." McDonald v Farm Bureau Ins Co, 480 Mich. 191, 197; 747 N.W.2d 811 (2008).

The scope of a trial court's powers and the application of the law of the case doctrine are both questions of law reviewed de novo by this Court. Hill v City of Warren, 276 Mich.App. 299, 305; 740 N.W.2d 706 (2007). As a general matter, trial courts have the plenary power to revisit issues they had previously decided so long as the proceedings are still pending in the trial court and are not pending on appeal. Id. at 307. However, any issues decided by an appellate court are binding on the trial court on remand and on this Court in a subsequent appeal irrespective of whether the prior appellate decision was correct. Id. at 307-308. The law of the case doctrine will not apply if there is a material and substantial change in the facts or the law, and it does not apply to issues not...

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