Residents of Fresh Air Park Subdivision v. Pointe Rosa Homeowners Ass'n
| Decision Date | 23 September 2021 |
| Docket Number | 355011 |
| Parties | RESIDENTS OF FRESH AIR PARK SUBDIVISION, KATHLEEN DECKERT, DEBRA YERKE, FRED HENNEKAM, LISA HENNEKAM, MICHELLE DEW, JAMES HUSKISSON, HENRY BELCHER, RYAN MUYOL, JANET STEPHENS, THOMAS BAGNASCO, GIOVANNI RENNA, REBECCA SMITH, TROY DRISKELL, LEROY DAVIS, MERRILL DAVIS, DANIEL GRUSECKI, BONNIE GRUSECKI, PAUL MILIOTO, TOM MITCHELL, DANIEL MCBRIDE, PATRINA BUSH, LAWRENCE GALLO, JOE LONG, GREGORY PROCTOR, MATTHEW FISHER, MOSHEN KAMBOD, and DEBORAH HENDERSON, Plaintiffs-Appellants, v. POINTE ROSA HOMEOWNERS ASSOCIATION, INC., VICKI CONWELL, LARRY LEE, ARIANNE LEE, WILLIAM OPATICH, PATRICK OPATICH, THEODORE BANK, THOMAS PALKA, SETTLER PROPERTIES, LLC, GARY WILLERHAUSEN, KARA WILLERHAUSEN, RICHARD DEGRANDE, SUSAN DEGRANDE, ETHAN CUENY, STEVEN RICHTER, GILLIAN RICHTER, CRAIG BARDILL, ROY RILEY, JACQUELINE RILEY, JOHN SWOFFER, MARK POLENZ, LINDA BROWNING, JAMES WROBEL, DEPARTMENT OF TREASURY, and JOHN BROOKES, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LC No. 2019-001255-CH
Before: Cavanagh, P.J., and K. F. Kelly and Redford, JJ.
Plaintiffs lot owners in the Fresh Air Park Subdivision in Harrison Township, appeal as of right the trial court's opinion and order granting summary disposition in favor of defendants, lot owners in the neighboring Pointe Rosa Subdivision No. 1, and thereby dismissing plaintiffs' claims for nuisance, negligence, and declaratory relief pursuant to MCR 2.116(C)(10).[1] Finding error warranting reversal, we reverse and remand for further proceedings.
Defendants are residents of the Pointe Rosa Subdivision No. 1 in Harrison Township. Defendants' lots abut a man-made canal, Channel 1. Plaintiffs are residents of the Fresh Air Park Subdivision, which is located on the other side of Channel 1. To access their homes, plaintiffs are required to travel along Elm Lane, a private road that runs adjacent to Channel 1. A five-foot strip of land (the "five-foot strip"), which is owned by the state of Michigan separates Elm Lane from Channel 1. At issue in this case is the extent to which defendants are responsible for maintaining the western seawall of Channel 1, which abuts the five-foot strip along Elm Lane. Plaintiffs allege that defendants' failure to repair and maintain the western seawall has allowed water to infiltrate the five-foot strip adjacent to Elm Lane, thereby causing erosion and damage to Elm Lane and plaintiffs' properties.
An appeal involving ownership and property rights to Channel 1 and the adjacent five-foot strip was previously before this Court in Fry v Kaiser, 60 Mich.App. 574; 232 N.W.2d 673 (1975), in which the homeowners of both Pointe Rosa Subdivision No. 1 and Fresh Air Park Subdivision were defendants. Id. at 576. The plaintiff in that case was one of the original developers and a successor in interest of Pointe Rosa Subdivision No. 1. This Court held that the plaintiff developer was the owner of the land beneath Channel 1 and the five-foot strip, [2] but that the defendant homeowners of Pointe Rosa Subdivision No. 1 had "an easement right of way to use the channels for navigational purposes." Id. at 577, 580. This Court also addressed who was responsible for maintaining Channel 1, including the seawalls, and held that the defendant homeowners, as the dominant lot owners having an easement right of way to use the channels for navigational purposes, were required to "maintain channel one and the sea walls abutting it." Id. at 580.
In 2019, plaintiffs filed the instant action against the defendant lot owners, the state defendants, and the Pointe Rosa Homeowners Association, alleging that they "failed and refuse[d] to maintain Channel 1 and the [western] seawall," causing significant erosion and water damage to Elm Lane. Plaintiffs raised claims for nuisance, negligence, and declaratory relief. The trial court dismissed the claims against the Pointe Rosa Homeowners Association, [3] and the state defendants filed a notice of transfer to the Court of Claims. Thereafter, the remaining defendant lot owners filed a renewed motion for summary disposition under MCR 2.116(C)(7), (8), and (10), alleging that plaintiffs' nuisance claim was deficient as a matter of law because the state of Michigan was the owner of Channel 1, but was no longer a party to the litigation, and therefore, defendants did not have ownership and control of the western seawall. Defendants also questioned plaintiffs' attempt to equate defendants' easement for navigational purposes with a duty owed to plaintiffs. Defendants claimed that an easement holder is not permitted to make improvements to the servient estate that are unnecessary for the effective use of the easement and because the purpose of the easement was for navigation, they were not required to make any improvements to the western seawall that were unnecessary to the effective use of Channel 1 for navigation purposes. Additionally, defendants argued that their easement rights were contractual in nature, and plaintiffs lacked standing to enforce the easement because they were not parties to it. Lastly, defendants submitted that plaintiffs failed to demonstrate that defendants owed them a duty of care independent of any contractual duties under the easement.
Plaintiffs opposed this dispositive motion, alleging that defendants' easement provided defendants with possession or control of Channel 1 and the seawalls abutting it, and that defendants had allowed the western seawall to fall into a state of disrepair. Plaintiffs submitted evidence to demonstrate that the condition of the western seawall was causing damage to plaintiffs' properties and to Elm Lane, and they also presented evidence detailing the impact of the damage on Elm Lane, their homes, and the community.
The trial court ruled that plaintiffs lacked standing to directly enforce the easement under a contractual theory because they were not parties to the easement. In addressing plaintiffs' nuisance claim, the court recognized that to prevail under a theory of nuisance, plaintiffs were required to prove that defendants "owned or controlled the property from which the nuisance arose." The court noted that it was undisputed that defendants did not own Channel 1 or the western seawall, and that they were granted an easement only for navigational purposes. The court concluded that, "[t]o this limited end, defendants are obligated to dredge and maintain the canals, including the repair and maintenance of the western seawall," and therefore, had "limited control over the property for a specified purpose pursuant to the easement." The trial court held that plaintiffs had "not proffered a factual or legal basis to establish that the western seawall is necessary to the effective use of Channel 1 for navigational purposes," and even assuming such a necessity, plaintiffs had "not proffered any evidence to establish that the current condition of the western seawall impairs the use of Channel 1 for navigational purposes." The court additionally held that plaintiffs "failed to cite any legal or factual authority for their argument that defendants are additionally required to maintain the western seawall to provide lateral support to the five-foot strip of land and Elm Lane as part of the effective use or proper enjoyment of the navigational easement." Accordingly, the court dismissed plaintiffs' nuisance claim, reasoning that because "reasonable minds could only conclude defendants do not owe a duty of lateral support to Elm Lane, defendants' actions or inactions in repairing and maintaining the western seawall could not be unreasonably interfering with plaintiffs' use of Elm Lane, or by extension their (plaintiffs') properties."
The trial court also dismissed plaintiffs' negligence claim, ruling that "[d]efendants' alleged failure to perform their easement obligations is a contract issue," plaintiffs were not parties to the easement, and plaintiffs failed to establish a duty of care "separate and distinct" from defendants' contractual easement obligations. Similarly, the trial court held that plaintiffs did not provide legal or factual support for their claim that defendants' obligations with respect to their navigational easement required them to maintain and repair the easement not only for the safe navigational use of Channel 1, "but also to prevent the injuries alleged by them including to provide lateral support to Elm Lane." In light of the dismissal of the nuisance and negligence claims, the court also dismissed the request for declaratory relief. This appeal followed.
Plaintiffs submit that the trial court erred by granting defendants' motion for summary disposition and thereby dismissing plaintiffs' claims for nuisance, negligence, and declaratory relief. We agree.
The trial court granted summary disposition in favor of defendants under MCR 2.116(C)(10). A trial court's ruling on a motion for summary disposition is reviewed de novo. Bennett v Russell, 322 Mich.App. 638, 642; 913 N.W.2d 364 (2018). Summary disposition is appropriate pursuant to MCR 2.116(C)(10) where there is "no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). When reviewing a motion for summary disposition challenged under MCR 2.116(C)(10), the court considers the affidavits, pleadings, depositions, admissions, and other admissible documentary evidence then filed in the action or submitted by the parties. MCR 2.116(G)(4), (G)(5); Puetz v Spectrum Health Hosps, 324 Mich.App. 51, 68; 919 N.W.2d 439 (2018).
The scope of an easement and the extent of the rights of a party under an easement are questions...
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