Mendelson v. Schmit

1

MARC MENDELSON and LISA MENDELSON, Plaintiffs/Counterdefendants-Appellees, v. ROBERTUS SCHMIT, Defendant/Counterplaintiff/Third- Party Plaintiff-Appellant, BANK OF AMERICA, Defendant, and MICHAEL SUCHOWSKI and ROXIE SUCHOWSKI, Third-Party Defendants.

Nos. 363177, 364285

Court of Appeals of Michigan

November 30, 2023

UNPUBLISHED

Oakland Circuit Court LC No. 2020-184854-CK

Before: MURRAY, P.J., and CAMERON and PATEL, JJ.

PER CURIAM

In Docket No. 363177, defendant/counterplaintiff/third-party plaintiff, Robertus Schmit, appeals by right the September 12, 2022 order, which granted summary disposition in favor of plaintiffs/counterdefendants, Marc and Lisa Mendelson, under MCR 2.116(C)(10) on their prescriptive easement claim. The September 12, 2022 order also dismissed Schmit's counterclaims for ejectment, nuisance, and trespass against the Mendelsons and denied, in part, Schmit's motion for summary disposition. In Docket No. 364285, Schmit appeals by leave granted^[1] a December 5, 2022 order, which denied Schmit's postjudgment motion for clarification. With respect to the September 12, 2022 order, we affirm in part reverse in part, and remand for further proceedings consistent with this opinion. Schmit's arguments concerning the December 5, 2022 order are moot, and the appeal in Docket No. 364285 is dismissed.

I. BACKGROUND

This case involves three adjacent properties on Middlebelt Road in West Bloomfield, which abut Walnut Lake. In 1985, Richard and Ruth Baidas purchased property located at 5565 Middlebelt Road (the Mendelson property). The Baidases purchased a boat, which was seasonally moored to a dock that remained in Walnut Lake year-round. The Baidases also installed a boat hoist, which was removed after the boating season. According to Ruth, the location of the boat hoist and the Baidases' boat changed over the years and there were never complaints from the neighbors concerning the location of the boat, the dock, or the hoist.

In 2008, Marc purchased the Mendelson property, which was advertised as including a dock and boat hoist. In 2009, third-party defendant, Michael Suchowski, who owns the property south of the Mendelson property, requested that Marc move his dock to the north so that Michael and his wife, third-party defendant, Roxie Suchowski, could have their own dock. Marc moved his dock to the north, which would remain in Walnut Lake year-round at all relevant times, and removed the boat hoist. After the Suchowskis installed their own dock, Marc moored his boat between the Suchowski dock and his dock.

In 2013, Schmit purchased the property to the north of the Mendelson property (the Schmit property). In 2020, Schmit discovered the Mendelsons' dock encroached onto a portion of his bottomlands. In September and November 2020, Schmit requested the Mendelsons remove the dock from his bottomlands. The Mendelsons did not do so and instead filed suit against Schmit in November 2020, alleging they had title to the bottomlands by adverse possession or, in the alternative, they had a right to use the bottomlands by a prescriptive easement. According to the Mendelsons, the dock had been on the bottomlands continuously since 1985. Schmit answered the Mendelsons' complaint and filed counterclaims against the Mendelsons.^[2] Schmit alleged claims of (1) ejectment, (2) nuisance, and (3) trespass. Schmit alleged the dock was not placed on his bottomlands until 2009. Schmit requested the trial court award him damages, and order the Mendelsons to remove the dock from his bottomlands.

The parties ultimately filed competing motions for summary disposition under MCR 2.116(C)(10). After hearing oral arguments on the motions, the trial court dismissed the Mendelsons' adverse possession claim, concluding the Baidases' and the Mendelsons' occupation of the bottomlands was not exclusive. The trial court held that the Mendelsons had a prescriptive easement, however, and dismissed Schmit's counterclaims. The appeal in Docket No. 363177 followed.

While the appeal in Docket No. 363177 was pending, Schmit moved the trial court to clarify the September 12, 2022 opinion and order to define the scope of the prescriptive easement. The trial court declined to do so, and Schmit sought and was granted leave to appeal in Docket No. 364285.^[3] Thereafter, the Mendelsons sought a writ of assistance from this Court. The motion was related to Schmit's installation of a dock, which the Mendelsons asserted blocked their access to the easement. This Court denied the motion "without prejudice to being re-filed once the appeal has been assigned to a case call panel." Mendelson v Schmit, unpublished order of the Court of Appeals, entered May 17, 2023 (Docket No. 363177).

II. STANDARDS OF REVIEW

We review equitable rulings de novo. 1373 Moulin, LLC v Wolf, 341 Mich.App. 652, 663; 992 N.W.2d 314 (2022). We also review "de novo a trial court's decision on a motion for summary disposition." Bailey v Antrim County, 341 Mich.App. 411, 421; 990 N.W.2d 372 (2022) (quotation marks and citation omitted). A "[d]e-novo review means that we review the legal issue independently, without deference to the lower court." Bowman v Walker, 340 Mich.App. 420, 425; 986 N.W.2d 419 (2022) (quotation marks and citation omitted).

A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim. When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact. A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ. [El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 N.W.2d 665 (2019) (quotation marks, citations, and emphasis omitted).]

"The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10)." Ass'n of Home Help Care Agencies v Dep't of Health & Human Servs, 334 Mich.App. 674, 684 n 4; 965 N.W.2d 707 (2020) (quotation marks and citation omitted). "Like the trial court's inquiry, when an appellate court reviews a motion for summary disposition, it makes all legitimate inferences in favor of the nonmoving party." Skinner v Square D Co, 445 Mich. 153, 162; 516 N.W.2d 475 (1994).

III. ANALYSIS

Schmit argues the trial court erred by granting summary disposition in favor of the Mendelsons on their prescriptive easement claim.

In Astemborski v Manetta, 341 Mich.App. 190, 196; 988 N.W.2d 857 (2022), we recently explained:

Land which includes or is bounded by a natural watercourse is defined as riparian. It is well established that a riparian owner enjoys certain exclusive rights, which include the right to erect and maintain docks along the owner's shore, and the right to anchor boats permanently off the owner's shore. A nonriparian owner, on the other hand, has a right to use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming, as well as the right to anchor boats temporarily. However, a riparian owner may grant nonriparian owners the right to access and enjoy a lake by easement or license.

An easement is a limited property interest; it is the right to use the land burdened by the easement for a specific purpose. [A]n easement may be created by express grant, by reservation or exception, or by covenant or agreement[.] Easements may also be acquired by prescription. [Alterations in original; quotation marks and citations omitted.]

Although an easement constitutes a property right, it is not a true ownership interest in land. Schumacher v Dep't of Natural Resources, 275 Mich.App. 121, 130; 737 N.W.2d 782 (2007). Rather, it is a limited right to use property owned by another, and that use is generally confined to a particular purpose. Id. at 130-131. "The land burdened by [an] easement is the servient estate, and the land benefited by the easement is the dominant estate." Astemborski, 341 Mich.App. at 197 (quotation marks and citation omitted; alteration in original).

The trial court concluded the Mendelsons had an easement by prescription to use a portion of the Schmit property's bottomlands and granted summary disposition in favor of the Mendelsons on their prescriptive easement claim.

An easement by prescription is based upon the legal fiction of a lost grant, and results from action or inaction leading to a presumption that the true owner of the land, by his acquiescence, has granted the interest adversely held. An easement by prescription results from use of another's property that is open, notorious, adverse, and continuous for a period of fifteen years.

[A] prescriptive easement is no more than an unopposed, continuous trespass [on another's property] for 15 years. If no single period of adverse use amounts to the 15-year statutory period, a party claiming a prescriptive interest may tack the possessory periods of their predecessors in interest to aggregate the 15- year period of prescription if the claimant can show privity of estate. [Id. at 197198 (second alteration in original; quotation marks and citations omitted).]

With respect to whether the dock was continuously encroaching on the Schmit property's bottomlands for the requisite 15-year period of prescription, Ruth testified there was a dock on the Mendelson property when she and Richard purchased it in 1985. While the Baidases replaced their dock in the 1990s, the new dock was placed in the same location as the previous dock.^[4] It is undisputed the dock remained in the same location until the spring...