STATE OF MICHIGAN
COURT OF APPEALS
PAT FOSTER, UNPUBLISHED
March 1, 2018
Plaintiff-Appellant,
v Nos. 336937; 337278
Allegan Circuit Court
GANGES TOWNSHIP and GANGES LC Nos. 16-056487-AW;
TOWNSHIP SUPERVISOR, 16-056487-AW
Defendants-Appellees.
Before: MURPHY, P.J., and O’CONNELL and K. F. KELLY, JJ.
PER CURIAM.
In Docket No. 336937, plaintiff, Pat Foster, appeals as of right the trial court’s order
granting defendants, Ganges Township and the Ganges Township Supervisor,1 summary
disposition under MCR 2.116(C)(7) (statute of limitations) and MCR 2.116(C)(10) (no genuine
issue of material fact). In Docket No. 337278, plaintiff appeals as of right the trial court’s order
granting the township’s request for attorney’s fees and costs. We affirm.
This case arises out of lengthy litigation concerning the use of private roads, Blue Goose
Avenue and Mallard Street, located in Recreation Development Subdivision No. 1 (the
subdivision) in Fennville, Michigan. Plaintiff owns 2½ lots in the subdivision. He asserts that
use of the private roads within the subdivision by adjacent property owners is causing flooding
damage to his property. Plaintiff appears to argue that by allowing adjacent property owners to
build homes and driveways on Blue Goose Avenue, the township failed to comply with the Land
Division Act (LDA), MCL 560.101 et seq., because the divided parcels of property were not
sufficiently “accessible” as required by the LDA, with the township failing to comply with the
rules and regulations of the Allegan County Road Commission.
Under MCL 560.109(1)(e), an application for a proposed division of land requires a
showing that “[e]ach resulting parcel is accessible.” “Accessible” is defined in MCL 560.102:
1
We shall refer to defendants collectively as “the township.”
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(j) “Accessible”, in reference to a parcel, means that the parcel meets 1 or
both of the following requirements:
(i) Has an area where a driveway provides vehicular access to an existing
road or street and meets all applicable location standards of the state
transportation department or county road commission under 1969 PA 200, MCL
247.321 to 247.329, and of the city or village, or has an area where a driveway
can provide vehicular access to an existing road or street and meet all such
applicable location standards.
(ii) Is served by an existing easement that provides vehicular access to an
existing road or street and that meets all applicable location standards of the state
transportation department or county road commission under 1969 PA 200, MCL
247.321 to 247.329, and of the city or village, or can be served by a proposed
easement that will provide vehicular access to an existing road or street and that
will meet all such applicable location standards.
Plaintiff filed a petition for a writ of mandamus in April 2016 after construction began on
a new home on Blue Goose Avenue. The township responded by filing a motion for summary
disposition under MCR 2.116(C)(7) and MCR 2.116(C)(10), along with a motion for sanctions.
The trial court granted the motion for summary disposition, concluding that plaintiff’s claims
were barred by the statute of limitations and that it could not grant the relief requested. In
addition, the trial court ordered that plaintiff pay a total of $12,824.74 in costs and attorney fees.
First, plaintiff argues that the trial court erred in granting the township’s motion for
summary disposition. We disagree.
We review de novo a ruling on a motion for summary disposition and the question
whether an action is barred by the statute of limitations. Stenzel v Best Buy Co, Inc, 320 Mich
App 262, 274; __ NW2d __ (2017). The parties agree that the 6-year limitations period in MCL
600.5813 governs.2 First, to the extent that plaintiff argues that the township erred in approving
the September 2000 land division application, the trial court properly concluded that the claim is
barred by the statute of limitations. It is undisputed that the land division application in question
was approved by the township in September 2000, which was almost 16 years before plaintiff
filed his petition for a writ of mandamus in this case. Plaintiff appears to argue both that the
period of limitations did not begin to run until the township started to follow its own regulations
and ordinances or that his claim did not accrue until the building started in 2016. At any rate,
any dispute involving the validity of the land division application accrued in 2000. Therefore,
the period of limitations had expired by the time of suit. Accordingly, the trial court properly
2
As the parties are in agreement on this matter, we shall analyze the case under the 6-year statute
of limitations; however, we do not decide whether said limitations period is actually applicable.
That said, we are addressing a sixteen-year delay in filing suit, so we are comfortable in
concluding that a statute of limitations barred plaintiff’s lawsuit.
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granted summary disposition pursuant to MCR 2.116(C)(7) on plaintiff’s claims involving the
land division application.
Second, to the extent that plaintiff contends that the township erred in granting the
adjacent property owner a building permit in February 2016, he should have challenged the
permit at the local administrative level, or filed a lawsuit in an attempt to prohibit the owner from
building the home or the city from issuing the permit. In 2000, plaintiff sought an injunction to
stop construction of another neighbor’s residence on Mallard Street. However, plaintiff
stipulated to a dismissal of his lawsuit after the zoning board of appeals granted a zoning
variance in favor of the neighbor. Therefore, plaintiff’s own actions show that he was aware of
additional courses of action to challenge the issuance of the building permit; seeking a writ of
mandamus was improper in this case. See Keaton v Village of Beverly Hills, 202 Mich App 681,
683; 509 NW2d 544 (1993) (stating that a writ of mandamus is an extraordinary remedy and “the
plaintiff must be without an adequate legal remedy”).
Finally, plaintiff has failed to provide any factual support for his claim that he has
suffered property damage from flooding as a result of the township failing to follow any state
laws or local regulations. First, he did not provide any documentation or affidavit from the road
commission showing that the township failed to follow any of its regulations. Additionally,
plaintiff has not provided any support for his contention that the flooding on his property was
caused by the building of new homes or driveways on Blue Goose Avenue. In fact, plaintiff
made similar claims against his neighbors in another case that was flatly rejected by this Court in
an unpublished opinion. There was evidence that water flow from Blue Goose Avenue was
already a problem before any new houses were built in 2015 or 2016. Plaintiff has also failed to
demonstrate that any action by the township resulted in additional flooding to his property.
Plaintiff failed to submit any relevant evidence in response to the township’s motion for
summary disposition; therefore, the trial court properly granted summary disposition in favor of
the township.
Next, plaintiff argues that the trial court abused its discretion in awarding attorney’s fees
and costs to the township. We disagree.
“This Court reviews a trial court’s ruling on a motion for costs and attorney fees for an
abuse of discretion.” Keinz v Keinz, 290 Mich App 137, 141; 799 NW2d 576 (2010). “An abuse
of discretion occurs when the decision results in an outcome falling outside the range of
principled outcomes.” Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 306 Mich App
203, 208; 854 NW2d 744 (2014). “A trial court’s findings of fact, such as whether a party’s
position was frivolous, may not be set aside unless they are clearly erroneous.” Keinz, 290 Mich
App at 141. “The trial court’s decision is clearly erroneous when, although there is evidence to
support it, the reviewing court is left with a definite and firm conviction that a mistake has been
committed.” Schadewald v Brule, 225 Mich App 26, 41; 570 NW2d 788 (1997). To the extent
that this Court is required to review a court rule or statute, “this Court reviews the issue de
novo.” Holton v Ward, 303 Mich App 718, 734 n 20; 847 NW2d 1 (2014).
“Awards of costs and attorney fees are recoverable only where specifically authorized by
a statute, a court rule, or a recognized exception.” Keinz, 290 Mich App at 141 (quotation marks
omitted).
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MCR 2.625(A) provides:
(1) Costs will be allowed to the prevailing party in an action, unless
prohibited by statute or by these rules or unless the court directs otherwise, for
reasons stated in writing and filed in the action.
(2) In an action filed on or after October 1, 1986, if the court finds on
motion of a party that an action or defense was frivolous, costs shall be awarded
as provided by MCL 600.2591.
And MCL 600.2591 provides:
(1) Upon motion of any party, if a court finds that a civil action or defense
to a civil action was frivolous, the court that conducts the civil action shall award
to the prevailing party the costs and fees incurred by that party in connection with
the civil action by assessing the costs and fees against the nonprevailing party and
their attorney.
(2) The amount of costs and fees awarded under this section shall include
all reasonable costs actually incurred by the prevailing party and any costs
allowed by law or by court rule, including court costs and reasonable attorney
fees.
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action . . . was to harass,
embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying
that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
(b) “Prevailing party” means a party who wins on the entire record.
“To determine whether sanctions are appropriate under MCL 600.2591[], it is necessary to
determine whether there was a reasonable basis to believe that the facts supporting the claim
were true at the time the lawsuit was filed.” Louya v William Beaumont Hosp, 190 Mich App
151, 162; 475 NW2d 434 (1991).
Here, the trial court concluded that plaintiff’s case was frivolous because the case had
already been litigated twice. The trial court believed that plaintiff’s primary purpose for filing
the petition for the writ of mandamus was to harass and injure the township because it continued
to put the township in a position in which it had to hire an attorney to defend against something
that had already been defended against.
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Based on the record, the trial court’s conclusion was not clearly erroneous. First, plaintiff
dismissed his lawsuit against his neighbor in 2000 after the zoning board of appeals concluded
that the neighbor could build a house on his Mallard Street property. Second, the trial court
determined that adjacent property owners had a valid easement to use Blue Goose Avenue and
Mallard Street in 2005. Third, plaintiff’s similar suit against others had been dismissed by the
trial court pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(10) in June 2015.
Therefore, at the time that he filed his petition for a writ of mandamus in April 2016,
plaintiff was aware that water drainage had been an issue on his property for over a decade
because he wrote a letter to other subdivision residents in 2001. In addition, plaintiff also knew
that the engineering report prepared in another case concluded that any accumulation of
rainwater on plaintiff’s property was the result of inadequate stormwater management and runoff
from Blue Goose Avenue. Plaintiff did not offer any evidence to contradict this finding. Thus,
the evidence showed that water flowed onto plaintiff’s property from Blue Goose Avenue long
before any new houses were built in 2016. As a result, the trial court did not clearly err in
concluding that plaintiff’s lawsuit was frivolous. Accordingly, the trial court did not abuse its
discretion in awarding attorney fees and cost to the township.
Affirmed. Having fully prevailed on appeal, the township is awarded taxable
costs under MCR 7.219.
/s/ William B. Murphy
/s/ Peter D. O'Connell
/s/ Kirsten Frank Kelly
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