CITY OF ST CLAIR SHORES V JAMES B SHOVLIN
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF ST. CLAIR SHORES,
UNPUBLISHED
July 1, 2010
Plaintiff/Counter-DefendantAppellee,
v
No. 290441
Macomb Circuit Court
LC No. 2007-005458-CZ
JAMES B. SHOVLIN,
Defendant/Cross-Defendant,
and
MARY E. SHOVLIN,
Defendant/CounterDefendant/Cross-Plaintiff/CrossDefendant-Appellee,
and
CHARLES SMITH, LINDA BROCK and
RICHARD ANGLEBRANDT,
Defendants/Cross-DefendantsAppellees,
and
ANTHONY J. SCICLUNA and KIMBERLY C.
SCICLUNA,
Defendants/CrossDefendants/Cross-PlaintiffsAppellants.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ
PER CURIAM.
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Defendants, Anthony J. Scicluna and Kimberly C. Scicluna, appeal as of right the trial
court’s February 17, 2009, stipulated order dismissing all of the parties’ claims with prejudice
and closing the case. In particular, the Sciclunas challenge the January 26, 2009, order1 denying
their motion for partial summary disposition as to their cross-claim against James B. and Mary E.
Shovlin,2 Charles Smith, Linda Brock, and Richard Anglebrandt, and as to Shovlin’s cross-claim
against Sciclunas. Because the Scicluas have not shown error on appeal, we affirm.
This case arises out of the parties’ dispute over who owns and is responsible for the
maintenance of a seawall that borders the Sciclunas’ property (Lot 4) and a canal. The bottom of
the canal is owned by Shovlin (Lot 2), Smith and Brock (Lot 1), and Anglebrandt (Lot 3), and a
common waterway easement runs over their properties for 30 feet to allow for the canal and
access to Lake St. Clair.
We review a trial court’s decision to grant or deny summary disposition under MCR
2.116(C)(10) de novo. Universal Underwriters Ins v Kneeland, 464 Mich 491, 495-496; 628
NW2d 491 (2001). We must view the affidavits, pleadings, and other documentary evidence in
the light most favorable to the nonmoving party, and decide whether the moving party has shown
the existence of a genuine issue of material fact. Quinto v Cross & Peters Co, 451 Mich 358,
362-363; 547 NW2d 314 (1996); MCR 2.116(C)(10). Initially, the moving party bears the
burden of supporting its claim. Id. The burden then shifts to the non-moving party to establish
that a genuine issue of material fact exists. Id. If no genuine issue of material fact exists, the
moving party is entitled to judgment as a matter of law. Id. A request for declaratory relief is an
action in equity, the resolution of which this Court reviews de novo. Lake Angelus v Oakland Co
Rd Comm, 194 Mich App 220, 223; 486 NW2d 64 (1992).
The Sciclunas’ cross-claim against Shovlin, Brock, Smith, and Anglebrandt asserted
unjust enrichment and requested relief under MCR 2.605, seeking a declaration that the other
defendants owned the seawall and had a duty to maintain it. Shovlin filed a cross-claim against
Sciclunas asserting that the seawall encroached into the canal and easement running over the
canal, which was granted in the original platting of the Abbott’s Subdivision, Assessor’s Plat No.
52.
The trial court has the discretion to declare the rights and legal responsibilities of parties
to an actual controversy. Allstate Ins Co v Hayes, 442 Mich 56, 65; 499 NW2d 743 (1993);
MCR 2.605(1)(a). A claim of unjust enrichment requires a showing that the defendant received
some benefit from the plaintiff and that plaintiff thereby suffered some inequity. Belle Isle Grill
Corp v Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003).
1
The January 26, 2009, order did not resolve the last pending claims in the case; thus, Sciclunas
did not file a claim of appeal until the February 17, 2009, order resolved all the remaining
claims.
2
The record reflects that James B. Shovlin and Mary E. Shovlin were husband and wife, and that
James died on December 4, 2006. We therefore refer to Mary E. Shovlin as “Shovlin”
throughout this opinion.
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We conclude that the trial court correctly denied the Sciclunas’ motion for summary
disposition as to their cross-claim against Shovlin, Brock, Smith, and Anglebrandt, and correctly
denied Sciclunas’ motion for summary disposition as to Shovlin’s cross-claim against Sciclunas.
The parties do not dispute that the seawall, as reflected in the parties’ jointly-obtained
2008 land survey, is presently located on Lots 1, 2, and 3 and encroaches on to the easement over
that portion of those lots. The parties also do not dispute the existence of the waterway easement
over the canal, which is a “perpetual easement but in common with all the other present and
future owners of land in said subdivision, over the water easement as designated on the recorded
plat of Assessor’s Plat No. 52, St. Clair Shores, for ingress and egress to and from Lake St.
Clair.” Further, the parties do not dispute that St. Clair Shores Ordinance § 35.014(1) requires
the owner or occupant of property that abuts a canal to construct and maintain a seawall to
prevent erosion, flood, property damage, and personal injury.
It is undisputed that the Abbott’s Subdivision was platted in 1941 according to the
assessor’s plat number 52. If land at issue is “disposed of by reference to an official plat, the
boundary lines shown on the plat control.” Mumaugh v McCarley, 219 Mich App 641, 649; 558
NW2d 433 (1996). According to the plat, the western boundary line of Lot 4 abuts the canal and
the eastern boundary lines of Lots 1, 2, and 3. There is no indication from the plat that a seawall
extends out from Lot 4 into the canal and Lots 1, 2, and 3. The deed from Karin Warriner, the
previous owner of Lot 4, to the Sciclunas specifically referenced the official plat in giving the
legal description of the deeded property as “Lot 4, Assessor’s Plat No. 52, as recorded in Liber
21, Page 20, of Plats, Macomb County Records.” Thus, the platted boundary lines control.
Mumaugh, 219 Mich App at 649. The seawall at issue is not on Lot 4.
The evidence presented to the trial court reflects that the 1973 permit to replace the
seawall and the 1986 permit to repair the seawall were both obtained by the previous owners of
Lot 4, Philip Arbour and Warriner. Arbour’s permit application for the seawall contains a letter
from plaintiff providing that the seawall permit was approved “[s]ubject to [the] plans and
application submitted AND subject to [the] north end lining up with lot line.” Regarding the
1986 seawall permit, Warriner’s affidavit indicates that, as the previous owner of Lot 4, Warriner
believed the seawall was her responsibility, she contracted with a company to have a portion of
the seawall replaced in 1986 because it was collapsing into the canal, she was aware that the
waterway easement abutted the property line of Lot 4, she understood that she owned the
seawall, and she advised the Sciclunas that the seawall was the responsibility of the owners of
Lot 4. In addition, St. Clair Shores Building Inspector Dennis Cairns’ testimony established that
city ordinances require the owner or occupant of property abutting a canal to construct a barrier
or wall to prevent erosion or flooding; permits for seawalls contain a provision indicating that
construction must be “within legal property lines”; nothing in his files reflected any involvement
of the owners of Lots 1, 2, or 3 with respect to the seawall; seawalls may move over time;
according to his records, Lot 4 maintained the seawall; the seawall was currently encroaching on
the 30-foot water easement; he did not know exactly where the seawall was located 10 to 20
years previous; it was likely that the seawall may actually have been constructed on Lots 1, 2,
and 3.
The trial court held that because the location of the seawall before the 2008 survey was
unknown and because the Sciclunas claimed that the seawall was not on their property line, no
claim would lie for acquiescence to the seawall as a boundary line. See Kipka v Fountain, 198
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Mich App 435, 439; 499 NW2d 363 (1993). A claim of acquiescence to a boundary line requires
a showing that the parties acquiesced to that line as the boundary line for a statutory period of 15
years; the possession need not be hostile or without permission. Sackett v Atyeo, 217 Mich App
676, 681-683; 552 NW2d 536 (1996). The trial court in this case correctly found that a claim for
acquiescence would not be applicable to these circumstances. The location of the seawall before
2008 was unknown and had shifted over time. There was no evidence of a dispute and
agreement or an intention to deed to a marked boundary. Rather, the Sciclunas indicate they did
not treat the seawall as their property line. Further, the deed did not specifically define the
western Lot 4 property line as the seawall, and the 2008 survey showed that the western property
line and the seawall did not coincide. Thus, “[t]he record does not reveal any substantial period
of time when the adjoining property owners thought that the retaining wall was the boundary
line.” Kipka, 198 Mich App at 439.
The trial court also concluded that there would be no claim for adverse possession. “A
claim of adverse possession requires clear and cogent proof that possession has been actual,
visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory period of
fifteen years.” Kipka, 198 Mich App at 439. The trial court’s ruling was correct because the
Sciclunas contended that they had permission to use the seawall and strip of land along the
seawall, disclaimed any ownership, and there was no evidence that any seawall was installed
with an intent to dispossess the adjacent lot owners of a portion of their properties. Again, the
record reflects that the seawall shifted over time and buckled into the canal and was pulled back
and repaired by Lot 4 owners. Thus, there was no evidence that the same portion of the land and
seawall as depicted in the 2008 survey were continuously occupied for the statutory period.
Moreover, the trial court correctly held that Shovlin, Smith, Brock, and Anglebrandt
remained in possession of their lots to the legal property lines, and Sciclunas failed to provide
any arguable evidence that the seawall was owned and maintained by the owners of Lots 1, 2,
and 3. The trial court thus did not err in denying the Sciclunas’ motion for summary disposition
on their claims of unjust enrichment and declaratory relief against Shovlin, Smith, Brock and
Anglebrandt. There was no evidence that the owners of Lots 1, 2, and 3 ever constructed,
repaired, or maintained the seawall or otherwise claimed an ownership interest in the seawall.
The evidence reflects that the owners of Lot 4 have always been responsible for fixing the
seawall. The original plat for the subdivision shows Lot 4 as abutting the canal. By ordinance,
the owners of Lot 4, therefore, had responsibility to construct, maintain, and repair the seawall.
The 2008 boundary survey, which is undisputed, shows that the seawall encroaches onto Lots 1,
2, and 3, and into the waterway easement in the canal. Thus, when the Sciclunas repaired the
seawall in 2007, Smith, Shovlin, Brock, and Anglebrandt were not unjustly enriched. They did
not receive any benefit from the Sciclunas and the Sciclunas suffered no inequity. Belle Isle
Grill Corp, 256 Mich App at 478. Similarly, the trial court correctly denied Sciclunas’ motion
for summary disposition against Shovlin’s cross-claim.
For similar reasons, we further conclude that the trial court correctly granted Shovlin,
Smith, Brock, and Anglebrandt summary disposition pursuant to MCR 2.119(I)(2) as to the
Sciclunas’ cross-claim because there was no disputed issue of material fact regarding ownership
of the property and its encroachment onto the easement and Lots 1, 2, and 3. These parties were
entitled to summary disposition pursuant to MCR 2.119(I)(2) as a matter of law. See Washburn
v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000).
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Further, the trial court properly excluded as hearsay the Sciclunas’ statements in their
affidavits that the previous owners of Lot 4 told them that they were not responsible for and did
not own the seawall. MRE 801(c); MRE 802; MCR 2.116(G)(6); Maiden v Rozwood, 461 Mich
109, 120-121; 597 NW2d 817 (1999). We also find no error in the trial court’s decision to
disregard the Sciclunas’ 1999 mortgage survey that stated on its face that it was not to be used to
establish legal property lines. Moreover, although the Sciclunas contend that Shovlin’s prior
threat of litigation in 2005 was evidence that Shovlin claimed ownership of the seawall, we reject
this contention after reviewing the proposed complaint and accompanying letter to the Sciclunas.
Shovlin’s proposed complaint did not allege that she owned the seawall; rather, the complaint
alleged that the Sciclunas wrongfully occupied Shovlins’ property on the bottomland of the canal
by installing a docking platform, mooring watercraft, and a pumping device.
The trial court also properly held that Shovlin was entitled to summary disposition
regarding her cross-claim against the Sciclunas. The trial court’s opinion and order did not
specifically address that Sciclunas’ statute of limitations defense. However, a party is not
punished for a trial court’s failure to decide an issue that was properly raised. Peterman v Dep’t
of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994).
“A trespass is an unauthorized invasion upon the private property of another.” Cloverleaf
Car Co v Phillips Petroleum Co, 213 Mich App 186, 195; 540 NW2d 297 (1995). Additionally,
an easement grants the right to use another’s land for a specified purpose. Schadewald v Brule,
225 Mich App 26, 35; 570 NW2d 788 (1997). An easement may not be misused by materially
increasing the burden on the servient estate or by creating a new or additional burden. Id. at 36.
In the present case, the 2008 survey clearly shows that the seawall encroaches onto the property
of Lots 1, 2, and 3, and the waterway easement that was intended to benefit all present and future
owners of land in the subdivision by providing ingress and egress to Lake St. Clair. There was
no evidence that any of those lot owners authorized such an intrusion. Thus, the seawall was an
unauthorized, physical intrusion that trespassed onto their properties and wrongfully encroached
onto the easement by obstructing the ingress and egress use granted in the easement.
MCL 600.5805(10) provides that “[t]he period of limitations is 3 years after the time of
the death or injury for all other actions to recover damages for the death of a person, or for injury
to a person or property.” The period of limitations for actions to recover possession of land is 15
years. MCL 600.5801(4).
The Sciclunas contend that the statute of limitations period for trespass should have
begun to run in 1973 when Arbour repaired the seawall. As noted by the trial court, the location
of the seawall before the 2008 survey was unknown, and the record evidence supports this
conclusion. Thus, we conclude that the statute of limitations period had not run regarding a
claim for trespass. This is not a case where a single trespass occurred in 1973 and no subsequent
trespassory actions occurred thereafter. Rather, the record reflects that the seawall was
continually repaired over the years and its location shifted over time, and its precise location is
unknown before 2008. Warriner performed maintenance to the seawall during the time she
owned Lot 4 until 1999, and the Sciclunas used the seawall in 2005 to moor a docking platform,
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watercraft, and water pump, and they repaired the seawall in 2007. Thus, the trespass action
accrued “at the time the wrong upon which the claim is based was done regardless of the time
when damage results,” i.e., even as late as when Sciclunas used and repaired the seawall in 2005
and 2007. MCL 600.5827.3
In addition, regarding the claim that the seawall interfered with the easement, we
conclude that a 15 year statute of limitations would apply under the circumstances because this
case involves an action to remove an obstruction to an existing easement. Terlecki v Stewart,
278 Mich App 644, 662-663; 754 NW2d 899 (2008), citing Longton v Stedman, 196 Mich 543,
545; 162 NW 947 (1917). Thus, the statute of limitations on this claim would begin to run when
the 15-year time period for adverse possession by the Sciclunas would commence. As noted,
supra, and as the trial court held, a claim of adverse possession would not be applicable under
the present circumstances; thus, the statute of limitations on the easement interference claim had
not yet begin to run.
The Sciclunas also raised the defense of laches. Generally, the party claiming laches
must show that he was prejudiced by the opposing party’s unexplained or inexcusable delay in
that there has been a material change in condition. Wayne Co v Wayne Co Retirement Comm,
267 Mich App 230, 252; 704 NW2d 117 (2005). The Sciclunas have failed to create a genuine
issue of material fact regarding the defense of laches. They have provided no evidence that they
have been prejudiced by any delay.
The Sciclunas also challenge on appeal the trial court’s decision to remedy the situation
by ordering replacement of the seawall and movement back to the property line of Lot 4 in five
years. The trial court’s opinion reflects that it considered the hardships and equities of the
situation in determining what relief to provide, and this relief was not disproportionate under the
circumstances. Kratze v Independent Order of Oddfellows, Garden City Lodge No 11, 442 Mich
136, 142; 500 NW2d 115 (1993). The trial court noted that the five-year time period was
reasonable based on the Sciclunas’ reference to Cairns’ testimony that he believed the existing
seawall would last a few more years. The trial court considered the hardships and equities to the
parties in reaching a decision regarding how to remedy the situation, and its ordered relief was
3
The discovery doctrine and doctrine of continuing wrongs have been abrogated in nuisance and
trespass claims. See Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club,
283 Mich App 264, 285, 288; 769 NW2d 234 (2009), Trentadue v Buckler Automatic Lawn
Sprinkler Co, 479 Mich 378, 382, 389-394; 738 NW2d 664 (2007). Nonetheless, in the present
circumstances, there was evidence that the “acts” causing the trespassory injury continued to
occur. The record reflects that the seawall was repaired, maintained, and replaced over the years,
as recently as 2007, and that its location also shifted over the years.
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not disproportionate to the nature and extent of the injury.
Affirmed. Shovlin, Smith, Brock, and Anglebrandt, being the prevailing parties, may tax
costs pursuant to MCR 7.219.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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