STATE OF MICHIGAN
COURT OF APPEALS
USL IMPROVEMENT ASSOCIATION,
March 13, 2012
OCEANA COUNTY DRAIN COMMISSIONER,
OCEANA COUNTY, and OCEANA COUNTY
BOARD OF COMMISSIONERS,
Nos. 297157; 298080
Oceana Circuit Court
LC No. 09-008200-CC
Before: METER, P.J., and FITZGERALD and MARKEY, JJ.
In Docket No. 297157, plaintiff appeals as of right from the trial court’s order granting
defendants’ motions for summary disposition. Plaintiff challenges the portion of the order
dismissing its inverse condemnation claims against the Oceana County Drain Commissioner (the
“Drain Commissioner”). In Docket 298080, plaintiff appeals by leave granted from the same
order, challenging the portion of the order that dismissed its “claim of appeal” from a special
assessment for the Holiday Lake Dam in Oceana County, as determined by the Drain
Commissioner and approved by the Oceana County Board of Commissioners (the “Board of
Commissioners”) in November 2009. We affirm.
Lake Holiday is a private lake located in Oceana County; the lake was created in the
1970s through the construction of a dam to impound water of the Golden Drainage District. The
water flows from Lake Holiday into Upper Silver Lake and then to Silver Lake and Lake
Michigan. Lake Holiday is regulated pursuant to the Inland Lake Level Act (ILLA), which is
contained in current Part 307 of the Natural Resource Environmental Protection Act (NREPA),
MCL 324.30701 et seq.1 In addition, the dam is subject to the Dam Safety Act, which is
contained in current Part 315 of the NREPA, MCL 324.31501 et seq.2
Responsibility for maintaining the Holiday Lake Dam rested with certain property
owners, including plaintiff, until 1999, when the trial court determined in a prior action that
responsibility for the repair and maintenance of the Holiday Lake Dam shall be with “Oceana
County through its Lake Holiday Assessment District.” Earlier in 1997, the Board of
Commissioners petitioned the trial court for a determination of the normal water level for Lake
Holiday and a special assessment district to pay for repairs to the dam. The trial court ordered
and adjudged the normal height of Lake Holiday to be 637 feet, which level would be allowed to
fluctuate and vary seasonally. The trial court also established a special assessment district,
which was ordered to include all parcels having frontage on Lake Holiday and plaintiff’s parcel,
which was described as the “[s]outh side of the dam as one parcel in the district.”
In July 2009, the Michigan Department of Environmental Quality issued an emergency
order to the Oceana County Drain Commission and dam owners, including plaintiff, requiring
that action be taken to address an imminent danger of the Holiday Lake Dam failing. The order
required an immediate draw down of the impoundment of the Holiday Lake Dam to the
maximum extent possible to minimize leakage, which was contributing to the erosion of the dam.
The impoundment was to remain drawn down until the dam was repaired to a point where it was
safe to restore water levels within the impoundment.
In October 2009, the Drain Commissioner determined that repair costs would amount to
$404,116. The Drain Commissioner also filed a motion in the prior 1997 action to confirm, for
purposes of clarification, the specific parcels included in the Lake Holiday Lake Level District.
In addition, plaintiff was given notice that a public review of the Drain Commissioner’s
proposed apportionment of a special assessment for the repairs would be conducted on
November 10, 2009.
Plaintiff filed this action on November 30, 2009, and filed a four-count “Amended
Complaint and Claim of Appeal” on December 21, 2009. Counts I and II raised challenges to
the Board of Commissioners’ alleged approval of the special assessment roll, as determined by
the Drain Commissioner in November 2009. Plaintiff relied on Part 307 of the NREPA, MCL
324.30701 et seq., as the basis for its “claim of appeal.” In counts III and IV, plaintiff alleged
that the Drain Commissioner’s entry onto its property and that excavation work involved in the
repair of the dam established claims for inverse condemnation and a taking of its property for
which it was entitled to compensation.
The ILLA was repealed in 1994 and reenacted without substantive change as Part 307 of the
NREPA. See In re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich App
142, 145; 762 NW2d 192 (2009).
See Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 395 n 21; 651 NW2d 756 (2002)
(discussing the reenactment of the Dam Safety Act in the NREPA).
On March 2, 2010, the trial court entered an order granting defendants’ motions for
summary disposition and dismissing plaintiff’s “Complaint and Claim of Appeal” with prejudice.
Thereafter, on March 23, 2010, plaintiff filed a claim of appeal in this Court in Docket No.
297157. On that same day, plaintiff filed a motion for reconsideration of the March 2, 2010,
order in the trial court, and also requested an opportunity to amend its “claim of appeal” with
respect to the special assessment decision. The trial court denied both motions. Plaintiff
subsequently filed an application for leave to appeal, which this Court granted in Docket No.
II. STANDARD OF REVIEW
We review de novo a trial court’s application of legal doctrines, such as res judicata, and
its interpretation of court rules and statutes. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d
493 (2008). A trial court’s ruling on a motion for summary disposition is also reviewed de novo.
Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). Further, “[i]nterpreting the
meaning of a court order involves questions of law that we review de novo on appeal.”
Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008). But
decisions concerning the meaning and scope of pleadings are reviewed for an abuse of
discretion. Dacon v Transue, 441 Mich 315, 328; 490 NW2d 369 (1992). “A trial court abuses
its discretion only when its decision results in an outcome falling outside the range of principled
outcomes.” Lockridge v Oakwood Hosp, 285 Mich App 678, 692; 777 NW2d 511 (2009).
III. DOCKET NO. 297157
Plaintiff argues that the trial court erred in dismissing its inverse condemnation and
taking claims, which were based on the Drain Commissioner’s entry onto plaintiff’s property and
the excavation work in connection with the repair and maintenance of the dam. We disagree.
The trial court did not state the subrule under which it granted defendants’ motions with
respect to the inverse condemnation and taking claims. But because the court considered
documentary evidence submitted by the parties and took judicial notice of its files and records
from prior actions in granting defendants’ motions, we review the trial court’s decision under
MCR 2.116(C)(10). Spiek v Dep’t of Transp, 456 Mich 331, 338; 572 NW2d 201 (1998);
Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d
174 (2007). A motion under MCR 2.116(C)(10) tests the factual support for a claim based on
substantively admissible evidence. MCR 2.116(G)(6); Maiden v Rozwood, 461 Mich 109, 120121; 597 NW2d 817 (1999). The motion should be granted if the evidence fails to establish a
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424-425; 751 NW2d 8 (2008). “There is a
genuine issue of material fact when reasonable minds could differ on an issue after viewing the
record in the light most favorable to the nonmoving party.” Id. at 425.
In an inverse condemnation action, a plaintiff must establish that governmental actions
amount to a constitutional “taking” of property. Dep’t of Transp v Tomkins, 481 Mich 184, 203;
749 NW2d 716 (2008). The Fifth Amendment of the United States Constitution and Const 1963,
art 10, § 2, prohibit the taking of private property for public use without just compensation.
Cummins v Robinson Twp, 283 Mich App 677, 706; 770 NW2d 421 (2009). Both temporary and
permanent takings require compensation. Id. at 716-717. But there must be a causal connection
between the government’s actions and the alleged damages. Id. at 708. Although a physical
taking is not required, in cases involving physical takings required acquiescence is at the heart of
the claim. Yee v City of Escondido, 503 US 519, 527; 112 S Ct 1522; 118 L Ed 2d 153 (1992).
“[T]he Takings Clause requires compensation if the government authorizes a compelled physical
invasion of property.” Id.
There is no dispute that the Drain Commissioner entered onto plaintiff’s property to
repair the dam. Nonetheless, plaintiff has failed to establish any basis for disturbing the trial
court’s determination that its prior May 25, 1999, order relieved various parties, including
plaintiff, of any responsibility for repair or maintenance of the dam by transferring that
responsibility to Oceana County. While the trial court interpreted the prior order as implying the
creation of an easement for the county’s Drain Commissioner to carry out its responsibilities, our
determination that summary disposition was appropriate under MCR 2.116(C)(10) is not
dependent upon whether the order created an “implied easement” as that phrase is understood in
the context of general property law.
“An easement represents the right to use another’s land for a specified purpose.”
Matthews v Dep’t of Natural Resources, 288 Mich App 23; 792 NW2d 40 (2010). In contrast to
a license, which constitutes mere permission to do some act or series of acts on property, the
easement is a limited property interest. Dep’t of Natural Resources v Camody-Lahti Real Estate,
Inc, 472 Mich 359, 378; 699 NW2d 272 (2005); Kitchen v Kitchen, 465 Mich 654, 659; 641
NW2d 245 (2002). Plaintiff also correctly asserts that an “implied easement” is understood as
arising by necessity. In the context of property law, it is understood to arise “only when the land
on which the easement is sought was once part of the same parcel that is now landlocked.”
Tolksdorf v Griffith, 464 Mich 1, 10; 626 NW2d 163 (2001).
But whether an “easement” in the formal sense could be implied from the trial court’s
May 25, 1999, order, such as to grant the Drain Commissioner a limited property interest in
plaintiff’s land to access and repair the dam, is not material in determining whether a compelled
physical invasion of plaintiff’s property occurred. It is sufficient that the Drain Commissioner
was granted permission to enter plaintiff’s property to perform certain acts. This is an obvious
implication of the trial court’s May 25, 1999, order relieving plaintiff of any responsibility for
repairing or maintaining the dam, and transferring that responsibility to Oceana County.
If plaintiff did not want to be relieved of that responsibility, it should have appealed the
May 25, 1999, order or taken steps to restore that responsibility. Given the lack of evidence that
plaintiff did anything to reacquire responsibility for repairs and maintenance, we conclude that
plaintiff failed to demonstrate a genuine issue of material fact regarding whether the Drain
Commissioner’s entry onto its property, or use of the property for repairs and maintenance of the
dam, was a compelled physical invasion.
The doctrine of acquiescence relied upon by the Drain Commissioner supports this
conclusion. The doctrine, which is a form of estoppel, has been described as follows:
“It may be stated as a general rule that if a person having a right, and
seeing another person about to commit, or in the course of committing, an act
infringing upon that right, stands by in such a manner as really to induce the
person committing the act, and who might otherwise have abstained from it, to
believe that he assents to its being committed, he cannot afterwards be heard to
complain of the act. This, it has been said, is the proper sense of the term
‘acquiescence,’ which, in that sense, may be defined as quiescence under such
circumstances as that assent may be reasonably inferred from it, and is no more
than an instance of the law of estoppel by words or conduct.” [Sheffield Car Co v
Constantine Hydraulic Co, 171 Mich 423, 450; 137 NW 305 (1912), quoting 11
Am. & Eng. Enc. Law (2d ed), p 428.]
The doctrine was applied in Lenawee Co Bd of Comm’rs v Abraham, 93 Mich App 774;
287 NW2d 371 (1979), to preclude property owners from denying access to their land for repairs
and improvements, where they failed to contest or appeal proceedings under the former ILLA to
determine and maintain lake levels. We similarly conclude that it is appropriately applied here,
given that no genuine issue was shown by plaintiff with respect to its acquiescence to the Oceana
County Drain Commissioner taking over responsibility for repair and maintenance of the dam.
In sum, while the trial court might have misused the term “easement” when describing
the Drain Commissioner’s permission to enter plaintiff’s property for maintenance and repairs,
as clearly implied in the prior May 25, 1999, order, the court reached the correct result in finding
no factual support for plaintiff’s inverse condemnation and taking claims involving whether there
was a compelled physical invasion. This Court will affirm a trial court’s decision where the trial
court reaches the right result. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
The other arguments presented by plaintiff with respect to the inverse condemnation and
taking claims also do not establish any basis for relief. Contrary to what plaintiff argues, the
record does not indicate that the trial court relied on the doctrine of res judicata to conclude that
plaintiff was precluded from challenging the entry onto its property,3 and that doctrine is
immaterial to our determination that the trial court reached the right result in granting
defendants’ motions for summary disposition. And to the extent that plaintiff suggests that a
question of fact existed regarding whether the Drain Commissioner caused a physical taking by
exceeding the scope of its responsibilities, we note that MCR 2.116(C)(10) requires the party
opposing a motion for summary disposition to “set forth specific facts at the time of the motion
showing a genuine issue for trial.” Maiden, 461 Mich at 121. Here, plaintiff showed only that
the current repair work is greater than past repair work. This was insufficient to establish a
genuine issue of material fact with regard to whether the work being performed exceeded the
scope of the Drain Commissioner’s repair and maintenance responsibilities.
Lastly, we reject plaintiff’s argument that summary disposition was premature. Plaintiff
failed to show that further discovery stood a fair chance of uncovering factual support for its
Res judicata bars a subsequent action when “(1) the first action was decided on the merits, (2)
the matter contested in the second action was or could have been resolved in the first, and (3)
both actions involve the same parties or their privies.” Estes, 481 Mich at 585, quoting Dart v
Dart, 460 Mich 573, 586; 597 NW2d 82 (1999).
position. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich
App 264, 292; 769 NW2d 234 (2009); Davis v Detroit, 269 Mich App 376, 379-380; 711 NW2d
462 (2006); see also MCR 2.116(H); Coblentz, 475 Mich at 570-571. Therefore, we affirm the
trial court’s summary disposition ruling with respect to both “taking” counts in plaintiff’s
“Amended Complaint and Claim of Appeal.”
IV. DOCKET NO. 298080
In Docket No. 298080, plaintiff challenges the trial court’s dismissal of the “claim of
appeal” that, according to the allegations in count I of the “Amended Complaint and Claim of
Appeal,” was based on Part 307 of the NREPA.
Before considering plaintiff’s arguments, we briefly consider the joint argument of
Oceana County and the Board of Commissioners regarding the trial court’s subject-matter
jurisdiction to consider the appeal. Defects in subject-matter jurisdiction may be raised at any
time. Electronic Data Sys Corp v Flint Twp, 253 Mich App 538, 544; 656 NW2d 215 (2002).
But contrary to the argument of Oceana County and the Board of Commissioners, subject-matter
jurisdiction over plaintiff’s appeal does not rest with the Michigan Tax Tribunal. MCL
324.30714(4) provides that “[t]he special assessment roll with the assessments listed shall be
final and conclusive unless appealed in a court within 15 days after county board approval.”
“Court” means “a circuit court, and if more than 1 judicial circuit is involved, the circuit court
designated by the county board or otherwise authorized by law to preside over an action.” MCL
324.30701(c). Because the trial court in this case is the Oceana Circuit Court, it had jurisdiction
to consider plaintiff’s appeal.
Nonetheless, a court is not bound by a party’s choice of labels for its actions because this
would place form over substance. Johnston v City of Livonia, 177 Mich App 200, 208; 441
NW2d 41 (1989). The gravamen of an action is determined by considering the entire claim.
Maiden, 461 Mich at 135. As a whole, plaintiff’s “Amended Complaint and Claim of Appeal”
purports to combine multiple constitutional claims and a claim of appeal from a Board of
Commissioners decision in a single action, notwithstanding that a civil action and an appeal each
require a filing fee to invoke the trial court’s jurisdiction. See MCL 600.2529(1); cf. McIntosh v
McIntosh, 282 Mich App 471, 483; 768 NW2d 325 (2009) (filing of claim of appeal and entry
fee is necessary to vest this Court with jurisdiction in an appeal, and merely arguing that a trial
court erred in awarding postjudgment attorney fees, which themselves are appealable as of right,
in an appeal from the judgment is insufficient to invoke this Court’s review of the attorney fees).
Indeed, the “summons and complaint” document filed by plaintiff with the original
“Complaint and Claim of Appeal” was based on the rules governing pleadings for civil actions.
A claim of appeal is not a “pleading” under the rules governing civil action in MCR 2.101 et seq.
See MCR 2.110; Houdini Props, LLC v City of Romulus, 480 Mich 1022; 743 NW2d 198 (2008).
The “Amended Complaint and Claim of Appeal” itself contains a demand for “trial by jury on all
counts in this matter.” Plaintiff made this demand, notwithstanding its allegation that it was
claiming an appeal under Part 307 of the NREPA.
Examined as a whole, the trial court did not err in ruling that plaintiff failed to properly
file an appeal. We reject plaintiff’s argument that dismissal was inappropriate because MCR
7.105 does not apply to an appeal from the Board of Commissioners’ approval of the special
assessment roll. In reaching this conclusion, we disagree with the Drain Commissioner’s
argument that plaintiff’s concession in its response to defendants’ motions that MCR 7.105
applies constitutes a judicial admission. A judicial admission is a formal concession in pleadings
or stipulations that have the effect of withdrawing factual issues in a case. Radtke v Miller,
Canfield, Paddock & Stone, 453 Mich 413, 420; 551 NW2d 698 (1996). Here, plaintiff
conceded only the applicability of a procedural rule, with the exception of the service
requirement for the Attorney General.4 But while a party is generally precluded from seeking
redress in an appellate court “on the basis of a position contrary to that taken in the trial court,”
Phinney v Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997), plaintiff has not
established any basis for relief even if we were to ignore plaintiff’s concession.
We agree with plaintiff that MCR 7.105 is not explicitly applicable to an appeal under
Part 307 of the NREPA. But considering that there is no applicable rule in MCR 7.101 et seq.
and this Court’s determination in In re Project Cost & Special Assessment Roll for Chappel
Dam, 282 Mich App 142, 149-150; 762 NW2d 192 (2009), that MCR 7.105 is the “most
applicable court rule” for an appeal to the circuit court under Part 307 of the NREPA, use of the
procedures contained in that rule are appropriate. However, a court should take care in
evaluating the applicability of particular provisions of the rule.
We agree with plaintiff that MCR 7.105(D), the provision providing for service on the
Attorney General, would not be applicable to an action under Part 307 of the NREPA. Court
rules are construed under legal principles applicable to statutes. In re KH, 469 Mich 621, 628;
677 NW2d 800 (2004). “When the language is unambiguous, we must enforce the meaning
expressed, without further judicial construction or interpretation.” Id. Here, the service
requirement in MCR 7.105(D) is directed at the specific agencies covered by the rule. MCR
7.105(D) provides, in part, that “[p]romptly after filing the petition for review, the petitioner
shall serve true copies of the petition for review on the agency, the Attorney General, and all
other parties to the contested case in the manner provided by MCR 2.107, and promptly file
proof of service with the court.” The required service on the Attorney General is consistent with
the Attorney General’s duty to provide legal services to the state of Michigan and its agencies,
boards, commissions, officials, and employees. See generally Attorney General v Pub Serv
Comm, 243 Mich App 487, 496; 625 NW2d 16 (2000). While the Attorney General is also
authorized to intervene in any action necessary to protect the rights or interests of the state under
MCL 14.101, In re Certified Question, 465 Mich 537, 544-545; 638 NW2d 409 (2002), because
the amount of a special assessment is a matter of local concern under Part 307 of the NREPA and
the Attorney General does not provide legal services to the Board of Commissioners, the trial
court erred as a matter of law in determining that MCR 7.105(D) should be applied to require
service on the Attorney General in an appeal governed by MCL 324.30714(4).
We recognize that plaintiff challenged the applicability of MCR 7.105 in its motion for
reconsideration of the trial court’s decision to dismiss the “Complaint and Claim of Appeal.”
Because plaintiff does not address that decision, we shall not consider it. Prince v MacDonald,
237 Mich App 186, 197; 602 NW2d 834 (1999).
Nonetheless, MCR 7.105(J)(2)(b) provides for dismissal of an appeal when it is not taken
or pursued in conformity with the rules, and the deficiencies in plaintiff’s “Amended Complaint
and Claim of Appeal” go beyond the dispute concerning MCR 7.215(D). Here, plaintiff did not
file with its “Complaint and Claim of Appeal” a copy of the Board of Commissioners’ decision
for which review was sought, or explain why it was not attached. MCR 7.105(C)(3). And given
plaintiff’s concession during the motion proceedings that MCR 7.105 applies, one could have
expected plaintiff to at least attempt to file a petition for review that complied with MCR 7.105,
separate and apart from the civil action, with the appropriate filing fee. Plaintiff’s presentation
of a “claim of appeal” as simply counts of a civil action was insufficient to invoke the trial
court’s appellate jurisdiction. Therefore, we uphold the trial court’s decision to dismiss the
“claim of appeal.”
We are also not persuaded that plaintiff has established any basis for disturbing the trial
court’s decision denying plaintiff’s motion to amend the “claim of appeal” in order to bifurcate it
from the inverse condemnation claims and present it as a separate proposed “petition for
review.” The trial court relied on multiple grounds to deny the motion, including its lack of
jurisdiction to consider the motion in light of the appeal filed in Docket No. 297157. Because
plaintiff failed to properly invoke the trial court’s appellate jurisdiction and the order appealed in
Docket No. 297157 disposed of the entire civil action, we agree with the trial court that it lacked
jurisdiction to consider the motion. MCR 7.208(A); Wiand v Wiand, 205 Mich App 360, 369370; 522 NW2d 132 (1994). Furthermore, considering plaintiff’s failure to file an appeal under
any rule, we reject plaintiff’s argument that it should have been allowed to “amend an appeal”
using the procedure in MCR 7.105(B)(2). Accordingly, even if the trial court had jurisdiction to
consider the motion, we find no basis for reversing its decision denying the motion.
Lastly, considering that plaintiff does not argue that it had a cause of action to set aside
the special assessment independent of the appeal, we decline to consider plaintiff’s argument that
it was denied due process. Had plaintiff filed a proper appeal from the Board of Commissioners’
approval of the special assessment roll, the trial court could have conducted a formal review of
the proceedings, including whether the amount of its assessment was arbitrarily determined. In
re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich App at 151. While the
trial court nonetheless gave some consideration to this matter for plaintiff’s benefit during the
proceedings, absent a proper appeal we have nothing to review.
/s/ Patrick M. Meter
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey