Larry M Clingman v. Robert Harris ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LARRY A. CLINGMAN, UNPUBLISHED
July 25, 2019
Plaintiff-Appellee,
v No. 343090
Ogemaw Circuit Court
ROBERT HARRIS and DOLORES HARRIS, LC No. 15-659831-CH
Defendants-Appellants.
Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.
PER CURIAM.
Defendants appeal as of right the trial court’s order enforcing a judgment in favor of
plaintiff. In its original judgment—issued in October 2016—the trial court determined that
defendants were obstructing plaintiff’s use of a 66-foot-wide easement created for ingress and
egress over defendants’ property. The court ordered defendants to clear their obstructions, and
defendants seem to have largely complied with that order. After defendants failed to comply
fully, however, plaintiff filed a motion to enforce the judgment. The trial court granted the
motion and defendants appealed. Because defendants’ arguments on appeal focus on the court’s
original judgment, and because defendants failed to timely appeal that judgment, we affirm.
I. FACTUAL BACKGROUND
Plaintiff and defendants own neighboring lots in Ogemaw County. For several decades,
defendants’ property has been subject to a 66-foot-wide easement that was created for ingress
and egress to and from plaintiff’s property. Plaintiff regularly exercises his right to use the
easement, frequently traveling over a small, approximately 15-foot-wide trail road that exists on
the easement. In November 2015, plaintiff sought an injunction against defendants, complaining
that defendants’ were impeding his use of the easement and his ability to make improvements on
the trail road. Plaintiff contended that defendants had placed feeding bowls, chicken coops, and
other large objects on the easement that inhibited plaintiff’s ability to access his property. The
feeding bowls in particular caused masses of chickens to congregate on the road, blocking
plaintiff’s ingress and egress.
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Following a bench trial, in October 2016, the trial court ordered defendants to remove all
manufactured objects obstructing the easement, enjoined defendants from constructing or placing
new objects inside the easement, and enjoined defendants from allowing flocks of fowl to
interfere with plaintiff’s use of the easement for ingress and egress. In November 2016, plaintiff
filed a motion to enforce the judgment, claiming that, not only had defendants allowed obstacles
to remain on the easement, defendants had placed additional objects on the easement that
prevented plaintiff from using it. The trial court gave defendants until June 1, 2017, to clear their
obstructions.
In July 2017, plaintiff filed a second motion to enforce the judgment, contending that he
was still unable to use and improve the trail road because, although defendants had removed
some obstructions, others remained. At the hearing on plaintiff’s motion, plaintiff noted that
defendants had moved most of their chickens, and that the only remaining obstructions included
some horse fencing and corrals. A surveyor testified and confirmed that objects remained on the
easement in violation of the court’s original judgment. In March 2018, the trial court ordered
defendants to remove the horse fencing and any other structures that remained on the easement,
and ordered defendants to pay plaintiff’s attorney fees for necessitating the filing of the motion
to enforce. Defendants appealed.
II. DISCUSSION
On appeal, defendants argue that they should be permitted to leave objects and structures
in the easement that do not interfere with plaintiff’s use of the easement and that they should be
allowed to let their chickens cross the easement. Defendants’ arguments, however, are
challenges to the trial court’s original judgment against them, and we note that defendants did
not properly appeal that judgment. We therefore lack subject-matter jurisdiction to review those
issues. See Federated Ins Co v Oakland County Road Comm, 475 Mich. 286, 294-295; 715
NW2d 846 (2006) (an issue ceases to be justiciable when a party fails to timely appeal); Matthew
R Abel, PC v Grossman Investments Co, 302 Mich. App. 232, 240-241; 838 NW2d 204 (2013) (an
appellant must demonstrate that an underlying controversy is justiciable for the reviewing court
to have subject-matter jurisdiction). See also Surman v Sumran, 277 Mich. App. 287, 294; 745
NW2d 802 (2007) (“When a final order is entered, a claim of appeal from that order must be
timely filed. A party cannot wait until the entry of a subsequent final order to untimely appeal an
earlier final order.”).
The only issues properly presented on appeal—and we note that defendants only raise
these issues tangentially—are whether the trial court properly ordered defendants to remove the
horse fencing and other remaining obstacles encroaching on the easement, and whether the court
was permitted to award plaintiff $800 in attorney fees. “[A] trial court has the inherent and
statutory authority to enforce its orders.” Davis v City of Detroit Fin Review Team, 296 Mich
App 568, 623; 821 NW2d 896 (2012), citing MCL 600.611, and MCL 600.1715. “An exercise
of the court’s ‘inherent power’ may be disturbed only upon a finding that there has been a clear
abuse of discretion.” Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006)
(quotation marks and citation omitted). “A trial court abuses its discretion when it chooses an
outcome outside the range of reasonable and principled outcomes.” Anderson v Progressive
Marathon Ins Co, 322 Mich. App. 76, 83-84; 910 NW2d 691 (2017), citing Maldonado, 476 Mich.
at 388.
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At the hearing on plaintiff’s second motion to enforce the judgment, plaintiff testified that
defendants had generally cleared their obstructions of the easement, and that the only remaining
obstructions were some remaining corrals and fencing. Defendants, who did not attend the
hearing, provided no evidence to contradict plaintiff’s testimony, and we note that the trial
court’s order that defendants remove the objects was consistent with its original judgment
ordering the removal of all obstructions from the entirety of the easement. Because the trial
court’s initial judgment ordering the removal of all obstructions from the entirety of the easement
is final, and without any evidence to contradict plaintiff’s assertion that the corrals and fencing
were obstructing his use of the easement, we cannot conclude that the trial court’s enforcement
order was outside the range of reasonable and principled outcomes. Similarly, with defendants
having failed to comply fully with the trial court’s original judgment and initial enforcement
order, we cannot conclude that the court abused its discretion in exercising its inherent authority
to sanction defendants with the costs plaintiff necessarily incurred for defendants’ failures. See
Persichini v William Beaumont Hosp, 238 Mich. App. 626, 639; 607 NW2d 100 (1999)
(explaining that trial courts have an inherent authority to sanction litigants for misconduct).
Affirmed. Plaintiff, as the prevailing party, may tax costs under MCR 7.219.
/s/ Colleen A. O’Brien
/s/ Karen M. Fort Hood
/s/ Thomas C. Cameron
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