Nagesh Palakurthi v. Upper Long Lake Estates Corp ( 2020 )

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
NAGESH PALAKURTHI, UNPUBLISHED
January 28, 2020
Plaintiff-Appellant,
v No. 346457
Oakland Circuit Court
UPPER LONG LAKE ESTATES LC No. 2017-159814-CH
CORPORATION,
Defendant-Appellee.
Before: METER, P.J., and FORT HOOD and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendant. Plaintiff contends on appeal that the trial court erred in determining that no
genuine issues of material fact existed as to plaintiff’s right to access a boat ramp owned by
defendant, and as to whether defendant’s denial of access to the ramp constituted a breach of
contract or a private nuisance. We affirm.
Plaintiff owns a home in the Heron Bay Subdivision (HB) that fronts Upper Long Lake in
Bloomfield Hills, Michigan. Plaintiff brought this suit claiming that defendant was unlawfully
interfering with plaintiff’s right to access a boat ramp “located on Lot 64 of the Upper Long
Lake Estates No. 1 subdivision [(ULLE)].” According to plaintiff, HB and ULLE were
developed by a common entity, Turtle Lake Development, LLC, which situated on Lot 64 of
ULLE a boat ramp to, among other things, allow HB homeowners whose homes fronted Upper
Long Lake to launch watercraft during boating season. This use of Lot 64 was memorialized in
deed restrictions dated June 15, 2011. Plaintiff contended that, in recent years, representatives of
defendant created an onerous “Launch License and Use Agreement” that violated plaintiff’s
contractual rights to freely access the boat ramp and constituted a private nuisance.
After plaintiff filed his complaint alleging breach of contract and private nuisance for his
inability to access Lot 64, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(8) and (C)(10). Defendant contended that, pursuant to the deed restrictions to Lot 64
from which plaintiff’s right to access Lot 64 was derived, all residents of HB eligible to use Lot
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64 are required to sign an original 2002 agreement with ULLE (the Master Agreement), as well
as an annual license agreement (the License Agreement) before they can actually access the boat
ramp. Defendant contended that plaintiff had failed to sign the License Agreement, and thus had
no contractual rights to be interfered with. The trial court agreed, and we affirm.
I. BREACH OF CONTRACT
Plaintiff’s primary argument on appeal is that, taken together, the deed restrictions
pertaining to Lot 64, the Master Agreement, and the License Agreement suggest that plaintiff has
the right to access Lot 64 in the same method and manner as ULLE residents, and in particular,
that because ULLE residents are able to obtain individuals keys to access Lot 64, plaintiff should
also be permitted to obtain a key. We disagree. Nothing in any of the documents suggests that
plaintiff is to be afforded the same level of access to Lot 64 as ULLE residents, let alone that
plaintiff is specifically entitled to a key.
“The trial court’s ruling on a motion for summary disposition is reviewed de novo on
appeal.” ZCD Transp, Inc v State Farm Mut Auto Ins Co, 299 Mich. App. 336, 339; 830 NW2d
428 (2012), citing Moser v Detroit, 284 Mich. App. 536, 538; 772 NW2d 823 (2009). In this case,
defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), however,
the parties looked beyond the pleadings in arguing for and against the motion, and accordingly,
this Court treats the motions as though they were made pursuant to MCR 2.116(C)(10) only.
Van Buren Charter Twp v Visteon Corp, 319 Mich. App. 538, 544; 904 NW2d 192 (2017).
Summary disposition pursuant to MCR 2.116(C)(10) is appropriate where “there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as
a matter of law.” MCR 2.116(C)(10). A (C)(10) motion considers documentary evidence and
“tests the factual sufficiency of the complaint.” Dalley v Dykema Gossett, 287 Mich. App. 296,
304 n 3; 788 NW2d 679 (2010), citing Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817
(1999). In reviewing the motion, “this Court considers affidavits, pleadings, depositions,
admissions, and documentary evidence filed in the action or submitted by the parties, in a light
most favorable to the party opposing the motion.” Sanders v Perfecting Church, 303 Mich. App.
1, 4; 840 NW2d 401 (2013) (quotation marks and citation omitted). Lastly, “the proper
interpretation of contracts and the legal effect of contractual provisions are questions of law
[also] subject to review de novo.” Meemic Ins Co v Bischer, 323 Mich. App. 153, 157; 915
NW2d 1 (2018).
“In ascertaining the meaning of a contract, we give the words used in the contract their
plain and ordinary meaning that would be apparent to a reader of the instrument.” Rory v
Continental Ins Co, 473 Mich. 457, 464; 703 NW2d 23 (2005), citing Wilkie v Auto-Owners Ins
Co, 469 Mich. 41, 47; 664 NW2d 776 (2003). This Court enforces unambiguous contracts as
written. Farm Bureau Mut Ins Co v Nikkel, 460 Mich. 558, 566; 596 NW2d 915 (1999), citing
Morley v Auto Club of Mich, 458 Mich. 459, 465; 581 NW2d 237 (1998). “[W]hen parties enter
into multiple agreements relating to the same subject-matter, we must read those agreements
together to determine the parties’ intentions.” Wyandotte Electric Supply Co v Electrical
Technology Sys, Inc, 499 Mich. 127, 148; 881 NW2d 95 (2016). “A contract is ambiguous only
if its terms are unclear or are reasonably susceptible to more than one meaning.” Island Lake
Arbors Condo Ass’n v Meisner & Assoc, PC, 301 Mich. App. 384, 392; 837 NW2d 439 (2013)
(citations omitted). “A party asserting a breach of contract must establish by a preponderance of
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the evidence that (1) there was a contract (2) which the other party breached (3) thereby resulting
in damages to the party claiming breach.” Miller-Davis Co v Ahrens Constr, Inc, 495 Mich. 161,
178; 848 NW2d 95 (2014), citing Stevenson v Brotherhoods Mut Benefit, 312 Mich. 81, 90-91; 19
NW2d 494 (1945).
A. DEED RESTRICTIONS
First, the deed restrictions pertaining to Lot 64 create only a very limited right for
plaintiff to access Lot 64. The restrictions relied upon by plaintiff provide:
Lot 64 shall be used solely for the purpose set forth in Subparagraph “p” hereof
and also the purpose of providing access to Upper Long Lake for (1) the owners
or owners of lots in Upper Long Lake Estates No. 1, (2) the immediate family of
said owner or owners, (3) the domestic servants and invited guests of such owner
or owners and the immediate family of such guests, (4) owners of lots in Upper
Long Lake Estates, for purposes of launching watercraft, but only pursuant to the
terms and conditions of a written directive made by Upper Long Lake Estates
Corporation, which directive may only be issued upon approval of at least 3
Group C representatives on the corporation’s Board of Directors, (5) owners of
houses which front Upper Long Lake and are located in either [HB] or Turtle
Lake Subdivision, for purposes of launching watercraft, but only pursuant to the
terms and conditions of a written Agreement with Upper Long Lake Estates
Corporation, and (6) those employed by the Lake Board for Upper Long Lake for
purposes of weed harvesting and/or other management of the water quality for
Upper Long Lake, but only pursuant to the terms and conditions of a written
Agreement with Upper Long Lake Estates Corporation
Notably, and contrary to plaintiff’s argument on appeal that it was intended that he have uniform
access to Lot 64 alongside ULLE residents, the deed restrictions provide individuals such as
plaintiff are to have access to Lot 64 “for purposes of launching watercraft, but only pursuant to
the terms and conditions of a written agreement with [defendant.]” Nothing in the language
suggests that plaintiff, as a resident of HB, was to have unfettered access to Lot 64, or that
plaintiff’s access was intended to be equal to the access provided to ULLE residents.
B. THE MASTER AGREEMENT
The Master Agreement referenced in the deed restrictions, which has been unchanged
since 2002, provided for the development of Lot 64 and provided, in relevant part:
3. License Agreement. ULLE shall grant, exclusively through Turtle
Lake Development, to the owners of Heron Bay Subdivision Lots 3 through 18
(including Lots 11A and 11B) and Turtle Lake Development Condominium Units
60 through 67, which lots and units front upon Upper Long Lake (each, a
“Grantee”), on an annual basis, a License and Use Agreement in the form
attached hereto as Exhibit E for the sole purpose of annual launching and
retrieving watercraft which shall be docked at the owner’s lot or condominium for
the boating season on Upper Long Lake (the “License Agreement”). No other
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residents, employees, owners, or other parties of Heron Bay Subdivision or Turtle
Lake Development shall be granted such a License Agreement. Turtle Lake
Development shall exercise reasonable efforts to assist ULLE in preventing
unauthorized access to Lot 64. Turtle Lake Development shall have sole and
exclusive right and authority to approve Grantees, and shall be responsible for the
obtaining the [sic] execution of the License Agreements and completion of
watercraft registration forms (in the form attached as Exhibit F) by the approved
Grantees. Turtle Lake Development (or its designee) shall, prior to each boating
season, inform ULLE of the Grantees who have been approved by Turtle Lake
Development and who desire to enter into a License Agreement for the upcoming
boating season and shall collect and promptly pay over to ULLE any fees charged
by ULLE in connection therewith.
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ULLE shall provide, through Turtle Lake Development, each Grantee
such License Agreements as may be necessary to allow the Grantee to launch
from Lot 64 watercraft to be docked at their residence, provided that Lot 64 may
not be used by a Grantee to launch watercraft if such launch would result in more
than three (3) watercraft being docked at the Grantee’s residence. All watercraft
must be registered with the State of Michigan and insured (in an amount
reasonably determined by each Grantee). Proof of registration and insurance must
be provided to Turtle Lake Development or its designee by Grantee for each
watercraft. ULLE shall not be required to enter into a License Agreement with
any person who (i) repeatedly violates the rules and regulations for “Water Safety
on Upper Long Lake,” provided such rules and regulations are uniformly enforced
by ULLE or homeowners in Upper Long Lake Estates Subdivision or Upper Long
Lake Estates Subdivision No. 1, (ii) creates a nuisance in the operation of his
watercraft, as defined by applicable law and/or the Upper Long Lake
Management Committee Board, (iii) repeatedly interferes with weed harvesting or
lake management operations upon Lot 64, (iv) repeatedly violates the ULLE rules
and regulations concerning launching of watercraft, provided such rules and
regulations are uniformly enforced against homeowners in Upper Long Lake
Estates Subdivision or Upper Long Lake Estates Subdivision No. 1, or (v)
materially or repeatedly violates the terms of the License Agreement or
Agreements as renewed. Grantees shall be permitted use of the launch facilities at
Lot 64 for the 2002 boating season during the time frames set forth in Exhibit G
attached hereto and incorporated herein, plus one additional retrieval and launch
as set forth in the License Agreement, and such comparable periods during each
succeeding boating season to be calculated by ULLE upon not less than third (30)
days’ prior written notice to Turtle Lake Development and the Grantees.
Notwithstanding anything to the contrary set forth in this Agreement, ULLE may
reasonably determine the method pursuant to which the Grantees shall be
provided access to Lot 64, provided that access is granted in the manner and at the
times as contemplated by this Agreement and/or the License Agreement.
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ULLE may charge each Grantee an initial, one-time registration fee in
connection with the License Agreement, the amount of which registration fee
shall be the same as the initiation fee charged by ULLE to residents of Upper
Long Lake Estates Subdivision No. 1 with full privileges at Lot 64, and which is
currently $500.00. The registration fee shall be personal to each Grantee, shall
not be transferable and shall be independent of the number of watercraft or
change of watercraft. In addition, ULLE may charge an annual maintenance and
administration fee, which fee initially is set at $250.00. ULLE may impose
reasonable increases to the maintenance and administration fee, but in no even
shall such fee increase by more than seven percent (7.0%) per year on a
cumulative annual basis. ULLE may further assess Grantees for (i) any and all
reasonable attorney fees incurred by ULLE in defending any possible challenges
to the use granted in the License Agreement and/or this Agreement by third
parties other than homeowners in Upper Long Lake Estates Subdivision or Upper
Long Lake Estates Subdisivions No. 1, and (ii) lock and key replacement
necessitated by the acts of any Grantee. The total amount assessed to the Grantees
under (i) above shall not exceed fifty (50%) of the total reasonable attorney fees
incurred by ULLE in defending any possible challenge to the use granted in the
License Agreement by third parties other than homeowners in Upper Long Lake
Estates Subdivision or Upper Long Lake Estates Suvdivision No. 1 or 100% if
brought by residents and/or lot/unit owners of Heron Bay Subdivision and/or
Turtle Lake Development and their respective partners, members, shareholders,
officers, directors, affiliates, successors and assigns.
* * *
ULLE shall provide Grantees such License Agreements each and every year in
which residents of Upper Long Lake Estates Subdivision No. 1 are granted access
to Upper Long Lake through Lot 64, subject to the limitations set forth in this
paragraph below. In the event that residents of Upper Long Lake Estates
Subdivision No. 1 are no longer granted access to Upper Long Lake through Lot
64, but are granted access to Upper Long Lake through any other portion of
Upper Long Lake Estates Subdivision or Upper Long Lake Estates Subdivision
No. 1, then (a) for a period of fifteen (15) years from the date of this Agreement,
the Grantees shall be provided License Agreements for access to Upper Long
Lake in the same location and manner as residents of Upper Long Lake Estates
Subdivision No. 1, and (b) after such 15 year period, ULLE shall nevertheless use
all reasonable efforts to include the Grantees as permitted users of any access to
Upper Long Lake (other than Lot 64) which ULLE obtains within Upper Long
Lake Estates Subdivision or Upper Long Lake Estates Subdivision No. 1, unless
ULLE would be prevented from doing so for reasons beyond its reasonable
control.
Again, contrary to plaintiff’s assertion, the Master Agreement explicitly limits plaintiff’s access
to Lot 64 in almost the exact manner as the 2017 License Agreement that plaintiff admittedly
refused to sign on account of it being overly cumbersome. Thus, similar to the deed restrictions,
the Master Agreement provides no support for plaintiff’s contention that he should be granted
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unfettered or equal access to Lot 64 as ULLE residents. In fact, the contract explicitly provides
that “ULLE may reasonably determine the method pursuant to which the Grantees shall be
provided access to Lot 64, provided that access is granted in the manner and at the times as
contemplated by this Agreement and/or the License Agreement.”
The majority of plaintiff’s argument is premised on the final paragraph of the above text,
in which the contract provides that, should ULLE residents no longer have access to Lot 64 and
instead access the lake by some other means, for at least some period of time, grantees should
also be provided lake access “in the same location and manner.” Plaintiff would seem to suggest
that this language implies an intent by the authors of the contract that plaintiff always have the
same manner of access to Upper Long Lake as ULLE residents. This argument is without merit
for a number of reasons. First, it requires an overly broad reading of a provision that, by its own
terms, only applies when residents no longer have access to Upper Long Lake through Lot 64.
That is, the provision relied upon by plaintiff does not speak to his level of access to Lot 64
because it explicitly does not apply when plaintiff has access to that lot. Moreover, other
language in the contract plainly speaks to plaintiff’s right to access Lot 64, and that language—as
noted above—directly contradicts plaintiff’s assertion that he should have equal access to Lot 64
as ULLE residents.
C. THE LICENSE AGREEMENT
The last document which might support plaintiff’s arguments on appeal is the annual
license agreement, which, according to defendant’s president, has also been unchanged since
2002. The License Agreement provides:
1. Grant of License. ULLE hereby grants to Grantee, a nonexclusive
license for the use of ULLE’s watercraft launch facilities located at the real
property known as Lot 64, “Upper Long Lake Estates No. 1”, as recorded in Liber
81, Pages 8 and 9 of Plats, Oakland County Records (the “Launch Property”), in
addition to the right of access to and from the Launch Property in connection with
such license, for the purpose of providing access to Upper Long Lake as set forth
in certain deed restrictions recorded in Liber 15181, Page 257, Oakland County
Records, as amended (the “Deed Restrictions”) for
(i) the yearly launch and retrieval between March and November
of each calendar year of Grantee’s watercraft(s) to and from Upper
Long Lake during the windows of opportunity as are provided by
Grantor (pursuant to the Master Agreement (as defined below)
upon not less than thirty (30) days’ prior written notice to Grantee;
(ii) plus one (1) additional uses of the launch for retrieval and
launch of each watercraft for any non-recurring reason; and
(iii) the temporary right to park Grantee’s delivery vehicle and
trailer upon the Launch Property in connection with such launches
and retrievals, for a period not to exceed on hour, all subject to the
terms and conditions of this Agreement.
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* * *
Grantee must keep the key or other ingress/egress control measure, if any is
provided directly to Grantee, under their direct or indirect control at all times.
Such key or control measure must remain clearly identified with the Grantee’s
name and telephone number at all times. Only the Grantee or a company engaged
by him may use the key or control measure and then only for the purpose of
launching or retrieving the Grantee’s own personal watercraft as set forth in this
Agreement. Grantee may use the site for the minimum amount of time reasonably
necessary to accomplish a launch or retrieval.
2. Term. The term of this Agreement shall be ONE YEAR,
beginning March 1, 20__ and ending on the last day of February, 20__. This
agreement may be revoked and/or not renewed at any time by ULLE for any of
the following reasons:
* * *
5. Grantee repeatedly violates the rules and regulations for “Water
Safety on Upper Long Lake”, provided such rules and regulations
are uniformly enforced by ULLE or homeowners in Upper Long
Lake Estates Subdivision or Upper Long Lake Estates Subdivision
No. 1 against homeowners in Upper Long Lake Estates
Subdivision or Upper Long Lake Subdivision No. 1;
6. Grantee repeatedly interferes with weed harvesting and lake
management upon Lot 64;
7. Grantee repeatedly violates the ULLE rules and regulations
concerning launching of watercrafts, provided such rules and
regulations are uniformly enforced against homeowners in Upper
Long Lake Estates Subdivision or Upper Long Lake Estates
Subdivision No. 1; and
8. Grantee materially violates the terms and conditions of this
Agreement.
3. Conditions of Launch. Grantee understands and agrees that
Grantor does not guarantee the condition of the launch at any time. Grantee shall
be responsible for inspecting the launch prior to use and determining its safety.
Notwithstanding the foregoing, in the event the launch is unusable due to
construction or safety issues, Grantee shall be permitted to launch and retrieve its
watercraft(s) in the same manner provided by Grantor to the residents of Upper
Long Lake Estates Subdivision No. 1.
* * *
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7. Miscellaneous. Grantee shall comply with all applicable rules or
regulations of ULLE pertaining to the Launch Property, so long as such rules or
regulations are evenly applied to all users of the Launch Property. . . . This
License Agreement and the associated provisions in the agreement between
ULLE and Turtle Lake Development dated ______________, 2002 (the “Master
Agreement”), constitute the entire agreement between ULLE and Grantee. There
are no terms or obligations other than those contained in these referenced
agreements.
Again, nothing in this agreement can be read to support plaintiff’s argument that he should have
unfettered or equal access to Lot 64. The document explicitly limits plaintiff’s access to Lot 64
and does so in a manner consistent with the deed restrictions and the Master Agreement. The
document further evidences that grantees such as plaintiff do not have any absolute contractual
right to a key or other method of entry to Lot 64: “Grantee must keep the key or other
ingress/egress control measure, if any is provided directly to Grantee, under their direct or
indirect control at all times.”
As with the Master Agreement, plaintiff relies upon provisions unrelated to his level of
access to Lot 64 to suggest that he should have access equal to ULLE residents. Plaintiff notes
that a license agreement cannot be denied him for violating “Water Safety on Upper Long Lake”
rules unless those rules are uniformly enforced, but fails to describe how these rules can be
interpreted to speak to his level of access to the lot. Plaintiff makes the same argument with
respect to “ULLE rules and regulations concerning launching of watercrafts,” but again, does not
explain how those rules can or should be interpreted as affecting plaintiff’s ability and right to
access Lot 64. We are inclined to agree with the trial court that rules concerning water safety
and the launching of watercrafts are just that: they are rules about the method and manner in
which Lot 64 may be used and not rules about how it may be accessed.
In summation, we see no support in the plain language of the controlling documents for
plaintiff’s argument that he is entitled to unfettered or equal access to Lot 64 as ULLE residents,
particularly in light of plaintiff’s admission that he refused to sign the 2017 License Agreement.
The deed restrictions, Master Agreement, and License Agreement all support a conclusion that
plaintiff is entitled to limited access to Lot 64 for specific purposes in accordance with written
terms by ULLE. Given the plain language of the contracts, which directly contradict plaintiff’s
suggestion that he should be provided equal access to the lot as ULLE residents, the trial court
did not err in determining that there were no genuine issues of material fact with respect to
whether plaintiff’s contractual rights had been violated.
II. PRIVATE NUISANCE
Plaintiff next contends that the trial court erred in dismissing plaintiff’s nuisance claim
because defendant’s improper limitation on plaintiff’s access to Lot 64 deprived him of the use
and enjoyment of a central feature of his lakefront property. We disagree.
“A private nuisance is a nontrespassory invasion of another’s interest in the private use
and enjoyment of land.” Adkins v Thomas Solvent Co, 440 Mich. 293, 302; 487 NW2d 715
(1992).
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The elements of private nuisance are satisfied if (a) the other has property
rights and privileges in respect to the use or enjoyment interfered with, (b) the
invasion results in significant harm, (c) the actor’s conduct is the legal cause of
the invasion, and (d) the invasion is either (i) intentional or unreasonable, or (ii)
unintentional and otherwise actionable under the rules governing liability for
negligence, reckless, or ultrahazardous conduct. [Capitol Props Group, LLC v
1247 Ctr Street, LLC, 283 Mich. App. 422, 431-432; 770 NW2d 105 (2009).]
“To prevail in nuisance, a plaintiff must prove significant harm resulting from the defendant’s
unreasonable interference with the use or enjoyment of property.” Jackson v Thompson-McCully
Co, LLC, 239 Mich. App. 482, 490; 608 NW2d 531 (2000).
Plaintiff’s nuisance claim is premised on the idea that his inability to access Lot 64 has
resulted in the diminution of the value of his property. Plaintiff notes that “damages for a
nuisance can be recovered for a diminution of the value of property,” Travis v Preson, 249 Mich
App 338, 351; 643 NW2d 235 (2002), however, plaintiff has failed to provide any evidence of
any actual diminution of value in this case, see Capitol Props, 283 Mich. App. at 432. Moreover,
although plaintiff’s claim could fail on that ground alone, we also note that, given the relevant
contractual provisions outlined above, it is not clear that defendant interfered whatsoever with
any cognizable right owned by plaintiff. Plaintiff still has the ability to enjoy his property, and to
the extent the use of Lot 64 is necessary for the enjoyment of his property, plaintiff need only
abide by the terms and conditions described in the contractual agreements.
Affirmed.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
/s/ James Robert Redford
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