Resurrection Fellowship Church of Grand Rapids v. Nick W Lake ( 2024 )

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
RESURRECTION FELLOWSHIP CHURCH OF UNPUBLISHED
GRAND RAPIDS, April 11, 2024
Plaintiff/Counterdefendant-Appellant,
v No. 367179
Kent Circuit Court
NICK W. LAKE, LC No. 22-01403-CH
Defendant/Counterplaintiff-Appellee.
Before: BOONSTRA, P.J., and FEENEY and YOUNG, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting defendant’s motion for summary
disposition and denying plaintiff’s motion for summary disposition. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case involves a dispute over whether defendant acquired a prescriptive easement over
a portion of plaintiff’s property referred to by the trial court as “the Driveway.” In December
1978, defendant purchased a parcel of property (Lot 599) from the Grand Rapids Labor Temple
Association (the Temple Association). Defendant’s property abutted another lot owned by the
Temple Association (Lot 598), which comprised a portion of its parking lot, and defendant parked
his vehicles on a portion of that lot (the Driveway). According to defendant, he never asked anyone
for permission to park his vehicles on the Driveway, nor did anyone grant him permission to use
it. In September 1996, the Temple Association sold Lot 598 to plaintiff. After plaintiff purchased
Lot 598, defendant continued to use the Driveway to park his vehicles. The parties agree that
defendant would move his vehicles when requested for various events held at the church, or to
allow the parking lot to be plowed.
In 2022, plaintiff filed an action against defendant to quiet title to the Driveway and
additional property not relevant to this appeal. Defendant responded by filing a counterclaim for
adverse possession, acquiescence, and prescriptive easement. The parties filed cross-motions for
summary disposition.
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Relevant to this appeal, plaintiff argued that defendant’s use of the Driveway had at all
times been permissive and noncontinuous; therefore, defendant could not satisfy the elements of a
prescriptive easement. In support of this contention, plaintiff attached numerous affidavits from
members of plaintiff’s congregation as well Reverend Wallace Campbell, plaintiff’s assistant
pastor; additionally, plaintiff provided correspondence between plaintiff and defendant concerning
parking in the Driveway. The affidavit of Maggie Price stated in relevant part that “[p]rior to
[plaintiff] purchasing and moving into the lot, [defendant] had previously enjoyed permission from
Grand Rapids Labor Temple, the previous owner of [plaintiff’s] property, to park his vehicles on
the parking lot.” The affidavit of Justin Price stated in pertinent part that “[t]he arrangement of
[defendant] parking his vehicles in [plaintiff’s] parking lot began after [plaintiff] moved to this
location and [plaintiff] gave him permission to park in the lot because the previous owners had
allowed him to.” The affidavit of Reverend Campbell stated that he had been an assistant pastor
of plaintiff for as long as plaintiff had operated at its current location, and that defendant had had
permission to park his vehicles on the Driveway from plaintiff for at least 15 years. Several other
affiants averred that defendant had been permitted to use the driveway since the time plaintiff
purchased Lot 598. Plaintiff also attached a letter dated July 26, 1996 from an attorney to a person
identified only as Robert; plaintiff asserted that this letter was from an attorney whom plaintiff had
consulted before purchasing Lot 598. The letter, in relevant part, states:
I did speak to the realtor after I last talked to you. He indicated that there may be a
gentlemen [sic] who uses the south entrance to the church parking lot to get to his
house and may in fact park occasionally in the south parking lot. He has not been
doing this for a very long time and so this is not a threat of adverse possession or
prescriptive easement. However, sometime in the future the church should
probably send him a friendly letter either indicating that they do not wish for him
to continue to this or, if you wish to give him permission, state that you are giving
him permission to continue this sort of use. By doing this, you prevent him from
ever being able to later argue he has the legal right to the area of your parking lot
upon which he is parking and has a prescriptive easement to drive in your south
entrance whenever he wishes.
Plaintiff also attached a letter from plaintiff to defendant dated August 12, 1997, stating in relevant
parking that defendant could park his truck on the parking lot “as we agreed” but asking him not
to park a trailer there.
In his response to plaintiff’s motion and in support of his own motion, defendant argued
that he had satisfied the elements of a prescriptive easement before plaintiff ever purchased Lot
598. He stated that he had purchased his property in 1978 and had used the driveway to park his
vehicles continuously until 1996. Defendant also stated that when he traveled to Florida for the
winter, he hired a house-sitter who parked her car in the driveway in the same manner as defendant
did when he was home.
Defendant also provided a sworn affidavit stating, in relevant part:
9. Since 1978, I have used the southernmost 10-foot-wide strip of the parking
lot (the “Driveway”) as my driveway and have continuously used it to park my
vehicles, including my truck and often my motorcycle and trailer. . .
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12. No one ever gave me permission to use . . . the Driveway; I never asked
anyone for permission to use [it.]
Defendant also provided a letter from defendant to plaintiff stating, in relevant part:
I purchased my property in Dec [sic] 1978 and have parked my vehicles in the
parking lot for 25 years. Shortly after I purchased my home, the property at 321
Valley was purchased by Grand Rapids Labor Temple. They had no problem with
my parking my vehicles on the lot for 22 years.
Defendant’s letter asserted that he owned the driveway by virtue of adverse possession.
The trial court held a hearing on the cross motions for summary disposition in March 2023.
At the hearing, the trial court noted that defendant’s affidavit had provided factual information
concerning how the Driveway was used from 1978 until plaintiff purchased Lot 598. The trial
court indicated that it would take the matter under advisement and issue a written opinion.
The trial court subsequently issued a written opinion and order, holding in relevant part
that defendant had established that he had a prescriptive easement to use the driveway before
plaintiff purchased the property from the previous owner. The trial court found that defendant’s
undisputed evidence showed that he had used the driveway for almost eighteen years before
plaintiff’s purchase of Lot 598. This appeal followed.
II. STANDARD OF REVIEW
A claim for a prescriptive easement is an equitable claim. Mulcahy v Verines, 276 Mich
App 693, 699; 742 NW2d 393 (2007). We review de novo a trial court’s conclusions of law in an
equitable action, and we review for clear error its findings of fact. Id. We review de novo a trial
court’s grant of summary disposition under MCR 2.116(C)(10). Id. A party is entitled to summary
disposition under MCR 2.116(C)(10) “if the affidavits or other documentary evidence show that
there is no genuine issue in respect to any material fact, and the moving party is entitled to
judgment as a matter of law.” Id. at 699 (citations omitted). The moving party has the initial
burden of supporting its position with affidavits, admissions, or other documentary evidence; once
the movant has done so, the burden shifts to the nonmoving party to establish a genuine issue of
material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). To do so,
the nonmoving party may not rely on mere allegations or denials in the pleadings, but must go
beyond the pleadings to support its position with documentary evidence establishing the existence
of a material factual dispute. Id. at 362-363.
III. ANALYSIS
Plaintiff argues that the trial court erred by holding that defendant had established the
elements of a prescriptive easement. We disagree.
An easement is a right to use another’s land for a specific purpose. Killips v Mannisto, 244
Mich 256, 258; 624 NW2d (2001). An easement by prescription “results from use of another’s
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property that is open, notorious, adverse, and continuous for a period of fifteen years.” Mulcahy,
276 Mich App at 699 (citations omitted). “Open and notorious” use of the property refers to the
type of use that raises “the presumption of notice to the world that the right of the true owner is
being invaded.” See Ennis v Stanley, 346 Mich 296, 301; 78 NW2d 114 (1956) (citation omitted).
“Continuous” use need not be constant use; rather, the property must simply be used in the normal
manner of an owner, depending on the nature of the property. Von Mending v Strahl, 319 Mich
598, 613-614; 30 NW2d 363 (1948) (“An omission to use when not needed does not disprove a
continuity of use, shown by using it when needed, for it is not required that a person shall use the
easement every day for the prescriptive period. It simply means that he shall exercise the right
more or less frequently, according to the nature of the use to which its enjoyment may be applied.”)
(citation omitted). “Adverse or hostile use is use that is inconsistent with the right of the owner,
without permission asked or given, that would entitle the owner to a cause of action against the
intruder for trespassing.” Id. at 702. “The burden is on the party claiming a prescriptive easement
to show by satisfactory proof that the use of the defendant's property was of such a character and
continued for such a length of time that it ripened into a prescriptive easement.” Mulcahy, 276
Mich App at 699.
Plaintiff primarily argues that defendant’s use of the driveway was permissive, rather than
adverse or hostile. A large portion of plaintiff’s appellate brief, and the bulk of its documentary
evidence, is devoted to establishing that plaintiff gave defendant permission to use the driveway
once it purchased Lot 598. But that fact is not in dispute; rather, the issue is whether defendant
had already established the elements of a prescriptive easement when plaintiff purchased the
property in 1996. The only documentary evidence presented by plaintiff concerning the time
period before it purchased the property are the affidavits of Maggie and Justin Price, and the 1996
letter from an attorney. The trial court discounted the statements in the Price affidavits concerning
defendant’s alleged permission to park on the driveway given by the prior owner, on the ground
that they did not appear to have been based on personal knowledge. We agree with the trial court.
Maggie’s affidavit stated that she was “personally familiar with the Church parking lot and
[defendant’s] vehicles because of my affiliation [with plaintiff].” It does not explain how she came
to know whether defendant had been given permission by Lot 598’s prior owner to use the
driveway. Nor does it offer any details regarding when or how any such permission had been
given. Justin’s affidavit similarly claims an affiliation with plaintiff, but offers no other details to
support the claim that defendant received permission (from the Temple Association) to use the
driveway prior to plaintiff’s purchase of Lot 598. Both affiants in essence claim a familiarity with
the parking situation that arises out of their involvement with plaintiff; neither affiant has asserted
that they witnessed or were otherwise personally aware of defendant’s interactions with the
previous owner. We agree with the trial court that the statements in the Price affidavits concerning
an alleged agreement between defendant and another party were not based on personal knowledge
and were inadmissible hearsay. Ykimoff v Foote Mem Hosp, 285 Mich App 80, 105; 776 NW2d
114 (2009); MRE 602, MRE 801(c), MRE 802.
The 1996 attorney letter suffers from the same hearsay problem—to the extent that its
statements that defendant “has not been doing this for a very long time” and “this is not a threat of
adverse possession or prescriptive easement” were offered for the truth of the matter asserted, the
trial court correctly held them to be inadmissible. Ykimoff, 285 Mich App at 105. In any event,
even if the letter were admissible into evidence, it seems to support an inference that no permission
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to use the driveway had been given prior to plaintiff giving it sometime after purchasing the
property.
By contrast, defendant’s affidavit states definitively that he used the driveway to park his
vehicles, in the normal manner of a driveway, since 1978, and that he did so without anyone’s
permission. Plaintiff argues that defendant’s affidavit is merely conclusory and insufficient to
create a genuine issue of material fact, see Quinto, 451 Mich at 370. We disagree. If defendant
had testified to the statements in his affidavit at trial, he would have established the elements of a
prescriptive easement. Further, although defendant’s affidavit may have been self-serving (as
most affidavits offered in support of a party’s position are), it was uncontradicted by any other
admissible evidence offered concerning the relevant time period from 1978 until 1993. See Broz
v Plante & Moran, PLLC, 331 Mich App 39, 56; 951 NW2d 64 (2020). Although plaintiff points
out that defendant stated in a 2003 letter that the previous owner “had no problem with” him
parking his vehicles in the driveway, in that very same correspondence defendant also states that
he did not seek, and was not given, permission to do so. Defendant’s statement, in context, simply
reflects that he had never had a conflict with the driveway’s previous owner over its use. The
element of hostile or adverse use does not require such conflict. Mulcahy, 276 Mich App at 702(noting that the hostility element “does not imply ill will” and that “[t]he claimant is not required
to make express declarations of adverse intent during the prescriptive period”).
In light of the fact that defendant’s documentary evidence was unrebutted by any
admissible evidence from plaintiff, Quinto, 451 Mich at 362, we conclude that the trial court did
not err by holding that defendant’s use of the driveway had been hostile or adverse for the requisite
15-year prescriptive period. Plaintiff also briefly argues that defendant’s use of the driveway was
not continuous, but only supports that argument with statements from affiants who first observed
defendant’s use of the driveway long after the prescriptive period had passed. Plaintiff offers no
evidence to counter defendant’s sworn statement that his prior use of the driveway was continuous
considering the nature of the property as a driveway for a residential home. Von Mending, 319
Mich at 613-614.
Affirmed.
/s/ Mark T. Boonstra
/s/ Kathleen A. Feeney
/s/ Adrienne N. Young
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