                         STATE OF MICHIGAN

                          COURT OF APPEALS



KENNETH POLLACK, LYNN POLLACK,                                    UNPUBLISHED
SUSAN ALDRICH, MARCUS WARREN, LISE                                May 30, 2017
WARREN, CHARLES SCHILLING, LYNDA
SCHILLING, DOUGLAS TAYLOR, DEBORAH
TAYLOR, DAVE DETTLING and EVIE
DETTLING,

              Plaintiffs/Counter-Defendants-
              Appellants,

v                                                                 No. 330540; 331241
                                                                  Lenawee Circuit Court
JEFFREY B. FRASER, DANIELLE FRASER,                               LC No. 14-005069-CZ
SUSAN BROWN and RUSSELL BROWN,

              Defendants/Counter-Plaintiffs-
              Appellees.


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

       In Docket No. 330540, plaintiffs appeal as of right the September 15, 2015 order
granting defendants’ motion for sanctions and attorney fees and dismissing all counterclaims. In
Docket No. 331241, plaintiffs appeal, by leave granted,1 challenging the trial court’s earlier
orders granting defendants’ motion for summary disposition, dismissing plaintiffs’ complaint,
and denying plaintiffs’ motion to amend their complaint. We affirm.



                                     I. BACKGROUND

      The plaintiffs in this action are the current owners of several “back lots” near Wamplers
Lake in Lenawee County. Plaintiffs’ properties do not contain any lake frontage; rather,


1
 Pollack v Fraser, unpublished order of the Court of Appeals, entered April 13, 2016 (Docket
No. 331241).


                                               -1-
plaintiffs claim a right to access Wamplers Lake through a ten-foot-wide strip of land upon
which has been erected, at least at times, a dock extending into the lake. The record owners of
the ten-foot strip are William and Elizabeth Gentner and Charles and Mary Lapham, premised on
a 1926 deed. It appears uncontested that, sometime before 1980, all four of the record owners
died without conveying away any interest they had in the ten-foot strip. Their interest in the strip
is therefore presumed to pass to their respective heirs, none of whom have been located or are
parties to the litigation at issue. Defendants—Jeffrey and Danielle Fraser and Susan and Russel
Brown—are the owners of parcels directly neighboring both sides of that ten-foot-wide strip.

       Sometime before 1980, the then-owners of the back lots erected a dock from or near the
ten foot strip. The then-owners of defendants’ properties filed suit to enjoin the then-owners of
the back lots from encroaching on their property rights via this dock and using this dock in any
way, including tying up rafts or pontoons. In 1980, the trial court issued the following ruling:

               [The back lot owners] have used the strip as an access to Wamplers Lake
       for many years. A dock of varying size and shape has been maintained at the end
       of the strip for many years. Boats have been tied to the dock for many years.
       Lately pontoon rafts have been moored there also. [The back-lot owners] have
       built, maintained and used the dock for boating, fishing, swimming, wading, and
       normal lake recreation usage.

               People on the other dead end streets of this subdivision have similar or
       larger strips of land as access to the lake extending from their streets to the lake.

              Our first problem is the ownership of the 10 foot strip. [The neighboring
       property owners] do not own it. [The back-lot owners] do not own it. . . .

              Joseph Scalabrino testified that Gentners and Lapham own the strip. . . .
       [W]e conclude Lapham and Gentners are still the record title holders. . . .

               Next, we go to the usage of the strip by [the back-lot owners] and by their
       predecessors. It was apparent the lot owners had been told by Gentner they could
       use the strip to get to the lake. While there was no testimony to that effect, it is
       more than reasonably possible that this was one of the factors which made the lots
       on Oak Street salable. With the number of lakes, summer cottage subdivisions,
       right of ways, easements and law suits involving them that we’ve seen down
       through over a quarter of a century of listening to trials in this county, we know
       “back” lots aren’t of much value without access. In other words, the owner of the
       strip did not grant an easement, right of way, or written interest in the strip. They
       did grant a type of license and estoppel probably would prohibit the grantors, their
       heirs, and assigns from revoking that license should there be a legal contest over
       it.

              There was no permission from [the neighboring property owners] for the
       [back-lot owners] to use the strip, place the dock or moor boats to any dock.



                                                -2-
        [The back-lot owners] did not feel they had a right to willy nilly place
boats, rafts, or docks out in the water in front of [their neighbors’] shore lines.
They did, and do feel they can continue the practice of having a pier and tying
boats and rafts to it.

        Since the [back-lot owners] are not record title owners, they have no
riparian rights as such title owners.

       Gentner and Lapham were riparian or litterol [sic] owners. They gave
permission to the [back-lot owners] to exercise the riparian rights the Gentners
and Laphams had. This they could do.

        [The neighboring property owners] own out to the middle of the lake.
Riparian owners have no right of permanent anchorage on the submerged land of
others.

       The dock, if reasonable, is permissible as it is on the extension of the strip.
The tying of boat to the dock, if reasonable, is permissible. The mooring of
pontoon rafts is another story.

        [The back-lot owners] have placed metal poles about 12 feet from the
dock to tie the lake side of the rafts to. These poles must be in the bottom of the
lake in submerged land owned by [the neighboring property owners]. [The
neighboring property owners] granted no right to permanent anchorage on their
submerged land. Is this permanent anchorage? Yes. While the poles probably
are there only during the boating season, if continued for enough boating seasons,
it would ripen into an easement by adverse use.

        Has there been adverse use[] for 15 years? We carefully searched the
testimony. Boats of all sizes have been tied to the dock for many years. For a
time in the 60’s, small docks were installed at an angle to the main dock and
boats, and boat hoists were kept in connection with them. However, there has
been no continuous adverse use[] of permanent anchorage with posts driven into
the [neighboring property owner’s] submerged land for 15 consecutive years.
Therefore, [the back-lot owners] have no legal right to maintain such posts
outside of the extension of the strip.

        Next we get to the touchy question of the mooring of boats and rafts to the
dock. If there is no encroachment on the submerged land of the [neighboring
property owners], [the back-lot owners] have a right to tie boats and rafts to their
dock as possessors of litterol [sic] or riparian rights. Even if they had no such
riparian rights, they would have acquired such rights by adverse use[]. The
riparian rights, of course, can be exercised only if they are reasonably used so as
not to unreasonably interfere with others rights.

       For the purposes of this law suit, we find that the dock length and the tying
of boats and rafts to it, at the far end had been done in a reasonable exercise of

                                         -3-
       riparian rights. We would therefore enjoin only the use of anchorage that
       encroaches directly on and into the [neighboring property owner’s] submerged
       land.

               Sometimes we have had to set limits on the number of boats and where
       they might be placed on the docks. We feel it is unnecessary here at this time
       under the facts of our case. There simply was no evidence of present unusually
       crowded use of the dock. At the most, three or four boats or rafts had been tied to
       the far end, and these did not create an unreasonable interference with others
       rights.

               The Irish Hills may be the best of all worlds for summer lake fun and
       recreation—but—with power boats, boat hoists, pontoon rafts and thousands of
       people all trying to use the surface of the waters for their aquatic equipment, there
       simply is not enough room for everyone without a little give on everyone’s part.

              A judgment in accordance to this opinion may be entered. Neither party
       having succeeded in full, no costs will be taxed. [Internal citations omitted.]

        The trial court then entered an order permanently enjoining the back-lot owners from “the
use of any anchorage that encroaches directly on and into the lands” of the neighboring property
owners.

       The parties in the current lawsuit dispute what rights, if any, were granted to the back-lot
owners by way of the 1980 ruling. It appears to this Court that plaintiffs—the now-owners of the
back lots—intended to use the access provided by the ten-foot strip more extensively than the
prior owners via a dock that would allow for the mooring of more watercraft. Defendants
apparently attempted to thwart this use by erecting two docks of their own. These docks were
erected on either side of the ten-foot strip and prevent plaintiffs from mooring certain watercraft.
Defendants’ docks do appear to sit within defendants’ respective property lines.

       As initially considered, plaintiffs’ complaint sought relief under the doctrines of trespass
and private nuisance. The trial court granted defendants’ motion for summary disposition on
both claims, finding that the 1980 ruling granted plaintiffs a license to use the land. The trial
court concluded that plaintiffs were attempting to relitigate the same issue conclusively
determined by the 1980 trial court and dismissed the complaint in its entirety under MCR
2.116(C)(8) and (10). Plaintiffs thereafter filed a motion for reconsideration and to amend their
complaint to include various new claims, including claims of adverse possession and prescriptive
easement. The trial court denied this motion and plaintiffs filed the appeals now before us.

                                           II. ANALYSIS

        Plaintiffs initially contend that the trial court erred in dismissing their original complaint.
Plaintiffs assert the trial court misunderstood or failed to comprehend the prior 1980 ruling




                                                 -4-
regarding the property currently in dispute and their entitlement to riparian rights,2 which they
contend would permit the maintenance of a dock and the mooring of watercraft.

        This Court reviews the decision of a trial court on a motion for summary disposition de
novo. Grosse Pointe Law Firm, PC v Jaguar Land Rover North America, LLC, 317 Mich App
395, ___; ___ NW2d ___ (2016) (Docket No. 326312); slip op at 3. Defendants moved for
summary disposition under both 2.116(C)(8) and (C)(10). MCR 2.116(C)(8) “tests the legal
sufficiency of a complaint,” Wells Fargo Bank, NA v SBC IV REO, LLC, ___ Mich App ___,
___; ___ NW2d ___ (2016) (Docket No. 328186); slip op at 8, while (C)(10) considers whether
there remains a genuine issue of material fact for trial. In other words, a (C)(10) motion “tests
the factual support for a party’s claim.” Id.

       Plaintiffs’ original complaint was comprised solely of claims of trespass and private
nuisance, both of which fail, as a matter of law. Accordingly, we conclude that the trial court
properly granted summary disposition to defendants on both claims.

        A Mere License Cannot Sustain a Private Nuisance Claim. “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). In order to maintain an action
for private nuisance, a plaintiff must prove that:

       (a) [the plaintiff] 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 and unreasonable, or (ii) unintentional and otherwise actionable under
       the rules governing liability for negligent, reckless, or ultrahazardous conduct.
       [Id. at 304.]

Specifically, “the gist of a private nuisance action is an interference with the occupation or use of
land or an interference with servitudes relating to land.” Id. at 303. Accordingly, plaintiffs’
claim for private nuisance fails if they cannot prove that they hold an affected property interest.

        Plaintiffs argue that they have a property interest byway of the 1980 trial court’s
purported recognition of their riparian rights in Wambler Lake. The 1980 trial court, however,
did not recognize that the back-lot owners held riparian rights of their own. Indeed, the 1980
trial court ruled that “[s]ince the [back-lot owners] are not record title owners, they have no
riparian rights as such title owners.” Rather, the 1980 trial court ruled that the Gentners and



2
  We recognize that “[s]trictly speaking, land which includes or abuts a river is defined as
riparian, while land which includes or abuts a lake is defined as littoral.” Thies v Howland, 424
Mich 282, 288 n 2; 380 NW2d 463 (1985). Nonetheless, “the term ‘riparian’ is often used to
describe both types of land, and will be used in such a manner in this opinion.” 2000 Baum
Family Trust v Babel, 488 Mich 136, 138 n 1; 793 NW2d 633 (2010) (internal quotation marks
and citation omitted).


                                                -5-
Laphams held riparian rights, and that those parties granted the back-lot owners a “type of
license” to use the rights they held.

        Indeed, such a ruling comports with our long-held precedent regarding the divisibility of
riparian rights from the accompanying land. Our Supreme Court has stated that “riparian rights
are not alienable, severable, divisible or assignable apart from the land which includes therein or
is bounded by a natural water course.” Thompson v Enz, 379 Mich 667, 686; 154 NW2d 473
(1967). Yet, “[w]hile riparian rights may not be conveyed or reserved—nor do they exist by
virtue of being bounded by an artificial water course—easements, licenses and the like for a right
of way for access to a watercourse do exist and ofttimes are granted to nonriparian owners.” Id.
Accordingly, because plaintiffs’ predecessors-in-interest did not premise their position in the
1980 litigation on any right of ownership to the 10-foot-strip, but rather maintained that the
Gentners and Laphams, or their heirs, owned the strip, the 1980 trial court could not have
concluded that plaintiffs’ predecessors-in-interest enjoyed any riparian rights.

         Thus, because they had no ownership interest in the ten-foot strip, the most the back-lot
owners could have held in 1980 was a right of way to access the water via a license or an
easement. And, whether the 1980 trial court ruled that plaintiffs’ predecessors-in-interest held a
license or an easement is dispositive of plaintiffs’ claim for private nuisance. More specifically,
where a plaintiff holds only a license to enjoy another’s land for a limited purpose, the plaintiff
cannot maintain an action for a private nuisance. Licenses are deemed to be “terminable at will
by the grantor,” and “because of their revocability, they do not create an interest in land.”
Kitchen v Kitchen, 465 Mich 654, 659; 641 NW2d 245 (2002). Rather, a license is a mere
“permission to do some act or series of acts on the land of the licensor without having any
permanent interest in it.” Id. at 658 (emphasis added) (internal quotation marks and citation
omitted). Accordingly, because a license creates no interest in land, the license holder cannot
maintain an action for a private nuisance. See 2 Restatement Torts, 2d, § 821E, p 103 (“The
liability for private nuisance exists only for the protection of persons having property rights and
privileges, that is, legally protected interests, in respect to the particular use or enjoyment that
has been affected”).

        For its part, an easement constitutes “a right to use the land burdened by the easement
rather than a right to occupy and possess [the land] as does an estate owner.” Mich Dep’t of
Nat’l Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 378; 699 NW2d 272 (2005)
(internal citations and quotation marks omitted). Although an easement, similar to a license, is
“generally confined to a specific purpose,” Id. at 378-379, the defining characteristic of an
easement is that it is a right to use the land, rather than a permission to use the land. For that
reason, an easement is defined as “a limited property interest.” Id. at 378. Accordingly, as an
interest holder in the property, the holder of an easement may maintain an action for a private
nuisance. See 2 Restatement Torts, 2d, § 821E, p 102-103 (stating that an easement owner has a
legally protected interest in the use and enjoyment of the land sufficient to maintain an action for
private nuisance).

       The plain language of the 1980 trial court’s ruling, recognizing a “type of license,”
strongly supports a finding that the trial court recognized that the back-lot owners held a true
license rather than an easement. Additionally, as a property interest, an easement must be
evidenced by a writing sufficient to satisfy the statute of frauds. Kitchen, 465 Mich at 661.

                                                -6-
Because a license is a mere permission, “the statute of frauds is inapplicable.” Id. at 659. As did
the trial court in the instant case, the 1980 trial court found no evidence of any writing sufficient
to satisfy the statute of frauds. This finding is supported by the absence of the 10-foot strip in the
plat for plaintiffs’ subdivision and the lack of any other writing presented to this Court on appeal.
Accordingly, we conclude that the 1980 trial court properly recognized, as did the trial court in
this case, that the back-lot owners held only a license to use the 10-foot strip to access the lake. 3
Because plaintiffs held only a license to access the lake, plaintiffs therefore could not maintain
an action for private nuisance.

        A Mere License Also Cannot Support a Trespass Claim. Similarly, that plaintiffs’ hold
only a license to use the ten-foot strip prevents them from maintaining an action for trespass. “A
trespass is an unauthorized invasion upon the private property of another.” American
Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App 695, 705; 609 NW2d 607 (2000).
Therefore, to the extent that plaintiffs’ have failed to identify an unauthorized invasion onto their
property, plaintiffs’ are unable to maintain an action for trespass. Further, it appears to this
Court that plaintiffs’ allegations of trespass are largely premised on their assertion that
defendants’ docks on defendants’ own property, in the manner erected, precluded plaintiffs from
the use of the dock associated with the 10-foot strip to moor boats or to access the lake because
of the resulting space restriction. We note that, even had plaintiffs’ proven ownership of the ten-
foot strip, these allegations are insufficient to maintain an action for trespass as they do not
indicate an “unauthorized invasion” onto “private property.” Id.

         For these reasons, both of plaintiffs’ initial claims fail as a matter of law. Essentially, to
have any viable claim for relief, the claims would have to have been brought by the actual
owners of the ten-foot strip. Accordingly, we conclude that the trial court properly dismissed
plaintiffs’ original complaint.



3
  Defendants contend that the 1980 ruling does not establish plaintiffs’ right of way, but rather
distinguish between the trial court’s written findings and its written judgment, the latter of which
failed to indicate that plaintiffs had any entitlement to a dock or mooring of boats. In support of
their position, defendants reference the proscription that a trial court “speaks [only] through its
written orders and judgments,” but fail to include or recognize the remainder of the statement,
which further explains that a trial court does not speak “through its oral pronouncements.” In re
Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009). Hence, there are two
problems with defendants’ position with regard to the contention that the written findings do not
rise to the status of a written order of judgment. First, the trial court’s factual findings were
written and were not an “oral pronouncement.” Second, the trial court’s written findings indicate
that “[a] judgment in accordance to this option may be entered,” confirming the trial court’s
findings are a part of or the basis for the judgment that will ensue. The judgment further
confirms this understanding in referencing not only the submission of proofs, but recognizing
that it had “filed” its “written findings,” indicating a greater formality and interrelationship
between the two documents than intimated by defendants.



                                                 -7-
        The Trial Court Did Not Err by Denying Plaintiffs’ Motion to Amend Their Complaint.
        Plaintiffs further argue that the trial court erred in denying their request to amend their
complaint to add counts pertaining to adverse possession and prescriptive easement. Because
plaintiffs did not seek to amend their complaint until they filed a motion for reconsideration, the
issue is not properly preserved. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513,
519; 773 NW2d 758 (2009). This Court reviews unpreserved issues for plain error affecting
substantial rights. King v Oakland Co Prosecutor, 303 Mich App 222, 239; 842 NW2d 403
(2013). “To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an
error must have occurred; (2) the error was plain, i.e., clear or obvious, and (3) the plain error
affected substantial rights.” Rivette v Rose-Molina, 278 Mich App 327, 328-329; 750 NW2d 603
(2008) (internal citation omitted).

       As discussed in Kincaid v City of Flint, 311 Mich App 76, 94-95; 874 NW2d 193 (2015):

               A party may amend a pleading once as a matter of course within 14 days
       after being served with a responsive pleading by an adverse party. . . . Except as
       provided . . ., a party may amend a pleading only by leave of the court or by
       written consent of the adverse party. Leave shall be freely given when justice so
       requires. Because a court should freely grant leave to amend a complaint when
       justice so requires, a motion to amend should ordinarily be denied only for
       particularized reasons. Those reasons include undue delay, bad faith or dilatory
       motive, repeated failure to cure deficiencies by amendments previously allowed,
       undue prejudice, or futility. Further, . . . when the trial court summarily disposes
       of a case under subrules (C)(8), (C)(9), or (C)(10), the trial court shall give the
       parties an opportunity to amend their pleadings . . . unless the evidence then
       before the court shows that amendment would not be justified. [Internal citations
       and quotation marks omitted.]

       The trial court indicated several reasons for its denial of plaintiffs’ request to amend their
complaint. Primarily, the trial court noted that plaintiffs’ proposed addition of entirely different
claims and the inclusion of other parties were more akin to an entirely new pleading rather than
an amendment of the current complaint to conform to the proofs elicited in accordance with
MCR 2.118(C)(1).4 We agree.

        An action for adverse possession or prescriptive easement is an action against the original
property owner or his or her heirs and is intended to determine the property rights to the parcel at
issue. Accordingly, such an action focuses largely on the conduct of the purported adverse
possessor or prescriptive easement holder and the original owner. In contrast, an action for
trespass or private nuisance largely presumes the plaintiff’s property rights and focuses, instead,


4
  “When issues not raised by the pleadings are tried by express or implied consent of the parties,
they are treated as if they had been raised by the pleadings. In that case, amendment of the
pleadings to conform to the evidence and to raise those issues may be made on motion of a party
at any time, even after judgment.” MCR 2.118(C)(1).


                                                -8-
on the conduct of the defendant trespasser or nuisance creator. Therefore, at least in the context
of the instant dispute, especially given that the heirs of the original property holders have
presumably not been located and were not listed as defendants in the initial complaint, these
claims are more amenable to an entirely new action.

       But, even more fundamentally, the trial court deemed that plaintiffs’ proposed claims for
adverse possession and prescriptive easement would be unavailing or futile. Again, we agree.

         “To establish adverse possession, the party claiming it must show clear and cogent proof
of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for
the statutory period of 15 years, hostile and under cover of claim of right.” Beach v Lima Twp,
489 Mich 99, 106; 802 NW2d 1 (2011) (internal quotation marks and citation omitted). In turn,
a party claiming a proscriptive easement must show “use of another’s property that is open,
notorious, adverse, and continuous for a period of fifteen years.” Mulcahy v Verhines, 276 Mich
App 693, 699; 742 NW2d 393 (2007) (internal quotation marks and citation omitted).

         With the filing of their motion to amend their complaint, plaintiffs argued that transfer of
title to their properties served to revoke the license, rendering any continuing use of the 10-foot
strip to be adverse or hostile to meet the requisite statutory period, especially with the use of
tacking for successive property owners. Kitchen, 465 Mich at 658-659 (“In general, a license is
revocable at will and is automatically revoked upon transfer of title by either the licensor or
licensee.”). Nonetheless, throughout this litigation and dating back to the 1980 litigation,
plaintiffs and their predecessors-in-interest asserted permissive use of the 10-foot land strip in
accordance with the license recognized in that earlier litigation, as well as that permission to use
the property had never been revoked. Additionally, plaintiffs appear to have acted mainly in line
with this asserted permission, utilizing the ten-foot strip only to access the lake and not for a use
wholly inconsistent with a license (e.g., building a structure on the land). Moreover, in the
motion to amend the complaint, plaintiffs continued to assert permissive use of the 10-foot land
strip, undermining their alternative assertion that their claim is based on hostility and a claim of
right. Therefore, by asserting, seemingly continuously, from at least 1980, that their claim to
access the lake was permissive, plaintiffs are unable to contend that their use of the ten-foot strip
was adverse, hostile, or under a claim of right. Accordingly, the trial court properly concluded
that plaintiffs’ adverse possession and prescriptive easement claims would be futile.

        Purportedly plaintiffs also sought to amend their complaint to include claims of estoppel
and acquiescence. Such claims would also be unavailing. Acquiescence has been defined in
case law as being established “when a preponderance of the evidence establishes that the parties
treated a particular boundary line as a property line.” Mason v City of Menominee, 282 Mich
App 525, 529-530; 766 NW2d 888 (2009) (internal quotation marks and citation omitted). This
case, however, has never suggested a concern or dispute pertaining to a boundary line, obviating
the applicability of the concept of acquiescence. Similarly, a claim of estoppel is also
unavailing, as “Michigan law does not permit an oral license to ripen into a permanent interest in
the use of land on the basis of estoppel alone.” Kitchen, 465 Mich at 663.

        For these reasons, we conclude the trial court did not abuse its discretion by denying
plaintiffs’ motion to amend their complaint.


                                                -9-
        The Trial Court Did Not Abuse its Discretion by Granting Sanctions. Finally, plaintiffs
contest the trial court’s grant of sanctions to defendants under MCR 2.114, asserting their claims
were brought in good faith and not for purposes of harassment and that they maintained a viable
cause of action for adverse possession. Notably, plaintiffs only challenge the trial court’s
determination regarding the propriety of an award of sanctions and not the amount awarded.

       This Court reviews a trial court’s decision to award sanctions for an abuse of discretion,
Edge v Edge, 299 Mich App 121, 127; 829 NW2d 276 (2012). “An abuse of discretion occurs
when the trial court chooses an outcome falling outside the range of principled outcomes.” Edry
v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). The trial court’s factual findings,
including a determination of frivolousness, are reviewed for clear error, Kitchen, 465 Mich at
661. “A decision is clearly erroneous where, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” Id. at
661-662.

         The 1980 trial court ruling clearly recognizes that plaintiffs hold only a license to use the
ten-foot strip to access the lake. Seemingly continuously since then, plaintiffs have asserted that
they had permission to use the ten foot strip. This permission plainly prevented plaintiffs from
maintaining the claims in their initial complaint and the main claims in their proposed
amendment to that complaint. The remaining claims proposed in plaintiffs’ amended complaint
are also clearly without factual or legal basis. Moreover, plaintiffs’ erection of a dock within 24
hours of the trial court’s verbal warning that any such action would be precluded by the trial
court, necessitating defendants to seek a permanent injunction and incur additional costs and
fees, is evidence of plaintiffs’ bad faith.

        Because the trial court sits in a better position than this Court to judge the conduct of the
parties throughout the litigation, our ability to reverse the trial court’s award of sanctions is
properly limited to situations where the trial court has chosen an unprincipled outcome or where
the record clearly belies the trial court’s factual findings. On the record before us, we are unable
to find either and must affirm the trial court’s award of sanctions.

       Affirmed.



                                                              /s/ Michael J. Riordan
                                                              /s/ Brock A. Swartzle




                                                -10-
