                          STATE OF MICHIGAN

                             COURT OF APPEALS



MICHAEL WENNERS, DAVID CROSS and                                   UNPUBLISHED
SALLY CROSS,                                                       July 20, 2017

               Plaintiffs-Appellants,

v                                                                  No. 332654
                                                                   Washtenaw Circuit Court
MATTHEW     D.   CHISHOLM,    AMY   C.                             LC No. 12-001197-CH
CHISHOLM, also known as AMY C. VOGEL,
CLAUDIA M. WEBB and MARY J. POIRER,

               Defendants,

and

MICHELLE SHAUGHNESSY,

               Defendant-Appellee.


Before: SERVITTO, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

       In this declaratory judgment action, plaintiffs appeal as of right the trial court’s order
granting summary disposition in favor of defendant, Michelle Shaughnessy. We reverse and
remand for further proceedings.

        Plaintiffs are adjacent riparian property owners, on Portage Lake in Washtenaw County,
whose properties are separated by a foot pathway that runs to the lake. They are involved in a
long-running legal dispute regarding use of the pathway with defendants, who are owners of
neighboring parcels that are non-riparian back lots, and used the pathway to access the lake and a
seasonal dock they place in the water to moor boats. Defendants Matthew and Amy Chisholm
moved for summary disposition pursuant to MCR 2.116(C)(5) and (C)(8), which the trial court
denied, and additionally filed a separate lawsuit against the unknown owners of the pathway,
asserting a prescriptive easement (Washtenaw Circuit Court case 14-107-CH). The Chisolm
defendants sought interlocutory appeal of the trial court’s denial of their motion for summary
disposition. In the meantime, however, they obtained a default judgment in the separate matter
against the unknown owner of the footpath. This Court thus ultimately dismissed their appeal as


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moot.1 Plaintiffs and the Chisolm defendants thereafter signed a consent judgment dismissing
the Chisolm defendants from the case.

        Thereafter, defendant Michele Shaughnessy (hereafter, defendant) sought dismissal of
plaintiffs’ claims against her. Defendant relied upon this Court’s March 24, 2015 opinion
finding the Chisolm defendants appeal moot. According to defendant, because the Chisolm
defendants obtained a default judgment against the unknown owners of the footpath and this
Court found their appeal regarding summary disposition in the instant matter moot given the
default judgment, plaintiffs have no rights or interest in the footpath and thus have no standing to
pursue any claims regarding the same against her. Citing MCR 2.116(C)(10) (no genuine issue
of material fact), and stating that it found that plaintiffs “lacked standing to pursue the relief
requested” the trial court granted defendant’s motion. Plaintiffs now appeal as of right from that
decision.

        This Court reviews a trial court's decision on a motion for summary disposition de novo
as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). “In
reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions,
affidavits, and other relevant documentary evidence of record in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists to warrant a
trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).

       Plaintiffs first contend that the trial court erred in granting summary disposition in favor
of defendant because the trial court relied solely on this Court’s mootness ruling in the co-
defendants’ earlier appeal. We agree.

        This Court’s decision in the earlier appeal addressed only the issue of mootness, and did
not address the issue of standing. The trial court erroneously conflated the separate and distinct
legal doctrines of mootness and standing. Plaintiffs’ claims against defendant are not moot, and
this Court’s mootness ruling in the co-defendants’ earlier appeal does not require a ruling that
plaintiffs lack standing to pursue their claims for declaratory relief against defendant.

       Our Supreme Court has comprehensively summarized the mootness doctrine as follows:
                It is well established that a court will not decide moot issues. This is
       because it is the principal duty of this Court . . . to decide actual cases and
       controversies. That is, the judicial power . . . is the right to determine actual
       controversies arising between adverse litigants, duly instituted in courts of proper
       jurisdiction. As a result, this Court does not reach moot questions or declare
       principles or rules of law that have no practical legal effect in the case before
       it. . . . It is universally understood . . . that a moot case is one which seeks to get
       a judgment on a pretended controversy, when in reality there is none, . . . or a
       judgment upon some matter which, when rendered, for any reason, cannot have
       any practical legal effect upon a then existing controversy. Accordingly, a case is


1
 Wenners v Chisholm, unpublished opinion per curiam of the Court of Appeals, issued March
24, 2015 (Docket No. 314938).


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       moot when it presents nothing but abstract questions of law which do not rest
       upon existing facts or rights.

               In general, because reviewing a moot question would be a “purposeless
       proceeding,” appellate courts will sua sponte refuse to hear cases that they do not
       have the power to decide, including cases that are moot. Whether a case is moot
       is a threshold issue that a court addresses before it reaches the substantive issues
       of the case itself. [People v Richmond, 486 Mich 29, 34-35; 782 NW2d 187
       (2010) (internal quotations and citations omitted).]

Accordingly, an issue is moot when an event occurs that renders it impossible for the reviewing
court to grant relief. C D Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich App 389, 406; 834
NW2d 878 (2013); People v Billings, 283 Mich App 538, 548; 770 NW2d 893 (2009).
        This Court’s earlier decision regarding mootness of the claims between plaintiffs and the
Chisholm defendants does not require a ruling that the claims between plaintiffs and defendant
are moot. Defendant was not a party to the “Unknown Owners” case, and the record on appeal
does not contain any documentation indicating that defendant has obtained a court ruling
declaring that she possesses a prescriptive easement to riparian and water-access rights with
regard to the subject real property, as the Chisolm defendants did. Based on the record before
this Court, it remains possible to award plaintiffs the relief they seek against defendant. This
case does not involve a pretended controversy, and does not involve only “abstract questions of
law which do not rest upon existing facts or rights.” Richmond, 486 Mich at 35. Therefore, the
instant appeal is not moot.

        The trial court clearly stated that it awarded summary disposition to defendant based
solely on this Court’s decision in the Chisholm defendants’ appeal. Yet, this Court’s decision
did not mention standing and was not based on a finding that plaintiffs lacked standing to pursue
their claims against the Chisholm defendants. The trial court erred in relying solely on this
Court’s mootness opinion to reach the conclusion that plaintiffs lacked standing to pursue their
claims against defendant.

       Plaintiffs also contend that they have proper standing to pursue their claim for a
declaratory judgment against defendant. We agree.

        “Whether a party has standing is a question of law subject to review de novo.” Groves v
Dep't of Corrections, 295 Mich App 1, 4; 811 NW2d 563 (2011). Our Supreme Court recently
altered its view of standing to a more “limited, prudential approach,” overruling Lee v Macomb
Co Bd of Comm’rs, 464 Mich 726, 739; 629 NW2d 900 (2001), and directing that plaintiffs need
not meet the federal case or controversy standing requirement, i.e., the establishment of a
concrete and particularized injury caused directly by the challenged conduct. Lansing Schs Ed
Ass'n v Lansing Bd of Ed, 487 Mich 349, 363-366, 372; 792 NW2d 686 (2010). In doing so, the
Court reiterated that

       [t]he purpose of the standing doctrine is to assess whether a litigant’s interest in
       the issue is sufficient to “ensure sincere and vigorous advocacy.” Thus, the
       standing inquiry focuses on whether a litigant “is a proper party to request


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       adjudication of a particular issue and not whether the issue itself is justiciable.”
       [Id. at 355 (internal citations omitted).

The purpose of a declaratory action is “to enable the parties to obtain adjudication of rights
before an actual injury occurs, to settle a matter before it ripens into a violation of the law or a
breach of contract . . . .” UAW v Central Mich Univ Trustees, 295 Mich App 486, 496; 815
NW2d 132 (2012). A complaint for a declaratory judgment is brought pursuant to MCR 2.605.
Whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to
seek a declaratory judgment. Id. at 495.

       MCR 2.605(A)(1) provides that, “[i]n a case of actual controversy within its jurisdiction,
a Michigan court of record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought or granted.”
Therefore, the proper question is whether an actual controversy exists between plaintiffs and
defendant, within the meaning of MCR 2.605(A)(1). As this Court explained in UAW, 295 Mich
App at 495:

               An “actual controversy” under MCR 2.605(A)(1) exists when a
       declaratory judgment is necessary to guide a plaintiff’s future conduct in order to
       preserve legal rights. The requirement prevents a court from deciding
       hypothetical issues. However, by granting declaratory relief in order to guide or
       direct future conduct, courts are not precluded from reaching issues before actual
       injuries or losses have occurred. The essential requirement of an “actual
       controversy” under the rule is that the plaintiff pleads and proves facts that
       demonstrate an “adverse interest necessitating the sharpening of the issues
       raised.”

Generally, where the injury sought to be prevented is hypothetical, a case of actual controversy
does not exist. Citizens for Common Sense in Gov’t v Attorney General, 243 Mich App 43, 55;
620 NW2d 546 (2000), citing Recall Blanchard Comm v Secretary of State, 146 Mich App 117,
121; 380 NW2d 71 (1985).

         In this lawsuit, plaintiffs are riparian property owners with a strip of land running
between their properties to Portage Lake. The parties agreed that defendants possessed an
ingress and access easement over the southerly portion of this strip of land, ending
approximately 90 feet from the lake, but contested defendant’s rights concerning the 18-foot
wide strip of land within the last 90 feet from the end of the easement to the lake (referred to by
the parties as the “Northern Way”). Plaintiffs’ properties lie immediately adjacent to the dock
erected at the end of the Northern Way, which defendant seeks to access and utilize. Plaintiffs’
First Amended Complaint sought a declaratory judgment that defendant did not have riparian
rights in Portage Lake, that she did not have the right to access Portage Lake by passing over the
strip of land between plaintiffs’ real properties, and that she did not have the right to place a dock
or moor a boat unattended in the waters of Portage Lake. Plaintiffs argue that the 100-foot long
dock moors multiple boats and that its use has negatively impacted access to one of plaintiffs’
docks. Plaintiffs argue that they have to contend with the increased traffic and noise created by
the neighbors’ use of the Northern Way and the dock located at its waterfront terminus, and that


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they are differently affected by defendants’ use of the dock than other riparian owners on Portage
Lake, or the public at large.

        We conclude that plaintiffs’ interest in the issues presented in this lawsuit is sufficient to
ensure sincere and vigorous advocacy, and that a declaratory judgment is necessary to guide the
parties’ future conduct in order to preserve legal rights. The parties’ dispute has been ongoing
for multiple years, and presents more than a merely hypothetical question. These parties have
demonstrated an adverse interest necessitating the sharpening of the issues raised. Plaintiffs raise
significant questions regarding what riparian rights defendant may exercise, and whether
defendant’s exercise of such riparian rights interfere with plaintiffs’ own riparian rights.
Because plaintiffs have a sufficient personal stake in the outcome of this litigation that differs
from that of the general public, plaintiffs have standing to maintain this suit for declaratory
judgment against defendant. The trial court erred in granting the motion for summary
disposition based on a perceived lack of standing.

        Finally, plaintiffs argue that the trial court should have granted summary disposition in
their favor and against defendant, pursuant to MCR 2.116(I), which permits a trial court to render
judgment if it appears that the opposing party, rather than the moving party, is entitled to
judgment. We disagree.

        Plaintiffs rely on affidavits executed by the three named plaintiffs, which were attached
as exhibits to plaintiffs’ March 15, 2016 brief opposing defendant’s renewed motion to dismiss.
Those affidavits address whether, in plaintiffs’ view, defendant met the elements of adverse
possession as to the Northern Way. At oral argument below, plaintiff’s counsel made only brief
mention of a request that the trial court grant summary disposition in favor of his clients rather
than granting summary disposition in favor of defendant. This issue was not sufficiently
explored below. Defendant’s motion was premised on standing based on the ruling regarding the
Chisholm defendants in this Court and on the doctrine of estoppel. Defendant was not on notice
before the motion hearing that plaintiffs were pursuing a disposition of the prescriptive easement
claim. Defendant was never incentivized or provided the opportunity to cross-examine the
plaintiffs, authors of the affidavits, regarding the facts averred in those documents. Plaintiffs
never asked the trial court to hold an evidentiary hearing, and a trial has not yet occurred below.
The trial court noted that it issued its ruling based only on standing considerations and not based
on the affidavits filed by the parties. Furthermore, the trial court never fully explored
defendants’ estoppel arguments. We conclude that the relevant issues were not sufficiently
developed in the trial court to permit this Court to hold that summary disposition should have
been granted in plaintiffs’ favor pursuant to MCR 2.116(I).

        We reverse and remand for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                              /s/ Deborah A. Servitto
                                                              /s/ Christopher M. Murray
                                                              /s/ Stephen L. Borrello


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