            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


 JAMES M. FARESE and NANCY FARESE,                                     UNPUBLISHED
                                                                       February 20, 2020
                Plaintiffs/Counter-Defendants-
                Appellees/Cross-Appellants,

 v                                                                     No. 343446
                                                                       Leelanau Circuit Court
 AMERICAN TOWER CORPORATION and DCS                                    LC No. 2016-009792-CH
 TOWER SUB, LLC,

                Defendants/Counter-Plaintiffs-
                Appellants/Cross-Appellees.


Before: SHAPIRO, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

        Following a bench trial, the trial court awarded plaintiffs a total of $25,371 in damages for
trespass and concluded that they were entitled to attorney fees because defendants had employed
a frivolous defense. Defendants appeal the trial court’s opinion and order, challenging the award
of attorney fees. In a cross-appeal, plaintiffs challenge the court’s earlier ruling that defendants
were entitled to summary disposition with regard to plaintiffs’ claim of nuisance per se. We
reverse in the main appeal and affirm in the cross-appeal.

                                       I. BACKGROUND

        Plaintiffs bought a parcel of rural property in northern Michigan in April 2014. They knew
at the time of purchase that the parcel was subject to a perpetual easement agreement that was
signed in 2011 in connection with a cellular tower (the Tower) located on the property. Defendant
DCS Tower Sub, LLC (DCS) was a signatory to the easement; defendant American Tower
Corporation (ATC) is DCS’s parent company. In September 2016, plaintiffs filed suit, claiming
trespass on the basis that users of the Tower were exceeding the scope of easements set forth in
the agreement. Plaintiffs also alleged nuisance per se, asserting that the Tower violated the Leland
Township Zoning Ordinance and requested removal of the structure.

      Relevant to this appeal, the parties disputed the scope of the so-called “compound area
easement” (CAE), containing the Tower itself and accoutrements. The easement agreement


                                                 -1-
describes the CAE as being 200 square feet, and defendants conceded that the Tower and its
equipment exceeded those dimensions. But an “As-Built Survey” conducted around the time of
execution of the easement agreement, and attached to the agreement in the Register of Deeds,
showed a 270-square-foot area. The parties disputed which figure—200 square feet or 270 square
feet—was the true applicable scope of the easement, with plaintiffs arguing that the former applied
and defendants arguing that the latter applied.

        At the summary disposition stage, the trial court determined that plaintiffs could not
maintain their nuisance-per-se claim given that the Township had previously determined that the
Tower was a legal nonconforming use. The court also denied plaintiffs’ request for summary
disposition of the trespass claim regarding the CAE. The court reasoned that the as-built survey
attached to the easement agreement suggested that there was an ambiguity regarding the scope of
the easement. However, after a bench trial, the court found that the easement agreement controlled
and awarded plaintiffs damages on the trespass claim.1 The court then sua sponte determined that
defendants employed a frivolous defense—one without arguable legal merit—regarding plaintiffs’
claims of trespass regarding the CAE and therefore awarded plaintiffs’ attorney fees under MCL
600.2591.

                                  II. DEFENDANTS’ APPEAL

        Defendants argue that the trial court clearly erred in determining that they asserted a
frivolous defense. We agree.2

        A court may assess costs and attorney fees against a party as a sanction for asserting a
frivolous action or defense. MCL 600.2591(1). An action or defense is frivolous if any of the
following conditions is met:

              (i) The party’s primary purpose in initiating the action or asserting the
       defense was to harass, embarrass, or injure the prevailing party.

               (ii) The party had no reasonable basis to believe that the facts underlying
       that party’s legal position were in fact true.




1
  The trial court also resolved disputes surrounding two additional, secondary easements set forth
in the easement agreement—an access easement and a utility easement. Those rulings are not
relevant to this appeal. Further, plaintiffs also asserted a nuisance-in-fact claim, but given the
award of damages for trespass, the trial court declined to rule on that claim because no additional
damages were available. Plaintiffs do not challenge that ruling on appeal.
2
 A trial court’s finding of frivolousness is reviewed for clear error. BJ’s & Sons Constr Co, Inc v
Van Sickle, 266 Mich App 400, 405; 700 NW2d 432 (2005). “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.” Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d
245 (2002).


                                                -2-
              (iii) The party’s legal position was devoid of arguable legal merit. [MCL
       600.2591(a)(i)-(iii).]

“[A] claim is devoid of arguable legal merit if it is not sufficiently grounded in law or fact, such
as when it violates basic, longstanding, and unmistakably evident precedent.” Adamo Demolition
Co v Dep’t of Treasury, 303 Mich App 356, 369; 844 NW2d 143 (2013) (quotation marks and
citation omitted). The reasonableness of an attorney’s inquiry into the factual and legal viability
of a defense is “determined by an objective standard and depends on the particular facts and
circumstances of the case.” LaRose Market, Inc v Sylvan Ctr, Inc, 209 Mich App 201, 210; 530
NW2d 505 (1995).

        The defense at issue is defendants’ argument that the as-built survey established a scope of
270 square feet for the CAE and that defendants were, therefore, not liable for trespass damages.
After the bench trial, the court concluded that this argument was devoid of legal basis because in
ATC’s original answer to the complaint it admitted that the dimensions of the CAE set forth in the
easement agreement were 10 feet by 20 feet and that the Tower exceeded the CAE. The as-built
survey was attached as part of the easement agreement to plaintiffs’ complaint and all subsequent
amended complaints. In response to the second amended complaint which added DCS as a party,
defendants denied that the CAE was limited to 10 feet by 20 and maintained that the correct
dimensions were 10 feet by 27 feet. Defendants admitted that the Tower and its equipment
exceeded a 200 square-foot area, but denied that the CAE was so limited.

        It appears that the trial court, by referring to the first answer, was attempting to demonstrate
that the defense was aware that the easement agreement described the scope of the CAE as 200
square feet and that the Tower was exceeding this scope. The court apparently believed that
defendants, based on this answer, should not have relied on the 270-square-foot area mentioned in
the as-built survey and should have conceded trespass because the CAE was 200 square feet and
the Tower exceeded that area. However, there is no court rule or caselaw that precludes a party
from changing its defense, especially in response to an amended complaint that adds a new party
defendant. Further, a pleading that is superseded by a substitute pleading is not a conclusive
judicial admission. Beals v Walker, 98 Mich App 214, 233; 296 NW2d 828 (1980), rev’d on other
grounds 416 Mich 469 (1982). And in answering the operative complaint (i.e., the second
amended complaint), defendants did not admit that the CAE was limited to 200 square feet.
Thereafter, defendants consistently maintained that the as-built survey should control the CAE’s
dimensions. So, ATC’s initial concession was immaterial.

        In finding that defendants asserted a frivolous defense, the court also referred to trial
testimony that the Tower and associated equipment took up more than 270 square feet. Christopher
Clark, a representative of defendants, testified at trial that he believed that there was some amount
of encroachment beyond 270 square feet, but he did not know the amount. The trial court evidently
cited this testimony to support its opinion that defendants knew they were trespassing. But
defendants did not concede a 200-square-foot area for the CAE, which was the primary allegation
by plaintiffs. It was not frivolous for defendants to contest that particular restriction and argue that




                                                  -3-
the allowable area was larger (i.e., 270 square feet) and that any trespass beyond that was small
and resulted in minimal damages.3

        We also note that the trial court had denied plaintiffs summary disposition because it found
that the as-built survey created a question of fact regarding the CAE’s dimensions. Considering
that the survey and the agreement were drafted around the same time, the court concluded that they
were arguably intended to be read together and therefore summary disposition was not
appropriate.4 It is difficult to conclude that this defense was “devoid of arguable legal merit,”
MCL 600.2591(3)(a)(iii), when the trial court itself ruled that the defense necessitated a trial. Such
a holding would suggest that defendants should have contradicted a trial court ruling that inured
to their benefit. This case is similar to Pontiac Country Club v Waterford Twp, 299 Mich App
427, 439 n 29; 830 NW2d 785 (2013), in which the Tax Tribunal granted the taxpayers a hearing
but ultimately ruled in the township’s favor. The township argued that it was entitled to costs
because the hearing was frivolous, and we concluded that the Tribunal did not err in granting a
hearing. But even if holding the hearing was erroneous, we failed to see why the taxpayers

       should be held accountable for the ‘unnecessary’ hearing. Simply because the
       Tribunal ultimately rejected the [the taxpayers’] facts and legal arguments does not
       mean that the [the taxpayers] did not have a good faith basis to advance those facts
       and arguments. In light of the Tribunal’s rulings denying the parties’ motions for
       summary disposition, the [taxpayers] had a good faith basis to believe that the
       hearing was necessary to resolve disputed facts. [Id. at 426-427.]

As in Pontiac Country Club, we are not inclined to impose fees against defendants for asserting a
frivolous defense when the trial court reasonably determined that their argument presented a
question necessitating trial. Plaintiffs contend that an attorney’s subjective good faith is not a
relevant inquiry in assessing whether a defense is frivolous, but here defendants had an objective
ruling from the presiding court that validated their defense.

         Further, defendants reasonably argued that the as-built survey best represented the intended
scope of the easement. See Wiggins v City of Burton, 291 Mich App 532, 551; 805 NW2d 517
(2011). It is undisputed that—at the time of the easement agreement was executed—the Tower
and its equipment occupied a 270 square-foot area as shown by the as-built survey. Given this, it
is difficult to understand why DCS would agree to dimensions for the CAE that were already being
exceeded by the Tower and its equipment. The trial court ultimately determined that the easement


3
  The trial court also cited the trial testimony of Brandon Ruotolo, an ATC representative. Ruotolo
testified that “there is an encroachment” regarding the Tower’s equipment, but he gave no
testimony about the extent of the encroachment. Significantly, he also said that any encroachment
was worth a “nominal value,” thus contesting plaintiffs’ damages claims. That was consistent with
defendants’ position that any encroachment beyond 270 square feet was minimal and worth only
a small amount of damages.
4
 The court made references to there being questions of fact for the jury, but the parties and the
court later clarified that the case was set for a bench trial, not a jury trial.



                                                 -4-
agreement was unambiguous and therefore controlled the scope of the CAE,5 which defendants do
not challenge on appeal. However, “[n]ot every error in legal analysis constitutes a frivolous
position.” Kitchen v Kitchen, 465 Mich 654, 663; 641 NW2d 245 (2002). In sum, under all the
circumstances, we conclude that the trial court clearly erred in finding that defendants presented a
frivolous defense.

                               III. PLAINTIFFS’ CROSS-APPEAL

        Plaintiffs argue that the trial court erred in granting summary disposition of their nuisance-
per se claim. We disagree.6

        “[A] structure erected in violation of a zoning ordinance constitutes a nuisance per se.”
Morse v Colitti, 317 Mich App 526, 554; 896 NW2d 15 (2016), citing in part MCL 125.3407. A
private citizen may bring an action to abate a nuisance, “arising from the violation of zoning
ordinances or otherwise, when the individuals can show damages of a special character distinct
and different from the injury suffered by the public generally.” Towne v Harr, 185 Mich App 230,
232; 460 NW2d 596 (1990). “All claims based on or to abate nuisance may be brought in the
circuit court,” and “[t]he circuit court may grant injunctions to stay and prevent nuisance.” MCL
600.2940(1). A court’s decision whether to abate a nuisance is equitable in nature. MCL
600.2940(5); Capitol Props Group, LLC v 1247 Ctr Street, LLC, 283 Mich App 422, 430; 770
NW2d 105 (2009).

        The parties agree that the Tower was constructed in 1997. In 1998, Leland Township began
regulating communication towers such as defendants’. The question is whether the Tower was a
legal structure at the time of its erection such that it was “grandfathered” in and not subject to the
new regulations, under which it would be considered nonconforming. In 2004, the prior zoning
administrator, Robert Hagstrom, sent a letter to DCS’s predecessor indicating that the Tower was
indeed grandfathered in and that no zoning procedures were necessary for it. Hagstrom’s
successor, Timothy Cypher, expressed agreement with this in a 2008 letter and also issued a permit



5
 The trial court’s determination that the easement agreement was unambiguous was based, in part,
on the trial testimony that the as-built survey was not completed when the easement agreement
closed. Defendant’s witness Jay Schwandt, who performed the as-built survey for Geoline
Surveying testified that he sent the first “drawing and information” to Geoline at 2:55 p.m. on
December 29, 2011, the date that easement agreement closed. He said that he had no reason to
believe “that the initial survey didn’t go directly to the third party,” i.e., DCS, on December 29,
but he did not know one way or the other. Even though the survey was not finalized until January,
Schwandt’s testimony was consistent with defendants’ position that the survey was representative
of the intent behind the easement. Accordingly, this was not a case where the defendant presented
proofs at trial that contradicted a prior position.
6
  We review de novo a trial court’s decision regarding a motion for summary disposition. Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Equitable decisions are also reviewed de
novo, and the supporting findings of fact are reviewed for clear error. Capitol Props Group, LLC
v 1247 Ctr Street, LLC, 283 Mich App 422, 430; 770 NW2d 105 (2009).


                                                 -5-
in April 2011 for a platform for the Tower. But during or shortly before this litigation, Cypher
changed his mind and stated that the Tower had been illegal at the time of its erection.

        In granting defendants’ summary disposition, the trial court stated that plaintiffs could not
maintain a nuisance-per-se claim “given the 2004 determination from Mr. Hagstrom.” The court
noted Cypher’s later conflicting opinion, but agreed with defendants that the Township was barred
by the doctrine of laches. The court reasoned that “there’s been excessive delay” regarding the
Township’s new position and that defendants would be prejudiced by the Township taking a
different position considering that the Tower has operated on the property for over 20 years.

        As an initial matter, we agree with plaintiffs that the trial court erred in relying on the
doctrine of laches. “If a plaintiff has not exercised reasonable diligence in vindicating his or her
rights, a court sitting in equity may withhold relief on the ground that the plaintiff is chargeable
with laches.” Knight v Northpointe Bank, 300 Mich App 109, 114; 832 NW2d 439 (2013). Here,
however, the delay referred to by the trial court was attributable to the Township, not plaintiffs.
Accordingly, laches was not an appropriate ground to deny relief in this case.

         That said, the trial courts reliance on laches and the court’s statement of reasons for
granting summary disposition show that the court was concerned with the equities of granting an
abatement in this case. It is undisputed that defendants have relied on the Township’s
representations and would be prejudiced by an order to remove the structure. In addition to
Hagstrom’s 2004 determination, in July 2011 Cypher issued a permit for a 200-square-feet
platform. DCS clearly relied on the Township’s acquiescence to the Tower when paying valuable
consideration for the perpetual easement in December 2011, and the easement would be of no
utility at all to defendants were the Tower to be disallowed.

         Plaintiffs’ position must also be considered in examining the equities of the case. See
McFerren v B&B Investment Group, 253 Mich App 517, 522; 655 NW2d 779 (2002) (“A court
acting in equity looks at the whole situation and grants or withholds relief as good conscience
dictates.”). Here, plaintiffs were fully aware of the easement agreement and of the Tower’s
existence at the time they purchased the property. While they now believe that the Tower is an
illegal nonconforming use, that does not change the fact that the property was purchased with full
knowledge of the structure. Thus, plaintiffs are unable to explain how the value of their property
has been affected, and depreciation of value, or lack thereof, is an appropriate consideration in
determining whether to abate an alleged nuisance.7 See Conway v Gampel, 235 Mich 511, 514;
209 NW 562 (1926) (affirming an injunction against the operation of a slaughterhouse in a
residential neighborhood where there was “evidence that the claimed nuisance has depreciated the
value of the property of some of the plaintiffs.”). Moreover, plaintiffs’ nuisance-per-se claim is


7
  Defendants argue that summary disposition was appropriate because plaintiffs did not plead or
attempt to prove special damages. At first blush, it might seem obvious that plaintiffs, as the
owners of the property in question, would have damages different from the injury suffered by the
public generally due to the alleged zoning violation. However, we question whether plaintiffs
have suffered special damages if the property value has not diminished since the time of purchase.
But given our disposition of plaintiffs’ cross-appeal, we need not decide this issue.



                                                -6-
wholly distinct from their trespassing claim, for which they have now been awarded damages. The
trespass claim asserted that defendants were exceeding the scope of the easements; the nuisance-
per-se claim alleges that the Tower’s existence, in and of itself, violates the zoning ordinance.

        In sum, while the trial court made technical errors in granting summary disposition,8 the
substance of its ruling was that removing the Tower would not be equitable under the
circumstances of the case. For the reasons discussed, we see no error in that determination. Under
the circumstances of this case, the trial court did not err in granting defendants summary
disposition of the nuisance-per-se claim.9

       We reverse in the primary appeal and affirm in the cross-appeal.



                                                            /s/ Douglas B. Shapiro
                                                            /s/ Kathleen Jansen
                                                            /s/ Michael J. Kelly




8
  We also agree with plaintiffs that the trial court erred in granting summary disposition under
MCR 2.116(C)(8) for failure to state a claim. The applicable subrule is MCR 2.116(C)(10) (no
genuine issue of material fact). However, we may affirm the trial court when it reaches the right
result for the wrong reason. Wickings v Artic Enterprises, Inc, 244 Mich App 125, 150; 624 NW2d
197 (2000).
9
 Our ruling is limited to the facts of this case and has no bearing on any action that the Township
might take regarding the Tower.


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