            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



COTEL, LLC, and COBERG                                               UNPUBLISHED
TELECOMMUNICATIONS, LLC,                                             September 5, 2019

               Plaintiffs-Appellants,

v                                                                    No. 342565
                                                                     Oakland Circuit Court
COMCAST OF                                                           LC No. 2016-154500-CB
MICHIGAN/MISSISSIPPI/TENNESSEE, INC,

               Defendant-Appellee.


Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.

PER CURIAM.

         Plaintiffs have nonexclusive easements to construct and maintain telecommunication
facilities at several multi-unit residential properties. They granted similar easement rights to
defendant for a period of 10 years so that defendant could provide broadband services to the
properties. The parties’ agreements expired, and plaintiffs now claim that defendant is
wrongfully using their “telecom facilities.” The trial court granted defendant summary
disposition, concluding that plaintiffs lacked standing to bring their claims. Plaintiffs appeal this
ruling. While we agree with plaintiffs that they have standing, we nonetheless conclude that the
trial court correctly granted summary disposition because plaintiffs have failed to establish a
material question of fact that defendant is using their telecommunication facilities.

                                        I. BACKGROUND

         Through entities he controlled, Walter Cohen either owned or developed the eleven
multi-unit residential properties at issue in this case. Cohen was the managing member of
plaintiff Cotel, LLC and plaintiff Coberg Telecommunications, LLC. For each property, either
Cotel or Coberg obtained “a perpetual, non-exclusive easement” for the purposes of constructing,
installing, operating, maintaining, repairing, replacing, or removing the property’s
“telecommunication facilities.”

       Plaintiffs, in turn, then granted similar easement rights to defendant so that it could
provide broadband services to the properties. The documents comprising the parties’ contract for


                                                -1-
each property are substantially similar.1 The service agreement informs that defendant installed
the “facilities” necessary to deliver the broadband services, i.e., the “System.” Plaintiffs granted
defendant an easement to maintain, operate, and repair the System. The parties agreed that
defendant would retain ownership over “all parts of the System,” but that “the Owner” would
assume ownership over any part of the System not removed within six months after the
agreement terminated. All of the agreements were for a period of 10 years.

        According to defendant, it contracted with plaintiffs under Cohen’s direction and under
the belief that Cohen owned or was in control of the properties. When the parties’ agreements
expired, Cohen no longer had an ownership interest in any of the properties. Defendant claims to
have entered into “new service agreements” with the owners for seven of the properties.
Defendant continues to provide services to residents at the other four properties without a new
agreement in place; these properties purportedly lack a housing association to contract with.

        Plaintiffs brought suit alleging breach of contract, trespass, and conversion with respect
to each property. They also claimed unjust enrichment and quantum meruit. Plaintiffs claim that
defendant is using their telecom facilities at the properties and that such use is wrongful until the
parties reach new agreements.

       After discovery was completed, defendant moved for summary disposition under MCR
2.116(C)(10). Defendant’s primary argument was that plaintiffs lacked standing to assert their
claims. Defendant noted that plaintiffs never owned the subject properties, and that their
nonexclusive easements were their only interests in the properties. Defendant maintained that
those easements did not “give plaintiffs the right to control who accesses these developments
using their own equipment or to complain that [defendant] is still providing services to any of
them.” Defendant also argued that plaintiffs failed to identify what telecommunication facilities
they owned that defendant was allegedly using.

        In response, plaintiffs maintained that any additions, repairs, or replacements made by
defendant to the telecommunication facilities remained subject to the easements plaintiffs
granted defendant. Plaintiffs also asserted that, under the service agreements, they obtained
ownership over any part of the system that defendant failed to remove after the contracts expired.
Plaintiffs requested summary disposition under MCR 2.116(C)(10) and (I)(2) (nonmoving party
entitled to summary disposition).

        The trial court heard oral argument and later issued an opinion and order granting
defendant summary disposition. The court concluded that plaintiffs lacked standing because of
the following factors: (1) plaintiffs never owned the subject properties; (2) plaintiffs were unable
to identify any telecom facilities that defendant was using, and (3) plaintiffs’ easements were
nonexclusive. The court declined to address the merits of plaintiffs’ claims.




1
 Plaintiffs have not produced agreements for two of the properties. But this has no bearing on
our decision.


                                                 -2-
                                           II. ANALYSIS

       We agree with plaintiffs that the trial court erred in ruling that they lacked standing. 2 But
we conclude that summary disposition was nonetheless warranted. Plaintiffs’ nonexclusive
easements do not grant them the right to control who provides broadband services to the
properties. And they have failed to establish a material question of fact regarding their claim that
defendant is using their telecommunication facilities.

                                           A. STANDING

        “To have standing, a party must have a legally protected interest that is in jeopardy of
being adversely affected.” Dep’t of Treasury, Revenue Div v Comerica Bank, 201 Mich App
318, 329-330; 506 NW2d 283 (1993). “The purpose of the standing doctrine is to assess whether
a litigant’s interest in the issue is sufficient to ensure sincere and vigorous advocacy.” Lansing
Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 355; 792 NW2d 686 (2010) (quotation marks
and citation omitted). “When a party’s standing is contested, the issue becomes whether the
proper party is seeking adjudication, not whether the issue is justiciable.” Tennine Corp v
Boardwalk Commercial, LLC, 315 Mich App 1, 7; 888 NW2d 267 (2016). “Standing is not
contingent on the merits of the case.” Id.

         As the trial court found, each of plaintiffs’ claims turn on the assertion that defendant is
currently using telecom facilities allegedly owned by Cotel or Coberg. Essentially, plaintiffs’
alleged ownership of those facilities stems from the easements they obtained from the property
owners. Plaintiffs apportioned their easement rights to defendant. They now claim that any
facilities defendant installed on the properties remain subject to the easements plaintiffs granted
defendant. So their complaint is properly construed as an action to enforce an easement.
Plaintiffs are, of course, the proper parties to litigate the scope of their easements. It is irrelevant
that they do not own the properties. Plaintiffs have a legally protected interest in this case
because an easement is an independent interest in land. See Lakeside Oakland Development, LC
v H&J Beef Co, 249 Mich App 517, 525; 644 NW2d 765 (2002).

        However, we may affirm the trial court when it reaches the right result for the wrong
reason. Lewis v Farmers Ins Exch, 315 Mich App 202, 216; 888 NW2d 916 (2016). Both
parties moved for summary disposition on the merits, and we may address issues raised before
but not decided by the trial court. See Peterman v Dep’t of Natural Resources, 446 Mich 177,
183; 521 NW2d 499 (1994). See also Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521
NW2d 774 (1994) (a party may present a preserved “alternative ground for affirmance.”).
Accordingly, we will decide the two substantive issues in this case: (1) the scope of plaintiffs’
nonexclusive easements, and (2) whether there is a genuine issue of material fact concerning
defendant’s alleged use of plaintiffs’ telecommunications facilities.




2
 Whether a party has standing is a question of law that we review de novo. See Manuel v Gill,
481 Mich 637, 642; 753 NW2d 48 (2008).


                                                  -3-
                               B. SCOPE OF THE EASEMENT

        “An easement is the right to use the land of another for a specified purpose.” Penrose v
McCullough, 308 Mich App 145, 148; 862 NW2d 674 (2014) (quotation marks and citation
omitted). This case involves easements in gross, which are easements “benefiting a particular
person and not a particular piece of land.” Michigan Dep’t of Natural Resources v Carmody-
Lahti Real Estate, Inc, 472 Mich 359, 379 n 41; 699 NW2d 272 (2005) (quotation marks and
citation omitted). “An easement does not displace the general possession of the land by its
owner, but merely grants the holder of the easement qualified possession only to the extent
necessary for enjoyment of the rights conferred by the easement.” Schadewald v Brule, 225
Mich App 26, 35; 570 NW2d 788 (1997).

        The key to interpreting the scope of plaintiffs’ easements is the well-established
distinction between exclusive and nonexclusive easements.3 An exclusive easement in gross
“means that the easement holder has the sole right to engage in the type of use authorized by the
servitude. In other words, the grantor does not retain common rights with the easement holder to
engage in the same activity for which the easement is granted.” Heydon v MediaOne, 275 Mich
App 267, 272; 739 NW2d 373 (2007) (quotation marks and citations omitted). In contrast,

       A nonexclusive easement in gross is one which does not give, as against the
       owner of the servient tenement and others who may be privileged under him, the
       sole privilege of making the use authorized by the easement. In the case of such
       an easement the owner and possessor of the servient tenement has not only the
       privilege himself to make the use authorized by the easement, but he retains the
       power to create like privileges in others. [Restatement Property, 1st, § 493, p
       3055.]

More concisely, “[a] nonexclusive easement is established if the servient owner retains the
privilege of sharing the benefit conferred by the easement.” 28A CJS, Easements § 222, p 620.

         Plaintiffs were granted nonexclusive easements for the purposes of constructing,
installing, operating, maintaining, repairing, replacing or removing telecommunication facilities
at the properties. By the express terms of the easements, plaintiffs did not obtain the exclusive
right to engage in those activities. The implication is that the property owners retained the
privilege to grant others easements to construct and maintain telecommunication facilities.
Accordingly, plaintiffs’ nonexclusive easements do not preclude defendant, or any other service
provider, from providing broadband services to the properties.



3
 The scope of an easement is generally a question of fact. Wiggins v City of Burton, 291 Mich
App 532, 551; 805 NW2d 517 (2011). But in this case the scope of the easements turns on the
meaning of the word “non-exclusive.” “The language of an express easement is interpreted
according to rules similar to those used for the interpretation of contracts.” Id. And we decide
matters of contract interpretation de novo as a question of law. Kloian v Domino’s Pizza LLC,
273 Mich App 449, 453; 733 NW2d 766 (2006).


                                               -4-
       C. ALLEGED USE OF PLAINTIFFS’ TELECOMMUNICATION FACILITIES

         Plaintiffs argue that there are questions of fact regarding defendant’s use of their
telecommunication facilities that preclude summary disposition. Although the trial court said
that it was not reaching the merits of the dispute, it nonetheless found that “Defendant presents
ample evidence showing that during discovery Plaintiffs were unable to identify any telecom
facilities that are currently being used by Defendant.” We agree with that assessment and
therefore conclude that defendant is entitled to summary disposition under MCR 2.116(C)(10).4

        Plaintiffs have not identified any telecommunications facilities that they installed at the
properties. Cohen may have installed some communications infrastructure as a developer, but he
could not identify at deposition any construction that would have been performed by plaintiffs.
Plaintiffs’ primary purpose is to hold the easement rights. In obtaining easements for plaintiffs,
it appears that Cohen was attempting to retain control over the communications rights to the
properties. For the reasons discussed above, the nonexclusive easements did not accomplish that
goal.

        Given the lack of proofs showing that they installed any facilities, plaintiffs are
necessarily claiming ownership over the telecommunication facilities that defendant installed
pursuant to the parties’ agreements. Plaintiffs cite no caselaw in support of their position, so any
claim of ownership in this case must necessarily derive from the parties’ contracts. The service
agreement provides that defendant installed the telecommunications facilities at the properties
and retained ownership thereafter. Plaintiffs rely on the provision in the service agreement
stating that “the Owner” would obtain ownership over any party of the “System” not removed
within six months after termination of the agreement:

       13.    Removal of System. Upon termination of this Agreement for any reason,
       the Company shall have a period of six (6) months in which it shall be entitled but
       not required to remove the System, including the cable home wiring and cable
       home run wiring. The Company shall promptly repair any damage to the
       Premises occasioned by such removal. Any portion of the System not removed at
       the expiration of the six (6) month period shall be deemed abandoned and
       ownership shall vest in the Owner with no further liability to Company.




4
  Summary disposition under MCR 2.116(C)(10) tests the evidentiary support for a claim, and
should be granted if no genuine issue of material fact exists. Walsh v Taylor, 263 Mich App 618,
621; 689 NW2d 506 (2004). In determining whether a genuine issue of material fact exists, we
view the documentary evidence in a light most favorable to the nonmoving party. See DeBrow v
Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 538-539; 620 NW2d 836 (2001).
“[T]he nonmoving party may not rely on mere allegations or denials in [the] pleadings, but must
go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact
exists.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).


                                                -5-
As defined by the service agreement, however, “Owner” refers to the property owner, e.g., a
housing association. Accordingly, the property owners—not plaintiffs—would have resumed
ownership over any part of the system “abandoned” by defendant.

         In sum, plaintiffs have not provided any evidence that they installed telecommunication
facilities on the properties. Nor have they identified any legal authority or contractual provision
that grants them ownership over facilities installed by defendant. For those reasons, we affirm
the trial court on the ground that plaintiffs have failed to establish a genuine issue of material fact
that defendant is using their telecommunication facilities.

       Affirmed.



                                                               /s/ Douglas B. Shapiro
                                                               /s/ Elizabeth L. Gleicher




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