              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


KELLY KAY, BRIAN KAY, JENSON EDWARD                                  UNPUBLISHED
KAY, and SOPHIA ANN KAY, by her Next Friend,                         July 23, 2020
KELLY KAY,

                 Plaintiffs-Appellees,

v                                                                    No. 348303
                                                                     Oakland Circuit Court
JEFFREY A. HEYN and ANN M. HEYN,                                     LC No. 2017-160334-ND

                 Defendants,

and

JOSEPH SMITH and SANDRA SMITH,

                 Defendants-Appellants.


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

PER CURIAM.

        Defendants Joseph Smith and Sandra Smith (“the Smiths”) appeal by leave granted the trial
court’s order denying their motion for summary disposition of plaintiffs’ claims for breach of an
easement agreement, trespass, nuisance, and assault and battery.1 We affirm in part, reverse in
part, and remand for further proceedings.

                                         I. BACKGROUND

      In 2013, plaintiffs Kelly Kay and Brian Kay2 purchased a home in Highland Township,
Michigan, from defendants Jeffrey Heyn and Ann Heyn (“the Heyns”). The Smiths live next door


1
    Kay v Heyn, unpublished order of the Court of Appeals, issued June 5, 2019 (Docket No. 348303).
2
  The Kays’ children are also party-plaintiffs to this action. For purposes of this opinion, however,
the term “plaintiffs” is used to refer only to Kelly and Brian Kay, unless indicated otherwise.


                                                 -1-
to plaintiffs, to the immediate north. Plaintiffs’ and the Smiths’ homes are built on a hill, and they
share a driveway leading from their homes to the public road. The common driveway is subject
to an easement agreement that was executed in 1927. The Smiths’ portion of the driveway sits
higher on the hill than plaintiffs’ home, and the back of both parcels abuts a lake. The front
entrance to plaintiffs’ home has steps that go down into the home. In 2004, when plaintiffs’ home
was still owned by the Heyns, the Smiths modified their portion of the common driveway, with
the Heyns’ consent. According to the Smiths, their modification shortened and widened the
driveway, increasing its total square footage, but did not alter its elevation or location.

        In 2014, plaintiffs experienced problems with water runoff during a rain. Plaintiffs alleged
that during heavy rains, water flowed down the Smiths’ driveway into the front entrance of
plaintiffs’ home, causing water to enter the home. According to plaintiffs, the water infiltration
caused mold problems, which in turn caused all four plaintiffs to experience health issues related
to the mold. Plaintiffs allege that they made some unsuccessful efforts to persuade the Smiths to
abate the water runoff problem. Plaintiffs also allege that they attempted to engineer their own
system for diverting the water, but the Smiths interfered with those efforts; Joseph contended that
plaintiffs’ efforts were actually making the problem worse and interfering with traffic. Plaintiffs
eventually moved out of their home and began residing in a small apartment above their detached
garage.

         Plaintiffs filed this action against the Heyns and the Smiths. They sued the Heyns for
failure to disclose preexisting issues with water runoff from the Smiths’ driveway. They brought
claims against the Smiths for breach of the easement agreement, trespass, nuisance, and assault
and battery. The latter claim was based on a physical confrontation between plaintiff Brian Kay
and the Smiths. The parties dispute how the confrontation began, but it apparently involved Brian
directing a leaf-blower at Joseph while Joseph directed a water hose at Brian, and it ended when
Sandra intervened with a metal pole.

       The Heyns and the Smiths each filed motions for summary disposition, and the trial court
summarily denied both motions. This Court granted the Smiths’ application for leave to appeal
and stayed further proceedings pending resolution of this appeal.3

                                  II. STANDARD OF REVIEW

        Preliminarily, the Smiths complain that the trial court decided their motion for summary
disposition without oral argument and without providing any explanation for its decision. A court
has discretion to dispense with oral arguments on motions, MCR 2.119(E)(3), and a court is not
required to state its findings or conclusions of law when deciding motions, MCR 2.517(A)(3). We
appreciate the Smiths’ frustration, but we cannot find error, because we review a trial court’s
decision on a motion for summary disposition de novo. Spiek v Dep’t of Transp, 456 Mich 331,
337; 572 NW2d 201 (1998). Furthermore, issues are preserved for this Court’s review so long as


3
  The Heyns also filed an application for leave to appeal, but this Court denied the application “for
failure to persuade the Court of the need for immediate appellate review.” Kay v Heyn,
unpublished order of the Court of Appeals, entered June 5, 2019 (Docket No. 348419). Therefore,
only plaintiffs’ claims against the Smiths are at issue in this appeal.


                                                 -2-
the appealing party brought them to the trial court’s attention, irrespective of whether the trial court
ruled on them. Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499
(1994).

        The Smiths moved for summary disposition under MCR 2.116(C)(10). A motion under
MCR 2.116(C)(10) tests the factual support for a claim. A court must consider the pleadings,
affidavits, depositions, admissions, and any other documentary evidence submitted by the parties,
and view that evidence in the light most favorable to the nonmoving party to determine if a genuine
issue of material fact exists. MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 118-120; 597
NW2d 817 (1999). Summary disposition should be granted if, except as to the amount of damages,
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). A court may not assess
credibility or determine disputed facts when deciding a motion for summary disposition. Skinner
v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994), overruled in part on other grounds in
Smith v Globe Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999).

        On de novo review, we conclude that the Smiths were entitled to summary disposition with
respect to plaintiffs’ claims for breach of the easement agreement and nuisance, but that summary
disposition was properly denied with respect to plaintiffs’ claims for trespass and assault and
battery.

                       III. BREACH OF THE EASEMENT AGREEMENT

        Plaintiffs argue that the Smiths breached the easement agreement when they made changes
to their portion of the shared driveway in 2004, which impacted the amount of water runoff from
their driveway onto plaintiffs’ land. We note that conflicting evidence was presented regarding
whether the 2004 driveway changes actually had any effect on the amount of water runoff from
the Smiths’ driveway. However, that conflict is not material to a determination whether the Smiths
breached the easement agreement when they made the changes to their driveway.

        The easement agreement applies to the two parcels identified in the agreement: (1) the
parcel formerly owned by the Heyns and sold to plaintiffs, and (2) the parcel owned by the Smiths.
The agreement pertains to a common driveway shared by the two parcels. The parties agree that,
pursuant to the plain language of the agreement, property owners may make changes and
improvements to the portions of the driveway on their respective parcels, so long as the changes
do not change the connection point to the other property’s driveway, and a majority of the property
owners agree to the changes. The submitted evidence establishes that Jeffrey Heyn consented to
the Smiths’ 2004 changes to their portion of the driveway, thereby satisfying the condition that a
majority of the then property owners agree to any changes, and there is no claim that the changes
affected the connection point with the driveway on the property then owned by the Heyns and now
owned by plaintiffs. Thus, plaintiffs do not argue that the Smiths breached the plain language of
the easement agreement, but rather that the Smiths breached an implied covenant of good faith and
fair dealing. Although plaintiffs did not plead this theory in their complaint, we will address it to
determine whether amendment of plaintiffs’ complaint would be justified under MCR 2.116(I)(5)
and MCR 2.118.




                                                  -3-
        A covenant of good faith and fair dealing is an implied promise contained in every contract
that a party shall not do anything which will have the effect of destroying or injuring the right of
the other party to receive the fruits of the agreement. Hammond v United of Oakland, Inc, 193
Mich App 146, 151-152; 483 NW2d 652 (1992). The implied promise applies to discretionary
performance under the contract and requires a party to exercise his discretion honestly and in good
faith. Ferrell v Vic Tanny Int’l, Inc, 137 Mich App 238, 243; 357 NW2d 669 (1984). However,
this Court has held that Michigan does not recognize a separate cause of action for breach of an
implied covenant of good faith and fair dealing. Bank of America, NA v Fidelity Nat’l Title Ins
Co, 316 Mich App 480, 501; 892 NW2d 467 (2016); Rodgers v JP Morgan Chase Bank NA, 315
Mich App 301, 311; 890 NW2d 381 (2016); Gorman v American Honda Motor Co, 302 Mich App
113, 133-134; 839 NW2d 223 (2013). For purposes of resolving this appeal, we presume, although
we do not decide, that it might be possible to bring a breach of contract claim premised on a breach
of an implied covenant of good faith and fair dealing when a contract provides for a party’s
discretionary performance and the performing party acts in bad faith. See Gorman, 302 Mich App
at 132-136; Ferrell, 137 Mich App at 243-244. Even if such an exception exists, it would not
apply in this case.

        Plaintiffs argue that the Smiths acted in bad faith by having multiple loads of dirt dumped
on their property by a local contractor to change the direction of the driveway on their property,
without consulting professionals to determine how the dirt placement would impact water runoff.
In Commercial Union Ins Co v Liberty Mut Ins Co, 426 Mich 127, 136-137; 393 NW2d 161 (1986),
our Supreme Court explained that “bad faith” is a state of mind that is distinguishable from
negligence or fraud. The evidence does not show that the Smiths acted recklessly, were indifferent
to the consequences of their driveway modifications, or intentionally disregarded the possible
consequences of their driveway modifications. See Commercial Union Ins Co, 426 Mich at 136.
At most, the Smiths might have been negligent by relying solely on a contractor to place the dirt
and not consulting other professionals, but possible negligence is not evidence of bad faith.
Alternatively, although this is not a Uniform Commercial Code case, “bad faith” might mean the
absence of “honesty in fact and the observance of reasonable commercial standards of fair
dealing.” MCL 440.1201(2)(t); Gorman, 302 Mich App at 132. However, there is no indication
the Smiths engaged in dishonesty or did not deal fairly with the Heyns when the driveway was
modified.

         More significantly, however, the easement agreement did not provide the Smiths with
unfettered discretion to make any changes to their driveway. On the contrary, it required the
agreement of a majority of affected property owners. It is undisputed that Joseph Smith discussed
the proposed changes with Jeffrey Heyn before making the changes, and Joseph obtained Jeffrey’s
consent to the changes. Moreover, Jeffrey conditioned his consent on the Smiths adding a drain
to their property when making the changes, and the Smiths accommodated that request to increase
the drainage capacity. Because the Smiths sought and obtained Jeffrey Heyn’s consent to the
driveway changes before they were made, and the Smiths accommodated Jeffrey’s request to add
a drain to their property, there is no basis for finding that the Smiths acted in bad faith.

        Finally, plaintiffs did not own their property in 2004, when the driveway changes were
made. Thus, there is no basis for finding that the Smiths acted in bad faith with respect to plaintiffs.
Any subsequent incidents between plaintiffs and the Smiths, such as the Smiths not allowing others
to clear drains on the Smiths’ property, do not implicate the easement agreement. Those actions


                                                  -4-
are more appropriately considered under plaintiffs’ other theories of relief. For these reasons, the
trial court erred by denying the Smiths’ motion for summary disposition with respect to plaintiffs’
claim for breach of the easement agreement.

                                IV. TRESPASS AND NUISANCE

        The Smiths also argue that the trial court erred by denying summary disposition of
plaintiffs’ claims for trespass or nuisance. Plaintiffs alleged that the Smiths committed a trespass
by allowing large amounts of water to flow from their driveway onto plaintiffs’ property. “A
trespass is an unauthorized invasion upon the private property of another.” D’Andrea v AT&T
Mich, 289 Mich App 70, 73; 795 NW2d 620 (2010) (quotation omitted). Plaintiffs also alleged
that the Smiths’ conduct of relocating their driveway and causing excessive amounts of water to
flow onto plaintiffs’ property constitutes a nuisance.

       A party who disrupts the natural flow of water and diverts it to another person’s property
may be liable for trespass. In Wiggins v City of Burton, 291 Mich App 532, 563-565; 805 NW2d
517 (2011), this Court explained:

               It has been “the settled law of this State” for more than a century that the
       natural flow of surface waters from the upper, dominant estate forms a “natural
       servitude” that encumbers the lower, servient estate. Carley v Jennings, 131 Mich
       385, 387; 91 NW 634 (1902); Leidlein v Meyer, 95 Mich 586, 589; 55 NW 367
       (1893); see also O’Connor v Hogan, 140 Mich 613, 624; 104 NW 29 (1905);
       Terlecki v Stewart, 278 Mich App 644, 661; 754 NW2d 899 (2008); Reed v Soltys,
       106 Mich App 341, 349; 308 NW2d 201 (1981). The owner of the lower, servient
       estate must bear this natural servitude, and is bound by law to accept the natural
       flow of surface waters from the upper, dominant estate. Bennett v Eaton Co, 340
       Mich 330, 335-336; 65 NW2d 794 (1954); Launstein v Launstein, 150 Mich 524,
       526; 114 NW 383 (1907); Cranson v Snyder, 137 Mich 340, 343; 100 NW 674
       (1904); Lewallen v City of Niles, 86 Mich App 332, 334; 272 NW2d 350 (1978). It
       is similarly well settled, however, that “the owner of the upper estate has no right
       to increase the amount of water that would otherwise naturally flow onto the lower
       estate.” Kernen, 232 Mich App at 512. For instance, it has been said that the owner
       of the upper estate “cannot, by artificial drains or ditches, collect the waters of . . .
       his premises, and cast them in a body upon the proprietor below him to his injury.”
       Gregory v Bush, 64 Mich 37, 42; 31 NW 90 (1887). Nor may the owner of the
       upper estate “concentrate [the surface] water, and pour it through an artificial ditch
       or drain, in unusual quantities and greater velocity, upon an adjacent proprietor.”
       Peacock v Stinchcomb, 189 Mich 301, 307; 155 NW 349 (1915); see also Miller v
       Zahn, 264 Mich 306, 307; 249 NW 862 (1933). Stated another way, “the owner of
       the dominant estate may not, by changing conditions on his land, put a greater
       burden on the servient estate by increasing and concentrating the volume and
       velocity of the surface water.” Lewallen, 86 Mich App at 334.

               By way of example, in Schmidt, 94 Mich App at 738, the trial testimony
       established that “as a result of the development of [the dominant estate], the water



                                                 -5-
       runoff onto [the servient estate] was greatly increased, perhaps as much as six times
       the natural flow.” The Schmidt Court stated the general rule:

               It is clear that the owner of the lower or servient estate must accept
               surface water from the upper or dominant estate in its natural flow,
               and equally clear that the owner of the dominant estate may not
               require the owner of the servient estate to accept a greater runoff by
               increasing or concentrating the flow. [Id.]

       Because the owner of the dominant estate did not have an easement that permitted
       him to cast such “greatly increased” amounts of surface water upon the servient
       estate, this Court determined that he had exceeded the scope of the natural servitude
       that encumbered the servient estate and therefore affirmed the circuit court’s entry
       of judgment in favor of the proprietors of the servient estate. Id. at 738-739.

               As these rules make clear, the Wiggins parcel is required to accept the
       surface-water runoff that naturally flows to it from the neighboring dominant
       estates. After all, as noted earlier, the natural flow of surface waters from the upper,
       dominant estate forms a “natural servitude” which arises by operation of law and
       encumbers the lower, servient estate. Carley, 131 Mich at 387. But, as in Schmidt,
       the dominant estates in the present case have no right to cast upon the Wiggins
       parcel more surface water than would naturally flow to it. [Footnote omitted.]

In Wiggins, this Court further stated that a trespass involving the flow of excess water onto the
plaintiff’s property “will not be actionable in nuisance because water is a physical, tangible object.”
Wiggins, 291 Mich App at 566-567.

        The parties presented conflicting witness testimony regarding whether the Smiths’ changes
to their driveway impacted the natural flow of water from the Smiths’ driveway onto plaintiffs’
property. Plaintiffs submitted a report from Midwestern Consulting, LLC, which concluded that
the changes to the driveway increased the flow of stormwater, the depth of the flow, and the peak
flow rate. A report from James Partridge Consulting, LLC, also supported plaintiffs’ claim that
the changes to the Smiths’ driveway diverted water from the Smiths’ property onto plaintiffs’
parcel. This evidence therefore establishes a question of fact whether the Smiths materially
increased the natural flow of water from their property onto plaintiffs’ property to support a claim
for trespass. The trial court properly denied the Smiths’ motion for summary disposition with
respect to the trespass claim.

        However, a claim for nuisance cannot be based on a physical intrusion, such as water
runoff, as explained in Wiggins. Although plaintiffs accurately argue that there are different ways
to prove nuisance, and a nuisance “need not involve a physical or tangible intrusion,” a nuisance
nevertheless involves a nontrespassory invasion of property rights. Adkins v Thomas Solvent Co,
440 Mich 293, 306, 306 n 12; 487 NW2d 715 (1992). Because plaintiffs rely solely on a
trespassory invasion of their property—specifically, the flow of runoff water—to support their
claim of nuisance, the trial court erred by denying the Smiths’ motion for summary disposition
with respect to the nuisance claim. Wiggins, 291 Mich App at 566-567.




                                                 -6-
                                 V. ASSAULT AND BATTERY

        The Smiths also argue that they are entitled to summary disposition of plaintiffs’ claim for
assault and battery. We disagree. Plaintiff Brian Kay and defendant Joseph Smith presented
conflicting versions of the incident that is the basis for the assault and battery claim. According
to Brian, while he was blowing leaves in his yard, Joseph Smith intentionally sprayed him with a
hose and continued to spray him in the face while looking directly at him. Brian said that Joseph
even climbed from a hill onto his patio to spray him with the water. Brian said that Sandra Smith
then grabbed a metal pole and struck him with it several times in the chest. Joseph admitted that
he may have unintentionally sprayed Brain with the hose, but denied acting intentionally. Joseph
claimed that Brian then approached him and directed the leaf blower at him, and that Sandra
intervened only to protect Joseph from Brian.

        The civil tort of assault and battery involves an intent to commit a battery or an intent to
create a reasonable fear or apprehension of an immediate battery in the victim. Mitchell v Daly,
133 Mich App 414, 426-427; 350 NW2d 772 (1984). A person may use reasonable force in self-
defense against an assault; and where a party was the initial aggressor, that party would have to
show that the original victim used excessive or unreasonable force in self-defense. See M Civ JI
115.05; M Civ JI 115.06; Anders v Clover, 198 Mich 763, 766-767; 165 NW 640 (1917).

       Brian’s and Joseph’s conflicting versions of the incident raise multiple questions of fact
regarding who started the altercation, whether Joseph intentionally sprayed Brian with the hose,
whether Brian became the aggressor by approaching Joseph, and whether Sandra assaulted Brian
or was acting in defense of Joseph when she intervened and prodded Brian with the metal pole.
Because of the many disputed issues of material fact related to this claim, the trial court properly
denied the Smiths’ motion for summary disposition with respect to this claim.

                                       VI. CONCLUSION

        We affirm the trial court’s denial of summary disposition with respect to plaintiffs’ claims
for trespass and assault and battery, but we reverse the trial court’s denial of summary disposition
with respect to plaintiffs’ claims for breach of the easement agreement and nuisance. We remand
this case for further proceedings consistent with this opinion.

        Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain
jurisdiction.

                                                             /s/ Michael J. Riordan
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Amy Ronayne Krause




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