If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

COVE CREEK CONDOMINIUM 

ASSOCIATION,

Plaintiff/CounterdefendantAppellee,

FOR PUBLICATION

December 19, 2019

9:00 a.m.

v No. 342372

Oakland Circuit Court

VISTAL LAND & HOME DEVELOPMENT, 

LLC, and MARIA A. CERVI AND AMERICO 

CERVI REVOCABLE LIVING TRUST,

LC No. 2016-155706-CH

Defendants/CounterplaintiffsAppellants.

COVE CREEK CONDOMINIUM 

ASSOCIATION,

Plaintiff/CounterdefendantAppellant,

v No. 343144

Oakland Circuit Court

VISTAL LAND & HOME DEVELOPMENT, 

LLC, and MARIA A. CERVI AND AMERICO 

CERVI REVOCABLE LIVING TRUST,

LC No. 2016-155706-CH

Defendants/CounterplaintiffsAppellees.

Before: RONAYNE KRAUSE, P.J., and METER and STEPHENS, JJ.

STEPHENS, J.
-2-

In Docket No. 342372, defendants/counterplaintiffs, Vistal Land & Home Development, 

LLC (Vistal), and Maria A. Cervi and Americo Cervi Revocable Living Trust (the Trust) 

(collectively, defendants), appeal as of right the order granting summary disposition in favor of 

plaintiff/counterdefendant, Cove Creek Condominium Association (plaintiff), dismissing all 

claims in defendants’ second amended countercomplaint, and denying defendants’ motions for 

summary disposition. The gravamen of this matter is a dispute as to which version of MCL 

559.167 of the Condominium Act, MCL 559.101 et seq., applies. The statute was amended 

several times during the existence of the condominium project. In Docket No. 343144, plaintiff 

appeals as of right the order denying its motion for attorney fees and costs. We affirm in both 

appeals.

I. BACKGROUND

This case arises from plaintiff’s claims for declaratory and other relief related to former 

Units 1 through 14 of the Cove Creek Condominium project (the Condominium or the project). 

The Condominium was established by the recording of the Master Deed on April 21, 1989, and

was composed of 31 units. It is undisputed that Units 15 to 31 were designated as “must be 

built,” were constructed, and are currently owned, while Units 1 through 14 were identified as 

“need not be built” and were never constructed. The first unit was sold sometime in 1989.1 On

May 17, 1989, Lifestyle Homes, the original developer of the project, transferred its interest by 

quitclaim deed to Cove Creek Limited Partnership (Cove Creek LP). On September 15, 2004, 

Cove Creek LP executed a deed transferring Units 1 through 14 to Vistal Cothery, LLC.

2

 On 

November 6, 2006, Vistal Cothery, LLC, executed a deed conveying Units 1 through 14 to 

Vistal. On October 25, 2016, Vistal quitclaimed its interest in Units 1 through 14 to the Trust. 

The day before, on October 24, 2016, plaintiff filed a complaint against defendants. In Count I, 

plaintiff sought a declaration that Units 1 through 14 no longer existed, that all land on which 

Units 1 through 14 were to be constructed was part of the general common elements, and that 

defendants did not have the right to withdraw Units 1 through 14.3 Plaintiff relied on, and the 

trial court applied, MCL 559.167(3), as amended by 2002 PA 283, effective May 9, 2002, of the 

Condominium Act, MCL 559.101 et seq which read:

Notwithstanding section 33, if the developer has not completed 

development and construction of units or improvements in the condominium 

project that are identified as “need not be built” during a period ending 10 years 

 1 The parties dispute the exact date in 1989 on which the first unit was conveyed. As discussed 

further below, however, the exact date is not dispositive and, for purposes of this appeal, it is 

significant that construction commenced sometime before either May 9, 1989, or October 27, 

1989 (the dates alleged by the parties). 

2 The trial court found that there was no entity registered in Michigan as “Vistal Cothery, LLC” 

in 2004. 

3 In Counts II through V, plaintiff alternatively sought to quiet title, alleged a violation of the 

Condominium Act and breach of covenant for the failure to pay assessments, sought to foreclose 

on a statutory lien for the unpaid assessments, and alleged unjust enrichment.
-3-

after the date of commencement of construction by the developer of the project, 

the developer, its successors, or assigns have the right to withdraw from the 

project all undeveloped portions of the project not identified as “must be built” 

without the prior consent of any co-owners, mortgagees of units in the project, or 

any other party having an interest in the project. If the master deed contains 

provisions permitting the expansion, contraction, or rights of convertibility of 

units or common elements in the condominium project, then the time period is 6 

years after the date the developer exercised its rights with respect to either 

expansion, contraction, or rights of convertibility, whichever right was exercised 

last. The undeveloped portions of the project withdrawn shall also automatically 

be granted easements for utility and access purposes through the condominium 

project for the benefit of the undeveloped portions of the project. If the developer 

does not withdraw the undeveloped portions of the project from the project before 

expiration of the time periods, those undeveloped lands shall remain part of the 

project as general common elements and all rights to construct units upon that 

land shall cease. In such an event, if it becomes necessary to adjust percentages 

of value as a result of fewer units existing, a co-owner or the association of coowners may bring an action to require revisions to the percentages of value under 

section 95. [MCL 559.167(3), as amended by 2002 PA 283 (emphasis added).4] 

On November 3, 2016, the Trust informed plaintiff that it had withdrawn Units 1 through 

14 from the project. The Trust relied on MCL 559.167(3), (4) and (5), as amended by 2016 PA 

233. The 2016 version of the statute, effective September 21, 2016, provides, in relevant part: 

(3) Notwithstanding section 33, for 10 years after the recording of the 

master deed, the developer, its successors, or assigns may withdraw from the 

project any undeveloped land or convert the undeveloped condominium units 

located thereon to “must be built” without the prior consent of any co-owners, 

mortgagees of condominium units in the project, or any other party having an 

interest in the project. If the master deed confers on the developer expansion, 

contraction, or convertibility rights with respect to condominium units or common 

elements in the condominium project, then the time period is 10 years after the 

recording of the master deed or 6 years after the recording of the amendment to 

the master deed by which the developer last exercised its expansion, contraction, 

or convertibility rights, whichever period ends later. Any undeveloped land so 

withdrawn is automatically granted easements for utility and access purposes 

through the condominium project for the benefit of the undeveloped land. 

(4) If the developer does not withdraw undeveloped land from the project 

or convert undeveloped condominium units to “must be built” before expiration 

 4 We note that Subsection (3) itself and the language in dispute (emphasized above) was first 

added in 2000. See 2000 PA 379. The 2002 version made other changes that are not in dispute. 

See 2002 PA 283. 
-4-

of the applicable time period under subsection (3), the association of co-owners, 

by an affirmative 2/3 majority vote of the members in good standing, may declare 

that the undeveloped land shall remain part of the project but shall revert to 

general common elements and that all rights to construct condominium units 

upon that undeveloped land shall cease. When such a declaration is made, the 

association of co-owners shall provide written notice of the declaration to the 

developer or any successor developer by first-class mail at its last known address. 

Within 60 days after receipt of the notice, the developer or any successor 

developer may withdraw the undeveloped land or convert the undeveloped 

condominium units to “must be built”. However, if the undeveloped land is not 

withdrawn or the undeveloped condominium units are not converted within 60 

days, the association of co-owners may file the notice of the declaration with the 

register of deeds. The declaration takes effect upon recording by the register of 

deeds. The association of co-owners shall also file notice of the declaration with 

the local supervisor or assessing officer. In such an event, if it becomes necessary 

to adjust percentages of value as a result of fewer condominium units existing, a 

co-owner or the association of co-owners may bring an action to require revisions 

to the percentages of value under section 95. 

(5) A reversion under subsection (4), whether occurring before or after the 

date of the 2016 amendatory act that added this subsection, is not effective unless 

the election, notice, and recording requirements of subsection (4) have been met. 

[MCL 559.167(3)-(5), as amended by 2016 PA 233 (emphasis added).] 

On December 9, 2016, plaintiff filed a first amended complaint, which addressed events 

that occurred after the filing of the complaint. Nevertheless, plaintiff’s Count I continued to seek

declaratory relief against the Trust under MCL 559.167, as amended by 2002 PA 283. On 

November 21, 2016, defendants filed a motion for summary disposition under MCR 2.116(C)(8) 

on Count I, arguing that plaintiff’s claim solely relied on the 2002 version of MCL 559.167, 

which was repealed and restated, effective September 21, 2016. Defendants argued that the 2016 

amendment applied retroactively and did not divest plaintiff of any vested rights. Plaintiff 

replied that the 2016 amendment only applied to current “need not be built” units and did not 

revive former “need not be built” units that had already ceased to exist. It also argued that 

applying the 2016 amendment retroactively would abrogate vested property rights and violate the 

due-process rights of co-owners. Plaintiff contended that summary disposition should be granted 

in its favor under MCR 2.116(I)(2). 

On January 11, 2017, a hearing was held on defendants’ motion for summary disposition 

regarding Count I. Defendants argued that plaintiff’s claim that the constitutionality of the 2016 

amendment was not properly before the court. Plaintiff argued that if this motion was decided in 

its favor, then the other claims in the complaint and defendants’ countercomplaint5 were moot. 

On February 10, 2017, the trial court issued an opinion and order denying defendants’ motion for 

 5 Defendants’ counterclaims are discussed below. 
-5-

summary disposition on Count I and granting summary disposition in favor of plaintiff pursuant 

to MCR 2.116(I)(2). The court applied the 2002 version of MCL 559.167 to find that all the land 

on which Units 1 through 14 were to have been constructed had become part of the general 

common elements. It further ruled that the Trust did not have the right to withdraw Units 1 

through 14, or the land on which Units 1 through 14 were to be located, from the Condominium. 

In accord with the 2002 amendment, the trial court found that the 10-year period for defendants 

to withdraw the undeveloped units began before October 27, 1989, the time of construction, and 

expired on October 27, 1999. The trial court further found that, even if the 10-year period had

not begun to run until 2002, the right to withdraw expired and the developer lost all rights to 

develop on May 9, 2012. The trial court found that the vesting of title in plaintiff occurred by 

operation of law when the 10-year period expired prior to the enactment of the 2016 

amendments. The trial court finally ruled that the 2016 amendments were not retroactive. A 

motion to reconsider was denied.

On June 30, 2017, the trial court granted defendants leave to file an amended 

countercomplaint. On July 5, 2017, defendants filed a second amended countercomplaint in 

which defendants sought reimbursement for the payment of real property taxes in the amount of 

$80,986.64 under theories of restitution (Count I), indemnification (Count II), quantum 

meruit/unjust enrichment (Count III), detrimental reliance/promissory estoppel (Count IV), and 

account stated (Count V). Defendants also sought to quiet title to the property, arguing that their 

deeds were recorded before plaintiff recorded notice of its interest in Units 1 through 14 (Count 

VI), and claiming that plaintiff lost any interest in Units 1 through 14 through adverse possession 

(Count VII). Finally, in Count VIII, defendants alleged that, if the trial court gave plaintiff title, 

then plaintiff would receive a windfall and be unjustly enriched. In early October 2017, 

defendants filed motions for summary disposition pursuant to MCR 2.116(C)(10) as to their 

counterclaims. 

On October 17, 2017, plaintiff filed a motion for summary disposition seeking dismissal 

of defendants’ second amended countercomplaint pursuant to MCR 2.116(C)(7), (8), and (10). 

Plaintiff argued that defendants were attempting to avoid the court’s prior ruling regarding title

and that Count VI should be dismissed because the court had already rejected that argument in 

ruling on defendants’ earlier motion for reconsideration.

On November 15, 2017, plaintiff filed a response to defendants’ motion for summary 

disposition as to Counts I, II, III, IV, V, and VIII. Plaintiff argued that defendants’ claims for 

property taxes failed as a matter of law because (1) there was an adequate remedy at law, and (2) 

defendants did not provide a benefit to plaintiff because common elements may not be taxed. 

Plaintiff argued that Michigan law provides a clear legal remedy for reimbursement of taxes 

assessed or paid by mistake.6 Plaintiff additionally argued that there was no wrongful conduct 

necessary for a claim of indemnity, defendants’ claim for promissory estoppel was based on a 

2007 purchase agreement between Vistal and plaintiff, which was an express contract that barred 

 6 Plaintiff noted that defendants had also filed a lawsuit seeking legal relief against the entities 

that sold them the property in 2004. 
-6-

the claim of promissory estoppel, and there was no agreement as required for a claim of account 

stated. Finally, plaintiff argued that defendants’ claims were barred by MCR 3.411(F). In

response to defendants’ motion for summary disposition regarding Count VI, plaintiff argued 

that (1) the trial court had already ruled on the issue of title, (2) MCL 565.29 was not controlling 

because defendants were not “purchasers in good faith,” (3) MCL 559.143 was inapplicable, and 

(4) the exact time that the developer rights were lost was not dispositive. 

On January 31, 2018, the trial court issued an opinion and order granting plaintiff’s 

motion for summary disposition, dismissing all claims in the second amended countercomplaint, 

and denying defendants’ motions for summary disposition. Regarding Counts I and II 

(restitution and indemnification), the trial court ruled that plaintiff was entitled to summary 

disposition pursuant to MCR 2.116(C)(10) because defendants were not entitled to contractual 

indemnity. The trial court reasoned that there was no evidence of any implied or express 

contract of indemnity, and defendants did not have a valid common-law claim for restitution 

because there was no evidence that plaintiff committed any wrongful act that caused defendants 

to pay the property taxes. The trial court also found that plaintiff was entitled to summary 

disposition on Counts III and VIII (quantum meruit and unjust enrichment) because there was a 

remedy at law and no evidence that plaintiff was unjustly enriched because the property would 

not have been foreclosed upon. Next, the trial court ruled that plaintiff was entitled to summary 

disposition on Count IV (detrimental reliance/promissory estoppel) because there was no 

evidence that plaintiff made a promise or that plaintiff should have expected defendants to act or 

fail to act on the basis of any promise. As to Count V (account stated), the trial court ruled that 

plaintiff was entitled to summary disposition because there was no evidence of an account stated 

in writing by the creditor and accepted as correct by the debtor. The trial court found that 

plaintiff was entitled to summary disposition on Count VI (quiet title/declaratory relief) pursuant 

to MCR 2.116(C)(7) because MCL 565.29 was inapplicable for the reason that there was no 

conveyance, defendants were not subsequent purchasers in good faith, and defendants failed to 

comply with MCR 3.411(F). Finally, the trial court ruled that plaintiff was entitled to summary 

disposition on Count VII (adverse possession) pursuant to MCR 2.116(C)(10) because 

defendants’ use of the land was not actual, visible, open, notorious, exclusive, continuous, and 

uninterrupted for the statutory period of 15 years, nor was it hostile and under cover of claim of 

right. Defendants filed their claim of appeal from this order on February 12, 2018. 

On February 27, 2018, plaintiff filed a motion for attorney fees and costs as a form of 

sanctions against defendants pursuant to MCR 2.114, MCR 2.313, MCR 2.625, and MCL 

600.2591. After a hearing on plaintiff’s motion, the trial court found no basis to sanction 

defendants and denied the motion. The trial court stated, “I can’t remember any point in this 

entire litigation where I thought this is a frivolous pleading that has been filed, this was a 

frivolous motion that has been brought. I think this was a difficult case.” On March 23, 2018, 
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the trial court entered an order denying the motion for attorney fees and costs. Plaintiff filed its 

claim of appeal from this order on April 2, 2018.7

II. DOCKET NO. 342372

In Docket No. 342372, defendants contend that the trial court erred by applying the 2002 

version of MCL 559.167 because the 2016 amendment applies retroactively and, in the 

alternative, that the earlier versions of the statute violated defendants’ due-process rights and 

constituted an unconstitutional taking. We disagree.

A. SUMMARY DISPOSITION

Defendants moved for summary disposition of plaintiff’s amended Count I pursuant to 

MCR 2.116(C)(8), and the trial court granted summary disposition in favor of plaintiff pursuant 

to MCR 2.116(I)(2).

1. ISSUE PRESERVATION AND STANDARD OF REVIEW

“In order to properly preserve an issue for appeal, it must be raised before, and addressed 

and decided by, the trial court.” Henderson v Dep’t of Treasury, 307 Mich App 1, 7-8; 858 

NW2d 733 (2014) (quotation marks and citation omitted). Defendants moved for summary 

disposition on Count I of plaintiff’s amended complaint on the ground that plaintiff’s claim for 

relief was based on a repealed version of MCL 559.167. The trial court disagreed and granted 

summary disposition in favor of plaintiff on Count I. Therefore, the issue of whether the 2016 

amendment to MCL 559.167 applies retroactively is preserved. 

The parties, as early as November 2016, addressed the constitutional issues of due 

process and the takings clause. The court implicitly acknowledged that the parties raised those 

issues when it ruled. The court made the decision to decide this case based upon nonconstitutional grounds. There is a preference for resolution on non-constitutional grounds where 

possible. Lichtman v City of Detroit, 75 Mich App 731, 734; 255 NW2d 750 (1977). As early as 

November, this issue was noted in Defendants’ Motion for Summary Disposition as to Count I. 

It was later argued in a reply brief filed by the defendants, but like other constitutional issues, 

was not discussed by the court in its opinion. In fact the court specifically declined to rule on 

any constitutional issues, stating “Plaintiff makes other valid arguments as to why a reading of 

MCL 559.167 as proposed by the Defendants would render the statute unconstitutional. 

However, the Court need not address that issue at this time.” An argument could be made that 

because the parties did not address this issue at oral argument and the trial court failed to address 

the issue in its opinion and order, it is not preserved. However, because the issue was raised in 

the parties’ briefing, it is preserved for appeal. Peterman v Dep’t of Natural Resources, 446 

Mich 177, 183; 521 NW2d 499 (1994). In this instance even if the issue were unpreserved, this 

 7 The appeals were consolidated on April 19, 2018. See Cover [sic] Creek Condo Ass’n v Vistal 

Land & Home Dev, LLC, unpublished order of the Court of Appeals, entered April 19, 2018 

(Docket Nos. 342372; 343144). 
-8-

Court, having all relevant facts before it, would review the legal issue. Wells Fargo Bank, NA v 

Null, 304 Mich App 508, 518; 847 NW2d 657 (2014).

MCR 2.116(I)(2) provides that “[i]f it appears to the court that the opposing party, rather 

than the moving party, is entitled to judgment, the court may render judgment in favor of the 

opposing party.” This Court reviews de novo a trial court’s ruling on a motion for summary 

disposition. Rataj v City of Romulus, 306 Mich App 735, 746; 858 NW2d 116 (2014). “A 

motion brought under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings 

alone to determine whether the plaintiff has stated a claim on which relief may be granted. The 

motion must be granted if no factual development could justify the plaintiff’s claim for relief.” 

Id. at 746-747 (quotation marks and citations omitted). “A court may grant summary disposition 

to the opposing party under MCR 2.116(I)(2) if it determines that the opposing party, rather than 

the moving party, is entitled to judgment.” Ashley Capital, LLC v Dep’t of Treasury, 314 Mich 

App 1, 6; 884 NW2d 848 (2015) (quotation marks and citation omitted). This Court also reviews 

de novo an issue of statutory construction, which is a question of law. Id. 

With regard to defendants’ unpreserved due-process argument, whether a party has been 

afforded due process, Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009) and

whether MCL 559.167, as amended by 2002 PA 283, caused an unconstitutional taking, are 

questions of law this Court reviews de novo, Hinojosa v Dep’t of Natural Resources, 263 Mich 

App 537, 541; 688 NW2d 550 (2004). The relevant facts are available for both issues; therefore, 

appellate consideration is not precluded. “Review of an unpreserved error is limited to 

determining whether a plain error occurred that affected substantial rights.” Rivette v RoseMolina, 278 Mich App 327, 328; 750 NW2d 603 (2008).

2. ANALYSIS

i. RETROACTIVITY

Whether the 2016 amendment to MCL 559.167 applies retroactively is a question of first 

impression. We begin with the presumption that statutory amendments operate prospectively. 

Davis v State Employees’ Retirement Bd, 272 Mich App 151, 155; 725 NW2d 56 (2006). 

“[S]tatutes and amended statutes are to be applied prospectively unless the Legislature manifests 

an intent to the contrary. The Legislature’s expression of an intent to have a statute apply 

retroactively must be clear, direct, and unequivocal as appears from the context of the statute 

itself.” Id. at 155-156 (citations omitted). Legislative intent governs the determination of 

statutory retroactivity. Id. at 156. “[T]he Legislature has shown on several occasions that it 

knows how to make clear its intention that a statute apply retroactively.” Id. (quotation marks 

and citation omitted). For example, MCL 141.1157 provides: “This act shall be applied 

retroactively . . . [,]” and MCL 324.21301a(2) provides: “The changes in liability that are 
-9-

provided for in the amendatory act that added this subsection shall be given retroactive 

application.” Id.

8

 

“There is an exception to the general rule that newly enacted statutes are presumed to 

apply prospectively, which exception provides that no such presumption exists where the statute 

is remedial or procedural in nature, as long as it does not deny vested rights.” Davis, 272 Mich 

App at 158. Therefore, “[a] statute may not be applied retroactively if it abrogates or impairs 

vested rights, creates new obligations, or attaches new disabilities concerning transactions or 

considerations occurring in the past.” Id. 

The 2016 amendment to MCL 559.167 does not expressly provide that it is retroactive. 

In other words, there is no clear, direct, or unequivocal language in the actual statute that the 

statute is to be applied retroactively, such as language stating that “these amendments shall be 

given retroactive application.” Defendants argue that the use of the word “occurring” in 

Subsection (5) expressly makes the 2016 amendment retroactive. MCL 559.267(5) provides: “A 

reversion under subsection (4), whether occurring before or after the date of the 2016 

amendatory act that added this subsection, is not effective unless the election, notice, and 

recording requirements of subsection (4) have been met.” MCL 559.167(5), as amended by 

2016 PA 233 (emphasis added). This language, however, is not a clear and unequivocal 

expression of the Legislature’s intent to apply the amendment retroactively.9 The Legislature’s 

choice of the word “occurring,” rather than “occurred,” is significant.10 As the trial court 

determined, the present participle indicates that the 2016 amendment does not apply to any 

“reversion” that had already occurred. Before the 2016 amendment, MCL 559.167 did not use 

the term “reversion” or contain Subsection (4). Therefore, “[a] reversion under subsection (4)” 

could not have occurred before the effective date of the 2016 amendment. Likewise, the use of 

the word “occurring” in Subsection (5) signals the progressive aspect and shows that an action 

was, is, or will be unfinished at the time referred to. People v Manuel, 319 Mich App 291, 301-

302; 901 NW2d 118 (2017). Thus, the statute signals that a “reversion under subsection (4)” 

 8 MCL 324.21301a was amended in 2012, see 2012 PA 108, and currently provides: “The 

liability provisions that are provided for in this part shall be given retroactive application.” 

9 In Ferry Beaubien LLC v Centurion Place on Ferry Street Condo Ass’n, unpublished per 

curiam opinion of the Court of Appeals, issued December 14, 2017 (Docket No. 335571), p 6, 7 

n 4, this Court applied the 2002 version of the statute because it was in effect at the time in 

question and this Court further noted that “nothing in the language of amended Subsection (3) 

suggests that it applies retroactively. We presume that statutory amendments operate 

prospectively unless a contrary intent is clearly manifested in the language of the statute.” This 

Court, however, also stated that it was not addressing the effect of the 2016 amendment of MCL 

559.167 on the reversion to general common elements. Id. at 6 n 3. We recognize that 

unpublished opinions are not binding under the rule of stare decisis, but they may be considered 

for their instructive or persuasive value. Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 

219 (2017). 

10 See People v Manuel, 319 Mich App 291, 301-302; 901 NW2d 118 (2017).
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may be in the process of occurring when the statute became effective. In those cases, the 

requirements of the 2016 amendment must be satisfied. As plaintiff argues, however, nothing 

suggests that completed transfers under the earlier versions of the statute are to be reversed.11 

Defendants also argue that the statute is remedial and, therefore, must be applied 

retroactively. “A statute is remedial or procedural in character if it is designed to correct an 

existing oversight in the law or redress an existing grievance[.]” Davis, 272 Mich App at 158-

159 (quotation marks and citation omitted). Defendants specifically argue that the 2016 

amendment was intended to address due-process deficiencies in the prior versions of the statute. 

However, the “legislative history” cited by plaintiff indicates that the purpose of the 2016 

amendment was to address “confusion regarding the timing of the transfer of property and the 

title history of transferred property.”12

Nonetheless, even if the 2016 amendment is considered remedial, it cannot apply 

retroactively if it abrogates vested rights. See Davis, 272 Mich App at 158. Under the 2002 

version of MCL 559.167(3), “[i]f the developer does not withdraw the undeveloped portions of 

the project from the project before expiration of the time periods, those undeveloped lands shall 

remain part of the project as general common elements and all rights to construct units upon 

that land shall cease.” MCL 559.167(3), as amended by 2002 PA 283 (emphasis added). In this 

case, 10 years after the date of commencement of the project was sometime in 1999, or possibly 

sometime in 2012 at the latest.

13 When the rights to construct units ceased, plaintiff obtained a 

vested right in the undeveloped lands (former Units 1 through 14). The trial court found that 

plaintiff’s rights vested by operation of law, without any action. We agree. 

Defendants’ arguments against vesting are that (1) plaintiff did not prepare and record a 

replat under MCL 559.167(2), and (2) the 2002 version of MCL 559.167 violated defendants’ 

due-process rights. The version of MCL 559.167(2), as amended by 2002 PA 283, provides: “If 

a change involves a change in the boundaries of a condominium unit or the addition or 

elimination of condominium units, a replat of the condominium subdivision plan shall be 

prepared and recorded assigning a condominium unit number to each condominium unit in the 

amended project.” As found by the trial court, nothing in this language required a replat to be 

 11 We note that plaintiff argued to the contrary below. In its complaint, plaintiff asserted that 

“MCL 559.167, as amended by 2016 PA 233, which became effective on September 21, 2016 

attempts to retroactively undo any prior reversion of units to common elements . . . .” Plaintiff’s 

position changed in its response to defendants’ motion for summary disposition on Count I of the 

complaint. 

12 Senate Fiscal Agency, Bill Analysis Senate Bill 610 of 2016, p 1, July 5, 2016.

13 As noted above, the first unit was sold at some point in 1989 and, therefore, construction must 

have commenced before that date. Furthermore, as the trial court found, even if the 10-year 

period did not begin to run until the 2002 amendment became effective, it would still have lapsed 

in 2012. 
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recorded, or conditioned a “reversion” on the recording.14 Thus, a “reversion” occurred 

regardless of whether a replat was prepared or recorded. While plaintiff’s failure to record a 

replat may have some other effect, it did not prevent the undeveloped property from remaining 

part of the project as general common elements and the right to construction ceasing under 

Subsection (3). We discuss defendants’ due process argument separately below.

ii. DUE PROCESS

Defendants contend that they were deprived of their due-process rights under the 2002 

version of MCL 559.167 because they were not provided with notice and a hearing before they 

were permanently deprived of their property rights in former Units 1 through 14. We disagree. 

“Both the state and federal constitutions provide that private property shall not be taken 

without due process of law or just compensation. Due process is violated only when legislation 

impairs vested rights.” Attorney General v Mich Pub Serv Comm, 249 Mich App 424, 435; 642 

NW2d 691 (2002). “To constitute a vested right, the interest must be something more than such 

a mere expectation as may be based upon an anticipated continuance of the present general laws; 

it must have become a title, legal or equitable, to the present or future enjoyment of 

property . . . .” Id. at 436 (quotation marks and citation omitted). 

Preliminarily, plaintiff argues that defendants, and their predecessors, did not have any 

vested property right in Units 1 through 14 that was affected by operation of the 2002 version of 

the statute. They argue that, at all times before the 10-year period expired, Units 1 through 14 

were part of the project and defendants had the option to either complete construction or 

withdraw those units from the project. According to plaintiff, an option is merely a contingent 

interest. See Amoco Oil Co v Kraft, 89 Mich App 270, 275; 280 NW2d 505 (1979). As

successor developers of the project, however, defendants had title to the entire project, including 

the “need not be built” units, which it had the right to develop or withdraw. Accordingly, 

defendants had a vested property interest in former Units 1 through 14 before the 10-year period 

expired. 

Even if defendants had a vested property right in former Units 1 through 14, the lapse of 

that right did not deny defendants due process of law. In City of Kentwood v Estate of 

Sommerdyke, 458 Mich 642, 646; 581 NW2d 670 (1998), our Supreme Court held that “the state 

has the authority to condition the retention of certain property rights on the performance of an 

affirmative act within a reasonable statutory period.” That case involved the highway-by-user 

statute, MCL 721.20. City of Kentwood, 458 Mich at 645. As stated by the Court: 

Even with respect to vested property rights, a legislature generally has the power 

to impose new regulatory constraints on the way in which those rights are used, or 

to condition their continued retention on performance of certain affirmative 

 14 Although the preparation and recording of a replat was required by MCL 559.167(2), there is 

nothing linking this requirement to Subsection (3) or conditioning the “reversion” in Subsection 

(3) on such requirement.
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duties. As long as the constraint or duty imposed is a reasonable restriction 

designed to further legitimate legislative objectives, the legislature acts within its 

powers in imposing such new constraints or duties. [L]egislation readjusting 

rights and burdens is not unlawful solely because it upsets otherwise settled 

expectations. [Id. at 652-653 (quotation marks and citation omitted).] 

Therefore, the Court held that “the state may condition the permanent retention of a property 

right on performance of reasonable conditions that indicate a present intention to retain the 

property interest.” Id. at 655-656. The Court concluded that “by treating property that has not 

been reserved for private use for ten years or longer as dedicated to the public for use as a 

highway, the Michigan statute is a reasonable exercise of police power.” Id. at 656. Regarding

whether due process was afforded, the Court stated, “generally, a legislature need only enact and 

publish a law and afford citizens a reasonable opportunity to familiarize themselves with the 

terms of a statute to advise its citizens of the lapse of a property right.” Id. at 664. 

Similarly, MCL 559.167(3), as amended by 2002 PA 283, conditioned the retention of a 

property right on the performance of reasonable conditions that indicate a present intention to 

retain that property interest. Within the 10-year period, defendants were required to either 

develop Units 1 through 14 or withdraw the undeveloped portions from the project. See MCL 

559.167(3), as amended by 2002 PA 283. Defendants had sufficient notice of the law and that 

their property rights would lapse if they did not take action within the 10-year period. Moreover, 

the requirements of either completing the project or withdrawing the units from the project are 

reasonable requirements designed to further the legitimate objectives of preventing incomplete 

projects and providing finality. Defendants rely on cases involving the forfeiture of real property 

for the failure to pay taxes, which require notice and a hearing to afford due process. Under the 

above caselaw, however, defendants received all the process that was due. As a consequence, 

any vested rights defendants possessed in the property lapsed by 2012.

iii. UNCONSTITUTIONAL TAKING

Defendants also contend that the 2002 version of MCL 559.167, which mandated a 

permanent transfer of title, caused an unconstitutional taking without just compensation and in 

violation of the public use requirement. We disagree. 

“The Fifth Amendment provides in part: ‘[N]or shall private property be taken for public 

use, without just compensation.’ ” City of Kentwood, 458 Mich at 656. “The Fifth Amendment 

prohibition applies against the states through the Fourteenth Amendment. Michigan’s 

Constitution is substantially similar to the Taking Clause of the United States Constitution.” Id. 

(citations omitted). “One who asserts an uncompensated taking claim must first establish that a 

vested property right is affected.” Mich Pub Serv Comm, 249 Mich App at 436 (quotation marks 

and citation omitted). 

As discussed, defendants had a vested property right in former Units 1 through 14, such 

that they could properly assert an uncompensated taking claim. Nonetheless, the necessary state 

action required to find an unconstitutional taking is not present. As stated in City of Kentwood, 

458 Mich at 663, “It is the owner’s failure to make any use of the property—and not the action of 

the State—that causes the lapse of the property right; there is no ‘taking’ that requires 
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compensation.” (Quotation marks and citation omitted.) Similarly, in this case, it was 

defendants’ failure to act within the 10-year period that caused the lapse of their property right, 

not any action of the state. Therefore, there is no “taking” that requires compensation under the 

United States and Michigan Constitutions. We further reject defendants’ claim for inverse 

condemnation because it was not raised below and is not asserted against the government. 

“Inverse condemnation is a cause of action against a governmental defendant to recover the 

value of property which has been taken in fact by the governmental defendant, even though no 

formal exercise of the power of eminent domain has been attempted by the taking agency.” 

Mays v Snyder, 323 Mich App 1, 79; 916 NW2d 227 (2018) (quotation marks and citations 

omitted; emphasis added). In this case, defendants make this claim against plaintiff, a 

condominium association, not a governmental unit and, therefore, their claim for inverse 

condemnation fails.

Summarily, the trial court correctly applied MCL 559.167, as amended by 2002 PA 283, 

and properly granted summary disposition in favor of plaintiff on Count I of the complaint. 

Further, MCL 559.167, as amended by 2002 PA 283, did not cause an unconstitutional taking 

nor did it deny defendants due process of law. 

B. DEFENDANTS’ COUNTERCLAIMS

The trial court granted summary disposition in favor of plaintiff on defendants’ 

counterclaims for reimbursement for the payment of tax bills and denied defendants’ motion 

under MCR 2.116(C)(10). This Court reviews de novo a trial court’s ruling on a motion for 

summary disposition. Rataj, 306 Mich App at 746. “Summary disposition is proper under MCR 

2.116(C)(10) if the affidavits and other documentary evidence show that there is no genuine 

issue concerning any material fact and that the moving party is entitled to judgment as a matter 

of law.” Id. at 747 (quotation marks and citation omitted). 

This issue is waived for appellate review. Defendants merely contend that they are 

entitled to reimbursement because they paid the taxes on Units 1 through 14 until 2015, and the 

payment of taxes constitutes an improvement to the property. However, defendants provide no 

supporting reasoning. They fail to address, for example, any of the specific causes of actions 

alleged in their second amended countercomplaint, the elements of those causes of action, or the 

trial court’s rulings on those claims. “A party may not merely announce a position and leave it 

to this Court to discover and rationalize the basis for the claim.” Caldwell v Chapman, 240 Mich 

App 124, 132-133; 610 NW2d 264 (2000). 

IV. DOCKET NO. 343144

Following the filing of defendants’ claim of appeal in Docket No. 342372, plaintiff filed 

a motion for attorney fees and costs, which the trial court denied. In Docket No. 343144, 

plaintiff appeals the order denying its motion for attorney fees and costs. Plaintiff contends that 

the trial court erred by denying its request for attorney fees and costs related to defendants’ filing 

of (1) the counterclaims in defendants’ second amended countercomplaint, (2) the motion to 

strike, and (3) the motion to compel. We disagree. 

A. STANDARD OF REVIEW
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This Court reviews for an abuse of discretion a request for sanctions under MCR 2.114 

and MCR 2.313. Sprenger v Bickle, 307 Mich App 411, 422-423; 861 NW2d 52 (2014); 

Phinisee v Rogers, 229 Mich App 547, 561-562; 582 NW2d 852 (1998). “A trial court abuses its 

discretion when it chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” Fette v Peters Constr Co, 310 Mich App 535, 547; 871 NW2d 877 (2015). “[T]he 

court’s underlying factual findings, including a finding of frivolousness, are reviewed for clear 

error.” Sprenger, 307 Mich App at 423. “A decision is clearly erroneous when, although there 

may be evidence to support it, we are left with a definite and firm conviction that a mistake has 

been made.” Guerrero v Smith, 280 Mich App 647, 677; 761 NW2d 723 (2008).

B. ANALYSIS

“Sanctions are warranted under MCR 2.114 where a plaintiff asserts claims without any 

reasonable basis in law or fact for those claims, or where the claims are asserted for an improper 

purpose.” Robert A Hansen Family Trust v FGH Indus, LLC, 279 Mich App 468, 486; 760 

NW2d 526 (2008); MCR 2.114(D).15 MCR 2.114(E), which was in effect at the time that 

plaintiff filed its motion for attorney fees and costs and the trial court ruled on the motion, 

provided: 

If a document is signed in violation of this rule, the court, on the motion of 

a party or on its own initiative, shall impose upon the person who signed it, a 

represented party, or both, an appropriate sanction, which may include an order to 

pay to the other party or parties the amount of the reasonable expenses incurred 

because of the filing of the document, including reasonable attorney fees. The 

court may not assess punitive damages. 

Under MCR 2.114(F), “a party pleading a frivolous claim or defense is subject to costs as 

provided in MCR 2.625(A)(2).” MCR 2.625(A)(2) provides: “In an action filed on or after 

October 1, 1986, if the court finds on motion of a party that an action or defense was frivolous, 

costs shall be awarded as provided by MCL 600.2591.” MCL 600.2591 provides: 

(1) Upon motion of any party, if a court finds that a civil action or defense 

to a civil action was frivolous, the court that conducts the civil action shall award 

to the prevailing party the costs and fees incurred by that party in connection with 

the civil action by assessing the costs and fees against the nonprevailing party and 

their attorney. 

(2) The amount of costs and fees awarded under this section shall include 

all reasonable costs actually incurred by the prevailing party and any costs 

allowed by law or by court rule, including court costs and reasonable attorney 

fees. 

 15 MCR 2.114 has been repealed, effective September 1, 2018, and substantially relocated to 

current MCR 1.109(E). 
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(3) As used in this section: 

(a) “Frivolous” means that at least 1 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. 

(iii) The party’s legal position was devoid of arguable legal merit. 

(b) “Prevailing party” means a party who wins on the entire record. 

As this Court explained in Guerrero, 280 Mich App at 677-678: 

Pursuant to MCR 2.114(D), an attorney is under an affirmative duty to conduct a 

reasonable inquiry into both the factual and legal basis of a document before it is 

signed. Under MCR 2.114(D), the signature of a party or an attorney is a 

certification that the document is “well grounded in fact and . . . warranted by 

existing law or a good-faith argument for the extension, modification, or reversal 

of existing law” and that “the document is not interposed for any improper 

purpose, such as to harass or to cause unnecessary delay or needless increase in 

the cost of litigation.” The filing of a signed document that is not well grounded 

in fact and law subjects the filer to sanctions pursuant to MCR 2.114(E). MCR 

2.114(E) states that the trial court “shall” impose sanctions upon finding that a 

document has been signed in violation of the rule. Therefore, if a violation of 

MCR 2.114(D) has occurred, the sanctions provided for by MCR 2.114(E) are 

mandatory. [Citations omitted.] 

1. COUNTERCLAIMS

Plaintiff first argues that the trial court was required to impose sanctions for defendants’ 

filing of frivolous and untimely counterclaims, as well as defendants misrepresenting that they 

paid property taxes on former Units 1 through 14. Plaintiff argues that defendants’ 

counterclaims were frivolous because (1) restitution is not a cause of action, (2) there was no 

special relationship necessary for indemnification, (3) there was a statutory remedy available and 

no benefit to plaintiff, (4) no promises were made, (5) there were no mutual dealings necessary 

for a claim of account stated, (6) defendants had no basis to assert a claim for quiet title because 

the trial court had already ruled on the issue, and (7) there was no factual basis for a claim of 

adverse possession. 

We disagree that defendants misrepresented that they paid taxes on the property. The 

second amended countercomplaint alleged that “Defendants, directly or through their 

predecessors in title, paid real property taxes on Units 1 through 14 prior to tax year 2000.” 

They argued the same in their motion for summary disposition. Defendants attached to their 

motion for summary disposition a tax history showing taxes paid on the property, receipts, 

checks, and tax statements. The motion also specifically alleged that “[a]ny entity paying any 
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taxes on any of the 14 units has assigned its interest and claim to reimbursement to VISTAL and 

or TRUST.” Defendants attached the assignments to their motion. Accordingly, there was at 

least a question of fact regarding whether defendants, or their predecessors whose rights 

defendants had acquired, paid property taxes on Units 1 through 14, and the amount of the taxes 

paid, such that the trial court did not abuse its discretion by denying sanctions on this ground. 

Moreover, the trial court’s finding that the counterclaims were not frivolous is not clearly 

erroneous. After the trial court determined that defendants lost any right to construct Units 1 

through 14, defendants sought to recover the property taxes that they or their predecessors 

allegedly paid by asserting various theories of relief. Although we agree with the trial court’s 

dismissal of those claims because there is a statutory remedy available, there was arguable legal 

merit to their claim that the statutory remedy was not sufficient. There was also arguable legal 

merit to defendants’ arguments that their motion was timely under MCR 3.411(F) given the 

filing of their motion for reconsideration. Furthermore, plaintiff fails to establish that defendants 

merely intended to increase costs by filing the counterclaims. 

Defendants’ specific counterclaims for restitution, indemnification, quantum 

meruit/unjust enrichment, and promissory estoppel were properly dismissed by the trial court. 

However, the trial court’s finding that those claims had arguable legal merit is not clearly 

erroneous. “A claim is not frivolous merely because the party advancing the claim does not 

prevail on it. Instead, 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.” 

Grass Lake Improvement Bd v Dep’t of Environmental Quality, 316 Mich App 356, 365; 891 

NW2d 884 (2016) (quotation marks and citations omitted). 

With regard to the claim of restitution, plaintiff relies on the fact that restitution is a 

remedy, not a claim. Although we agree that restitution is merely a remedy, our Supreme Court 

has nonetheless referred to a “claim of restitution.” See, e.g., Zerrenner v Zerrenner, 474 Mich 

1103, 1103; 711 NW2d 380 (2006). In any event, courts look beyond labels. See, e.g., Norris v 

Lincoln Park Police Officers, 292 Mich App 574, 582; 808 NW2d 578 (2011). Therefore, this 

claim was not devoid of arguable legal merit. 

Concerning the claim for indemnification, “[t]he right to common-law indemnification is 

based on the equitable theory that where the wrongful act of one party results in another party’s 

being held liable, the latter party is entitled to restitution for any losses.” Botsford Continuing 

Care Corp v Intelistaf Healthcare, Inc, 292 Mich App 51, 62; 807 NW2d 354 (2011) (quotation 

marks and citation omitted). Plaintiff asserts that this Court has “routinely upheld the dismissal 

of indemnification claims in which a party has failed to plead a special relationship or course of 

conduct amongst the parties.” Plaintiff, however, only cites cases decided before November 1, 

1990, which are not binding. MCR 7.215(J)(1). Moreover, our Supreme Court has held that 

“[r]estitution recognizes the need for compensation in instances when the receipt and retention of 

a benefit by a person without payment made to the person providing that benefit would result in 

injustice.” In re Bradley Estate, 494 Mich 367, 409; 835 NW2d 545 (2013). Therefore, 

defendants could have reasonably believed that they had a claim against plaintiff for the taxes 

that they allegedly paid on property that was owned by plaintiff. This argument was not devoid 

of arguable legal merit, even though real property taxes were not actually owed on former Units 

1 through 14 because they were general common elements and common elements are not 
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taxable. Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 149; 783 NW2d 133 

(2010).

In support of the claims of quantum meruit and unjust enrichment, plaintiff merely relies 

on the fact that a statutory remedy was available and no benefit was received. “The theory 

underlying quantum meruit recovery is that the law will imply a contract in order to prevent 

unjust enrichment when one party inequitably receives and retains a benefit from another.” 

Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 194; 729 NW2d 898 (2006) 

(quotation marks and citation omitted). Although taxes were not actually owed on common 

general elements, defendants allegedly paid the taxes on the basis of a mutual mistake. 

Accordingly, there was arguable legal merit to their claim to recover that money from plaintiff 

on the basis that plaintiff, as the owner of the property, received an unfair benefit. 

With regard to defendants’ claim of promissory estoppel, the elements are “(1) a promise, 

(2) that the promisor should reasonably have expected to induce action of a definite and 

substantial character on the part of the promisee, and (3) that in fact produced reliance or 

forbearance of that nature in circumstances such that the promise must be enforced if injustice is 

to be avoided.” Klein v HP Pelzer Auto Sys, Inc, 306 Mich App 67, 83; 854 NW2d 521 (2014) 

(quotation marks and citation omitted). Defendants’ second amended countercomplaint referred 

to a 2007 contract, but it did not allege that any specific promise was made. However, in 

reliance on Ollig v Eagles, 347 Mich 49; 78 NW2d 553 (1956), defendants alleged a claim of 

“promissory estoppel” on the basis of plaintiff’s alleged silence or acquiescence while 

defendants paid the real property taxes. Although Ollig involved equitable estoppel rather than 

promissory estoppel,16 the substance of the claim controls, not its label. Norris, 292 Mich App at

582. In Ollig, the Court considered whether

when an occupying claimant in good faith, but mistakenly, relied upon the belief 

that his wife had title to land and built a house thereon with the full knowledge 

and silent acquiescence of the actual owner and upon discovery brings suit in 

equity for an accounting for the value of his improvements, is a chancery court 

powerless to grant relief[.] [Ollig, 347 Mich at 60].

Based on Ollig, there was arguable legal merit to defendants’ claim, even though the claim was 

properly dismissed because the payment of taxes that were not owed did not improve the land. 

Defendants’ claims for account stated, to quiet title, and for adverse possession were also 

dismissed by the trial court. For the reasons discussed below, however, those claims were not 

devoid of arguable legal merit and, therefore, the trial court did not abuse its discretion by 

declining to impose sanctions. 

 16 The distinction is that “[e]quitable estoppel is essentially a doctrine of waiver,” whereas 

promissory estoppel “substitutes for consideration in a case where there are no mutual promises.” 

Huhtala v Travelers Ins Co, 401 Mich 118, 132-133; 257 NW2d 640 (1977).
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First, “[a]n account stated is a contract based on assent to an agreed balance, and it is an 

evidentiary admission by the parties of the facts asserted in the computation and of the promise 

by the debtor to pay the amount due.” Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 

Mich 543, 557; 837 NW2d 244 (2013). “The parties to an account stated need not expressly 

assent to the sum due, as there are instances when assent may be inferred from a party’s 

inaction[.]” Id. at 558. Defendants alleged that they sent an account to plaintiff for monies due 

and, because plaintiff failed to object, the accounting became an “account stated.” The trial court 

found that there was no written account stated that was accepted by the debtor, but it did not 

address whether plaintiff’s assent could be inferred. Under the above caselaw, there was 

arguable legal merit to defendants’ claim, even though it was rejected by the trial court. 

Defendants’ claim to quiet title and for declaratory relief alleged that plaintiff lost any 

title to Units 1 through 14 because defendants’ deeds were recorded before plaintiff recorded 

notice of its interest. The trial court rejected this claim on the basis that the race-notice statute, 

MCL 565.29, applies to conveyances and there was no conveyance in this case because “Units 1 

through 14 were converted to common elements by operation of law.” The trial court 

additionally found that defendants were not subsequent purchasers in good faith because they 

knew, or should have known, of the effect of the law on “need not be built” units, which were 

identified in the Master Deed. As noted, plaintiff argues on appeal that sanctions should have 

been imposed because this issue was already decided in the trial court’s orders entered on 

February 10, 2017, and March 15, 2017. The race-notice issue, however, was not previously 

decided by the trial court.17 As defendants argue, although the trial court found that plaintiff had 

title to former Units 1 through 14 and defendants’ rights ceased by at least 2012, defendants’ 

counterclaim related to events that occurred after the “reversion” by operation of law that 

occurred under MCL 559.167, as amended by 2002 PA 283. Therefore, the trial court did not 

abuse its discretion by declining to impose sanctions on this basis. 

Last, defendants alleged that they obtained title to former Units 1 through 14 by adverse 

possession. As stated by this Court in Waisanen v Superior Twp, 305 Mich App 719, 731; 854 

NW2d 213 (2014): 

A claim of adverse possession requires clear and cogent proof that 

possession of the disputed property has been actual, visible, open, notorious, 

exclusive, continuous, and uninterrupted for the statutory period. The use of the 

property must be hostile, that is without permission and in a manner that is 

inconsistent with the rights of the true owner. The statutory period of limitations 

for adverse possession is 15 years. [Quotation marks and citation omitted.] 

Defendants alleged facts in support of each of these elements, asserting that a for sale sign was 

placed on the property, the real estate efforts were open and obvious, plaintiff was on notice of 

the 2004 transfer to Vistal Cothery, LLC, and did not object, defendants and their predecessors 

paid taxes on the property and openly surveyed, staked, and grubbed the property, defendants 

 17 The trial court had only previously addressed the applicability of MCL 559.167(2) and MCL 

559.143. 
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were in actual and constructive possession of the property, defendants and their predecessors 

held the property exclusively, uninterrupted, and continuously since before 1990, and 

defendants’ claim was hostile and notorious. The trial court, however, found that defendants did 

not have exclusive use for 15 years, and they were given express permission to access and 

possess the land in 2007. On appeal, plaintiff argues that defendants’ claim was frivolous 

because the payment of taxes is insufficient to establish adverse possession, defendants never 

actually possessed the property, and defendants were provided permission to enter the property 

in 2007. In response to plaintiff’s motion for summary disposition on defendants’ second 

amended countercomplaint, defendants argued that the 2007 purchase agreement was for the 

common elements only, not Units 1 through 14, and there were disputed questions of fact 

regarding the elements of adverse possession. In ruling on plaintiff’s motion for fees, the trial 

court stated that even though defendants did not prevail on their claim of adverse possession, 

“that doesn’t mean that there wasn’t an argument to be made.” Given the allegations and 

arguments made by defendants, the trial court did not clearly err by finding that defendants’ 

claim was not frivolous. 

2. MOTION TO STRIKE RESPONSE

Plaintiff also argues that the trial court erred by denying its request for attorney fees and 

costs because defendants violated MCR 2.114 by filing a motion to strike its response to 

defendants’ motion for summary disposition. Plaintiff argues that MCR 2.115(B) only allows 

pleadings to be struck and a response to a motion is not a pleading. MCR 2.115(B) provides that 

“the court may strike from a pleading” and “may strike all or part of a pleading.” MCR 2.110(A) 

defines “pleading” as a complaint, a cross-claim, a counterclaim, a third-party complaint, an 

answer to any of the above, or a reply. Accordingly, plaintiff is correct that a response cannot be 

struck. Although the label “motion to strike” may have been improper, the substance of 

defendants’ argument—that the response improperly raised new issues—had arguable legal 

merit. Further, defendants’ reply and motion to strike were combined in a single document, and 

defendants were essentially requesting that the court only consider the issue before it and 

consider the “new” issues at a later time. Accordingly, it is not clear that plaintiff was required

to file a response to defendants’ combined reply and “motion to strike.” Again, although the 

form was improper, there was arguable legal merit to defendants’ claim that the trial court should 

only consider the issue before it. Therefore, the trial court did not abuse its discretion by 

denying sanctions on this basis. 

3. MOTION TO COMPEL DISCOVERY

Last, plaintiff argues that the trial court was required to grant its request for attorney fees 

and costs after the trial court denied defendants’ motion to compel discovery. On December 15, 

2016, defendant Vistal filed a motion to compel discovery, arguing that plaintiff failed to fully 

answer interrogatories and provide all of the documents requested. On January 6, 2017, plaintiff 

filed a response to defendants’ motion to compel in which it argued that the requested 

information was not relevant, was in the possession of Vistal’s predecessors, or was already 

provided. Plaintiff also requested attorney fees pursuant to MCR 2.313(A)(5)(b) for having to 

respond to a frivolous motion. 
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At the January 11, 2017 hearing, defendants argued that they were asking for documents 

going back to 1990 when the project started, but plaintiff only provided documents for the last 10 

years because that was the time period for which it was requesting the payment of assessments. 

Defendants argued that they were seeking information regarding when plaintiff began assessing 

the units and whether there were, in fact, 31 units. Defendants also wanted to know how plaintiff 

came up with $200,000 in interest and late fees. The trial court subsequently denied Vistal’s 

motion to compel in light of its ruling on Count I. On March 21, 2017, defendants filed a motion 

for reconsideration, which the trial court denied on April 13, 2017. 

On appeal, plaintiff argues that the motion to compel was not related to the time period of 

the assessments requested, all of the requested information was provided, and the motion was 

intended to harass and increase the costs of the litigation. Defendants respond that the date of 

commencement of the 10-year period was a material issue and the requested information was 

relevant to other claims and defenses, including adverse possession. Defendant’s original 

countercomplaint did not allege a claim of adverse possession.18 Nonetheless, the trial court did 

not clearly err by finding that defendants’ requests were not “inappropriate.” Given defendants’ 

arguments, there was a reasonable basis for defendants to believe that their requests would lead 

to relevant evidence. Because defendants’ motion had arguable legal merit and a basis in fact, 

the trial court did not clearly err by finding that the motion was not frivolous. 

As plaintiff argues, however, its request for fees was under MCR 2.313(A)(5)(b). MCR 

2.313(A)(5) relates to awards for the expenses of motions, and Subsection (b) provides: 

If the motion is denied, the court shall, after opportunity for hearing, 

require the moving party or the attorney advising the motion, or both, to pay to 

the person who opposed the motion the reasonable expenses incurred in opposing 

the motion, including attorney fees, unless the court finds that the making of the 

motion was substantially justified or that other circumstances make an award of 

expenses unjust. [MCR 2.313(A)(5)(b).] 

Thus, the trial court was required to order defendants to pay plaintiff’s reasonable expenses 

incurred in opposing the motion, unless it found that the making of the motion was substantially 

justified or that other circumstances made an award of expenses unjust. At the hearing, the trial 

court stated: 

You know, Plaintiff argues that the motion to compel that was filed was 

inappropriate, but, you know, our discovery rules have built in procedures for 

dealing with overbroad requests. That was followed. There’s nothing 

inappropriate about the decision that was made to -- to make those discovery 

requests. 

 18 We note that defendants’ claim of adverse possession was not filed until after the motion to 

compel was filed.
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Although the trial court did not expressly find that the motion was “substantially justified” or 

that an award of expenses would be “unjust” under the circumstances, its finding that the motion 

was not “inappropriate” indicates that it so found. Therefore, the trial court did not abuse its 

discretion by denying the motion for fees and costs related to defendants’ motion to compel 

discovery. 

Affirmed.

/s/ Cynthia Diane Stephens

/s/ Amy Ronayne Krause

/s/ Patrick M. Meter