Order Michigan Supreme Court 

Lansing, Michigan 

March 7, 2008 Clifford W. Taylor,

 Chief Justice 

133923 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

MARY C. KALLMAN and HIGGINS LAKE Robert P. Young, Jr. 

Stephen J. Markman, PROPERTY OWNERS ASSOCIATION, Justices Plaintiffs-Appellants, 

v SC: 133923 

 COA: 263633 

Roscommon CC: 03-724042-CH 

SUNSEEKERS PROPERTY OWNERS 

ASSOCIATION, L.L.C., 

Defendant-Appellee. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the February 1, 2007 

judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in 

lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of 

Appeals and REMAND this case to the Roscommon Circuit Court for further 

proceedings. 

The Court of Appeals erred when it reversed the trial court’s holding regarding 

nuisance in fact. The trial court did not err when it concluded that the defendant’s 184-

foot dock, with six mooring sites on a piece of property with 25 feet of lake frontage, and 

its use of its property as a “keyhole” or “funnel” lot for its unlimited membership 

substantially interfered with plaintiff Kallman’s use of her property, amounting to a 

nuisance in fact. 

The Court of Appeals properly raised sua sponte the issue of the plaintiffs’ 

standing to pursue their nuisance per se claim under MCL 125.294. See Michigan 

Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280, 291-

94 (2007) (discussing the importance of standing to the proper exercise of the judicial 

power); People v Smith, 420 Mich 1, 11 n 3 (1984). The plaintiffs, however, were not 

required to prove standing during or prior to trial absent a challenge by the defendant. 

See Lujan v Defenders of Wildlife, 504 US 555, 564 (1992) (noting that facts supporting 

standing must be produced at trial “if controverted”). When the trial court has not made 

findings with regard to standing because standing was never challenged in that court, the 
 _________________________________________ 

 

 

 

2 

proper course of action is to remand for a hearing on the issue of standing. See Smith, 

supra at 28-29. On remand, the plaintiffs must show that they have a substantial interest 

that would be detrimentally affected in a manner different from the citizenry at large. 

Nestlé Waters, supra at 294. Standing may be proven by showing that the “defendant’s 

activities directly affected the plaintiff[s’] recreational, aesthetic, or economic interests.” 

Id. at 296. 

WEAVER, J., concurs and states as follows: 

I concur only in the order reversing the Court of Appeals judgment and remanding 

this case to the trial court for further proceedings. 

I write separately because I disagree with the order’s discussion of the majority of 

four’s (Chief Justice Taylor and Justices Corrigan, Young, and Markman) erroneously 

created standing test in Lee v Macomb Co Bd of Comm’rs,

1 Nat’l Wildlife Federation v 

Cleveland Cliffs Iron Co,

2 Rohde v Ann Arbor Pub Schools,3

 and Michigan Citizens for 

Water Conservation v Nestlé Waters North America Inc.

4

 In those cases, the majority of 

four systematically dismantled Michigan’s law on standing and replaced years of 

precedent with its own test that denies Michigan citizens access to the courts.5 

On remand, I would ask the plaintiffs to show whether they have standing under 

the pre-Lee prudential test for standing by showing whether the plaintiffs can demonstrate 

“that the plaintiff’s substantial interest will be detrimentally affected in a manner 

different from the citizenry at large.” House Speaker v State Administrative Bd, 441 

Mich 547, 554 (1993).

 CAVANAGH, J., would deny leave to appeal. 

1 Lee v Macomb Co Bd of Comm’rs, 464 Mich 726 (2001). 

2 Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004). 

3 Rohde v Ann Arbor Pub Schools, 479 Mich 336 (2007). 

4 Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 479 

Mich 280 (2007). 

5

 See my opinions chronicling the majority of four’s assault on standing in Lee, 464 Mich 

at 742; Nat’l Wildlife, 471 Mich at 651; Rohde, 479 Mich at 366; and Michigan Citizens, 

479 Mich at 310. 

p0304 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

March 7, 2008 

Clerk