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**

BLANCHE HUDSON and PAT FOSTER,

Plaintiffs

- Appellants, UNPUBLISHED July 25, 2019

v No. 344482 Allegan Circuit Cou r t
JOHN C. KLEU E SSENDORF and JOHN T. BENSON, LC No. 13

- 052422

- NZ

Defendants

- Appellees.

Before: S AWYER

, P.J., and B ORRELLO and S HAPIRO

, JJ.

P ER C URIAM

.

Plaintiffs, acting in propria persona , appeal from the trial court ’ s order awarding defendants attorney fees and costs in the amount of $65,246.75 after determining that plaintiffs ’ civil action was frivolous when filed under MCR 2.625(A) and MCL 600.2591. This longstanding and contentious property dispute returns to this Court for the fifth time. In Hudson

v Kleuessendo rf , unpublished per curiam opinion of the Court of Appeals, issued October 11, 2016 (Docket No. 327878) ( Hudson I ), we affirmed the trial court ’ s grant of summary disposition in favor of defendants. After granting summary disposition, the trial court

dete rmined plaintiffs ’ action was frivolous and awarded defendants $38,827.67 in attorney fees and $5,009.65 in costs. However, in Hudson v Kleuessendorf , unpublished per curiam opinion of the Court of Appeals, issued September 19, 2017 (Docket No. 333124) ( H udson II ), we determined that the trial court applied the wrong legal framework for making an award of attorney fees and costs, vacated the trial court ’ s original award, and remanded this case to the trial court for reconsideration in light of our opinion. 1 On remand, the trial court once again entered an award of attorney fees and costs, precipitating this current appeal. We affirm.

1 Even before these two unpublished decisions, this Court also entered orders denying plaintiffs’ application for leave to appeal two interlocutory decisions of the trial court and their motions for a stay pending those appeals. See Hudson v Kleuessendorf

, unpublished order of the Court of- 2

- Although plaintiffs attempt to re litigate or litigate for the first time other issues, the sole issue in this appeal is wh ether the trial court erred on remand when it determined plaintiffs ’ complaint was frivolous at the time of its filing and that MCL 600.2591 required an award of attorney fees and costs in favor of defendants. For the reasons set forth in this opinion, we hold that the trial court did not clearly err on remand when it found that plaintiffs ’ complaint was frivolous at the time of its filing.

In this Court ’ s decision affirming the trial court ’ s grant of summary disposition in favor of defendants, we summar ized the tortuous history of this case:

Plaintiff [ 2 ] and defendants reside across the street from each other on Mallard Street in Fennville, Michigan. Plaintiff ’ s property was platted as part of Recreation Development Subdivision No. 1 ( “ the subdivisio n ” ), while defendants ’ home is on property adjacent to the subdivision. Mallard Street

— as accessed through Blue Goose Avenue

— provides the only means of access to defendants ’ property and that of other property similarly adjacent to the subdivision. Malla rd Street is a private drive included in the 1965 plat dedication which created the subdivision. Notably, the plat dedication specifies that “ Blue Goose Avenue and Mallard St. is [sic] dedicated as private to the use of the lot owners and adjacent

propert y owners

. ”

In 2000, plaintiff initiated a lawsuit against Richard Saputo, the former

owner of defendants ’ property, seeking to prevent Saputo from accessing his property via Blue Goose Avenue and Mallard Street. Plaintiff took the position

Appeals, entered March 25, 2015 (Docket No. 325351), and Hudson v Kleuessendorf

, unpublished order of the Court of Appeals, entered March 25, 2015 (Docket No. 324436). This Court also issued a separate opinion affirming the trial court’s denial of Foster’s motion to terminate a personal protection order issued against him, see Benson v Foster , unpublished per curiam opinion of the Court of Appeals, issued February 24, 2015 (Docket No. 315384), and another opinion affirmin g the trial court’s decision finding Foster in criminal contempt for violating that same personal protection order, see Benson v Foster , unpublished per curiam opinion of the Court of Appeals, issued February 24, 2015 (Docket No. 319516). In a separate

ca se that Foster brought against Ganges Township relating to this same property dispute, this Court rejected his argument that the township failed to comply with the Land Division Act, MCL

560.101 et seq ., by allowing the use of private roads by property own ers adjacent to his subdivision, which Foster alleged caused flooding damage to his property. See Foster v Ganges Twp , unpublished per curiam opinion of the Court of Appeals, issued March 1, 2018 (Docket Nos. 336937 and 337278) . There are also several ad ditional relevant trial court litigation matters involving plaintiffs that preceded defendants’ purchase of their property in 2010. We will refer to this extended litigation history where necessary to aid our resolution of the attorney fees and

costs issu e currently before the Court.

2 Blanche Hudson was not a party to the underlying appeal, thus explaining this Court’s use of the single person for plaintiff.- 3

- that the stree ts in question were private roadways solely for use by the subdivision. That case ended when plaintiff voluntarily stipulated to a dismissal with prejudice. In 2003, several property owners in the subdivision sued plaintiff, who had constructed fencing w hich interfered with use of Mallard Street. In 2005, the Allegan Circuit Court ordered plaintiff to remove the obstructions. The court held that the 1965 plat dedication created an easement over both Blue Goose

Avenue and Mallard Street “ limited to reaso nable ingress and egress throughout

the subdivision. ”

In the present case, plaintiff again seeks to prevent neighbors from using Mallard Street. In particular, plaintiff sought to permanently enjoin defendants from using Mallard Street for any purpose ba sed on the contention that the private roadway was solely for use by the subdivision. Aside from defendants ’ use of Mallard Street to access their property, plaintiff also brought claims of negligence, trespass, encroachment, and nuisance, alleging that d efendants made changes to their property and/or Mallard Street that caused water to drain onto plaintiff ’ s property, resulting in property damage. Plaintiff asked that defendants be compelled to remove their improvements and to re

- dig a purported drainage

ditch.

Following defendants ’ motion for summary disposition, the trial court granted summary disposition under MCR 2.116(C)(7) and (C)(10). The trial court concluded that res judicata and laches barred plaintiff ’ s efforts to prevent

defendants from usin g Mallard Street. Regarding plaintiff ’ s other various claims, the trial court granted summary disposition under MCR 2.116(C)(10) because no material questions of fact remained. [ Hudson I , unpub op at 1

- 2.]

In Hudson II , this Court held that the trial co urt “ utilized the wrong framework ” when it awarded attorney fees and costs to defendants pursuant to MCL 600.2591, reasoning that the trial

court ’ s order focused on the incorrect period for determining whether a complaint was frivolous

because “ its finding s, at least in part, focused on whether plaintiffs ’ actions during the course of litigation were frivolous, rather than focusing on the claims at the time they were made. ”

Hudson II , unpub op at 1, 5. Although acknowledging “ that a party ’ s litigation conduct can be evidence to support that the primary purpose of initiating claims was to harass, embarrass, or injure, ” this Court criticized the trial court for failing to clearly analyze whether plaintiffs ’ claims were factually or legally frivolous when plaintiffs filed their complaint. Id . at 5. This Court instructed that, on remand, the relevant inquiry must focus on plaintiffs ’ purpose and knowledge at the time of the filing of the action. Id . at 5

- 6. This Court vacated the award of fees and cost

a nd remanded the case to the trial court for reconsideration in light of its opinion clarifying the proper legal framework. Id . at 6. On remand, the trial court awarded defendants $58,212.40 in attorney fees and $7,034.35 in costs, for an award totaling $ 65,246.75. Plaintiffs appeal from

that decision.

In considering plaintiffs ’ claim of error, we follow closely our standard of review. “ A

trial court ’ s findings with regard to whether a claim or defense was frivolous, and whether sanctions may be impose d, will not be disturbed unless it is clearly erroneous. ” Meisner Law Group PC v Weston Downs Condo Ass ’ n , 321 Mich App 702, 731; 909 NW2d 890 (2017)- 4

- (quotat ion marks and citation omitted)

. “ A decision is clearly erroneous where, although there is

eviden ce to support it, the reviewing court is left with a definite and firm conviction that a

mistake has been made. ” Id . (quotation marks and citation omitted). “ Whether the trial court

followed this Court ’ s rulings on remand presents a question subject to d e novo review. ” Lenawee Co v Wagley , 301 Mich App 134, 149 ; 836 NW2d 193 (2013)

.

“ Michigan follows the ‘ American rule ’ with respect to the payment of attorney fees and

costs. ” Haliw v Sterling Hts , 471 Mich 700, 706; 691 NW2d 753 (2005). “ Under the A merican rule, attorney fees generally are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award. ” Id . at 707. MCL 600.2591 is an exception authorizing the im position of attorney fees and costs that, on motion of any party, “ require[s] a court to sanction an attorney or party that files a frivolous

action or defense. ” Meisner Law Group PC , 321 Mich Ap p at 731 ; see also MCR 2.625(A)( 2) (requiring an award of costs as provided by MCL 500.2591 where the trial court “ finds on motion of a party that an action or defense was frivolous ” ). As set forth in MCL 600.2591(3)(a), civil action is frivolous where at least one of the following cond itions exists:

( 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 pos ition were in fact true.

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

“ To determine whether sanctions are appropriate under MCL 600.2591, it is necessary to evaluate the claims or defenses at issue at the time they were made, and t he factual determination by the trial court depends on the particular facts and circumstances of the claim involved. ” DC Mex Holdings LLC v Affordable Land LLC , 320 Mich App 528, 548; 907 NW2d 611 (2017) (quotation marks, citation, and al teration omitted)

. “ The purpose of imposing sanctions for asserting a frivolous action or defense is to deter parties and their attorneys from filing documents or asserting claims or defenses that have not been sufficiently investigated and

researched or that are intended to serve an improper purpose. ” Meisner , 321 Mich App at 731

- 732.

It was the trial court ’ s initial failure to evaluate whether one or more of these conditions

existed at the time of the filing of the action that necessitated the trial court to reconsi der whether an award of attorney fees and costs pursuant to MCL 600.2591 was justified in this case. See

Hudson II , unpub op at 4

- 5. On remand, the trial court once again found that plaintiffs ’ primary purpose in initiating this lawsuit was to harass, em barrass, or financially injure defendants. We- 5

- conclude that there was sufficient evidence in this record to support that factual determination and that the trial court did not clearly err in so finding. 3

The trial court found persuasive several episodes that predated the filing of plaintiffs ’ complaint. First, it found persuasive a video showing Foster angrily and publicly threatening litigation that he claimed would cost defendants $100,000 if they did not cede to his demands.

The video shows Foster asserting:

You have no easement to use it. So come on, you want to fight, we are fighting. Now it is time to go to court. You go to court, you know what is going to happen. You are going to need to get an easement by necessity. You know how mu ch that is going to cost you. I ’ ve talked to Karen Wellman. She is a real estate specialist. It is going to cost you around a hundred grand. So come on, we are fighting. You

don ’ t want to talk, you want to do this bullshit. Fine with me.

We find no reason to conclude that the trial court clearly erred in viewing th is video as evidence tending to support a conclusion that plaintiffs pursued this current lawsuit for an improper

purpose.

The trial court also found persuasive Foster ’ s history of viol ating its personal protection order (PPO)

. We previously addressed this history, which also predates plaintiffs ’ initiation of the instant case, in Benson v Foster , unpublished per curiam opinion of the Court of Appeals, issued February 24, 2015 (Docket No. 315384) ( Benson I ), and Benson v Foster , unpublished per curiam opinion of the Court of Appeals, issued February 24, 2015 (Docket No. 319516) ( Benson

II

). In Benson I , this Court described the circumstances leading to Benson ’ s obtaining a personal

pro tection order against Foster:

This case concerns a dispute between [Benson] and [Foster], who are neighbors on Mallard Drive in Fennville. [Benson] lives with John Kluessendorf, his partner, and [Foster] lives across the street. The friction between [Be nson] and [Foster] began in the fall of 2011 when [Benson] and Kluessendorf placed trees, shrubs, and stakes on part of [Benson ’ s] property that abutted Mallard Drive; the area previously served as a drainage ditch. [Foster] did not approve of

3 The trial court also held that, under MCL 600.2591(3)(a) ( ii ), plaintiffs lacked reasonable belief to believe that their factual allegations were true and that, under MCL 600.2591(3)(a) ( iii ), plaintiffs’ claims were devoid of legal merit. The trial court made these findings after reviewing

our affirmance of it s su mmary disposition dismissal of plaintiffs’ complaint on res judicata grounds in Hudson I , and, overall, a decades

- long litigation history comprising multiple different cases that adequately established how plaintiffs knew of longstanding water runoff issue s not attributable to defendants’ conduct and the exact contours of the neighboring properties. Although we discern no clear error in these additional factual findings, we again note that defendants needed to satisfy only one of these three conditions to warrant an award of attorney

fees and costs.- 6

- the fact th at [Benson] filled in the drainage ditch and soon became upset with [Benson] and Kluessendorf. This feud escalated as [Foster] took various actions, including driving his truck into the trees and/or stakes, shining floodlights into [Benson ’ s] home at nigh t, and parking his truck in such a manner as to block [Benson ’ s] access to Mallard Road.

On May 2, 2012, [Benson] filed a petition for an ex parte PPO against [Foster]. The petition alleged that [Foster] drove his truck onto [Benson ’ s] property, drove hi s truck at [Benson], ran over [Benson ’ s] stakes and trees multiple times, ran over [Benson ’ s] shrub and stakes with a snow blower, threatened [Benson] verbally, shined floodlights into [Benson ’ s] home during the evening for weeks, blocked [Benson ’ s] only w ay of exiting Mallard Drive multiple times, and personally removed a survey stake from [Benson ’ s] property. The petition alleged that because of the floodlights that [Foster] aimed at their home for a period of approximately six weeks, [Benson] and Kluess endorf were unable to sleep at night. In addition, the petition alleged that [Benson] and Kluessendorf contacted a realtor about selling their home because of [Foster ’ s] actions. On May 4, 2012, the trial court entered a yearlong ex parte PPO against

res pondent. [ Benson I , unpub op at 1

- 2.]

This Court held that this type of stalking, harassment, and unconsented contact was sufficient to

result in the issuance of a PPO and that Foster ’ s actions would cause a reasonable person to

suffer emotional distress. Id . Subsequently, in Benson II , this Court also held that sufficient evidence existed to prove beyond a reasonable doubt that Foster violated the PPO . See Benson

II

, unpub op at 4. The opinion describes one of the incidents in detail. On October 9, 2 012, Foster backed his pickup truck into defendants ’ newly installed fence, damaging it. Id . There was evidence that Foster walked right up to the fence beforehand and that another one of Foster ’ s companions “ who was standing nearby, raise[d] her hands i n the air, as if to celebrate. ” Id

. Further, the Michigan State Police trooper who responded to the incident testified that the angle

of the tire marks was inconsistent with an accident. Id . He believed that Foster “ deliberately backed directly into th e fence at an almost 90 degree angle. ” Id

. H ewing to our clear error standard of review, t his longstanding history of hostile and ill

- advised behavior by plaintiffs against defendants firmly support ed the trial court ’ s conclusion of a primary and imprope r motivation to harass, embarrass, and injure when plaintiffs initiated this lawsuit

.

T he trial court also found persuasive how

— both before the inception of this lawsuit and during the course of litigation

— plaintiffs repeatedly hurled numerous inflammatory and unproven attacks against defendants that had no material bearing on the legal merit of plaintiffs ’

claims. As we previously held in Hudson II , unpub op at 5, the trial court coul d properly consider conduct pre filing as well as conduct dur ing the course of this litigation. Accordingly,

p laintiffs ’ extremely uncivil behavior directing irrelevant and defamatory statements against defendants is additional competent evidence supporting the trial court ’ s factual determination of
a purpose to em barrass, harass, or injure.

Finally, we review Judge Kengis ’ s award of costs and attorney fees for an abuse of discretion. After a review of his oral opinion, it is clear to us that he examined all of the factors

set forth in Pirgu v United Services Au to Ass ’ n , 499 Mich 269; 884 NW2d 257 (2016), and Wood- 7

- v DAIIE , 413 Mich 573; 321 NW2d 653 (1982), and that the award was reasonable and not an

abuse of discretion.

Affirmed.

/s/ David H. Sawyer /s/ Stephen L. Borrello /s/ Douglas B. Shapiro