Mark Cooper v. Raymond D Comer

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

MARK COOPER, UNPUBLISHED

March 14, 2019

Plaintiff-Appellant/Cross-Appellee,

v No. 340303

Ingham Circuit Court

RAYMOND D. COMER, also known as RAY LC No. 13-001193-ND

COMER, CAROLYN COMER, NEW

ONONDAGA DRAGWAY, LLC, and DANIEL

L. PRANSHKA,

Defendants-Appellees/Cross-

Appellants,

and

ONONDAGA TOWNSHIP,

Intervenor.

GARY D. CALTRIDER TRUST, by GARY D.

CALTRIDER, Trustee,

Plaintiff-Appellant,

v No. 340304

Ingham Circuit Court

RAYMOND D. COMER, also known as RAY LC No. 14-000649-ND

COMER, CAROLYN COMER, NEW

ONONDAGA DRAGWAY, LLC, and DANIEL

L. PRANSHKA,

Defendants-Appellees,

and

ONONDAGA TOWNSHIP,

Intervenor.

MARK COOPER,

Plaintiff-Appellee,

v No. 342137

Ingham Circuit Court

RAYMOND D. COMER, also known as RAY LC No. 13-001193-ND

COMER, CAROLYN COMER, NEW

ONONDAGA DRAGWAY, LLC, and DANIEL

L. PRANSHKA,

Defendants-Appellants,

and

ONONDAGA TOWNSHIP,

Intervenor,

and

LEXON INSURANCE COMPANY,

Appellee.

Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

In Docket No. 340303, Mark Cooper (hereinafter “Cooper”), appeals as of right the order

finding the New Onondaga Dragway, LLC (hereinafter “the dragway”), located on the property

of Raymond D. Comer and Carolyn Comer, and owned by Daniel L. Pranshka (hereinafter

“defendants” when referred to jointly), to constitute a private nuisance, but denying Cooper an

abatement premised on the unclean hands doctrine. On cross-appeal of the same order,

defendants challenge the legal standard used by the trial court in finding that the dragway

constituted a nuisance and the admissibility of expert evidence pertaining to the effects of sound

emanating from the dragway. In Docket No. 340304, Gary D. Caltrider, as the trustee of the

Gary D. Caltrider Trust (hereinafter “Caltrider”), appeals as of right the trial court’s order

granting in part and denying in part Caltrider’s motion for reconsideration of the trial court’s

rulings on public nuisance and private nuisance with reference to his property. In Docket No.

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342137, defendants appeal by leave granted1 the trial court’s order finding defendants were not

wrongfully enjoined from operating the dragway and denying defendants’ motion for judgment

under the bond issued by Lexon Insurance Company. We affirm in part, reverse in part, and

remand for further proceedings.

This litigation was initiated by property owners, Cooper and Caltrider, involving claims

of nuisance for the operation of the New Onondaga Dragway, on property owned by the Comers

in Onondaga Township. Cooper owns a residence and acreage located at 4189 Edgar Road,

Leslie, Michigan, in Onondaga Township. The Cooper property is approximately .7 miles from

the dragway. The Comers’ property consists of agricultural acreage, with a dragway, at 4186

Bellevue Road, Leslie, Michigan, in Onondaga Township. Caltrider owns a mobile home park,

known as Country Manor Mini Storage & Mobile Home Park, at 4400 Edward Road, Onondaga,

Michigan.2

The asphalt where the current track exists originated in World War II, for use as a

possible landing strip, and was operated as a dragway in the 1960s and 1970s, before closing

down. Raymond Comer used the property for farming and livestock, with the blacktop area

functioning as a feed lot since his ownership of the property in 1989. Conversion of the blacktop

to a dragway was the idea of Raymond Comer’s neighbor, Pranshka. Pranshka is the owner and

operator of the dragway. Prior efforts to reopen the dragway in 1985 and 2009, by procurement

of a special use permit (SUP) from the Onondaga Township Zoning Board, were unsuccessful.

However, in 2012, the Comers again applied for a SUP, which was approved by the Onondaga

Township Board on March 15, 2013, and the dragway began operations. Upon initiation of the

operation of the dragway, plaintiffs filed complaints for public and private nuisance.

I. PRIVATE NUISANCE ABATEMENT AND THE UNCLEAN HANDS DOCTRINE

While concurring with the trial court’s determination that the dragway constituted a

private nuisance, Cooper contests the trial court’s decision not to abate the nuisance or afford

him any relief premised on the unclean hands doctrine.

This Court reviews equitable actions de novo and the trial court’s factual findings for

clear error. McFerren v B & B Investment Group, 253 Mich App 517, 522; 655 NW2d 779

(2002). “The clear error standard provides that factual findings are clearly erroneous where there

is no evidentiary support for them or where there is supporting evidence but the reviewing court

is nevertheless left with a definite and firm conviction that the trial court made a mistake.” Hill v

City of Warren, 276 Mich App 299, 308; 740 NW2d 706 (2007) (citation omitted).

1

Cooper v Comer, unpublished order of the Court of Appeals, entered July 25, 2018 (Docket No.

342137).

2

The title holder is the Caltrider Trust. The property consists of 39 mobile home units and two

storage buildings comprised of 29 units. Approximately 100 people reside on the property,

which is situated within hundreds of feet from the dragway. Caltrider’s personal residence is

approximately five miles away at 4719 Ferris, Onondaga, Michigan.

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Although the trial court determined that the dragway constituted a private nuisance with

regard to Cooper, it denied Cooper abatement of the nuisance generated by the dragway. The

preclusion of equitable relief to Cooper was premised on the trial court’s having found three

areas of misconduct, constituting unclean hands. Specifically, the trial court found:

(1) Cooper filed multiple articles of organization with the State of Michigan

Corporations Division for assumed business names, all of which were variations

of Onondaga Dragway; (2) Cooper intimidated a witness before the witness

testified at the bench trial in this case; and (3) Cooper called the Chapman

Agency, an insurance agency, and implied that he was a member of the Onondaga

Township Board in an effort to obtain confidential information from the Chapman

Agency regarding the Township’s insurance policy.

The trial court opined that these incidents of “Cooper’s misconduct [were] related to the present

nuisance claim, albeit in varying degrees, and that the total misconduct is enough to warrant a

finding of unclean hands on the part of Cooper and deny him the equitable relief he seeks.” The

trial court further opined, however, that while the filing of the articles of incorporation were not

specifically related to nuisance, the actions by Cooper were undertaken “through fraudulent or

deceptive tactics” to achieve the closure or impede the functioning of the dragway. The trial

court also recognized in its ruling that Cooper’s contact with the insurance company was “not

specifically related to ‘nuisance.’ ” The trial court explained:

Cooper clearly engaged in a full-throttle effort to close the Dragway and he

explored multiple avenues of relief, one of which is the present litigation. In so

doing, Cooper filed articles of organization for the Dragway that he had no

intention of using and misled an employee at the Chapman Agency in an effort to

weaken the intervening party Township’s litigation position. These actions may

not directly relate to “nuisance,” but they clearly relate to Cooper’s claim before

this Court, and they constitute misconduct sufficient to hold that Cooper acted

with unclean hands.

The trial court further opined, even if the preceding actions were insufficiently related to

the nuisance claims to comprise misconduct that precluded equitable relief, that Cooper’s

intimidation of the Onondaga Township Clerk, Diane Elaine Johnson, provided an “independent

basis for a finding of unclean hands.” After recounting the gist of Johnson’s testimony, the trial

court stated:

It is clear Cooper sought to ensure Ms. Johnson testify in his favor, and such

misconduct is an affront to the tribunal and the necessity that witnesses remain

scrupulous. Witness intimidation is certainly an example of a “willful act

concerning the cause of action which rightfully can be said to transgress equitable

standards of conduct,” and Cooper’s witness intimidation in this case is

misconduct related to his nuisance claim such that this Court will bar his equitable

relief under the clean hands doctrine.

From a historical perspective, the United States Supreme Court has discussed the unclean

hands doctrine, explaining:

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The guiding doctrine in this case is the equitable maxim that he who comes into

equity must come with clean hands. This maxim is far more than a mere banality.

It is a self-imposed ordinance that closes the doors of a court of equity to one

tainted with inequitableness or bad faith relative to the matter in which he seeks

relief, however improper may have been the behavior of the defendant. That

doctrine is rooted in the historical concept of court of equity as a vehicle for

affirmatively enforcing the requirements of conscience and good faith. This

presupposes a refusal on its part to be the abetter of iniquity. Thus while equity

does not demand that its suitors shall have led blameless lives, as to other matters,

it does require that they shall have acted fairly and without fraud or deceit as to

the controversy in issue. [Precision Instrument Mfg Co v Auto Maintenance

Machinery Co, 324 US 806, 814-815; 65 S Ct 993; 89 L Ed 1381 (1945)

(citations and quotation marks omitted).]

It is worthy of emphasis that bad faith only rises to the level of applicability of the doctrine of

unclean hands if the bad faith is “relative to the matter in which [the plaintiff] seeks relief.” Id.

at 814.

As similarly discussed by this Court in McFerren, 253 Mich App at 522 (citations and

quotation marks omitted):

A court acting in equity looks at the whole situation and grants or withholds relief

as good conscience dictates. A party seeking the aid of equity must come in with

clean hands. The clean hands maxim is a self-imposed ordinance that closes the

doors of a court of equity to one tainted with inequitableness or bad faith relative

to the matter in which he seeks relief, however improper may have been the

behavior of the defendant.

A “succinct formulation of the doctrine” is “that one who seeks the aid of equity must come in

with clean hands.” Rose v Nat’l Auction Group, Inc, 466 Mich 453, 463; 646 NW2d 455 (2002).

The long-recognized purpose underlying invocation of the unclean hands doctrine is “to protect

the integrity of the Court.” Stachnik v Winkel, 394 Mich 375, 386; 230 NW2d 529 (1975). “The

misconduct which will move a court of equity to deny relief must bear a more or less direct

relation to the transaction concerning which complaint is made. Relief is not denied merely

because of the general morals, character or conduct of the party seeking relief.” McFerren, 253

Mich App at 524 (citation omitted). With these strictures in mind, the trial court’s reasons for

denying an equitable remedy to Cooper are evaluated.

Although the trial court identified three instances of misconduct by Cooper to justify its

denial of an abatement of the nuisance, the trial court recognized that two of the instances, the

filing of the articles of incorporation and telephone contact with Onondaga Township’s insurance

agent, were not specifically related to the nuisance. Addressing the telephone contact, it is

noteworthy that there is no discernible relationship between the one-time telephone call in an

attempt to procure information on the Township’s insurance contract and the existence of a

nuisance perpetrated by the Comers, Pranshka and the dragway. This contact occurred in 2013,

two years before the Comers even obtained the SUP. This lack of a temporal relationship to the

alleged misconduct, when coupled with its absence of any relationship to the nuisance, does not

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support application of the unclean hands doctrine. Application of the doctrine requires a

relationship of the alleged misconduct with the nuisance, which is “the matter in which [Cooper]

seeks relief,” which is separate from any impropriety by plaintiff in having made the contact with

the insurance agency for the Township. See McFerren, 253 Mich App at 524 (“The misconduct

which will move a court of equity to deny relief must bear a more or less direct relation to the

transaction concerning which complaint is made. Relief is not denied merely because of the

general morals, character or conduct of the party seeking relief.”).

Similarly, the trial court opined that Cooper’s filing of the various articles of

incorporation, while comprising a “deceptive tactic” designed to interfere with the operation of

the dragway, was not specifically related to nuisance. It is significant that Cooper’s actions in

this regard occurred approximately one year after the issuance of the injunction that precluded

the operation of the dragway. Once again, even viewing the actions as improper on the part of

Cooper, it is difficult to construe the behavior as related to the nuisance, which would be

necessary to impose the unclean hands doctrine in denying the abatement. McFerren, 253 Mich

App at 522. The filings were intended to affect additional financial benefits available to the

dragway and not the actual operation or the resultant nuisance.

This leaves the primary basis upon which the trial court relied to deny equitable relief –

Cooper’s alleged contact with, and intimidation of, Johnson before her testimony at trial. While

not suggesting that the contact was proper, it similarly does not rise to the level necessary for

imposition of the unclean hands doctrine and denial of abatement of the nuisance. Johnson

testified with regard to conversations with Cooper in 2011, well before the issuance of the SUP

or the opening of the dragway and the initiation of this litigation. Her most recent telephone

conversation with Cooper occurred a week before her trial testimony wherein he informed

Johnson that an individual was planning to challenge her in the next election for her position of

Onondaga Township Clerk and suggested that the Township had jeopardized its immunity by

intervening in the current litigation. Any mention of the risk of her involvement in a lawsuit

based on her position with Onondaga Township occurred in 2011 and was not recent. When

queried if Johnson felt threatened by Cooper’s comment, she responded, “somewhat.” Johnson

asserted, and the trial court found, that the recent conversation with Cooper did not affect

Johnson’s testimony. Johnson acknowledged that her most recent discussion with Cooper did

not encompass any mention of her anticipated trial testimony or the dragway, but instead was

focused on the upcoming election and whether Johnson had sufficient support to maintain her

elected position. Johnson admitted that Cooper never threatened her with a lawsuit and that her

current concerns were related to any legal exposure premised on the actions of the Township.

Once again, while the contact initiated by Cooper to Johnson could be construed as

improper, it was not related to the nuisance, which would be a requirement for application of the

unclean hands doctrine. Johnson’s testimony was, at best, tangential to the issue of nuisance,

was related only to whether Onondaga Township had received complaints from the community

regarding the dragway and was not determinative to the issue of the existence of the nuisance.

While Cooper’s actions were ill-advised and arguably reckless, a claim for equitable relief is not

precluded under the unclean hands doctrine “merely because of the general morals, character[,]

or conduct of the party seeking relief.” McFerren, 253 Mich App at 524. “The misconduct

which will move a court of equity to deny relief must bear a more or less direct relation to the

transaction concerning which complaint is made[.]” Id. Thus, even if Cooper’s actions reflected

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an “improper motive,” they were not sufficiently related to his nuisance claim. Rutland Twp v

City of Hastings, 413 Mich 560, 565-566; 321 NW2d 647 (1982).

It would not be inappropriate for the trial court to impose a sanction to address Cooper’s

alleged misconduct. “[A] trial court has inherent authority to impose sanctions on the basis of

the misconduct of a party or an attorney.” Persichini v William Beaumont Hosp, 238 Mich App

626, 639; 607 NW2d 100 (1999). Despite finding the existence of a clear and intrusive nuisance,

the trial court denied Cooper any abatement or relief premised on his alleged misconduct. Given

this is an action in equity, the result is unreasonably harsh. Because Cooper improperly

contacted a witness and initiated a discussion regarding her position, which was at most

tangentially related to the issue of nuisance and acknowledged to be unrelated to the dragway, he

was denied any relief. Thus, defendants may continue to engage with impunity in activity that

comprises a recognized nuisance. Equitable relief will be denied when “the misconduct [is]

directed at unrelated third parties,” but only if the claims raised by the “plaintiff [are inextricably

tied to the plaintiff’s wrongdoing.” McFerren, 253 Mich App at 524. In this instance, plaintiff’s

alleged misconduct is not sufficiently tied to the claim of nuisance to justify the denial of

equitable relief for a clearly established private nuisance.

II. VACATING OF ORDER ON REASSIGNMENT

Cooper asserts the trial court erred in the reassignment of this case from Judge Rosemarie

E. Aquilina to Judge James S. Jamo. Cooper argues that it was improper for Judge Jamo to

revisit and vacate Judge Aquilina’s April 4, 2014 order, which granted summary disposition to

Cooper on his nuisance complaint. Specifically, Cooper contends that Judge Jamo lacked the

authority to vacate the April 4, 2014 order, and that permitting Onondaga Township to intervene

in this matter comprised error and did not justify reassignment of this case.

This Court reviews the interpretation of court rules de novo. Vyletel-Rivard v Rivard,

286 Mich App 13, 20; 777 NW2d 722 (2009). A trial court’s jurisdictional rulings are reviewed

de novo. Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144, 163; 677 NW2d

874 (2003).

The procedural history pertinent to this issue is lengthy and convoluted, but begins with

the initial grant of summary disposition by Judge Aquilina to Cooper on his claim of nuisance

and denial of reconsideration of that ruling as requested by the Comers. After the grant of

summary disposition in favor of Cooper, Onondaga Township filed a motion to intervene.

Disputes also arose regarding the trial court’s contemporary order to enjoin the operations of the

dragway. In this time period, defendants filed a motion to disqualify Judge Aquilina, premised,

in part, on the concurrent existence of a similar and earlier filed case involving John Ghere that

had been assigned to and which was proceeding before Judge Jamo. Cooper filed a response to

the various motions denying the need for reassignment, challenging the right of Onondaga

Township to intervene, and arguing that the proper procedure would have been for defendants to

appeal Judge Aquilina’s grant of summary disposition. Defendants filed an amended motion for

rehearing and reconsideration, asserting error for the failure of Judge Aquilina to recuse and

terminate her involvement in the litigation because of her familiarity with the pending litigation

involving Ghere, which defendants alleged resulted in Cooper’s ability to forum shop.

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On April 24, 2014, Judge Aquilina transferred this case to Judge Jamo based on the

earlier filing and assignment of Ghere’s litigation to Judge Jamo and the similarity of the relief

being requested, but denied the request to stay proceedings or vacate her earlier orders. The

order of reassignment was entered on April 25, 2014, and also granted Onondaga Township a

right to intervene in Cooper’s litigation.3 Onondaga Township filed a motion for rehearing or

reconsideration to allow the Township to participate in Cooper’s earlier motion for summary

disposition, with Cooper filing a response and objections.

Judge Jamo held hearings on May 23, 2014, and May 30, 2014. Judge Jamo granted

Cooper’s request for an injunction against the dragway and Onondaga Township’s motion for

rehearing of Cooper’s summary disposition motion. The April 4, 2014 order, granting summary

disposition to Cooper, was vacated and Cooper’s motion for summary disposition was denied

without prejudice. Later in the proceedings, Cooper also filed a separate motion for reentry of

summary disposition and reinstatement of Judge Aquilina’s April 4, 2014 order, and a

supplemental motion, which Judge Jamo denied.

The starting point for this analysis is the broader or more general issue pertaining to

Judge Jamo’s authority to set aside an earlier order by Judge Aquilina after this case was

reassigned. There are three relevant court rules. MCR 2.119(F) addresses motions for rehearing

or reconsideration and states:

(F) Motions for Rehearing or Reconsideration.

(1) Unless another rule provides a different procedure for reconsideration of a

decision (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or

reconsideration of the decision on a motion must be served and filed not later than

21 days after entry of an order deciding the motion.

(2) No response to the motion may be filed, and there is no oral argument, unless

the court otherwise directs.

(3) Generally, and without restricting the discretion of the court, a motion for

rehearing or reconsideration which merely presents the same issues ruled on by

the court, either expressly or by reasonable implication, will not be granted. The

moving party must demonstrate a palpable error by which the court and the

parties have been misled and show that a different disposition of the motion must

result from correction of the error.

As noted, MCR 2.119(F)(1) references MCR 2.604(A), which provides in pertinent part:

(A) Except as provided in subrule (B), an order or other form of decision

adjudicating fewer than all the claims, or the rights and liabilities of fewer than all

the parties, does not terminate the action as to any of the claims or parties, and the

3

The dragway was granted intervention even later in the litigation on July 25, 2014.

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order is subject to revision before entry of final judgment adjudicating all the

claims and the rights and liabilities of all the parties. Such an order or other form

of decision is not appealable as of right before entry of final judgment. A party

may file an application for leave to appeal from such an order.

In turn, MCR 2.613(B) states:

(B) Correction of Error by Other Judges. A judgment or order may be set

aside or vacated, and a proceeding under a judgment or order may be stayed, only

by the judge who entered the judgment or order, unless that judge is absent or

unable to act. If the judge who entered the judgment or order is absent or unable

to act, an order vacating or setting aside the judgment or order or staying

proceedings under the judgment or order may be entered by a judge otherwise

empowered to rule in the matter.

In Hill, 276 Mich App at 307, this Court discussed the interaction and application of

MCR 2.119(F) and MCR 2.604(A), explaining:

As a general matter, courts are permitted to revisit issues they previously decided,

even if presented with a motion for reconsideration that offers nothing new to the

court. MCR 2.119(F)(3); Smith v Sinai Hosp of Detroit, 152 Mich App 716, 722-

723; 394 NW2d 82 (1986). In any event, MCR 2.119(F)(1) explicitly refers to

MCR 2.604(A) as “another rule” that “provides a different procedure for

reconsideration of a decision. . . .” Under MCR 2.604(A), an order that does not

dispose of all issues in a case does not terminate the action or entitle a party to

appeal as of right and “is subject to revision before entry of final judgment

adjudicating all the claims and the rights and liabilities of all the parties.” The

court rules therefore give the trial court explicit procedural authority to revisit an

order while the proceedings are still pending and, on that reconsideration, to

determine that the original order was mistaken, as the trial court did here.

It is also acknowledged that “a successor judge, as in this case, is empowered to make a revision

to reflect a more correct adjudication of the rights and liabilities of the litigants.” Meagher v

Wayne State Univ, 222 Mich App 700, 718; 565 NW2d 401 (1997). In other words, “a successor

judge has the authority to enter whatever orders his or her predecessor could have entered.”

Dutton Partners, LLC v CMS Energy Corp, 290 Mich App 635, 641 n 2; 802 NW2d 717 (2010),

citing MCR 2.613(B). In addition, it is recognized that “[e]very tribunal, judicial or

administrative, has some power to correct its own errors or otherwise appropriately to modify its

judgment, decree, or order.” Pub Health Dep’t v Rivergate Manor, 452 Mich 495, 504; 550

NW2d 515 (1996).

Thus, in general, based on the referenced court rules and the reassignment of this

litigation from Judge Aquilina to Judge Jamo, it was within Judge Jamo’s authority to vacate the

April 4, 2014 order. There are, however, complications. While the April 4, 2014 order does not

indicate that it is a final order, the preceding order of March 28, 2014, denying the Comers’

motion for reconsideration of the grant of summary disposition in favor of Cooper indicates that

it addressed the last pending claim and closed the case. This raises a question regarding whether

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Judge Jamo’s May 30, 2014 order violated the requirements of MCR 2.604(A) by vacating a

final order.

We find that Judge Jamo’s actions in vacating the April 4, 2014 order were not in

violation of the court rule. Clearly, the May 28, 2014 order was not a final order because on

April 4, 2014, the trial court entered the written order granting Cooper’s motion for summary

disposition. The April 4, 2014 order takes precedence over Judge Aquilina’s verbal ruling on

March 17, 2014, as a trial court speaks through its written orders. Oakland Co Prosecutor v

Beckwith, 242 Mich App 579, 590-591; 619 NW2d 172 (2000) (“It is well settled that courts

speak through their written orders, not their oral statements.”). In addition, having found a

nuisance that required abatement, it remained incumbent on the trial court not simply to enjoin

the nuisance but “to tailor the remedy to the problem, to abate the nuisance without completely

destroying the business in which the nuisance originates.” Norton Shores v Carr, 81 Mich App

715, 724; 265 NW2d 802 (1978). Specifically, “[e]quity will not abate a lawful continuing

business as a nuisance when it is possible to eliminate objectionable features which infringe upon

the ordinary rights of others.” Id. While Judge Aquilina had determined the existence of a

nuisance and the propriety of an injunction, it remained to be explored and determined whether

the placement of restrictions on the operation of the dragway or requiring other actions to

suppress sound at the dragway were feasible in defining the parameters of the injunction. As

such, any designation that the grant of summary disposition to Cooper or the denial of

reconsideration to the Comers were final orders comprises a mischaracterization or error.

Further, it is difficult to construe Judge Aquilina’s order granting summary disposition to

be a final order, given the decision to allow Onondaga Township and the dragway to intervene.

At the very least, the dragway, as a corporate entity, was a necessary party to the litigation, and

an order affecting the dragway without its inclusion in the litigation would have questionable

validity and could not comprise a “final order,” which is defined in MCR 7.202(6)(a)(i) as “the

first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of

all the parties. . . .” (Emphasis added.)

Cooper further asserts that Judge Jamo was not authorized to vacate Judge Aquilina’s

order because she was not “unavailable” as required by MCR 2.613(B). In this instance,

Cooper’s litigation was reassigned by Judge Aquilina to Judge Jamo because Judge Jamo was

handling a case viewed as involving similar issues pertaining to the dragway and the Comers’

receipt of an SUP. The reverse situation was not a possibility – reassignment of the Ghere case

to Judge Aquilina – because she identified a conflict of interest due to a prior professional

relationship regarding Ghere. Judge Aquilina was no longer assigned to Cooper’s litigation and

was not unavailable in the traditional sense of having retired or left the bench because Judge

Aquilina continued to serve as a judge in that circuit court. It would seem illogical, however,

given Judge Aquilina’s voluntary decision to reassign the ongoing responsibility for Cooper’s

litigation to Judge Jamo, to suggest that Judge Jamo should not be construed as the “successor

judge,” rendering Judge Aquilina as absent or unable to act. It would be confusing and untenable

to allow a judge to relinquish control of a case to a coequal judge in the same circuit, but then

allow the relinquishing judge to continue to engage in and rule on the litigation after the

reassignment. Further, Judge Jamo’s authority after the reassignment is bolstered by MCR

8.111(D)(1), which states: “If one of two or more actions arising out of the same transaction or

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occurrence has been assigned to a judge, the other action or actions must be assigned to that

judge.”4

Cooper also challenges the propriety of the trial court’s permitting Onondaga Township

to intervene in this matter. Onondaga Township sought to intervene premised on its involvement

in the issuance of the SUP that permitted the dragway to operate and to address implications that

the Township Board had not fulfilled its obligations by permitting the dragway to operate.

Onondaga Township also noted the pending existence of another case involving the issuance of

the SUP for the dragway involving Ghere, noting similarities between the cases. Judge Aquilina

granted Onondaga Township’s request to intervene in the Cooper litigation.

Intervention is governed by MCR 2.209, which states, in relevant part:

(A) Intervention of Right. On timely application a person has a right to

intervene in an action:

(1) when a Michigan statute or court rule confers an unconditional right to

intervene;

(2) by stipulation of all the parties; or

(3) when the applicant claims an interest relating to the property or transaction

which is the subject of the action and is so situated that the disposition of the

action may as a practical matter impair or impede the applicant’s ability to protect

that interest, unless the applicant’s interest is adequately represented by existing

parties.

(B) Permissive Intervention. On timely application a person may intervene in

an action

(1) when a Michigan statute or court rule confers a conditional right to intervene;

or

(2) when an applicant’s claim or defense and the main action have a question of

law or fact in common.

In exercising its discretion, the court shall consider whether the intervention will

unduly delay or prejudice the adjudication of the rights of the original parties.

The term “intervention” is defined by Black’s Law Dictionary (10th ed) as:

4

Cooper’s counsel was aware of the Ghere litigation (circuit court case no. 13-345-CZ), and

identified its existence at the beginning of the verified complaint in complying with MCR

8.111(D)(3) and MCR 1.109(D)(2)(a), which placed the trial court and litigants on notice of the

earlier existing litigation.

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1. The entry into a lawsuit by a third party who, despite not being named a party

to the action, has a personal stake in the outcome. See Fed R Civ P 24. • The

intervenor sometimes joins the plaintiff in claiming what is sought, sometimes

joins the defendant in resisting what is sought, and sometimes takes a position

adverse to both the plaintiff and the defendant. Cf. impleader; interpleader;

impleading. 2. The legal procedure by which such a third party is allowed to

become a party to the litigation.

As explained by this Court:

The rule for intervention should be liberally construed to allow intervention where

the applicant’s interests may be inadequately represented. However, intervention

may not be proper where it will have the effect of delaying the action or

producing a multifariousness of parties and causes of action. [Hill v LF Transp,

Inc, 277 Mich App 500, 508; 746 NW2d 118 (2008) (citations and quotation

marks omitted).]

In this instance, Onondaga Township asserted its right to intervene based on the existence

of a similar case, in which its decision to permit operation of the dragway and grant an SUP to

the Comers was being contested. Onondaga Township’s intervention request was justified by

Cooper’s pleadings in which he asserted that the operation of the dragway should be enjoined

and that the SUP granted to the Comers should be declared invalid. Further, it is disingenuous of

Cooper to contend that Onondaga Township lacked any interest in his litigation, given his

ongoing assertions that the grant of the SUP was contrary to the Township’s Master Plan and

ordinances. Further, during the 39-day trial in this matter, a “special record” was developed

wherein evidence and testimony were permitted on these issues, which are of undeniable and

direct interest to Onondaga Township. As such, given the demonstrable interest of Onondaga

Township and the potential for a ruling that could “impede the [Township’s] ability to protect

[its] interests,” MCR 2.209(A)(3), the trial court did not err in granting the request for

intervention.

III. LEGAL STANDARD – PRIVATE NUISANCE

While concurring with the trial court’s decision to preclude equitable relief to Cooper,

defendants assert that the trial court’s ruling should be affirmed as the right result, albeit for the

wrong reason. Specifically, defendants contended throughout the lower court proceedings and

trial that the trial court erred and applied an incorrect legal standard in determining the presence

of a private nuisance. Defendants asserted that, to find a private nuisance, the trial court was

required to determine that the complained-of noise resulted in actual physical discomfort to

persons of ordinary sensibilities. Instead, defendants argue that the trial court merely determined

that the noise constituted an unreasonable interference or annoyance and that physical

discomfort, as a necessary factor or element, was not established.

“Nuisance-abatement proceedings brought in the circuit court are generally equitable in

nature. We review de novo the circuit court’s equitable decisions, but review for clear error the

findings of fact supporting those decisions.” Ypsilanti Charter Twp v Kircher, 281 Mich App

251, 270; 761 NW2d 761 (2008). “The clear error standard provides that factual findings are

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clearly erroneous where there is no evidentiary support for them or where there is supporting

evidence but the reviewing court is nevertheless left with a definite and firm conviction that the

trial court made a mistake.” Hill, 276 Mich App at 308 (citation omitted). Issues of law are also

reviewed de novo. Jude v Heselschwerdt, 228 Mich App 667, 670; 578 NW2d 704 (1998).

In finding that the dragway constituted a private nuisance with regard to Cooper, the trial

court identified that “the proper standard for analyzing a nuisance based on sound or noise is

whether or not the noise complained of would constitute an unreasonable interference for

persons of ordinary sensibilities,” which included “consideration [of] factors such as the location

of the property and character of the community, the character, volume, time and duration of the

noise, and all facts and circumstances of the specific case to define that ‘person of ordinary

sensibilities.’ ” The trial court determined that the noise from the dragway “unreasonably

interferes with the Coopers’ use and enjoyment of their property and causes them significant

harm.” The trial court relied on testimony elicited within the context of data obtained pertaining

to the noise levels emanating from the dragway and the standards provided by the American

National Standards Institute (ANSI) identifying “high levels of annoyance.” In turn, the trial

court found that an “annoyance so severe that it causes a systemic change in lifestyle habits and

renders personal property unusable is no longer an annoyance, it is an interference.” Thus, after

evaluating the totality of the circumstances in this situation, the trial court determined that the

interference caused by the dragway would lead a “person of ordinary sensibilities” to “consider

the Dragway a nuisance.” As noted, in reaching this conclusion, the trial court considered: (a)

the character of the community, (b) the location of the Coopers’ property, (c) the times and

durations of the dragway’s operation, (d) the character of the noise from the dragway (i.e.,

intermittency, startling spikes, engine rumbling), and (e) the sound measurements obtained

during racing, which led the trial court to find that “the character and volume of the noise” was

“extreme.”

In general, a “nuisance” is defined as “an interference with the plaintiff’s use and

enjoyment of his land.” Morse v Colitti, 317 Mich App 526, 554; 896 NW2d 15 (2016). “It is

recognized in Michigan, as well as in other jurisdictions, that under certain circumstances noise

may constitute a nuisance and may be enjoined.” Smith v W Wayne Co Conservation Ass’n, 380

Mich 526, 536; 158 NW2d 463 (1968). This Court has consistently recognized:

The elements of a private nuisance are satisfied if (a) the other has property rights

and privileges in respect to the use or enjoyment interfered with, (b) the invasion

results in significant harm, (c) the actor’s conduct is the legal cause of the

invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii)

unintentional and otherwise actionable under the rules governing liability for

negligent, reckless, or ultrahazardous conduct. To prove a nuisance, significant

harm to the plaintiff resulting from the defendant’s unreasonable interference with

the use or enjoyment of property must be proven. [Pine Bluffs Ass’n v DeWitt

Landing Ass’n, 287 Mich App 690, 729 n 23; 792 NW2d 18 (2010), quoting

Capitol Props Group, LLC v 1247 Ctr Street, LLC, 283 Mich App 422, 431-432;

770 NW2d 105 (2009) (citations in Capitol Props Group, LLC omitted).]

Defendants contend that, in relying on the above elements, the trial court erred because it

failed to recognize that, to be construed as a nuisance, a noise must result in actual physical

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discomfort. It is uncertain whether defendants, premised on their arguments on appeal and in the

trial court, are asserting that evidence of actual physical discomfort is an element to be proven

for finding of a nuisance. Instead, for purposes of clarity, it is necessary to distinguish the

difference between the elements for nuisance and those factors establishing significant harm and

unreasonable interference. Therefore, when a noise is found to comprise a nuisance, to be

eligible for recovery or rectification, the construct of physical discomfort provides a component

of the “significant harm” and unreasonable interference that must be demonstrated.

Historically, our Supreme Court has stated the following applicable test:

To render noise a nuisance, it must be of such a character as to be of actual

physical discomfort to persons of ordinary sensibilities. In applying this standard,

the court states that consideration should be given to such additional factors as the

character of the industry complained of, the character, volume, time and duration

of the noise, and all the facts and circumstances of the case. [Smith, 380 Mich at

536.]

The Court noted that “time and locality factors have been given the greatest consideration by the

court.” Id. Earlier, in Borsvold v United Dairies, 347 Mich 672, 680-681; 81 NW2d 378 (1957),

the Court explained, in detail:

American Jurisprudence offers the following general rules against which we test

the trial judge’s action:

‘Generally, noise is not a nuisance per se, but it may be of such a character as to

constitute a nuisance in fact, even though it arises from the operation of a factory,

industrial plant, or other lawful business or occupation.

‘To render noise a nuisance, it must be of such a character as to be of actual

physical discomfort to persons of ordinary sensibilities. . . . There can be no fixed

standard as to what noise constitutes a nuisance, and the circumstances of the case

must necessarily influence the decision. To amount to a nuisance, the noise must

be unreasonable in degree, and reasonableness in this respect is a question of fact.

No one is entitled to absolute quiet in the enjoyment of his property; he may only

insist upon a degree of quietness consistent with the standard of comfort

prevailing in the locality in which he dwells. The location and surroundings must

be considered, since noise which amounts to a nuisance in one locality may be

entirely proper in another. The character and magnitude of the industry or

business complained of and the manner in which it is conducted must also be

taken into consideration, and so must the character and volume of the noise, the

time and duration of its occurrence, the number of people affected by it, and all

the facts and circumstances of the case.’ 39 Am Jur, Nuisances, § 47, pp 330-333.

An even earlier decision of our Supreme Court recognized the following:

The question presented is whether these disagreeable noises in the nighttime in

such close proximity to plaintiffs’ dwelling constitute a nuisance which should be

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abated by injunction. In considering the question whether noises furnish a ground

for injunctive relief, it is observed . . . that:

“The authorities are numerous which hold that noise alone, or noise accompanied

by vibration, if it be of such character as to be productive of actual physical

discomfort and annoyance to a person of ordinary sensibility, may create a

nuisance, and be the subject of an action at law, or an injunction from a court of

equity, though such noise and vibration may result from the carrying on of a trade

or business in a town or city. To have this effect the noise must be unreasonable

in degree; and reasonableness in this respect is a question of fact, depending on

the character of the business, the manner in which it is conducted, its location and

relation to other property, and the other facts and circumstances of the case. The

number of people concerned by the noise and the magnitude of the industry

complained of are both elements entitled to consideration in reaching a conclusion

as to the fact. And again, the time at which noises are made is an element to be

considered in determining whether a noise constitutes an actionable nuisance. A

noise incident to the operation of machinery during the day may not be a

nuisance, while the same noise during the usual sleeping hours of the night would

constitute a nuisance. And noises made on Sunday may constitute a nuisance,

though they would not have been such if made on a weekday.” [Kobielski v Belle

Isle East Side Creamery Co, 222 Mich 656, 659-660; 193 NW 214 (1923)

(citation and quotation marks omitted).]

Our Supreme Court has more recently indicated:

[T]he gist of a private nuisance action is an interference with the occupation or

use of land or an interference with servitudes relating to land. There are countless

ways to interfere with the use and enjoyment of land including interference with

the physical condition of the land itself, disturbance in the comfort or

conveniences of the occupant including his peace of mind, and threat of future

injury that is a present menace and interference with enjoyment. The essence of

private nuisance is the protection of a property owner’s or occupier’s reasonable

comfort in occupation of the land in question. It involves “not only a defect, but

threatening or impending danger . . . to the property rights or health of persons

sustaining peculiar relations to the same. . . .” [Adkins v Thomas Solvent Co, 440

Mich 293, 303; 487 NW2d 715 (1992) (citations omitted).]

Distinguishing between trespass and nuisance, and citing Adkins, this Court has explained:

To prevail in nuisance, a possessor of land must prove significant harm resulting

from the defendant’s unreasonable interference with the use or enjoyment of the

property. Thus, in nuisance, the plaintiff must prove all damages, which may be

awarded only to the extent that the defendant’s conduct was “unreasonable”

according to a public-policy assessment of its overall value. [Adams v Cleveland-

Cliffs Iron Co, 237 Mich App 51, 67; 602 NW2d 215 (1999).]

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Defendants’ argument lacks merit for two reasons: (1) to establish a noise as a nuisance,

a plaintiff need not demonstrate physical discomfort as an element of nuisance, but rather as part

of the “significant harm” that results from an “unreasonable interference with the use or

enjoyment of [their] property,” and (2) physical discomfort does not necessarily equate to

physical illness or a medical condition. Specifically, defendants appear to improperly conflate

the concept of physical discomfort with the actual incurrence of a health issue. As such,

defendants’ premise is mistaken.

In finding that the dragway constituted a private nuisance for Cooper, the trial court

stated “the proper standard for analyzing a nuisance based on sound or noise is whether or not

the noise complained of would constitute an unreasonable interference for persons of ordinary

sensibilities.” In making such a determination, the trial court recognized it was to consider

“factors such as the location of the property and character of the community, the character,

volume, time and duration of the noise, and all facts and circumstances of the specific case to

define that ‘person of ordinary sensibilities.’ ” The trial court found that the dragway constituted

an unreasonable interference with the ability of the Coopers to use and enjoy their property,

which resulted in a finding of significant harm. A plethora of testimony was elicited from the

Coopers, and others in the community, complaining about the volume and character of the noise

generated by the dragway. The dragway operates for extended periods of time on Friday

afternoons into the evening, as well as the entirety of the day on Saturdays from spring into the

fall months, which coincides with the time periods most individuals are at their homes and trying

to take advantage of the personal environments they have created.

With regard to the concept of significant harm, numerous witnesses testified to the

disruptive and disconcerting nature of the sound emanating from the dragway, describing it as

interrupting their abilities to entertain at their homes, watch television, and to read or engage in

routine conversations because of the noise level and the unpredictable spikes in sound due to the

racing. According to Cooper, the public address system at the dragway was discernible, even

with his windows closed, at 7:00 a.m. on Saturdays, and the noise of the dragway precludes the

ability to keep windows open at his home. Cooper described being able to feel the vibration

from the dragway and the disturbing nature of the noise generated by the racing to himself,

members of his family, and pet. Susan Cooper confirmed that the noise from the dragway

interfered with activities, actually driving her from the family home on race days because it was

“unbearably loud.” Susan Cooper asserted she could physically feel the vibration from the

dragway, which resulted in stress and discomfort. The emergency medical technician (EMT) for

the ambulance company stationed at the dragway during racing, Christopher D. Johnson,

described the volume and characteristics of sound when on the dragway, indicating its deafening

nature and resultant headaches. Cooper’s sound measurement expert, Richard D. James, an

acoustical engineer, testified to feeling the vibration from the dragway while on Cooper’s

property and hearing the public address system. James quantified the variance in sound levels

experienced on the Cooper property from ambient noise levels, interpreting the level of noise in

the context of the ANSI standards, to determine that what was being experienced exceeded

annoyance and fell within the realm of “intolerable.” In turn, another expert proffered by

Cooper, Dale Robinson, Ph.D., an audiologist, provided testimony on the negative effects of

noise regarding the impairment or interference with cognitive functioning as well as its

distractive components, referencing specific data obtained by James.

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Having taken into account the totality of the circumstances, including: (a) the rural and

residential character of the community, (b) the level and type of noise being generated, as well as

its frequency and variability, (c) the times and duration of occurrence of the noise, and (d)

evidence pertaining to the disruptive nature of the noise and its level of interference with the

ability to live at and enjoy the use of the Cooper property, the trial court did not err in finding

both the existence of a private nuisance and that the resultant nuisance caused significant harm.

Thus, the trial court did evaluate physical discomfort to Cooper attributable from the dragway

within its determination that significant harm and unreasonable interference had resulted from

the dragway’s operation.

IV. ADMISSIBILITY OF EXPERT TESTIMONY

On cross-appeal, defendants continue to challenge the trial court’s rulings regarding the

admissibility of expert testimony proffered by plaintiffs through James and Robinson. With

regard to the testimony elicited from James, defendants assert it was error for the trial court to

permit James to opine on the effects of sound on the health of individuals or the community,

including whether particular sounds or their levels constituted an annoyance given James’s lack

of qualification to opine on this issue. In addition, defendants asserted that the testimony

pertaining to the effect of noise on the community was not relevant to a determination of whether

the noise constituted a private nuisance to Cooper. According to defendants, James’s testimony

should have been limited solely to the sound measurements taken. Defendants also question the

trial court permitting testimony by Robinson on low-frequency sound, asserting the testimony

did not meet the strictures of MRE 702. In addition to disqualification of Robinson’s testimony

on subaudible sound, according to defendants, the trial court should have precluded his

testimony on low-frequency sound based on Robinson’s acknowledged lack of involvement or

expertise in this area. Defendants dispute that either James or Robinson was qualified to testify

regarding ANSI standards and that the ANSI standards failed to determine or support any claim

that the dragway sounds caused physical discomfort to Cooper or others in the community.

“[T]his Court reviews a trial court’s rulings concerning the qualifications of proposed

expert witnesses to testify for an abuse of discretion. An abuse of discretion occurs when the

decision results in an outcome falling outside the principled range of outcomes.” Woodard v

Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). On appeal, this Court reviews “a trial

court’s ruling admitting or excluding expert testimony for an abuse of discretion.” Barr v Farm

Bureau Gen Ins Co, 292 Mich App 456, 458; 806 NW2d 531 (2011). Notably, “[u]nder MRE

103(a)(1), error may not be predicated on a ruling admitting or excluding evidence unless a

substantial right is affected. A close evidentiary ruling ordinarily cannot be an abuse of

discretion.” Barr, 292 Mich App at 458.

At the outset, it is useful to identify the testimony admitted and restricted by the trial

court with regard to James and Robinson at trial. James was qualified as a witness in the area of

sound measurement and with reference to the specific measurements he procured from Cooper’s

and other properties near the dragway. The parties stipulated that James was not qualified as an

expert witness and could not testify regarding the health effect of the dragway noise on

individuals. The trial court recognized, initially taking under advisement, issues pertaining to the

admissibility of testimony by James regarding the effect of noise on the community. In its later

ruling, at the conclusion of the proceedings, the trial court made a significant observation and

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distinguished between testimony proffered from James regarding the health effects attributable to

noise and the effects of noise on the community. Specifically, the trial court suggested that

defendants improperly tried to blur the lines between and conflate these concepts. The trial court

recognized that noise can affect a community in ways other than involving health concerns. The

trial court did admit the ANSI report into evidence because it represented professional, objective,

and acknowledged standards “for noise and its effects on humans.” In particular, the trial court

noted that the standards developed by ANSI are “accepted and used by the [federal] government

and courts across the country.”

With reference to Robinson, the trial court precluded any testimony elicited from him

regarding subaudible sound, with the commensurate redaction of Robinson’s testimony on this

subject during deposition.5 Testimony or evidence regarding low-frequency sound was found to

be admissible; with the trial court noting that both Robinson and James testified about the low-

frequency sounds emanating from the dragway on race days and that such sounds can be

“annoying” and “disruptive” to those in physical proximity to the dragway. Significantly, the

trial court indicated that Robinson and James in providing their opinions relied on and referred to

the ANSI report, which contains information on the effect of low-frequency sounds on humans.

Based on the recognition and professional acceptance of the ANSI standards, it was logical for

the trial court to reject defendants’ argument that standards had not been developed regarding

low-frequency sounds or that the concept constituted “junk science.” Because the ANSI report

discussed and addressed continuous low-frequency sounds, an established scientific basis for

James’s testimony regarding his measurement of such sounds from the dragway was deemed

admissible by the trial court. Defendants were also able to present the testimony of their own

expert, Richard A. Kolano, to dispute the assertions by James and the accuracy of his

measurements, as well as offer alternative standards, such as those used by the Department of

Housing and Urban Development (HUD) and the Environmental Protection Agency (EPA), to

apply to the sound measurements from the dragway.

In accordance with MRE 702:

If the court determines that scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise if (1) the

testimony is based on sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.

Further standards for a court’s consideration when determining the admissibility of expert

testimony are also found in MCL 600.2955(1), which states:

5

At deposition, defendants accepted Robinson as an expert on auditory sound, objecting only to

his testimony on subaudible and low-frequency sound.

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(1) In an action for the death of a person or for injury to a person or property, a

scientific opinion rendered by an otherwise qualified expert is not admissible

unless the court determines that the opinion is reliable and will assist the trier of

fact. In making that determination, the court shall examine the opinion and the

basis for the opinion, which basis includes the facts, technique, methodology, and

reasoning relied on by the expert, and shall consider all of the following factors:

(a) Whether the opinion and its basis have been subjected to scientific testing and

replication.

(b) Whether the opinion and its basis have been subjected to peer review

publication.

(c) The existence and maintenance of generally accepted standards governing the

application and interpretation of a methodology or technique and whether the

opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are generally accepted within the

relevant expert community. As used in this subdivision, “relevant expert

community” means individuals who are knowledgeable in the field of study and

are gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that field

would rely on the same basis to reach the type of opinion being proffered.

(g) Whether the opinion or methodology is relied upon by experts outside of the

context of litigation.

On appeal, defendants do not dispute that James’s testimony on the measurements of

sound he recorded was admissible. Rather, defendants argue that James’s testimony regarding

the effect of the sound from the dragway on the community was inadmissible because of the lack

of expertise by James on that subject, and that the testimony regarding the effect of the dragway

noise on the community was irrelevant to whether it constituted a private nuisance for Cooper.

In large part, defendants’ objections and criticisms of James focused on the methodologies used

by James to record and playback the dragway sounds, suggesting the methods used did not

comport with professional standards. Notably, James explained the sound level data obtained

with comparison and interpretation to the official standards developed and published by the

ANSI. Specifically, James reported the decibel readings for various recordings and locations. In

turn, the recorded levels were then compared to threshold standards established by ANSI,

degrees of variance were objectively determined, and the effect of the variances were interpreted

in conjunction with the ANSI standards. By way of example, James relied on the ANSI

standards to assert that a variance exceeding 15 dB is identified as “objectionable” by the ANSI,

with variances in excess of 20 dB deemed “objectionable to intolerable.” James also opined,

based on his recordings of the dragway, in the context of the ANSI standards, about the effects of

short, fluctuating noises and low-frequency sounds as they related to the “concept of vibration.”

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In sum, James’s testimony encompassed the methodology and sound recordings obtained

from specified locations in the vicinity of the dragway on a race day. James then described and

explained the sound levels measured and recorded within the context of the standards set forth by

the ANSI, which are accepted and recognized within the industry of sound and acoustic

engineering. In other words, James used recognized scientific methods to collect data and

identified accepted standards regarding sound and its effects to examine and opine on the level of

noise being generated by the dragway and its effect on the nearby community.

Defendants were afforded an adequate opportunity, which they used, through the

testimony of their own expert, Richard A. Kolano, to challenge James’s methodology, sound

measurement accuracy, the standards to be applied and the interpretation of the data in relation to

those standards. When viewed in context, many of defendants’ objections actually comprised

challenges to the weight to be afforded to the disputed expert testimony rather than its

admissibility. It is routinely recognized that “an opposing party’s disagreement with an expert’s

opinion or interpretation of facts, and gaps in expertise, are matters of the weight to be accorded

to the testimony, not its admissibility.” Bouverette v Westinghouse Electric Corp, 245 Mich App

391, 401; 628 NW2d 86 (2001).

In admitting James’s testimony, the trial court fulfilled its “gatekeeper” functions and

applied the tests of reliability dictated by MRE 702 and MCL 600.2955. Because James’s

testimony comported with MRE 703, which requires that “the facts or data in the particular case

upon which an expert bases an opinion or inference shall be in evidence,” it was admissible.

Similarly, defendants objected to the admissibility of de benne esse testimony of

Robinson regarding the existence, measurement and effect of subaudible and low-frequency

sounds. Before determining admissibility of this testimony, the trial court explained and

acknowledged its gatekeeping role in accordance with MRE 702 and MCL 600.2955. The trial

court precluded the admission of testimony on subaudible sounds, but found that testimony

regarding low-frequency sounds required further exploration and consideration. After the

redaction of the testimony regarding subaudible sound, the transcript of Robinson’s deposition

was admitted, wherein he opined on his concerns for children on the Cooper and Caltrider

properties based on the audible noise levels recorded by James and the intermittency of those

sounds. Robinson discussed the negative effects of the noise, acknowledging that it would not

induce hearing loss but would impair other cognitive functioning, such as reading and

communication and could also result in “tiredness, irritability and headaches” for children. For

adults, exposure to the sound would interfere with conversation and concentration, with levels of

annoyance experienced increasing with variation in the intermittency of the sound.

In ultimately ruling on the admissibility of Robinson’s testimony regarding low-

frequency sounds, the trial court observed that Robinson and James testified “to varying extents,

about low-frequency sound emanating from the Dragway . . . and how that sound can be

‘annoying’ and disruptive for those nearby.” The trial court noted that, in expressing their

opinions, James and Robinson relied on and referenced the ANSI report, which included

information on the effect of low-frequency sounds on humans. As such, the trial court rejected

defendants’ contentions regarding the “absence of recognizable standards pertaining to the

effects of low-frequency sounds,” and noted that the elicited testimony was in conformance with

the ANSI standards. The trial court did not err in determining this testimony to be admissible.

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V. DISMISSAL OF CALTRIDER NUISANCE CLAIMS

Caltrider asserts the trial court erred in dismissing his claims of public and private

nuisance. Caltrider contends that he did not bring this claim on behalf of the tenants of his trailer

park and, therefore, any determination regarding Caltrider’s lack of standing on this basis

comprised error. The trial court also erred in finding, despite evidence of economic damages

attributable to the dragway, that Caltrider was not entitled to damages or relief.

As recently discussed in Stock Bldg Supply, LLC v Crosswinds Communities, Inc, 317

Mich App 189, 198-199; 893 NW2d 165 (2016) (citations and quotation marks omitted):

This Court reviews decisions on motions for summary disposition de novo to

determine if the moving party was entitled to judgment as a matter of law. A

motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual

sufficiency of the complaint. In evaluating a motion for summary disposition

brought under this subsection, a trial court considers affidavits, pleadings,

depositions, admissions, and other evidence submitted by the parties, MCR

2.116(G)(5), in the light most favorable to the party opposing the motion.

Summary disposition under MCR 2.116(C)(10) is proper when there is no

genuine issue regarding any material fact. A reviewing court may not employ a

standard citing the mere possibility that the claim might be supported by evidence

produced at trial. A mere promise is insufficient under our court rules. While it is

true that the trial court must consider affidavits, pleadings, depositions,

admissions, and other evidence submitted by the parties, the nonmoving party

may not rely on mere allegations or denials, but must set forth specific facts that

show that a genuine issue of material fact exists. Equitable issues are reviewed de

novo[.]

In addition, the applicability of a legal doctrine comprises a question of law, Wigfall v

Detroit, 322 Mich App 36, 43; 910 NW2d 730 (2017), which is reviewed de novo, Cherry

Growers, Inc v Agricultural Mktg & Bargaining Bd, 240 Mich App 153, 160; 610 NW2d 613

(2000). “A trial court’s findings of fact supporting its decision are reviewed for clear error.”

Wigfall, 322 Mich App at 43. Specifically, “[w]hen reviewing a grant of equitable relief, we will

set aside the trial court’s findings of fact only if they are clearly erroneous, but whether equitable

relief is proper under those facts is a question of law that we review de novo.” Gleason v

Kincaid, 323 Mich App 308, 317; 917 NW2d 685 (2018). “The clear error standard provides

that factual findings are clearly erroneous where there is no evidentiary support for them or

where there is supporting evidence but the reviewing court is nevertheless left with a definite and

firm conviction that the trial court made a mistake.” Hill, 276 Mich App at 308. “The question

whether a party has standing presents a question of law reviewed de novo on appeal.” Tennine

Corp v Boardwalk Commercial, LLC, 315 Mich App 1, 7; 888 NW2d 267 (2016).

The Caltrider Trust owns the mobile home park involved in this claim, with Caltrider’s

personal residence at a different location. Caltrider asserted that the noise from the dragway was

disturbing and interfered with his ability to maintain conversations with his tenants when the

dragway was operating and that he could feel the vibration generated by the vehicles when

racing while he was at the mobile home park. On May 20, 2015, the trial court dismissed

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Caltrider’s claim of public nuisance based on the failure “to allege interference of [sic] any

special interest not common to the community,” and found that the potential for economic

damages pertaining to resale of the property did not serve to provide a sufficient distinction to

sustain a claim of public nuisance. The trial court found Caltrider’s damages were not unique

because the only variance identified was in regard to the degree the same damages were suffered

by other members of the community, i.e., loss in property values. The trial court also rejected

Caltrider’s efforts to establish standing based on “his interest in protecting children who reside in

his mobile home park[.]”

A “public nuisance” has been defined “as an ‘unreasonable interference with a common

right enjoyed by the general public’.” Capitol Props Group, LLC, 283 Mich App at 427 (citation

omitted).

The term “unreasonable interference” includes conduct that (1) significantly

interferes with the public’s health, safety, peace, comfort, or convenience, (2) is

proscribed by law, or (3) is known or should have been known by the actor to be

of a continuing nature that produces a permanent or long-lasting, significant effect

on these rights. A private citizen may file an action for a public nuisance against

an actor where the individual can show he suffered a type of harm different from

that of the general public. [Id. at 427-428 (citation omitted).]

In this instance, numerous individuals in the community, in addition to Caltrider, testified

or provided affidavits, indicating that operation of the dragway comprised an “unreasonable

interference” with the peace, comfort and enjoyment of their personal properties. As such,

Caltrider provided evidence that his “grievance extends to the public, beyond the walls” or limits

of his property. Id. at 431. However, Caltrider was unable to demonstrate that the type of harm

he incurred differed from that suffered by the general public. Id. at 428. Innumerable

individuals, in addition to Caltrider, complained that the noise from the dragway interfered with

the peaceful enjoyment of their properties and was disruptive. Caltrider did not identify how the

dragway resulted in his experiencing a harm that was discernibly different from that of other

individuals in the community.

Caltrider implied that the noise generated by the dragway and its especially close

proximity to the mobile home park made it difficult to procure tenants or maintain rentals of his

living units. To that end, testimony elicited from Edwin Terry Shellhorn, a real estate broker,

suggested that the dragway would negatively affect the valuation of Caltrider’s property,

providing the example of a separate residential property where the buyer elected not to conclude

a sale after learning of the dragway’s existence and that the property later resold for less than the

2015 sale price. Caltrider, however, did not provide any data or evidence showing fluctuations

or increases in mobile home park vacancies and decreases in occupancy rates, failures to renew

tenancies that were attributable to the existence and operation of the dragway, or comparisons to

pre-dragway rental figures. In addition, the Michigan Supreme Court “has held that property

depreciation alone is insufficient to constitute a nuisance.” Capitol Props Group, LLC, 283

Mich App at 432, citing Adkins, 440 Mich at 312. As such, the trial court was justified in

dismissing Caltrider’s public nuisance claim.

With regard to the issue of private nuisance, it is recognized:

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The elements of a private nuisance are satisfied if (a) the other has property rights

and privileges in respect to the use or enjoyment interfered with, (b) the invasion

results in significant harm, (c) the actor’s conduct is the legal cause of the

invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii)

unintentional and otherwise actionable under the rules governing liability for

negligent, reckless, or ultrahazardous conduct. To prove a nuisance, significant

harm to the plaintiff resulting from the defendant’s unreasonable interference with

the use or enjoyment of property must be proven. [Capitol Props Group, LLC,

283 Mich App at 431-432 (citations omitted).]

While the trial court recognized Caltrider’s standing to assert a claim of private nuisance, it

found that a private nuisance was not established because the harm or interference Caltrider

asserted, involving his inability to maintain conversations outdoors with tenants of the mobile

home park on race days, did not rise to an “unreasonable interference with the use or enjoyment

of the property.” Specifically, racing occurred primarily on Friday evenings and Saturdays. As

such, Caltrider was able to engage in unimpeded conversations with tenants at least five other

days during the week when out of doors. In addition, although Caltrider could hear the dragway

when in his office, it was basically acknowledged that he could sufficiently communicate with

his tenants when indoors, despite operation of the dragway. As such, under the totality of the

circumstances, while noise from the dragway constituted an interference with the use and

enjoyment of the property, the interference for Caltrider was deemed limited and not

“unreasonable.”

Caltrider’s standing to bring a public or private nuisance claim was also challenged by

defendants. The trial court found that Caltrider lacked standing to assert a public nuisance claim

but that Caltrider had standing for his claim of private nuisance. With regard to the concept of

standing, this Court has explained:

The standing doctrine’s purpose is to determine whether a litigant has a sufficient

interest in the matter to “ensure sincere and vigorous advocacy.” The standing

requirement ensures that only those with a substantial interest may litigate a claim

in court. When a party’s standing is contested, the issue becomes whether the

proper party is seeking adjudication, not whether the issue is justiciable. Standing

is not contingent on the merits of the case. Standing may be conferred by

legislative expression or implied by duties that arise from the law. [Tennine

Corp, 315 Mich App at 7 (citations omitted).]

With regard to Caltrider’s public nuisance claim, the trial court did not err in finding he lacked

standing because he did not suffer from a different type of harm than that of the general public.

Caltrider’s private nuisance claim was not denied by the trial court on the basis of standing, but

rather the failure to demonstrate an “unreasonable” harm.

Finally, Caltrider asserts it was error to not grant him an abatement of the nuisance. On

the surface, there appears to be a discrepant determination based on the trial court’s finding of

the existence of a private nuisance with regard to Caltrider’s neighbor, Cooper. However,

Caltrider cannot demonstrate an entitlement to a remedy when he has failed to establish the

existence of a wrong to him personally subject to recompense or abatement. First, this Court has

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historically rejected claims of “standing . . . by virtue of . . . ownership of property adjoining” or

abutting property whose owner has standing and established a nuisance or grievance. Village of

Franklin v City of Southfield, 101 Mich App 554, 557-558; 300 NW2d 634 (1980). In other

words, standing is not conferred simply because of proximity to the alleged nuisance, absent the

demonstration of special damages. The absence of a demonstrable legal wrong precludes the

requirement of a remedy, such as abatement. See Reynolds v Great Northern R Co, 69 F 808,

813 (CA 8, 1895) (“Where there has been no such failure, there has been no wrong, and therefore

there is no remedy.”).

The trial court did not err in dismissing Caltrider’s public and private nuisance claims.

Having found that Caltrider had failed to establish a private nuisance, the remedy of abatement

was not available.

VI. DISBURSEMENT OF SURETY BOND

Defendants assert the trial court erred in denying their request to disburse the proceeds of

the surety bond, arguing that the denial of Cooper’s request for abatement of the nuisance

resulted in defendants being the prevailing parties in the litigation and triggered the conditions

for payment of the surety bond. Specifically, defendants contend that Cooper’s actions, which

resulted in the finding of “unclean hands,” were ongoing before the initiation of the litigation and

issuance of the injunction, continued through trial, and led to the improper imposition of the

injunction.

“This Court reviews de novo a trial court’s resolution of issues of law, including the

interpretation of statutes and court rules.” State Treasurer v Bences, 318 Mich App 146, 149;

896 NW2d 93 (2016). “[T]his Court reviews de novo a trial court’s interpretation of contractual

language.” Westfield Ins Co v Ken’s Serv, 295 Mich App 610, 615; 815 NW2d 786 (2012).

MCR 3.310(D)(1) provides:

Before granting a preliminary injunction or temporary restraining order, the court

may require the applicant to give security, in the amount the court deems proper,

for the payment of costs and damages that may be incurred or suffered by a party

who is found to have been wrongfully enjoined or restrained.

In this instance, Cooper was required to post a surety bond in the amount of $381,000, which

was specifically identified “for the payment of costs and damages that may be incurred or

suffered by said defendants if they are found to have been wrongfully enjoined or restrained.”

The trial court determined that defendants were not entitled to payment on the surety bond,

finding “that the preliminary injunction in this case was not issued wrongfully[.]” Evaluating the

decision to issue the injunction on May 30, 2015, the trial court found that it had properly

considered the relevant factors, and that issuance of the injunction was justified by the proofs

submitted. In denying payment on the surety bond, the trial court further noted that Cooper had

carried his burden given the trial court’s ultimate ruling that defendants’ operation of the

dragway constituted a private nuisance with regard to Cooper. When considering a “temporal”

method or analysis, the trial court reviewed the various acts and timing of the identified incidents

of misconduct by Cooper before the litigation initiated and during the trial. Finding the

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application of the unclean hands doctrine was the result of witness intimidation, which the trial

court determined occurred during the trial, the trial court concluded that, because the relevant

“misconduct did not occur until trial[,] . . . [d]efendants were not wrongfully enjoined throughout

the pendency of the litigation.”

It has historically been recognized by this Court that “[t]he word ‘wrongful,’ as used in

the context of injunctions, has been considered by federal and state courts to mean the issuance

of the injunction by a court in error or when it ought not to have been issued.” Matter of Estate

of Prichard, 169 Mich App 140, 149; 425 NW2d 744 (1988). “The action on the security, often

in the form of an ‘injunction bond,’ is treated as an action on a contract and not a proceeding in

equity, although the allowance of damages has been treated in some courts as resting on

equitable principles.” Id. In accordance with MCR 3.604(I)(1):

In an action in which a bond or other security has been posted, judgment may be

entered directly against the surety or the security on motion without the necessity

of an independent action on a showing that the condition has occurred giving rise

to the liability on the bond or to the forfeiture of the security. [Emphasis added.]

Because bonds, such as the surety bond at issue, are construed under the laws of contract,

and given the strictures of MCR 3.604(I)(1), the language of the bond is controlling. As is

routinely recognized:

This Court must examine the language of the contract and accord the words their

ordinary and plain meanings, if such meanings are apparent. If the contractual

language is unambiguous, courts must interpret and enforce the contract as

written. Thus, an unambiguous contractual provision is reflective of the parties’

intent as a matter of law. [In re Smith Trust, 274 Mich App 283, 285; 731 NW2d

810 (2007), aff’d 480 Mich 19 (2008) (citations and quotation marks omitted).]

At the outset, based on the language of the surety bond stating that it is restricted to “the

payment of costs and damages that may be incurred or suffered by said defendants if they are

found to have been wrongfully enjoined or restrained,” it is difficult to construe how the

payment provision of the bond is triggered given the trial court’s determination that defendants’

actions constituted a private nuisance to Cooper. On its face, it appears illogical to suggest that,

Cooper having prevailed given the trial court’s legal determination that the operation of the

dragway comprised a private nuisance, the trial court could also concomitantly find that the

issuance of the injunction to enjoin that behavior was wrongful. Superficially, defendants appear

to confuse or fail to distinguish between Cooper having prevailed on the merits of the claim that

led to the issuance of the bond and Cooper’s failure to obtain, or lack of entitlement to, a remedy

for the wrong incurred.

Defendants assert, however, that a finding of nuisance does not equate to or establish that

the issuance of the injunction was proper, or not wrongful. To that end, defendants suggest that

Cooper’s identified acts of misconduct both before and during trial, negated the basis for

issuance of the injunction, and therefore they are entitled to payment under the surety bond. This

relates, in turn, to differing methodologies or timeframes to evaluate whether the issuance of an

injunction is wrongful. Specifically, defendants contend that viewing the timing of Cooper’s

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alleged misconduct regarding contact with Onondaga Township’s insurance agent and

conversations with Johnson before litigation initiated in this matter demonstrates the impropriety

of having issued the injunction and entitles defendants to payment on the surety bond.

Citing an earlier version of MCR 3.310(D)(1), and using dictionary definitions for the

term “wrongful” because it is not defined in the court rule, this Court has concluded:

The plain language of [the court rule] indicates as its object compensating a party

for costs and damages sustained as a result of an injunction, which, based on the

determination made on the merits of the underlying controversy between the

parties, should not have been issued at all. [Matter of Estate of Prichard, 169

Mich App at 151.]

It is noteworthy that the incident of misconduct emphasized and primarily relied on by the trial

court to determine violation by Cooper of the equitable clean hands doctrine was restricted to his

actions during the later parts of the trial to improperly influence or intimidate a witness

(Johnson) and her testimony. It is disingenuous to suggest, and impossible to find, that the

misconduct alleged to have occurred in the later parts of the ensuing trial precluded the earlier

issuance of the injunction, or its perceived need and propriety. In issuing the injunction, the trial

court conducted a hearing and explained the factors considered in enjoining the dragway,

including but not limited to proofs adduced regarding the harm being alleged and the possible

impacts on all of the litigants and the community in general, which led the trial court to surmise a

likelihood that Cooper would prevail on the merits of his nuisance claim. The trial court’s final

ruling, finding the existence of a private nuisance, belies any suggestion that the trial court’s

initial belief that Cooper would prevail on the legal issue was mistaken. Based on the point in

time when the injunction was issued, and the information available to the trial court, issuance of

the injunction cannot be construed as wrongful.

Defendants also suggest that the other alleged incidents of misconduct by Cooper,

identified by the trial court, preceding his contacts with Johnson during the trial, supported the

trial court’s determination that Cooper had unclean hands and, therefore, resulted in the improper

issuance of the injunction. This argument requires fairly massive leaps in logic and lacks merit.

To begin with, defendants rely on the federal court decision in Blumenthal to support

their contentions and arguments.6 In Blumenthal, the Second Circuit addressed what it means to

be “wrongfully enjoined.” The court explained:

A party has been “wrongfully enjoined” under [the commensurate federal

court rule] if it is ultimately found that the enjoined party had at all times the right

to do the enjoined act. The conclusion that an injunction later dissolved was

“wrongful,” in the sense that the party had the right to do the enjoined act, does

not necessarily imply that the district court abused its discretion in granting the

6

Federal case law does not comprise binding precedent. Sharp v City of Lansing, 464 Mich 792,

803; 629 NW2d 873 (2001).

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relief in the first place. “[A] temporary injunction may be wrongfully issued

although the issuance may not have been improvident as an abusive exercise of

the trial court’s discretion.”

The focus of the “wrongfulness” inquiry is whether, in hindsight in light

of the ultimate decision on the merits after a full hearing, the injunction should

not have issued in the first instance. This conclusion is supported by the plain

meaning of [the applicable court rule] and the theory underlying it, that the

applicant “consent[s] to liability up to the amount of the bond, as the price for [the

injunction]. The injunction bond is designed “to cover any damages that might

result if it were later determined that [the applicant] was not entitled to an

injunction.” Put another way, the question is whether the plaintiffs “ought not to

have been enjoined.” [Blumenthal, 910 F2d at 1054-1055 (citations omitted).]

The focus of Blumenthal is primarily, when viewed in hindsight, on the time when the injunction

was issued. As noted by the trial court, the misconduct relied on to deny Cooper abatement of

the nuisance occurred during trial involving the attempt to influence or intimidate Johnson’s trial

testimony and, therefore, could not have been a factor in the issuance of the injunction.

Defendants argue, however, that the other misconduct identified by the trial court

involving Cooper, which precluded abatement of the nuisance, occurred before issuance of the

injunction and that this misconduct should have also precluded the granting of the injunction.

The misconduct referenced involved: (a) Cooper filing articles of incorporation for assumed

names with the intention to interfere with the operation of the dragway, and (b) having contacted

the Onondaga Township insurance carrier to inquire about its insurance policy. Defendants also

allege that contacts between Cooper and Johnson, occurring in 2011, demonstrate a continuing

pattern of misconduct that should have precluded issuance of the injunction.

Initially, when suggesting Cooper’s 2011 contacts with Johnson comprised misconduct or

intimidation, defendants misrepresent the record, Johnson’s testimony, and the trial court’s

ruling. Johnson testified that her communications with Cooper, in 2011, were neither threatening

nor intimidating, and that she viewed them as attempts to warn her on the basis of their

friendship of possible concerns or implications involving her position with the Township and

approval of the dragway. Further, these communications occurred two years before the Comers

obtained the SUP for the dragway in 2013. Premised on Johnson’s admission that the

communications were not intimidating, coupled with their occurrence well before issuance of the

SUP for the dragway, let alone the ensuing litigation, it is difficult to construe this as comprising

misconduct that would preclude the propriety of the issuance of the injunction for what was

ultimately found to be a demonstrable nuisance.

Similarly, reliance by defendants on the purported impropriety of issuing an injunction in

light of Cooper’s one-time telephone contact with Onondaga Township’s insurance carrier to

inquire about the Township’s coverage in 2013, two years before the Comers obtained the SUP,

is unavailing. In addition to the lack of any temporal contiguity between the telephone contact

and issuance of the injunction, there is no logical relationship between the events. Even if, as

alleged, Cooper misrepresented his authority to obtain the information he sought from the

insurance agency, and which he did not receive, there is no demonstrable relationship between

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the attempt to procure this information and the existence of a nuisance perpetrated by the

Comers, Pranshka and the dragway. It should be emphasized that Onondaga Township elected

to intervene in Cooper’s lawsuit against the other defendants and that the injunction that issued

had no effect on Onondaga Township; it simply precluded the ongoing operation of the dragway,

which was owned and operated by the Comers and Pranshka. There is simply no discernable or

logical relationship between the alleged misconduct and the reasons for issuance of the

injunction.

Defendants also rely on Cooper’s acknowledged filing of applications to secure various

names for corporate entities in 2015, in an effort to interfere with the financial benefits and

transaction of business by the dragway, justifying the trial court’s finding of unclean hands and

suggesting that the behavior should have precluded the issuance of the injunction. Significantly,

this behavior occurred in 2015, but the bond covering the injunction was obtained a year earlier

in August of 2014, in compliance with the concurrent issuance of the injunction. Again, it is

difficult to construe how a later event (filing to establish corporate entities) could influence the

earlier event (issuance of the injunction). Further, even if Cooper having engaged in these

actions comprises misconduct, it does not obviate the factors that existed leading to the trial

court’s issuance of the injunction – a nuisance premised on sounds from the dragway, which

were found to be excessively annoying and disruptive of Cooper’s ability to use and enjoy his

property.

Once again, defendants appear to confuse and attempt to conflate the factors involved in

determining the propriety of issuing an injunction with those that are solely related to the

availability of a remedy. The denial of a remedy does not equate to the absence, or obviate the

existence, of an initial wrong having occurred and justifying the basis for the injunction. The

trial court’s denial of defendants’ request to disburse the surety bond was not in error because the

triggering mechanism of “wrongful enjoinment” was not effectuated.

VII. CONCLUSION

We affirm in part and reverse in part the trial court’s ruling and remand to the trial court

for proceedings consistent with this opinion. We do not retain jurisdiction. In Docket No.

340303, no costs, no party having prevailed in full. In Docket No. 340304, defendants may tax

costs. In Docket No. 342137, plaintiff may tax costs.

/s/ David H. Sawyer

/s/ Mark J. Cavanagh

/s/ Kirsten Frank Kelly

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