Leelanau v. Roth - Leelanau Conservancy’s Response SJM

Leelanau Conservancy v. Roth, Docket No. 08-7768-CZ, 08-7738-CE (Circuit Ct., Leelanau Cnty., May 27, 2008)(Bench orders)(UNPUBLISHED)
State: Michigan
Procedural Status: Case concluded.
Date: 2008
Keywords: Intentional infliction of emotional distress; justiciability; management plan; misrepresentation; mootness; private conservation easement; public access; ripeness; settlement agreement; termination; timber cutting; tortious interference; violation.
Summary of Facts and Issues:  In the mid-1990s, the Leelanau Conservancy (LC) used donated funds to buy an undivided ½ interest in a property.  The Roths owned the other undivided ½ interest.  LC and the Roths negotiated a partition in which LC received a portion of the land and the Roths received the rest.  The Roths ended up with more acreage than LC.  In return, the Roths gave LC a conservation easement on their larger share, and a trail easement so that people could access the LC-owned property.  The conservation easement included a provision that restricted timber cutting to selective harvests in accordance with an LC-approved forest management plan.  In 1997, the Roths commissioned a forester to prepare a plan, which was approved by LC.  In January 2007, without informing LC, the Roths entered into a timber contract with a logger.  When LC found out about this contract in June 2007, it contacted the logger and discovered that he was never informed of the conservation easement and that the contract called for a harvest of all trees greater than 20 inches in diameter at cut height, which would allegedly constitute a violation of the forest management plan.  When LC could not obtain written confirmation from the logger that he would wait until the matter was resolved between LC and the Roths before he conducted any cut of the property, it filed suit against the Roths and the logger.  The logger promptly terminated the contract with the Roths, and LC dropped any claims against him.  Meanwhile, the Roths moved for summary judgment on LC’s claims, contending that the enforcement action was not justiciable on grounds of ripeness and mootness, as the logger had already backed out of the contract.  In addition, the Roths counterclaimed with nine causes of action, including tortious interference with a contract, misrepresentation, defamation, and intentional infliction of emotional distress.  Although the Roths later dropped these tangential claims, they retained a counterclaim to terminate the conservation easement in its entirety, pointing to litter, vandalism, trail erosion, hunting, and other degradations that had allegedly flowed from public access on the property. 
Holding:  At the close of oral arguments on the motions for summary judgment, the trial court judge ruled from the bench that there was a live controversy (i.e., not moot or unripe) between LC and the Roths, even though the logger had terminated the specific contract that triggered the dispute.  He also dismissed the Roth’s counterclaim to terminate easement, noting that the easement’s purposes had not been rendered impossible to fulfill, the standard for termination in the easement. 
Analysis and Notes:  The judge’s ruling allows LC’s enforcement action to proceed to discovery and a trial.  The Roths’ counterclaim to terminate the easement was a typical example of trying to go on offense instead of defense, and it went nowhere. 
July 2013 Update:  A December 2008 case evaluation was ordered to deal with the money claims of trespass on a parking lot, logging claims ($25,000 for lost value of trees) and attorney’s fees.   A panel of three lawyers heard the parties’ claims and suggested restitution of $5,000 for the parking trespass, $0 for the logging claims, and no attorney’s fees.   In January 2009 both sides accepted the results of the case evaluation.   But the parties were still left with the original dispute regarding logging.  LC made the necessary modifications to the parking area.  In February 2009 the landowner died from complications following surgery.  LC offered to drop everything if the surviving spouse would settle without prejudice.  She refused, wanting a settlement with prejudice.  LC feared that agreeing to a settlement with prejudice would tie its hands in dealing with potential future logging disputes.  At the required pre-trial settlement conference, held in March 2009, all remaining issues in the lawsuits were settled.  In particular, although the remaining claims in the case were settled with prejudice and with each party paying its costs and attorney’s fees, neither party waived any of its rights under the conservation easement with respect to any future actions.
""As the Roths have dropped several counts of their complaint after the Leelanau Conservancy filed this motion, the only count that remains for decision at the hearing is the claim for Termination of Easement Agreement & Quiet Title.1 The Roths, however, have not sufficiently pleaded facts to establish a claim for termination of the easement. They have not alleged that it is impossible to fulfill the conservation easement's purposes of preserving the property in its natural state and protecting its ecological value. Also, the Roths should not be permitted to amend their complaint because any amendment would be futile. Even if we accept the Roths' outlandish factual allegations as true, at most those allegations establish that the property's value has been degraded. That is a far cry from establishing that there is nothing left on the property that is worth preserving.
Holding:  At the close of oral arguments on the motions for summary judgment, the trial court judge ruled from the bench that there was a live controversy (i.e., not moot or unripe) between LC and the Roths, even though the logger had terminated the specific contract that triggered the dispute.  He also dismissed the Roth's counterclaim to terminate easement, noting that the easement's purposes had not been rendered impossible to fulfill, the standard for termination in the easement.   ?
Notes and Analysis:  The judge's ruling allows LC's enforcement action to proceed to discovery and a trial.  The Roths' counterclaim to terminate the easement was a typical example of trying to go on offense instead of defense, and it went nowhere.   ? July 2013 Update:  A December 2008 case evaluation was ordered to deal with the money claims of trespass on a parking lot, logging claims ($25,000 for lost value of trees) and attorney fees.   A panel of three lawyers heard the parties' claims and suggested restitution of $5,000 for the parking trespass, $0 for the logging claims, and no attorney fees.   In January 2009 both sides accepted the results of the case evaluation.   But the parties were still left with the original dispute regarding logging.  LC made the necessary modifications to the parking area.  In February 2009 the landowner died from complications following surgery.  LC offered to drop everything if the surviving spouse would settle without prejudice.  She refused, wanting a settlement with prejudice.  LC feared that agreeing to a settlement with prejudice would tie its hands in dealing with potential future logging disputes.  At the required pretrial settlement conference, held in March 2009, all remaining issues in the lawsuits were settled.  In particular, although the remaining claims in the case were settled with prejudice and with each party paying its costs and attorney fees, neither party waived any of its rights under the conservation easement with respect to any future actions