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STATE OF MICHIGAN
COURT OF APPEALS


DAVID B. CHAMBERLAIN, SANDRA W. CHAMBERLAIN, NANCY C. VANVELS, JANET C. PETERSON, VIRGINIA C. MAY, GLENN CHAMBERLAIN, JR., and MURIEL G. CHAMBERLAIN, Plaintiffs-CounterDefendants-Appellants, v POINT NIPIGON ON THE STRAITS RESORT CLUB, JOHN DOE, and MARY DOE, Defendants-Counter Plaintiffs-Appellees.

UNPUBLISHED May 26, 1998

No. 189719 Cheboygan Circuit Court LC No. 93-003556-CH

DAVID B. CHAMBERLAIN, SANDRA W. CHAMBERLAIN, NANCY C. VANVELS, JANET C. PETERSON, VIRGINIA C. MAY, GLENN CHAMBERLAIN, JR., and MURIEL G. CHAMBERLAIN, Plaintiffs-Counter Defendants-Appellees, v POINT NIPIGON ON THE STRAITS RESORT CLUB, JOHN DOE, and MARY DOE, Defendants-CounterPlaintiffs-Appellants. No. 189893 Cheboygan Circuit Court LC No. 93-003556-CH

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Before: Hood, P.J., and Markman and Talbot JJ. PER CURIAM. Following a bench trial, the trial court entered judgment dismissing plaintiffs' claims of fraud and misrepresentation, illegal assessment of shareholder fees, and minority shareholder oppression. In Docket No. 189719, plaintiffs appeal as of right from the dismissal of these claims. The judgment further ordered injunctive relief for plaintiffs on their claim for cleanup of a garbage dump on their property. In Docket No. 189893, defendant 1 appeals as of right from this provision of the judgment. This Court consolidated the parties' appeals. We now affirm in part, vacate in part, and remand for further proceedings. Docket No. 189719 On appeal, plaintiffs argue that the trial court erred in dismissing their claims of fraud and misrepresentation, illegal assessment of fees and late charges, and minority shareholder oppression. We conclude that the trial court's dismissal of these claims was proper, albeit on different grounds. This Court reviews a trial court's decision in an equitable action under a de novo standard. We review the findings of fact supporting the decision for clear error. Webb v Smith (After Second Remand), 224 Mich App 203, 210; 568 NW2d 378 (1997). After reviewing the record, we conclude that plaintiffs are barred from recovery on these claims by the doctrine of laches. Application of the doctrine of laches requires a passage of time combined with a change in condition that would make it inequitable to enforce the claim against the defendant. Sedger v Kinnco, Inc, 177 Mich App 69, 73; 441 NW2d 5 (1988). In determining whether a party is barred from recovery because of laches, each case must be determined on its own particular facts. Id. With respect to plaintiffs' fraud and misrepresentation claim regarding the 400-foot water frontage issue, plaintiffs' proofs indicate that they became aware of the 40-foot shortfall in water frontage as early as 1987 or 1988, whereupon their attorney entered into lengthy negotiations with defendant and a settlement was reached. At that time, plaintiff considered and rejected the option of having their own survey performed. It was not until 1993, when plaintiffs undertook plans to develop a resort on their property adjacent to defendant's property, that they filed the instant lawsuit. With respect to the numerous corporate issues regarding the improper assessment of fees and late charges and minority shareholder oppression, plaintiffs' family relinquished its controlling interest in the resort as a result of the 1978 land contract agreement, and any subsequent changes to corporate bylaws were duly adopted by a vote of the newly constituted majority. Policies regarding voting rights, member fees, late charges, and marketing of lots were applied equally to all members. Notably, plaintiffs abstained from voting when the issue of changing from share vote to unit vote was brought before the membership in 1990. The maxim, "equity aids the vigilant, not t hose who sleep on their rights," is particularly appropriate here. See Newton v Security National Bank of Battle Creek, 324 Mich 344, 357; 37 NW2d 130 (1949); Burlage v Radio Cab Co, 321 Mich 319, 325; 32 NW2d 465 (1948); Henderson v Connolly's Estate, 294 Mich 1, 18-20; 292 NW 543 (1940); Douglass v Douglass, 72 Mich 86, 98-99; 40 NW 177 (1888); Zoellner v Zoellner, 46 Mich 511, 515; 9 NW 831 (1881). -2

Because plaintiffs delayed in bringing this lawsuit and defendant would be prejudiced if this Court were to order the equitable relief sought, we conclude that plaintiffs' claims at issue in this appeal are barred by laches. We would further note that plaintiffs' minority shareholder oppression claim is time-barred under the applicable period of limitation. A claim brought pursuant to

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