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STATE OF MICHIGAN COURT OF APPEALS

HELGA ROSE, Plaintiff-Appellant, v TERRY BRACISZEWSKI, KATHERINE BRACISZEWSKI, MICHAEL S. SINACOLA and THERESA BRAWDY, Defendant-Appellees.

UNPUBLISHED October 13, 2009

No. 285316 Livingston Circuit Court LC No. 07-022962-CE

Before: Talbot, P.J., and Wilder and M. J. Kelly, JJ. PER CURIAM. In this battery and nuisance suit, plaintiff Helga Rose appeals as of right the trial court's order granting defendants Terry and Katherine Braciszewski, and Michael Sinacola and Theresa Brawdy's motions for summary disposition and denying Rose's motion to amend her complaint. Because we conclude that the trial court properly dismissed Rose's claims for battery and nuisance and properly denied her motion to amend, we affirm. I. Basic Facts and Procedural History The parties in this case are all neighbors within Hamburg Township. Rose moved into the neighborhood in 2001 and her home sits to the immediate north of a lot owned by defendants Terry and Katherine Braciszewski. Terry and Katherine built a pole barn on this lot, but their home sits on a second lot directly west and across the street from the lot with their pole barn. In September of 2005, defendants Michael Sinacola and Theresa Brawdy moved into their home, which sits on a lot directly south of the lot with the Braciszewskis' pole barn. Before moving into her home, Rose was unaware that Hamburg Township permitted property owners to burn leaves and other yard waste. The township amended Ordinance No. 40 in 2003 to limit the burning of leaf and yard waste to the months of April and November. Under Ordinance No. 38, the township also prohibited the "keeping, maintaining, accumulating or storage of . . . [r]emnants of wood, . . . accumulations of . . . branches, leaves or yard clippings . . . with the exception of managed compost piles." In September of 2001, Rose approached Terry Braciszewski and asked him to stop burning leaves and yard waste because the smoke was entering her dining room. Thereafter, -1-

Rose reported several leaf fires started by defendants to the township fire department: three in November 2005, two in April 2006, and one in April 2007. On some of these occasions, Rose reported smoke in her house. Rose indicated that she reported other incidents, but there were apparently no incident reports for these complaints. Rose also stated that, starting in 2004, the Braciszewskis began running the cars in their pole barn for one to two hours at a time about two to three times per year. Rose claimed that the exhaust emissions from these cars entered her property. In January 2005 or 2006, Rose attended a township board meeting and complained about the leaf burning. The township supervisor investigated with the fire department and told Rose that burnings were "neighborly burning[s]." Rose understood that to mean that the township would permit the burnings. Rose sued defendants in June 2007. In her complaint, Rose alleged that defendants' open burnings caused smoke, fumes and debris to envelope her home and damage her property and her health and that Terry Braciszewski's running of his old cars for long periods of time caused emissions of smoke and fumes to drift upon her property damaging her property and her health. Rose alleged that these actions constituted assault and battery, trespass, and nuisance.1 Rose requested a preliminary injunction prohibiting defendants from conducting open burnings and from running their cars for long periods of time until the case was heard, a permanent injunction to enjoin defendants from conducting open burnings and from running their cars for long periods of time, and damages. After filing her complaint, Rose stipulated to the dismissal of her trespass claim. The trial court heard oral argument on Rose's motion for a preliminary injunction in August 2007. At the hearing, Rose informed the trial court that the burnings occur in April and November. The trial court noted that Ordinance No. 40D allows such burning. Rose argued that defendants' burnings were not in compliance with the ordinance and that the smoke was permanently damaging her health. Defendants argued that Rose's motion for injunctive relief should be denied because she could not prove the elements of assault and battery nor could she succeed on her nuisance claim. They also noted that there was no proof that their burnings caused Rose's health problems and that they must burn their leaves and debris two times each year in order to comply with Ordinance No. 38. The trial court denied Rose's motion because it was "very skeptical about the likelihood of the success on the merits" and it did not "see the irreparable harm." The trial court also determined that the balancing of factors favored defendants. In December 2007, the Braciszewskis moved for dismissal of Rose's claims under MCR 2.116(C)(7), (8), and (10). In January 2008, Sinacola and Brawdy also moved for summary disposition under MCR 2.116(C)(8) and (10). On January 28, 2008, Rose moved to amend her complaint to add a claim of intentional infliction of emotional distress.

Rose also alleged that the Braciszewskis falsely claimed to own the southern five feet of her property. However, this claim was resolved and is not at issue in this appeal.

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After a hearing on defendants' motions for summary disposition, the trial court dismissed Rose's assault and battery claim because Rose failed to prove the requisite intent. The trial court also dismissed the nuisance claim because the invasion is "sporadic, it's evanescent, it disappears and dissipates" and because Rose failed to prove "the type of significant impact or harm envisioned by the law." The trial court also denied Rose's motion to amend the complaint as futile. Rose moved for reconsideration, but the trial court denied the motion. This appeal followed. II. Preliminary Injunction Rose first argues that the trial court erred when it refused to issue a preliminary injunction prohibiting defendants from burning leaves on their property. We review a trial court's decision concerning injunctive relief for an abuse of discretion. Mich Coalition of State Employee Unions v Civil Service Comm, 465 Mich 212, 217; 634 NW2d 692 (2001). Under MCR 3.310(A)(1), unless otherwise provided by statute or court rule, an injunction may not be granted without a hearing. At this hearing, "the party seeking injunctive relief has the burden of establishing that a preliminary injunction should be issued . . . ." MCR 3.310(A)(4). In determining whether to issue a preliminary injunction, a court must consider four factors: (1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if the relief is not granted. . . . The trial court's decision must not be arbitrary and must be based on the facts of the particular case. [Thermatool Corp v Borzym, 227 Mich App 366, 376; 575 NW2d 334 (1998) (citations omitted).] At the hearing on Rose's motion for an injunction, the trial court found that there was no danger of irreparable injury from the activities about which Rose was complaining, that the balancing of the equities favored defendants, and that Rose's claims did not appear likely to prevail on the merits. The record available at the time of the hearing supported these findings. Rose's physician averred that further exposure to smoke "may" cause her irreparable injury. This averment was insufficient to establish a "real and imminent danger of irreparable injury," because the mere apprehension of future injury or damage cannot be the basis for injunctive relief. Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1, 11; 753 NW2d 595 (2008). Because there was no evidence that Rose would suffer irreparable harm, we cannot conclude that the trial court erred when it concluded that a balancing of the harms favored denying the motion for a preliminary injunction. Defendants noted that they burned their leaves as permitted by local ordinance in order to comply with the ordinance that prohibited the accumulation of yard waste. Likewise, given the nature of the claims, the trial court also had reason to believe that Rose would likely not be able to establish the elements of either a battery or nuisance. Consequently, the trial court did not abuse its discretion when it declined to issue a preliminary injunction. -3-

III. Summary Disposition Rose also argues that the trial court erred in granting defendants' motions for summary disposition. We review de novo a trial court's ruling on a motion for summary disposition. Waltz v Wyse, 469 Mich 642, 647; 677 NW2d 813 (2004). Summary disposition may be granted under MCR 2.116(C)(10) if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). A genuine issue of material fact exists when reasonable minds could differ on an issue after viewing all the evidence in the light most favorable to the nonmovant. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424; 751 NW2d 8 (2008).2 A. Nuisance Claim A traditional action for nuisance is grounded in the rights that accompany the ownership of real property; it seeks to vindicate a property owner's right to use and enjoy his or her property without interference by others. Adams v Cleveland Cliffs Iron Co, 237 Mich App 51, 57-59; 602 NW2d 215 (1999). However, not every interference with a property owner's use and enjoyment will be actionable: No one is entitled, in every location and circumstance, to absolute quiet, or to air utterly uncontaminated by any odor whatsoever in the use and enjoyment of his property; but when noises are unreasonable in degree, considering the neighborhood in which they occur and all attending circumstances, or when stenches contaminate the atmosphere to such an extent as to substantially impair the comfort or enjoyment of adjacent premises, then an actionable nuisance may be said to exist. [De Longpre v Carroll, 331 Mich 474, 476; 50 NW2d 132 (1951).] Accordingly, in order to warrant judicial intervention, the property owner must demonstrate that the activities substantially and unreasonably interfere with his use and enjoyment of his property. Adams, 237 Mich App at 67; see also Smith v Ann Arbor, 303 Mich 476, 484-485; 6 NW2d 752 (1942) (noting that, although the smoke and odors from burning leaves will not normally constitute a nuisance, if excessive they may be actionable). In this case, Rose failed to establish that defendants' burning of yard waste and running of automobiles substantially and unreasonably interfered with her right to use her property. The evidence submitted to the trial court shows that defendants only burn yard waste a few times each year. Further, although the smoke and fumes from the burning yard waste will sometimes cross onto Rose's property, Rose also admitted that sometimes the smoke will not enter her

Because the trial court considered evidentiary submissions by the parties in deciding the motions for summary disposition, we shall evaluate the motion under MCR 2.116(C)(10). Further, we did not consider the affidavit submitted with Rose's motion for reconsideration because it was not properly before the trial court on the motions for summary disposition. Quinto, 451 Mich at 366-367 n 5.

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property because the wind will be blowing in a different direction. Rose also indicated that the effects of the smoke--even when it does affect her property--are sporadic and dissipates with time. Similarly, the evidence demonstrated that the Braciszewskis running of their automobiles occurs for a couple of hours during two or three days per year. Thus, the undisputed evidence shows that the activities about which Rose complains are infrequent and, even when the activities actually affect Rose, the effects are intermittent and varying. Moreover, the fact that Rose might be particularly susceptible to the smoke and fumes does not transform an activity that would otherwise be permissible under a totality of the circumstances into a nuisance. As our Supreme Court has explained, the test for a nuisance is objective: an activity will not rise to the level of a nuisance unless it would cause actual physical discomfort to persons of ordinary sensibilities. Smith v Western Wayne Co Conservation Association, 380 Mich 526, 536; 158 NW2d 463 (1968); see also Restatement (Second) of Torts,

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