Easement/Trespassing

[Tax Counsel]

Should i file a suit in small claims against neighbor to get reimbursed attorney and filing fees ???

Normally you file a claim for reimbursement of attorney's fees with the court that decided the case. That's because that judge is already familiar with what occurred in the case and is best situated to determine if your opponent should be required to reimburse you and how much you should get reimbursed.

The first issue you'd need to do is identify a rule or contract provision that entitles you to attorney's fees. The general rule in this country is that each party bears his own lawyer's fees and costs regardless of the outcome of the case. There are, however, some exceptions that. Putting aside the contract cases, as this isn't a contract dispute, you'd need to find a statute, regulation, or case law that says you are entitled to attorney's fees in your situation.

If the reason that the case was dismissed was that it was frivilous that would typically be a situation in which you may get awarded attorney's fees. But as you've described things so far, it isn't obvious to me that the case against you was truly frivilous. Do you know why the lawsuit was dismissed? That's going to be important.

Second, generally parties seeking reimbursement of legal fees and costs often do not get all of what they seek even after they've found a rule that gives them grounds to seek reimbursement. The problem is that you chose the lawyer, you agreed to the lawyer's fee, and you and the lawyer agreed upon the work the lawyer did. The other party had no input into those decisions and thus no chance to reduce the costs you incurred. The other side should not have to pay more than a typical client would in that situation — if you agreed to a higher than average hourly rate, for example, the defendant shouldn't have to pay for your high price choice when the defendant had no role in selecting your lawyer.

As a result of that problem, courts generally try to base the award computations on objective factors independent of what you actually paid. In Michigan, like many other states, use what is known as the Lodestar rule to make that determination.. The short version of the rule is that the judge determines what a reasonable hourly rate is for the kind of lawyer needed for the case (lawyers that need to have specialized knowledge beyond that of a generalist attorney will usually get more, like patent lawyers) and the judge determines what work was reasonable for the attorney to do and how long it should have taken for the lawyer to do it. In particular, Michigan trial courts are directed to consider the following in their attorney fee computations:

1. the experience, reputation, and ability of the lawyer or lawyers performing the services,
2. the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,
3. the amount in question and the results obtained,
4. the expenses incurred,
5. the nature and length of the professional relationship with the client,
6. the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer,
7. the time limitations imposed by the client or by the circumstances, and
8. whether the fee is fixed or contingent.

These factors are not exclusive, and the trial court may consider any additional relevant factors. In order to facilitate appellate review, the trial court should briefly discuss its view of each of the factors above on the record and justify the relevance and use of any additional factors.
​

The History of Attorney Fee Computations in Michigan, Michigan Bar Journal, Feb. 2023.

In my state you could not pursue a claim for attorney's fees paid as a stand alone claim in small claims court. I don't know if Michigan would allow that, but you'll need to find out for sure before you start filing your complaint. You might need to bring the claim to the same court that handled the case against you, or if you can do it as a stand alone claim, you might have to do it in a court other than small claims. You'll need to determine the proper court in your state to pursue this and whether you do it as a motion (in the court that heard the case that resulted in the fees) or as a new complaint (pursuing it in some other court).

So start by finding out if there is some rule in Michigan law that allows you to pursue attorney's fees given the type of case you had and what the reason was for the dimissal. If there is a path to claim attorney's fees, be aware that you may not get all of what you seek because it's not as simple as showing the judge the lawyer's bill and the check you gave the lawyer to pay it. The amount awarded does not make that a big factor in what you get.

 

[Tax Counsel]

You would have to first win the neighbor's lawsuit and then prove that he filed a frivolous lawsuit.

No. If the case was frivolous it typically wouldn't make it to trial or summary judgment such that there is a winner or loser on the merits. Generally the determination of a frivolous case is made at the start of litigation because the whole purpose is to avoid wasting court time on frivolous matters. The basis for the dismissal in this case would be an important factor in determining whether the OP might have a claim to make for attorney's fees.

 

[welkin]

If I remember correctly from your post (#46), your attorney said that there was no legal easement granted to the back neighbor and that because the SOL has run (15 years of use) that a judge would not extinguish the right of the neighbor to use your property. So you filing suit to eject the trespasser is pointless.

But the fact still remains that there is no perfected easement for your neighbor to us your property. Perfection of the easement will only occur when a court says that your neighbor has a prescriptive easement to continue using the property.

If you want to get fast resolution to the situation, block the driveway at a point where it is entirely on your property. That would result, most likely, in your neighbor having to sue you or coming to some sort of agreement with you to pay for the easement.

Of course, this is not legal advice and you should speak to your attorney before doing anything of the sort. But it is something that I might do in your situation.

 

[adjusterjack]

If you want to get fast resolution to the situation, block the driveway at a point where it is entirely on your property. That would result, most likely, in your neighbor having to sue you or coming to some sort of agreement with you to pay for the easement.

I agree. I made a similar suggestion earlier.

 

[adjusterjack]

New Twist,
Now i get a letter of dismissal. Dropping suit, please sign and return.
Soooo, no $8500 and no resolution to easement issue and $2500 paid to attorney gone. ???
Wow, wtf !!!

I printed out your photo and added a few things. First of all, the car where I wrote "car." Seems clear enough that, if you fence in your property along your property lines he would have plenty of room to access his property along the other side of your fence.

Whatever those spots are at the question mark, they can be moved if they are in the way.

Maybe he's gotten a taste of attorney fees and won't sue again once he sees that he can still drive through to his property.

If you get sued again it may be easy enough to show that there's no need for an easement through your property because he has sufficient access.

Bottom line. Until you DO something, he can drive across your property with impunity.

And, yeah, it could cost you lots of money to stop him. Money that you won't get back.

 

[tim m larabel]

Thanks Judge and everyone, i appreciate your thoughts. Ya , i remember the drop a load of boulders on the easement force him to take you to court. Pretty sure he would get a bobcat and move the rocks around his property not giving a shit who owns the rocks.
One small piece gold that i have that he wants is to have that natural gas line run to his house DTE won't do it until the land dispute is resolved. That's what brought him to the mediation table. Then started talking a fool and making threats.
Ideally, you talk to your neighbor and work it out. He has shown time and time again that's not possible. Maybe I'll try talking to her over the next couple of years. No i don't want to spend 15k to prove I'm right

 

[tim m larabel]

Update 6-4-24
Waiting for neighbor to sign papers. Doesn't seem to be much of a payoff for him. He's not in any hurry to sign. Coming up on a year now.
Started putting up a fence along driveway. My attorney told me to stop. We don't want to piss him off.
So then it becomes, what's my level of tolerance. Do i tell my attorney that I'm tired of waiting on a neighbor that has done nothing but harass us. I'm done. Or I'll wait til july 1st. That's over a year that this frivolous law suit has been going on. At that point say I'm done. His payoff and mine are done.
Thoughts
p.s. previous posts have all details

 

[adjusterjack]

What papers? What agreement have you reached with the neighbor?

 

[tim m larabel]

I give neighbor permission to drive over my land. I get some money from title company. (Large amount of money going to attorney fees)
Neighbor gets permission, and a place to run natural gas line and no future legal action.

 

[army judge]

I give neighbor permission to drive over my land. I get some money from title company. (Large amount of money going to attorney fees)
Neighbor gets permission, and a place to run natural gas line and no future legal action.

Consider yourself victorious.

Victories are often nonexistent.

Celebrate your recent triumph.

 

[tim m larabel]

Also, i believe the agreement gives him the ability to sell his house. Supposedidly, you can not sell a house without a legal driveway
I would love to feel victorious. Neighbor hasn't signed anything yet. They are experts at stonewalling. That's why i say there must not be much of a payoff in his eyes.
Meanwhile, i have projects I'm sitting on because I don't want to piss him off. ??
How long do we wait for this idiot ???

 

[army judge]

How long do we wait for this idiot ???

I'd be patient while planning what I'd do when all of that beautiful moola hits my bank account.

 

[tim m larabel]

Wanted to add, we here in Michigan have short construction season. June is going fast. That leaves july and August. Not alot of time

 

[tim m larabel]

I'd be patient while planning what I'd do when all of that beautiful moola hits my bank account.

You have a way of hitting the nail on the head judge. Thnx

 

[army judge]

You have a way of hitting the nail on the head judge. Thnx

I've been told that many times over the past decades.
Anything that I've accomplished in my lifetime, I owe to my parents, Charles and Mildred. Mom and Dad encouraged and supported me throughout my life. My mother began teaching me to read beginning at age 2. She used the Bible, Dick and Jane Readers, an old McGuffey's reader, and labels on household products.
I could read at age 3, and print by age 4. She also taught me subtraction and addition, and I mastered multiplication and division by age 5.

Mother was a teacher, and stopped teaching/working until I started school at age 5. I owe her everything, because without her tutelage, and love, I'd likely have ended up a failure. Mother's motto was, "If others can, you can, too!"

I miss her. I'll never forget her and dad.

 

[welkin]

How long do we wait for this idiot ???

I give neighbor permission to drive over my land.

I assume that you mean that permission to drive over your land is what the agreement (that he hasn't signed) says or do you mean that you have verbally given him permission, in the pendency of settling the case? If it is the latter, I would not have done that. Although, permission given can always be revoked.

My advice would be to tell your attorney to give the neighbor (in writing) a deadline certain to sign, pay, and have the case settled. Then record the court order and/or easement agreement. If the date is not met, rescind the offer and do what you want with the property. Be sure to consult with your attorney before you do anything that can't be easily undone. Sometimes you have to punch the bully to get him to get the message.

 

[tim m larabel]

I wouldn't give him the credit of a bully. He's more of just an idiot.
I'm separating the easements now. One for egress and ingress. And a second negotiation for a utility easement.
Driveway will be one price. Gas line will be another price.
And I'm going ahead with putting my fence up that twp approved 3 mths ago. Also going ahead with erecting a garage/out bldg
Should've signed when he had the chance. Idiot

 

[tim m larabel]

Also, I've never heard of someone holding off on fences and garage. Attorney said it could blow up the deal. What deal. ?? There is no deal. He's an idiot and I'm an idiot believing there's a deal that could be blown up

 

[Foamback]

How can you have separate ingress and egress easement?

 

[tim m larabel]

I've been told that many times over the past decades.
Anything that I've accomplished in my lifetime, I owe to my parents, Charles and Mildred. Mom and Dad encouraged and supported me throughout my life. My mother began teaching me to read beginning at age 2. She used the Bible, Dick and Jane Readers, an old McGuffey's reader, and labels on household products.
I could read at age 3, and print by age 4. She also taught me subtraction and addition, and I mastered multiplication and division by age 5.

Mother was a teacher, and stopped teaching/working until I started school at age 5. I owe her everything, because without her tutelage, and love, I'd likely have ended up a failure. Mother's motto was, "If others can, you can, too!"

I miss her. I'll never forget her and dad.

Hey judge.
My attorney told me no judge is going to move that driveway after they've been using it for 16 years.
I maintain that they possessed it illegally. You can not adversly possess state land. I don't care if it's a few feet or a few acres. No means no. Doesn't it ???
As far as statute of limitations, the time to do the right thing is always the right time.
Am i wrong judge ??
Also, it would only take an excavator a day to move that driveway onto the neighbors to north where it belongs. After all, that's the neighbors who they have a contract with.
Thanks judge