Creek v. Debolt

1

CITY OF BATTLE CREEK, Plaintiff-Appellee, v. BRYANT C. DEBOLT, SR. and JULYETTE G. JACOBS, Trustees of the BRYANT C. DEBOLT REVOCABLE TRUST, Defendants-Appellants.

No. 358617

Court of Appeals of Michigan

February 16, 2023

UNPUBLISHED

Calhoun Circuit Court LC No. 2019-003467-CZ

Before: Douglas B. Shapiro, P.J., and Anica Letica and Kathleen A. Feeney, JJ.

PER CURIAM.

Defendants Bryant C. DeBolt, Sr., and Julyette G. Jacobs, as Trustees of the Bryant C. DeBolt Revocable Trust,^[1] appeal as of right the order determining the amount of damages and costs awarded in favor of plaintiff, City of Battle Creek, to abate and remove a nuisance. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

On November 27, 2019, plaintiff filed a complaint to abate a public nuisance. It was alleged that defendant owned and controlled property located at 34 E. Michigan Avenue, Battle Creek, Michigan. The property consisted of a three-story building fronting E. Michigan Avenue and a six-story building fronting S. Monroe Street. In October 2018, plaintiff inspected the property and found maintenance code violations pertaining to wood exposed to the elements and the need to repair failing brick and stucco siding on the east side. When the violations were not corrected by June 2019, a ticket was issued in July 2019. Plaintiff alleged that it received pictures of the property in September 2019, and was notified that the property was quickly deteriorating and posed a hazard to pedestrians and occupants of surrounding buildings. Specifically, plaintiff's chief building official, Richard Bolek, observed that a portion of the roof was missing and was open to the elements; the fifth and sixth floors had collapsed and "pancaked" the fourth floor; the collapsed floors compromised the integrity of the entire structure; a portion of the north wall had detached and fallen upon the three-story section and neighboring properties; portions of the north wall and supporting structure were compromised from rot and decay; the exterior was buckling and cracked; and the six-story portion was in imminent danger of collapse.

Plaintiff alleged that Consumers Energy had to shut down the power to prevent electrical damage, and this resulted in a loss of power to the entire block, including neighboring properties, on September 6, 2019. Plaintiff asserted that it installed a temporary fence around the subject and adjacent buildings as a safety measure at its own expense. On September 9, 2019, electrical service was restored to the neighboring properties. It was submitted that the property condition was so severe that demolition was recommended. On October 4, 2019, plaintiff issued an imminent danger notice advising that the structure was unsafe and constituted a dangerous building according to plaintiff's ordinance, § 1454.01(d). On October 21, 2019, a hearing officer declared the property dangerous and ordered defendant to repair or demolish it by November 19, 2019. Because defendant did not comply, he was advised that plaintiff would act. Consequently, plaintiff filed the underlying one-count complaint alleging nuisance and requested a temporary restraining order requiring that defendant repair or demolish within 20 days. If defendant failed to abate the nuisance, it was requested that the court authorize plaintiff to demolish the property, place a lien, and acquire enforcement rights for the costs of demolition.^[2]

The trial court entered an order for preliminary injunction that precluded disposal or encumbrance of defendant's property. In August 2020, plaintiff moved for summary disposition under MCR 2.116(C)(10), requesting that the court declare the property a nuisance and issue an order protecting taxpayers from the costs of demotion and abatement. Defendant opposed the request, alleging the dispositive motion was premature and disingenuous because there were ongoing meetings and meaningful efforts to resolve the problems with the property. In December 2020, the trial court entered an order granting plaintiff's motion. The written order stated that "there is no genuine issue of material fact that the six-story tower at 34 E. Michigan Avenue is a nuisance pursuant to MCL 600.2940, and the tower has been a nuisance since 2019." It was ordered that the property shall be demolished and the nuisance abated and that defendant shall provide a safety plan to enter the property and remove personal property. The order further provided that: "Defendant shall bear all expenses to abate the nuisance including, but not limited to, demolition costs and expenses incurred by the Plaintiff to secure the Property."^[3]

At a subsequent hearing, the trial court took testimony and received a report to address how the demolition would occur and whether it was safe to enter the premises to remove personal property. The trial court concluded that "demolition of the tower portion of the building may proceed forthwith." It further determined that the tower portion included the ten-feet that protruded into the middle building despite being part of the tower. The demolition was to be completed in a manner to leave the middle structure intact if possible. The trial court refused to permit defendant's entry into the building to remove personal items because of the risk of collapse.

In March 2021, a hearing was held on plaintiff's motion for additional costs and to establish a payment deadline. Plaintiff alleged that a wall covering was necessary on the exposed walls of the building to ensure the safety of the neighboring properties and the public in general. It was submitted that the rear wall used to be an interior wall between the middle portion of the building and the tower. Plaintiff asserted that the wall covering on the rear wall was governed by the trial court's prior order to abate the nuisance. And, any changes to the side wall were incidental to the placement of the temporary wall covering. It was argued that the authority to abate the nuisance by performing this work was covered by MCL 125.523, and local ordinance § 1454. Plaintiff also alleged that defendant improperly entered the premises.

In response, defendant disputed that $132,000 was necessary to secure the rear wall, contending that the demolition company, SC Environmental, failed to properly support certain walls and created the issue now deemed problematic by plaintiff. It was also asserted that the demolition crew converted the personal property of defendant and vandalized and removed the doors on antique bank safes to scrap for valuables. Defendant sought to depose the demolition company employees to address what happened to other property, such as scaffolding and I-beams, and to retain and depose experts. He requested an evidentiary hearing be scheduled with an allowance for discovery.

The trial court concluded that the failure to shore up the subject wall would create an additional nuisance to the middle structure, and it granted plaintiff's request. It determined that the expense shall be borne by defendant as part of the nuisance-abatement action. The trial court advised that defendant could not enter the property until the work was complete and the property was structurally sound. The trial court concluded that an evidentiary hearing was required to address payment and timing. It declined to grant discovery at that time.

A continuing dispute between the parties was whether defendant violated the court's order and entered the unsafe premises and whether plaintiff's agents or employees converted the personal property in the building. However, the trial court did not conduct a hearing regarding any unauthorized entry by defendant and noted that defendant did not file a counterclaim for conversion. Consequently, the trial court declined to address those issues.

The trial court conducted multiple hearings and received testimony regarding the work performed at the property, any personal property taken therefrom, and the payment for the work performed. Charles Douglas Adams, director of operations for S.C. Environmental, oversaw the demolition and cleanup of the property. The demolition crew did their best to secure the property. Temporary fencing surrounded the area, the equipment that could not be removed was locked, and the trucks were stored at a separate location. Adams was asked to look for the bank safes possibly stored in the basement at the premises and found five or six safes on the first floor. The safes were set aside in the courtyard area, and he denied that the demolition crew removed the doors of the safes. Adams testified that the company was not permitted to take salvage, items that could be reused at the premises, but was entitled to remove scrap. If items were taken for scrap, they were not placed in a landfill, and the demolition company was entitled to retain the scrap proceeds. He advised that this was the standard in this type of contract. The parties stipulated that S.C. Environmental received $3,488.84 from scrap. Adams denied that the demolition crew removed items such as scaffolding, safe doors, I-beams, and an antique machine gun.

Ted Dearing, plaintiff's assistant city manager, was familiar with the events pertaining to defendant's E. Michigan Avenue property. He testified that, after approval by the city commission, plaintiff engaged S.C. Environmental to conduct the demolition of the tower to abate the nuisance and the final invoice was for $184,624. Plaintiff also paid WJE $39,811.49 for engineering services. In addition to the payment to those two entities, there were expenses incurred by plaintiff to have city personnel monitor and work on the project. These expenses included site visits, material costs fencing, and other miscellaneous costs. The personnel necessary to address...