Wolfenbarger v. Wright

336 Mich.App. 1

969 N.W.2d 518

Terry WOLFENBARGER and Marla Wolfenbarger, Plaintiffs-Appellants,

v. Frank WRIGHT, Jr., Defendant-Appellee,andSteven Lewis, Defendant.

No. 350668

Court of Appeals of Michigan.

Submitted February 4, 2021, at Detroit.

Decided February 11, 2021, at 9:00 a.m.

Rasor Law Firm, PLLC (by James B. Rasor, Royal Oak, and Andrew J. Laurila ) for Terry and Marla Wolfenbarger.

DeLoof, Dever, Eby, Wright, Milliman, Bourque & Issa, PLLC (by Thomas M. Wright, Ann Arbor) for Frank Wright, Jr.

Before: Cavanagh, P.J., and Servitto and Cameron, JJ.

Cavanagh, P.J. Plaintiffs appeal as of right orders (1) granting partial summary disposition in favor of defendant Frank Wright, Jr., and dismissing plaintiffs' claims of trespass and nuisance, (2) denying plaintiffs' motion for leave to amend their complaint, (3) denying plaintiffs' motion for entry of a verified bill of costs, and (4) denying plaintiffs' renewed motion for remediation. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Plaintiffs, Terry and Marla Wolfenbarger, purchased the property located on Foster Lane in LaSalle Township in 1990. Over several years, plaintiffs planted 280 trees on their property. Defendant purchased nearby property in 1995. In approximately 2008, Steven Lewis purchased the lot west of and adjacent to plaintiffs.¹ Because of the vastness of defendant's property interests, it appears he owned land to the west of Lewis, to the south of Lewis and plaintiffs, and to the east of plaintiffs.

According to plaintiffs, they had no issues with water on their property until after defendant constructed a new road or driveway on his property in March 2013. After that time, water started collecting in the southeast corner of their land, oversaturating and thus killing the trees that had been planted there. As of March 2015, 46 trees had died, and as of trial, 79 trees had died. Jeffrey Thierbach, an arborist, testified that all the trees on plaintiffs' land were affected in some manner. Plaintiffs also alleged that their basement started cracking after 2013. They attributed this damage to defendant's actions as well. In addition to constructing the driveway or roadway in early 2013, defendant also created a pond on his land in the latter half of 2013 that, according to plaintiffs' expert, acted to raise the level of the water table by six feet in the area. Plaintiffs alleged that this resulted in the water table now being several feet higher than the bottom of plaintiffs' basement, and another expert opined that the damage plaintiffs sustained in their basement was consistent with a high water table.

Plaintiffs filed a lawsuit against defendant, alleging claims of negligence, trespass, and nuisance. Plaintiffs' claims in the complaint were based on defendant's construction of a new road on his property and defendant's placement of a pile of dirt on his property. Plaintiffs alleged that these new features, in essence, prevented or dammed the water from leaving their property.

Defendant moved for partial summary disposition, arguing that the trespass and nuisance claims should be dismissed. Defendant maintained that although plaintiffs had listed three separate counts against defendant, the gravamen of plaintiffs' complaint was negligence. And because the claim sounded in negligence, defendant argued that plaintiffs were barred from seeking any noneconomic damages.

Plaintiffs responded, arguing that they had sufficiently alleged intentional conduct by defendant to support their claim of trespass. Plaintiffs also argued that they had sufficiently pleaded a nuisance cause of action because they alleged that their property rights had been interfered with by defendant's actions, i.e., by his building of a road and hill that increased the flow of water onto plaintiffs' property. And because these claims were separate and distinct from a negligence claim, plaintiffs maintained that they are allowable. Further, because the tort claims of trespass and nuisance were valid, plaintiffs argued, they were entitled to the recovery of noneconomic damages.

At the motion hearing, the parties argued consistently with their briefs, except that plaintiffs changed their argument with respect to the nuisance claim. Plaintiffs' counsel asserted at the hearing that the nuisance claim was based on the fact that defendant was running a large-scale commercial business on his property that created excess noise, traffic, and dirt. The trial court noted that although defendant's motion was purportedly being brought under both MCR 2.116(C)(8) and (C)(10), no evidence had been submitted, so the court was treating the motion as having been brought under MCR 2.116(C)(8). The court stated:

I did go right to the complaint and I looked at it, and I will agree that there is one paragraph that says that this stuff was done intentionally on the trespass claim, but there's nothing else to support that allegation in the complaint in the least bit. It's just an allegation made that this was done intentional [sic] on the trespass claim and even on the nuisance claim.

We look at paragraph four, which is very telling in this case, in the complaint, this matter involves damages to real and personal property owned by the plaintiffs. That is the negligence claim and that's exactly what this is, a negligen[ce] claim that something was done on the defendant's property that have [sic] impacted the plaintiffs^['^] property, and that's all that this case is.

I said this from the beginning of this case, if this is so that the defendants [sic] did something that impacted the plaintiffs here, the Court's obligation here is remediation and bring the plaintiffs back whole. That's exactly what the Price [v. High Pointe Oil Co., Inc. , 493 Mich. 238, 828 N.W.2d 660 (2013) ] case says here, that's what this case is. This is a Price case. I am 100 percent convinced of that and the pleadings show that to this Court. It is not just sufficient in this Court's mind to merely say it was done intentionally to try to support a trespass claim or even a negligen[ce] claim, and I cannot find that.

The trial court consequently granted defendant's motion and dismissed plaintiffs' claims of trespass and nuisance. And because only the negligence claim was remaining, the court also dismissed plaintiffs' requests for noneconomic damages.

Plaintiffs moved for reconsideration. Plaintiffs argued that Price only addressed whether noneconomic damages were available in a negligence case—it did not state that one cannot allege claims of negligence, trespass, and nuisance simultaneously—and that other cases show it is indeed permissible to allege these claims in one complaint. Plaintiffs also averred in that motion, as well as in a separate motion for leave to file an amended complaint, that assuming they had failed to plead sufficient facts to support their claims of trespass and nuisance, they should be allowed to amend their complaint—and a proposed amended complaint was attached.

At the motion hearing, the trial court acknowledged that a party can bring claims of negligence, trespass, and nuisance in the same action. Despite this, the court ruled:

This Court already alluded to these allegations were already in the original complaint and the Court granted Summary Disposition, which eliminated the two causes of action, which plaintiff [sic] now seeks to bring back in. So, frankly, in the Court's opinion, the recourse there is the Court of Appeals, if you want those back in. It's not an amendment of the complaint. The evidence before the Court now does not justify bringing those back in. This Court has reviewed everything that has been submitted.

* * * This matter is scheduled for trial this next coming Monday and I am not going to grant the Motion to Amend the Complaint. It comes extremely way too late.

Let me point something else out to plaintiff [sic], because plaintiff [sic] is bound by everything that plaintiff [sic] files in this action, it is binding on them. I'll refer you to Plaintiff's [sic] Motion to Exempt the Case from Case Evaluation, Extend Discovery, and Extend Discovery Order, which was filed on November 23, 2015, paragraph seven of that motion states, because plaintiffs^['^] claims involve equitable relief, this matter should be removed from Case Evaluation as damages would insufficient/inappropriate to remedy this matter, and that should read would be insufficient/inappropriate to remedy this matter. Plaintiff [sic] has already conceded there are not those kind of damages in this case; that's the Court's position here.

I deny the Motion to Amend the Complaint.

The trial court then added that it had reviewed the motion for reconsideration and found no palpable error, and therefore, that motion was also denied. Plaintiffs sought leave to appeal in this Court, which was denied. Wolfenbarger v. Wright , unpublished order of the Court of Appeals, entered August 2, 2017 (Docket No. 338734).

Trial started on March 26, 2018 and ended on April 2, 2018. At the close of proofs, plaintiffs moved to amend their complaint to include claims of trespass and nuisance. Plaintiffs argued that amendment was proper because it would comport with the evidence that was introduced at trial. The court denied the motion, saying, "That's the issue you took up to the Court of Appeals which stayed the prior trial. No, I'm not gonna grant that motion."

The jury returned a verdict in favor of plaintiffs on their claim of negligence. Although plaintiffs had requested a minimum of $429,850 to repair their basement and replace the trees, the jury awarded a total of $50,000 in damages.

On August 21, 2018, plaintiffs filed their verified bill of costs, seeking more than $46,000 under MCR 2.625. However, plaintiffs did not serve the bill of costs on defendant. In response to plaintiffs' subsequent motion for entry of the verified bill of costs, defendant objected and argued that the failure of plaintiffs to serve defendan...