City of Luna Pier v. Lake Erie Landowners

Decision Date28 April 1989
Docket NumberNo. 102245,102245
Citation438 N.W.2d 636,175 Mich.App. 430
PartiesCITY OF LUNA PIER, a Michigan municipal corporation, Plaintiff-Appellee, v. LAKE ERIE LANDOWNERS In the City of Luna Pier or Landowners in the City of Luna Pier Claiming Riparian Rights in Lake Erie Including Clyde Evans, Philip Uhl, Kenneth Meyerholtz, Albert McMullien, Edward L. Shepler, Sr., Richard Welton, Kenneth Jurkinski, Danny Rochiak, Eldin H. Erwin, Clifford Harbaugh, Martha Harbaugh, Louis Liptack, named defendants and being representative of all other owners and occupants of lands along Lake Erie, LaPointe Drain and Muddy Creek, Defendants, and Clyde Craig and Harry Ewell, Defendants-Appellants. 175 Mich.App. 430, 438 N.W.2d 636
CourtCourt of Appeal of Michigan — District of US

[175 MICHAPP 431] Braunlich, Russow & Braunlich, P.C. by William J. Braunlich, Jr., Monroe, for City of Luna Pier.

Krawetz & Spiros by Stanley M. Krawetz, Lambertville, for defendant Harry Ewell.

Leslie J. Nearpass, Temperance, for defendant Clyde Craig.

Before WEAVER, P.J., and MAHER and SIMON *, JJ.

SIMON, Judge.

Defendants Clyde Craig and Harvey Ewell appeal as of right from the lower court order denying their motion for attorney fees under the Uniform Condemnation Procedures Act. We reverse.

Plaintiff, City of Luna Pier, is partially located on Lake Erie. In March of 1985, in response to unprecedented high water levels and spring storm conditions which created an imminent risk of flooding, plaintiff entered onto defendants' property to construct and maintain increased flood control protection. Plaintiff filed a complaint on August 5, 1985, seeking the right to take this action. While reference was made in the complaint to the Uniform Condemnation Procedures Act [175 MICHAPP 432] (UCPA), M.C.L. Sec. 213.51 et seq.; M.S.A. Sec. 8.265(1) et seq., the basis of plaintiff's request for relief was its police powers.

The trial court granted plaintiff its requested relief, and all defendants except for Ewell and Craig consented to the judgment on certain settlement terms. Ewell and Craig appealed to this Court on grounds that the lower court proceedings did not conform to the UCPA. In an unpublished opinion per curiam decided January 29, 1987 (Docket No. 86990), this Court held that plaintiff's taking Ewell's property was an inverse condemnation, and remanded for determination of appropriate compensation. Plaintiff had abandoned its request for entry onto Craig's property, therefore his appeal was moot.

Ewell and Craig now assert that the trial court erred by denying their motion for an award of attorney fees under the UCPA. We agree.

Attorney fees may not be awarded in a condemnation action unless specifically authorized by statute or court rule. Canton Twp. v. Kaufman, 87 Mich.App. 719, 720, 276 N.W.2d 505 (1979), lv. den. 408 Mich. 858 (1980). In a condemnation proceeding under the UCPA, the award of attorney fees is authorized by M.C.L. Sec. 213.66(3); M.S.A. Sec. 8.265(16)(3), which provides:

"If the amount finally determined to be just compensation for the property acquired exceeds the amount of the written offer as defined in section 5, the court shall order reimbursement in whole or in part to the owner by the agency of the owner's reasonable attorney's fees, but not in excess of 1/3 of the amount by which the ultimate award exceeds the agency's written offer as defined by section 5. The reasonableness of the owner's attorney's fees shall be determined by the court."

[175 MICHAPP 433] Our threshold question is whether this provision applies to the instant action since it was an inverse condemnation rather than an action initiated under the UCPA. The UCPA provides that "all actions for the acquisition of property by an agency under the power of eminent domain shall be ... governed by this act." M.C.L. Sec. 213.75(1); M.S.A. Sec. 8.265(25)(1). Although plaintiff's complaint purported to exercise its police powers, this Court in its prior opinion regarding this cause ruled that plaintiff's action was an inverse condemnation pursuant to its powers of eminent domain. Under the clear language of the UCPA, it applies to the instant action, since plaintiff was an agency seeking to acquire property pursuant to its powers of eminent domain.

We are mindful of our decision in Lim v. Dep't of Transportation, 167 Mich.App. 751, 423 N.W.2d 343 (1988), wherein we held that the UCPA has no application to inverse condemnation actions initiated by aggrieved property owners. Id., at p. 755, 423 N.W.2d 343. However, because the instant inverse condemnation action was initiated by plaintiff, a government agency, the provisions of the UCPA apply.

Accordingly, the attorney fee provisions of the UCPA applied to the...

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3 cases
  • Solko v. State Roads Com'n of State Highway Admin.
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1989
    ...(1983) (absent statutory provision, condemnee is not entitled to reimbursement for counsel fees); City of Luna Pier v. Lake Erie Landowners, 175 Mich.App. 430, 438 N.W.2d 636, 637 (1989) (attorney's fees may not be awarded unless specifically authorized by statute or court rule); Freeborn C......
  • City of Kalamazoo v. KTS Industries, Inc.
    • United States
    • Court of Appeal of Michigan — District of US
    • 29 Septiembre 2004
    ...as a city, qualifies as such an agency. See Edward Rose Realty, supra at 632-633, 502 N.W.2d 638; Luna Pier v. Lake Erie Landowners, 175 Mich.App. 430, 433, 438 N.W.2d 636 (1989). Unlike the CSAPCA, the UCPA "does not confer the power of eminent domain" on a city, but rather "provides stand......
  • City of Detroit v. Lucas, Docket No. 109107
    • United States
    • Court of Appeal of Michigan — District of US
    • 26 Octubre 1989
    ...of property by eminent domain are governed by the UCPA. M.C.L. Sec. 213.75(1); M.S.A. Sec. 8.265(15)(1); Luna Pier v. Lake Erie Landowners, 175 Mich.App. 430, 438 N.W.2d 636 (1989). M.C.L. Sec. 213.56; M.S.A. Sec. 8.265(6) provides the vehicle by which property owners can challenge the nece......

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