Dorfman v. Department of Transp.

• Decision Date: 02 February 1987
• Docket Number: Docket No. 83902
• Citation: 399 N.W.2d 437,155 Mich.App. 57
• Parties: Stanley DORFMAN and Marilyn Dorfman, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION and John P. Woodford, both individually and in his capacity as Director of Highways and Transportation of the State, jointly and severally, Defendants- Appellees. 155 Mich.App. 57, 399 N.W.2d 437
• Court: Court of Appeal of Michigan — District of US

Page 437

399 N.W.2d 437

Stanley DORFMAN and Marilyn Dorfman, on behalf of themselves and all other persons similarly situated Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION and John P. Woodford, both individually and in his capacity as Director of Highways and Transportation of the State, jointly and severally Defendants- Appellees.

Docket No. 83902.

155 Mich.App. 57, 399 N.W.2d 437

Court of Appeals of Michigan.

Submitted July 30, 1986.

Decided Oct. 6, 1986.

Released for Publication Feb. 2, 1987.

[155 MICHAPP 59] Mason, Steinhardt & Jacobs, P.C. (by Paul Owen Ashba and Helene M. Levey), Southfield, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Patrick F. Isom, Ronald F. Rose, and John M. Roche, Asst. Attys. Gen., for defendants-appellees.

Before SULLIVAN, P.J., and ALLEN and J.T. KALLMAN, ^* JJ.

ALLEN, Judge.

In this appeal as of right, plaintiffs challenge a March 6, 1985, order which dismissed their 42 U.S.C. Sec. 1983 claim with prejudice on the ground that the claim was moot. Plaintiffs concede that, pursuant to the resolution of condemnation proceedings instigated by defendant in 1982, they had already attained all the relief they desired, i.e., just compensation for their property rights. However, plaintiffs' Sec. 1983 claim was never specifically adjudicated. A related claim for declaratory and injunctive relief was resolved in plaintiffs' favor before plaintiffs amended their complaint to plead the civil rights claim. Based on this related claim, plaintiffs assert that they should be deemed "prevailing parties" on their Sec. 1983 claim and awarded attorney fees under 42 U.S.C. Sec. 1988.

This is the second lawsuit between these parties relative to the construction of the I-696 freeway through the McGiverin-Haldeman Huntington Woods Manor Subdivision. Plaintiffs owned real property in the subdivision and resided there. Defendants acquired some subdivision lots by condemnation[155 MICHAPP 60] or purchase in preparation for the building of the freeway. In 1972, plaintiffs brought a class action against defendant, the Michigan Department of Transportation (MDOT), seeking a declaratory judgment to determine their rights with respect to a 1958 restrictive covenant. The covenant had been signed by twenty-two lot owners and limited the use of twenty-two lots which had been acquired by defendant to single-family residential use. The covenant also provided that the benefit of the covenant would run to other subdivision landowners whose land was used for single-family dwelling purposes. The trial court held that the plaintiffs had the legal right to enforce their interests in this restrictive covenant even though they were not signatory parties to the agreement. This Court affirmed. Dorfman v. State Highway Dep't, 66 Mich.App. 1, 238 N.W.2d 395 (1975). The primary import of this first decision was a requirement that defendant compensate plaintiffs for the taking of this property right pursuant to the power of eminent domain.

In 1976, plaintiffs commenced the present and second class action against the MDOT. They alleged that defendant was using the lots it had acquired in violation of the restrictive covenant and sought to compel defendant to acquire their interests in the restrictive covenant before it proceeded with the highway's construction. On November 21, 1979, a declaratory judgment was issued which held that the MDOT was bound by the restrictive covenant. Further, the circuit court enjoined the MDOT from taking further action in preparation for the freeway's construction until it acquired by purchase or condemnation the plaintiffs' interests in the restrictive covenant.

On April 21, 1978, before the declaratory and injunctive order had issued, plaintiffs amended [155 MICHAPP 61] their complaint to add a Sec. 1983 civil rights claim. This claim was dismissed without prejudice by stipulation of the parties on September 7, 1978. However, following the issuance of the declaratory judgment and injunctive order of November 21, 1979, plaintiffs filed a motion for attorney fees claiming they were entitled to such fees under 42 U.S.C. Sec. 1988 since their cause of action included a claim under Sec. 1983. This motion was denied on June 23, 1980. Although this denial was presumptively based on the fact that plaintiffs' Sec. 1983 claim had been dismissed, the actual reason for the denial is not evident from the record. In any event, plaintiffs amended their complaint on December 4, 1980, to reassert their Sec. 1983 claim.

In January, 1981, the federal government gave final approval to the I-696 project and the proposed route. Thereafter, in November, 1982, the MDOT began condemnation proceedings to acquire plaintiffs' interests in the restrictive covenant. This action was brought pursuant to the Uniform Condemnation Procedures Act, M.C.L. Sec. 213.51 et seq.; M.S.A. Sec. 8.265(1) et seq. The action resulted in an offer of just compensation to plaintiffs in the amount of $243,000. One-third of this amount or $81,166 was set aside for attorney fees and placed into an escrow account. By order dated June 13, 1984, the $81,166 was released to plaintiffs' counsel as payment for attorney fees. The order states that this amount was intended as compensation to the attorneys for the declaratory judgment action commenced in 1976, as opposed to the condemnation action initiated by defendant in 1982.

On February 8, 1985, plaintiffs moved to advance the civil rights claim to trial. It is from the denial of this motion that plaintiffs appeal. Plaintiffs claim that they "prevailed" in the lawsuit related to their Sec. 1983 claim since they obtained [155 MICHAPP 62] the declaratory and injunctive relief that they sought. They do not claim that they would prevail in any other manner if they proceeded on their Sec. 1983 claim. However, plaintiffs aver that their success in obtaining the declaratory and injunctive relief was sufficient to entitle them to attorney fees under 42 U.S.C. Sec. 1988, which provides in pertinent part:

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

To qualify as a prevailing party for purposes of being awarded an attorney's fee, a party need not prevail on every issue. Rather, a litigant will qualify for an award when successful on a single substantial claim. Reel v. Arkansas Dep't of Corrections, 672 F.2d 693, 697 (C.A. 8, 1982). One may be entitled to an award in the court's discretion when relief is awarded on the basis of a state claim which is pendant to a federal constitutional or statutory claim. Allen v. Housing...