Froling Trust v. Bloomfield Hills C.C.

• Decision Date: 09 April 2009
• Docket Number: Docket No. 277438.,Docket No. 278383.,Docket No. 275580.
• Citation: 769 N.W.2d 234,283 Mich. App. 264
• Parties: MARILYN FROLING REVOCABLE LIVING TRUST v. BLOOMFIELD HILLS COUNTRY CLUB.
• Court: Court of Appeal of Michigan — District of US

769 N.W.2d 234

283 Mich. App. 264

MARILYN FROLING REVOCABLE LIVING TRUST v. BLOOMFIELD HILLS COUNTRY CLUB.

Docket No. 275580.

Docket No. 277438.

Docket No. 278383.

Court of Appeals of Michigan.

Submitted December 9, 2008, at Detroit.

Decided April 9, 2009, at 9:10 a.m.

Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, for the Marilyn Froling Revocable Living Trust.

Secrest Wardle (by William P. Hampton and Shannon K. Ozga) and Marcelyn Stepanski, Farmington Hills, for the city of Bloomfield Hills.

Potter, DeAgostino, O'Dea & Patterson (by Steven M. Potter and Rick J. Patterson), Auburn Hills, for Alan and Marilynne Kiriluk.

Honigman Miller Schwartz and Cohn LLP (by Peter M. Alter and Michael P. Hindelang), Detroit, for Roger B. and Barbara Smith and Gregg and Cindi Williams.

Before: MURPHY, P.J., and Sawyer and WHITBECK, JJ.

PER CURIAM.

These consolidated appeals arise out of flooding on residential property located on Rathmor Road in the city of Bloomfield Hills. In Docket No. 275580, plaintiff Marilyn Froling Revocable Living Trust (the Froling Trust) appeals as of right the trial court's December 21, 2006, order granting the city of Bloomfield Hills (the city) and Alan and Marilynne Kiriluk, Roger and Barbara Smith, and Gregg and Cindi Williams (collectively, the neighbors) summary disposition and the trial court's ruling that the neighbors were entitled to attorney fees and costs under MCR 2.405. In Docket No. 277438, the Froling Trust appeals as of right the trial court's March 23, 2007, order awarding the Kiriluks attorney fees and costs. In Docket No. 278383, the Froling Trust appeals as of right the trial court's May 9, 2007, order awarding the neighbors attorney fees and costs, and the neighbors cross-appeal from that order. We affirm in part and reverse in part.

I. BASIC FACTS AND PROCEDURAL HISTORY

A. THE FLOODING OF THE FROLINGS' PROPERTY

In 1987, Harold Warner owned two adjacent lots on Rathmor Road in Bloomfield Hills, Michigan. Warner lived in a house on one of the lots, lot 6. The other lot, directly to the east, lot 5, was undeveloped. The Kiriluks purchased lot 5 in January 1987. And in June 1987, William and Marilyn Froling purchased lot 6. William Froling, an experienced real estate developer, met with Warner, walked around the property, and inspected the catch basins and water drainage system. The Frolings purchased the property "as is."

In 1989, the Kiriluks began plans to build a house on their property. Before construction of the Kiriluks' house, there had been a natural swale on the southwest corner of the Kiriluks' lot. The swale served to move water away from the Frolings' property. Engineers hired by the Kiriluks proposed a site plan that took into account the existing natural drainage system, and the city approved the plan. However, during construction, the Kiriluks brought in dirt to raise the height of their property, and during the re-grading of the lot, the Kiriluks filled in the swale, preventing the natural runoff of water from the southeast corner of the Frolings' property. Despite this alleged deviation from the approved plan, the city issued an occupancy permit for the Kiriluks' home.

In April 1989, the Frolings began experiencing significant flooding on their property. William Froling testified that during heavy rain that month he witnessed water surging through a culvert constructed under Rathmor Road and flowing onto the south side of the road. The flooding was so severe that the water levels reached the steps of the front and back porches of the Frolings' home.

From then on, on numerous occasions following periods of heavy rain or spring thaw, substantial amounts of water would pool on the Frolings' property, particularly on the west and south sides of their home. According to William Froling, the most significant periods of flooding occurred in June 1996, June 1997, June 2001, April and May 2004, and January 2005. During the June 1997 incident, the Frolings' basement was completely flooded, causing over $20,000 in property damage. According to the Frolings, in addition to the Kiriluks' construction, re-grading, construction, and re-direction of water flow on other neighboring properties, including those owned by the Williamses and the Smiths, also contributed to the flooding on their property.

In September 1989, William Froling wrote to the city, requesting that it take steps to alleviate any further flooding problems on his property, asserting that the city should have taken proper precautions when it approved the subdivision plan. Notably, despite claiming that Warner "said he never had any serious water problems while he lived there," Froling indicated that he was put on notice of potential flooding problems at the time he bought the property:

When I bought the house from Mr. Harold Warner, I asked him why he didn't install lawn sprinklers — and his remark was "Well, live there a year first and I think you will find out you won't need sprinklers!" Of course, I did not know what he meant.

The city hired an engineering firm to investigate the Frolings' flooding complaints, and the investigation revealed that 29 acres of the surrounding property drained into the Frolings' property. (The Frolings also later hired engineers, who determined that 55 acres of the surrounding property drained into their land.) However, the engineers discovered a private drainage system that they thought was probably constructed by the original property owners and was likely the responsibility of the owners of the system.

In November 1989, the city wrote a letter to William Froling, stating that the city's policy was to not involve itself in storm water damage in existing subdivisions and that it was the various property owners' responsibility to resolve any storm water drainage problems affecting their property. More specifically, the city explained as follows:

In 1923, when the Donnelly Farms Subdivision Plat was approved, drainage easements or other utility easements were not required by Bloomfield Township, which granted the plat approval. By today's standards, a retention basin with adequate holding capacity and regulated release of storm water would be required. The City of Bloomfield Hills does not involve itself in storm water drainage concerns, except where new subdivisions are being considered or the property being developed is in a floodplain....

Historically, as property developed, each developer was responsible for their storm water runoff. In the 1960's, the City's concern was to prevent any storm water from entering the sanitary sewer system and this is a continuing concern to the City of Bloomfield Hills and other governmental agencies today.

In addressing stormwater [sic] drainage, each property owner is responsible for their own specific problems — some involve trenching or berming, others with their own storm sewer and culverts, and some have installed retention ponds on their property. Any of these methods implemented, have been at the affected property owner's expense. In some instances, where the drainage solution of one property owner detrimentally affects another, civil action in court results in a workable solution.

In your subdivision, ... your property is on the lowest elevation. My predecessor, who served the City of Bloomfield Hills for the past forty years, told me he had suggested to the Homeowners Association at one time, that they acquire the vacant lot as a retention pond for stormwater [sic] runoff. However, there was no interest in that proposal, as no one was having drainage problems and the value and location of the property warranted development.

I am not aware of any other stormwater [sic] runoff problems in your subdivision and the solution to your specific problem would appear to be best resolved by accommodating the existing flows of water around your property so as not to affect your home. You can accomplish this by one of the above mentioned methods without involving your neighbor's property; although, you could take this before your Homeowner Association to determine if sufficient interest exists to explore other engineering solutions.

In October 1990, the city wrote to the Frolings again, stating that the cost of installation of any storm drain system to alleviate storm water runoff on private land would be the property owners' responsibility.

In 1995, the Smiths' basement flooded with water. The Smiths blamed the flooding on water coming from the Bloomfield Hills Country Club (the Country Club) and complained to the Country Club's management. The Smiths and the Country Club ultimately agreed on a solution: installation of an underground pipe extending from the golf course directly into a pond on the Smiths' and the Williamses' properties. However, this "solution" increased the flow of water onto the Frolings' property. The additional amount of water flowing into the pond forced the pond to overflow with greater frequency. The water coming out of the pond would flow through a drainage ditch that the city had created on the north side of Rathmor Road and then through the culvert in the road onto the lower lying property on the south side of Rathmor Road.

In June 1997, the Frolings' property was flooded again, causing a substantial amount of property damage. After that flood, William Froling wrote to the city commissioners, requesting that they consider construction of a storm water drainage system. In that letter, Froling stated that a neighbor had told him that Warner used a canoe to get off the property after a heavy rain. Froling claimed that the city erred in approving the Kiriluks' construction and that the city had "confiscated" his property for a retention pond.

The city again hired engineers to study the drainage problems. And in October 1997, the engineers reported their findings to the city's manager, stating that "the existing drainage system is not of a size large enough to adequately handle the...