Hescott v. City of Saginaw

• Decision Date: 07 August 2012
• Docket Number: Case No. 10–13713.
• Citation: 894 F.Supp.2d 977
• Parties: John HESCOTT, et al., Plaintiff, v. CITY OF SAGINAW, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

894 F.Supp.2d 977

John HESCOTT, et al., Plaintiff,

v.CITY OF SAGINAW, et al., Defendants.

Case No. 10–13713.

United States District Court,

E.D. Michigan,

Northern Division.

Aug. 7, 2012.

Susan K. Friedlaender, Berry, Reynolds, Farmington Hills, MI, for Plaintiffs.

Jamie H. Nisidis, Braun, Kendrick, Saginaw, MI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DISMISSING COUNTS I, II, V, VI, VII WITH PREJUDICE, DISMISSING COUNT III IN PART WITH PREJUDICE AND AMENDING THE SCHEDULING ORDER

THOMAS L. LUDINGTON, District Judge.

On July 18, 2009, the City of Saginaw demolished a residence owned by Plaintiffs located at 1002 Webber Street in the City of Saginaw. The Plaintiffs, John Hescott and Benjamin Hescott, bring this action against the Defendants, City of Saginaw (“the City”), John Stemple, Scott Crofoot, Gregory Barton and Rohde Bros. Excavating, Inc. (collectively, “Defendants”), alleging violations of the Constitution of the United States, the Constitution of the State of Michigan, various Michigan statutes, and the Michigan common law. Defendants have filed a motion for summary judgment, contending that they are entitled to judgment as a matter of law with regard to all of the claims set forth in Plaintiffs' Complaint except Count IV alleging an inverse condemnation claim against the City. ECF No. 11.

Oral argument was heard on Defendants' motion on March 21, 2012. For the reasons provided herein, the Court will grant in part and deny in part Defendants' motion. Plaintiffs, however, have not responded to Defendants' arguments on the state law claims, contending that the Court must first affirmatively exercise supplemental jurisdiction. Indeed, when Defendants removed both the federal and state law claims, the Court had supplemental jurisdiction pursuant to 29 U.S.C. § 1367(a) because the state law claims are related to the federal claims and the Court has not declined jurisdiction. Supplemental briefing from Plaintiffs is thus necessary on these issues.

I. Facts

Plaintiff Hescott purchased a house located at 1002 Webber Street in Saginaw in 200l. Hescott lived in the house for several years before moving to Flint. Id. at 8, 17. After moving, he leased the two-family dwelling to tenants. When Hescott purchased the house it was in poor condition. He needed to make many repairs to bring it up to code. ECF No. 18 Exs. A at 9, B. In 2007, he spent approximately $10,000 to replace the roof and install seamless gutters. The City's code enforcement history demonstrates that Hescott promptly responded to any code violations and fixed any problems. ECF No. 18 Ex. C at 008–10. The code enforcement history also reflects that the enforcement officers had John Hescott's current telephone number and had contacted him at that phone number in the past. Id.

Hescott is a member of the United States Armed Forces. He is a Chief Warrant Officer, 4th Class, helicopter pilot. He was first deployed to Afghanistan in 2003. He was again deployed to Afghanistanin 2006 for 18 months. He spent May 31 to June 30, 2009 in Iraq and Afghanistan and served another 13 months on active duty in Afghanistan in 2011–2012. He returned to the United States in May 2012. In 2008, Hescott tried to sell the house when he was relocated to the Fort Rucker Aviation base in Ozark, Alabama. Hescott was unable to sell the house and took it off the market. John and his wife also maintain a home on Bray Road in Flint, Michigan. Plaintiff Benjamin Hescott, John's son, is included on the deed to the house but is a “silent partner basically” according to John. ECF No. 11 Ex. H at 31. Benjamin Hescott lives in Howell, Michigan.

On July 11, 2009, Hescott traveled to Michigan while on leave from the army and inspected the Saginaw house. He discovered that the basement wall on the west side of the house was damaged. Hescott testified that the house did not look any worse in the pictures the City took one week later on July 18, 2009 when they demolished it. ECF No. 18 Ex. A at 75. After discovering the damage, on July 12, 2009, Hescott called his usual assistants, Shawn Taylor and Josh Weatherwax, to fix the foundation wall. Neither Taylor nor Weatherwax are licensed builders. According to Hescott, he asked them to investigate the damage, tell him whether it could be fixed, the amount of money required to fix the damages and whether it was safe to wait several weeks to do the work. Hescott believed that Weatherwax and Taylor investigated the damage sometime between July 13 and July 16, 2009. ECF No. 18 Ex. at 79. Hescott called Weatherwax on or about Friday, July 17, 2009 to get a report on the house. He also asked whether they felt safe working in the house because Hescott could not return to Michigan until August and wanted to assist with the repairs. ECF No. 18 Ex. at 58–59.

The assistants determined that the problem could be fixed. ECF No. 18 Ex. E at 40. Taylor concluded that they could use steel beams to support the house while they fixed the wall. Id. Both assistants testified that they were not concerned for their safety while in the house. ECF No. 18 Ex. E at 35; Ex. F at 30–32. The assistants determined that temporary supports could be installed and once installed, they could fix the wall that had fallen into the basement. Weatherwax thought that it looked like the wall opposite to the failed wall likely failed in the past and was similarly fixed. ECF No. 18 Ex. F at 33, 53. Taylor estimated that the foundation wall could have been repaired within one or two days. ECF No. 18 Ex. E at 59. He believed that the house would be fine in the interim between his visit and the target repair date. Id. at 62–63.

Defendant Scott Crofoot is the City's Dangerous Building Inspector. His position is funded through federal Community Block Grant Funds. ECF No. 18 Ex. G at 30. Defendant John Stemple is the Chief Inspector. Crofoot and Stemple are part of the City's Community Development Department. Odail Thoms is the chief executive of the Department. The City received almost $3,000,000 during the relevant time period to demolish property within the City. ECF No. 18 Ex. H.

At 12:19 p.m. on Saturday, July 18, 2009, City Police Officer Ian Wenger responded to a call from Central Dispatch regarding a suspicious situation at 1002 Webber. While checking for noises coming from the house based on a call from an unknown person to Central Dispatch, Officer Wenger observed that the basement wall of the building had collapsed inside. Because of the condition of the structure, Officer Wenger contacted “code enforcement” for the City. Officer Wenger explained that he called code enforcement “[b]ecause the basement wall had fallen in and it appearedto be in a condition which would pose a hazard to somebody.” ECF No. 11 Ex. A at 14. Officer Wenger was concerned with the possibility of the structure falling down or people accessing the building from the collapsed basement.

As a result of Officer Wenger's observations at 1002 Webber, John Stemple, the Chief Inspector for the City who was in Traverse City at the time, was contacted by Central Dispatch. Stemple testified that he was advised that an officer had responded to a call at 1002 Webber and that the officer reported that there were children playing in the vicinity of the house and that it appeared unsafe. Being out of town at the time, Stemple contacted Scott Crofoot, the City's Dangerous Buildings Inspector, to respond to the scene. Scott Crofoot testified that Stemple told him that the police had called; that there had been a call about a disturbance; and that when the officer responded, he found a collapsed basement wall. ECF No. 11 Ex. C at 41.

Scott Crofoot arrived on the scene at 12:45 p.m. Upon arrival, Crofoot observed that the west wall had collapsed into the basement and, looking at the back wall and front comer, the house appeared to have rotated. Crofoot also heard the house creaking. While he was on the scene, Crofoot had to escort two 6 to 8 year old boys, who were playing on the front porch of 1002 Webber, back to their home next door. After assessing the situation, Scott Crofoot contacted John Stemple and described the deterioration of the foundation and the shifted building to him. Stemple advised Scott Crofoot to contact the Fire Marshal, Greg Barton, and to then make a decision about the action to be taken. Under the City's Dangerous Buildings Ordinance, the Fire Marshal can authorize an emergency demolition.

Scott Crofoot contacted Greg Barton and advised him that he was on scene at 1002 Webber and that one of the walls had collapsed. Greg Barton arrived on scene at 1:48 p.m. Crofoot and Barton entered the basement of the house and Crofoot took pictures of the interior of the basement. Crofoot explained that he and Barton were in the basement for only 2 to 3 minutes because they did not feel safe inside the home. Barton did not want to continue past the basement stairway. Scott Crofoot and Greg Barton together made the determination that the house should be demolished. Crofoot summarized the reasons for the emergency demolition as follows:

[I]f just the foundation had collapsed, it probably wouldn't have needed to come down; but there were other contributing factors. First of all, the house had rotated on its axis. It had rotated. It would have been—it rotated counter-clockwise. There were three support beams in the—excuse me—one support beam with three support posts under it. Two of those support posts were rotted and only had a small portion of their base actually sitting on concrete. The rest had rotted away. The beam above them was rotted and cracked.

ECF No. 11 Ex. C at 27–28.¹ Scott Crofoot further explained the rationale for an emergency demolition of the house as follows:

My concern was that it wouldn't stay standing through the night after seeing the condition of the main beam, hearing the creaking that was going on with the light wind...