Hill v. City of Warren

• Decision Date: 24 July 2007
• Docket Number: No. 266426.,266426.
• Citation: 740 N.W.2d 706,276 Mich. App. 299
• Parties: Robert HILL, Shirley Hill, Timothy Carlson, Randall Kolodziejski, Linda Kolodziejski, William Glasson, Beverly Glasson, David Abraham, Kristin Abraham, Dennis D. Marlowe, Dennis Hight, Tracy Hight, Ted Dobek, Carolyn Kupiec, Frederick Cross, Michelle Cross, Sandra Powers, Daniel G. Olivares, Francesco Simone, Pamela Simone, Gary Potapshyn, Gerald Kowalski, and Frank Vitale, Plaintiffs-Appellees, v. CITY OF WARREN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

740 N.W.2d 706

276 Mich. App. 299

Robert HILL, Shirley Hill, Timothy Carlson, Randall Kolodziejski, Linda Kolodziejski, William Glasson, Beverly Glasson, David Abraham, Kristin Abraham, Dennis D. Marlowe, Dennis Hight, Tracy Hight, Ted Dobek, Carolyn Kupiec, Frederick Cross, Michelle Cross, Sandra Powers, Daniel G. Olivares, Francesco Simone, Pamela Simone, Gary Potapshyn, Gerald Kowalski, and Frank Vitale, Plaintiffs-Appellees, v. CITY OF WARREN, Defendant-Appellant.

No. 266426.

Court of Appeals of Michigan.

Submitted July 17, 2007, at Detroit.

Decided July 24, 2007, at 9:00 a.m.

Released for Publication October 26, 2007.

Macomb Circuit Court; LC Nos.2000-001823-CZ.

Mantese and Associates, P.C. (by Gerard V. Mantese and Mark C. Rossman), and Fraser & Souweidane, P.C. (by Stuart A. Fraser, IV), Troy, Mount Clemens, for the plaintiffs.

Garan Lucow Miller, P.C. (by Rosalind Rochkind and John J. Gillooly), Detroit, for the defendant.

Before: DAVIS, P.J., and HOEKSTRA and DONOFRIO, JJ.

DAVIS, P.J.

Defendant appeals the trial court's order granting plaintiffs' motion for class certification. We affirm.

This is not the first time this matter has been before this Court. In a prior appeal, this Court set forth the background facts:

In the late 1950's and early 1960's, the City of Warren planted silver maple trees on public easements between the sidewalk and street curb in front of residents' homes. In 1967, the city prohibited further planting of silver maples because they grow quickly and should have been planted away from structures and streets to avoid interference with sewers and sidewalks. As the trees matured, their roots outgrew the space in which they were planted, and began to bore into the plaintiffs' adjacent private property. The roots invaded and obstructed the sewer pipes which resulted in raw sewage and water backups into plaintiffs' homes. The roots also grew upward and lifted the concrete sidewalk blocks which caused the sidewalk to be uneven and dangerous. The roots also destroyed the surface of plaintiffs' lawns and killed grass and vegetation. Also, plaintiffs spent a considerable amount of time and money for cleaning and repairs after their homes were flooded with raw sewage.

Because of certain provisions in the Warren Code, plaintiffs may not remove the silver maples and those residents who have tried to obtain a permit from the Director of Parks and Recreation to remove the trees have been repeatedly ignored or denied permission to do so. Defendant has not compensated plaintiffs for the damage caused by its trees, but has enacted various ordinances in order to help alleviate the problem. These measures include a cost-sharing plan for sidewalk replacement and the formation of a Sidewalk and Tree Board of Review. [Hill v. City of Warren, unpublished opinion per curiam of the Court of Appeals, issued February 4, 2003 (Docket No. 229292, 2003 WL 245839).]

Plaintiffs seek redress as a class encompassing all property owners in the city who are similarly affected. Defendant opposes class certification. Plaintiffs' substantive claims include trespass-nuisance, negligence, and governmental taking.

This litigation was commenced by Robert and Shirley Hill¹ in their individual capacities, and they filed an amended class action complaint shortly thereafter. The trial court originally denied their timely motion for class certification, concluding that the litigation would entail too much individualized fact-finding. Plaintiffs filed an application for leave to file an interlocutory appeal in this Court, in Docket No. 229292. This Court initially denied leave to appeal, but on reconsideration issued a peremptory order reversing the trial court and remanding the case for entry of an order granting class certification. Unpublished order of the Court of Appeals, entered January 29, 2001 (Docket No. 229292). Defendant sought leave to appeal in our Supreme Court, and our Supreme Court in an unpublished order, entered March 5, 2002 (Docket No. 118639, 641 N.W.2d 857), held that application in abeyance pending its decision in Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002). Following its decision in Pohutski, the Supreme Court, in lieu of granting leave to appeal, vacated this Court's peremptory order of reversal and remanded to this Court for plenary consideration. 466 Mich. 871, 645 N.W.2d 664 (2002). This Court then issued the unpublished opinion quoted above, holding that the trial court's denial of class certification was clearly erroneous. On November 21, 2003, our Supreme Court, in lieu of granting leave to appeal from our unpublished opinion, issued another peremptory order reversing this Court, holding that the trial court's "denial of class certification was not clearly erroneous," and remanding to the trial court for further proceedings. 469 Mich. 964, 671 N.W.2d 534 (2003).

On remand, some additional discovery took place. Plaintiffs then filed a "renewed motion for class certification." The trial court observed that its initial denial had "always been a close decision," and after "much careful consideration of the record and pleadings filed since the Court's initial decision denying class certification," it had become persuaded that class certification was the superior way for the action to proceed. It therefore granted class certification. Defendant applied for leave to appeal, which this Court denied for failure to persuade this Court of the need for immediate appellate review. Unpublished order of the Court of Appeals, entered April 11, 2005 (Docket No. 259706). Defendant then applied for leave to appeal in our Supreme Court, which, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. Our Supreme Court further directed us to

consider whether Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002), affects the class certification issue in this case. Pohutski held that § 7 of the governmental tort liability act, MCL 691.1407, does not permit a trespass-nuisance exception to governmental immunity, but ruled that this holding would be applied only to cases brought on or after April 2, 2002. In light of Pohutski, are issues relating to putative plaintiffs unnamed as of April 2, 2002, sufficiently disparate from issues relating to plaintiffs who were named as of April 2, 2002, to the extent that certification of a single class containing both groups of plaintiffs would be inappropriate under MCR 3.501(A)(1)? [474 Mich. 916, 705 N.W.2d 345 (2005).]

The matter is therefore now before this Court for consideration as on leave granted.

Defendant first argues that the trial court was procedurally precluded from considering plaintiffs' "renewed motion for class certification" by statute, caselaw, or court rule. We disagree.

Interpretation of a statute is a question of law reviewed de novo on appeal. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159, 645 N.W.2d 643 (2002). Interpretation of a court rule follows the general rules of statutory construction, and both "must be construed to prevent absurd results, injustice, or prejudice to the public interest." Rafferty v. Markovitz, 461 Mich. 265, 270, 602 N.W.2d 367 (1999). However, if the language is unambiguous, "the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case." Veenstra, supra at 160, 645 N.W.2d 643. The scope of a trial court's powers is also a question of law reviewed de novo on appeal. Traxler v. Ford Motor Co., 227 Mich.App. 276, 280, 576 N.W.2d 398 (1998). The application of the law of the case doctrine is also a question of law reviewed de novo on appeal. Ashker v. Ford Motor Co., 245 Mich.App. 9, 13, 627 N.W.2d 1 (2001).

Under MCR 3.501(B)(1), a plaintiff who files a complaint that includes class action allegations must move for class action certification within 91 days of filing the complaint, except by stipulation of the parties or on motion for good cause shown. If the plaintiff fails to do so, the class action allegations may be stricken unless the plaintiff shows excusable neglect. MCR 3.501(B)(2). "If certification is denied or revoked, the action shall continue by or against the named parties alone." MCR 3.501(B)(2). Defendant argues that even if plaintiffs could file a renewed motion after the remand order from our Supreme Court, plaintiffs would have been required to do so within 91 days thereof, which plaintiffs failed to do.

There are no published cases in Michigan² substantively addressing the pertinent provisions of the court rule, or the amended version of the predecessor rule, former GCR 1963, 208.2(A), which specified 90 days instead of 91 but was otherwise virtually identical to the current MCR 3.501(B)(1). The committee comments to Rule 208.2(A) indicate that the addition of a timing requirement was "designed to prevent cases from remaining pending for extended periods without the propriety of a class action being raised." 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1984 pocket part, p 341. Furthermore, the court rules explicitly permit a trial court to de certify a class at any time after certification, and thus requires "that motions for decertification be treated as distinct and independent motions that implicate the same considerations as a motion to certify a class action, rather than as a motion for reconsideration." Tinman v. Blue Cross & Blue Shield of Michigan, 264 Mich.App. 546, 561, 692 N.W.2d 58 (2004). There is no time limitation on a motion for decertification, and indeed a party could theoretically file multiple motions, subject to the prohibition against groundless motions found in MCR 2.114. Tinman, supra at 561 n. 11, 692 N.W.2d 58. The plain language of the court rule mandates that a motion for certification be brought within 91 days of the complaint; it does not forbid subsequent motions for certification or mandate any...